CNMI Preliminary Injunction Motion

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
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 Court’s 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.
Respectfully submitted,
JENNER & BLOCK LLP
/s/ David W. DeBruin

Howard P. Willens David W. DeBruin
(D.C. Bar No. 32177) (D.C. Bar No. 337626)
Special Legal Counsel to the Governor William M. Hohengarten
Office of the Governor (D.C. Bar No. 459605)
Executive Office Building JENNER & BLOCK LLP
Capital Hill 1099 New York Avenue, N.W.
Saipan, MP 96950 Washington, D.C. 20001
(670) 664-2213 (202) 639-6000
Sharmila Sohoni
(D.C. Bar No. 502150)
JENNER & BLOCK LLP
919 Third Avenue
37th Floor
New York, NY 10022
(212) 891-1674
Dated: November 7, 2008
2
UNITED STATES DISTRICT COURT FOR THE
____________________________________
)
)
Plaintiff, )
) 08-CV-01572 (PLF)
v. )
)
)
Defendants. )
)
____________________________________)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR A PRELIMINARY INJUNCTION BY PLAINTIFF
THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

(D.C. Bar No. 32177) (D.C. Bar No. 337626)
(670) 664-2213 (202) 639-6000
Sharmila Sohoni
(D.C. Bar No. 502150)
JENNER & BLOCK LLP
919 Third Avenue
37th Floor
New York, NY 10022
(212) 891-1674
November 7, 2008
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 OF

SUCCESS ON THE MERITS. ..........................................................................................28
A. The Covenant Creates Binding And Enforceable Limits On The Powers Of

Congress 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 THE

COURT DOES NOT GRANT INJUNCTIVE RELIEF....................................................39
III. THE BALANCE OF HARMS WEIGHS IN FAVOR OF GRANTING

INJUNCTIVE RELIEF......................................................................................................43
IV. INJUNCTIVE RELIEF IS IN THE PUBLIC INTEREST. ...............................................43
CONCLUSION..............................................................................................................................45
i
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
O’Donnell 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.
ii
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 Political

Union with the United States of America, H.R. J. Res. 549, Pub. L. No. 94-241, 90
Stat. 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, 61
Stat. 3301, T.I.A.S. No. 1665.....................................................................................................7
OTHER AUTHORITIES
J. Ely, DEMOCRACY AND DISTRUST (1980)....................................................................................29
iii
Hurst Hannum & Richard B. Lillich, The Concept of Autonomy in International Law, 74
Am. J. Int’l Law 858 (1980) ....................................................................................................34
*Malcolm D. McPhee & Associates and Dick Conway, ECONOMIC IMPACT OF FEDERAL
LAWS ON THE COMMONWEALTH OF THE NORTHERN 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 THE

NORTHERN MARIANA ISLANDS: SERIOUS ECONOMIC, FISCAL AND ACCOUNTABILITY
CHALLENGES (Feb. 2007).........................................................................................................18
U.S. Gen. Accounting Office, Report No. GAO-08-791, COMMONWEALTH OF THE

NORTHERN MARIANA ISLANDS: MANAGING POTENTIAL ECONOMIC IMPACT OF
APPLYING U.S. IMMIGRATION LAW REQUIRES COORDINATED FEDERAL DECISIONS AND
ADDITIONAL DATA (Aug. 2008) ................................................................17, 18, 20, 36, 38, 41
WEBSTER’S NEW 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 COVENANT

