US: Dismiss preliminary injunction vs labor provisions

The U.S. government has asked a federal court to dismiss the CNMI’s motion for preliminary injunction to suspend labor provisions of the federalization law.

Lawyers for Gov. Benigno Fitial filed the preliminary injunction in November, asking that the U.S. Department of Homeland Security and the U.S. Department of Labor be stopped from taking over the Commonwealth’s labor system. The CNMI government reiterated arguments stated in the federalization lawsuit that the labor provisions of the Consolidated Natural Resources Act, which President Bush signed earlier this year, will violate the promises of self-government and economic development detailed in the Covenant. The preliminary injunction was filed two months after the federalization lawsuit.

In addition to the four reasons earlier cited in a motion to dismiss the federalization lawsuit, the lawyers for the U.S. government gave four reasons why the preliminary injunction should be dismissed:

-The CNMI lacks standing to bring this action because its alleged economic injuries are not concrete and particularized.

-Even if the CNMI had standing, Sections 503 and 105 of the Covenant permit Congress to apply the immigration laws of the United States to the CNMI.

-The CNMI cannot clearly show that it will suffer irreparable harm if the motion is denied.

-The CNMI cannot prevail because the balance of the hardships tilts toward the United States

The CNMI must respond to both the preliminary injunction motion to dismiss and the motion to dismiss the federalization lawsuit by Thursday, Washington D.C. time.

According to the motion, to have standing the plaintiff must show “injury in fact” that is concrete and imminent, not hypothetical.

“If there is a pervasive ‘uncertainty about whether the alleged injury will be likely to occur,’ the plaintiff lacks standing,” the federal lawyers said.

The claims made by the CNMI that the law will decrease the gross domestic product by 50 percent or more and approximately $4 million (later changed to $7 million) in revenues from immigration related fees are speculative, the motion states. The GDP figure is based solely on the Government Accountability Office study, which was full of disclaimers and caveats that the report is not an indictor of the economic impact of the CNRA.

The CNMI government’s claim of a loss of $4 million (later revised to $7 million by the CNMI) in lost revenue related to immigration fees does not take into account the amount of money that will be offset by the CNMI no longer administering and maintaining its own immigration system, according to the motion.

Also, the CNMI ignores the fact that a supplemental fee of $150 for each transition period immigrant must be collected by DHS, with the money paid to the CNMI Treasury to fund vocational programs.

Moreover, the motion breaks down the declarations submitted by CNMI government officials, businessmen and citizens, detailing why, according to the U.S. government, they are speculative.

“None of these declarations support the CNMI’s standing in this matter. The declarations merely expose that the economic injuries claimed by the CNMI are purely speculative,” the motion states. “The court should recognize this action for what it is: a disaffection with Congress’s decision to apply federal immigration law to the CNMI as a result of the CNMI’s failure to adequately address growing immigration problems and concerns.”

The motion notes that the CNMI government submitted a report prepared by Richard McPhee, Economic Impact of Federal Laws on the Commonwealth of the Northern Marians Islands, to show causality between the adoption of the CRNA and the economic depression.

“However, the federalization analysis is not an examination of the economic impact of the Act, but rather of U.S. federalization” of the CNMI in general, including through minimum wage and other policies unrelated to U.S. immigration laws,” the federal lawyers states.

According to the motion, the Covenant clearly allows Congress to apply U.S. immigration laws. While Section 105 “generally” grants Congress the ability to apply federal laws to the CNMI, Section 503 “specifically” permits Congress the authority to apply the laws.

Moreover, the immigration laws are not “labor laws,” according to the motion. U.S. immigrations laws affect labor markets, but that does not make them labor laws, it said.