BREAKING NEWS From Washington, DC

March 12, 2009


Today in the U.S. District Court of the District of Columbia Judge Paul Friedman heard arguments from the Fitial Administration and the United States Government. The hearing began with arguments by Attorney David W. DeBruin representing the Fitial Administration in support of its motion for a preliminary injunction. That was followed by arguments presented by U.S. Attorney Theodore W. Atkinson representing the United States et al arguing for its motion to dismiss and arguments against a preliminary injunction. Concluding the hearing were 20 minute rebuttals by each party.

No decision was made today. Judge Friedman will take the case under advisement before he renders a decision. (See this hearing motion) An attorney told me that this means that a ruling can usually be expected within two weeks. The judge will be ruling on the motion for dismissal from the United States and a motion for an injunction from the Fitial Administration.

The judge did not consider the filing that Attorney Jorgensen submitted yesterday. (Amicus Curea request)

Present in the court were the Jenner and Block team including the Governor's "special counsel" Howard Willens and "volunteer" Deanne Siemer, the U.S. Attorneys, Attorney Bruce Jorgensen, Washington, DC Attorney John Drury representing the CNMI Descent, the Washington DC KSPN reporter, and some onlookers.


The judge acknowledged the Amicus Curiea brief written by O'Connor attorney Jed Horey. The judge brought up the question of striking portions of PL110-229 to which the CNMI agreed, and the United States objected.

The lawsuit was filed in September 2008 by Governor Fitial even though there was no support from the CNMI legislature and they refused to fund the lawsuit. Rep. Tina Sablan has filed a lawsuit against Governor Fitial, Finance Secretary Eloy Inos and Acting Attorney General Greg Baka to force them to reveal contracts with law firms and funding sources for the lawsuit. That case will be heard in the Superior Court on Saipan March 26, 2009.

Update - Report from someone in the courtroom:
The judge did not tip his hand about which way he might go in deciding these issues. However, there were some interesting hints and exchanges.

He seemed very engaged, perhaps because the hearing was sandwiched between two criminal matters. He asked lots of questions of the plaintiffs, which is ususally an indication that the judge thinks your case is weak. He did not ask many of the defendants.

The plaintiffs seemed to base their case almost entirely on section 105 of the Covenant, and were unable to answer satisfactorily why the express grant of section 503 should be trumped by the more general statement of section 105.

At one point, the plaintiff's lawyer said the Congress could only constitutionally extend the INA to the CNMI if and when the CNMI had a "voting delegate" to the Congress, prompting the judge to ask, "Sir, do you live in the District?" referring to the District of Columbia, which has no voting delegate, either.

There was also some discussion of the acting AG's somewhat tepid letter authorizing Jenner & Block's to represent the CNMI. One of the defense lawyers told the judge Baka's letter "said everything BUT" the lawsuit was authorized by the CNMI Attorney General. The lawyer said the reason the AG did not file the lawsuit was "unknown" to the court, and said we should certainly find out the answer to that question.

To some extent, both sides were hampered by the lawyers' lack of local knowledge of Saipan. J&B repeated spin about workers not being able to leave the CNMI and get back in without a visa(apparently he never heard of advance parole), and the lawyer for the U.S. was unprepared to respond to arguments about the effectiveness of the CNMI's immigration system with recent examples of women being issued entry permits and then being forced to work as prostitutes upon arrival.

Towards the end, the judge did ask whether the CRNA was severable, and both sides admitted it was.

The CNMI's lawyers argued for prospective application of the new law, in other words, let the CNMI control entry and exit of workers who were here before the passage of the new law. The judge seemed unpersuaded there could ever be two immigration systems, one for workers who arrived before, and one for those who came after passage.

My prediction is the judge will deny the request for preliminary injunction and grant the motion for dismissal, on the following grounds:

1. Congress has plenary authority over the affairs of the territories; no legislation has even been struck down in contravention of this authority.

2. Covenant Section 503 expressly gives the Congress the authority to extend federal immigration law to the CNMI, as all parties acknowledge. The "sovereignty" arguments fail, since the indigenous people negotiated their sovereignty away in exchange for participation in the American representative democracy.

3. The speculative harm plaintiffs envision, even if reasonably likely to occur, is a necessary consequence of the extension of federal immigration law to the CNMI. The border states could also argue that federal immigration law impedes their access to cheap foreign labor and thereby harms their economies, but their economic interests are necessarily subordinate to the security of the nation's borders.

