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Mar 17, 2008

"Zero Foreign Workers by 2014"? April Fool's!

Today's Marianas Variety carried a story with the headline: "Revised federalization bill: Zero foreign workers by 2014." As we read this from our offices high atop the Saipan Middle Road worldwide corporate headquarters building, we wondered whether it could be true. So we dispatched an elite team from our Fact-Checking Department, having them fan out around the globe in search of The Truth.

Here is what they found: The headline is incorrect. Under the federalization bill, the special CNMI guest worker program lasts through the end of 2014, as does the special exemption from the U.S. national limits on the number of "H" employment visas for both skilled and unskilled workers. However, both the special CNMI guest worker program and the exemption from H visa limits can be extended indefinitely as needed. And the CNMI will be allowed to use these special programs in addition to the other means of bringing in foreign workers that are available to the rest of the U.S.

And what happens when these special programs are finally allowed to expire? Will that mean that all foreign workers will have to leave the CNMI? Absolutely not, according to our highly reliable sources. When these programs eventually expire, the CNMI will no longer have a special advantage over the rest of the country in admitting foreign workers. However, foreign workers will still be admitted to the CNMI according to the same rules that apply to the rest of the country. Some in the CNMI administration claim that the CNMI will not be able to take in foreign workers when it eventually loses its special privileges. If that were true, then how is it that every single state in the Union, as well as each territory that is subject to U.S. immigration control, has foreign workers? Anyone who doubts this need only take the 30-minute plane ride to Guam.

According to our fact-checking team, the story by Gemma Casas underneath the headline in question is accurate. It is only the headline (likely written by someone else) that is misleading. We think this error is understandable, given the constant (but completely wrong) drum beat from some quarters that the federalization bill will require all foreign workers to leave the CNMI.

This has been a public service of Saipan Middle Road.

63 comments:

Marianas Pride said...

Rev, thank you so much for clarifying that. That headline was almost as bad as the headline that said thousands attend taotao tano's anti-federalization rally. Apparently, this administration would like you to believe that federalization of immigration and labor and minimum wage will ruin our economy (as if our economy isn't ruined already). Anyone who is foolish enough to believe federalization will destroy the CNMI should spend some time in Guam. Guam's economy is stronger than ever and tourists flock Tumon Bay. Every restaurant and bar I visited was busy, even on a Monday night! You cannot build an economy on low wages. Saipan's middle class is shrinking every day with the loss of jobs and the emigration of locals to the U.S. I'm tired of the lies about federalization. Let's call a spade a spade and admit that corruption, greed, and poor planning are the main reasons why our economy sucks. We can never move forward and make progress here as long as people are living in fear of speaking out. Speak up, speak out, and make a difference. It is time we take the CNMI back.

rev said...

thank our newest Middle Roader for that MP. ;-) you're welcome....

carlos the mackerel said...

You are talking about "foreign workers" in the abstract. How does this work from the standpoint of an individual worker now in the CNMI?

I suppose he will be able to apply for a slot in the special CNMI-only guest worker program. How many such slots will be available in the first year of the program? 20,000? 10,000? 5,000? Enough for every worker currently on island, or will some miss the cut? Who will be eligible for such permits?

As I understand it, that all remains to be decided by the Secretary of Homeland Security.

How many slots will then be available in second year, or the third? That also remains to be decided, but it is supposed to be fewer and fewer each year.

So what will a worker do who misses the cut the first year, or the second, or the third? I suppose he will be able to apply for an "H" visa. Who is eligible for such a visa? Do you know? (I don't.)

bradinthesand said...

"However, foreign workers will still be admitted to the CNMI according to the same rules that apply to the rest of the country."

perhaps a better headline would've been "most foreign workers out by 2014."

keeping employees on an h visa is costly and i doubt there will be even one waiter, waitress, gas station attendant, house worker, custodian, grass cutter, garbageman, cashier, maid, lifeguard, general mechanic, farmer, or store clerk here by 2014.

managers, yes. accountants, probably.

"However, both the special CNMI guest worker program and the exemption from H visa limits can be extended indefinitely as needed."

key words: can be.

no guarantee there. i see more people being ushered out than allowed to stay if this goes through.

Marianas Pride said...

Yes Brad, 2014 will be the death of the CNMI. Things are so peachy right now. Is it better to stick with the status quo? If you study the history of our immigration and labor problems here, perhaps federalization of immigration and labor isn't so bad. Believe it or not, the United States is not out to destroy the CNMI.

carlos the mackerel said...

Brad, can you clarify why it is costly to keep a worker on an H visa?

Also, does anyone know whether Guam is already exempt from the national limit on H visas, or would this be something new for them?

bradinthesand said...

"Yes Brad, 2014 will be the death of the CNMI."

um, i think you're misreading what i wrote as some sort of anti-federalization thing.

actually, i'd like for the wages to be increased but i don't think that immigration has to be federalized to do it.

but that's another story altogether.

relax, buddy.

thing is that too many people are trusting what they hear instead of what can easily be read.

i think it would be naive to think that everyone will be renewed every time.

the h-1 visa is geared more toward professionals:

read here from:
http://www.h1visajobs.com/FAQs.htm

1. What is H-1B visa?
H-1B is a type of work visa granted to foreign professionals who are outside the US and those already in the US on non-immigrant visas such as F-1 (Student), F-1 OPT (Optional Practical Training), F-2 (Dependent of F-1), B-1 (Tourist on a business trip), B-2 (Tourist on a pleasure trip), H-4 (Dependent of H1), etc.

