cnmi preliminary injunction motion

8/14/2019 CNMI Preliminary Injunction Motion

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UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

____________________________________)

COMMONWEALTH OF THE ) NORTHERN MARIANA ISLANDS, ))

Plaintiff, )) 08-CV-01572 (PLF)

v. ))

UNITED STATES OF AMERICA, et al., ))

Defendants. ))

____________________________________)

MOTION FOR A PRELIMINARY INJUNCTION BY PLAINTIFF

THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

Pursuant to Federal Rule of Civil Procedure 65, plaintiff the Commonwealth of the

Northern Mariana Islands (Commonwealth) respectfully moves this Court for entry of a

preliminary injunction.

As set out more fully in the accompanying memorandum of points and authorities and

affidavits and declarations in support thereof, the Commonwealth is entitled to a preliminary

injunction to enjoin the implementation and enforcement of certain provisions of Pub. L. No.

110-229, Title VII, Subtitle A, 122 Stat. 754, 853 (2008). The Commonwealth will likely

succeed on the merits of its claim that portions of this law abrogate the unique Covenant to

Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United

States of America, Pub. L. No. 94-241, 90 Stat. 263 (1976). The Commonwealth will suffer

immediate and irreparable injury unless an injunction issues, and the defendants will suffer no

harm if preliminary injunctive relief is granted. In addition, issuance of an injunction will serve


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the public interest. Accordingly, the Commonwealth has met all the requirements for issuance of

a preliminary injunction.

Pursuant to Local Rules 7 and 65.1(c), this motion is accompanied by a memorandum of

points and authorities in support of the motion, declarations and affidavits in support thereof, and

a proposed order. In accordance with Local Rule 7(m), counsel for the Commonwealth

conferred in good faith with Mr. Theodore Atkinson, an attorney at the Office of Immigration

Litigation at the Department of Justice, who will be entering an appearance for all defendants in

this action and who authorized us to represent to the Court that the defendants oppose this

motion. The Commonwealth respectfully requests that the Court, pursuant to Local Rule

65.1(d), schedule a hearing on this motion for a preliminary injunction at the Courts earliest

convenience. The Commonwealth shall submit separately a motion for entry of a scheduling

order setting dates for briefing upon which the parties have agreed.

Howard P. Willens(D.C. Bar No. 32177)Special Legal Counsel to the GovernorOffice of the GovernorExecutive Office BuildingCapital HillSaipan, MP 96950(670) 664-2213

Respectfully submitted,

JENNER & BLOCK LLP

/s/ David W. DeBruinDavid W. DeBruin(D.C. Bar No. 337626)William M. Hohengarten(D.C. Bar No. 459605)JENNER & BLOCK LLP1099 New York Avenue, N.W.Washington, D.C. 20001(202) 639-6000

Sharmila Sohoni(D.C. Bar No. 502150)JENNER & BLOCK LLP919 Third Avenue37th FloorNew York, NY 10022(212) 891-1674

Dated: November 7, 2008


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UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

____________________________________)

COMMONWEALTH OF THE ) NORTHERN MARIANA ISLANDS, ))

Plaintiff, )) 08-CV-01572 (PLF)

v. ))

UNITED STATES OF AMERICA, et al., ))

Defendants. ))

____________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR A PRELIMINARY INJUNCTION BY PLAINTIFF

THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

Howard P. Willens(D.C. Bar No. 32177)Special Legal Counsel to the GovernorOffice of the GovernorExecutive Office BuildingCapital HillSaipan, MP 96950(670) 664-2213

David W. DeBruin(D.C. Bar No. 337626)William M. Hohengarten(D.C. Bar No. 459605)JENNER & BLOCK LLP1099 New York Avenue, N.W.Washington, D.C. 20001(202) 639-6000

Sharmila Sohoni(D.C. Bar No. 502150)JENNER & BLOCK LLP919 Third Avenue37th FloorNew York, NY 10022(212) 891-1674

November 7, 2008


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TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

STATEMENT OF FACTS ..............................................................................................................6

A. The History of the Commonwealth......................................................................................6

B. The Covenant .......................................................................................................................8

1. The Provisions of the Covenant. ....................................................................................8

2. The Adoption of the Covenant.....................................................................................11

C. Economic Development in the Commonwealth ................................................................14

D. Public Law 110-229...........................................................................................................19

E. The Economic and Other Effects of P.L. 110-229.............................................................23

STANDARD FOR INJUNCTIVE RELIEF ..................................................................................27

ARGUMENT.................................................................................................................................28

I. THE COMMONWEALTH HAS A SUBSTANTIAL LIKELIHOOD OFSUCCESS ON THE MERITS...........................................................................................28

A. The Covenant Creates Binding And Enforceable Limits On The Powers OfCongress To Legislate With Respect To The Commonwealth....................................29

B. The Challenged Provisions Of P.L. 110-229 Contravene The Covenant. ...................34

II. THE COMMONWEALTH WILL SUFFER IRREPARABLE INJURY IF THECOURT DOES NOT GRANT INJUNCTIVE RELIEF....................................................39

III. THE BALANCE OF HARMS WEIGHS IN FAVOR OF GRANTINGINJUNCTIVE RELIEF......................................................................................................43

IV. INJUNCTIVE RELIEF IS IN THE PUBLIC INTEREST................................................43

CONCLUSION..............................................................................................................................45


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TABLE OF AUTHORITIES*

Page(s)

CASES

Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979).......................................38

Bradshaw v. Veneman, 338 F. Supp. 2d 139 (D.D.C. 2004) .........................................................28

CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995)...............28

*Commonwealth of the Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th Cir. 1984).........30

CSX Transportation, Inc. v. Williams, 406 F.3d 667 (D.C. Cir. 2005)..........................................28

Doe v. District of Columbia, 701 F.2d 948 (D.C. Cir. 1983) ........................................................29

Feinerman v. Bernandi, 558 F. Supp. 2d 36 (D.D.C. 2008)..........................................................41

Hallandale Professional Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756(11th Cir. 1991)........................................................................................................................38

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) .........................................................................43

*Hillblom v. United States, 896 F.2d 426 (9th Cir. 1990).............................................................34

Medellin v. Texas, 128 S. Ct. 1346 (2008) ....................................................................................34

Monument Realty LLC v. Washington Metropolitan Area Transit Authority, 540 F. Supp.

2d 66 (D.D.C. 2008) ................................................................................................................43

National Treasury Employees Union v. United States Department of Treasury, 838 F.Supp. 631 (D.D.C. 1993) .........................................................................................................44

National Wildlife Federation v. Burford, 835 F.2d 305 (D.C. Cir. 1987) .....................................43

New York v. United States, 505 U.S. 144 (1992)...........................................................................40

Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82 (5th Cir. 1992).................................................44

ODonnell Construction Co. v. District of Columbia, 963 F.2d 420 (D.C. Cir. 1992) .................43

Plyler v. Doe, 457 U.S. 202 (1982)................................................................................................29

Sagana v. Tenorio, 384 F.3d 731 (9th Cir. 2004)..........................................................................30

South Carolina v. Regan, 465 U.S. 367 (1984) .............................................................................40

* Authorities upon which we chiefly rely are marked with an asterisk.


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United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749 (9th Cir. 1993).........................30

United States House of Representatives v. United States Department of Commerce, 11 F.Supp. 2d 76 (D.D.C. 1998) ......................................................................................................38

United States v. Suarez, 880 F.2d 626 (2d Cir. 1989) ...................................................................44

Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841(D.C. Cir. 1977) .................................................................................................................28, 43

STATUTES

48 U.S.C. 1801 note..............................................................................................................19, 21

*Covenant to Establish a Commonwealth of the Northern Mariana Islands in PoliticalUnion with the United States of America, H.R. J. Res. 549, Pub. L. No. 94-241, 90Stat. 263 (1976)...............................................................................................2, 8, 9, 10, 13, 14,

21, 30, 32, 33, 36

Public Law No. 110-229, Title VII, Subtitle A, 122 Stat. 754 (2008)..............1, 19, 20, 21, 22, 23,26, 29, 36, 37, 38

LEGISLATIVE MATERIAL

*S. Rep. No. 94-433 (1975)...................................................................6, 7, 8, 9, 10, 11, 12, 31, 33

121 Cong. Rec. H7111 (daily ed. July 21, 1975)...........................................................................12

121 Cong. Rec. H7113 (daily ed. July 21, 1975).....................................................................12, 30

122 Cong. Rec. S2212 (daily ed. February 24, 1976)....................................................................12

122 Cong. Rec. S2255 (daily ed. February 24, 1976)....................................................................12

121 Cong. Rec. S12952 (daily ed. July 17, 1975) .........................................................................13

*Section-by-Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana Islands (1975), reprinted in To Approve The Covenant to Establish a Commonwealth of the Northern Mariana Islands, And for Other

Purposes: Hearing before the Subcomm. on Territorial and Insular Affairs of the H.

