Judge Paul Friedman will hear the U.S. Department of Justice’s motion to dismiss the governor’s lawsuit on March 12.
The Justice Department said the lawsuit should have been filed by the CNMI’s attorney general.
“I understand that the United States has argued that the esteemed constitutional law firm of Jenner & Block is not authorized to represent the Commonwealth of the Northern Mariana Islands in our lawsuit pursuant to Covenant Section 903. This is not true. Jenner & Block is authorized to represent the CNMI,” sad Baka in his one-page letter addressed to Friedman.
During the March 12 hearing, the judge will also hear the CNMI’s motion for a preliminary injunction to stop the provision of the law mandating the U.S. Department of Homeland Security to takeover the islands’ immigration system on June 1.
The judge told the parties to submit briefs about their arguments ahead of the hearing next month.
In its 12-page supplemental brief, the U.S. government said the case law that the federal court chose to determine if the CNMI’s right to self-government will be abrogated by the federalization law is inapplicable.
“The court should not utilize the Section 105 balancing test set forth in Richards v. De Leon Guerrero, 4 F.3d 749 (9th Cir. 2003), because Section 503 of the Covenant expressly permits Congress to enact federal immigration law with respect to the CNMI ‘to the extent and in the manner’ Congress determines. Covenant § 503. Thus, Section 105 analysis is inapplicable in this Section 503 case,” attorneys for the U.S. government stated in their brief.
“However, even if the Court were to apply the Ninth Circuit’s balancing test to this case, the United States should nevertheless prevail because it has substantial federal interests that outweigh any possible intrusion on the purely local self-government interests of the CNMI,” they added.
In the case law referred to, the U.S. Ninth Circuit Court of Appeals affirmed the lower court’s decision that Section 105 of the Covenant precluded the federal government from applying federal law — in this case, the subpoena authority over taxpayers — to the CNMI.
The U.S. attorneys said the Ninth Circuit determined in its decision that Section 105 calls for a “balancing test” to weigh the interests of the federal government against the “local self-government” interests of the CNMI.
“Although the right to ‘local self-government’ over ‘internal affairs’ is guaranteed by the Covenant, that right is not as expansive a right as argued by the CNMI. The Ninth Circuit engaged in a balancing of the interests of the federal government against the ‘degree of intrusion into the internal affairs’ of the CNMI, De Leon Guerrero,” they said.
They added that the CNMI’s arguments are speculative.
“The interests of the United States in applying federal immigration and naturalization law to the CNMI are numerous, and range from securing the border and heightening the safety of U.S. citizens (both within and without the CNMI), stopping human trafficking within the CNMI, protecting foreign workers from abuse, helping the CNMI economy, and improving the employment opportunities for U.S. citizens, among other interests,” they said.
“The CNMI’s only articulated interest is in securing the ready availability of foreign workers relied on by businesses inside the CNMI, and to secure revenues generated to the CNMI through immigration activities,” they added.
Jenner & Block, which argued on the CNMI’s behalf, said the federalization law will “mandate the removal of one-third of the CNMI’s population, deprive the CNMI of regulatory authority and vital revenues, and condemn the CNMI to a severe, perhaps irreversible, economic decline.”
The law firm added, “These incursions on the CNMI’s internal affairs breach the CNMI’s covenantal rights. Defendants, in contrast, have introduced no proof of any countervailing federal interests, and the unsubstantiated federal interests they have asserted are incorrect and irrelevant to the challenged provisions of the Act. The CNMI’s motion for a preliminary injunction should be granted.”