2. What is the eligibility criteria for H-1B visa?
In order to qualify for an H-1B visa two conditions need to be satisfied as a minimum. (i) You should have educational qualification equivalent to a baccalaureate degree from an accredited college in the US in the area related to the job being offered to you, and (ii) the job offered to you must be a specialty occupation which normally requires a baccalaureate degree, in the industry, to discharge duties. However, the baccalaureate degree restriction is not applicable if the job being offered is that of a Fashion Model.

5. How long can I work in the U.S. on an H-1B visa?
Initially H-1B visa can be obtained for a maximum of 3 years. However it may be extended by 3 more years.

and this i found to be interesting as well:

Additional requirements for H1B dependent employers. Employers are considered to be H1B dependent if they have less than 25 workers and more than 7 H1B workers; between 26 to 50 workers and more than 12 H1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H1B dependent employer must fulfill 2 additional requirements.

Displacement of US workers: An H1B dependent employer must attest that by hiring a H1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H1B petition.

Recruitment efforts: The H1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position. When hiring an H1B worker, it is important for employers to recognize the attendant responsibilities that they must shoulder. Although the requirements are not excessively burdensome, the employer is required to maintain some paperwork to demonstrate its compliance with the law. A clear understanding and fulfillment of these requirements will minimize possible civil penalties and ensure that the employer will be permitted to petition for future H1B workers.

sorry for all of the boring reading info, but it's good info...

oh, and how about this:

H1B LAWS THAT CAN AFFECT AN EMPLOYERS HIRING DECISIONS

H1B Visa Cap:
The H1B cap is the annual quota of visas available. For 2008 it is currently set at 65,000 plus an additional 20,000 ADE quota. The cap does not apply to H1B transfers or cap-exempt positions.

i'm not against anything positive for people but i am interested in knowing what this is really all about...

HBM said...

Good discussion. Actually, the federalization bill would waive the cap for all H visas, not just H-1B visas. This would allow the CNMI to admit both skilled and unskilled workers either with H visas or under the special guest worker program. The bill also provides for a thoughtful consideration of the status issue for long-term guest workers within two years. Does that guarantee that they will get status? No. They should hopefully get a fair hearing, though, especially if national immigration reform gets revived (a priority of all three major candidates). After all, if we're going to consider giving a pathway to better status to illegal aliens, the legal workers who have been the backbone of the CNMI economy have a moral claim to be considered as well. And while it is true that there's no guarantee that the CNMI's special programs to bring in and keep guest workers will be extended beyond 2014, the statute essentially directs Homeland Security to extend these programs as long as there is a genuine need. The CNMI administration and the Chamber have been loudly proclaiming that there will be a need long after 2014. If they're telling the truth, the statute would direct Homeland Security to grant the extension. You're never going to get a guarantee because Homeland Security always needs to maintain maximum discretion. The bill makes it clear, however, that the Feds are required to bend over backwards to accomodate the CNMI's special needs.

HBM said...

One observation: When the original version of the bill gave enhanced status to protect long-term guest workers, a number of federalization opponents screamed bloody murder. Now that the enhanced status has been removed, these same people are criticizing the bill on the grounds that it supposedly does not allow guest workers to stay. This comment is not directed at Brad and others who have posted thoughtful comments on this blog. However, it is clear that a number of people who are trying to convince guest workers that the federalization bill would send them home could care less about the guest workers, and would do anything in their power to keep them from getting any additional protections.

Marianas Pride said...

Relax Brad, I don't mind if we don't agree on federalization. You are a good guy with a big heart and that is all that matters.

Peace,
Ed

cactus said...

"You're never going to get a guarantee because Homeland Security always needs to maintain maximum discretion."

I think that sums up the whole issue in a nutshell right there.

That is not a future any of us are going to be happy with.

Anonymous said...

Lots of people should be happy with a system operated by one entity that has the discretion, and exercises it consistently, without regard to tribal/party/family relationships. The only way we can actually get the private sector to locate, recruit and train resident workers to take some of these jobs is to make it more expensive for them to satisfy their cheap alien labor addiction than it is to train resident workers.

Marianas Pride said...

Amen brutha

bradinthesand said...

i was thinking today about the wages offered in the cnmi when it all of a sudden struck me: what will the market bear?

i am all for the increased wages, but if people refused to work for $3.55/hr the employers would be forced to raise the bar.

that's not hapening.

what sucks is that the demand is not reflective of the majority of the local population at all.

why not? because those who played their cards right leading up to the previous election get a cushy job in the government.

beats minimum wage.

so while the foreign national workers are willing to take the minimum wage offered in the cnmi, the locals are assed out.

so why aren't more locals pissed off about the current state of the cnmi's minimum wage?

locals should be focussed on helping each other in this regard. it's more of an issue where the employers are putting the screws to local workers--not the fnw's.

somehow the businesses are able to say that they can't sustain their operatrions with the line of impending rate hikes.

hmm...

sounds like someone needs a new business plan.

and i seem to remember henry ford having the "outreyes" notion to pay his employees well enough to pay for the products they produce.

ai adai...

so wages are one thing, but can someone tell me why we need to have immigration run by the feds?

i know why the feds want to run the show (secure the marianas from prying chinese and russian eyes in close proximity to their bases on guam), and i know that the feds have the option available as written in the covenant, but why would the cnmi need federalized immigration?

Anonymous said...

We need to trust Deane Slimmer. Her and her hubby Howard Willens are working for free. It is a lie that they are being put up at Hyatt Regency and all meals paid and first class travel, yada yada. Our government is as honest as Jack Abramoff. Governor Fitial does not represent Willie Tan. Governor Fitial always does what is right. And our local immigration and labor is not corrupt and its laws have never changed. The U.S. can take federalization and shove it up their arse. Uncle Sam is a puto.

federalization is the devil said...