Comm. on Interior and Insular Affairs, 94th Cong. (1975)...................................31, 32, 33, 34

Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61Stat. 3301, T.I.A.S. No. 1665.....................................................................................................7

OTHER AUTHORITIES

J. Ely, DEMOCRACY AND DISTRUST (1980)....................................................................................29


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Hurst Hannum & Richard B. Lillich, The Concept of Autonomy in International Law, 74Am. J. Intl Law 858 (1980) ....................................................................................................34

*Malcolm D. McPhee & Associates and Dick Conway, ECONOMIC IMPACT OF FEDERALLAWS ON THE COMMONWEALTH OF THENORTHERN MARIANA ISLANDS (Oct. 2008) ...5, 16, 17

18, 19, 24, 25,38, 40, 41, 42, 44

Proclamation No. 5564, 51 Fed. Reg. 40,399 (Nov. 3, 1986) .......................................................13

U.N. Charter art. 76..........................................................................................................................7

U.S. Gen. Accounting Office, Report No. GAO-07-436T, COMMONWEALTH OF THENORTHERN MARIANA ISLANDS: SERIOUS ECONOMIC, FISCAL AND ACCOUNTABILITYCHALLENGES (Feb. 2007).........................................................................................................18

U.S. Gen. Accounting Office, Report No. GAO-08-791, COMMONWEALTH OF THE

NORTHERN MARIANA ISLANDS: MANAGING POTENTIAL ECONOMIC IMPACT OFAPPLYING U.S.IMMIGRATION LAW REQUIRES COORDINATED FEDERAL DECISIONS ANDADDITIONAL DATA (Aug. 2008) ................................................................17, 18, 20, 36, 38, 41

WEBSTERSNEW COLLEGIATE DICTIONARY (9th ed. 1985)...........................................................34

Howard P. Willens & Deanne C. Siemer, NATIONAL SECURITY AND SELF-DETERMINATION:UNITED STATES POLICY IN MICRONESIA, 1961-1972 (2000) ........................8

Howard P. Willens & Deanne C. Siemer, AN HONORABLE ACCORD: THE COVENANTBETWEEN THENORTHERN MARIANA ISLANDS AND THE UNITED STATES (2001).......................8


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INTRODUCTION

Plaintiff the Commonwealth of the Northern Mariana Islands (Commonwealth) seeks a

preliminary injunction to enjoin the implementation and enforcement of certain provisions of

Public Law No. 110-229, Title VII, Subtitle A, 122 Stat. 754, 853 (2008) (P.L. 110-229 or

Act). Without preliminary injunctive relief, the Commonwealth will suffer devastating and

irreparable effects to its economy and the well-being of its people. The challenged provisions of

the Act violate rights of autonomy, self-governance, and economic development that lie at the

heart of a unique and judicially enforceable Covenant, pursuant to which the people of the

Commonwealth affiliated with the United States. Accordingly, the Commonwealth requests that

this Court enter a preliminary injunction enjoining the United States, the Department of

Homeland Security (DHS), Secretary Michael Chertoff, the Department of Labor, and

Secretary Elaine Chao (defendants) from implementing and enforcing Sections 702(a)

[subsections 6(a), (d)-(f)] and 702(g) of the Act.1

The Commonwealth of the Northern Mariana Islands is a small chain of islands located in

the far western Pacific. It is as far away from the west coast of the United States as Washington,

D.C. is from Cairo, Egypt. The Northern Marianas had a long history of colonial domination.

Long ruled by Spain, the islands passed to German and then Japanese control. During World

War II, the United States drove the Japanese out on its march through the Pacific toward Japan.

The Commonwealth has a unique relationship to the United States. Unlike the other

States and Territories, the Commonwealth was not annexed, colonized, conquered, or purchased

by America. After World War II, the islands became part of a trust territory under the authority

of the United Nations. However, unlike other parts of the trust territory that later became

1 Section 702(a) of P.L. 110-229 sets forth a new Section 6. For clarity and ease of reference,citations to the relevant subsections of the new Section 6 are provided in brackets. The newSection 6 will be codified at 48 U.S.C. 1806.


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independent, the people of the Northern Marianas chose to become affiliated with the United

States through the voluntary negotiation of a special, permanent agreement. The terms of that

special affiliation are set forth in a formal Covenant, which was approved both by the United

States and the people of the Northern Marianas. See Covenant to Establish a Commonwealth of

the Northern Mariana Islands in Political Union with the United States of America (Covenant),

H.R. J. Res. 549, Pub. L. No. 94-241, 90 Stat. 263 (1976), attached as Exhibit 1 to Declaration of

David W. DeBruin (DeBruin Decl.).

The Covenant was the product of intense negotiation and compromise by both sides. The

people of the Northern Marianas sought the potential benefits of affiliation with the United

States, but they also sought to preserve rights of autonomy, self-governance, and economic

development. The United States wanted unlimited access to a substantial amount of land on

several of the islands. Each partys goals are reflected in the Covenant. Although the total

surface area of the Northern Marianas is smaller than the District of Columbia, the United States

received valuable rights to land for military use. In exchange, the people of the Northern

Marianas obtained rights to U.S. citizenship, coupled with unique guarantees of autonomy, self-

governance, and economic development. The Covenant expressly provides that the United

States may not change or violate these guarantees of autonomy and self-governance, and the

provisions are specifically enforceable in federal courts. The Covenant also establishes that the

United States shall assist the Commonwealth to achieve a progressively higher standard of living

for its people and to develop the economic resources to meet the financial responsibilities of self-

governance. The Covenant also conferred on the Commonwealth the authority to create and

enforce its own immigration laws unless and until such time as Congress chose to apply the

federal immigration laws to the Commonwealth.


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In the years following the adoption of the Covenant, the Commonwealths economy grew

rapidly and the standard of living for its people improved significantly. Because its population is

small, the Commonwealth exercised its authority to encourage foreign workers, largely from

neighboring Asian countries, to work within the Commonwealth to help promote its economic

growth and development. Foreign workers presently constitute a full two-thirds of the

Commonwealths private-sector workforce. At its peak in 2005, most of those workers were

employed in two industries: the garment industry and the visitor industry. Although labor issues

occurred during the rapid expansion of the workforce, the Commonwealth has enacted a

comprehensive scheme for protecting and regulating foreign workers. Many of these workers

have lived in the Commonwealth for years on end, have had children in the Commonwealth who

are U.S. citizens, and are a key component of the population and social fabric of the islands.

Beginning in 2005, however, the Commonwealth began a period of severe economic

decline. Most significantly, changes in World Trade Organization and U.S. tariff rules made

Asian manufacturers able to export cheaply to U.S. markets. Unable to compete with Asias

extremely low wage rates, the Commonwealth has lost most of its garment factories, and all are

expected to close by next year. The visitor industry also has been affected by declines in

international air travel. As incomes have fallen, the Commonwealths tax revenues have sharply

decreased, and the Commonwealth has been forced to curtail important services and reduce

government employees.

Against this backdrop, Congress has imposed significant additional burdens upon the

Commonwealth. Although not at issue in this litigation, Congress first chose to extend the

federal minimum wage to the Commonwealth over time, raising local wage rates in a way that

renders it even more difficult for the Commonwealth to compete with its Asian neighbors. Then


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in 2008, in the Act at issue in this litigation, Congress chose to impose the federal immigration

laws on the Commonwealth, effectively eliminating the Commonwealths access to new foreign

workers. Although the imposition of the federal immigration laws on the Commonwealths

unique island economy is again very damaging to the Commonwealths prospects for economic

recovery, Congress has the right to impose those laws under the terms of the Covenant.

In P.L. 110-229, however, Congress has gone far beyond the mere imposition of federal

immigration laws on the Commonwealth, and the Act constitutes a wholesale federal assault

upon and takeover of the Commonwealths already fragile economy. Immediately upon the

Acts June 2009 effective date, federal law preempts all of the Commonwealths labor

protections and regulation of existing foreign workers, who constitute two-thirds of the private

sector workforce. In addition, the Act appropriates to the federal government revenues that have

been vital to the Commonwealth and to its ability to provide social services to its people. These

immediate effects pale, however, in comparison to the longer term consequences of P.L. 110-

229. The Act decrees that two years after its effective date, all existing foreign workers in the

Commonwealth shall be deemed illegal entrants and immigration violators unless they qualify

for a federal immigration visa or special temporary federal work permit. Moreover, the Act

further decrees that by 2014, all such temporary work permits shall be eliminated and the number

of foreign workers shall be reduced to zero, unless they qualify for a federal immigration visa.

