Commonwealth of the Northern Mariana Islands v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
COMMONWEALTH OF THE )
NORTHERN MARIANA ISLANDS, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1572 (PLF)
)
UNITED STATES OF AMERICA, et al., )
)
Defendants. )
__________________________________________)
OPINION
This is a case about the United States’ authority to legislate for the
Commonwealth of the Northern Mariana Islands (“CNMI” or “the Commonwealth”) – a group
of Micronesian islands that enjoys a unique political relationship with the United States. The
CNMI, joined by amicus curiae CNMI Descent for Self-Government and Indigenous Rights
(“CNMI Descent”), argues that the recent enactment of legislation applying federal immigration
laws to the CNMI violates the agreement governing the relationship between the CNMI and the
United States. The CNMI therefore has asked the Court to preliminarily enjoin implementation
of certain provisions of that legislation, scheduled to take effect on November 28, 2009, and to
hold unlawful and permanently enjoin those same provisions.
By its amended complaint and an accompanying motion, filed on November 2,
2009, the CNMI has also asked the Court to preliminarily enjoin the regulations implementing
the legislation that were issued by the Department of Homeland Security (“DHS”) on October
27, 2009, and also are scheduled to take effect on November 27, 2009. Plaintiff asserts that the
issuance of these regulations without notice and an opportunity to comment violates the
requirements of the Administrative Procedure Act. The Court will address that contention in a
separate Opinion and Order to be issued later today.
Defendants, the United States, the Department of Homeland Security, DHS
Secretary Janet Napolitano, the Department of Labor, and Labor Secretary Hilda Solis
(collectively, “the defendants”), contend that the CNMI lacks standing to pursue its claims; that
the CNMI’s claims are not ripe; that this suit is not authorized under CNMI law; and that the
CNMI has failed to state a claim upon which relief can be granted because the legislation at issue
is lawful. They therefore filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure — which the Court has treated as a motion to
dismiss Counts I and II of the recently-filed amended complaint — and asked the Court to deny
as moot the CNMI’s first motion for a preliminary injunction. Because the Court agrees with the
defendants that plaintiff has failed to state a claim, the Court issued an Order on November 23,
2009, dismissing Counts I and II of the amended complaint and denying plaintiff’s first motion
for a preliminary injunction. This Opinion explains the reasoning underlying that Order. 1
1
The papers submitted in connection with this matter include: the CNMI’s
amended complaint (“Compl.”); CNMI’s Motion for a Preliminary Injunction (“P.I. Mot.”);
Defendants’ Opposition to CNMI’s Motion for a Preliminary Injunction (“P.I. Opp.”); CNMI’s
Reply in Support of its Motion for a Preliminary Injunction (“P.I. Reply”); Defendants’ Motion
to Dismiss (“Mot. Dismiss”); CNMI’s Opposition to Defendants’ Motion to Dismiss (“Mot.
Dismiss Opp.”); Substituted Reply in Support of Defendants’ Motion to Dismiss (“Mot. Dismiss
Reply”); Brief of Amicus Curiae CNMI Descent in Support of CNMI (“Amicus Brief”);
Defendants’ Supplemental Brief in Response to the Court’s February 4, 2009 Order (“Defs.
Supp.”); CNMI’s Supplemental Brief in Response to the Court’s February 4, 2009 Order
(“CNMI Supp.”); Brief of Amicus Curiae CNMI Descent in Response to the Court’s February 4,
2009 Order (“Amicus Supp.”); Plaintiff’s Supplemental Memorandum in Support of Motion for a
Preliminary Injunction to Address Effect of Issuance of Regulations (“CNMI Supp. Mem.”); and
Defendants’ Amended Response to Plaintiff’s Supplemental Memorandum filed October 30,
2009 in Support of Plaintiff’s Motion for a Preliminary Injunction (“Defs. Amended Resp.”).
2
The Court’s Opinion proceeds as follows. First, the Court provides some
necessary background information about the CNMI; the agreement, known as the Covenant,
governing relations between the CNMI and the United States; and the legislation at issue in this
case. The Court next addresses the defendants’ arguments in favor of dismissing this case for
lack of subject matter jurisdiction. Contrary to the defendants’ views, the Court concludes that
the CNMI has standing to pursue its claims; that its claims are ripe for review; and that this suit
is authorized under CNMI law. On the merits of the case, the Court first examines the terms of
the Covenant and concludes that the Covenant unambiguously confers upon Congress the
authority to enact the challenged legislation. It then explains that, even if the Covenant were not
clear on this point, the CNRA would still be a valid exercise of congressional authority under the
Covenant because it survives the balancing test articulated by the Ninth Circuit in United States
ex rel Richards v. Guerrero, 4 F.3d 749 (9th Cir. 1993). In light of those conclusions, the Court
finds that the CNMI has failed to state a claim for relief under the Covenant.
I. BACKGROUND
“The Northern Mariana Islands are a group of 14 islands in the western Pacific
Ocean, lying just north of Guam, 5,500 miles from the U.S. mainland.” COMMONWEALTH OF THE
NORTHERN MARIANA ISLANDS: MANAGING POTENTIAL ECONOMIC IMPACT OF APPLYING U.S.
IMMIGRATION LAW REQUIRES COORDINATED FEDERAL DECISIONS AND ADDITIONAL DATA at 8
(2008) (“GAO Report”).2 The CNMI “has a total land area of approximately 180 square miles,”
2
The Court refers to the GAO Report throughout this Opinion. It need not convert
the defendants’ motion to dismiss to a motion for summary judgment as a result, however,
because the report is incorporated in the CNMI’s complaint, see, e.g., Compl. ¶¶ 4, 7, and is
central to the CNMI’s claims. See, e.g., Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C.
1999), aff’d, 38 Fed. App’x. 4 (D.C. Cir. 2002).
3
Amended Complaint ¶ 24 (“Compl.”), and is populated by about 60,000 individuals. Id. “Only
30,000 members of the CNMI’s present population are U.S. citizens. Foreign workers [allowed
to live and work in the CNMI by the CNMI government] and their families number roughly
24,000. The remainder of the population is made up of non-citizens with permanent resident
status.” Id.
The United States Court of Appeals for the Ninth Circuit has described the
pertinent political history of the CNMI as follows:
For over three hundred years, the Northern Marianas and
Guam were Spanish colonies sharing common languages, religion,
and culture. The political ties between the Northern Marianas and
Guam were eventually broken by the Spanish-American War of
1898, with Guam becoming a territory of the United States and the
Northern Marianas coming under German, and then Japanese, rule.
After World War II, the United Nations established the
Trust Territory of the Pacific Islands encompassing most of the
islands of Micronesia, among them the Northern Mariana Islands,
to be administered by the United States pursuant to a Trusteeship
Agreement with the United Nations Security Council. See
Trusteeship Agreement for the Former Japanese Mandated Islands,
61 Stat. 3301, T.I.A.S. No. 1665, art. 3. The Trusteeship
Agreement imposed on the United States an obligation to “promote
the development of the inhabitants of the trust territory toward self-
government or independence.” Id. art. 6, § 1.
In October 1969, the United States entered into negotiations
with the Congress of Micronesia to determine Micronesia’s future
political status. Efforts to establish a unified Micronesian state,
however, were undermined by a lack of consensus about the
region’s political future. . . . The Congress of Micronesia, for
instance, was in favor of establishing a freely associated state,
independent of the United States. The Northern Mariana Islands,
on the other hand, sought a close and permanent association with
the United States. Proximity and a shared history with Guam gave
the people of the Northern Mariana Islands some familiarity with
the United States, making it the least alien major power with whom
negotiations might be initiated. Representatives of the Northern
Marianas thus pursued separate political status talks with the United
States over a period of years.
4
In 1972, the United States entered into formal negotiations
with the Northern Marianas. . . .
Negotiations between the United States and the Northern
Marianas culminated on February 15, 1975 with the signing of the
Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America. [See
Pub. L. No. 94-241, 90 Stat. 263 (1976) (the “Covenant”).] The
Covenant was unanimously endorsed by the NMI legislature,
approved by 78.8% of NMI plebiscite voters, and enacted into law
by Congress. Joint Resolution of March 24, 1976, Pub. L. No. 94-
241, 90 Stat. 263, reprinted in 48 U.S.C. § 1681 note. The
Covenant was implemented in three phases between March 24,
1976 and November 3, 1986. Covenant § 1003. On November 3,
1986, with the Covenant in full effect, the United States terminated
the Trusteeship Agreement with respect to the CNMI by
Presidential Proclamation. . . .
