'Federalization law is legal'

'Federalization law is legal'

Friday, November 27, 2009

NMI arguments 'unpersuasive, plain wrong'
By Ferdie de la Torre
Reporter

U.S. District Court for the District of Columbia Judge Paul L. Friedman has upheld the constitutionality of the law that applies federal immigration laws to the CNMI.

In explaining his order dismissing counts 1 and 2 of the CNMI government's amended lawsuit against federalization, Friedman described the Commonwealth's arguments “unpersuasive, unavailing, and just plain wrong.”

Friedman said that Congress was authorized to enact the Consolidated Natural Resources Act by the plain and unambiguous terms of Section 503 of the Covenant. CNRA, the federalization law, is also known as Public Law 110-229.

The judge also ruled that the challenged provisions of the CNRA comply with the mutual consent provision of Section 105 and the “self-government” guarantee of Section 103 of the Covenant.

“No doubt the CNMI would prefer that federal legislation never affect any matters of local concern, no matter how inextricably intertwined they may be with federal affairs. But it cannot rely on the Covenant to ensure that result,” said Friedman in a 39-page opinion that explained his Tuesday order dismissing two of the CNMI government's three-count lawsuit.

The CNMI, through the Jenner and Block law firm, had asked the court to prevent the federal government from acting in violation of the Covenant and urged the court to issue a permanent ban against the implementation of the federalization law in the Commonwealth.

In Count 1, the CNMI claimed that federalization is in violation of the Covenant in that it infringes on the right of the CNMI to self-government and abrogates that right without the CNMI's consent.

The CNMI argued, among other things, that the federalization of immigration and foreign worker-related labor matters in the CNMI violates sections of the Covenant which call for local control over local matters and require mutual consent for any changes to the Covenant.

The CNMI insists that Congress acted in excess of its authority in passing some provisions of the CNRA, and that those provisions must be stopped.

Friedman disagreed. He concluded that under the express and unambiguous language of Section 503 of the Covenant, Congress was free after Nov. 3, 1986, to apply immigration and naturalization laws of the U.S. to the CNMI.

“As a result, the CNRA is a legitimate exercise of federal congressional authority so long as its challenged provisions qualify as being among 'the immigration and naturalization laws of the United States.'”

Friedman said so long as the CNRA qualifies as an “immigration and naturalization law,” it does not infringe upon the “internal affairs” of the CNMI within the meaning of Section 103.

He said the CNMI's argument that the CNRA cannot be viewed as an “immigration law” is unpersuasive.

The judge said the CNMI is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.”

“The fact that the application of federal immigration laws to the CNMI through the CNRA may have a dramatic impact upon the CNMI's labor force does not convert an immigration law into a labor law,” he said.

Friedman said even if the court were to agree with the CNMI that the CNRA is not an immigration and naturalization law that Congress is specifically authorized by the Covenant to enact, the court will still find the CNRA valid under the Covenant.

The CNMI had argued that the provisions of the CNRA dealing with foreign workers already in the CNMI “have nothing whatever to do with border security” but are internal labor matters.

Friedman rejected this argument, saying this appears to be based on the assumption that “border security” is achieved only at the border and nowhere else.

“That assumption makes little sense here. Thousands of individuals who would have been ineligible to enter the CNMI under federal immigration law already reside in the CNMI,” he said.

Obviously, Friedman said, the U.S. could not simply ignore these individuals and at the same time regard the CNMI's borders as “secure,” because one of the principal ways the U.S. secures its borders is by requiring compliance with its immigration laws.

He said the CNMI wishes to characterize the regulation of foreign workers already admitted to the CNMI as a local matter because the CNMI's economy is dependent on the labor of foreign workers.

“In addition to being circular, that argument fails to recognize that the presence of thousands of foreign workers in the CNMI, few of whom would qualify to enter the CNMI under federal immigration laws, raises legitimate foreign policy and security concerns-concerns solely within the province of the federal government,” Friedman said.