Two counts of federalization suit dismissed
Wednesday, November 25, 2009
By Ferdie de la Torre
Reporter
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.
Showing posts with label Constitutions. Show all posts
Showing posts with label Constitutions. Show all posts
Tuesday, November 24, 2009
All set for federal takeover
All set for federal takeover
Wednesday, 25 November 2009 00:00 By Gemma Q. Casas - Reporter
THE U.S. Department of Homeland Security will take control of the islands’ immigration system as scheduled on Saturday following federal Judge Paul Friedman’s decision to dismiss Gov. Benigno R. Fitial’s lawsuit.
Friedman of the U.S. District Court for the District of Columbia placed the case under advisement last March 12, 2009.
The first complaint seeks a permanent injunction on labor-related provisions of the federalization law, or U.S. P.L. 110-229, on grounds that it infringes on the CNMI’s right to self-government under its Covenant with the United States. It was filed on Sept. 12, 2008.
In November of the same year, the governor, through the Jenner & Block law firm and his special legal counsel Howard P. Willens, amended the complaint and sought for a preliminary injunction citing constitutional violations as grounds.
The governor said federalization law is an economic disaster for the CNMI’s economy because it will reduce to zero the number of foreign workers on the islands by Dec. 31, 2014.
The U.S. Department of Justice asked the federal court to dismiss the case, saying the CNMI’s arguments are purely speculative and stressed that local immigration policy had opened up the islands to security risks, including from Russian Mafia and Chinese triads.
DOJ also noted that the Covenant allows the U.S. Congress to apply federal immigration law to the islands.
In his Nov. 23 two-page order dismissing the case, Friedman said the CNMI “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.”
The judge said the CNMI’s motion for a preliminary injunction is moot.
He said an opinion regarding the court’s reasoning for its order will follow.
The administration is paying Jenner & Block a retainer of $50,000 a month for its legal services, excluding out-of-pocket reimbursements.
Saipan Independent Rep. Tina Sablan, who forced the administration to release the billing records, said they had known that the lawsuit was unlikely to prevail.
“Even Howard Willens and Jenner & Block acknowledged months ago, before filing the lawsuit in the first place, that the CNMI was likely to lose. Judge Friedman’s dismissal should not come as a surprise to anyone, not even the administration,” she told the Variety in an e-mail.
The lawmaker hopes to get the remaining financial records further detailing how public funds were spent for the lawsuit.
The financial records she obtained were up to April of this year only.
“I hope that the financial records will be fully disclosed now that the lawsuit has been dismissed, and that the CNMI can finally move on toward mending relations with the federal government and adjusting to the fact that federal immigration law will apply here starting on Nov. 28,” she said.
“The CNMI has been fighting federalization for so long, and fighting so hard to maintain the status quo, that we have missed the opportunities to build a better, stronger, more self-reliant CNMI. Now is the time to open our eyes and wake up to the reality that times are changing. The old labor and immigration system is coming to an end. We have to adapt,” she added.
In a statement, Fitial said: “We had excellent representation from our lawyers in Washington, D.C. We respect Judge Friedman and appreciate the time and careful consideration he gave to this case. We look forward to examining his opinion before making any decisions about our future course of action on this matter.”
The judge, he added, is expected to separately rule this week on the CNMI’s third complaint, an emergency injunctive relief to stop the interim final regulations on transitional worker program on grounds that they failed to comply with the notice and comment provisions of the U.S. Administrative Procedures Act.
Fitial said Willens is “traveling to Washington this Sunday and will be consulting with our D.C. lawyers on Monday. After those discussions, I expect to receive a recommendation from counsel regarding both of Judge Friedman’s decisions.”
The ruling came almost a day after the governor won the runoff election.
Wednesday, 25 November 2009 00:00 By Gemma Q. Casas - Reporter
THE U.S. Department of Homeland Security will take control of the islands’ immigration system as scheduled on Saturday following federal Judge Paul Friedman’s decision to dismiss Gov. Benigno R. Fitial’s lawsuit.
Friedman of the U.S. District Court for the District of Columbia placed the case under advisement last March 12, 2009.
The first complaint seeks a permanent injunction on labor-related provisions of the federalization law, or U.S. P.L. 110-229, on grounds that it infringes on the CNMI’s right to self-government under its Covenant with the United States. It was filed on Sept. 12, 2008.