We need to become independent country like Belau. Listen to Auntie Deanne and Uncle Howard. They know what is right for us. I don't want federalization because they told me it is bad. I trust them and I trust Jack Abramoff and I trust Uncle Ben.

federalization is the devil said...

We need to become independent country like Belau. Listen to Auntie Deanne and Uncle Howard. They know what is right for us. I don't want federalization because they told me it is bad. I trust them and I trust Jack Abramoff and I trust Uncle Ben.

obamaniac said...

If we all sat around and smoked some good dope we could solve all our problems yo.

cactus said...

"Lots of people should be happy with a system operated by one entity that has the discretion, and exercises it consistently, without regard to tribal/party/family relationships."

That is the lure of despotism. It will be so much more decent and honest and righteous and orderly that the chaos of democracy. Corruption will cease. There will be law and order. The trains will run on time.

This is a vision that had fooled a lot of people, from the Romans to the Pakistanis, and it is fooling you now.

HBM said...

I respect your point, Cactus, but do not agree that a system run by the Feds amounts to despotism. It's the same system we use for the rest of our country, where we recognize that it is generally not a good idea for small communities to control their own immigration. I also don't agree that insulating the process from local tribal/party/family relationships is the road to fascism. I think that what has arisen here as a result of local control of immigration is much more problematic. The locals have become a minority in their own islands, and you have a majority that cannot vote, cannot hold government jobs, cannot serve on juries and has much to lose by standing up for their rights (even though they're doing it anyway more and more). By invoking despotism and fascism, aren't you inadvertently implying that the aspirations and needs of the guest workers don't count? I do not agree that it puts us on the road to despotism to try to correct these problems by having immigration controlled by the same (admitedly flawed) Federal Government that controls immigration for the rest of our democratic nation. The federalization bill provides the CNMI with an unprecedented degree of flexibility to address its special needs. I think that this approach is more than fair.

cactus said...

It is not despotic as to "the rest of our democratic nation" because the people there are part of the process. They debate what immigration policies are the best, they decide and they implement them. We don't. Or I should say, we do now, but we wouldn't under federalization. That is the difference.

The deficiencies you see in our system are shared by the democratic federal system. Lawmakers there can be influenced by "tribal" and party relationships, and other special interests, just like ours can. They just have bigger "tribes" and bigger parties. Non-citizens don't vote there either, but (like here) they can make their voice heard in the debate and exercise economic clout.

As for "unprecedented flexibility" under the bill, it all belongs to the federal administrators. The CNMI would have no flexibility at all.

Marianas Pride said...

Sorry, but perhaps it is that "flexibility" that got the CNMI into problems in the first place.

Anonymous said...

i agree with cactus.

thinkin' along the same logical lines i have also had a very tough time with this whole federalized postal system in the CNMI.

"The United States Postal Service (USPS) is an independent agency of the executive branch of the United States government (see 39 U.S.C. § 201) responsible for providing postal service in the U.S. Within the United States"

we are the CNMI. we are not the U.S. how dare they control our postal services and take away the possibility of us having any "flexibility".

what makes them think they can control our postal services??? who allowed that crap to happen in the first place? where was the local outcry when we needed it. we have lost total control and flexibility over this aspect of our self government.

i say we revolt. we take back control of this asap. all services in the cnmi should be controled by the cnmi. the feds should butt out.

goodbye USPS hello CNMIPS.

***
laced with sarcasm... where the hell do you draw the line?

carlos the mackerel said...

You may be onto something there. Would the CNMIPS do home delivery?

Propaganda Doubter said...

"And the CNMI will be allowed to use these special programs in addition to the other means of bringing in foreign workers that are available to the rest of the U.S."

Before you swallow that hook, line, and sinker, Middle Road, why not investigate what exactly those "other means" are.

Employment-based immigrant visas are not available for most job categories of foreign national workers in the CNMI. Categories that would be covered include doctors, nurses, clergy.

Maybe we should just have that as part of a federalization bill, to add to the current immediate relatives of U.S. citizens.

Take the helpful parts and avoid the federal siphoning of dollars from the CNMI economy, and tremendous increase in the cost of doing business here (not to mention loss of the Russia and China tourist markets), which are severely negative aspects of federalization that an objective economic study will confirm.

HBM said...

To Cactus, you express your point well. However, according to your logic, the overwhelming majority of NMI locals who voted in favor of the Covenant voted to approve a "despotic" arrangement. It is quite clear from the Covenant that they approved that the NMI would be subject to U.S. sovereignty, that Congress could assert control over immigration, and that the NMI would not (at least initially) have any representation in Congress. I am also troubled by the territories' lack of voting representation in Congress and by the fact that their residents can't vote for President. That problem isn't easily remedied under the U.S. Constitution, however. Most residents of the territories would prefer the current imperfect arrangement to breaking away from the U.S. It is not "despotism" for the U.S. to exercise the essential attributes of sovereignty over islands that petitioned to join the U.S. on the terms set forth in the Covenant.

I stick to my point about flexibility. Even though the federal government makes the final decisions (just as they do on immigration issues affecting every other community in America but American Samoa, including other territories with no voting representation in Congress), this bill gives the CNMI more influence over its immigration than any other community in America. It also gives the relevant federal officials unprecedented flexibility to accomodate the CNMI's economic needs and directs those federal officials to use that flexibility for that purpose. Given the degree to which the CNMI's control over immigration has become an unacceptable liability to the Federal Government (and made a mess of the CNMI as well), the federalization bill is a much better deal for the CNMI than anyone would have had a right to expect.

cactus said...