Most of the foreign workers presently in the Commonwealth, however, do not qualify for a visa

under any existing federal immigration classification. Thus, P.L. 110-229 mandates the removal

of two-thirds of the Commonwealths existing private sector workforce, many of whom have

lived in the islands for years and have U.S. citizen children. Finally, during the transition

period while these workers may remain if they qualify for a declining number of temporary


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federal work permits, the Department of Homeland Security shall decide which employers, in

which industries, will be allowed these necessary workers. The Act is a virtual federal takeover

of the Commonwealths economy, until it is run into the ground through the eventual elimination

of all foreign workers.

It does not take an economist to recognize that the elimination of two-thirds of the private

sector workforce of a small island economy will devastate that economy and the people who are

dependent on it. In fact, a recent study commissioned by the Department of Interior has

concluded that under conservative assumptions of the combined effects of the federalization of

the Commonwealths economy, the Commonwealth stands to lose approximately 44 percent of

its real Gross Domestic Product, 60 percent of its jobs, and 45 percent of its real personal income

by 2015. See M. McPhee & Assoc. and D. Conway, ECONOMIC IMPACT OF FEDERAL LAWS ON

THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS (Oct. 2008), at 42, attached as

DeBruin Decl. 11, Ex. 9 (McPhee/Conway Report). Nor does it take a political scientist to

recognize that preempting local labor laws and giving authority to the Department of Homeland

Security to decide which businesses may employ a foreign worker already present in the

Commonwealth is the antithesis of local self-governance.

The Commonwealth does not file a lawsuit against the United States lightly, particularly

now given the broad federal powers authorized by the Act. But in P.L. 110-229, the United

States has abrogated the commitments it made in the Covenant, under which the people of the

Northern Marianas agreed to affiliate with the United States and to sacrifice valuable land and

sovereign rights. The Commonwealth is forced to petition the courts to enforce the provisions of

the Covenant. And because the Commonwealth has no voice or vote in the American political

process that produced this law, the courts have a special constitutional obligation to employ


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particular scrutiny to the claims advanced in this lawsuit. The effects of P.L. 110-229 will

devastate the Commonwealth. The Commonwealth can establish all of the requirements for an

injunction, and it is entitled to immediate relief.

STATEMENT OF FACTS

A. The History of the CommonwealthThe Marianas are a small and remote chain of 15 islands in the western Pacific Ocean.

The southernmost island in this chain is Guam, which is a United States Territory. The

remaining 14 islands form the Commonwealth of the Northern Mariana Islands. The

Commonwealth has a total land area of approximately 180 square miles. The bulk of the islands

population resides on the islands of Saipan (the largest island), Tinian (about two and one-half

miles to the southwest of Saipan), and Rota (about 73 miles southwest of Saipan).

The people of the Mariana Islands have suffered a long history of colonial oppression.

See S. Rep. No. 94-433, at 33 (1975) (hereafter 1975 Senate Report), excerpts attached as

DeBruin Decl. 4, Ex. 2. From the 16th century until the 19th century, the Mariana Islands were

a Spanish colony. Id. After the Spanish-American War in 1898, Spain sold Guam to the United

States and the remaining islands in the chain to Germany. Id. The Northern Marianas were

administered by Germany from 1898 until the beginning of World War I, when Japan assumed

control of the Northern Marianas. Id.; see also Declaration of Vicente Santos (Santos Decl.),

3-4, 6 (describing hardships of Japanese occupation).2

2 In support of its motion, the Commonwealth has submitted the following declarations andaffidavits: (1) Declaration of Benigno Fitial, Governor of the Commonwealth; (2) Declaration ofMichael Ada, Secretary of Commerce; (3) Declaration of Eloy Inos, Secretary of Finance;(4) Affidavit of Robert H. Jones, an investor; (5) Declaration of Jacinta Kaipat, Deputy Secretaryof Labor; (6) Declaration of Richard Pierce, Special Assistant for Trade Relations and EconomicAffairs in the Executive Office of the Governor; (7) Declaration of Vicente Santos, a negotiatorof the Covenant; (8) Declaration of Perry Tenorio, Managing Director of the Marianas Visitors


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The United States invaded the Northern Marianas in 1944 and eventually drove Japanese

forces from the islands, but also caused hardship to the local inhabitants. Santos Decl., 9. In

1947, after the conclusion of the war, the United States and the United Nations agreed that the

Northern Marianas and other Pacific islands would be placed into a regional trusteeship known

as the Trust Territory of the Pacific Islands (TTPI). The U.N. Charter explained that among

the basic objectives of the trusteeship system was the achievement of the progressive

development towards self-governance or independence of the inhabitants of the trust territory.

U.N. Charter Article 76. This provision was the heart of that article of the Charter. 1975

Senate Report, at 35.

Under an agreement with the United Nations, the United States assumed administrative

responsibility for the trusteeship of the TTPI, with special provisions acknowledging its

strategic importance to the United States. See Trusteeship Agreement for the Former Japanese

Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665, art. 2 (hereinafter

Trusteeship Agreement). Like Article 76 of the U.N. Charter, the Trusteeship Agreement

obligated the United States to promote the political, economic, social, and educational

advancement of the inhabitants of the Trust Territory. Trusteeship Agreement, art. 6. In

particular, the United States was required by the Trusteeship Agreement to promote the

development of the inhabitants of the trust territory toward self-government or independence

and give appropriate regard to the freely expressed wishes of TTPI residents. Trusteeship

Agreement, art. 6. Despite these clear obligations, the period of the U.S. trusteeship was marked

by poverty and economic stagnation. Santos Decl., 9; Declaration of Governor Benigno Fitial

(Fitial Decl.), 20; Declaration of Richard Pierce (Pierce Decl.), 7.

Authority; and (9) Declaration of David W. DeBruin, the Commonwealths counsel in thisaction.


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As the TTPI trustee, the United States had an obligation to ensure that the peoples of the

TTPI achieved a political status that would comply with the Trusteeship Agreement and be

approved by the United Nations. The residents of most of the islands of the TTPI ultimately

elected to become independent states, and they formed the various nations that exist today in the

region known as Micronesia. The residents of the Northern Marianas, however, chose a different

course. Instead of choosing independence, the people of the Northern Marianas sought a

political relationship with the United States. Santos Decl., 9, 14-16.3

B. The CovenantIn May 1972, the District Legislature in the Northern Marianas created a 15-person

Marianas Political Status Commission (Commission) to represent the approximately 15,000

citizens of the Northern Marianas in negotiations with the United States. 1975 Senate Report, at

56. The political status negotiations between the Commission and representatives of the United

States took over two years to complete. Santos Decl., 17. Other than the first round of

meetings, which were largely ceremonial, the status negotiations were purposeful, highly

substantive, and given over to negotiation of specific issues rather than debate of broad

principles. 1975 Senate Report, at 57. The fruit of these negotiations was the Covenant, a

mutually binding and enforceable document that sets forth the terms of political union between

the Northern Marianas and the United States.4

1. The Provisions of the Covenant.The Covenant contains ten articles addressing core aspects of the political relationship

between the Northern Marianas and the United States. Covenant, 102 (providing that the

3 See generally Howard P. Willens & Deanne C. Siemer, NATIONAL SECURITY AND SELF-DETERMINATION: UNITED STATES POLICY IN MICRONESIA,1961-1972 (2000).

4 See generally Howard P. Willens & Deanne C. Siemer, AN HONORABLE ACCORD: THECOVENANT BETWEEN THENORTHERN MARIANA ISLANDS AND THE UNITED STATES (2001).


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relations between the Northern Mariana Islands and the United States will be governed by

the Covenant). Among other items, the Covenant addresses the Commonwealths right of self-

government and right to control its internal affairs; the terms on which federal laws can apply in

the Commonwealth; the rights of Commonwealth residents under the United States Constitution;

and the conditions of citizenship and nationality of the Commonwealths people.

The Covenant describes certain of its provisions as fundamental. In Section 105, the

Covenant authorizes the United States to enact certain laws for the Northern Marianas, but it then

limits this authorization by providing that [i]n 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 . . . may be modified only with the consent of

the Government of the United States and the Government of the Northern Mariana Islands.

