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Friday, April 18, 2014

Fitial files lawsuit against feds



In a bid to block the pending federal takeover of the CNMI’s immigration system, Gov. Benigno R. Fitial filed a much-anticipated lawsuit Friday against federal authorities, saying the legislation behind it threatens to cripple the local economy and breaches the terms of the Commonwealth’s Covenant with the United States.

Local lawmakers have already taken issue with the suit, including some who are raising serious questions about his use of unallocated government money to fund it. A joint House and Senate committee is expected to release a report today listing a host of objections to the litigation.

Filed in the U.S. District Court for the District Columbia—which is often the venue for challenges to federal regulations—against the Department of Homeland Security and the Department of Labor, the suit contends that the law President Bush signed earlier this year establishing federal immigration controls in the CNMI will violate the promises of self-government and economic development detailed in the Covenant.

Moreover, scores of foreign workers and investors—key segments of the local economy—likely will have to leave the CNMI under the newly enacted bill, harming local businesses that depend on them, the suit says.

“The economic experts from all sides agree that this legislation will harm our tourist industry because it will take away the labor pool that supports our hotels and other visitor services,” Fitial said in a statement Sunday. “It also takes away the labor pool that makes foreign investors willing to invest in our economy.”

The lawsuit

The so-called “federalization” of the CNMI’s rules for foreign workers has proven one of the most hotly contested local issues of the day, with proponents saying, among other arguments, that it will safeguard guest workers against abuse by employers, and opponents railing that it will devastate businesses dependent on alien labor. DHS and DOL are now crafting regulations based on the legislation authorizing it, which are due for release later this year.

The lawsuit asks the court for a permanent injunction barring federal officials from putting the federalization bill into action.

“[T]he relationship between the United States and the Commonwealth does permit the United States to apply federal immigration laws to the CNMI,” the suit says. “In at least two core respects, however, [the bill] goes beyond the mere application of federal immigration laws to the CNMI, and it thereby impermissibly violates the fundamental right of self-governance that was guaranteed to the Commonwealth as part of the Covenant, as well as the commitment to economic development.”

Among those two respects, the suit says, is the decrease in the number of foreign workers the legislation requires, a mandate that will “devastate the employment base and local economy of the CNMI, rendering the islands almost wholly dependent upon voluntary assistance from the United States.”

Imposing a federally controlled immigration system is the second. Under the new law, DHS will begin administering the regulation of all foreign workers in the CNMI, a prospect that the suit says is “the anti-thesis of local self-governance, as guaranteed to the Commonwealth.”

Moreover, the suit attacks federalization on constitutional grounds, saying the CNMI’s lack of representation in Congress during debate on the issue “violates constitutional limitations on the power of Congress” and the forced removal of foreign workers would violate the “rights of due process and equal protection of the CNMI’s people, employers, and property owners.”

Pointing to the recent economic downturn the CNMI has suffered, the suit adds that federalization will compound the problems local businesses have faced due to increases in the minimum wage and a variety of challenges with finding the employees they need.

“The Commonwealth’s economy can be resuscitated only through a renewed influx of foreign investment and the presence of a stable workforce able to support construction and new economic development,” it says.

Paying for it

Meanwhile, serious questions have emerged about how the Fitial administration is funding the lawsuit. In his Sunday statement, the governor says he “will not use any funds currently available for public services for this case” yet his spokesman, Charles Reyes, acknowledged in an interview that money obtained through government settlements will pay for it.

Money from several settlements is due to the government and has yet to be allocated to any public purpose, Reyes noted, declining to give specifics on which settlements will fund the suit.

“The government has various claims and all kinds of claims against private individuals—a lawsuit might be one of those—where the government prevailed and where new money can be brought in that is not currently allocated [by the Legislature] and that can be used for this purpose,” said Reyes. “The governor is not prepared to get into all the technical details at this point. Of course, we’ll want the Legislature’s blessing.”

However, this answer may not be enough to satisfy lawmakers, including some like Rep. Tina Sablan (I-Saipan) who said it suggests Fitial is concealing resources that he should have included in his most recent budget.

“Even if [the money] hasn’t been allocated by the Legislature, it is still public funds,” Sablan said in an interview. “This throws into question the whole budget the governor submitted for FY09. Apparently, he’s hiding money. Apparently, he hasn’t declared all resources and I think this is a complete breach of the public’s trust.”

Sen. Maria T. Pangelinan, (D-Saipan), chairwoman of the Senate Committee on Fiscal Affairs, echoed those statements, saying she was shocked that Fitial filed the lawsuit without the Legislature’s approval. Fitial still has to answer to the Legislature about the funding source for the lawsuit, she said. Pangelinan noted concerns that the administration might have more money than it is reporting to the legislature for appropriation.

“There is a reason there are three branches of government—and that is, checks and balances. But it appears that the governor now makes all the decisions unilaterally,” she said.

Rather than file suit over federalization, Rep. Diego Benavente (R-Saipan), chairman of the House Committee on Federal and Foreign Relations, said the Fitial administration should pursue negotiations with federal authorities. Although lawmakers acknowledge the governor’s authority to sue the federal government and to transfer funds for the suit, he added, they believe the litigation will be costly and counterproductive.

“We stand firm in our opposition to suing the U.S. government,” he said, noting the suit’s price tag. “First, we simply cannot afford the $400,000 needed for this lawsuit. Second, as the governor pointed out in his State of the Commonwealth Address a few months back, there are other options for resolving this. We think negotiation is the best route.”

‘No merit’

While lawmakers explore the Fitial administration’s source of funding for the litigation, it appears the legal arguments in the suit could face major hurdles in court.

Former Deputy Assistant Secretary for the Department of the Interior’s Office of Insular Affairs, David Cohen, one of the architects of the federalization bill, said in a statement that the suit’s claims are at odds with the federal government’s approach to immigration and labor laws historically.

“The complaint has no merit, although you never know what’s going to happen in court,” he said.

Moreover, while the lawsuit “tries to argue that the CNMI is being singled out with special restrictions that do not apply to any other community in the U.S,” the truth “is exactly the opposite. The CNMI is receiving special benefits that no other community receives under U.S. immigration law.”

Cohen also took issue with the suit’s claim that the new law will force all foreign workers out of the CNMI, noting that the term of the guest worker program it creates to aid the transitional period after it is enacted can be extended.

“The new law provides the flexibility to deal with each and every concern that the governor has raised,” he said. “The complaint assumes in advance that the federal government will ignore the CNMI’s concerns and not use the flexibility that the new law provides, even though Congress has directed the federal agencies to be flexible in order to promote economic development in the CNMI.”

The governor, he added, “is essentially asking the court for protection because he’s afraid that the federal agencies will, in the future, ignore their duties under the new law and not implement it properly. Any court worth its salt would tell the governor to wait and give the feds a chance to do their jobs properly. You can’t sue public officials in advance for possible future misdeeds. You have to wait to see if those misdeeds actually occur.”

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