United States ex rel. Richards v. De Leon Guerrero, 4 F.3d at 751 (footnote omitted).
For several decades after the approval of the Covenant by the United States and
the CNMI, federal immigration laws did not apply to the Commonwealth. Left to determine its
own immigration policies, the CNMI, shortly after its constitutional government took office in
1978, decided to take an approach to immigration that would foster economic development. See
Compl. ¶¶ 39-40. Having concluded that various factors would make it difficult to attract
workers and investors from the United States, the CNMI implemented an immigration regime
designed to attract large numbers of foreign workers (i.e., workers who are not United States
citizens or lawful permanent residents) and foreign investors. The key feature of that regime was
a program under which nonimmigrant foreign workers – most from China, Japan, Korea and the
Philippines – were allowed to live and work in the CNMI subject to temporary, renewable work
permits issued by the local CNMI government. See GAO Report at 17; see also Compl. ¶ 41.
“To attract workers to the CNMI’s remote location, [foreign workers] had permission to enter the
5
Commonwealth for an indefinite period, and they could remain (or depart or re-enter) so long as
they remained employed and did not violate federal or local laws.” Compl. ¶ 41.
This program allowed the CNMI to increase the size of its work force
substantially, see GAO Report at 13, which in turn allowed the CNMI to enjoy remarkable
economic growth during the 1980s and 1990s. See Compl. ¶¶ 42-43. In particular, the CNMI’s
garment-manufacturing and tourism industries flourished during this period. Id. at ¶ 43.3 At the
same time, however, the CNMI’s economy became heavily dependent on foreign labor. Indeed,
foreign workers now account for “two-thirds of the CNMI’s working population,” Compl. ¶ 2,
and constitute the majority of employees in the critical garment-manufacturing and tourism
industries. Id. at ¶¶ 42-43. According to the CNMI, its “U.S. citizen workforce is too small to
supply the needs of local businesses or sustain the CNMI’s future economic development.”
CNMI Supp. at 5. Thus, “[r]etention of its foreign workers is . . . essential to the CNMI’s
continued economic viability.” Id. Moreover, foreign workers “are deeply enmeshed in the
Commonwealth’s economy and society[.]” Compl. ¶ 58. Thousands of such workers have lived
in the CNMI for years, and some “have children born in the CNMI, who [therefore] are citizens
of the United States.” Id. Thus, in the CNMI’s view, foreign workers not only “form the
backbone of the Commonwealth’s economy”; they are also “an essential component of [its]
community.” Id.
It was against this backdrop that Congress enacted Title VII of the Consolidated
Natural Resources Act of 2008 (“CNRA”), see Pub. L. No. 110-229, 122 Stat. 754, 853 (2008),
3
These industries have suffered recently due to unforeseen developments in
international trade. See GAO Report at 10; see also Compl. ¶ ¶ 44-45. As a result, the CNMI
“has descended into an economic depression of substantial proportions,” with tax revenues
declining by approximately 35% between 2005 and 2007. Compl. ¶ 46.
6
“[i]n recognition of the need to ensure uniform adherence to long-standing fundamental
immigration policies of the United States.” Id. sec. 701(a). Generally speaking, Title VII of the
CNRA applies federal immigration laws to the CNMI for the first time, subject to a “transition
period” and “transition program” intended to ease the transfer of authority to the federal level.
See id. secs. 701(a)-(b). Specifically, the CNRA provides that federal immigration law shall
apply in the CNMI beginning on the “transition program effective date” (November 28, 2009), id.
sec. 702(a), § 6(a)(1), and that federal law, including the CNRA’s transitional provisions, shall at
that time “supersede and replace all laws, provisions, or programs of the Commonwealth relating
to the admission of aliens and the removal of aliens from the Commonwealth.” Id. sec. 702(a),
§ 6(f). The CNRA also specifies that during the transition period, which is slated to end on
December 31, 2014, “the Secretary of Homeland Security, in consultation with the Secretary of
State, the Attorney General, the Secretary of Labor, and the Secretary of the Interior, shall
establish, administer, and enforce a transition program to regulate immigration to the
Commonwealth[.]” Id. § 6(a)(2).
Much of the transition program is rather technical, but its most relevant features
can be summarized briefly. Under that program, the Department of Homeland Security (“DHS”)
is authorized to issue so-called “CNMI-only” permits to foreign workers (including, it seems,
those previously admitted to the CNMI and those seeking to enter the CNMI) who are not
otherwise eligible to reside in the CNMI under federal immigration law. See CNRA, sec. 702(a),
§ 6(d)(1)-(3). These CNMI-only permits will not allow recipients to enter the United States, but
they will allow permit holders to live and work in the CNMI subject to the terms of the transition
program. See id. § 6(d)(3)-(4). The CNMI-only permit program has two purposes: to ensure that
CNMI employers have access to an adequate number of employees during the transition period,
7
and to gradually reduce the number of foreign workers during the transition period. See id.
§ 6(b)-(d). Thus, DHS’ CNMI-only permit system must “provide for a reduction in the allocation
of [CNMI-only permits] on an annual basis to zero, during a period not to extend beyond
December 31, 2014, unless extended pursuant to . . . this subsection.” Id. § 6(d)(2). 4 Moreover,
CNMI-only permits will not be valid “beyond the expiration of the transition period.” Id.
Finally, the CNRA specifies that foreign workers admitted to the CNMI before the
enactment of the CNRA may continue to live and work in the CNMI after the transition program
effective date. Significantly, however, the CNRA authorizes the removal of such foreign workers
at the end of the period for which they were admitted under CNMI law or two years after the
transition program begins (whichever is earlier), unless they obtain a CNMI-only work permit or
some other lawful immigration status under federal law. See CNRA, sec. 702(a), § 6(e)(1)-(2).
A little more than a month after the enactment of the CNRA, the CNMI filed a
complaint challenging the legality of numerous provisions of the CNRA and a motion requesting
that those provisions be enjoined. In Counts I and II of the complaint, as subsequently amended,
the CNMI contends that the challenged provisions of the CNRA breach the Covenant that
controls the political relationship between the Commonwealth and the United States.5
4
The CNRA authorizes the Department of Labor to extend the CNMI-only permit
program beyond December 31, 2014 (indeed, to extend it indefinitely for periods of “up to 5
years” at a time), but only if an extension is necessary to “ensure [that] an adequate number of
workers will be available for legitimate businesses in the Commonwealth.” CNRA, sec. 702(a),
§ 6(d)(5)(A).
5
This description encompasses only Count I of the CNMI’s complaint. Under
Count II, the CNMI argues that the CNRA violates the United States Constitution because it was
passed “pursuant to . . . a defective political process,” and therefore “exceeds Congress’s Article
I powers to enact legislation with respect to the [CNMI].” Compl. ¶¶ 97, 99. At oral argument,
counsel for the CNMI made clear that Count II is not intended to be a separate claim. Rather, it
is intended to suggest “a way of looking at” Count I. Transcript of Oral Argument at 68 (Mar.
12, 2009) (“Tr.”). Specifically, the purpose of Count II is to encourage the Court to view the
8
II. STANDING AND RIPENESS
A. Legal Standards
The defendants argue that the CNMI lacks standing; that its claims are not ripe;
and that this suit is not authorized. Thus, they have moved to dismiss the CNMI’s complaint for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure.
“Three inter-related judicial doctrines – standing, mootness, and ripeness – ensure
that federal courts assert jurisdiction only over ‘Cases’ and ‘Controversies.’ U.S. Const. art. III,
§ 2.” Worth v. Jackson, 451 F.3d 854, 855 (D.C. Cir. 2006). “A federal court is constitutionally
forbidden to render advisory opinions or ‘to decide questions that cannot affect the rights of
litigants in the case before [the Court].’” Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 90-91
(D.C. Cir. 1986) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). Federal courts are
courts of limited jurisdiction, with the ability to hear only cases entrusted to them by a grant of
power contained in either the Constitution or in an act of Congress. See, e.g., Beethoven.com
LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir. 2005); Hunter v. District of
Columbia, 384 F. Supp. 2d 257, 259 (D.D.C. 2005). A federal court has no subject matter
jurisdiction where the plaintiff lacks standing, or where the case is not justiciable because it is
either moot or not yet ripe. See Worth v. Jackson, 451 F.3d at 857.6 On a motion to dismiss for
people of the CNMI as “an insular minority with no voice in the [federal legislative] process,”
and for that reason to “apply heightened scrutiny” to the challenged provisions of the CNRA. Id.
