1
500
6
-
https://clinton.presidentiallibraries.us/files/original/8c8a9e0d8ce87367e0080acfa1ecf566.pdf
8201616d081619284389e6f5906938e8
PDF Text
Text
Clinton Presidential Library
1200 President Clinton Avenue
Little Rock, AR 72201
Inventory for FOIA Request 2006-0193-F
Records concerning Guam
Extent
523 folders, approximately 16,837 pages
Access
Collection is open to all researchers. Access to Clinton Presidential Records is governed by the
Presidential Records Act (PRA) (44 USC 2201) and the Freedom of Information Act (FOIA) (5 USC
552, as amended) and therefore records may be restricted in whole or in part in accordance with legal
exemptions.
Copyright
Documents in this collection that were prepared by officials of the United States government as part of
their official duties are in the public domain. Researchers are advised to consult the copyright law of the
United States (17, USC 101) which governs the making of photocopies or other reproductions of
copyrighted material.
Provenance
Official records of William Jefferson Clinton’s presidency are housed at the Clinton Presidential Library
and administered by the National Archives and Records Administration (NARA) under the provisions of
the Presidential Records Act (PRA).
Processed by
Staff Archivist, December 2010. Previously restricted materials are added as they are released.
Scope and Content
The materials in FOIA 2006-0193-F are a selective body of documents responsive to the topic of the
FOIA. Researchers should consult the archivist about related materials.
The Territory of Guam was ceded to the United States by Spain in 1898 as part of the Treaty of Paris.
Guam was captured by Japan in 1941 during World War II. The United States fought the Battle of Guam
on July 21, 1944 and retook posession of the island. Guam provided the United States with a
strategically important base in the Pacific. The Territory of Guam is governed by the Organic Act of
Guam, signed into law August 1, 1950. The Organic Act designated the island of Guam as an
unincorporated territory of the United States. The Act established executive, legislative, and judicial
branches, and transferred Federal jurisdiction of the Island to the Department of the Interior. The 1952
Immigration and Nationality Act granted U.S. citizenship to all Guamanians born after April 11, 1899.
In 1968, the Elective Governor Act allowed the people of Guam to choose their governor and lieutenant
governor.
2006-0193-F
http://www.clintonlibrary.gov
-1-
�FOIA request 2006-0193-F consists of correspondence, memoranda, press clippings, reports, and
speeches concerning the Territory of Guam. The responsive records cover many topics concerning
Guam, but primarily focus on the following: the political status of the Territory, political reform,
proposed legislation affecting the Territory, the proposed Guam Commonwealth Act, economic
development, the tourism industry, the United States Military’s use of land in Guam, presidential visits
to Guam, and immigration policy.
A primary concern in this collection is Guam’s efforts at obtaining some form of self-rule while
maintaining a relationship with the United States. Guam’s formal quest for commonwealth status began
in 1982 following a referendum vote by the people of Guam to seek Commonwealth status.
Negotiations began, and continued in some form, through the Reagan and Bush Administrations and
were active during President Clinton’s years in office. Under the Clinton administration, federal review
of the Guam Commonwealth Bill continued with the assistance of the adminstration’s Special
Representatives for Guam Commonwealth. Although the Guam Commonwealth Bill was not passed
under this administration, several other bills pertaining to Guam became law under the Clinton
administration, including the Guam Excess Lands Act, a bill establishing a standard time zone for
Guam, a bill regarding the elections of a delegate from Guam, the Guam Omnibus Opportunities Act,
and the Guam Organic Act Amendments of 1998.
Also of note are the visits of both First Lady Hillary Rodham Clinton and President Clinton to Guam
during the Clinton administration. In September of 1995, the First Lady visited Guam on her way to the
Fourth World Conference on Women in China. President Clinton visited Guam and made several public
appearances in November of 1998.
System of Arrangement
Records that are responsive to this FOIA request were found in these collection areas—Clinton
Presidential Records: White House Office of Records Management (WHORM), Clinton Presidential
Records: WHORM Alpha Files, Clinton Presidential Records: WHORM Subject Files, Clinton
Presidential Records: WHORM (OP), Clinton Presidential Records: WHORM Various Office, Clinton
Presidential Records: WHORM Unclassified NSC Records Management System, Clinton Presidential
Records: White House Staff and Office Files, Clinton Presidential Records: Automated Records
Management System (ARMS) [Email], Clinton Presidential Records: Tape Restoration Project (TRP)
[Email], and Clinton Presidential Records: NSC Cable, NSC Email, and NSC Records Management
System.