I do not agree that the Covenant was an agreement to despotism. Its strong emphasis on self-government refutes that.

Indeed, the people cannot bind themselves to despotism even if they want to. To do so would be a void act, just like a contract to sell yourself and your children into slavery is void.

I am not advocating "breaking away from the US." I deny that the only choice is between federal despotism and independence. Meaningful self-government in union with the US is possible, and is supposed to be what we already have.

The fact that a different situation exists in the territories is irrelevant. The territories are relics of an archaic colonial world. They are not an example to hold up as a model for us, or for anyone.

HBM said...

Well, if you agree with me that the Covenant is not despotism, then you should agree with me that Congress's exercise of authority as permitted under the Covenant also is not despotism. It is not despotic for Congress to assert control over CNMI immigration in a manner permitted by the Covenant, and such an exercise is in no way inconsistent with any right of self-government mentioned in the Covenant.

cactus said...

Yes, I agree with you on all those points.

I suspect we disagree, however, as to what the Covenant actually permits, and particularly whether it permits the current bill.

Correct me if I'm wrong, but your Covenant analysis seems to go like this: You look first at Congress's enumerated powers, assume they are unlimited in scope, then define "self-government" as whatever is left over, and declare consistency.

It makes more sense to me, however, to take self-government as the starting point of the analysis, and thus read the scope of Congress's enumerated powers as limited to whatever is actually consistent with that.

James said...

Cactus, that may be your interpretation, and it may be valid as you see it. However, legal documents, like statutes, regulations, and the like, follow rules of statutory construction. One of the most fundamental of those rules is that general principles be articulated first, and then more specific ones after. Exceptions come even further down the totem pole. If your interpretation were correct, there would be no need for anything after the general principle of promoting self-governance. That is obviously not what the framers of the Covenant intended. Those who had a hand in negotiating and drafting it, including Pete A. Tenorio, Eddie Pangelinan and Ambassador Williams, all agree that the Covenant allows the U.S. to extend the INA to the CNMI taking into account the specific conditions at the time such action is contemplated. The House Bill does that, as HBM points out. You may also wish to consult a very fine publication on the Covenant, which analyzes it section-by-section, and see that it is entirely consistent with this interpretation.

Anonymous said...

Doesn't anyone find it a bit suspicious that Deane Seimer is anti-fed now but used to be pro-fed? What happened? Could it be... Satan? Cactus you idiot. The CNMI government screwed up, and now the US is going to clean up their mess. Did you read the damn Covenenat agreement? They have a binding agreement. I know agreements are not honored here since it is not in our custombre. Example majority of loans are never paid back check out CDA. Shut up already. Write until your fingers fall off cos the feds are comin baby! Goodbye illegals hello locals! This is a dawn of a new days! Biba Chamoru Nation!

carlos the mackerel said...

"Goodbye illegals hello locals?" You've got to be kidding me. On the question of who makes the decisions around here, it's more like "goodbye locals hello feds." You say "Biba Chamoru Nation," but you are cheering for the destruction of the Chamorro nation you've already got. Believe me, you'll miss it when it's gone.

HBM said...

Cactus, just to elaborate on James' point: Under your suggested interpretation of the Covenant, the express right of Congress to assert federal control over immigration is potentially inconsistent with the vague right of self-government. No court would go along with your interpretation. If there is a reasonable way to interpret the Covenant so that there is no conflict between the two provisions, then the court will follow that interpretation. In other words, the court would assume that the parties knew what the hell they were doing. There is clearly a reasonable way of reconciling those provisions here: self-government includes the right to adopt a constitution, the right to elect leaders who can pass local laws (in a manner consistent with the U.S. Constitution), and a host of other rights that the people did not have in the Trust Territory days, but it does not provide for perpetual control over immigration. This is a no-brainer. Not even Covenant negotiator Howard Willens, who now would say anything to oppose federalization, would go along with your suggestion that "self-government" somehow includes some mythical powers that are not stated, are inconsistent with the rest of the Covenant, and are not afforded to any other territory under the U.S. Constitution. Even though the CNMI and Puerto Rico are called "Commonwealths", there is no such animal recognized by the U.S. Constitution. The U.S. Constitution only recognizes territories, and gives Congress almost unlimited authority to govern them. (You and I might agree that the Constitution should be amended to enfranchise the territories.)

Although I respect your point of view, I strongly disagree with the suggestion that the federalization bill amounts to despotism. There is plenty of real despotism in the world, and I think it cheapens the word to use it here. I think the bill will help prevent despotism: If you give one person (the CNMI governor, whoever he or she may be from time to time) so much power over who can and cannot enter his or her own territory, there is a risk that despotism will result. Under federalization, the process will be ultimately controlled by people who are unlikely to pose the conflict of interest risks that the governor of a small territory might pose.

Marianas Pride said...

Cactus, please check out Sam Mcphetres' article on federalization in the Jan-Feb issue of MP Magazine. Sam Mcphetres is a well-respected historian and is apolitical. I think he hits the nail right on the head, without any political spin. Perhaps after you read that article you will have a better understanding of the covenant agreement regarding federalization on immigration and labor and minimum wage. Please don't be suckered in by this administration's hired lobbyists.

Marianas Pride said...
This comment has been removed by the author.
Anonymous said...

i have read both bills and it is very confusing to me. i think it is easier to make a desision by looking at who thinks it is good for us and who thinks it is bad.

i have seen deanne siemer and her husband and some other people for this bill. none of them have ever spoke to me.

i have also seen ed propste, ron hodges, and know wendy doromal very well. ed and ron have both opened and held the door for me and wendy contacts me to ask about my family. so who do i think cares about me? i think the second group.

if the new bill from the US has problems i know who would try to iron them out for the poor people.