In November of the same year, the governor, through the Jenner & Block law firm and his special legal counsel Howard P. Willens, amended the complaint and sought for a preliminary injunction citing constitutional violations as grounds.
The governor said federalization law is an economic disaster for the CNMI’s economy because it will reduce to zero the number of foreign workers on the islands by Dec. 31, 2014.
The U.S. Department of Justice asked the federal court to dismiss the case, saying the CNMI’s arguments are purely speculative and stressed that local immigration policy had opened up the islands to security risks, including from Russian Mafia and Chinese triads.
DOJ also noted that the Covenant allows the U.S. Congress to apply federal immigration law to the islands.
In his Nov. 23 two-page order dismissing the case, Friedman said the CNMI “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.”
The judge said the CNMI’s motion for a preliminary injunction is moot.
He said an opinion regarding the court’s reasoning for its order will follow.
The administration is paying Jenner & Block a retainer of $50,000 a month for its legal services, excluding out-of-pocket reimbursements.
Saipan Independent Rep. Tina Sablan, who forced the administration to release the billing records, said they had known that the lawsuit was unlikely to prevail.
“Even Howard Willens and Jenner & Block acknowledged months ago, before filing the lawsuit in the first place, that the CNMI was likely to lose. Judge Friedman’s dismissal should not come as a surprise to anyone, not even the administration,” she told the Variety in an e-mail.
The lawmaker hopes to get the remaining financial records further detailing how public funds were spent for the lawsuit.
The financial records she obtained were up to April of this year only.
“I hope that the financial records will be fully disclosed now that the lawsuit has been dismissed, and that the CNMI can finally move on toward mending relations with the federal government and adjusting to the fact that federal immigration law will apply here starting on Nov. 28,” she said.
“The CNMI has been fighting federalization for so long, and fighting so hard to maintain the status quo, that we have missed the opportunities to build a better, stronger, more self-reliant CNMI. Now is the time to open our eyes and wake up to the reality that times are changing. The old labor and immigration system is coming to an end. We have to adapt,” she added.
In a statement, Fitial said: “We had excellent representation from our lawyers in Washington, D.C. We respect Judge Friedman and appreciate the time and careful consideration he gave to this case. We look forward to examining his opinion before making any decisions about our future course of action on this matter.”
The judge, he added, is expected to separately rule this week on the CNMI’s third complaint, an emergency injunctive relief to stop the interim final regulations on transitional worker program on grounds that they failed to comply with the notice and comment provisions of the U.S. Administrative Procedures Act.
Fitial said Willens is “traveling to Washington this Sunday and will be consulting with our D.C. lawyers on Monday. After those discussions, I expect to receive a recommendation from counsel regarding both of Judge Friedman’s decisions.”
The ruling came almost a day after the governor won the runoff election.
Wednesday, May 16, 2007
Defending Japan's Constitution
Who will defend Japan's Constitution?
April 29, 2007
Special to The Japan Times
Prime Minister Shinzo Abe announced at the beginning of April that the government was establishing a "panel of experts" to examine the question of whether to "revise the current interpretation of the Constitution," in order to permit Japan to engage in collective self-defense activities.
This is an outrageous proposition from the perspective of constitutional law, and yet the announcement appears to have been met with little more than a murmur. Regardless of whether one may feel strongly that Japan ought to participate in collective self-defense operations, or that Article 9 should be amended, this latest step in the emasculation of Article 9 seriously endangers the normative power and integrity of the entire Constitution.
First, let us recall that there is already a strong movement toward an extensive revision of the Constitution, in accordance with the amendment process provided for in the Constitution. The government is currently pushing a referendum law through the legislature for the purpose of implementing that process.
While the DPJ opposes the current version of the proposed referendum law in its detail, it is not opposed in principle. While there continue to be voices of dissent in both parties, the leadership of both the LDP and the DPJ seek to amend Article 9 specifically to permit Japan's participation in collective self-defense and other international peace and security operations. If they are able to persuade a sufficient number of both houses of the Diet and the population of Japan, the Constitution will be so amended. If they cannot, then it is the will of the nation that it not be so amended.
Second, it is entirely nonsensical for a government to speak of "revising an interpretation" of a constitution as a matter of formal policy. Constitutions can be revised through amendment, and the interpretations of constitutions may evolve incrementally over time through court decisions, but governments do not "revise" or establish "new" interpretations of a constitution. Interpretation of the Constitution of Japan is the purview of the courts, and the amending process provided for in the Constitution is the sole mechanism for formally changing the Constitution itself.
