Friedman agreed with the CNMI’s position that DHS technically violated the U.S. Administrative Procedures Act when it published in the Federal Register the regulations without giving the local government and other parties’ ample time to comment before they are implemented.
“The regulations in question are scheduled to become effective in less than two days, at 12:01 a.m. on Nov. 28, 2009, Chamorro Standard Time (the equivalent of 9:01 a.m. Eastern Standard Time on Nov. 27, 2009). If the court’s injunction is stayed, those regulations will take effect, injure the plaintiff in ways outlined in the court’s opinion, and defeat the court’s purpose in granting preliminary injunctive relief,” he said in his two-page order.
The CNMI, through the Jenner & Block law firm and Gov. Benigno R. Fitial’s special legal counsel, Howard P. Willens, filed a motion for an emergency injunctive relief last month in the U.S. District Court for the District of Columbia, claiming DHS committed a technical violation in drafting the interim final regulations on the transitional worker program, therefore, it should not be adopted and implemented.
Deanne Siemer, part-time attorney for the Department of Labor, said the judge’s decision means “the commonwealth will continue to operate under its existing labor system except for entry and exit. Friedman also virtually commanded DHS to come up with an emergency regulation allowing aliens in the commonwealth to travel in and out.”
DHS was contacted by this reporter but there was no response from the department as of press time.
In a statement, Fitial described the judge’s decision as “victory for the CNMI.”
“I am very pleased with this favorable decision by Judge Friedman. The Interim Permit Rule fails to comply with Public Law 110-229 and will be very damaging to the commonwealth if it goes into effect in its present form. I urge the Department of Homeland Security to consider the more than 100 comments that have already been filed in this rule-making proceeding and revise the proposed regulations to reflect our concerns,” he said.
He said the court’s decision affirms the CNMI’s position that DHS had no reasonable basis for publishing this interim rule without complying with the notice and comment provisions of the Administrative Procedures Act.
He said the judge wasn’t convinced that DHS used the 18-month gap between the enactment of the federalization statute and its implementation date set for this Saturday to diligently draft a reasonable program for guest workers.
“As to the ‘exit and entry’ problems presented by the interim permit rule, Judge Friedman commented that the Department of Homeland Security could ‘promulgate a narrowly focused and temporary emergency regulation’ that addressed only this problem,” said the governor.
“Looking at the separate issue of ‘irreparable injury,’ the court stated that ‘the CNMI argues convincingly that the commonwealth’s residents and government have meaningful concerns about the rule.’ Judge Friedman also observed that the Department of Homeland Security does not claim that it will be substantially prejudiced if the requested preliminary injunction is granted,” he added.