Anonymous said...

i have read both bills and it is very confusing to me. i think it is easier to make a desision by looking at who thinks it is good for us and who thinks it is bad.

i have seen deanne siemer and her husband and some other people for this bill. none of them have ever spoke to me.

i have also seen ed propste, ron hodges, and know wendy doromal very well. ed and ron have both opened and held the door for me and wendy contacts me to ask about my family. so who do i think cares about me? i think the second group.

if the new bill from the US has problems i know who would try to iron them out for the poor people.

cactus said...

James: The analysis is as ambiguous as the Covenant itself, and contains much to support either side of this debate.

HBM: So you take the view that the federal power in the CNMI is just as great as in the territories? That strikes me as contrary to the history and purpose of the Trusteeship, and even to already existing judicial decisions. It also goes considerably beyond what even James is saying, which I take to be limited to the immigration issue, and not to apply to other issues where federal power is not specifically mentioned in the Covenant. At least, the section-by-section analysis that he recommends says things like: "This is a guarantee of local self-government which has not been made by the United States to territories such as Guam and the Virgin Islands."

MP: I will read Sam's article at your recommendation, but, having heard him speak on subjects like this before, I think you are kidding yourself to call him "apolitical." He has long been a leading advocate of the maximum-federal-power viewpoint (although his textbook tries to be fair, recognizing "that there are different opinions about the meaning of some of the key provisions" of the Covenant, and suggesting "federal sovereignty vs. internal self-government" as a class debate topic!).

Anonymous: Happy Easter to you and all your family. I wish you all the best, whoever you are.

HBM said...

Reasonable points, Cactus, but I'm still not with you. As to the points directed to me, Guam and the USVI derive their right of self-government through organic acts, which can be amended by Congress unilaterally. Hence they don't have a "guarantee" of self-government in the same nature that the CNMI does through its bilateral document. The "self government" that we grant to the CNMI still has to be interpreted consistently with the authority that the Covenant gives Congress to control immigration, wages, etc. As to matters other than immigration and the other things specifically mentioned in the Covenant, we don't need to reach that question to conclude that Congress can assert federal control over immigration and not violate the "self-government" concept mentioned in the Covenant. That's the central point here. Yes, the CNMI can only be a "territory" under the U.S. Constitution, and that may present interesting questions regarding whether a future Congress would be bound by the approval by a past Congress of the Covenant. If that question ever comes up, you and I will be on the same side, defending the Covenant. But on immigration, that question is clearly answered in the Covenant itself, and I think that trying to oppose federalization on some vague, undefined notion of "self government"--contrary to limits on "self government" which are clearly defined--is wrongheaded and a waste of time. This is a good discussion, though.

Anonymous said...

R these mainland lawyers planning to sue or get an injunction to block the feds? Will they spend NMI money? Who will make money on it? Does the 27 Congresspersons we pay millions of unaccountable money have a say in it or is Ben and his mainland lawyers make the decisions for the people here?

cactus said...

You're right, this is a good discussion. (For example, it's a whole lot better than the one a few posts up, about the permanent residency proposal.)

On the "territory" issue, I think the Constitution is actually more flexible on that point than you give it credit for. (The broad scope of the treaty clause comes to mind, for example.) But I won't get into that in depth because, like you say, I think we would ultimately end up on the same side of it.

Since we are just looking at immigration, I would agree that the guarantee of self-government must be reconciled with the immigration power. I would submit, however, that the immigration power must also be reconciled with the guarantee of self-government.

That is especially true because that guarantee (unlike the immigration power) is not just another clause among many. Self-government was the raison d'etre of the Trusteeship. As such, it is the canvas the Covenant is painted on, the field it was planted in, the ONLY provision that the Covenant could not be without.

As such, it is no more "vague" or "mythical" than such equally general, yet equally fundamental, constitutional guarantees as "due process" and "equal protection," and, like them, it is relevant even where more specific provisions are involved. For example, the US Constitution very specifically grants Congress the power to "define and punish piracies and felonies committed on the high seas." However, such punishment still cannot be imposed without due process, nor can the punishment be "cruel and unusual."

This is, of course, in both cases, not necessarily an all-or-nothing, one-or-the-other proposition. There probably are ways to apply federal immigration laws to the CNMI without infringing on local self-govermnment. (I don't just think this bill is one of them.) The point is that the issue is important enough that you have to look at it case by case. If this seems like a more ill-defined question than whether "due process" is observed, that is only becuase the latter question is more familiar from decades of usage and application. Our question is newer, but we owe it to ourselves and our children to ask it.

As to your earlier point on "despotism," I would just point out that benevolent despotism is still despotism. It could well be argued that British rule in America was not really so bad, or Spanish rule here, or present-day Chinese rule in Hong Kong. That, however, is a political Rubicon I am unwilling to cross. The fact that the political situation is far worse in Tibet is no more conclusive of how things should be done here than the fact that wages are far lower in the Philippines.

Anonymous said...

When will our local Congress make some statement and take some position on something for all they are paid.

Who the hell is Deanne Siemer anyway. I have never seen this lady and did not vote for her.

Our local government is looking like complete Jackasses to Washington DC for sitting around with their thunb stuck up their arse.

HBM said...