The Court declines to do so. The CNMI has identified no authority supporting the proposition
that heightened scrutiny applies in cases like this, and the Court’s independent research has
uncovered none.
6
While standing and ripeness are at issue in this case, mootness is not.
9
lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the court has
jurisdiction. See Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68, 72
(D.D.C. 2004).
In determining whether to grant a motion to dismiss for lack of subject matter
jurisdiction, the Court must construe the complaint in the plaintiff’s favor and treat all well-pled
allegations of fact as true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54
(D.C. Cir. 2005). See also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49,
65 (1987) (courts may not dismiss a complaint for lack of standing if “there are sufficient
allegations of fact — not proof — in the complaint or supporting affidavits”) (internal quotation
marks and citation omitted); Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 364 (D.C.
Cir. 2005) (on a ripeness challenge, courts “construe the complaint liberally, granting plaintiff the
benefit of all inferences that can be derived from the facts alleged”) (internal quotation marks and
citation omitted).7 The Court need not accept unsupported inferences or legal conclusions cast as
factual allegations. See Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003).
Whether the CNMI has standing to pursue its claims is a threshold question of
subject matter jurisdiction. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102
(1998). In order to establish standing under Article III of the United States Constitution, a
plaintiff must show, at an “irreducible constitutional minimum,” that (1) it has suffered an injury
in fact – the invasion of a legally protected interest; (2) the injury is fairly traceable to the
7
The Court may dispose of a motion to dismiss under Rule 12(b)(1) on the basis of
the complaint alone or it may in appropriate cases consider materials beyond the pleadings “as it
deems appropriate to resolve the question whether it has jurisdiction to hear the case.” Scolaro
v. D.C. Bd. of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). “[W]here necessary,
the court may consider the complaint supplemented by undisputed facts evidenced in the record,
or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
10
defendants’ conduct (a causal connection); and (3) a favorable decision on the merits likely will
redress the injury. Sprint Commc’ns Co., L.P. v. APPC Servs., Inc., 128 S. Ct. 2531, 2535 (2008)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); see also North Carolina v.
EPA, No. 08-1225, slip op. at 6-7 (D.C. Cir. Nov. 24, 2009); Nuclear Info. & Resource Serv. v.
Nuclear Regulatory Comm’n, 509 F.3d 562, 567 (D.C. Cir. 2007) (quoting Florida Audubon
Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)). The alleged injury in fact must be concrete
and particularized and actual or imminent, not conjectural, hypothetical or speculative. See
Friends of the Earth v. Laidlaw, 528 U.S. 167, 180-81 (2000) ; Lujan v. Defenders of Wildlife,
504 U.S. at 560-61; Worth v. Jackson, 451 F.3d at 858; Sierra Club v. EPA, 292 F.3d 895, 898
(D.C. Cir. 2002). If a plaintiff cannot meet all three prongs of this test, the Court must dismiss
the suit for lack of standing. Where the legality of government action is challenged by the object
of that action, “there is ordinarily little question that the action or inaction has caused [or will
cause the plaintiff] injury, and that a judgment preventing . . . the action will redress it.” Lujan v.
Defenders of Wildlife, 504 U.S. at 561-62.
The defendants also seek dismissal of the CNMI’s complaint on ripeness grounds.
Ripeness is also a threshold question of subject matter jurisdiction. The ripeness inquiry
examines “whether a question has sufficiently matured to be amenable to adjudication.” Flynt v.
Rumsfeld, 355 F.3d 697, 702 (D.C. Cir. 2004). Its primary purpose “is to prevent the courts,
through avoidance of premature adjudication, from entangling themselves in abstract
disagreements” with other branches of the federal government. Hillblom v. United States, 896
F.2d 426, 430 (9th Cir. 1990) (internal quotation marks and citation omitted). Its roots “are found
in both the Article III requirement of ‘case or controversy’ and prudential considerations favoring
11
the orderly conduct of the administrative and judicial processes.” State Farm Mut. Auto. Ins. Co.
v. Dole, 802 F.2d 474, 479 (D.C. Cir. 1986). As the D.C. Circuit has explained:
The framework for assessing ripeness was established in [Abbott
Laboratories v. Gardner, 387 U.S. 136, 148 (1967)], in which the
Supreme Court provided a two-pronged test that requires a
reviewing court to evaluate both the fitness of the issues for judicial
decision and the hardship to the parties of withholding court
consideration. . . . Under the “fitness of the issues” prong, the first
question . . . is whether the disputed claims raise purely legal
questions and would, therefore, be presumptively suitable for
judicial review. . . . Next, [the court] consider[s] whether the court
or the agency would benefit from postponing review until the policy
in question has sufficiently “crystallized” by taking on a more
definite form. . . . The “hardship” prong of the Abbott Laboratories
test is not an independent requirement divorced from the
consideration of the institutional interests of the court and agency.
Venetian Casino Resort, LLC v. EEOC, 409 F.3d at 364 (internal quotation marks and citations
omitted).8 Here, the defendants contend that this matter is not ripe because the injuries alleged by
the CNMI are too “remote,” “nebulous,” and “contingent” to justify immediate judicial review.
See Mot. Dismiss Reply at 11.
B. Plaintiff’s Standing and Ripeness of the Issues
When the defendants filed their motion to dismiss, the DHS had not yet issued
regulations implementing the relevant portions of the CNRA. In late October 2009, however, the
Department issued two interim rules scheduled to go into effect on or about November 28, 2009,
the effective date of the Act. The first sets forth the regulations that will govern the transition
worker permit program challenged by the CNMI in this action. See Commonwealth of the
Northern Mariana Islands Transitional Worker Classification, 74 Fed. Reg. 55,094 (Oct. 27,
8
“While Abbott addressed potential conflicts with administrative agencies, the
doctrine is also applicable to actions of the President and of Congress.” Hillblom v. United
States, 896 F.2d at 430.
12
2009) (to be codified in scattered parts of 8 C.F.R.) (“Interim Permit Rule”). The second,
characterized as “an interim final rule,” amends existing DHS and Department of Justice
regulations to reflect the imminent application of the United States immigration laws to the
CNMI. See Application of Immigration Regulations to the Commonwealth of the Northern
Mariana Islands, 74 Fed. Reg. 55,726 (Oct. 28, 2009) (to be codified in scattered parts of 8
C.F.R.) (“Interim Immigration Rule”).
The Interim Permit Rule creates a federal scheme for issuing transitional worker
permits to foreign workers in the CNMI and establishes the criteria that employers must meet in
order to be eligible to receive permits for guest workers. See 74 Fed. Reg. at 55,109. Ultimately,
according to plaintiff, because this regulatory scheme will reduce the number of foreign worker
permits to zero by December 31, 2014, it “ousts local control over two-thirds of the
Commonwealth’s private-sector workforce, dictates the ultimate removal of that population from
the CNMI, and [fails to accommodate] the devastating economic consequences this will have
upon the Commonwealth.” CNMI Supp. Mem. at 3. Over the next two to five years, plaintiff
says, this regulatory regime “will wipe out two-thirds of the CNMI’s private-sector work force”
and therefore is totally incompatible with the Commonwealth’s guarantee of local self-
government. Id. at 4. According to plaintiff, this 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 modifications to the Covenant. See
Compl. ¶¶ 83-92.
By contrast, the defendants argue that the issuance of these regulations does not
undermine their arguments that plaintiff has no standing to bring this suit or that its arguments are
not ripe for decision. They maintain that, despite the issuance of the regulations, the injuries
13
alleged by the CMI under the statute and the Covenant are remote and speculative and are not
concrete, actual or imminent, and that the issuance of the regulations does nothing to make the
plaintiff’s alleged injuries any more concrete, actual or imminent. The Court disagrees and
concludes both that plaintiff has standing to sue and that the issues it raises are ripe for decision.
Section 103 of the Covenant reserves to the CNMI the right to local self-
government. While the scope and nature of the right to local self-government are certainly
debatable, there is no doubt that the right constitutes a judicially enforceable (and hence legally
protected) interest. See Covenant § 903 (undertakings by the United States government provided
for in the Covenant are enforceable in federal courts of the United States); United States ex rel.