Covenant, 105. As the 1975 Senate report explained:

The idea underlying this [mutual consent] provision is that the political status ofthe Northern Mariana Islands has been agreed upon by a negotiating process andCongress undertakes not to modify its fundamental provisions unilaterally. Thisobligation does not derogate from United States sovereignty. To the contrary, it isan incident thereof.

1975 Senate Report at 67. One of these fundamental provisions is Section 103 of the

Covenant, which provides: The people of the Northern Mariana Islands 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.

The fundamental provisions of the Covenant, and the mutual-consent clause that

protects them, ensure that the Commonwealth shall not be subject to the United States plenary

control. The parties further buttressed these provisions by making the Covenant enforceable in

the federal courts. As described in the 1975 Senate Report, during the third session of talks

[i]t was . . . agreed that certain specifically designated provisions of the new


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agreement designed to assure maximum self-government for the futureCommonwealth of the Marianas would not be amended or repealed except bymutual consent of the parties. To this extent the exercise of United States plenaryauthority in the Marianas would be voluntarily limited. The Status Agreementwould be drafted so as to reflect clearly the intention of the United States and the

Marianas Political Status Commission that this undertaking be enforceable in thefederal courts.

1975 Senate Report, at 58-59. Carrying out this aim, Section 903 of the Covenant states: It is

intended that . . . cases or controversies [arising under the Covenant] will be justiciable in

[federal] courts and that the undertaking by the Government of the United States and by the

Government of the Northern Mariana Islands provided for in this Covenant will be enforceable

in such courts.

The concept of local self-government contemplated by the Covenant includes not only

political but economic elements. Section 701 of the Covenant provides that [t]he Government

of 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. This provision states the obvious fact that a

community without sufficient economic resources cannot fulfill the responsibilities of local self-

government. The Covenant recognizes that nurturing the Commonwealths economic growth is

an integral aspect of the right of local self-government guaranteed to the people of the Northern

Marianas by Section 103.

The right of self-government and the economic support guaranteed to the Commonwealth

were integral parts of the negotiations leading to the Covenant. As described by Vicente Santos,

one of the negotiators for the Commonwealth, the United States wanted unlimited access to a

substantial amount of land on Tinian, Saipan, and the northernmost islands. Santos Decl., 17.

Indeed, in light of its impending retreat from Vietnam, the most compelling reason why the


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United States agreed to the negotiations was its need for a military base in the western Pacific.

Id. But as Mr. Santos explains, the United States could not get what it wanted from the

negotiations unless it gave the Northern Marianas people what they wanted in the future

relationship. Id. The people of the Northern Marianas were giving up a lot: land in the island

community as demanded by the United States was scarce and important; and we were going to

surrender our right to become a sovereign nation. . . . After more than three centuries of colonial

domination, the emotional appeal of being independent was very powerful. Id., 18. In

exchange for these concessions, the Northern Marianas sought four primary objectives: first, to

be U.S. citizens; second, we wanted maximum self-government over local affairs; third, we

wanted a commitment from the United States that it would support our economic development;

and fourth, we wanted to be sure that we could enforce our rights under the Covenant in the

U.S. courts. Id., 19. This is precisely the agreement that was struck at arms length between

the negotiators for the Commonwealth and the United States.

2. The Adoption of the Covenant.Once the final draft of the Covenant was complete, it was signed by representatives of the

United States and 13 of the 15 members of the Commission. It was then unanimously endorsed

by the existing Legislature of the Northern Marianas and approved by 78.8% of votes cast in a

United Nations-monitored plebiscite in the Northern Marianas on June 17, 1975. 1975 Senate

Report, at 64.

Upon the Covenants approval by the people of the Northern Marianas, it was left to

Congress to approve the Covenant. Congress voted on the Covenant with the benefit of thorough

briefing and extended discussions regarding the Covenants meaning and significance.

Throughout the negotiation process, various members of Congress and congressional committees

had been kept informed of the status of the negotiations, and indeed Congresss advice was


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sought on several issues by both sides. See 1975 Senate Report, at 62 (quoting one

Congressmans description of congressional consultations as occurring ad infinitum if not ad

nauseam); Statement of Representative Burton, 121 Cong. Rec. H7111, H7112 (daily ed. July

21, 1975), attached as DeBruin Decl. 5, Ex. 3 (noting that the Covenant has been the subject

of communications, almost without count, between the concerned executive, congressional, and

Marianas representatives . . . to an extent far greater than any other legislative matter in which I

have been involved.); Statement of Representative Clausen, 121 Cong. Rec. H7113, 7114 (daily

ed. July 21, 1975), attached as DeBruin Decl. 6, Ex. 4 (noting 10 formal congressional hearings

and many more informal briefings); Statement of Senator Johnston, 122 Cong. Rec. S2212,

S2214 (daily ed. February 24, 1976), attached as DeBruin Decl. 7, Ex. 5 (There are no hidden

traps in this covenant. Every provision is reflected in established policy.); Statement of Senator

Williams, 122 Cong. Rec. S2255 (daily ed. February 24, 1976), attached as DeBruin Decl 8,

Ex. 6 ([W]e have all had the opportunity to carefully examine the proposed Covenant.).

In particular, both houses of Congress were openly informed that the Covenant would

place enforceable limitations on United States power in the Commonwealth. In the House,

Representative Phillip Burton introduced the text of the joint resolution approving the Covenant

with a statement that specifically flagged as a provision of particular interest the article of the

Covenant that provides that specified sections of the covenant may be modified only with the

mutual consent of the Government of the United States and the government of the Northern

Mariana Islands. Statement of Representative Burton, 121 Cong. Rec. H7112, attached as

DeBruin Decl. 5, Ex. 3. Representative Burton explained: This provision is deemed to be in

the best interest of both parties. United States interests are protected in that the application of the

provision is specifically limited and defined. Conversely, the provision is in accord with the true


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meaning of the right of self-determination, which is accorded to the Marianas people under the

trusteeship agreement. Id.

In the Senate, the relevant articles of the U.N. Charter and the Trusteeship Agreement

and the first three articles of the Covenant were introduced by Senator Hiram Fong. Senator

Fong rebutted the suggestion that Commonwealth would be a new colony for America by

noting that under the terms of the Covenant the people will be self-governing, with their own

constitution, and they will enjoy the rights and privileges of American citizenship. These rights

and privileges cannot be withdrawn or modified without their express consent. Statement of

Senator Fong, 121 Cong. Rec. S12953 (daily ed. July 17, 1975), attached as DeBruin Decl. 9,

Ex. 7. As this statement evidences, the Covenants limits on American power were not only a

necessary part of the bargain between the United States and the Commonwealth, but were in fact

perceived as a positive recommendation by a Congress that was both reluctant to engage in

projects of colonization and, indeed, forbidden from doing so by the terms of the Trusteeship

Agreement.

Congress passed a joint resolution enacting the Covenant into law in 1976. See

Covenant. The President signed the joint resolution on March 24, 1976. In accord with the

Covenant, the Trusteeship Agreement was terminated as to the Northern Marianas on November

3, 1986. Covenant, 1002; Proclamation No. 5564, 51 Fed. Reg. 40,399 (Nov. 3, 1986). The

Proclamation noted that the Trusteeship Council of the United Nations had determined that the

United States had satisfactorily discharged its obligations under the Trusteeship Agreement.

Proclamation No. 5564, 51 Fed. Reg. 40,399 (Nov. 3, 1986). The Northern Mariana Islands

thereafter attained the status of a self-governing Commonwealth in political union with the


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United States of America, and virtually all residents of the Northern Mariana Islands became

citizens of the United States.

C. Economic Development in the CommonwealthDuring the period of the U.S. trusteeship of the islands, the Northern Marianas endured

great economic hardship. As Governor Benigno Fitial describes, residents of the Northern

Marianas suffered second-class status during this time, as the United States exercised power

over very small local matters without regard to local sentiment, paid its officials at a rate more

than twice what they paid us, and were extremely stingy in allocating federal funds to meet our

needs. Fitial Decl., 19. Restrictive U.S. policies that prevented off-island investors from

bringing money into the islands exacerbated the areas economic woes. Santos Decl., 9 (the

United States prevented even U.S. citizens from visiting, or investing, in the Northern

Marianas); Pierce Decl., 7. Shortly after establishment of its constitutional government in

1978, the Commonwealth began to remedy this problem in order to achieve the standard of

living enjoyed by other American citizens, as contemplated by the Covenant. Covenant, 701;

Santos Decl., 21.

