Tuesday, November 24, 2009

Two counts of federalization suit dismissed

Two counts of federalization suit dismissed

Wednesday, November 25, 2009
By Ferdie de la Torre

The judge handling the lawsuit filed by the CNMI government to block the federal takeover of the local immigration system dismissed yesterday two of the three-count lawsuit, saying the CNMI failed to prove its case.

“After careful consideration of the parties' papers, their exhibits, the relevant case law, the statute and the Covenant, the court concludes that the [CNMI] has failed to state a claim upon which relief can be granted with respect to Counts I and II of its amended complaint, and that those claims therefore should be dismissed,” said U.S. District Court for the District of Columbia Judge Paul L. Friedman in a two-page order.

The judge did not provide any further explanation, saying he will issue an opinion explaining the reasoning underlying his order later this week.

As a result of the dismissal, Friedman said, the CNMI's motion to prevent the implementation of certain provisions of the federalization law, the Consolidated Natural Resources Act, is moot. The Act is also known as Public Law 110-229.

Friedman granted the U.S. government's motion to dismiss the complaint.

Friedman first heard oral arguments on March 12, 2009, on the U.S. government's motion to dismiss the complaint and the CNMI's first motion for a preliminary injunction.

The CNMI then filed an amended complaint, adding a claim that, according to the judge, is not relevant to the motions.

In the CNMI's amended complaint, it named as defendants the U.S.A., U.S. Department of Homeland Security Secretary Janet Napolitano, DHS, U.S. Department of Labor Secretary Hilda Solis, and U.S. Labor.

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

In Count 1, the CNMI claimed that federalization is in violation of sections 103 and 105 of the Covenant.

Section 103 of the Covenant authorizes the Commonwealth to exercise the right to local self-government and to govern itself with respect to its internal affairs in accordance with its Constitution. Section 105 of the Covenant forbids the U.S. from abrogating the Commonwealth's right to local self-government without its consent.

The CNMI argued that one aspect of the right to local self-government is the right to regulate internal labor and economic affairs and to secure the economic prosperity of local residents.

Jenner & Block said the some provisions of Public Law 110-229 abrogate the Commonwealth's right to local self-government by denying the Commonwealth the right to regulate its local workforce and economy.

The Commonwealth has not consented to this abrogation of its rights under the Covenant, the law firm said.

In Count 2, the CNMI alleged that federalization is in violation of Article 1 of the U.S. Constitution.

Under the fundamental structural principle of limited powers that animates the U.S. Constitution, Jenner & Block said, Congress could not enact a law that imposes such a “burdensome, discriminatory and onerous federal regulatory regime” upon a state where the law was passed in a defective political process.

The law firm said the CNRA exceeds Congress' Article 1 powers to enact legislation with respect to the Commonwealth.

The CNMI asked the court to stop the implementation of CNRA provisions that “impose a burdensome, discriminatory and onerous federal regulatory regime on the Commonwealth.”

Count 3 of the amended complaint refers to alleged violation of the Administrative Procedure Act. Jenner & Block argued that the defendants violated the APA by promulgating the regulations required by Public Law 110-229 without giving the CNMI and other stakeholders notice and an opportunity to comment.

This claim is still pending in court.

Jenner & Block said the defendants promulgated the DHS' Interim Permit Rule without notice and comment, in violation of the APA.

DHS, the law firm said, cannot establish “good cause” for its failure to comply with the notice and comment requirements of the APA.

DHS is set to implement federal immigration laws in the CNMI on Nov. 28, under the authority provided by the CNRA.

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