BETWEEN THE NORTHERN MARIANA ISLANDS AND THE UNITED STATES (2001).......................8
iv
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 new
Section 6 will be codified at 48 U.S.C. § 1806.
1
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 party’s 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.
2
In the years following the adoption of the Covenant, the Commonwealth’s 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
Commonwealth’s 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 Asia’s
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 Commonwealth’s 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
3
in 2008, in the Act at issue in this litigation, Congress chose to impose the federal immigration
laws on the Commonwealth, effectively eliminating the Commonwealth’s access to new foreign
workers. Although the imposition of the federal immigration laws on the Commonwealth’s
unique island economy is again very damaging to the Commonwealth’s 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 Commonwealth’s already fragile economy. Immediately upon the
Act’s June 2009 effective date, federal law preempts all of the Commonwealth’s 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 Commonwealth’s 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
4
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 Commonwealth’s 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 Commonwealth’s 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
5
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 Commonwealth
The 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 and
affidavits: (1) Declaration of Benigno Fitial, Governor of the Commonwealth; (2) Declaration of
Michael 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 Secretary
of Labor; (6) Declaration of Richard Pierce, Special Assistant for Trade Relations and Economic
Affairs in the Executive Office of the Governor; (7) Declaration of Vicente Santos, a negotiator
of the Covenant; (8) Declaration of Perry Tenorio, Managing Director of the Marianas Visitors
6
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 Commonwealth’s counsel in this
action.
7
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 Covenant
In 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: THE
COVENANT BETWEEN THE NORTHERN MARIANA ISLANDS AND THE UNITED STATES (2001).
8
“relations between the Northern Mariana Islands and the United States” will be “governed” by
the Covenant). Among other items, the Covenant addresses the Commonwealth’s 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 Commonwealth’s 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 of
the Northern Mariana Islands has been agreed upon by a negotiating process and
Congress undertakes not to modify its fundamental provisions unilaterally. This
obligation does not derogate from United States sovereignty. To the contrary, it is
an 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
9
agreement designed to assure maximum self-government for the future
Commonwealth of the Marianas would not be amended or repealed except by
mutual consent of the parties. To this extent the exercise of United States plenary
authority in the Marianas would be voluntarily limited. The Status Agreement
would 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 the
federal 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 Commonwealth’s 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
10
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 Covenant’s 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 Covenant’s 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 Congress’s advice was
11
sought on several issues by both sides. See 1975 Senate Report, at 62 (quoting one
Congressman’s 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
12
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 Covenant’s 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
13
United States of America, and virtually all residents of the Northern Mariana Islands became
citizens of the United States.
C. Economic Development in the Commonwealth
During 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 area’s 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
14
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 Commonwealth’s 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 Commonwealth’s 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
15
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 Commonwealth’s 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 Commonwealth’s 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 Commonwealth’s 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 Commonwealth’s
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
16
those on the mainland. In 2004, the Commonwealth’s 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 THE NORTHERN 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; see also 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
Commonwealth’s local tax revenues are projected to have declined by about 27%. Inos Decl., ¶
7. This decline in the Commonwealth’s 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
17
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 Commonwealth’s 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).
18
The Commonwealth’s 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 110-229
In 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 Congress’s 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 48
U.S.C. §§ 1801 note and 1806.
19
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 a federal 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
Commonwealth’s 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 Congress’s
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 Commonwealth’s 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 positions
with temporary workers who might qualify for federal visas on that basis.
20
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 Commonwealth’s 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 a federal immigration visa or is employed pursuant to one of the special temporary
21
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 Commonwealth’s 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 lawfully
admitted to the Commonwealth) may be subject to deportation even sooner. Under the Act, any
alien is subject to deportation as soon as the period of the alien’s admission under the laws of the
Commonwealth 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 need
not even decide whether to extend until 180 days prior to the scheduled end of the transition
period. Section 702(a) [subsections 6(d)(5)(A)-(B)].
22
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 Commonwealth’s current labor regime and without waiting for the GAO’s
assessment of the Act’s devastating economic effects. Fitial Decl., ¶¶ 11-13. Congress was able
to ignore the Commonwealth’s concerns because the Commonwealth has no voting
representation in Congress, and its officials face considerable difficulties persuading the federal
government to credit the Commonwealth’s 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. 110-229
It 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 Commonwealth’s 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
23
Commonwealth by 2014 unless they qualify for unattainable federal immigration visas. As a
result of the Act, two-thirds of the Commonwealth’s 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 Commonwealth’s 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 impact by
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 economy’s per capita income or GDP (a
24
principal measure of economic well-being). A multiple regression analysis of the data from 33
island states has demonstrated that the loss of the [Commonwealth’s] 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;
25
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 Commonwealth’s
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 Act’s 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 [Commonwealth’s] authority to exercise self-government over local matters.” Inos Decl.,
¶ 18. By preempting the Commonwealth’s 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 Commonwealth’s fragile economy.” Kaipat Decl., ¶ 26;
see also Kaipat Decl., ¶¶ 24-28; 30-31 (describing Governor’s power to promulgate emergency
regulations on ten days’ notice, and the Department of Labor’s broad power to pass rules that
26
“implement the intent” of the Commonwealth’s 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 Commonwealth’s 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;
27
(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 Comm’n, 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 Comm’n 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 SUCCESS

ON 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
28
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. 110-229’s 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 law’s
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 Of

