Commonwealth of the Northern Mariana v. U.S.
| Decision Date | 25 November 2009 |
| Docket Number | Civil Action No. 08-1572 (PLF). |
| Citation | 670 F.Supp.2d 65 |
| Parties | COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
David W. Debruin, Jonathan F. Olin, William M. Hohengarten, Jenner & Block LLP, Howard Penney Willens, Wilsie Company, LLC, Washington, DC, Sharmila Sohoni, Jenner & Block, LLP, New York, NY, for Plaintiff.
Robin Michelle Meriweather, Assistant United States Attorney, Theodore W. Atkinson, U.S. Department of Justice, Victor M. Lawrence, Office of Immigration Litigation, John E. Drury, Washington, DC, Robert J. O'Connor, O'Connor Berman Dotts & Banes, Saipan, MP, for Defendants.
This is a case about the United States' authority to legislate for the Commonwealth of the Northern Mariana Islands ("CNMI" or "the Commonwealth")—a group of Micronesian islands that enjoys a unique political relationship with the United States. The CNMI, joined by amicus curiae CNMI Descent for Self-Government and Indigenous Rights ("CNMI Descent"), argues that the recent enactment of legislation applying federal immigration laws to the CNMI violates the agreement governing the relationship between the CNMI and the United States. The CNMI therefore has asked the Court to preliminarily enjoin implementation of certain provisions of that legislation, scheduled to take effect on November 28, 2009, and to hold unlawful and permanently enjoin those same provisions.
By its amended complaint and an accompanying motion, filed on November 2, 2009, the CNMI has also asked the Court to preliminarily enjoin the regulations implementing the legislation that were issued by the Department of Homeland Security ("DHS") on October 27, 2009, and also are scheduled to take effect on November 27, 2009. Plaintiff asserts that the issuance of these regulations without notice and an opportunity to comment violates the requirements of the Administrative Procedure Act. The Court will address that contention in a separate Opinion and Order to be issued later today.
Defendants, the United States, the Department of Homeland Security, DHS Secretary Janet Napolitano, the Department of Labor, and Labor Secretary Hilda Solis (collectively, "the defendants"), contend that the CNMI lacks standing to pursue its claims; that the CNMI's claims are not ripe; that this suit is not authorized under CNMI law; and that the CNMI has failed to state a claim upon which relief can be granted because the legislation at issue is lawful. They therefore filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure—which the Court has treated as a motion to dismiss Counts I and II of the recently-filed amended complaint—and asked the Court to deny as moot the CNMI's first motion for a preliminary injunction. Because the Court agrees with the defendants that plaintiff has failed to state a claim, the Court issued an Order on November 23, 2009, 2009 WL 4546611, dismissing Counts I and II of the amended complaint and denying plaintiff's first motion for a preliminary injunction. This Opinion explains the reasoning underlying that Order.1
The Court's Opinion proceeds as follows. First, the Court provides some necessary background information about the CNMI; the agreement, known as the Covenant, governing relations between the CNMI and the United States; and the legislation at issue in this case. The Court next addresses the defendants' arguments in favor of dismissing this case for lack of subject matter jurisdiction. Contrary to the defendants' views, the Court concludes that the CNMI has standing to pursue its claims; that its claims are ripe for review; and that this suit is authorized under CNMI law. On the merits of the case, the Court first examines the terms of the Covenant and concludes that the Covenant unambiguously confers upon Congress the authority to enact the challenged legislation. It then explains that, even if the Covenant were not clear on this point, the CNRA would still be a valid exercise of congressional authority under the Covenant because it survives the balancing test articulated by the Ninth Circuit in United States ex rel. Richards v. Guerrero, 4 F.3d 749 (9th Cir.1993). In light of those conclusions, the Court finds that the CNMI has failed to state a claim for relief under the Covenant.
"The Northern Mariana Islands are a group of 14 islands in the western Pacific Ocean, lying just north of Guam, 5,500 miles from the U.S. mainland." COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS: MANAGING POTENTIAL ECONOMIC IMPACT OF APPLYING U.S. IMMIGRATION LAW REQUIRES COORDINATED FEDERAL DECISIONS AND ADDITIONAL DATA at 8 (2008) ("GAO Report").2 The CNMI "has a total land area of approximately 180 square miles," Amended Complaint ¶ 24 ("Compl."), and is populated by about 60,000 individuals. Id. Id.