The first step taken by the Commonwealth was to enact new laws regarding foreign

investment and immigration. Pierce Decl., 8-9. Under the Covenant, federal immigration and

naturalization laws did not apply to the Commonwealth except to the limited extent of setting

forth the rules regarding the nationality and status of Commonwealth residents. Covenant,

301, 302, 503, 506. The Commonwealth thus had the prerogative to authorize an influx of

foreign investors and labor to the islands.

In the early 1980s, the Commonwealth initiated its foreign worker program, which was

designed to attract the labor necessary to support new enterprises and economic growth. The

history and evolution of this foreign worker program is described in the declaration of the


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Deputy Secretary of Labor. See Declaration of Jacinta Kaipat (Kaipat Decl.), 35-50. Under

the program, employers are permitted to hire employees from outside the United States to work

in the Commonwealth. Kaipat Decl., 42. As long as they remain employed and do not violate

federal or local laws, foreign workers who come to the Commonwealth under this program may

remain for an indefinite period. Id. Most foreign workers admitted under the program came

from neighboring Asian countries such as the Philippines, China, Korea, and Japan. Id., 10(i).

From its inception, the Commonwealths foreign worker program provided a variety of

protections and benefits to its workers, including mandated employer-paid medical care, bonding

of wages, a low-cost adjudication system, and employer-paid expenses for a return ticket. Id.,

24, 42. The Commonwealth has strengthened these protections over the years in response to

legitimate concerns of workers rights groups and others regarding the abuse of workers by some

employers. Id., 46-50.

In tandem with its efforts to attract labor, the Commonwealth also began systematic

efforts to encourage foreign investment in the visitor industry and to bring tourists to the islands

in substantial numbers. Pierce Decl., 9. Like foreign workers, investors also had permission to

enter the Commonwealth for an indefinite period, and they could remain (or depart and re-enter)

so long as they maintained their investment capital in the Commonwealth and did not violate

federal or local laws. See Declaration of Michael Ada (Ada Decl.), 6.

As explained by Perry Tenorio, the Managing Director of the Marianas Visitors

Authority, the Commonwealths policies on foreign capital and labor achieved the desired effect:

phenomenal growth in the tourism sector. Declaration of Perry Tenorio (Tenorio Decl.), 8.

Foreign workers helped build resorts in the Commonwealth and supplied 70 to 80% of the

workforce needed to operate them. Tenorio Decl., 27. Visitor arrivals increased from 110,755


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in fiscal year 1980, to 417,146 in 1990, and to 726,690 in 1997. Tenorio Decl., 9 Ex. 1.

The garment manufacturing sector of the Commonwealths economy also flourished

during this period. See Pierce Decl., 10-15. Because goods manufactured in the

Commonwealth are not subject to U.S. import duties and because the federal minimum wage did

not apply to the Commonwealth, manufacturers could produce garments in the Commonwealth

for the U.S. market at a cost competitive with foreign locations. Id., 13. By 2000, as many as

34 garment manufacturers had operations in the Commonwealth. Id., 11.

Following a peak in 1997, however, the Commonwealths tourism industry was adversely

affected by a succession of events. An economic crisis engulfed Japan and Korea in 1997;

terrorists attacked the United States in September 2001; the SARS epidemic occurred in 2003;

Japan Airlines ended direct service to Saipan in 2005; and increased fuel costs raised prices for

travel beginning in 2006. Tenorio Decl., 9-10. In fiscal year 2008, only 396,497 tourists

visited the Commonwealth, a total last seen in the 1980s. Id., 9 Ex. 1.

Even more significantly, the Commonwealths garment industry also began to decline as

changes in World Trade Organization and U.S. tariff rules eliminated most of the advantages

previously available to garment factories located in the Commonwealth. Pierce Decl., 29-33.

The number of clothing manufacturers in the Commonwealth has declined from 34 firms in 2000

to only three firms in 2008. Id., 32-35. By 2010, it is expected that no garment manufacturers

will operate in the Commonwealth. Id., 35. The dramatic rise and fall of the Commonwealths

economy is detailed in a comprehensive study recently commissioned by the Department of the

Interior. See McPhee/Conway Report, Ch. 2.

The decline of the economy has accelerated emigration from the Commonwealth to other

parts of the United States. Pierce Decl., 42. Wages in the Commonwealth are far lower than


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those on the mainland. In 2004, the Commonwealths per capita income of $6,178 was a

fraction of the U.S. per capita income of $23,848. See U.S. Gen. Accounting Office, Report No.

GAO-08-791, COMMONWEALTH OF THENORTHERN MARIANA ISLANDS: MANAGING POTENTIAL

ECONOMIC IMPACT OF APPLYING U.S. IMMIGRATION LAW REQUIRES COORDINATED FEDERAL

DECISIONS AND ADDITIONAL DATA, at 12-13 (Aug. 4, 2008) (2008 GAO Report). Persons

born in the Commonwealth are U.S. citizens, and they may leave the Commonwealth to seek

more lucrative opportunities in Guam, Hawaii, or the mainland. As one Commonwealth

businessman describes, life is just becoming too difficult on Saipan. . . . Continental Airlines

can verify that they are selling more one-way air fares out of the Commonwealth than ever

before. Affidavit of Robert H. Jones (Jones Aff.), 23. These same economic conditions

also make it difficult for Commonwealth employers to recruit new workers from other parts of

the United States. As a result, the population of the Commonwealth has dropped from roughly

70,000 reported in the 2000 census, to about 66,000 in 2006, to an estimated 60,000 in 2007.

Ada Decl., 18.

As concluded in the McPhee/Conway Report, the Commonwealth is now in the throes

of a serious economic depression, which shows no sign of abating or recovering even in the

distant future. McPhee/Conway Report, at vii; seealso Declaration of Eloy Inos (Inos Decl.),

16. According to the U.S. Census Bureau, median household income in the Commonwealth

declined from $22,898 in 2000 to $17,138 in 2004. From 2005 through 2009, the

Commonwealths local tax revenues are projected to have declined by about 27%. Inos Decl.,

7. This decline in the Commonwealths revenues has seriously impaired our ability to provide

needed public services for our citizens. Inos Decl., 14. Current budgets for public health,

police protection, the public school system, the correctional facility, and youth protective


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services are all severely limited. Id. The Commonwealth Health Center does not have the funds

to keep a radiologist on staff, and employee retirement benefits are going unpaid. Id. The

Commonwealth ended the 2008 fiscal year with a fund balance deficit of $229 million. Id., 11.

The Commonwealths current economic plight is serious, and it may be many years at

best before it regains the prosperity it enjoyed in the 1990s and first half of this decade. See

McPhee/Conway Report, at 31-37; see generally U.S. Gen. Accounting Office, Report No.

GAO-07-436T, COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS: SERIOUS ECONOMIC,

FISCAL AND ACCOUNTABILITY CHALLENGES (Feb. 2007). One thing is certain, however: to

embark on the path to economic recovery, the Commonwealth requires a steady pool of labor

adequate to supply the needs of existing and new enterprises. As reported in the 2008 GAO

Report: The quantity of labor, or number of workers, is a key factor in determining the quantity

of goods and services that an economy can produce. For the U.S. economy, under certain

assumptions, a 10 percent reduction in the number of all workers might be expected to cause a 7

percent decline in production, measured as gross domestic product. 2008 GAO Report, at 36

n.59 (citing Andrew B. Abel and Ben S. Bernanke, MACROECONOMICS, 5th ed. (2005)). With

the help of an adequate workforce, the Commonwealth may be able to attract more visitors from

China, which could lead to the resurgence of its tourism sector. See Tenorio Decl., 16; 2008

GAO Report, Appendix III, at 74-75 (the [Commonwealth] has experienced an influx of

Chinese tourists in recent years, with the potential to re-energize the industry). The

Commonwealth has made painstaking efforts to attract new investment to the islands and the

construction of major new resorts. Fitial Decl., 8, 14-15; 2008 GAO Report, Appendix III, at

76 (noting that in May 2008, a groundbreaking ceremony was held for the largest construction

project on the island since 1997).


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The Commonwealths current workforce contains approximately 30,000 individuals.

Inos Decl., 20. The private-sector workforce numbers roughly 27,000. Kaipat Decl., 10.

As of September 30, 2008, approximately 16,750 members of that private-sector workforce are

foreign workers. Kaipat Decl., 10.

D. Public Law 110-229In recent years, as the Commonwealth has struggled to cope with declines in its visitor

and apparel industries, the Commonwealth also has had to contend with an increasing

federalization of its economy. See McPhee/Conway Report, at 37-38. First, Congress

imposed the federal minimum wage on the Commonwealth, through a series of graduated

minimum wage increases. Although such action is expressly within Congresss power under the

Covenant and is not at issue in this litigation, the dramatic increase in wage rates during a time of

economic contraction makes it even more difficult for the Commonwealth to complete with its

other Pacific island and Asian neighbors. Id.

