What does that right include?
Covenant sections 101, 102, 103, 104 and 105 set out the basic architecture of the relationship between the CNMI and the U.S. governments. The structure is essentially a "federal" system, where power is shared between a central authority and a regional authority.
Federalism is never an easy system. There are always tensions.
The central authority in our federal system is the US government, which has "sovereignty." The CNMI agreed that it would be UNDER the US's sovereignty by Covenant section 101. This means that the US government has the ultimate power to govern.
No other power granted or guaranteed by the Covenant can trump or supersede the sovereignty of the US. The only limits on the US's sovereign power over the CNMI are those expressly stated in the Covenant.
The CNMI was guaranteed the right to local self-government. Covenant section 103. Fitial tries to argue that this guarantee is a limit on the US's sovereign power. However, the legislative comments state that local self-government is not inconsistent with US sovereignty, suggesting that it is not meant to be construed as an express limit on the US's power.
The Marianas Political Status Commission (MPSC) comments on the Covenant that are part of its legislative history help explain what that guarantee of local self-government means.
The Commonwealth of the Northern Mariana Islands will be self-governing. This means that the people will determine their own form of government and the manner in which they will govern themselves with respect to local affairs....Article II provides for a commonwealth constitution which will spell out the manner in which the people will govern themselves.
(emphasis added)
The MPSC comment continues with this comment:
The United States will have sovereignty, that is, ultimate political authority, with respect to the Northern Mariana Islands. ... United States sovereignty is not inconsistent with the exercise of the right of local self-government by the people of the Northern Marianas. ...Moreover, the states and the Commonwealth of Puerto Rico, and to a great extent even the territories, have very substantial powers of local self-government. The people within these areas determine local policies without undue interference, notwithstanding the ultimate political authority of the central government. The same will be true of the Commonwealth of the Northern Marianas.
(emphasis added)
The CNMI has struggled with the meaning of its local self-government powers. It has tried to expand them beyond this stated scope by saying the guarantee relates to an exclusive, substantive area of governance. It has tried to argue that the Covenant grants the CNMI more power than the powers given to states and other territories. It has made these arguments in past cases like the case challenging the US audit of CNMI tax returns, and it makes it again in the present litigation challenging the application of US immigration here.
The 9th Circuit Court of Appeals has held that the CNMI's interpretation is wrong. The court held that the guarantee of self-government relates to the FORM and MANNER of local government, not to the content of legislation. We can decide whether to have a uni-cameral or bi-cameral legislature. We can set the terms for our elected leaders to whatever number of years we like. We can hold legislative sessions on different islands. We can designate our seat of government. We can decide how many legislators we want. We can decide whether to have municipal government agencies. We have great control over the FORM and MANNER of our government.
But according to the 9th Circuit Court of Appeals, we do not have an exclusive zone of legislative power. The guarantee does not set substantive boundaries for local control. In fact, the Court held that the US Congress may pass legislation affecting the internal affairs of the CNMI. United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 755 (9th Cir. 1993).
The 9th Circuit's interpretation tallies with the comments that the MPSC made when the Covenant was drafted. The MPSC explained that the US Congress legislates for the territories (including the Commonwealth of Puerto Rico) under the US Constitution Article IV, Section 3, Clause 2, and that this power is broader than the authority to legislate as to states. The Covenant section 105, provides similarly broad power to the US Congress to pass laws for the CNMI, but provides a small concession to make sure those laws are meant to be applied here.
From the point of view of the United States, the existence of the power under Article IV, Section 3, Clause 2 is a fundamental part of a close and permanent relationship with any political entity which is not a state of the union.
...since the power of the Congress with respect to a commonwealth, such as the Commonwealth of the Northern Marianas, is ...broader than Congress' power with respect to a state, special precautions have been taken in Section 105. Article IV, Section 3, Clause 2 will continue to be the mechanism through which the Congress will legislate with respect to the Northern Marianas. But Section 105 provides that laws which Congress could not also make applicable to a state cannot be made applicable to the Northern Marianas, unless the Northern Marianas is specifically named in the legislation. This assures that Congress will exercise its special authority under Article IV, Section 3, Clause 2 purposefully, after taking into account the particular circumstances existing in the Northern Marianas.
The Covenant is clear on the ultimate authority of the US Congress to enact laws that affect the CNMI, including laws that impact our internal, local affairs. The US Congress cannot take away our local self-government, meaning it cannot deny us the power to set the form and manner of our local government. But it can pass laws that impact local aspects of our lives. It just needs to make sure it does so deliberately, and names the CNMI in legislation that is not applicable to all the states.
It's also clear that Fitial has ignored the 9th Circuit's decision and the MPSC comments on what the Covenant's guarantee of local self-government means. He continues to argue for an expansive view of the guarantee of local self-government. He has NO legal support for his argument. Nothing in the legislative history supports his view. Comments in the legislative history directly contradict it. There are no cases that support his view.
And as to the current legal challenge, the Covenant section 503 expressly authorizes the U.S. Congress to extend application of US immigration to the CNMI. The MPSC comment notes that the US Congress can act to
make them [immigration and naturalization laws] applicable either as they are applicable in other areas under the American flag, or in some special way which takes into account the particular conditions in existence at that time in the Northern Marianas.
In my opinion, Fitial is so far afield in what he argues is within the ambit of local self-government as to be laughable. He is so far afield in arguing against extension of US immigration laws to the CNMI as to be a joke. Of course, the hilarity comes with a high price as he uses our very limited CNMI public funds to pay expensive attorneys to push his untenable views.