8 comments:

Anonymous said...

Willens and Schemer were there but was garment Dick Pierce and fake lobbyist Lynn Knight?

Anonymous said...

What portions of PL 110-229 could one 'strike'? Will Fitial ask the judge to 'strike' the part that allows for transitional workers? Then there will be no workers. Will he ask the judge to 'strike' the part that exempts the CNMI fron H-worker caps? That wouldn't be beneficial. Perhaps they would like to srike the part that allows for a joint Guam/CNMI Visa waiver program? I don't see how that would help. The only part they could strike which would give the CNMI any of their requested relief would be extension of the INA to the CNMI, which all parties agree the Congress had the authority to do.

Perhaps the judge doesn't understand the issues, even after having read the briefs.

Anonymous said...

Perhaps the judge was humoring them.

Saipan Writer said...

Thanks for the report.

I'm not surprised the judge did not consider Bruce J.'s very late filing. How can anyone who is breathing and living on Saipan say they only just learned about the Descent organization and it's efforts to file an amicus. True the Court just recently granted them status, but the time to challenge their participation or claim an equal right to participate with a different point of view was at least a month ago.

It's hard to tell what the judge might have been thinking with his question about striking portions of the bill when we didn't hear him ask. We'd need to hear the question, in context, to get the full flavor. And even then it might be hard to fathom the judge's meaning, especially by those not particularly familiar with the judge.

I hate waiting...

Interesting hearing said...

The judge did not tip his hand about which way he might go in deciding these issues. However, there were some interesting hints and exchanges.

He seemed very engaged, perhaps because the hearing was sandwiched between two criminal matters. He asked lots of questions of the plaintiffs, which is ususally an indication that the judge thinks your case is weak. He did not ask many of the defendants.

The plaintiffs seemed to base their case almost entirely on section 105 of the Covenant, and were unable to answer satisfactorily why the express grant of section 503 should be trumped by the more general statement of section 105.

At one point, the plaintiff's lawyer said the Congress could only constitutionally extend the INA to the CNMI if and when the CNMI had a "voting delegate" to the Congress, prompting the judge to ask, "Sir, do you live in the District?" referring to the District of Columbia, which has no voting delegate, either.

There was also some discussion of the acting AG's somewhat tepid letter authorizing Jenner & Block's to represent the CNMI. One of the defense lawyers told the judge Baka's letter "said everything BUT" the lawsuit was authorized by the CNMI Attorney General. The lawyer said the reason the AG did not file the lawsuit was "unknown" to the court, and said we should certainly find out the answer to that question.

To some extent, both sides were hampered by the lawyers' lack of local knowledge of Saipan. J&B repeated spin about workers not being able to leave the CNMI and get back in without a visa(apparently he never heard of advance parole), and the lawyer for the U.S. was unprepared to respond to arguments about the effectiveness of the CNMI's immigration system with recent examples of women being issued entry permits and then being forced to work as prostitutes upon arrival.

Towards the end, the judge did ask whether the CRNA was severable, and both sides admitted it was.

The CNMI's lawyers argued for prospective application of the new law, in other words, let the CNMI control entry and exit of workers who were here before the passage of the new law. The judge seemed unpersuaded there could ever be two immigration systems, one for workers who arrived before, and one for those who came after passage.

My prediction is the judge will deny the request for preliminary injunction and grant the motion for dismissal, on the following grounds:

1. Congress has plenary authority over the affairs of the territories; no legislation has even been struck down in contravention of this authority.

2. Covenant Section 503 expressly gives the Congress the authority to extend federal immigration law to the CNMI, as all parties acknowledge. The "sovereignty" arguments fail, since the indigenous people negotiated their sovereignty away in exchange for participation in the American representative democracy.

3. The speculative harm plaintiffs envision, even if reasonably likely to occur, is a necessary consequence of the extension of federal immigration law to the CNMI. The border states could also argue that federal immigration law impedes their access to cheap foreign labor and thereby harms their economies, but their economic interests are necessarily subordinate to the security of the nation's borders.

Saipan Writer said...

BTW, the link to the "hearing motion" doesn't work. :-)

wendy said...

Thanks Jane -I think I fixed it.

wendy said...

Interesting hearing

Thank you for the insightful comment!