The White House Office of Records Management (WHORM) contains a variety of series created to
organize and track documents and correspondence. The WHORM Alpha file was compiled by the
White House Office of Records Management from 1993 – 1996 and is a series of documents arranged
by name of persons, organizations, and events. The WHORM Subject File was compiled by a
letter/number combination. In addition, there are WHORM, WHORM Counsel, WHORM (CL),
WHORM (OP), WHORM (Too Late), WHORM (Various Offices); and WHORM (Alpha Project)
series.
Staff and Office files were maintained at the folder level by staff members within their individual offices
and document all levels of administrative activity.
WHORM files are processed at the document level; wheras, Staff and Office files are processed at the
folder level, that is, individual documents are not selected and removed from a folder for processing.
While this method maintains folder integrity, it frequently results in the incidental processing of
documents that are not wholly responsive to the subject area.
2006-0193-F
http://www.clintonlibrary.gov
-2-
�The Automated Records Management System (ARMS) is a database that contains email records of the
Executive Office of the President. This system maintained unclassified Presidential Records email. The
ARMS dataset is comprised of 6 sub-series of email records called ―Buckets.‖ The buckets include
NPR, OPD, POTUS, WHO, CEA, and Default. ARMS emails are arranged chronologically by creation
date.
The Tape Restoration Project (TRP) is a database consisting of restored emails from the Automated
Records Management System from July 1994 through June of 2000. The TRP is a database that
contains email records of the Executive Office of the President. This system maintained unclassified
Presidential record email. The TRP dataset is comprised of 6 sub-series of email records called
―Buckets.‖ The buckets include NPR, OPD, POTUS, WHO, CEA, and Default. ARMS emails are
arranged chronologically by creation date.
The following is a list of documents and folders processed in response to FOIA 2006-0193-F:
Box 1
Clinton Presidential Records: WHORM Alpha File
Category
Case Number
AF
248435 [Guam]
AF
254501 [Guam]
AF
269567 [Guam] [1]
AF
269576 [Guam] [2]
AF
272147 [Guam]
AF
278166 [Guam]
AF
307568 [Guam]
AF
308837 [Guam]
AF
411414 [Guam]
AF
414603 [Guam]
Clinton Presidential Records: WHORM Subject File
Category
Case Number
AT
124367
BE
431572
CM014
280513
CO023
167250
CO038
243906SS
CO038-01
157338
CO068
241671
CO085
416578
CO123
316771
DI002
246288SS
FA
276763
FE003
282544
FE004
154425SS
FG001-02
069784SS
FG001-02
104327
FG001-06
280473
FG001-08
230100SS
2006-0193-F
http://www.clintonlibrary.gov
-3-
�Clinton Presidential Records: WHORM Subject File (continued)
Category
Case Number
FG001-08
246316SS
FG001-08
284411SS
FG002-39
147426
FG006-01
050054
FG006-01
218730
FG013
317428
FG017
091726
FG017
151092
FG017-08
014323CU
FG017-08
094448
FG017-08
149915
FG017-09
228559SS
FG018
419064
FG018-03
024882
FG025
207724
FG031
008814
FG033
002225
FG342-03
056227
FG488
120072
FG488
120153
FI004
198738
FI004
297463
FI004
299963
FI004
404357
FI004
431655
FI004
431874
FI004
431879
FO008
147892
Box 2
Clinton Presidential Records: WHORM Subject File
Category
Case Number
GI002
287122
GI002
288871
HO
068704
HO
068837SS
IM
222303
IM
301653
IS001
433776
