CNMI presents oral argument in federalization case

The Commonwealth’s challenge to the federalization law was heard by Judge Paul L. Freidman in the federal District Court in Washington, D.C. Thursday morning last week. The judge allotted more than two hours to the argument: each side had an initial 40 minutes and then each side had 20 minutes in rebuttal.

The Commonwealth was represented by David DeBruin of the law firm of Jenner & Block, assisted by Howard Willens, special legal counsel to the Governor who also serves as an assistant attorney general. The U.S. Department of Homeland Security and the U. S. Department of Labor were represented by Theodore Atkinson, a lawyer with the immigration section of the Department of Justice. Mr. Atkinson was accompanied by the director of his section and three other lawyers.

DeBruin argued first because the Commonwealth’s motion for an injunction against enforcement of the law was filed first. DeBruin emphasized the history of the Marianas and the reasons why the Covenant negotiators insisted on the right of local self-government, having been ruled by colonial powers for the prior three centuries. He addressed the hardships the Commonwealth will face if two-thirds of its private workforce and one-third of its small population are subject to deportation. He discussed at length the legal support for the Commonwealth’s position that all laws passed by Congress must respect the Commonwealth’s self-government rights.

Atkinson argued that the Commonwealth has no standing to bring the action because, he said, all the harms from the law are just speculative. These harms may happen in the future, or they may not happen at all. He urged the court not to decide this matter now. Atkinson challenged the ripeness of the issues presented by the Commonwealth on the same ground, saying that the federal government might enact entirely benevolent regulations that would ameliorate all of the problems with which the Commonwealth was concerned. Atkinson also argued the legal grounds why the immigration laws may be enacted by Congress without any regard for the Commonwealth’s right to local self government. Atkinson said that it is the government’s position that because the federal immigration laws were specifically mentioned in Section 503 of the Covenant, the Congress is free to apply those laws at any time in any manner it chooses.

DeBruin emphasized the federal government’s efforts at a social and economic restructuring of the Commonwealth. In essence, he said, the Congress is saying to the Commonwealth, we don’t like the way your elected representatives are running the Commonwealth and we think we can do it better. That is not something Congress could do to any community in the states, and it is not permissible under the Covenant. As an example of social engineering, DeBruin referred to the requirement in the federalization law that only “legitimate businesses” may employ foreign workers under the federal permitting system.

That means no one in the Commonwealth can employ a foreign worker as a home healthcare aide for the elderly, a childcare aide to take care of young children so that both parents can work, a housekeeper, or a gardener or home maintenance person. That, in turn, falls heavily on women’s opportunities to be employed as they traditionally have childcare and eldercare responsibilities.

DeBruin explained the Commonwealth’s position that its negotiators carefully constructed the Covenant so that all legislation by Congress must meet the test of Section 105 of the Covenant, which prevents federal interference with the right of local self government. He explained that Section 502 of the Covenant specified federal legislation that would become effective in the Commonwealth on the effective date of the Covenant. Section 503 of the Covenant specifies certain federal legislation that is prohibited: this legislation cannot become effective on the effective date of the Covenant and Congress could not act in these areas until after the Trusteeship ended. When Congress acts to apply to the Commonwealth any law that was prohibited under Section 503 from coming into effect automatically at the outset of the relationship, then Congress is limited by Section 105 and must respect the right of local self government. Under Section 503, the Congress was prohibited from applying the immigration laws until the Trusteeship ended, and for that reason, in 2008 when the Congress acted to apply the federal immigration laws, it had to do so in a way that did not interfere with the Commonwealth’s right of self-government.

At bottom, DeBruin explained, the Covenant is a contract. The federalization law is a breach of that contract. When a party breaches a contract, the courts do not ask whether there was a good reason for the breach. Contracts are enforced according to their terms. That is what the Covenant negotiators expected would happen, and it is that result to which the Commonwealth is entitled. There has been a breach of the Covenant and, DeBruin argued, the federalization law must be enjoined by the court.

Willens said that he was well pleased with all of the Commonwealth’s briefs filed with the court, and he was especially pleased with the way the oral argument went. The Commonwealth’s claims have been explained to the court fully and fairly, as Section 903 of the Covenant provides. [B][I](PR)[/I][/B]