Congress To Legislate With Respect To The Commonwealth.
Section 105 of the Covenant authorizes the United States to enact certain laws for the
29
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 also Sagana 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 Covenant’s legislative history reflects Congress’s express recognition that the
Covenant imposes limits on federal power over the Commonwealth. The Senate Report
30
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 of
the Northern Mariana Islands has been agreed upon by a negotiating process and
Congress undertakes not to modify its fundamental provisions unilaterally. This
obligation 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 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) (hereinafter “Commission Section-by-Section Analysis”),
excerpts attached as DeBruin Decl. ¶ 10, Ex. 8.9 The Commission’s 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 Commission’s section-by-section analysis was central to the evaluation of the Covenant by
the people of the Northern Marianas. The Commission’s section-by-section analysis was “was
carried 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 citizens
could understand exactly the terms of the proposed commonwealth relationship.” Commission
Section-by-Section Analysis, at 626.
31
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 been

formally made to any territory or even to the Commonwealth of Puerto Rico. It is
a limitation on the plenary authority of the United States with respect to the
Northern Marianas, and provides an enforceable assurance that the basic
relationship between the Northern Marianas and the United States will be
governed by the Covenant unless the people of the Northern Marianas agree to a
change.
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
32
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 new

agreement designed to assure maximum self-government for the future
Commonwealth of the Marianas would not be amended or repealed except by
mutual consent of the parties. To this extent the exercise of United States plenary
authority in the Marianas would be voluntarily limited. The Status Agreement
would 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 the
federal 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
33
threaten to abrogate the fundamental provisions of the Covenant protected by Section 105,
especially when such enactments threaten to deprive the Commonwealth of its right of self-
government guaranteed by Section 103. Hillblom, 896 F.2d at 432 n.5 (“under appropriate
circumstances a proper legal challenge [under the Covenant] could . . . be asserted in the courts
to specific Congressional legislation”) (citing A&E Pacific v. Saipan Stevedore, 888 F.2d 68 (9th
Cir. 1989)).
B. The Challenged Provisions Of P.L. 110-229 Contravene The Covenant.
The rights to local self-government and to control internal affairs guaranteed by Section
103 of the Covenant must be construed to mean what they say. Medellin v. Texas, 128 S. Ct.
1346, 1357 (2008) (“The interpretation of a treaty, like the interpretation of a statute, begins with
its text.”). The plain meaning of the operative terms of Section 103 is clear. “Self-government”
means “a government under the control and direction of inhabitants of a political unit rather than
an outside authority.” WEBSTER’S NEW COLLEGIATE DICTIONARY 1066 (9th ed. 1985).10 And
“local” means “of, relating to, or characteristic of a particular place.” Id., at 700. Accordingly,
the right of local self-government means the power to “determine local policies without undue
interference notwithstanding the ultimate political authority of the central government.”
Commission Section-by-Section Analysis, at 628. At a minimum, therefore, the Covenant vests
in the Commonwealth the authority to regulate internal labor and economic affairs to secure the
10 See also Hurst Hannum & Richard B. Lillich, The Concept of Autonomy in International Law,
74 Am. J. Int’l Law 858 (1980) (noting that among the minimum attributes of self-government is
that “a locally elected body” possess power to legislate with respect to matters such as “health,
education, social services, local taxation, internal trade and commerce, environmental
protection, zoning, and local governmental structure and organization” and that its decisions
within those realms should “not be subject to veto by the principal/sovereign government unless
those decisions exceed its competence or are otherwise inconsistent with basic constitutional
precepts.” Id. at 886-87 (emphasis added).
34
prosperity and well-being of local residents free from federal interference. Several provisions of
P.L. 110-229 are flatly incompatible with this core principle.
1. The Act’s blanket preemption of the Commonwealth’s local laws relating to
foreign workers lawfully present in the Commonwealth is inconsistent with principles of local
self-government. The Commonwealth’s labor laws regulating foreign workers provide extensive
benefits and protections for foreign workers in the Commonwealth. Kaipat Decl., ¶ 50
(describing benefits, including standard contract forms, full medical coverage, and bonding of
employers to ensure full payment of wages and overtime). The Act prevents the Commonwealth
from implementing and enforcing key policy choices it has made regarding a group of over
20,000 foreign workers and their families, a group that makes up two-thirds of the
Commonwealth’s current private-sector workforce and a large proportion of its present residents.
Worse, the federal government is not required to, and does not, provide benefits analogous to
those provided by the Commonwealth to foreign workers elsewhere in the United States, and the
federal government lacks the experience, contacts, and resources to implement such a scheme in
the Commonwealth. Kaipat Decl., ¶¶ 50, 51, 57. By preempting the Commonwealth’s local
scheme, P.L. 110-229 exposes the Commonwealth’s foreign workers and their families to a
regulatory vacuum that will harm these individuals and the greater Commonwealth community
and economy.
In addition, the preemption provision of the Act also deprives the Commonwealth of a
large sum of revenues that is vital to the Commonwealth’s ability to provide necessary services
to its people. The Commonwealth collects more than $7 million annually from businesses,
employers, and workers from fees charged for admission and processing of foreign workers – a
sizable sum for a government of such a small and impoverished community. Inos Decl., ¶ 16.
35
This revenue is used to provide social services to Commonwealth residents and to effectuate the
actions of self-governance. Id. By replacing and preempting the Commonwealth’s current laws
regarding foreign workers, P.L. 110-229 halts this vital flow of revenue. See also P.L. 110-229,
§ 702(g) (amending provision of Covenant that had provided that immigration-related fees paid
to the federal government would be returned to the Commonwealth).
2. The Act also violates the Commonwealth’s right to self-government by needlessly
crippling the Commonwealth’s local economy and eliminating the means for the Commonwealth
to regulate and control its own affairs. As the Covenant itself explicitly recognizes, the
achievement of economic development is an integral aspect of self-government. See Covenant
