Federalization lawsuit could hinge on Covenant questions

A lawsuit the Fitial administration recently said it might file against the federal government over the future impact of its pending takeover of local immigration could face a variety of challenges should it ever reach a courtroom but chief among them, according to local legal minds, is how courts will interpret the authority of the Commonwealth’s Covenant.

Gov. Benigno Fitial in a televised statement last month announced his administration is considering the lawsuit in a bid to overturn legislation signed by President Bush earlier this year imposing federal authority on the Commonwealth’s immigration system. With a local economy largely dependent on foreign labor, many experts have said the Commonwealth will suffer under the new rules.

Fitial has said attorneys in Washington, DC, are now reviewing a draft complaint that his administration could file against federal authorities. In an interview Thursday, the governor’s special legal counsel, Howard Willens, said Fitial’s aim in the potential suit would be to block the implementation of the new law’s labor provisions, which could force many of the Commonwealth’s more than 22,000 foreign workers to leave and put strict new rules in place on any new foreign labor.

“Arguably, that would leave us without the workforce we need to support our economy and provide for everybody here,” Willens said.

Key among the legal issues the suit would have to address is the scope of the authority given to the Commonwealth under the Covenant, the fundamental document establishing the relationship between the U.S. and CNMI governments.

Previous federal case law, Willens said, suggests the Commonwealth’s attorneys could contend that the new labor provisions violate section 103 of the Covenant, which details the local right to self-government. Moreover, an important precedent has established that the Covenant does put a meaningful check on federal authority to regulate labor practices in the Commonwealth.

To illustrate this, Willens pointed to a 1993 suit before the U.S. Court of Appeals for the Ninth Circuit, Richards v. Guerrero. The appellate court’s ruling in the suit—a dispute over federal authority to review government tax information—established that “the Covenant does amount to a limitation on the federal government,” he said.

However, the Covenant’s power to block federalization is doubtful because the U.S. Congress can enact changes to it at any time, according to former CNMI attorney general Pamela Brown. Brown in an interview said that despite what proponents of the lawsuit might say about the Covenant, the authority of Congress will likely trump the challenge to federalization.

“Regardless of what people think the Covenant has guaranteed them, to me it’s mind-boggling that they’re pursuing this case,” Brown said. “It’s basic law school 101 that you can’t bind the hands of future legislative bodies.”

The Covenant, she added, is a “federal public law” subject to changes by Congress. “The feds have been pretty good about honoring it and complying with its rules,” she said. “But in reality, if Congress wants to go in and delete each and every one of those rules, it can do that.”

One pitfall any suit over federalization could face might be the so-called “rightness doctrine,” she added, a criterion federal courts employ to determine a case’s merits based on whether any injury has occurred. Brown noted that the injury the governor’s suit would likely detail is based on the prospective impact of federalization in the future, not on any current harm it has caused.

“Courts don’t entertain hypothetical lawsuits,” she said. “Speculation about the economic impact before the regulations have even taken effect won’t be enough.”

Rather than fight federalization in court, Brown said local officials would be better served going to the negotiating table with federal officials. “They should be sitting down to negotiate right now,” she said, calling the suit “ill-advised.”

Nevertheless, attorney Joseph Horey disputed Brown’s contention that the Covenant has little power to defend against federalization. The Covenant, he said, has more power than a normal public law because the Commonwealth also approved its passage, meaning it is essentially a binding agreement between the two governments.

“The only way the U.S. Constitution applies here is through the Covenant,” Horey said. “Ultimately, everything is going to rise and fall on how the court’s interpret the Covenant.”