US: Dismiss federalization lawsuit

Citing four main arguments, the U.S. government asked a federal court yesterday to dismiss the CNMI’s lawsuit against federalization, saying that Gov. Benigno R. Fitial lacks standing to bring the court action on behalf of the Commonwealth.

Six lawyers from the U.S. Department of Justice filed the motion to dismiss before the U.S. District Court for the District of Columbia.

Besides Fitial’s alleged lack of standing, the Justice lawyers cited three other reasons why the federal court should junk the case:

n the CNMI lacks standing to bring the lawsuit because the injuries alleged are not “concrete and particularized,” but are instead “speculative and hypothetical”;

n the court action is not ripe for adjudication; and

n the lawsuit “does not state a claim for which relief may be granted.”

Saipan Tribune tried to obtain comments from press secretary Charles Reyes Jr. last night but he was not available as of press time.

The CNMI government has until Jan. 8, 2009, to respond.

U.S. District judge Paul L. Friedman has set the hearing on the CNMI’s motion for preliminary injunction and the defendants’ motion to dismiss for Jan. 15, 2009.

Fitial filed the lawsuit against the U.S. government, Department of Homeland Security Secretary Michael Chertoff, U.S. Department of Labor Secretary Elaine Chao, and U.S. Department of Labor in September this year.

The lawsuit alleged that the legislation behind the federalization of the CNMI’s immigration system threatens to cripple the CNMI economy and breaches the terms of the Covenant with the United States. It alleged that the law President Bush signed earlier this year establishing federal immigration control in the CNMI will violate the promises of self-government and economic development detailed in the Covenant. It asks the court to bar federal officials from putting the federalization bill into action.

David DeBruin, Sharmila Sohoni, and William M. Hohengarten of Jenner and Block are representing the CNMI in the case. U.S. Assistant Attorney Robin Michelle Meriweather is the lead attorney representing the U.S. government.

Lack of standing

In the defendants’ motion to dismiss, Justice Department lawyers argued that Fitial does not identify any specific authority or control giving rise to the protection of a concrete interest on his part.

“There is nothing in the complaint alleging a concrete proprietary interest concerning the application of immigration laws that provides the Governor, bringing the suit in an official capacity, with standing,” federal lawyers said.

This compounded by the fact that Fitial does not have the authority to represent the CNMI in this action, they said.

They pointed out that under the CNMI Constitution, the Attorney General is charged with “representing the Commonwealth in all legal matters, and prosecuting violations of Commonwealth law.”

DOJ noted that the Office of the Attorney General is not identified as counsel in the complaint, and that questions have been raised in the CNMI as to whether the lawsuit is even authorized under CNMI law.

DOJ cited an Oct. 16, 2008, letter by Rep. Christina Sablan to Fitial requesting certain documents from the governor related to the lawsuit and raising an issue concerning the legal authority in filing the lawsuit.

“This case suffers from numerous jurisdictional flaws and should be dismissed,” the DOJ lawyers said.

‘Misdirected attack’

At the same time, the DOJ said that the CNMI misdirects its attacks on the Consolidated Natural Resources Act, the law that applies the Immigration and Nationality Act and other U.S. immigration laws to the CNMI beginning June 1, 2009.

“Lack of redress for the CNMI’s alleged injuries remains a fatal defect in the complaint,” DOJ said.

The lawyers also pointed out that, by its own admission, the CNMI is suffering a prolonged economic depression as a result of the loss of its garment and tourism industries.

“Citizens of the CNMI are emigrating to the United States for better opportunities. Foreign workers remain in the CNMI but, according to the CNMI, are subject to newly enacted ‘strict’ immigration laws that reduce the number of alien workers,” DOJ said.

The CNMI stated in the lawsuit that it will suffer a specific percentage decline in gross domestic product between 2009 and 2014, but bases that prediction solely on a Government Accountability Office report that contains numerous disclaimers stating that the report has no predictive value whatsoever, the DOJ lawyers said.

‘Unripe’

At the same time, Justice lawyers pointed out that the injuries alleged by the CNMI has not come to fruition yet, or they may be caused by other factors having nothing to do with the Consolidated Natural Resources Act.

“The final shape of the transition program is, as the CNMI readily admits, ‘uncertain,’ and may last for an ‘indefinite period of time,’” DOJ said.

With respect to the failure to state a claim issue, Justice lawyers pointed out that the Covenant provides that Congress may apply federal law generally, including U.S. immigration and naturalization laws, to the CNMI.

DOJ said that if Section 503 of the Covenant provides that Congress may unilaterally apply federal immigration law, it would be illogical to conclude that the exercise of that authority modifies a “fundamental provision of the Covenant” requiring bilateral consent.

“At least one federal court has agreed that such an interpretation would be illogical,” DOJ said, citing a CNMI case.

‘Overreaching

argument’
Finally, DOJ said, the CNMI overreaches with its argument that the immigration laws to be applied are, in fact, “labor laws” that are solely within the purview and control of the CNMI borders.

“Laws pertaining to whether aliens are authorized to be present in the United States and, if so, whether they are authorized to be employed in the U.S. labor markets, is exclusively the subject of federal immigration law. U.S. immigration laws affect labor markets. That is one of their primary purposes, but it does not make them ‘labor laws,’” DOJ said.