US Congress drafts language impeding on financial authority of CNMI govt

Gov. Ralph DLG Torres disclosed yesterday there is legislation floating in U.S. Congress that could impose financial controls over the local government through a federal government board or commission, possibly infringing on the CNMI’s right to self-government and right to steer its own economy.

Torres met with Delegate Gregorio Kilili C. Sablan (Ind-MP) yesterday on the matter, saying the issue ties into Puerto Rico and “their bankruptcy” or legislation proposed to help ease the territory’s financial crisis.

Sablan confirmed with Saipan Tribune that he did meet with Torres on issues from China/Russia parole, contract worker issues, 902 consultations, “and about the potential for an April 12, 2016, introduction of a bill addressing the Puerto Rico fiscal situation.”

“Congress is considering legislation that will provide an oversight board appointed by the President,” Sablan confirmed.

“But,” Sablan cautioned, “bill language to that effect has not been fully and finally drafted and is not expected to be introduced until April 12, 2016 at the earliest.”

Sablan also said there were no discussions about a Puerto Rico bailout since Congress—as far as is being discussed by leadership and by the Resident Commissioner of Puerto Rico himself—will not provide any bailout legislation for Puerto Rico.

‘Infringing on self-government’

Independent sources with knowledge of the matter cast varying points of views on the effects of the potential legislation, saying on one end that the issue is still in its “early” stages and that the language of the bill is still in “flux,’ but that on the other end, the proposed amendment could give the financial board the opportunity for the federal government to come in unilaterally and make changes—to the local tax code for example—without local government input.

Torres said he wrote a letter a couple of months ago on the Puerto Rico matter, referring to a Jan. 4 letter to Sablan that stated the CNMI’s position on whether they wanted federal bankruptcy law apply to the CNMI as part of proposed law to deal with the Puerto Rico debt crisis.

The January letter to Sablan notes that “if oversight and/or control measures contained in the legislative proposal referenced in your letter were also applicable to the CNMI,” the fundamental relationship between the CNMI and the U.S. as set out in the NMI Covenant would be “inappropriately weakened and destabilized.”

Torres indicated yesterday the issue has come around again, despite the CNMI’s position on the matter.

“But,” Torres said yesterday, “there seems like there is another avenue that still imposes the CNMI to be a part of this commission or board that looks at our state of economy here [where] we still fall under the commission.”

Torres said his conversation with Sablan was on “where does the CNMI, where do we want be,’ or their position on a bill “that’s incorporated the Northern Mariana Islands.”

“…Again this is back to self-government, self-sovereignty, and this whole thing is becoming an issue that we will be taking a course of action in the next few days on whether to move forward and put it to question,” Torres said.

Asked to elaborate further, Torres said, “There is a bill that imposes [that] the CNMI be a part of this board or commission” that “either mandates us or regulates us on how our economy” works.

“That is infringing on a lot of our self-determination,” Torres stressed. “We do have that under our Covenant, self-government. That’s what we are questioning now. And I am concerned.”

Torres is troubled with the “totality” of local to federal issues including the Marianas Trench Marine National Monument, which essentially turned Northern Island waters and islands to federal property, issues of immigration control, which Torres said was “taken away,” along with the CNMI’s rights to its submerged lands. This “totality,” Torres acknowledges also ties into this week’s federal court ruling that found the CNMI’s handgun ban unconstitutional despite the CNMI availing it for 30 to 40 years, and proposed military buildup on NMI islands.

“We are now having a bill before us to include us with Puerto Rico’s issues,” Torres said.

“I think we should be treated differently,” he added.

Larger questions

Torres’ comments yesterday tie into larger frustrations Capital Hill officials have been raising with the NMI Covenant, as some have expressed an eroding confidence in its ability to guarantee self-government or a sovereignty that many have thought the Covenant uniquely, among other territories, allowed for.

The proposed bill that Torres has contested also taps in larger questions on how much U.S. Congress can unilaterally control or regulate the affairs of the CNMI, despite whatever the negotiations and the existence of the NMI Covenant supposedly guaranteed.

A case before the U.S. Supreme Court, also involving Puerto Rico, has signaled the U.S. government’s official position on the “full legislative power” and “plenary authority” that U.S Congress has over the U.S territories.

The case centers on whether the U.S. and local governments can charge an individual for the exact same crime, tying into the issue of overlapping sovereigns.

U.S government lawyers add a footnote to clarify that territories mean “Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, the U.S. Virgin islands, and a number of small, uninhabited outlying islands.”

U.S. government lawyers argued, in a filing last December, that Congress’ plenary authority over federal territories includes the “authority to permit self-government, whereby local officials administer a territory’s internal affairs.”

“Congress has ‘full legislative power’ over the territories and ‘may at its discretion, intrust [sic] the territory that power to the legislative assembly of a Territory.”

But when Congress does so, local officials exercise “power conferred” on them, “not any inherent sovereign power of the territory.”

“And ‘the extent of the power thus granted’ is up to Congress, ‘at all times subject to such alterations as Congress may see fit to adopt’,” the U.S. government argues, citing previous case law.

The U.S. government also said a Presidential Task Force has assessed Puerto Rico’s political status and future, to which 2007 and 2011 task forces reached the same conclusion.

Because Puerto Rico is a “territory,” the U.S. government explains, Congress could “continue the current system indefinitely, but it also may revise or revoke it at any time.”

The federal government may relinquish United States sovereignty by granting independency or ceding the territory to another nation, or it may admit a territory as a state. But “the U.S. Constitution does not allow other options.”

On Wednesday, the Atlantic reported on this issue, calling Puerto Rico the largest of the territories and the one subject to the bulk of legal debate as “comes up against the legal, governmental, and financial limits of its status.”

“Puerto Rico doesn’t have access to financial instruments available both to states and to sovereign nations,” said Carlos Iván Gorrín Peralta, a professor at the InterAmerican University of Puerto Rico and a territorial-law scholar, said in the article. “It is in essence in a straight jacket…The issue is whether Puerto Rico has some form, vestige, or mirage of sovereignty, despite the fact that the Supreme Court [of Puerto Rico] has felt that it is an unincorporated territory subject to the plenary powers of Congress.”