‘Assurances not good enough’

The Fitial administration yesterday termed as misplaced the statement made by the spokesman of the Senate Energy & Natural Resources Committee that the bill that seeks to federalize the CNMI’s immigration system is sensitive to the concerns of the CNMI and its people.

Press secretary Charles P. Reyes said that what Bill Wicker laid out were mere assurances and nothing concrete that would give the islands any confidence in the legislation’s ability to accommodate the CNMI’s legitimate economic needs, namely its need for labor, investors, students, tourists, and customers.

“The assurances cited by Mr. Wicker have no legal significance with respect to the duties assigned to the federal agencies under the legislation. Such lofty aspirations, routinely ignored by the courts, are likely to be examined only if the need arises to ascertain the intent and meaning of a statute fairly susceptible to different constructions.

“In recent years, the U.S. Supreme Court has emphasized the need to focus on the specific words used by Congress in the statute’s operative provisions, with little (if any) relevance attributed to legislative history or broadly-stated legislative objectives,” said Reyes in an e-mail to the Saipan Tribune.

The governor’s press secretary added that the courts are more likely to find legislative intent in what Congress did in writing S.2739—or the Consolidated Natural Resources Act of 2008—rather than in any Statement of Congressional Intent.

Reyes also took issue with the U.S. House of Representatives reducing the length of the transition period by four years—substituting the termination date of Dec. 31, 2013 (now 2014) for the previous date of Dec. 31, 2017.

“No reason was given for this change. This unexplained shortening of the transition period substantially increased the burdens on the Commonwealth economy by requiring the elimination of all foreign workers (nearly 20,000) from the Commonwealth by this earlier date. Does this sound consistent with the stated Congressional Intent to provide for ‘an orderly phase-out of the nonresident contract worker program?’ Does this promise ‘to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out the Commonwealth’s nonresident contract worker program?’” asked Reyes.

Another area of contention, Reyes said, is that the proposed measure grants virtually unlimited discretion to the federal agencies responsible for implementing the law.

“Only the most general language is used with respect to the establishment of the permitting system (any reasonable method and criteria) or the grant of an extension of the transition program.

“Frequently the legislation provides that the decision is in ‘the Secretary’s sole discretion’ or involves ‘a foreign affairs function,’ both designed to deny the Commonwealth any access to the federal courts to challenge the agency’s decision.”

He said that the Government Accountability Office has tentatively concluded that it cannot assess the likely impact of many of the proposed legislation’s most important provisions “in the absence of the agency regulations that will reveal how the agencies have decided to exercise their broad discretion under the law.”

Reyes said that, although S.2739 does allow for extension of five-year increments, it only does so in order for the CNMI to wean itself of its nonresident workforce.

“Mr. Wicker correctly points out that the transition period can be extended—so long as the goal of the legislation remains the elimination of all foreign workers in the Commonwealth. The availability of extensions—which might or might not be granted—offers very limited comfort to Commonwealth employers or their foreign workers. Surely, Mr. Wicker can understand the difficulties and uncertainties that these provisions bring to the Commonwealth and its economy.”

Even if the extension is considered, Reyes said it is still up to a number of agencies to allow that.

“As for the possibility of more than one extension of the transition period, Mr. Wicker might turn his attention to the House Committee report regarding this legislation. The Committee there stated: ‘The Secretaries of Labor, Homeland Security, and State would be able to extend the transition period for AN additional five years; Congressional notification is required,’” he said.

The governor’s press secretary also questioned why S.2739 will go immediately to the White House for President Bush’s signature since amendments to it would still require House approval.

“We would appreciate Mr. Wicker’s clarification of his recent statement that, after approval of S. 2739 by the Senate, the legislation would go directly to the President for signature. In view of the change made in the bill by the Senate Committee (changing the date from 2013 to 2014), is it not necessary for the House of Representatives to act on the amended bill passed by the Senate?”

As of press time, Wicker has yet to respond to an e-mail message asking him for comments.