§ 701 (“The 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.”) (emphasis added). Rather than
providing support and assistance for the Commonwealth’s economic development as required by
the Covenant, the United States has taken a hatchet to the Commonwealth’s workforce,
mandating the elimination of two-thirds of the existing private-sector labor pool. This drastic
and wholly unnecessary federal action cannot be reconciled with the Covenant.
The practical effect of P.L. 110-229 will be a simple one: as explicitly required by the
Act, the Commonwealth will lose nearly its entire population of foreign workers. As explained
by Assistant Secretary of Labor Kaipat and confirmed by the GAO, almost none of the
Commonwealth’s foreign workers will be able to qualify for federal immigration visas. Kaipat
Decl., ¶ 55 (documenting that over 90% of foreign workers will not qualify for a federal
immigration visa); 2008 GAO Report, Appendix V, at 80 (“few [Commonwealth] foreign
36
workers are likely to meet the requirements for these [H non-immigrant worker] visas”). Thus,
by the end of the Act’s transition period, virtually all of the Commonwealth’s foreign workers
will have been removed by the Department of Homeland Security, as mandated by the Act.
Section 702(a) [subsection 6(d)].
As explained in the following section, such action will cause devastating and irreparable
injury to the Commonwealth. It also cannot be reconciled with the fundamental provisions of the
Covenant. The approximately 16,750 foreign workers presently in the Commonwealth were
authorized to enter pursuant to authority expressly granted to the Commonwealth by the
Covenant. Unless and until supplanted by federal immigration law, the Commonwealth had the
authority to enact and administer its own local immigration laws. The Commonwealth did so,
and it used that authority to expand its labor force, its population, and its economic base. The
prosperity of the Commonwealth’s residents radically improved. Many of the foreign workers
presently in the Commonwealth have lived there for many years, have children who are U.S.
citizens, and have become an integral part of the social fabric of the Commonwealth. Although
the Commonwealth currently is in the midst of a severe economic depression, its ability to retain
and control its existing private-sector workforce is essential to its ability to control its own
internal affairs and to address the standard of living of its people. The sudden dominant control
of the Commonwealth’s economy by the federal government and elimination of much of the
private-sector workforce mandated by the Act simply cannot be reconciled with the fundamental
rights to autonomy and self-government guaranteed by the Covenant.
The possibility of an extension of the Act’s transition period does not remedy the Act’s
fatal flaws, for several reasons. First, although the transition period might be extended, the
ultimate outcome remains the same: all foreign workers must be removed from the
37
Commonwealth unless they qualify for federal immigration visas, for which these workers
simply are not eligible. Extending the period of time over which removal occurs “would not
significantly affect the depth of the depression.” McPhee/Conway Report, at 35. Second, the
Act on its face provides that the transition period shall end in 2014, and the mere possibility of an
extension at the discretion of the Secretary of Labor cannot cure the violation of the Covenant
and the injury the Act mandates.11 In fact, most of the data that the Secretary would need to
consult to make a reasoned determination currently does not even exist. 2008 GAO Report as
25; Ada Decl., ¶¶ 13-14. Third, even if the devastating consequences of the Act might be
delayed, any temporary relief the extension may offer will come too late. Under the Act, the
decision whether to extend the transition period need not be taken until 180 days before the
period ends. Section 702(a) [subsections 6(d)(5)(A)-(B)]. As set forth in the following section,
the economic injury being caused by the Act on investment and other actions is occurring now.
3. The Act also violates the Commonwealth’s right to self-government by
transferring control over local labor permitting to the Department of Homeland Security. Section
702(a) [subsection 6(a)-(e)] of P.L. 110-229 sets up a labor permitting scheme under which
Homeland Security shall exercise plenary control, for the duration of the transition period, over
which employers should receive permits to employ foreign workers, how many permits the
employer should receive, and on what terms and conditions the permits should issue. The
11 See, e.g., U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F. Supp. 2d 76, 92
(D.D.C. 1998) (“[t]he claimed injuries do not fail the immediacy test merely because . . .
Congress may yet pass supervening legislation or take other actions that could moot the
controversy”); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979) (finding
suit seeking declaratory judgment against state statute justiciable where “the State has not
disavowed any intention of invoking the criminal penalty provision against [plaintiffs]”);
Hallandale Prof. Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 762 (11th Cir.
1991) (finding a justiciable controversy when “all that remained between the plaintiff and the
impending harm was the defendant’s discretionary decision − which could be changed”).
38
federal permitting scheme, bolstered by the preemption provision, will completely supplant and
replace the Commonwealth’s regulatory scheme for foreign workers and will prevent the
Commonwealth from making policy choices regarding its lawfully admitted foreign worker
population.
Such a result cannot be reconciled with the concept of local self-government.
Commonwealth policies pertaining to an existing, lawfully admitted foreign worker population
are policies that are quintessentially “local” in character. See Santos Decl., ¶ 24 (explaining that
the United States negotiators “never claimed that they had the right to manage our local economy
by deciding how many workers we were entitled to have, which workers were acceptable to the
federal government, and which employers were to be favored over others in being able to hire
particular employees”). Even if it were necessary and proper to remove from the Commonwealth
two-thirds of its existing private-sector workforce, the Commonwealth is entitled under the
Covenant to exercise the painful decisions regarding how the removal of those workers from the
labor force should be handled. Indeed, the Commonwealth already has exercised such authority
in the past, as it has supervised the consequences of the significant contraction in the labor force
resulting from the closure of the garment factories. In doing so, however, the Commonwealth
has exercised the judgment and discretion that is inherent in local self-government. See Kaipat
Decl., ¶¶ 9, 24-28, 31. It is impermissible for the Act to mandate such supervision by the
Department of Homeland Security in Washington. The federal government does not have the
regulatory flexibility or expertise necessary to play such a role. See Kaipat Decl., ¶¶ 31, 46, 57.
II. THE COMMONWEALTH WILL SUFFER IRREPARABLE INJURY IF THE