Dang, Cactus, you are one stubborn SOB. :-) Of course a statute is inherently subject to the Constitution, but reconciling two provisions of the same document is a different story. If Congress' authority to assert control over immigration was somehow subject to an undefined right of "self-government", the drafters could have slipped in a "subject to the right of self-government" clause when discussing federalization. They didn't. Since there's a clear and logical way to harmonize the Congress' authority to assert control over immigration with the right of self-government, I can't see a responsible court following your theory. On the importance of "self government" as a principle of the trusteeship, it's pretty clear that as far as the UN is concerned, the duties of the U.S. were discharged when the people of the NMI freely chose to submit to U.S. sovereignty. Any special rights should have been (and were!) clearly spelled out in the Covenant. We'll just have to agree to disagree on whether the treaty clause of the U.S. Constitution applies here (and in any event, the territories clause clearly does), and whether the arrangement freely chosen by the people of these islands can be called despotism, benevolent or otherwise. These legal theories may be fun for us to debate, but if the CNMI ever tries to put any of this to the test in a lawsuit after the federalization bill passes, it will be, in my humble opinion, futile and a criminal waste of the taxpayers' money. But it's OK for you to have your opinion and me to have mine, because we're not living under despotism! Peace.

cactus said...

1. You misread my example. I did not refer to any statute, but rather to two separate provisions of the same document (the US Constitution).

2. Why do you keep calling self-government "undefined?" It was repeatedly defined by the UN during the Trusteeship. In fact, I think the root of our differences may be that you are looking at the Covenant solely as a bilateral US-NMI agreement, as if it were written on a clean slate and divorced from any relation to the Trusteeship, whereas I am looking at it as the historic outgrowth and culmination of the Trusteeship, which can only be accurately understood with reference to the purposes of the Trusteeship.

3. Actually, the territories clause does not apply in the CNMI. It is omitted from the Covenant's list of applicable constitutional provisions, as federal courts have noted on several occasions. An argument could perhaps be made that it applies implicitly, but you definitely overstate your case to say that it "clearly" applies.

cactus said...

By the way, I agree with the last Anonymous. What good is our right of self-government when our own legislators, through whom we exercise that right, stand there like deer in the headlights, acting as if they had never heard of such a thing?

Unfortunately, they seem to have been told so often and by so many people that they have no real power in the face of federal usurpations that they have come to believe it. They are therefore abdicating their responsibility to the people, and others are rushing from every direction to fill the void. "The best lack all conviction, while the worst are filled with passionate intensity." (W.B. Yeats).

Anonymous said...

This is a disgraceful situation. Amen to whoever said when will our government do SOMETHING. Are they still against federalization?

Shouldn't it be part time residency since we must repatriate 6 months of every three years? There is no provision or budget for our AMERICAN CITIZEN CHILDREN. This Conress is so clueless we have an old hoale lawyer calling the shots for a lost administration.

Anonymous said...

Do you fu*&ing americans and guest workers think we like taking orders from the B&%ch? We don't and we want the feds more than you.

HBM said...

Cactus, my bad for reading your post too fast (although it doesn't affect my conclusion), but your bad for, in my opinion, misplacing your melodrama. The folks you're defending here are not the freedom-fighting idealists of the American Revolution. They're fighting for the right to keep a guest worker majority silent, disenfranchised and in its place. They're fighting for the right to give one person, the governor (not just Fitial; any governor), the right to issue "exemptions" that avoid all rules, standards and fairness--amidst a human tragedy where many have been scammed into going deep into debt for the right to work in "America", only to find upon arrival that there is no job here (unless they're willing to become prostitutes...). What we have here is despotism. It is not despotism to correct this by having the Federal Government control immigration, recognizing that a small community within a large nation, no matter how noble the community, will inherently have too many conflicts of interest to handle this function properly. I think your heart is probably in the right place, but it is, in my opinion, leading your head in the wrong direction. Feel free to say the same about me and we can respectfully agree to disagree. Peace.

cactus said...

Well, HBM, what can I say? I regret I must leave you unpersuaded.

For my part, I cannot agree with you that the desired end (improving the lot of foreign workers) justifies the means chosen (federal takeover of labor and immigration). It is not at all certain that this means will even lead to that end (labor abuse happens in the US too, you know), but frankly I could not support it even if it were.

I am as completely opposed as you are to any employer cheating or bullying his workers. If the people you call "the folks you're defending" are the people I think they are, I am no friend of theirs. On the contrary, I think they are rats, and that our house is infested with them. However, I cannot imagine how many rats there would have to be, and how big they would have to be, before I thought it was a good idea to bring in a tiger to chase them out.

I believe that our only choice is to fight the rats ourselves. It is hard work, but we are as capable of it as any people anywhere, and it's a whole lot easier than spending the rest of our lives trying to tame a tiger.

Best wishes.

HBM said...

I can respect that. However, my issue with allowing the "rat problem" to be handled locally is that it presents, in my opinion, too great a risk that too many innocent people will continue to suffer. The evidence is all around you. The pain the victims are suffering is real, not theoretical. I agree that ends should not be used to justify improper means. Our major disagreement is on whether federalization is a proper means, and I strongly believe that it is. You're right that federal control is not a panacea, but I'll bet the ranch that the abuses we're seeing now (especially the labor scams, the trafficking in exotic dancers who become prisoners in their barracks, etc.) will be much less prevalent under federal control. I actually didn't think your last post needed a response, but I really wanted to get to 50 comments! Cheers.

HBM said...

And to take it to 51 comments, do you really see the federal government as a vicious tiger? It's more like a bumbling chimpanzee.

cactus said...

Hmmm...

A tiger, I think, is not so much “vicious” as huge, powerful, inherently menacing, and impervious to control, or even influence, by anyone or anything -- except a bigger tiger.

A tiger presumes its own supremacy, and has the muscle to back up the presumption. It is at the top of the food chain. It has no fear of man. It recognizes no limits on its own, shall we say, “discretion.” It may sleep, sometimes at length, but it wakes up unpredictably and is unpredictable when it wakes. It follows its own interests and inclinations, acts for its own reasons, and when its does anything that may accord with the wishes of man, it is only because doing so also, by sheer coincidence and only for the moment, also accords with the wishes of the tiger.