The amending process of a constitution is set in place both to ensure an orderly mechanism for change, but also to ensure that the pre-commitments to the fundamental principles established in the constitution cannot be too easily changed. The Constitution of Japan provides for a process that requires, in addition to the consent of two thirds of both houses of the Diet, the vote of the people of Japan to endorse any proposed revision. The government cannot short-circuit that process by way of some back-room "re-interpretation."
Which brings us to the third problematic aspect of the prime minister's announcement. Aside from the fact that it does an end run around the amending process, the "revision" study is being conducted by an extra-constitutional body appointed by the executive. Of the three branches of government, the executive is the least empowered to have any say in how the Constitution is to be interpreted. It should be recalled that the Constitution provides that the legislature (the Diet) is the highest organ of state (Art. 41); that the Constitution is the supreme law of the nation, and that no law, ordinance or other act of government that is contrary to the Constitution is valid (Art. 98); and that the courts are vested with the authority to interpret the Constitution and determine the constitutionality of any law, order, regulation or other official act (Art. 81).
It is not the role of the executive to be mandating interpretations of the Constitution, and any action that the government may take on the basis of some new "re-interpretation" may still be held to be unconstitutional and invalid by the courts. The body to which the executive has turned to do the actual work of analyzing the issue of interpretation, is one that is not provided for in the Constitution at all -- the "panel of experts" is an extra-constitutional body that has no authority whatsoever to interpret the Constitution.
Finally, the "revision" that is sought is patently contrary to any reasonable interpretation of Article 9 of the Constitution. Article 9 provides, in part, that "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes." It also provides that the "right of belligerency of the state will not be recognized."
Using Japanese military forces, including Japan-based antimissile defense systems and Japanese naval vessels operating with allied forces in international waters, to engage the military forces of other countries when Japan is not directly under attack, can only ever be interpreted as the use of force for means of settling international disputes.
Moreover, Japan would most certainly expect to enjoy all the rights, protections and obligations under the laws of war that belligerents are entitled to under international law in such circumstances, a status that Article 9 specifically renounces. The Supreme Court of Japan has held that while Japan retains a right to self-defense under Article 9, it is limited to only such measures that are for the protection of Japan (in the so-called Sunakawa case).
The Cabinet Legislation Bureau has consistently maintained that Article 9 forbids participation in collective self-defense or the deployment of troops abroad for military operations. For the government to now try to argue that notwithstanding what the Constitution plainly states, and what the courts have said it means, and what past governments have accepted as binding, that Japan can now do the opposite, is to do great violence to the Constitution of Japan.
There is an amendment process for a reason, and it can be used to achieve the objectives of having Japan play a more robust role in the area of international collective security. Careful study leading up to such amendments will also ensure that other checks and balances can be built into the revised Constitution to ensure that there is sufficient democratic accountability and civilian control as Japan engages in more extensive international operations. To try to circumvent that process undermines the entire structure of the Constitution.
If Article 9 can be merely interpreted away, why not other provisions? A democracy allows its Constitution to be undermined at its peril, and the erosion of constitutional controls on a country seeking greater military influence will almost certainly alarm its neighbors.
Craig Martin, a Canadian lawyer and a graduate of Osaka University Graduate School of Law, is currently working on a doctorate at the University of Pennsylvania, focusing on the interaction of international and constitutional constraints on the use of armed force.
The Japan Times: Sunday, April 29, 2007
(C) All rights reserved
April 29, 2007
Special to The Japan Times
Prime Minister Shinzo Abe announced at the beginning of April that the government was establishing a "panel of experts" to examine the question of whether to "revise the current interpretation of the Constitution," in order to permit Japan to engage in collective self-defense activities.
This is an outrageous proposition from the perspective of constitutional law, and yet the announcement appears to have been met with little more than a murmur. Regardless of whether one may feel strongly that Japan ought to participate in collective self-defense operations, or that Article 9 should be amended, this latest step in the emasculation of Article 9 seriously endangers the normative power and integrity of the entire Constitution.
First, let us recall that there is already a strong movement toward an extensive revision of the Constitution, in accordance with the amendment process provided for in the Constitution. The government is currently pushing a referendum law through the legislature for the purpose of implementing that process.