Richards v. De Leon Guerrero, 4 F.3d at 754-55 (adjudicating dispute over whether challenged
federal administrative action violated CNMI’s right to self-government under the Covenant);
Hillblom v. United States, 896 F.2d at 431 (noting that “challenge[s] to a specific statute which
[allegedly] violates a provision of the Covenant . . . are generally within the authority of the
Court”). The CNMI claims that the CNRA violates its right to local self-government, principally
by federalizing control over immigration and foreign worker-related labor matters in the CNMI.
For purposes of the standing analysis, the Court assumes that the CNMI’s interpretation of the
statute is correct, and that the federalization of authority contemplated by the CNRA violates
Section 103. See Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007) (“[W]hen
considering whether a plaintiff has Article III standing, a federal court must assume arguendo the
merits of his or her legal claim.”); Info. Handling Servs., Inc. v. Defense Automated Printing
Servs., 338 F.3d 1024, 1030 (D.C. Cir. 2003) (“[A]t the motion to dismiss stage, a plaintiff’s non-
frivolous contention regarding the meaning of a statute must be taken as correct for purposes of
standing.”). Thus, the CNMI has adequately alleged the invasion of a “legally protected interest”
14
— its right to local self-government — that is concrete, particularized and imminent. See Lujan
v. Defenders of Wildlife, 504 U.S. at 560. It therefore has satisfied the injury-in-fact element of
standing.
The CNMI also has satisfied the causation element of standing, because the injury
of which it complains is “fairly traceable” to the enactment of the CNRA — and now also
traceable to the promulgation of the regulations as well. Allen v. Wright, 468 U.S. 737, 750
(1984) (causation element is satisfied if the plaintiff “allege[s] personal injury fairly traceable to
the defendant’s allegedly unlawful conduct”). Again, the principal injury alleged by the CNMI is
the federalization of control over immigration and foreign worker-related labor matters in the
CNMI. That federalization of control is mandated by the CNRA and will be carried out by the
responsible federal agencies, particularly DHS, under the statute and the regulations just issued.
Thus, “the challenged acts of the defendant[s], not of some absent third party, will cause the
particularized injury of the plaintiff.” Florida Audubon Soc’y v. Bentsen, 94 F.3d at 663.
Finally, the CNMI has satisfied the redressability element. “Redressability
examines whether the relief sought, assuming that the court chooses to grant it, will likely
alleviate the particularized injury alleged by the plaintiff.” Florida Audubon Soc’y v. Bentsen,
94 F.3d at 663-64 (footnote and citations omitted). Were the Court to permanently enjoin the
defendants from enforcing the CNRA as violative of the Covenant, the regulations would also
fall, the challenged provisions would not be implemented, and the CNMI would not suffer the
loss of governmental autonomy and control it fears. Thus, the injury alleged by the CNMI is
redressable, and the plaintiff clearly has standing.
As for ripeness, for many of these same reasons, the Court concludes that the
injuries alleged by CNMI are not too remote or contingent to justify immediate judicial review.
15
Plaintiff will be injured once the statute and regulations take effect. Furthermore, the issues
plaintiff raises clearly are fit for judicial decision, and they implicate legal issues amenable to
such decision. The issuance of the regulations has merely “crystallized” the questions for judicial
consideration, and nothing would be gained by postponing a decision. See Venetian Casino
Resort, L.L.C. v. EEOC, 409 F.3d at 365. The Court concludes that plaintiff has standing and
that the issues it raises clearly are ripe for decision.
The defendants’ arguments to the contrary are not persuasive. According to the
defendants, the CNMI’s allegations of non-economic injury (i.e., the CNMI’s allegations of
injury arising from the loss of local autonomy and control) are insufficient because (1) it is
speculative to assert that the CNMI will suffer any loss of local autonomy and control under the
CNRA; and (2) in alleging such non-economic injuries the CNMI is impermissibly “attempt[ing]
to revamp economic and related injuries as injuries to its alleged right of self-governance to avoid
the determination that these injuries are inherently speculative.” Mot. Dismiss Reply at 5. The
Court rejects both arguments.9
The CNMI’s allegations of non-economic injury are not speculative. There is no
dispute that the CNRA takes away from the CNMI control over immigration matters and
federalizes control over such matters, see CNRA, sec. 702(a), § 6(f), and thereby effectively
preempts the CNMI’s local immigration laws. Were there ever any doubt about precisely how
the CNRA will preempt or supplant local labor laws, see Mot. Dismiss Reply at 5, the regulations
issued on October 27 and October 28, 2009 make clear the extent of the federal role; their
9
Defendants also initially argued that it remains unclear “what the regulations
implementing the CNRA will look like, or what affect they will have.” Mot. Dismiss Reply at 5.
With the issuance of the regulations, that argument is now moot.
16
issuance undermines defendants’ argument that plaintiff’s asserted non-economic harm is
speculative. See id.
As for defendants’ argument that the CNMI’s allegations of non-economic injury
are recent inventions designed to avoid the force of the defendants’ attacks on the CNMI’s
allegations of economic injury, Mot. Dismiss Reply at 3-4, defendants are simply wrong. The
CNMI’s allegations of non-economic injury are plainly distinct from its allegations of economic
injury, and the CNMI has relied on such allegations – the loss of local autonomy and control –
from the outset of this case. See, e.g., Compl. ¶¶ 60-63, 72-73, 80-81, 95. See also P.I. Mot. at
1, 34-35.
III. AUTHORIZATION
That brings the Court to the last of the defendants’ jurisdictional arguments.
According to the defendants, the CNMI’s complaint must be dismissed because this suit is not
authorized under the laws of the CNMI. Specifically, the defendants argue that (1) the CNMI’s
Constitution and civil code provide that any action brought by the CNMI must be brought on the
authority of the Attorney General of the CNMI, see Mot. Dismiss Reply at 12 (citing CNMI
Const., art. III § 11 and 1 CMC § 2154); (2) this suit “appears to be driven by the Governor and
his counsel” rather than by the CNMI’s Attorney General, id. at 13 n.7; and thus (3) this suit must
be dismissed because the Governor lacks authority to sue on behalf of the CNMI. See id. at
13-14. The defendants take the view that this suit is “driven by the Governor and his counsel”
rather than by the Attorney General mainly because the complaint is signed not by the Attorney
General or one of his assistants but instead by the law firm of Jenner & Block and attorney
Howard Willens, who is identified in the complaint as “Special Legal Counsel to the Governor.”
17
In response, the CNMI argues that the Governor of the CNMI is not a party to this
case, and that Mr. Willens’ presence does not signify otherwise because Mr. Willens also serves
as an Assistant Attorney General in the CNMI. See Mot. Dismiss Opp. at 18 n.12. The CNMI
further argues that the Attorney General has both authorized this suit and authorized Mr. Willens
and Jenner & Block to prosecute it on behalf of the CNMI. See id. at 17-18. To support that
claim, the CNMI points to two letters written by Gregory Baka, the Acting Attorney General of
the CNMI. In the first letter, written to a local legislator, Mr. Baka states:
[I]n full compliance with the CNMI Constitution the Office of the
Attorney General (OAG) has for decades referred various matters to
outside counsel, whether due to conflicts, lack of specialized
experience, or resource constraints. There is no legal requirement
that this delegation be in writing, or even express. Hundreds of
pleadings are filed annually by the OAG without the AG’s personal
review or signature. Yet as the Deputy Attorney General (currently
Acting AG . . . ) I did personally review and comment upon various
drafts of the Complaint in our Section 903 litigation [i.e., this suit].
Id., Ex. 1, Letter from Acting Attorney General Gregory Baka at 2 (Oct. 24, 2008). In the second
letter, written to this Court, Mr. Baka states: “I understand that the United States has argued that
the esteemed constitutional law firm of Jenner & Block is not authorized to represent the [CNMI]
in [this suit]. This is not true. Jenner & Block is authorized to represent the CNMI.” Letter from
Acting Attorney General Gregory Baka at 1 (Feb. 13, 2009).
In the Court’s view, these letters adequately demonstrate that this suit has been
authorized by the Office of the Attorney General of the CNMI and that the Acting Attorney
General has delegated his authority to prosecute the suit to Mr. Willens and to Jenner & Block.
To conclude otherwise would require the Court to infer that Mr. Baka has not authorized this suit,
but nevertheless written two artfully worded letters meant to conceal that fact from a local
legislator and from this Court. Nothing in the record warrants that inference.