A chimpanzee is considerably more manageable. For all its bluster, it is pliable and trainable. It is noisy and boastful, but it is more show than substance. It is easily intimidated by a show of strength, even an empty one. When threatened, it is more inclined to flee, chatter in the trees, and hurl abuse from a distance than to stand its ground.

So, all things considered, I will stick with my characterization of the federal government as a tiger.

We, however, may be the chimps.

Anonymous said...

Fitial for Governor may be the most comical story of 2008. I would vote for a filipino or haole before I would vote for Ben & Tim.

HBM said...

Well, Cactus, even though we're still pretty far apart on the underlying issue, at least you can't be accused of being one of those people who makes animal analogies without putting much thought into them. Don't you just hate people who don't put enough thought into their animal analogies?

cactus said...

OK, maybe that was a litle more than you asked for -- but you did ask!

Armchair Lawyer said...

Now is the time for all good men to be admitted to the U.S. District Court for the District of Columbia!

The true fault of the despotic takeover legislation lies not in self-government arguments, but excessive pre-emption, due process and equal protection violations.

The self-government arguments have been largely put to rest by the United States ex rel. Richards v. De Leon Guerrero (9th Cir. 1993) case, though of course the D.D.C. and D.C. Cir. are not bound by the Ninth Circuit, and so the "balancing test" might be improved upon.

What is outrageous is how the federal government has tried to ram this abortion of a bill down our throats, with a wholesale and micromanaged takeover of government and economic functions found in no other community of the United States -- in grave derogation of the CNMI's due process and equal protection -- to such an extent that the "five federal agencies" have been granted such carte blanche that the U.S. Congress is essentially voting on a pig-in-a-poke whose gravemen and implementation are dependent wholly on unwritten regulations.

"Do something! Anything! Trust us!" Right, Uncle Sam.

As much as Allen Stayman, David B. Cohen, the Ombudsperson, and Dekada Shyster try to assure us that immigration federalization is the solution for all the Commonwealth's ills, they assiduously refuse to do the studies necessary to analyze its potential impact on the CNMI! Even the tiniest construction project in the mainland is required to have a more comprehensive impact report than what the feds are doing to us. Shoot first; ask questions later. Outrageous!

What is the most evil and malevolent about the takeover perpertators' modus operandi is that they are using FEDERAL FAILINGS as an excuse for this travesty.

That's right, federal law enforcement shortcomings -- with attention diverted from them by all the talk about the labor victims in the CNMI, and blaming the local government.

For years, human trafficking, forced prostitution, and transportation of victims of fraud have been federal offenses. Why have we only had three (sometimes fewer) Assistant U.S. Attorneys since 1997? Why has the number of FBI Special Agents gone down? Why has the CNMI never had a single Chinese-speaking FBI agent, or even an FBI-certified translator? Why has the CNMI never had a U.S. Attorney who is admitted to the NMI Bar Association? How many of the 13 AUSAs ever stationed here were so admitted? Why has there been no U.S. Immigration & Customs Enforcement agent posted permanently in the CNMI since 2003? Why is there no EEOC attorney permanently stationed here? How many Title III phone intercepts has the federal government done in the CNMI over the last decade?

The federal government has been woefully lackadaisical and disinterested in assigning sufficient resources for these urgent ongoing law enforcement problems.

We are to expect that their implementation of immigration will somehow be so much better? We've already seen first-hand how the feds operated during the Trust Territory days.

If the federal government really wants to solve the problems of illegal labor abuses, they merely need to double the law enforcement resources applied in the CNMI, at a fraction of the cost of the ill-conceived, politically motivated federal takeover legislation.

If potential corruption by a CNMI governor is used as another reason not to trust local immigration control, all the more reason for adequate law enforcement resources here. How about a Chamorro-speaking FBI agent, so they can do proper electronic surveillance?

Federal law enforcement presence in the CNMI is abysmal, and is not something that should be run "on the cheap."

Let the feds follow existing federal law before passing outrageous bills as a matter of naked political power, which is what the current proponents of the legislation are undertaking now.

The current federalization proposal is a travesty of justice.

Anonymous said...

Has it ever occurred to you, Armchair Lawyer, that the local control over immigration makes it much more expensive for the federal government to enforce its existing laws? All those scammed trafficking victims that get in on "governor's exemptions", for example, create a greater burden on federal officials charged with fighting human trafficking. Your solution seems to be to allow local authorities carte blanche to create as many problems for the feds as possible, and have the feds pick up the open tab. The feds, on the other hand, are getting tired of being on the hook for an open-ended obligation arising from the acts and omissions of the local government. They're now saying that if the CNMI is going to create problems for them by virtue of whom they let in, then maybe it's time for Congress to exercise it's authority to control who gets in. This is true regardless of what the studies say. The studies can help mitigate any economic impact during the implementation phase, but they do not answer the threshold question of whether federalization is necessary. That question has already been answered through the actions and inactions of the local government.

Armchair Lawyer said...

The cost of properly enforcing existing federal law is but a fraction of what it would cost to federalize immigration.

If Governor Babauta or Froilan Tenorio or whomever were causing problems by improper exemptions, the solution is NOT to ignore existing federal law in the CNMI, which is what the feds essentially have been doing for decades by trying to run federal law enforcement on the cheap.

This is a major shortcoming of the Department of the Interior in the CNMI, failing to advocate for urgently needed resources to protect the workers.