COURT DOES NOT GRANT INJUNCTIVE RELIEF.
The Commonwealth already is suffering ongoing and irreparable injury by reason of the
Act, and without immediate injunctive relief, will suffer further irreparable injury.
39
Irreparable injury exists here in two discrete forms. One, the enactment of P.L. 110-229
abrogates “the basic bargain” crafted by the Covenant. As stated by Governor Fitial: “The
United States agreed to stay out of [the Commonwealth’s] local affairs. The United States
should honor that bargain.” Fitial Decl., ¶ 21. Until the Act is enjoined, the Commonwealth will
be unable to exert its authority to regulate a large portion of its economy and a majority of its
private-sector workforce. The dignity of a sovereign entity such as the Commonwealth demands
that such an injury be speedily addressed and if possible prevented entirely, because it cannot be
remedied after the fact. See New York v. United States, 505 U.S. 144, 175 (1992) (addressing
New York’s federalism challenge despite fact that the challenged act would not take effect until
years later); South Carolina v. Regan, 465 U.S. 367, 382 (1984) (granting state’s motion to
invoke Supreme Court’s original jurisdiction where challenged federal statute would “materially
interfere with and infringe upon the authority” of the state to borrow funds) (quotation marks
omitted).
Two, and much more significant, the Act will cause devastating effects to the
Commonwealth, its people, and its economy if not immediately enjoined. The harsh effects of
the Act have been detailed at length above. What is facing the Commonwealth today could not
be more significant. As economists McPhee and Conway warn: “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.”
McPhee/Conway Report, at viii.
The injury occasioned by the Act occurs in multiple ways. Immediately upon the June
2009 effective date, the Act will deprive the Commonwealth of indispensable revenues it
40
receives from its regulations regarding employment of foreign workers. See Inos Decl., ¶ 18.
The federal government is unlikely to voluntarily replace or compensate the Commonwealth for
these revenues if the Commonwealth ultimately is vindicated on the merits in this suit, and the
Commonwealth would be barred by the doctrine of sovereign immunity from seeking redress for
these damages in court. “[W]here, as here, the plaintiff in question cannot recover damages from
the defendant due to the defendant’s sovereign immunity . . . any loss of income suffered by a
plaintiff is irreparable per se.” Feinerman v. Bernandi, 558 F. Supp. 2d 36, 51 (D.D.C. 2008).
The Commonwealth already has been forced in its budget planning to reduce the number of
government workers and to curtail critical public services. Inos Decl., ¶ 14.
In addition, implementation of the Act will cause irreparable injury by forcing the
Commonwealth to disassemble the systems and programs it has developed to regulate foreign
workers and to disband the personnel associated with those programs from its Department of
Labor. If the Commonwealth’s systems relating to its foreign workers are dismantled, “it would
cost very substantial sums to the recreate [the Commonwealth’s] systems and find the people to
operate them,” and it may be impossible ever to repair the loss of institutional knowledge to the
Commonwealth’s Department of Labor. Kaipat Decl., ¶¶ 51-53.
But what is most significant is that enforcement of P.L. 110-229 will force the
Commonwealth into an economic downward spiral that will be impossible to reverse. Without
an adequate supply of labor, the Commonwealth’s economy will never be able to recover and
prosper. McPhee/Conway Report, at xi (“[T]he quickest way to ruin a small, isolated island
economy and prevent any real chance of recovery is to cut off its supply of labor.”); see also
2008 GAO Report, at 36 n.59. Already, business plans for new ventures in the Commonwealth
are being revised or cancelled in view of P.L. 110-229. Jones Aff., ¶¶ 20-24; Fitial Decl., ¶¶ 15-
41
17. Investors are fearful the necessary workforce will not be available to renovate, construct, or
operate new facilities. Tenorio Decl., ¶ 37; Fitial Decl., ¶ 15. Employers are reconsidering plans
for new businesses and for expansion of existing businesses in light of the uncertain restrictions
upon the available supply of labor. Jones Aff., ¶¶ 20-24; Fitial Decl., ¶ 15-17.
At bottom, “[i]f implemented according to its terms, this law will strike a devastating,
and perhaps irretrievable, blow to the Commonwealth’s economy by prohibiting the
Commonwealth from ensuring an adequate supply of labor for local businesses.” Inos Decl.,
¶ 20. The Commonwealth cannot maintain a self-sufficient, adequate economy or an appropriate
standard of living for its people without a workforce that is at least roughly the size of its current
workforce of approximately 30,000 workers. Inos Decl., ¶ 20. Yet there are only 31,000 U.S.
citizens in the Commonwealth, including children, elderly, and disabled persons, and the citizen
population alone simply cannot supply a workforce of 30,000 individuals. Id. Additional
workers cannot be recruited from elsewhere in the United States given the Commonwealth’s
remote location and deteriorating economic state. Id., ¶ 8. Indeed, P.L. 110-229 is likely to
accelerate the out-migration of citizens to other locations in the United States with more
promising economic opportunities. Id.; Pierce Decl., ¶¶ 43-45.
The economic effects of the “federalization” of the Commonwealth’s economy are
detailed in the McPhee and Conway study commissioned by the Department of the Interior. As
described above, 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.
McPhee/Conway Report, at 42. These are astounding figures. But it is hardly surprising that a
law that requires the removal of two-thirds of the Commonwealth’s existing private-sector
workforce will have severe and irreparable consequences.
42
The people of the Northern Marianas are a “capable people” who “always intended to
earn our own way.” Fitial Decl., ¶ 20. In this Act, the federal government has made that
impossible. The injuries caused by the Act’s violations of the Covenant require immediate
action by this Court.
III. THE BALANCE OF HARMS WEIGHS IN FAVOR OF GRANTING INJUNCTIVE