18
The Court thus concludes that the CNMI has standing to pursue its claims; the
CNMI’s claims are ripe; and the CNMI’s suit is properly authorized. The Court therefore will
deny the defendants’ motion to dismiss for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure.
IV. THE MERITS
A. Standard of Review
The Court now turns to the defendants’ arguments for dismissing Counts I and II
of the CNMI’s amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Rule 12(b)(6) allows dismissal of a complaint if a plaintiff fails “to state a claim upon
which relief can be granted.” FED . R. CIV . P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), the Supreme Court clarified this standard. The Court in Twombly noted that
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests[.]’” Id. at 555 (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)); see also Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C.
Cir. 2008). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish
“more than labels and conclusions” or “a formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The Court stated that there was no
“probability requirement at the pleading stage,” id. at 556, but “something beyond . . . mere
possibility . . . must be alleged[.]” Id. at 557-58. The facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level,” id. at 555, or must be sufficient “to
19
state a claim for relief that is plausible on its face.” Id. at 570. See also Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”). The Court in Twombly referred to this newly clarified standard as “the
plausibility standard.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 560 (abandoning the “no set
of facts” language from Conley v. Gibson).
On a motion to dismiss under Rule 12(b)(6), the Court must accept as true all of
the factual allegations contained in the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S.
at 555. The complaint “is construed liberally in the [plaintiff’s] favor, and [the Court should]
grant [the plaintiff] the benefit of all inferences that can be derived from the facts alleged.”
Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court
need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts
alleged in the complaint; nor must the Court accept plaintiff’s legal conclusions. See id. See
also Ashcroft v. Iqbal, 129 S. Ct. at 1949-50.
B. Interpretation of the Covenant
“[T]he authority of the United States towards the CNMI arises solely under the
Covenant.” United States ex rel Richards v. Guerrero, 4 F.3d at 754 (citing Hillblom v. United
States, 896 F.2d at 429) (internal quotation marks omitted). The CNMI argues that Congress
acted in excess of that authority in passing the challenged provisions of the CNRA, and that, as a
result, those provisions must be enjoined. See Compl. ¶¶ 83-92. The Court disagrees.
“The Covenant is divided into ten articles that define the CNMI’s legal and
political relationship with the United States.” Mot. Dismiss at 6. Article I (entitled “Political
20
Relationship”) and Article V (entitled “Applicability of Laws”) are most relevant here. Section
103 of Article I provides:
The people of the [CNMI] will have the right of local self-
government and will govern themselves with respect to internal
affairs in accordance with a Constitution of their own adoption.
Covenant § 103. Section 105 of Article I provides:
The United States may enact legislation in accordance with its
constitutional processes which will be applicable to [the CNMI],
but if such legislation cannot also be made applicable to the several
States [the CNMI] must be specifically named therein for it to
become effective in [the CNMI]. In order to respect the right of
self-government guaranteed by this Covenant the United States
agrees to limit the exercise of that authority so that the fundamental
provisions of this Covenant, namely Articles I, II and III, and
Sections 501 and 805, may be modified only with the consent of the
Government of the United States and the Government of [the
CNMI].
Covenant § 105. Section 503 of Article 5 provides:
The following laws of the United States, presently inapplicable to
[the CNMI], will not apply to [the CNMI] except in the manner and
to the extent made applicable to them by the Congress by law after
[November 3, 1986]: (a) . . . the immigration and naturalization
laws of the United States[.]
Covenant § 503.
It is undisputed that the CNRA meets the requirements set forth in the first
sentence of Section 105. See Tr. at 11. While the relevant portion of the CNRA is not legislation
that has been “made applicable to the several States,” the CNRA does “specifically name [the
CNMI]” and thus can become effective in the Commonwealth. It is the second sentence of
Section 105 which plays a more important role in this case. As noted, that sentence provides in
pertinent part:
21
In order to respect the right of self-government guaranteed by this
Covenant the United States agrees to limit the exercise of [its
legislative] authority so that the fundamental provisions of this
Covenant, [including Section 103], may be modified only with the
consent of the Government of the United States and the
Government of the Northern Mariana Islands.
Covenant, art. I § 105. The parties frequently refer to that sentence as the “mutual consent
provision,” because it requires both the CNMI and the United States to consent to any
“modifications” of the so-called “fundamental provisions” of the Covenant. According to the
CNMI, however, the CNRA runs afoul of Section 103 of the Covenant, which is one of those
provisions identified as fundamental, and which guarantees the CNMI “the right of local self-
government” and the right to “govern [itself] with respect to internal affairs.” Under the terms of
the second sentence of Section 105, plaintiff argues, Congress may not unilaterally alter those
guarantees.
Sections 105 and 103 – themselves general grants or reservations of authority – are
related to two additional sections of the Covenant that, during the early days of the
Commonwealth, determined the initial applicability to the CNMI of several laws or categories of
laws of the United States. Section 502 lists certain sets of laws, such as those “regarding coastal
shipments” and those “which provide federal services and financial assistance programs,” that, by
agreement of the United States and the Commonwealth, became controlling in the CNMI upon or
soon after the adoption of the Covenant. See Covenant § 1003(b) (specifying the effective date of
Section 502). By contrast, Section 503 identifies groups of federal laws that, again by agreement
of the United States and the Commonwealth, would not automatically become effective in the
CNMI after the adoption of the Covenant, but could be “made applicable to” the Commonwealth
by Congress at a later date:
22
The following laws of the United States, presently inapplicable to
the Trust Territory of the Pacific Islands, will not apply to the
Northern Mariana Islands except in the manner and to the extent
made applicable to them by the Congress by law after termination
of the Trusteeship Agreement:
(a) . . . the immigration and naturalization laws of the
United States;
(b) . . . the coastwise laws of the United States . . .; and
(c) the minimum wage provisions of Section 6, Act of Jun
25, 1938, 52 Stat. 1062, as amended.
In light of Section 503(a), the CNMI acknowledges that “the imposition of the
federal immigration laws [on the CNMI] is expressly within Congress’s power under the
Covenant.” P.I. Mot. at 20. Despite this point of agreement, the parties and amicus CNMI
Descent spend a great deal of time debating whether Congress’ admitted authority to apply “the
immigration and naturalization laws of the United States” to the Commonwealth derives from
Section 503 or Section 105. CNMI Descent, and perhaps the CNMI itself, see Tr. at 9, essentially
contend that all of Congress’ authority to legislate for the Commonwealth derives from a single
source: Section 105. See Amicus Brief at 25-26. Under this theory, Section 503 affirmatively
grants to Congress no power beyond that which is already conferred by Section 105; Section 503
merely memorializes the understanding of the United States and the CNMI at the time of the
formation of the Covenant as to which federal laws would not automatically apply to the
Commonwealth. Id. The defendants, on the other hand, insist that Section 503 itself gives
Congress authority, independent of any conveyed by Section 105, to apply federal immigration
laws to the CNMI. P.I. Opp. at 23-24.
23
The parties vigorously contest this point because, if Congress’ authority over
immigration in the CNMI derives from Section 503, then that authority, exercisable “in the
manner” and “to the extent” that Congress desires, is not subject to the requirement of
Section 103 that the Commonwealth retain control over its internal affairs. See P.I. Opp. at 24. If
that authority instead originates with Section 105, then it must — according to the CNMI and
CNMI Descent — be exercised only to the extent that it does not interfere with the CNMI’s rights
under Section 103. See Tr. at 9; Amicus Brief at 30.
To the extent that the distinction matters, the Court agrees with the defendants.
Section 503 of the Covenant plainly states that Congress may, after the expiration of the
trusteeship agreement, apply the “immigration and naturalization laws of the United States” to the
“Northern Mariana Islands . . . in the manner and to the extent” it chooses. Covenant § 503. The
Court reads that language as an affirmative grant of authority to the United States to apply federal
immigration laws to the CNMI, and to do so in any “manner” and to any “extent” it sees fit —
that is, notwithstanding any limits imposed by Sections 103 and 105.10 Section 503 by its terms is
an express reservation of Congress’ right to apply federal immigration and naturalization laws to
the CNMI, through appropriate legislation — provided it does so only after the expiration of the
Trusteeship Agreement. The Trusteeship Agreement expired on November 3, 1986. Compl. ¶ 38.