IT083
263767
IV
084996
IV
148085
IV
194163
IV
195102
IV094
048264
IV094
057842
IV094
057988 [Guam]
2006-0193-F
http://www.clintonlibrary.gov
-4-
�Clinton Presidential Records: WHORM Subject File (continued)
Category
Case Number
IV094
061270
IV094
066087
IV094
069385
IV094
074891
IV094
082398SS
IV095
094578
IV095
131734
IV095
134120SS
IV096
146435
IV096
188809
JL001
413842
JL003
311999
ME001
262460
ME001-03
127595
ME002
042282 [Guam]
ME002
042361 [Guam]
ME002
088010 [Guam]
ME002
121167
ND007
137436
ND007-01
301633
ND009-01
063186
ND009-03
119863
ND015
171166
ND016
129441
PA003
288853
PA003
289039
PE002
007450
PE002-01
251641SS
PL
156403
PP005-01
132990
PP005-01
133008
PP005-01
133014
PQ
075782
PR010
269119SS [Guam]
Box 3
Clinton Presidential Records: WHORM Subject File
Category
Case Number
PR012
277028
PR012
418391
PR012-01
215801
PR012-01
217280
SO003
115829
ST
203209
ST051
038489
ST051
063051
ST051
252408
2006-0193-F
http://www.clintonlibrary.gov
-5-
�Clinton Presidential Records: WHORM Subject File (continued)
Category
Case Number
ST051
286761SS
ST051-01
001903
ST051-01
015234
ST051-01
016753
ST051-01
026925
ST051-01
040447
ST051-01
056921
ST051-01
058162
ST051-01
059148
ST051-01
068934
ST051-01
070039
ST051-01
070521SS
ST051-01
088038
ST051-01
103048
ST051-01
114979
ST051-01
127421
ST051-01
166998
ST051-01
189498
ST051-01
199385
ST051-01
201544SS
ST051-01
239943SS
ST051-01
265430
ST051-01
265434
ST051-01
265442
ST051-01
265449
ST051-01
271253
ST051-01
431824
ST051-01
434024
TR185
162994
TR318-04
301917
TR318-05
286030SS
TR318-05
303899
UT001-03
228330
WE001
283281SS
WE007
431726
Clinton Presidential Records: WHORM Subject File CF
Category
Case Number
FO003-02
198845SS
Clinton Presidential Records: WHORM: (OP)
Category
Case Number
AF
233382 [Guam]
AF
234046 [Guam]
AF
253780 [Guam]
AF
269517 [Guam]
AF
291696 [Guam]
AF
312054 [Guam]
2006-0193-F
http://www.clintonlibrary.gov
-6-
�Clinton Presidential Records: WHORM: Various Offices
Category
Case Number
AF
225433 [Guam]
AF
225814 [Guam]
AF
228572 [Guam]
AF
252778 [Guam]
AF
275270 [Guam]
Box 4
Clinton Presidential Records: WHORM Unclassified NSC Records Management System
[Guam]
Case Number: 9301922 [OA/ID 459]
Case Number: 9304380 [OA/ID 1375]
Case Number: 9305146 [OA/ID 1376]
Case Number: 9305568 [OA/ID 1377]
Case Number: 9305569 [OA/ID 1377]
Case Number: 9305570 [OA/ID 1377]
Case Number: 9401872 [OA/ID 4885]
Clinton Presidential Records: White House Staff and Office Files
Agency Liaison
AF
280452 [OA/ID 12197]
Cabinet Affairs
Balderston, Kris
Guam [OA/ID 11547]
Guam 12/17/97 [OA/ID 12883]
Guam 1997 [OA/ID 11549]
Guam Interior [OA/ID 11548]
Glunz, Billy
12/12/00 – Guam – FEMA 11 93 –OR From 12/17/97 [OA/ID 21632]
Silverman, Stephen
Guam Denial 2/4/97 [OA/ID 11414]
Subject Files
Appeal – Guam Denial June 21, 1999 [OA/ID 18001]
Guam 4/9/99 Fires Denial [OA/ID 18001]
Box 5
Clinton Presidential Records: White House Staff and Office Files
Chief of Staff
Bowles, Erskine
Guam [OA/ID 12885]
Ickes, Harold
Guam – General [OA/ID 9171]
Panetta, Leon; Bowles, Erskine
[January 30, 1997 – Letter to Erskine Bowles from Mary Eva Candon about
Guam] [loose] [OA/ID 15109]
2006-0193-F
http://www.clintonlibrary.gov
-7-
�Clinton Presidential Records: White House Staff and Office Files (continued)
Chief of Staff
Shea, Tom
Guam [OA/ID 8436]
Clerk’s Office
LE 416740 [Guam] [OA/ID 15569]