RELIEF.
In contrast to the irreparable injuries that the Commonwealth will suffer, the United
States and its agencies will suffer no injury if an injunction issues other than delay of their efforts
to plan the implementation of the Act. Mere delay is an insufficient justification to avoid issuing
a preliminary injunction. National Wildlife Fed’n v. Burford, 835 F.2d 305, 326 (D.C. Cir. 1987)
(finding that delay suffered by third parties insufficient basis to deny issuance of an injunction);
Monument Realty LLC v. Washington Met. Area Transit Auth., 540 F. Supp. 2d 66, 80-81
(D.D.C. 2008) (irreparable injury outweighed mere delay to defendants); Hicks v. Bush, 397
F. Supp. 2d 36, 42 (D.D.C. 2005) (holding “further and lengthy delays in carrying out an
important aspect of the war effort” an inadequate basis for denying a preliminary injunction).
Delay is an especially insufficient justification in this case, where issuance of a preliminary
injunction would only maintain the existence of a status quo that has persisted, without objection
by the United States, for more than two decades. Issuance of a preliminary injunction is thus
appropriate. Washington Metro. Area Transit Comm’n, 559 F.2d at 844 (injunctive relief
appropriate “when little if any harm will befall other interested persons”).
IV. INJUNCTIVE RELIEF IS IN THE PUBLIC INTEREST.
The public interest clearly favors issuance of an injunction. As an initial matter, the
public has an interest in seeing the government conduct itself in a manner than comports with
federal law. See O’Donnell Const. Co. v. District of Columbia, 963 F.2d 420, 428-29 (D.C. Cir.
43
1992); National Treasury Employees Union v. U.S. Dep’t of Treasury, 838 F. Supp. 631, 640
(D.D.C. 1993) (“The preservation of the rights in the Constitution and the legality of the process
by which government agencies function certainly weighs heavily in the public interest. . . . [T]he
public may be deemed to have an overriding interest in assuring that the government remains
within the limit of its constitutional authority.”); Nobby Lobby, Inc. v. City of Dallas, 970 F.2d
82, 93 (5th Cir. 1992) (approving the district court’s conclusion that “the public interest always
is served when public officials act within the bounds of the law and respect the rights of the
citizens they serve”). Because implementation and enforcement of P.L. 110-229 would be
illegal, the public has a real interest in issuance of an injunction that would prohibit such a result.
Second, the public at large also has an interest in stopping the Commonwealth from
becoming dependent on the federal fisc. United States v. Suarez, 880 F.2d 626, 630 (2d Cir.
1989) (“[T]here is an obvious legitimate public interest in how taxpayers’ money is being spent,
particularly when the amount is large.”). Without an injunction against P.L. 110-229, the
Commonwealth shall “become an economic ghetto dependent on periodic handouts of federal
dollars for our survival and well-being.” Fitial Decl., ¶ 20; see also McPhee/Conway Report, at
39 (estimating bill to federal government as at least $100 million). Preventing such an expense
favors the public interest.
Finally, and perhaps most obviously, granting an injunction serves the public interest of
the thousands of people affected by P.L. 110-229. The Act requires the ultimate removal of
some 16,750 foreign workers who, in virtually all cases, will not be able to qualify for federal
immigration visas. Many of these workers have lived in the Commonwealth for years and have
children who are U.S. citizens. In addition, all residents of the Commonwealth will be affected
by the economic devastation occasioned by the forced removal of two-thirds of the
44
Commonwealth’s existing private-sector workforce. The public interest strongly favors issuance
of an injunction.
CONCLUSION
The Commonwealth has met all the requirements for issuance of a preliminary
injunction. The Commonwealth therefore respectfully requests that the Court issue a preliminary
injunction barring defendants from enforcing or implementing the challenged provisions of the
Act pending this Court’s resolution of the Commonwealth’s claims on the merits.
Respectfully submitted,
JENNER & BLOCK LLP
/s/ David W. DeBruin

