CNMI: US govt ignores arguments

The U.S. government in its motion to dismiss the federalization lawsuit did not dispute the arguments of the lawsuit but simply ignored them, according to the CNMI government’s response to the United States’ motion to dismiss.

Howard Willens, special legal counsel for the governor, and lawyers for Jenner & Block LLC filed the response on behalf of the CNMI government on Friday. A response to the U.S. government’s motion to dismiss a preliminary injunction to suspend certain labor provisions was also filed.

In December the U.S. government filed motions to dismiss the lawsuit and the preliminary injunction.

In its response, the lawyers for the CNMI argued that the defendants do not dispute the central tenet of the lawsuit: that the Covenant is a binding document between the CNMI and the United States enforceable according to its terms. The U.S. government can file a reply by Jan. 23.

According to the response filed, the U.S. government does not dispute but ignores many of the arguments in the lawsuit, including the fact that beginning June 2009 CNMI labor provisions will be trumped by federal law; local permitting of foreign workers will be taken over by the Department of Homeland Security; and millions of dollars in fees generated annually from local labor permits will be lost.

Moreover, according to the response, the defendants do not dispute that Public Law 110-229 will cause the removal of all lawfully admitted foreign workers who do not qualify for federal immigration visas.

“Thus, defendants do not dispute that the Act mandates the ultimate removal of two-thirds of the existing private sector workforce of the Commonwealth,” the lawyers for the CNMI wrote. “Here, defendants argue that this ultimate consequence is some years away, and that the Commonwealth’s economy also is buffeted by other factors. There can be no reasonable doubt, however, that the forced removal of two-thirds of the lawfully admitted, private sector workforce of the economy of three very small islands isolated in the Pacific will cause serious injury to that economy, and that it cannot be reconciled with any meaningful right to ‘local self-government’ as guaranteed by the Covenant.”

The U.S. government earlier listed four reasons why the federalization lawsuit should be dismissed: the Commonwealth has no standing; the Commonwealth’s complaint is not ripe for decision; the Commonwealth’s injuries are not caused by the federalization law; and the Covenant allows for the federalization of immigration.

In the argument, the CNMI said the U.S. government’s assertions that the Commonwealth has not offered proof of injuries is misplaced at this point in the litigation. A plaintiff must only allege, not present evidence or proof, to withstand a motion to dismiss, according to the response.

Also, the CNMI government has standing to bring the action because, according to the response, “the challenged government action will injure the Commonwealth by violating enforceable rights under the Covenant, and a judgment preventing the government’s action will redress this legally cognizable injury.”

The CNMI argued the injuries are concrete and specific, and they all arise from violations of the Covenant. Most are not dependent in any way on the potential economic impact of PL 110-229.

Moreover, nothing in the existing U.S. immigration and naturalization laws authorizes federal authorities to create an employer-by-employer, worker-by-worker employment scheme.

It is unclear why the United States attacked the authority of the governor, the CNMI stated. The governor is not a party to the suit in an official or individual capacity.

“The Commonwealth, not the governor, is the plaintiff in this action, and the governor’s standing, authority, or capacity to sue is simply not an issue,” the response said.

The CNMI notes that the Office of the Attorney General was consulted before assigning Willens, who has represented the CNMI before and is defined as an Attorney General under his contract with the Commonwealth, and Jenner & Brock on the case. The lawyers for the CNMI attached a letter from Acting Attorney General Greg Baka to Rep. Tina Sablan stating that this is a common occurrence of litigation by states.

The U.S. incorrectly asserts that the lawsuit is for the citizens of the Commonwealth, the CNMI said.

“But the Commonwealth is not asserting claims on behalf of anyone else,” the response said. “It is asserting its own claims as a governmental entity and a party to the Covenant, claims that it unquestionably has standing to vindicate against the federal government.”

The Commonwealth need not wait until the regulations are promulgated to bring a lawsuit, the CNMI argued. Instead, the Commonwealth is challenging the power of the U.S. to authorize the Department of Homeland Security and Department of Labor to regulate the CNMI.

In addition, the 180-day deferral period to the start of the transition period on June 1, 2009, does not negate the immediacy of the injuries, according to the response. Even if it the transition period is extended for five years, most of the injuries asserted will occur at the start of the transition period.