Then in April 2008, Congress enacted the Consolidated Natural Resources Act of 2008.

The President signed the Act on May 8, 2008, and it became Public Law 110-229. Subtitle A of

Title VII of P.L. 110-229 (entitled Immigration, Security, and Labor) forms the subject of this

lawsuit.5

At the outset, certain provisions of P.L. 110-229 are not challenged in this suit.

Fundamentally, P.L. 110-229 imposes the federal immigration laws on the Commonwealth.

Section 702(a) [subsection 6(a)(1)]. Certain aspects of the imposition of those laws have

immediate and significant effects upon the Commonwealth. As soon as the Act was signed, the

number of foreign workers in the Commonwealth was frozen and could not increase in

5 P.L. 110-229 purports to amend the Covenant; the Covenant as amended is codified at 48U.S.C. 1801 note and 1806.


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absolute terms. Section 702(i). In addition, beginning with the effective date of the Act in

June 2009, no new foreign worker may be admitted to the Commonwealth unless the worker

qualifies for afederal immigration visa. Section 702(a) [subsections 6(a)-(d)]. Because most of

the jobs to be filled in the Commonwealth require non-temporary, non-professional workers, it is

generally impossible to fill those positions with foreign workers under existing federal visa

classifications. Kaipat Decl., 55; 2008 GAO Report, Appendix V, at 80.6 Thus, the imposition

of the federal immigration laws upon the Commonwealth makes it virtually impossible for the

Commonwealths economy ever to expand. The Commonwealth has a very small citizen

population, and the growth of its economy has long been associated with an expansion of the

labor force beyond the capacity of that small population. However, because the imposition of

the federal immigration laws (like the minimum wage laws) is expressly within Congresss

power under the Covenant, this new federal control over the entry of foreign persons into the

Commonwealth is not at issue in this litigation.

In multiple respects, however, the Immigration, Security, and Labor aspects of P.L.

110-229 go far beyond the imposition of the federal immigration laws on the Commonwealth,

and constitute a broad assault upon the Commonwealths existing economy and fundamental

right to self-government, as guaranteed by the Covenant. It is these provisions that are

challenged in this lawsuit. The challenged provisions fall into three categories.

First, Section 702(a) [subsection 6(f)] of P.L. 110-229 provides for the immediate and

complete preemption of all Commonwealth laws and programs relating to the admission or

removal of foreign workers. This blanket preemption of local laws takes effect on June 1, 2009,

and the federal government has made clear that it applies to all Commonwealth labor laws and

6 Because of the cost of traveling to the Commonwealth, it is not feasible to fill these positionswith temporary workers who might qualify for federal visas on that basis.


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programs relating to foreign workers. See Kaipat Decl., 51 (the Act mandates a dismantling

of the entire Commonwealth labor system as it pertains to foreign workers). Beyond

preempting many of the Commonwealths most significant labor laws, this provision will

deprive the Commonwealth of the fees it currently derives from the permitting of foreign

workers. In addition, Section 702(g) of P.L. 110-229 amends the provision of the Covenant that

provided that various Commonwealth-related taxes paid to the federal government would be

returned to the Commonwealth by the United States. See Covenant, 703(b); 48 U.S.C. 1801

note (Covenant as amended by P.L. 110-229). This provision deprives the Commonwealth of

revenues it received under the Covenant and increases the economic burden of P.L. 110-229

upon the Commonwealth.

Second, and much more significantly, P.L. 110-229 requires the eventual elimination of

all foreign workers from the Commonwealth, unless they qualify for a federal immigration visa.

As stated above, Section 702(a) [subsections 6(a), (d)-(f)] of P.L. 110-229 provides for the full

application of the federal immigration laws to the Commonwealth after a transition period

scheduled to begin on June 1, 2009. The Act provides that during the transition period the

Secretary of Homeland Security shall establish and administer a special temporary permit system

for Commonwealth employers, which will allow businesses to employ foreign workers who do

not hold standard visas under existing federal immigration law and who are not otherwise

authorized by the United States to work in the Commonwealth. Section 702(a) [subsections 6(a),

(d)]. Two years after this transition period begins, all foreign workers presently residing in and

legally admitted to the Commonwealth and their families are subject to deportation by federal

immigration authorities as illegal entrants and immigration violators, unless the foreign worker

has obtained afederal immigration visa or is employed pursuant to one of the special temporary


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permits issued by Homeland Security. Section 702(a) [subsection 6(e)] (citing 8 U.S.C.

1182(a)(6)(A)).7 P.L. 110-229 provides that the transition period will end on December 31,

2014.8 Significantly, the Act requires the Secretary of Homeland Security to reduce the number

of special temporary permits for foreign workers so that by the end of the transition period the

number of such permits is zero. Section 702(a) [subsection 6(d)]. Homeland Security also may

not issue a permit that authorizes work beyond the end of the transition period. Id. Thus, the

P.L. 110-229 effectively requires that, by the end of the transition period, approximately two-

thirds of the Commonwealths existing private-sector workforce must be removed from the

islands.

Third, as if this forced decimation of its local economy were not enough, the

Commonwealth is not even allowed to preside over its demise. Beginning June 1, 2009, it is the

United States Department of Homeland Security that shall decide which local businesses in the

Commonwealth are entitled to employ an existing foreign worker (from a pool that is required to

decline to zero by 2014), and which local businesses will be left with no one to hire. Under the

provisions of P.L. 110-229, the Secretary of Homeland Security has plenary authority to

determine which employers shall receive permits, how many permits the employer shall receive,

and on what terms and conditions the permits shall issue. Section 702(a) [subsections 6(a), (d)].

To say the least, this is the antithesis of local self-government.

7 In addition, all aliens (i.e., both foreign workers and other classifications of aliens lawfullyadmitted to the Commonwealth) may be subject to deportation even sooner. Under the Act, anyalien is subject to deportation as soon as the period of the aliens admission under the laws of theCommonwealth expires. See P.L. 110-229, 702(a) [subsection 6(e)(1)(A)].

8 Although this date may be extended by the Secretary of Labor for additional five-year periods,the Act provides no criteria under which such an extension is required, and the Secretary neednot even decide whether to extend until 180 days prior to the scheduled end of the transitionperiod. Section 702(a) [subsections 6(d)(5)(A)-(B)].


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P.L. 110-229 resulted from a flawed political process. Notwithstanding vigorous protests

by the Commonwealth, Congress rushed to enact P.L. 110-229 relying on outdated information

regarding the Commonwealths current labor regime and without waiting for the GAOs

assessment of the Acts devastating economic effects. Fitial Decl., 11-13. Congress was able

to ignore the Commonwealths concerns because the Commonwealth has no voting

representation in Congress, and its officials face considerable difficulties persuading the federal

government to credit the Commonwealths concerns regarding proposed federal laws. Fitial

Decl., 10-12. As one Commonwealth official describes: We face enormous roadblocks

when we try to supply correct information to counter the out-of-date, incorrect, misconstrued,

and sometimes deliberately distorted information presented against us. Pierce Decl., 57.

Despite the commitments made in the Covenant, the residents of the Commonwealth have been

treated like second-class citizens still subject to a colonial power. Id.

E. The Economic and Other Effects of P.L. 110-229It does not take detailed affidavits or expert reports to establish the devastating effects

upon the Commonwealth that will be occasioned by P.L. 110-229. Even accepting that the

federal government has the power to decree that no new foreign worker may enter the

Commonwealth unless the worker qualifies for a federal immigration visa, P.L. 110-229 operates

extensively on a pool of some 16,750 workers lawfully admitted to the Commonwealth under

local immigration laws that were explicitly authorized by the Covenant, and that the federal

government chose not to displace for over two decades. These workers constitute a mainstay of

the Commonwealths existing private-sector workforce. Many have lived in the Commonwealth

for years and have children who are U.S. citizens. Yet the Act subjects all of these workers to

treatment as illegal entrants and immigration violators, Section 702(a) [subsection 6(e)(1)(A)]

(citing 8 U.S.C. 1182(a)(6)(A)), and it requires that all of them be removed from the


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Commonwealth by 2014 unless they qualify for unattainable federal immigration visas. As a

result of the Act, two-thirds of the Commonwealths existing private-sector workforce will be

eliminated, to say nothing of any prospects for economic growth. Moreover, during this

transition period to annihilation, both workers and their employers become subject to the

plenary power of the United States Department of Homeland Security.