Thus, the Court concludes that under the express and unambiguous language of Section 503 of
the Covenant, Congress was free after November 3, 1986, to apply the immigration and
naturalization laws of the United States to the CNMI. As a result, the CNRA is a legitimate
10
Because the language of Section 503 is clear, the Court reaches this conclusion
without resort either to other sections of the Covenant or to its legislative history.
24
exercise of federal congressional authority so long as its challenged provisions qualify as being
among “the immigration and naturalization laws of the United States.”
The Court notes, however, that even if Congress’ authority to enact legislation
governing immigration in the CNMI derived from Section 105, neither the Court’s plain meaning
statutory analysis nor its ultimate conclusion would change. If Section 503 is an affirmative grant
of authority that exists outside of any limitations imposed by Sections 103 and 105, then any
statute that falls within the Section’s terms is authorized under the Covenant, and the CNRA is
authorized if it is in fact one of “the immigration and naturalization laws of the Untied States.” If
Section 503 merely explains how the authority granted to Congress by Section 105 was to be
exercised during the period following the enactment of the Covenant — as the CNMI and CNMI
Descent contend — then Section 503 is nevertheless definitive evidence that the drafters of the
Covenant believed Section 105 gave Congress the authority to apply “the immigration and
naturalization laws of the United States” to the Commonwealth “in the manner” and “to the
extent” that Congress saw fit. As a necessary corollary, the drafters could not have believed that
immigration and naturalization were “internal affairs” over which the CNMI was to have primary
authority. Therefore, so long as the CNRA qualifies as an “immigration and naturalization
law[],” it does not trench upon the “internal affairs” of the Commonwealth within the meaning of
Section 103.
As this analysis demonstrates, whether Congress acted by authority conferred by
Section 503 or by Section 105, it acted validly in adopting the CNRA if the statute qualifies as
one of the “immigration and naturalization laws of the United States.” Perhaps recognizing the
implications of this proposition, the CNMI argues that the provisions of the CNRA in question
“cannot be characterized as ‘federal immigration and naturalization laws’ without emptying those
25
terms of meaning.” Mot. Dismiss Opp. at 30. The CNMI asserts that the CNRA “go[es] far
beyond the imposition of the federal immigration laws on the Commonwealth, and constitute[s] a
broad assault upon the Commonwealth's existing economy and fundamental right to self-
government ” as guaranteed by Section 103 and secured by Section 105. Id.1 1 According to the
CNMI, the principal problem with the CNRA is that it does not limit its reach to “control over the
Commonwealth's borders.” P.I. Mot. Reply at 10. Instead, it also applies to foreign workers
already within the Commonwealth and therefore constitutes an “affront to the Commonwealth's
control over internal affairs,” since those foreign workers (1) make up a large proportion of the
CNMI's labor pool, (2) were admitted pursuant to the CNMI's locally enacted immigration
program prior to the effective date of the CNRA, and (3) receive a variety of protections under
CNMI law. See P.I. Mot at 35-36. The Court disagrees with this analysis, and concludes that the
challenged provisions of the CNRA are, in fact, “immigration and naturalization laws of the
United States.”
11
The CNMI further argues that certain provisions of the CNRA inflict needless
economic hardships on the CNMI and therefore are inconsistent with Section 701 of the
Covenant, which provides that
the United States will assist the Government of the Northern
Mariana Islands in its efforts to achieve a progressively higher
standard of living for its people as part of the American economic
community and to develop the economic resources needed to meet
the financial responsibilities of local self-government.
Covenant § 701. The Court does not treat the alleged inconsistency between the CNRA and
Section 701 as a separate argument because (1) the CNMI seems to regard any rights protected
by Section 701 as incidents of the more fundamental right to local self-government reserved in
Section 103 and protected by Section 105, see, e.g., Compl. ¶ 33; and (2) the CNMI relied on
Section 701 only sporadically throughout its papers and at oral argument.
26
C. Title VII of the CNRA as Immigration Law
The challenged portions of the CNRA explicitly apply the federal Immigration and
Nationality Act to the CNMI, sec. 702(a), § 6(a)(1); provide for an interim program under which
DHS will determine which and how many foreign workers will be authorized to work in the
Commonwealth, id. § 6(b)-(d); limit the ability of DHS to remove certain foreign workers for a
limited period after the effective date of the statute, id. § 6(e); preempt all CNMI laws “relating to
the admission of aliens and the removal of aliens from the Commonwealth,” id. § 6(f); and
remove the portion of Section 503 of the Covenant that permits the application of United States
immigration laws to the Commonwealth, id., sec. 702(g). Given that every one of these
provisions concerns the admission of noncitizens into the CNMI, their removal from the CNMI,
or their authorization to work within the CNMI, it is impossible to say that these provisions are
not “immigration and naturalization laws.” Plaintiff’s arguments to the contrary are unavailing.
First, the CNMI’s argument that the CNRA cannot be viewed as an “immigration
law” is unpersuasive, largely for the reasons stated by the defendants. See Mot. Dismiss Reply at
17-23. The fact that the CNRA is not codified in Title 8 of the United States Code, see Mot.
Dismiss Opp. at 29, is irrelevant. That title is not the repository of all federal immigration laws,
which are defined by their subject matter, not their location in the Code. See INA § 101(a)(17)
(defining “immigration laws” as “this Act and all laws, Conventions, and treaties of the United
States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens”);
United States v. Zuger, 602 F. Supp. 889, 890 (D. Conn. 1984) (“Acts of Congress do not take
effect or gain force by virtue of their codification into the United States Code; rather, they are
simply organized in a comprehensive way under the rubric of appropriate titles, for ready
reference.”); see also Turner v. Glickman, 207 F.3d 419, 428 (7th Cir. 2000) (arrangement of
27
statutes in United States Code does not reflect any intent of Congress); Murrell v. W.U.
Telegraph Co., 160 F.2d 787, 788 (5th Cir. 1947) (“The statutes collected in [the United States
Code] did not change their meaning nor acquire any new force by their inclusion.”).
Second, plaintiff 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.” Mot. Dismiss Opp. at 30. As defendants point out with ample support,
see Mot. Dismiss Reply at 19-20; see also Tr. at 47-48, precisely such schemes are at the heart of
federal immigration law. See, e.g., 8 U.S.C. § 1153(b) (explaining how employment-based visas
are to be allocated); 8 U.S.C. § 1184(c) (providing that “[t]he question of importing any alien as a
nonimmigrant worker under [certain sections] of this title in any specific case . . . shall be
determined by the Attorney General . . . upon petition of the importing employer ”). Finally, and
for similar reasons, 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. It has long been recognized that immigration laws necessarily
have a significant impact on labor markets and practices. See, e.g., INS v. Nat'l Center for
Immigrants' Rights, Inc., 502 U.S. 183, 195 (1991) (“[A] primary purpose in restricting
immigration is to preserve jobs for American workers.”); De Jesus Ramirez v. Reich, 156 F.3d
1273, 1274-75; (D.C. Cir. 1998) (discussing relationship between employment market and
administration of immigration). There is thus no question that the relevant portions of the CNRA
are immigration laws explicitly authorized by the Covenant.
28
D. Application of Richards: The Balancing Test
Even if the Court were to agree with the CNMI that the CNRA is not an
“immigration and naturalization law” which Congress is specifically authorized by the Covenant
to enact, the Court would still find the CNRA valid under the Covenant. The Court recognizes,
contrary to defendants’ argument, see Mot. Dismiss at 31-32, that Sections 103 and 105 of the
Covenant impose substantive limits on Congress’ authority to legislate with respect to the CNMI
in order to protect the Commonwealth’s right to govern itself with regard to internal affairs. All
persuasive authority points to this conclusion. See, e.g., United States v. Chang Da Liu, 538 F.3d
at 1084 (noting that “the Covenant does limit Congress’s legislative power”); Sagana v. Tenorio,
384 F.3d 731, 734 (9th Cir. 2004) (“The Covenant guarantees the CNMI a measure of self-
government, giving the people of the CNMI control over its internal affairs.”); United States ex.
rel. Richards v. De Leon Guerrero, 4 F.3d at 754 (ruling that the Commonwealth’s interest in self-
government must be weighed against the interests of the federal government in order to determine
whether actions of the United States that are not clearly authorized by the Covenant are
nevertheless permissible). The defendants can cite only the district court decision upheld by the
Ninth Circuit in the Richards case as support for their interpretation of Sections 103 and 105. See
United States ex rel. Richards v. De Leon Guerrero, Misc. No. 92-0001, 1992 WL 321010, at *25
(D.N.M.I. July 24, 1992). They fail to acknowledge, however, that in affirming the district
court’s decision the Ninth Circuit did not endorse the district court’s Guarantee Clause analogy,
and in fact employed an analysis that implicitly recognized the substantive nature of the rights
conferred upon the Commonwealth by Sections 103 and 105.