The United States Court of Appeals for the Ninth Circuit has described the pertinent political history of the CNMI as follows:
For over three hundred years, the Northern Marianas and Guam were Spanish colonies sharing common languages, religion, and culture. The political ties between the Northern Marianas and Guam were eventually broken by the Spanish-American War of 1898, with Guam becoming a territory of the United States and the Northern Marianas coming under German, and then Japanese, rule.
After World War II, the United Nations established the Trust Territory of the Pacific Islands encompassing most of the islands of Micronesia, among them the Northern Mariana Islands, to be administered by the United States pursuant to a Trusteeship Agreement with the United Nations Security Council. See Trusteeship Agreement for the Former Japanese Mandated Islands, 61 Stat. 3301, T.I.A.S. No. 1665, art. 3. The Trusteeship Agreement imposed on the United States an obligation to "promote the development of the inhabitants of the trust territory toward self-government or independence." Id. art. 6, § 1.
In October 1969, the United States entered into negotiations with the Congress of Micronesia to determine Micronesia's future political status. Efforts to establish a unified Micronesian state, however, were undermined by a lack of consensus about the region's political future. . . . The Congress of Micronesia, for instance, was in favor of establishing a freely associated state, independent of the United States. The Northern Mariana Islands, on the other hand, sought a close and permanent association with the United States. Proximity and a shared history with Guam gave the people of the Northern Mariana Islands some familiarity with the United States, making it the least alien major power with whom negotiations might be initiated. Representatives of the Northern Marianas thus pursued separate political status talks with the United States over a period of years.
In 1972, the United States entered into formal negotiations with the Northern Marianas. . . .
Negotiations between the United States and the Northern Marianas culminated on February 15, 1975 with the signing of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. [See Pub. L. No. 94-241, 90 Stat. 263 (1976) (the "Covenant").] The Covenant was unanimously endorsed by the NMI legislature, approved by 78.8% of NMI plebiscite voters, and enacted into law by Congress. Joint Resolution of March 24, 1976, Pub.L. No. 94-241, 90 Stat 263, reprinted in 48 U.S.C. § 1681 note. The Covenant was implemented in three phases between March 24, 1976 and November 3, 1986. Covenant § 1003. On November 3, 1986, with the Covenant in full effect, the United States terminated the Trusteeship Agreement with respect to the CNMI by Presidential Proclamation. . . .
United States ex rel. Richards v. De Leon Guerrero, 4 F.3d at 751 (footnote omitted).
For several decades after the approval of the Covenant by the United States and the CNMI, federal immigration laws did not apply to the Commonwealth. Left to determine its own immigration policies, the CNMI, shortly after its constitutional government took office in 1978, decided to take an approach to immigration that would foster economic development. See Compl. ¶¶ 39-40. Having concluded that various factors would make it difficult to attract workers and investors from the United States, the CNMI implemented an immigration regime designed to attract large numbers of foreign workers (i.e., workers who are not United States citizens or lawful permanent residents) and foreign investors. The key feature of that regime was a program under which nonimmigrant foreign workers—most from China, Japan, Korea and the Philippines—were allowed to live and work in the CNMI subject to temporary, renewable work permits issued by the local CNMI government. See GAO Report at 17; see also Compl. ¶ 41. "To attract workers to the CNMI's remote location, [foreign workers] had permission to enter the Commonwealth for an indefinite period, and they could remain (or depart or re-enter) so long as they remained employed and did not violate federal or local laws." Compl. ¶ 41.
This program allowed the CNMI to increase the size of its work force substantially, see GAO Report at 13, which in turn allowed the CNMI to enjoy remarkable economic growth during the 1980s and 1990s. See Compl. ¶¶ 42-43. In particular, the CNMI's garment-manufacturing and tourism industries flourished during this period. Id. at ¶ 43.3 At the same time, however, the CNMI's economy...
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