Although these effects are obvious and required by the Act itself, there is ample

additional support for the injury that will be sustained by the Commonwealth and its people

under this new federal law. Economists McPhee and Conway have documented that the

combined effects of the recent federalization of the Commonwealths economy will cause the

Commonwealth to lose approximately 44 percent of its real Gross Domestic Product, 60 percent

of its jobs, and 45 percent of its real personal income by 2015. See McPhee/Conway Report, at

42. Moreover, considering only the instant legislation, the authors conclude that [i]n applying

US immigration law, Congress drastically increased the anticipated adverse economic impactby

providing that all foreign workers in the [Commonwealth] may be subject to removal by the

United States Department of Homeland Security as illegal entrants and immigration violators.

Id., at vii (emphasis added). Their prognosis is dire: The [Commonwealth] could revert in

large measure to the subsistence economy it was before the Covenant. Furthermore, after its

stunning economic success, the [Commonwealth] is now on a path to become one of the lowest

standard of living and most federal government dependent territories in the US system. Id., at

viii. The authors explain that the effects of this legislation are particularly inappropriate given

the physical characteristics of the Commonwealth: The availability of foreign labor in the

development of small island economies is critical. This analysis indicates that the greater the

proportion of foreign labor, the greater will be an island economys per capita income or GDP (a


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principal measure of economic well-being). A multiple regression analysis of the data from 33

island states has demonstrated that the loss of the [Commonwealths] foreign labor force will

likely cost the [Commonwealth] a decline of approximately 50 percent in per capita GDP in the

years ahead. Id., at xi (emphasis added).

Nor are the impacts of this legislation simply a matter of abstract economic theory and

projections. The Commonwealth already has observed that existing businesses are affected by

the impending loss of foreign workers. Jones Aff., 20-24; Pierce Decl., 41. In addition, new

businesses have been deterred from opening locations and investing resources in the

Commonwealth. Jones Aff., 20-21. As Governor Fitial explains, investors are showing

increased resistance and unease at the prospect of investing in the Commonwealth: The

business uncertainty introduced by Public Law 110-229 is a great hurdle for potential investors,

especially those from the Asian countries. . . . [T]hey do not like the uncertainty with respect to

the workforce that will be available to enable them to construct new facilities and then to staff

them when operational. Fitial Decl., 15. As a consequence, the Commonwealth ha[s] been

unable to close a single new foreign investment in the Commonwealth since the passage of the

Act. Id.

In addition, the preemption of local labor laws removes vital protections for foreign

workers. The Commonwealth currently has in place a set of extensive labor regulations that

govern foreign workers in the Commonwealth and their employers. Kaipat Decl., 49-50.

This program provides for an individual face-to-face orientation for each arriving worker in his

or her own language; standard contract forms specifying terms and conditions of employment for

new foreign workers; full medical coverage; bonding of employers of foreign workers to ensure

full payment of wages and overtime; mediation and early dispute resolution for foreign workers;


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a low-cost and speedy administrative adjudication of disputes; and fully-funded repatriation back

to the home country when employment ends. Kaipat Decl., 50. But as the Commonwealths

program is tied to the permits given to foreign workers and employers, it relat[es] to the

admission or removal of foreign workers and is therefore preempted by P.L. 110-229. Kaipat

Decl., 51.

The Acts preemption provision has a second injurious effect: it directly deprives the

Commonwealth of a large sum of revenues. The Commonwealth generates more than $7 million

in fees annually from businesses, employers and workers from fees charged for admission and

processing of foreign workers

a sizable figure to a small government. Inos Decl., 18. This

revenue is used to provide critical public services to Commonwealth residents and to effectuate

the [Commonwealths] authority to exercise self-government over local matters. Inos Decl.,

18. By preempting the Commonwealths laws relating to admission and removal of foreign

workers, P.L. 110-229 halts this vital flow of revenue. Id.; see also P.L. 110-229, 702(g)

(amending provision of Covenant providing that immigration-related fees paid to the federal

government would be returned to the Commonwealth).

Finally, even if there were no alternative but to reduce and eventually eliminate the

16,750 foreign workers presently employed in the Commonwealth, the serious effects of such a

massive disruption on the local economy would be best managed by the Commonwealth. As

described by Assistant Secretary of Labor Kaipat, the Commonwealth has enacted laws and

taken care to ensure that its Governor and Secretary of Labor have the flexibility necessary to

accommodate quickly the needs of the Commonwealths fragile economy. Kaipat Decl., 26;

see also Kaipat Decl., 24-28; 30-31 (describing Governors power to promulgate emergency

regulations on ten days notice, and the Department of Labors broad power to pass rules that


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implement the intent of the Commonwealths labor laws). The Commonwealth has actively

employed this regulatory flexibility. See Kaipat Decl., 27 Appendix A. For example, when

garment factory closures caused displacement of foreign workers, the Commonwealth barred

new unskilled workers from entering the Commonwealth until resident foreign workers

displaced by closing garment factories could be absorbed into the labor market. Kaipat Decl.,

28(g). In response to requests by certain employers and workers groups, the Commonwealth

has permitted foreign workers to take part-time employment rather than leave the

Commonwealth. Kaipat Decl., 28(h). And in response to requests by businesses who wished

to retain valued employees, the Commonwealth permitted businesses to subcontract workers to

other employers who had the need for labor. Kaipat Decl., 28(i). On these occasions and

others, the Commonwealth has quickly addressed and responded to the local needs of businesses,

employers, and workers. The Commonwealths economic well-being depends upon this ability

to manage the labor supply in a manner responsive to local concerns.

In sum, P.L. 110-229 imposes numerous, extreme consequences on the Commonwealth

and its people, and its effects are being felt immediately. The law leaves the people of the

Commonwealth unable to manage and control their own economy, and it will leave them almost

entirely dependent on assistance from the federal government in far-distant Washington. Yet as

Governor Fitial describes, the people of the Northern Marianas never wanted to become an

economic ghetto dependent on periodic handouts of federal dollars for our survival and well-

being, and they entered the Covenant precisely to prevent that result. Fitial Decl., 20.

STANDARD FOR INJUNCTIVE RELIEF

A district court ruling on a motion for a preliminary injunction applies a four-factor test,

asking whether: (1) the party seeking the injunction has a substantial likelihood of success on

the merits; (2) the party seeking the injunction will be irreparably injured if relief is withheld;


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(3) an injunction will not substantially harm other parties; and (4) an injunction would further the

public interest. CSX Transp., Inc. v. Williams, 406 F.3d 667, 670 (D.C. Cir. 2005). The test is a

flexible one. [T]he factors must be viewed as a continuum, with more of one factor

compensating for less of another. Bradshaw v. Veneman, 338 F. Supp. 2d 139, 141 (D.D.C.

2004). If one factor is particularly strong, it may outweigh the weakness of the arguments for the

other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir.

1995). As a result, injunctive relief may be granted with either a high probability of success

and some injury, or vice versa. Bradshaw, 338 F. Supp. 2d at 141 (quoting Cuomo v. United

States Nuclear Regulatory Commn, 772 F.2d 972, 974 (D.C. Cir. 1995)). Injunctive relief may

also be granted when a serious legal question is presented, when little if any harm will befall

other interested persons or the public and when denial of the order would inflict irreparable

injury on the movant. Washington Metro. Area Transit Commn v. Holiday Tours, Inc., 559

F.2d 841, 844 (D.C. Cir. 1977).

In this case, all four factors weigh heavily in favor of the Commonwealth.

ARGUMENT

I. THE COMMONWEALTH HAS A SUBSTANTIAL LIKELIHOOD OF SUCCESSON THE MERITS.

When the people of the Northern Marianas negotiated an affiliation with the United

States, they did so with the guarantee that they would retain a fundamental quantum of political

autonomy that would exempt them from plenary control by the United States. Newly liberated

from centuries of colonial domination by Spain and Japan, the people of the Northern Marianas

were determined not to surrender to the unrestricted hegemony of yet another world power.

Santos Decl., 18. As a result, the Covenant is carefully formulated to impose binding,

judicially enforceable limits on Congress authority over the Marianas, and in particular to


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prevent Congress from abrogating the fundamental provisions of the Covenant. Because

P.L. 110-229 ignores these limits on congressional power, the Commonwealth will prevail on the

merits of its claim that the Act is unlawful.