While the Court therefore rejects the defendants’ interpretation of the Covenant in
this regard and accepts the view that Sections 103 and 105 impose substantive limits on
29
Congress’ legislative authority, it nevertheless finds that the CNRA does not transgress those
limits. It does so by applying the balancing test articulated by the Ninth Circuit in United States
ex rel. Richards v. De Leon Guerrero, 4 F.3d 749 (9th Cir. 1993).
In Richards, the Inspector General of the United States Department of the Interior
issued a subpoena to the governor of the CNMI, seeking certain tax records for the purpose of
conducting an audit of the CNMI’s Department of Finance under the Insular Areas Act. See 48
U.S.C. § 1681b (authorizing the Inspector General to audit the accounts of the CNMI). The
CNMI refused to comply with the subpoena. The district court enforced the subpoena, and the
CNMI appealed to the Ninth Circuit, arguing that “the enforcement of the subpoena [would
violate] the CNMI’s right to local self-government, in contravention of both the plain meaning
and the negotiating history of Sections 103 and 105 of the Covenant[.]” United States ex rel.
Richards v. De Leon Guerrero, 4 F.3d at 752. More specifically, the CNMI argued that
a federal audit of Commonwealth finances intrudes upon the
Commonwealth’s right of local self-government reserved under
Section 103 of the Covenant [and] because of this alleged conflict
between the Insular Areas Act and Section 103, the enactment of
§ 1681b exceeds the scope of congressional lawmaking authority
permitted by Section 105 of the Covenant.
Id. at 754.
The Ninth Circuit rejected this argument. As an initial matter, the court of appeals
acknowledged that “the authority of the United States toward the CNMI arises solely under” –
and hence is limited by – “the Covenant.” United States ex rel. Richards v. DeLeon Guerrero, 4
F.3d at 754 (quoting Hillblom v. United States, 896 F.2d at 429). But it declined the CNMI’s
invitation to read Sections 103 and 105 as “carving out an area of ‘local affairs’ immune from
federal legislation.” Id. at 755. Rather, the court of appeals “interpret[ed] the first sentence of
30
Section 105 to mean that the United States must have an identifiable federal interest that will be
served by the relevant legislation.” Id. at 754. It interpreted the second sentence (that is, the
mutual consent provision) to mean that a reviewing court should “balance the federal interest to
be served by the legislation at issue against the degree of intrusion into the internal affairs of the
CNMI” in order to “give due consideration to the interests of the United States and the interests of
the Commonwealth as reflected in Section 105[.]” Id. at 755. Employing this balancing test, the
Ninth Circuit held that the “federal audit [did not] impermissibly intrude[] on the internal affairs
of the CNMI” and thus did not violate Section 105 because “the United States has a substantial
federal interest in monitoring the CNMI’s collection of taxes,” and because permitting the audit
did not unduly intrude upon the local affairs of the CNMI. Id.
Amicus curiae CNMI Descent argues that the Ninth Circuit’s balancing test is the
only workable approach here because (1) “the Covenant’s text . . . sets up rival spheres of
authority for the U.S. and the CNMI without explaining how to reconcile or distinguish them in
mixed or borderline cases,” Amicus Supp. at 2; and (2) this case is an excellent example of a
“borderline” case. It notes:
The CNMI’s necessary economic reliance on foreign tourism,
investment and labor means that the issue of immigration is deeply
and inextricably intertwined with internal social and economic
affairs, power over which is vested in the CNMI people by Section
103 of the Covenant. At the same time, however, the issue can
potentially have defense and foreign policy implications, areas
committed to the US by Section 104. In such a situation, a
balancing test is necessary to determine where local legislative
authority ends and federal [authority] begins.
31
Id.12 At oral argument, the CNMI seemed to agree with amicus that the Richards balancing test
would be an appropriate way to determine whether the CNRA violated Section 105 if there was
some ambiguity as to whether the CNRA constituted “a violation of the covenantal promise of
self-government” protected by Sections 103 and 105 and whether the drafters of the Covenant
would have viewed the regulation of foreign workers as an “internal” matter implicating “local
self-government.” Tr. at 27-28.13
For purposes of this alternative analysis, the Court assumes that the matter is
ambiguous. Agreeing with the defendants and amicus, the Court thinks it appropriate in such a
case to measure the CNRA against Sections 103 and 105 by employing the balancing test
articulated by the Ninth Circuit in Richards. Applying that balancing test here, the Court easily
concludes that the challenged provisions of the CNRA comply with Sections 103 and 105, and
thus that the CNMI has failed to state a claim upon which relief can be granted.
12
Notably, the Supreme Court of the CNMI has expressed a similar view. See In
Re Pangelinan, No. cv-07-0015, 2008 WL 2670073, at *19 (N. Mar. I. 2008).
13
In its papers, the CNMI had taken a different approach, urging the Court not to
apply the balancing test applied in Richards, arguing that the balancing test is flawed because it
has no support in the text of the Covenant, and because it “undercuts the CNMI’s right to have
the Covenant enforced according to its terms by improperly permitting the United States to
evade its covenantal obligations if it can point to a sufficiently compelling federal interest.”
CNMI Supp. at 1-2; see also id. at 3 (“By adopting a test that weighs the federal interests against
the degree of federal intrusion into the CNMI’s local affairs, the Ninth Circuit has effectively
authorized the United States to abrogate the CNMI’s rights if it can point to a sufficiently
important countervailing interest.”). The CNMI initially would have had the Court measure the
CNRA against Section 105 using a straightforward contract law approach. See id. at 4 (arguing
that “the Court should enforce the Covenant according to its terms”); Tr. at 24 (arguing that the
Covenant is in “essence a contract”).
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E. Application of the Richards Test
1. Federal Interests
In enacting the CNRA, Congress sought to ensure (1) “that effective border control
procedures are implemented and observed” in the CNMI; and (2) “that national security and
homeland security issues are properly addressed” in the CNMI. CNRA § 701(a)(1)-(2). The
question under the Richards balancing test is whether these federal interests outweigh the
intrusion into local affairs contemplated by the CNRA. For the reasons that follow, the Court
concludes that the answer to that question is “yes.”
As an initial matter, there is no question that the federal interests identified by the
CNRA are weighty and legitimate. The Covenant makes clear that the CNMI exists “under the
sovereignty of the United States.” Covenant § 101. It also makes clear that the United States
“will have complete responsibility for and authority with respect to matters relating to foreign
affairs and defense affecting the Northern Mariana Islands.” Id. § 104. The Covenant thereby
incorporates the time-honored and uncontroversial principle that the United States, as a sovereign
entity, is obliged to defend and to conduct foreign affairs on behalf of those entities over which it
exercises sovereignty. See, e.g., Northern Mariana Islands v. United States, 399 F.3d 1057, 1063
(9th Cir. 2005) (recognizing the “inherent obligations placed on the sovereign governing entity to
conduct international affairs and control matters of national concern”). Thus, the United States
has legitimate interests in matters implicating its sovereignty, including matters implicating
foreign affairs and security. It is equally clear that a sovereign’s interests in foreign affairs and
security are served by controlling the borders over which it possesses sovereignty and by
controlling aliens within those borders. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982)
(noting that “control over matters of immigration is a sovereign prerogative” of the United States
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and that “[t]he government’s interest in efficient administration of the immigration laws at the
border . . . is weighty”); Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (observing that “the
power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international
relations and defending the country against foreign encroachments and dangers”) (internal
quotation marks and citations omitted). Accordingly, the Court concludes that the CNRA serves
“identifiable federal interest[s][.]” United States ex rel. Richards v. De Leon Guerrero, 4 F.3d at
754.