There is no "open-ended obligation" unique to the CNMI; basic criminal law enforcement is a fundamental federal duty over which the United States has been remiss for decades.

The need for such law enforcement is not caused by CNMI immigration control. The same issues exist on Guam, e.g., the "Blue House" human trafficking case, fake passports and human smuggling from Korea, fake drivers licenses on Guam, boats from China to Ritidian Point, ad nauseum.

Guam has also been shortchanged to an extent in its federal anti-corruption resources, the result of "only" a non-voting delegate there.

Rather than giving local leaders a blank check to lie, cheat, and steal, having adequate federal law enforcement resources here would put the kibosh on that real quick.

To say that "federalization is necessary due to all the CNMI-caused problems," without even considering the fact that the major cause of the problems is the minimal federal law enforcement presence is abject scape-goating of the worst nature gone amok, compounded by the utter failure to do any sort of economic studies beforehand.

Using such studies solely to (futilely try to) "mitigate" the after-the-fact consequences of federalization-at-all-costs shows how utterly morally decrepit and ethically bankrupt the federalization advocates are, falling well within the parameters of despotism.

The question of the necessity for federalization has been answered only in the minds of those result-oriented federalizers pre-disposed to find the answers they are looking for and resolutely determined to apply raw, naked political power in the most brutal fashion in the halls of Congress against the poor inhabitants of the Commonwealth of the Northern Mariana Islands.

The first betrayal of the Covenant has been the failure of the United States to enforce laws that have been on the books for decades.

An even worse betrayal will be the heedless economic punishment of the most powerless in our society, by those who claim to espouse the highest and noblest ideals, if the federalizers attain their misguided end.

It is never too late to do the right thing.

Anonymous said...

So in summary: The CNMI has an inherent right to continue to bring in large numbers of vulnerable people from high risk countries, and it's the responsibility of the federal taxpayer to continue to clean up the mess. How dare those dirty rotten feds try to prevent us from making a bigger mess, when they refuse to spend more taxpayer money to clean up our mess. When the feds attempt to assert control over the situation by federalizing immigration on rules that are much more generous than those that apply to everywhere else in the country, that's despotism. I guess that means that it's despotism for the feds to exercise immigration control over the rest of the country as well. Good luck with those arguments.

Anonymous said...

"It is never too late to do the right thing."

True. The Federal Government should have federalized immigration years ago.

Anonymous said...

The Federal Government should have appointed a resident U.S. Attorney decades ago.

As for the "mess" and bringing in people from high risk countries, some people (especially Interior bunglecrats) haven't noticed that Foreign National Workers have declined from 30,000 to less than 20,000 in the CNMI and are still leaving because the House Democrats blocked local content percentage reductions that would have kept the garment industry several more years.

What hasn't changed is the feds' refusal to provide the most rudimentary services in the CNMI, such as more than two or three federal prosecutors. Has anyone tracked their caseload? [Hint, you can't simply look at the number of criminal cases in federal court each year, because the court double-counts by giving separate numbers to the same case initiated by complaint and then indicted by the grand jury.]

By contrast, note the many multiples more of law enforcement resources going to the U.S. Virgin Islands.

The feds are getting so cheap in the CNMI that for the past five years, anyone wanting a green card or U.S. citizenship has had to fly to Guam (formerly INS/USCIS flew up quarterly for interviews), even though this constitutes a severe financial hardship. Very few people anywhere in the U.S. have to pay as much to obtain benefits. [Hint, there are few immigrants to the Alaskan bush.]

The level of basic federal services in the CNMI is deplorable. Of course, the "liberal" federalizers whine about how the CNMI pays no federal income taxes.

However, there are rural areas all over the country who receive far more in services than they pay in, and the CNMI is indeed paying the U.S. through the surrender of Tinian and Farallon de Medinilla for the national defense, not to mention the blood of our soldiers. We are paying plenty, and a deal is a deal.

Yet the feds are not paying even the bare minimum to meet the obligations they have already undertaken.

Is it anything less than despotic and outrageous for them to make a power grab that will be likewise under-funded, and lead to the ruination of our economy, without even the most elementary study?

The feds should clean up their own mess first, starting with inadequate resources for basic federal law enforcement and what limited immigration law applies here already.

Fix your own house first, Allen Stayman, Ombudsperson, and your ilk, before you lecture us on how you're going to clean up "the CNMI's mess." The lack of federal services is the major cause of the problem.

Despicable.

Anonymous said...

Armchair lawyer - Are you now infavor of an impact study to stall federalization as well as NMI residency?

Armchair Lawyer said...

The purpose of the impact study is not to "stall federalization," but so that Congress may enact any needed legislation knowingly, fully weighing its merits and demerits rather than acting out of passion.

No less than the U.S. Congress has required an impact study for every non-trivial project in the country. It should do no less itself.

As for local permanent residence, I have favored that for decades. The so-called "stateless aliens" case was wrongly decided. It would also have been largely unnecessary if the CNMI had granted permanent residence to the CNMI-born aliens.

There are still a few folks born in the CNMI after January 1, 1974 until the effective date of that decision who need some sort of humanitarian relief, either by the U.S. Congress or CNMI Legislature and voters.

Allowing CNMI Permanent Residence for Foreign National Workers who have worked here ten or fifeen years is not only a just and humanitarian thing to do, it would also relieve some of the pressure on the CNMI for not "getting it right," and would strengthen local self-government.

We could also allow them to serve on local juries, which would be more progressive than even the U.S. mainland (just as our immigration exit control is better than U.S. Customs and Border Protection).

The United States is strengthened by its diversity of peoples and ideas. One size does not fit all, particularly given the CNMI's economic constraints caused by geographic differences.

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