As a threshold matter, the unique situation of the Commonwealth requires the Court to

scrutinize P.L. 110-229 under a more rigorous standard than rational-basis review. The

Commonwealth is a distant, discrete, and insular community, as far away from the west coast of

America as Washington, D.C. is from Cairo, Egypt. Its residents, mainly Chamorros and

Carolinians, are unknown and powerless in the larger American political community. Pierce

Decl., 56; Fitial Decl., 11-13. At the time of P.L. 110-229s enactment, the Commonwealth

lacked voting or even non-voting representation in Congress, and its officials could not persuade

Congress to consider the debilitating economic effects of P.L. 110-229 prior to the laws

passage. Such circumstances demand heightened scrutiny. Plyler v. Doe, 457 U.S. 202, 218

n.14 (1982) (certain groups . . . have historically been relegated to such a position of political

powerlessness as to command extraordinary protection from the majoritarian political process);

Doe v. District of Columbia, 701 F.2d 948, 960 n.14 (D.C. Cir. 1983) (separate statement of

Edwards, J.) (noting the special responsibility of federal courts to protect discrete and

insular groups that are little able to defend their interests through participation in the political

process and vulnerable to oppression by an unsympathetic majority) (quoting United States v.

Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938)); J. Ely, DEMOCRACY AND DISTRUST 135-36,

145-70 (1980). Even if heightened scrutiny is not applied, however, the Commonwealth still is

likely to prevail in its challenge to the Act.

A. The Covenant Creates Binding And Enforceable Limits On The Powers OfCongress To Legislate With Respect To The Commonwealth.

Section 105 of the Covenant authorizes the United States to enact certain laws for the


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Northern Marianas, but it expressly provides that the United States agrees to limit the exercise

of that authority so that the fundamental provisions of this Covenant . . . may be modified only

with the consent of the Government of the United States and the Government of the Northern

Mariana Islands. Covenant, 105. One of these fundamental provisions is Section 103 of

the Covenant, which provides that [t]he people of the Northern Mariana Islands 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.

The mutual-consent provision of Section 105, and the right to self-government it shields,

mean that the Commonwealth occupies a truly unique relationship with the United States.

Commonwealth of the Northern Mariana Islands v. Atalig, 723 F.2d 682, 687 (9th Cir. 1984);

see Statement of Rep. Clausen, 121 Cong. Rec. H7114, attached as DeBruin Decl. 6, Ex. 4

(stating that with the Covenant [f]oremost, a new system of local government, unique in the

annals of U.S. history, will be enacted). Specifically, these provisions of the Covenant establish

that the Commonwealth, unlike a territory, is not subject to plenary congressional authority

under the Territorial Clause. Even if the Territorial Clause provides the constitutional basis for

Congress legislative authority in the Commonwealth, it is solely by the Covenant that we

measure the limits of Congress legislative power. United States ex rel. Richards v. De Leon

Guerrero, 4 F.3d 749, 754 (9th Cir. 1993); see alsoSagana v. Tenorio, 384 F.3d 731, 734 (9th

Cir. 2004) (The United States authority over the CNMI is not, however, absolute. . . . [T]he

authority of the United States towards the CNMI arises solely under the Covenant.) (quoting

Hillblom v. United States, 896 F.2d 426, 429 (9th Cir. 1990)).

The Covenants legislative history reflects Congresss express recognition that the

Covenant imposes limits on federal power over the Commonwealth. The Senate Report


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recognizes that [t]he only limitations on the plenary power of the Congress to legislate with

respect to the Northern Mariana Islands under [the Territories Clause], are the self-imposed ones

contained in the second sentence of Section 105. 1975 Senate Report, at 66. This statement

acknowledges that the mutual-consent provision contained in the second sentence of Section 105

constitutes a limitation[] on the plenary power of the Congress to legislate with respect to the

Northern Mariana Islands. The report continues:

The idea underlying this [mutual consent] provision is that the political status ofthe Northern Mariana Islands has been agreed upon by a negotiating process andCongress undertakes not to modify its fundamental provisions unilaterally. Thisobligation does not derogate from United States sovereignty. To the contrary, it is

an incident thereof.

1975 Senate Report, at 67.

The section-by-section analysis prepared by the Marianas Political Status Commission

similarly recognizes the unique relationship created by Covenant between the Commonwealth

and the United States. See Section-by-Section Analysis of the Covenant to Establish a

Commonwealth of the Northern Mariana Islands (1975), reprinted inTo Approve The Covenant

to Establish a Commonwealth of the Northern Mariana Islands, And for Other Purposes:

Hearing before the Subcomm. on Territorial and Insular Affairs of the H. Comm. on Interior and

Insular Affairs, 94th Cong. (1975) (hereinafter Commission Section-by-Section Analysis),

excerpts attached as DeBruin Decl. 10, Ex. 8.9 The Commissions explanation of Section 103

makes clear that the Covenant did not convert the Commonwealth into a U.S. territory: A

territory is merely part of the United States Government and is subject to the direction of the

9 The Commissions section-by-section analysis was central to the evaluation of the Covenant bythe people of the Northern Marianas. The Commissions section-by-section analysis was wascarried in the covenant newsletter during the period of political education prior to the plebiscite[on the Covenant], and it was translated into Chamorro and Carolinian so that all of our citizenscould understand exactly the terms of the proposed commonwealth relationship. CommissionSection-by-Section Analysis, at 626.


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Congress and Executive Branch of the government. The Northern Mariana Islands government

will be an independent government, like that of the states. Commission Section-by-Section

Analysis, at 629. Regarding the mutual-consent provision and Section 103, the Commission

explained:

This guarantee of local self-government is a guarantee which has not beenformally made to any territory or even to the Commonwealth of Puerto Rico. It isa limitation on the plenary authority of the United States with respect to the Northern Marianas, and provides an enforceable assurance that the basicrelationship between the Northern Marianas and the United States will begoverned by the Covenant unless the people of the Northern Marianas agree to achange.

Commission Section-by-Section Analysis, at 631; see also Santos Decl., 20 (noting that the

Commission was determined that Congress would have less power over the Commonwealth than

over other insular areas). The Commission emphasized that the mutual consent provision

prevent[s] not only an attempt by one side to change the language of the Covenant, but also

prevent[s] any action or law which would be contrary to a fundamental provision of the

Covenant. Thus, any attempt by the United States or the Northern Marianas to circumvent the

fundamental provisions of the Covenant would be void and of no effect. Commission Section-

by-Section Analysis, at 632 (emphasis added).

The parties intended the Covenant to create hard boundaries on the power of the United

States to regulate the Commonwealth. To reflect this understanding, the parties included two

provisions in the Covenant designed to ensure that the United States and the Commonwealth

would both abide by the Covenant going forward. First, the Covenant explicitly states that it will

govern relations between the Northern Mariana Islands and the United States, and that the

Covenant, together with those provisions of the Constitution, treaties and laws of the United

States applicable to the Northern Mariana Islands, will be the supreme law of the Northern

Mariana Islands. Covenant 102. As the Senate Report notes, this section assures that the


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Covenant is the fundamental document which must be followed by both sides. 1975 Senate

Report, at 66 (emphasis added). The Commission reiterated this view, noting that Section 102

is a fundamental part of a close and enduring political relationship between the United States and

the Northern Marianas, and that United States laws will not override the Covenant.

Commission Section-by-Section Analysis, at 629.

Second, the Covenant provides that cases or controversies arising under this Covenant

. . . will be justiciable in such [federal] courts and . . . the undertaking by the Government of the

United States and by the Government of the Northern Mariana Islands provided for in this

Covenant will be enforceable in such courts. Covenant, 903. The idea for this section

originated in the third session of talks between the Commission and congressional

representatives, during which

It was . . . agreed that certain specifically designated provisions of the newagreement designed to assure maximum self-government for the futureCommonwealth of the Marianas would not be amended or repealed except bymutual consent of the parties. To this extent the exercise of United States plenaryauthority in the Marianas would be voluntarily limited. The Status Agreementwould be drafted so as to reflect clearly the intention of the United States and theMarianas Political Status Commission that this undertaking be enforceable in thefederal courts.

1975 Senate Report, at 58-59. Accordingly, the parties incorporated Section 903 into the

Covenant as a basic protection which guarantees to both sides that the enforcement powers of

the federal courts can be brought to bear with respect to promises made in the Covenant.

Commission Section-by-Section Analysis, at 662; 1975 Senate Report, at 90 (describing Section

903 as express[ing] the intent of the United States and the Northern Mariana Islands . . . that the

undertakings or promises by the Government of the United States and by the Government of the

Northern Mariana Islands provided for in the Covenant will be enforceable). The judicial

enforceability of the Covenant means that courts may invalidate congressional enactments that

cnmi preliminary injunction motion

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