NMI, US: Don’t use past to determine present

In the latest documents submitted to the U.S. District Court in the federalization lawsuit, lawyers for the CNMI government and the federal government agree on one thing: the court should not use a past precedent as a tool to determine the current case, which seeks to halt the implementation of federal immigration laws to the Commonwealth.

Although both the CNMI and U.S. agree that the Deleon Guerrero balancing test should not be used in the federalization lawsuit, they differ on why.

The Deleon Guerrero balancing test stems from a series of cases over whether the Inspector General of the Department of the Interior has the authority to issue subpoenas to CNMI officials for tax documents relating to the Insular Areas Act. Both the district court and Ninth Circuit found that sections 103 and 105 of the Covenant were “institutional” guarantees of local self-government.

In the latest brief filed in the federalization lawsuit, the CNMI said it is premature to look at the balancing test because the Commonwealth must only establish it has standing to bring the case and that significant harm will be caused by the implementation of the Consolidated Natural Resources Act, which will extend federal immigration laws to the CNMI beginning June 1.

When the court does determine it is the proper time, the test should still not be used because sections 103 and 105 of the Covenant prevents the U.S. from infringing on the CNMI’s right to self-government, the CNMI stated. Section 701 commits the U.S. to help the Commonwealth achieve economic security for self-government, and the CNRA will cause a severe, possibly irreversible economic decline, they wrote.

However, lawyers for the United States said the Deleon Guerrero test should not be used because under Section 503 of the Convent the federal government is given expressed consent to extend federal immigration laws to the CNMI.

“The degree of self-government is limited by the Covenant, which provides that the people of the CNMI may determine the ‘manner in which they will govern themselves with respect to local affairs;’ however, the United States remains ‘the sovereign power,’ the United States wrote.

But if the test is used, the lawyers for the United States said the balance leans to their side.

“The interests of the United States in applying federal immigration and naturalization law to the CNMI are numerous, and range from securing the border and heightening the safety of U.S. citizens (both within and without the CNMI), stopping human trafficking within the CNMI, protecting foreign workers from abuse, helping the CNMI economy, and improving the employment opportunities for U.S. citizens, among other interests,” the United States wrote. “The CNMI’s only articulated interest is in securing the ready availability of foreign workers relied on by businesses inside the CNMI, and to secure revenues generated to the CNMI through immigration activities.”

In another document submitted to the court, CNMI Acting Attorney General Gregory Baka wrote to United States District Court Judge Paul L. Friedman disputing the U.S.’ claim that the Jenner & Block law firm does not have consent to represent the CNMI in the lawsuit.

“This is not true. Jenner & Block is authorized to represent the CNMI,” Baka wrote.

The United States has argued that the CNMI’s Office of the Attorney General is required by law to represent the Commonwealth in litigation.

A hearing for the case is set for March 12 in Washington D.C.