Dec 23 2000 [Guam] [OA/ID 22056]
Jul 29 1998 [Guam] [OA/ID 15581]
Nov 22 2000 [Guam] [OA/ID 22055]
Oct 27 1998 [Guam] [OA/ID 15582]
Communications
Guam [OA/ID 11831]
Guam Trip 11/23/98 [OA/ID 19983]
Correspondence
Dickey, Lana
233913 [Guam] [OA/ID 10122]
236034 [Guam] [OA/ID 10081]
Counsel’s Office
Band, Doug
Guam [empty] [OA/ID 11446]
Chirwa, Dawn
Puerto Rico / Guam Bills: Puerto Rico and Guam Bills [1] [OA/ID CF 1674]
Puerto Rico / Guam Bills: Puerto Rico and Guam Bills [2] [OA/ID CF 1674]
Imbroscio, Michael
CEA – NR to narrowed request [OA/ID 12733]
Counsel’s Office – Lisa Hertzer & M. Imbro [OA/ID 12733]
Counsel’s Office – Lisa Hertzer and M. Imbro – Counsels (Imbroscio) Date N/R
(July / Aug 97) [OA/ID 12733]
Farrow [1] [OA/ID 12734]
Farrow [2] [OA/ID 12734]
Farrow [3] [OA/ID 12734]
Box 6
Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Imbroscio, Michael
Gray 1 – 1,999 – GUAM Source OMB N/R [1] [OA/ID 12733]
Gray 1 – 1,999 – GUAM Source OMB N/R [2] [OA/ID 12733]
Gray 1 – 1,999 – GUAM Source OMB N/R [3] [OA/ID 12733]
Gray 1 – 1,999 – GUAM Source OMB N/R [4] [OA/ID 12733]
Gray 1 – 1,999 – GUAM Source OMB N/R – OMB / Nat Sec 8/11/97 – Guam
Land Issues [1] [OA/ID 12733]
Gray 1 – 1,999 – GUAM Source OMB N/R – OMB / Nat Sec 8/11/97 – Guam
Land Issues [2] [OA/ID 12733]
Gray 1 – 1,999 – GUAM Source OMB N/R – OMB / Nat Sec 8/11/97 – Guam
Land Issues [3] [OA/ID 12733]
2006-0193-F
http://www.clintonlibrary.gov
-8-
�Box 7
Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Imbroscio, Michael
Megan Moloney – Press Office – Non-Responsive [OA/ID 12733]
NSC Guam – N/R [1] [OA/ID 12733]
NSC Guam – N/R [2] [OA/ID 12733]
NSC Guam – N/R [3] [OA/ID 12733]
NSC Guam – N/R [4] [OA/ID 12733]
NSC Guam – N/R – NSC Asian [OA/ID 12733]
OMB (Guam) [1] [OA/ID 12733]
OMB (Guam) [2] [OA/ID 12733]
OMB (Guam) [3] [OA/ID 12733]
Johnson, Rochester M.
February 1997 Guam [OA/ID CF 1451]
Guam [OA/ID CF 1619]
Box 8
Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Lindsey, Bruce
Guam [1] [OA/ID 19518]
Guam [2] [OA/ID 19518]
Guam [3] [OA/ID 19518]
Marshall, Bill
Guam – 1997 Testimony on G.C.A. [Guam Commonwealth Act] [OA/ID 20350]
Guam – Background Information [1] [OA/ID 20350]
Guam – Background Information [2] [OA/ID 20350]
Guam – Contributions Issue [OA/ID 20350]
Guam – Department of Interior [OA/ID 20350]
Guam – Department of Justice [OA/ID 20350]
Guam – Guam Commonwealth Act 1996 [1] [OA/ID 20350]
Guam – Guam Commonwealth Act 1996 [2] [OA/ID 20350]
Guam – Guam Land Proposal [OA/ID 20350]
Guam – Memos for the President [OA/ID 20350]
Box 9
Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Ruff, Charles
Guam [OA/ID 13213]
Wilson, Sarah
District of Guam [empty] [OA/ID 22023]
Domestic Policy Council
Bueno, Irene
MISC-GUAM [OA/ID 17173]
2006-0193-F
http://www.clintonlibrary.gov
-9-
�Clinton Presidential Records: White House Staff and Office Files (continued)
Domestic Policy Council
Schmidt, Michael
Guam [OA/ID 7344]
Health Care Task Force
Edelstein, Steve
Underwood, Robert (D – GU) [Guam] [OA/ID 3676]
Intergovernmental Affairs
Elrod, Adrienne
Deterring Chinese Illegal Immigration to Guam [OA/ID 14761]
Emerson, John
[Guam Commonwealth Binder] [1] [OA/ID 9114]
[Guam Commonwealth Binder] [2] [OA/ID 9114]
[Guam Commonwealth Binder] [3] [OA/ID 9114]
Farrow, Jeffrey
[Binder – Guam Commonwealth Issues & Process] [OA/ID 24092]
