‘Litigation only way to stop harm to NMI’

The federalization law will cause enormous harm to the CNMI and the only way to stop this harm from occurring is a court’s injunction, according to governor’s special legal counsel Howard Willens.

In his slide presentation to the Legislature, a copy of which was obtained by Saipan Tribune yesterday, Willens stated that litigation is about whether the U.S. Congress may invade the Commonwealth’s right to self-government.

“This issue can be resolved only in the courts,” he pointed out during Tuesday’s closed-door presentation in the House’s chamber.

Willens said litigation would challenge the following issues:
* Reduction of on-island foreign workers to zero (except those who hold H-visas)

* Imposition of federal permit system;

* Designation of all current workers as “illegals”;

* Pre-emption of the CNMI’s labor laws governing contracts and working conditions;

* Loss of labor fees to CNMI government;

* Loss of local control over how businesses contract with foreign workers;

* Loss of cover-over funds from immigration fees.

Willens stressed that the complaint makes only the Covenant and constitutional claims “necessary to preserve the Commonwealth’s right to self-government” by challenging only the federalization laws’ labor provisions.

He said the litigation will not challenge border security by agreeing to application of U.S. immigration laws.

Willens said the complaint merely asks for a preliminary injunction and that courts deal with these claims very expeditiously.

He also stressed that the complaint would not adversely affect negotiations over the federalization law’s regulations.

First, he said, litigation is handled by the Department of Justice, not the Department of Homeland Security.

Second, Willens said, DHS officials have a responsibility to develop regulations in a fair and neutral process.

Finally, Willens said, DHS is often sued in federal court and retaliation in any litigation could lead to expensive consequences for the agency, “so federal officials simply do not engage in that kind of conduct.”

Willens said this kind of settlement, however, can often be settled through consent decree.

In this case, he said, DHS has no room to negotiate on many issues unless it is in court.

With respect to the costs in pursuing a lawsuit, Willen said it can be controlled for three reasons.

He said this kind of litigation moves in well-defined stages; at each decision point the Commonwealth has a choice whether to move forward or drop it.

Second, he said, the litigation is controlled here in the CNMI and staffed by government lawyers.

The last reason he cited is that the outside law firm to be hired will control costs.

With respect to the lawsuit’s arguments, he said Congress has no authority to regulate the Commonwealth except as provided in the Covenant.

“Section 103 of the Covenant authorizes the Commonwealth to exercise the right of local self-government and to govern itself with respect to its internal affairs in accordance with its Constitution,” he asserted.

He also pointed to Section 105 of the Covenant that forbids the U.S. from abrogating the Commonwealth’s right to local self-government without its consent.

“One of the necessary incidents of the right of local self-government is the right to regulate internal labor and economic affairs and to secure the economic prosperity of local residents,” Willens said.

During the presentation, Willens tried to convince the Legislature to provide funding of about $400,000 in an eight-month period that he said the administration will need to pursue the lawsuit.

The top leaders of the House of Representataives–Speaker Arnold Palacios and Vice Speaker Joseph P. Deleon Guerrero—on Thursday spoke in unison to express their strong opposition to the administration’s request to support the lawsuit. They said the CNMI should engage the federal government in dialogue instead of pursuing a costly but uncertain court battle.