(D.C. Bar No. 32177) (D.C. Bar No. 337626)
(670) 664-2213 (202) 639-6000
Sharmila Sohoni
(D.C. Bar No. 502150)
JENNER & BLOCK LLP
919 Third Avenue
37th Floor
New York, NY 10022
(212) 891-1674
Dated: November 7, 2008
45
IN THE UNITED STATES DISTRICT COURT FOR THE
____________________________________
)
)
Plaintiff, )
) 08-CV-01572 (PLF)
v. )
)
)
Defendants. )
)
____________________________________)
[PROPOSED] ORDER
This Court having carefully reviewed the submissions of the parties pertaining to the
Motion for a Preliminary Injunction by Plaintiff the Commonwealth of the Northern Mariana
Islands, it is this __ day of _________, 2008, hereby ORDERED that plaintiff’s Motion for a
Preliminary Injunction be, and hereby is, granted. Pending the resolution on the merits of
plaintiff’s Complaint, defendants are enjoined from implementing or enforcing the Consolidated
Natural Resources Act of 2008, Public Law 110-229, to the extent that such action would
involve (a) preemption of the Commonwealth’s laws pertaining to aliens lawfully present in the
Commonwealth pursuant to Commonwealth law; (b) operation of the transition program
described in Section 702(a) of the Act, including the issuance of federal permits to
Commonwealth employers, the mandatory reduction of such permits to zero by 2014, and the
prohibition of employment except as authorized by federal permit; (c) removal of aliens lawfully
present in the Commonwealth pursuant to Commonwealth law; or (d) deprivation of any fees
related to aliens that are derived by the Commonwealth pursuant to its laws or to the Covenant to
Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United
States of America, H.R. J. Res. 549, Pub. L. No. 94-241, 90 Stat. 263 (1976).
_______________________________________
HONORABLE PAUL L. FRIEDMAN, U.S.D.J.
Copies to:
Counsel for the plaintiffs : Defendants:
David W. DeBruin Michael Chertoff