While the DPJ opposes the current version of the proposed referendum law in its detail, it is not opposed in principle. While there continue to be voices of dissent in both parties, the leadership of both the LDP and the DPJ seek to amend Article 9 specifically to permit Japan's participation in collective self-defense and other international peace and security operations. If they are able to persuade a sufficient number of both houses of the Diet and the population of Japan, the Constitution will be so amended. If they cannot, then it is the will of the nation that it not be so amended.
Second, it is entirely nonsensical for a government to speak of "revising an interpretation" of a constitution as a matter of formal policy. Constitutions can be revised through amendment, and the interpretations of constitutions may evolve incrementally over time through court decisions, but governments do not "revise" or establish "new" interpretations of a constitution. Interpretation of the Constitution of Japan is the purview of the courts, and the amending process provided for in the Constitution is the sole mechanism for formally changing the Constitution itself.
The amending process of a constitution is set in place both to ensure an orderly mechanism for change, but also to ensure that the pre-commitments to the fundamental principles established in the constitution cannot be too easily changed. The Constitution of Japan provides for a process that requires, in addition to the consent of two thirds of both houses of the Diet, the vote of the people of Japan to endorse any proposed revision. The government cannot short-circuit that process by way of some back-room "re-interpretation."
Which brings us to the third problematic aspect of the prime minister's announcement. Aside from the fact that it does an end run around the amending process, the "revision" study is being conducted by an extra-constitutional body appointed by the executive. Of the three branches of government, the executive is the least empowered to have any say in how the Constitution is to be interpreted. It should be recalled that the Constitution provides that the legislature (the Diet) is the highest organ of state (Art. 41); that the Constitution is the supreme law of the nation, and that no law, ordinance or other act of government that is contrary to the Constitution is valid (Art. 98); and that the courts are vested with the authority to interpret the Constitution and determine the constitutionality of any law, order, regulation or other official act (Art. 81).
It is not the role of the executive to be mandating interpretations of the Constitution, and any action that the government may take on the basis of some new "re-interpretation" may still be held to be unconstitutional and invalid by the courts. The body to which the executive has turned to do the actual work of analyzing the issue of interpretation, is one that is not provided for in the Constitution at all -- the "panel of experts" is an extra-constitutional body that has no authority whatsoever to interpret the Constitution.
Finally, the "revision" that is sought is patently contrary to any reasonable interpretation of Article 9 of the Constitution. Article 9 provides, in part, that "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes." It also provides that the "right of belligerency of the state will not be recognized."
Using Japanese military forces, including Japan-based antimissile defense systems and Japanese naval vessels operating with allied forces in international waters, to engage the military forces of other countries when Japan is not directly under attack, can only ever be interpreted as the use of force for means of settling international disputes.
Moreover, Japan would most certainly expect to enjoy all the rights, protections and obligations under the laws of war that belligerents are entitled to under international law in such circumstances, a status that Article 9 specifically renounces. The Supreme Court of Japan has held that while Japan retains a right to self-defense under Article 9, it is limited to only such measures that are for the protection of Japan (in the so-called Sunakawa case).
The Cabinet Legislation Bureau has consistently maintained that Article 9 forbids participation in collective self-defense or the deployment of troops abroad for military operations. For the government to now try to argue that notwithstanding what the Constitution plainly states, and what the courts have said it means, and what past governments have accepted as binding, that Japan can now do the opposite, is to do great violence to the Constitution of Japan.
There is an amendment process for a reason, and it can be used to achieve the objectives of having Japan play a more robust role in the area of international collective security. Careful study leading up to such amendments will also ensure that other checks and balances can be built into the revised Constitution to ensure that there is sufficient democratic accountability and civilian control as Japan engages in more extensive international operations. To try to circumvent that process undermines the entire structure of the Constitution.
If Article 9 can be merely interpreted away, why not other provisions? A democracy allows its Constitution to be undermined at its peril, and the erosion of constitutional controls on a country seeking greater military influence will almost certainly alarm its neighbors.
Craig Martin, a Canadian lawyer and a graduate of Osaka University Graduate School of Law, is currently working on a doctorate at the University of Pennsylvania, focusing on the interaction of international and constitutional constraints on the use of armed force.
The Japan Times: Sunday, April 29, 2007
(C) All rights reserved
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