The CNMI attempts to avoid this conclusion by arguing that “Congressional
concerns regarding border control and national and homeland security are both irrelevant and
unnecessary.” CNMI Supp. at 7. Specifically, the CNMI argues that (1) the provisions of the
CNRA dealing with foreign workers already admitted to the CNMI “have nothing whatever to do
with border security” but rather are concerned with internal labor matters; (2) “Congress’s
concerns over border and homeland security are gratuitous” because “[t]he CNMI has excellent
border security and poses no threat to the U.S.’s homeland security”; and (3) “no evidence exists
that the CNMI’s foreign workers . . . pose a threat to national security.” Id. at 7-8.
The Court rejects each of these three arguments. The first 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. Obviously, the
United States 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 United States secures its borders is by
requiring compliance with its immigration laws. But, as the United States recognizes, it would be
rather harsh to secure the CNMI’s borders by expelling these individuals immediately. Thus, the
34
CNRA takes a third-way approach to border security: it regulates not only those who may seek to
enter the CNMI in the future, but also those who already have entered the CNMI and would have
had to comply with federal immigration laws upon entry if only they had sought entry at a later
date. In short, the challenged provisions of the CNRA are not unrelated to border security simply
because they regulate matters beyond the border. Rather, they serve the United States’ interests
in border security in a way that takes into account the peculiar history of the CNMI and the
legacy of the CNMI’s local immigration regime.
The CNMI’s remaining arguments are unpersuasive for two reasons. First, they
assume that the United States has no security interests in the CNMI because it is remote from the
mainland of the United States. But even if is true that the CNMI’s remote location makes any
events there irrelevant to security on the mainland, the United States nevertheless has an interest
in protecting the 30,000 United States citizens residing in the CNMI.
Second, these arguments assume that the CNMI may eliminate the United States’
sovereign interests merely by serving those interests itself in the way the CNMI sees fit. That
view is flatly inconsistent with the Covenant. Just as the CNMI bargained for the provisions
reserving to it the right of local self-government, so too did the United States bargain for the
provisions granting it ultimate sovereignty, see Covenant § 101; delegating to it complete
responsibility for matters relating to foreign affairs and defense, see id. § 104; and permitting it to
enact legislation, subject to certain limits, to fulfill its responsibilities in those areas. See id.
§ 105. The United States therefore is entitled to exercise its covenantal rights and discharge its
covenantal obligations in any lawful manner, notwithstanding the CNMI’s belief that its local
policies serve federal interests as well as or better than federal policies.
35
Finally, the CNMI argues that in evaluating the federal interests at stake the Court
may not consider a 2007 Senate Report discussing the CNMI’s immigration and labor regimes.
See Northern Mariana Islands Covenant Implementation Act, S. Rep. No. 110-324 (April 10,
2008) (“Senate Report”).14 The CNMI argues that the Court may not consider the Senate Report
because (1) the assertions of historical fact in the Senate Report are unsworn hearsay, see CNMI
Supp. at 8; and (2) the criticisms of the CNMI’s immigration and labor regime recorded in the
Senate Report are based on “outdated and unsubstantiated information[.]” Id. at 9. The
defendants disagree, see, e.g., Defs. Supp. at 8 n.3, but the dispute is irrelevant. The Court has
already concluded, without reference to the Senate Report, that the CNRA serves legitimate
federal interests.
2. Degree of Intrusion
Under the Ninth Circuit’s balancing test, “[t]he other consideration in [the Court’s]
analysis is the degree of intrusion into the internal affairs of the CNMI.” United States ex rel.
Richards v. De Leon Guerrero, 4 F.3d at 755. According to the CNMI, the CNRA “mandates an
extensive federal intrusion into the CNMI’s local affairs,” CNMI Supp. at 4, principally by
“preempt[ing] local labor laws, inject[ing] the federal government into local labor permitting and
14
The defendants rely on the Senate Report to show that Congress enacted the
CNRA because it had several specific concerns about conditions in the CNMI. See, e.g., Defs.
Supp. at 8-10. According to the Senate Report, Congress was motivated in part by concerns
about (1) the large number of foreign workers in the CNMI; (2) the high rate of unemployment
among United States citizens in the CNMI; (3) the possibility that the CNMI’s immigration laws
were being exploited by international organized crime groups; (4) the increase in the number of
children born to foreign workers in the CNMI, and hence the number of United States citizens
outside the control of the United States; (5) the difficulty of reconciling the CNMI’s immigration
policies with the United States’ obligations under various international treaties relating to
immigration; and (6) evidence of mistreatment of foreign workers in the CNMI. See Senate
Report at *3.
36
regulation, depriv[ing] the Commonwealth of revenues needed for effective self-government, and
subject[ing] foreign workers lawfully admitted to the Commonwealth to deportation[.]” Mot.
Dismiss Opp. at 37.
In Richards, the Ninth Circuit observed that the CNMI wished “to characterize
[the] case as one involving unwarranted federal interference with the CNMI’s internal fiscal
affairs,” but that in reality the interests of the CNMI (in privacy and autonomy) and the interests
of the United States (in oversight of federal funds) were “inextricably link[ed]” because of the
CNMI’s reliance on federal financial assistance. United States ex rel. Richards v. De Leon
Guerrero, 4 F.3d at 755. In other words, the Ninth Circuit concluded that the matters intruded
upon were not purely “local” or “internal” in character, and thus that the federal action was not as
invasive as the CNMI alleged. See id. (“In view of the fact that a substantial portion of the CNMI
budget is comprised of direct and indirect financial assistance, we cannot say that a federal audit
impermissibly intrudes on the internal affairs of the CNMI.”).
That same reasoning applies here. The CNMI wishes to characterize the matters
affected by the CNRA as purely “local” or “internal,” and hence to portray the CNRA as
unjustifiably “intrusive.” In particular, it 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. See Amicus Supp. at 2
(acknowledging that the “issue of immigration is deeply and inextricably intertwined with
internal social and economic affairs” in the CNMI, but that the issue may also have “defense and
37
foreign policy implications”). Stated differently, the spheres of authority at issue here –
principally, the regulation of foreign worker labor – are not purely local in character because they
are shot through with important issues implicating the United States’ sovereignty. Thus, any
“intrusion” on those spheres of authority by the CNRA must be discounted accordingly. Cf.
Sablan v. Superior Court of the Commonwealth of the Northern Mariana Islands, No. 91-0002,
1991 WL 258344, at *4 (N.M.I. July 30, 1991) (concluding, “[i]n light of the Covenant’s grant to
the United States of authority over foreign affairs and defense in section 104, that section 103
reserved to the people of the Northern Mariana Islands authority over all internal matters in which
the inhabitants are substantially interested and which substantially affect them, so long as those
matters do not primarily involve foreign affairs or defense”) (emphasis added).
Thus, just as the Ninth Circuit in Richards concluded that a federal audit did not
impermissibly intrude on the internal affairs of the CNMI, so too does this Court conclude that
the CNRA does not impermissibly intrude on the internal affairs of the CNMI. Here, as in
Richards, the CNMI has challenged a particular federal action: the application of federal
immigration law (and special transitional rules) to the CNMI by way of the CNRA. Like the
federal audit at issue in Richards, the CNRA serves identifiable and legitimate federal interests.
Indeed, the federal interests at stake here are far weightier than those involved in Richards.
Moreover, the CNRA asserts federal authority over few, if any, matters which can be
characterized as purely “local”; rather, it incidentally affects some local labor matters to the
extent that they are inseparable from immigration matters, which are themselves inseparable from
important issues related to foreign affairs and security. 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
38
result. As the Ninth Circuit observed, Sections 103 and 105 “do[] not mean that Congress may
not pass any legislation ‘affecting’ the internal affairs of the CNMI.” United States ex rel.
Richards v. De Leon Guerrero, 4 F.3d at 755.
V. CONCLUSION
For the foregoing reasons, the Court concludes that the CNMI has standing to
bring this action and that this matter is ripe for adjudication. The Court also concludes that
Congress was authorized to enact the challenged provisions of the CNRA by the plain and
unambiguous terms of Section 503 of the Covenant. As an alternative, using the Ninth Circuit’s
balancing test in Richards, the Court concludes that the challenged provisions of the CNRA
comply with the mutual consent provision of Section 105 and the “self-government” guarantee of
Section 103. As a result, the Court has granted the defendants’ motion to dismiss Counts I and II
of the amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure
to state a claim. The Court has also denied as moot the CNMI’s first motion for a preliminary
injunction, the one relating to Counts I and II. An Order to that effect issued on November 23,
2009. A separate Opinion and Order relating to Count III will also issue this same day.
SO ORDERED.
/s/____________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: November 25, 2009
39