(D.C. Bar No. 337626) Secretary
William M. Hohengarten U.S. Department of Homeland Security
(D.C. Bar No. 459605) Washington, DC 20528
JENNER & BLOCK LLP
1099 New York Avenue, N.W. United States Department of Homeland Security
Washington, D.C. 20001 Washington, DC 20528
(202) 639-6000
Elaine Chao
Howard P. Willens Secretary
(D.C. Bar No. 32177) U.S. Department of Labor
Special Legal Counsel to the Governor 200 Constitution Avenue, NW
Office of the Governor Washington DC 20210
Executive Office Building
Capital Hill United States Department of Labor,
Saipan, MP 96950 200 Constitution Avenue, NW, Washington DC
(670) 664-2213 20210
Sharmila Sohoni Michael Mukasey

(D.C. Bar No. 502150) Attorney General
JENNER & BLOCK LLP 950 Pennsylvania Avenue NW
919 Third Avenue Washington DC 20530.
37th Floor
New York, NY 10022 Jeffrey A. Taylor
(212) 891-1674 U.S. Attorney’s Office
501 Third Street NW
Washington DC 20001
Civil Process Clerk

U.S. Attorney’s Office
501 Third Street NW
Washington DC 20001
2
CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2008, I caused copies of the foregoing motion for a
preliminary injunction, memorandum of points and authorities, declarations and affidavits in
support thereof, and proposed order to be served on the following parties by certified, first class
mail, postage prepaid:
Michael Chertoff Michael Mukasey

Secretary Attorney General
U.S. Department of Homeland Security 950 Pennsylvania Avenue NW
Washington, DC 20528 Washington DC 20530.
United States Department of Homeland Jeffrey A. Taylor

Security U.S. Attorney’s Office
Washington, DC 20528 501 Third Street NW
Washington DC 20001
Elaine Chao
Secretary Civil Process Clerk
U.S. Department of Labor U.S. Attorney’s Office
200 Constitution Avenue, NW 501 Third Street NW
Washington DC 20210 Washington DC 20001
United States Department of Labor,

200 Constitution Avenue, NW,
Washington DC 20210
/s/ Sharmila Sohoni

Sharmila Sohoni

CNMI Preliminary Injunction Motion

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UNITED STATES DISTRICT COURT FOR THE

MOTION FOR A PRELIMINARY INJUNCTION BY PLAINTIFF

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

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

JENNER & BLOCK LLP

/s/ David W. DeBruin

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

Howard P. Willens David W. DeBruin

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

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

I. THE COMMONWEALTH HAS A SUBSTANTIAL LIKELIHOOD OF

A. The Covenant Creates Binding And Enforceable Limits On The Powers Of

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

II. THE COMMONWEALTH WILL SUFFER IRREPARABLE INJURY IF THE

III. THE BALANCE OF HARMS WEIGHS IN FAVOR OF GRANTING

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

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

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

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

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

National Treasury Employees Union v. United States Department of Treasury, 838 F.

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

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.

United States House of Representatives v. United States Department of Commerce, 11 F.

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

*Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political

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

*Section-by-Section Analysis of the Covenant to Establish a Commonwealth of the

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

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 THE

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

WEBSTER’S NEW COLLEGIATE DICTIONARY (9th ed. 1985)...........................................................34

Howard P. Willens & Deanne C. Siemer, NATIONAL SECURITY AND SELF-

Howard P. Willens & Deanne C. Siemer, AN HONORABLE ACCORD: THE COVENANT

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

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

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

David W. DeBruin (“DeBruin Decl.”).

federal immigration laws to the Commonwealth.

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

of all foreign workers.

the Commonwealth’s economy, the Commonwealth stands to lose approximately 44 percent of

Commonwealth is the antithesis of local self-governance.

injunction, and it is entitled to immediate relief.

A. The History of the Commonwealth

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

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