[Binder – Guam Conservation Initiative – August 2, 2000] [OA/ID 24092]
Governors – Guam [1] [OA/ID 24087]
Governors – Guam [2] [OA/ID 24087]
Box 10
Clinton Presidential Records: White House Staff and Office Files (continued)
Intergovernmental Affairs
Farrow, Jeffrey
Governors – Guam [3] [OA/ID 24087]
[Guam - Gutierrez, Governor Carl T.C.] [1] [OA/ID 24088]
[Guam – Gutierrez, Governor Carl T.C.] [2] [OA/ID 24088]
Guam – Legislation [OA/ID 24997]
Guam – Legislation [1] [OA/ID 24092]
Guam – Legislation [2] [OA/ID 24092]
Guam – Legislation [3] [OA/ID 24092]
Guam – Various I [OA/ID 24087]
Guam – Various II [1] [OA/ID 24087]
Box 11
Clinton Presidential Records: White House Staff and Office Files (continued)
Intergovernmental Affairs
Farrow, Jeffrey
Guam – Various II [2] [OA/ID 24087]
Guam – Various III [1] [OA/ID 24088]
Guam – Various III [2] [OA/ID 24088]
Guam – Various IV [OA/ID 24088]
Guam – Various V [OA/ID 24088]
Guam – Various VI [1] [OA/ID 24088]
Guam – Various VI [2] [OA/ID 24088]
Presidential Visit to Guam –November 1998 [1] [OA/ID 24088]
2006-0193-F
http://www.clintonlibrary.gov
- 10 -
�Box 12
Clinton Presidential Records: White House Staff and Office Files (continued)
Intergovernmental Affairs
Farrow, Jeffrey
Presidential Visit to Guam – November 1998 [2] [OA/ID 24088]
Presidential Visit to Guam – November 1998 [3] [OA/ID 24088]
Hale, Marcia
Guam [OA/ID 9712]
Guam – Miscellaneous [OA/ID 11686]
Ibarra, Mickey
File: Guam [OA/ID 12618]
Guam [OA/ID 18199]
Guam – Telephone Call 11/12/98 [OA/ID 18199]
Mason, Keith
Georgia 3 –Guam KM – Guam – KM [OA/ID 3995]
O’Keefe, Kevin
Guam [OA/ID 9126]
Williams, Cecily
Guam [OA/ID 9901]
Legislative Affairs
Maldon, Al
[Draft: President William J. Clinton Talking Points for Reception Hagatna, Guam
November 23, 1998] [loose] [OA/ID 14161]
Murguia, Janet
Guam [OA/ID 11030]
Patel, Devanshu
Underwood, Robert – D – Guam [Democrat] [OA/ID 20417]
Box 13
Clinton Presidential Records: White House Staff and Office Files (continued)
Legislative Affairs
Subject Files
Rep [Representative] Robert Underwood (D [Democrat] Guam: Mail [empty]
[OA/ID 11143]
Rep [Representative] Robert Underwood (D [Democrat] Guam: Requests [empty]
[OA/ID 11143]
Wyman, Lucia
Guam [OA/ID 11837]
Guam Commonwealth [OA/ID 11837]
Guam Policy for Hearing 11/29 [OA/ID 11837]
Guam – Testimony [OA/ID 11837]
Millennium Council
Lovell, Ellen
Secretary Bill Cohen’s Letter to People of Guam [OA/ID 23066]
2006-0193-F
http://www.clintonlibrary.gov
- 11 -
�Clinton Presidential Records: White House Staff and Office Files (continued)
National AIDS Policy Office
[HIV/AIDS Reported in Guam 1994] [OA/ID 19402]
National Economic Council
Sperling, Gene
Guam-Guam [OA/ID 19271]
National Security Council
Asian Affairs
Guam 1993 [1] [OA/ID 64]
Guam 1993 [2] [OA/ID 64]
Guam, 1996 [OA/ID 1046]
Guam-Agency Positions [OA/ID 1046]
Guam-Agency Positions: [Department of] Justice [OA/ID 1046]
Guam-Agency Positions: [Department of] State [OA/ID 1046]
Guam-Agency Positions: Guam-DOI [Department of the Interior] Positions [1] [OA/ID 1046]
Box 14
Clinton Presidential Records: White House Staff and Office Files (continued)
National Security Council
Asian Affairs
Guam-Agency Positions: Guam-DOI [Department of the Interior] Positions [2]
[OA/ID 1046]
Guam-Agency Positions: Land/DOD [Department of Defense] [OA/ID 1046]
Guam-Notes and Miscellaneous [OA/ID 1046]
Guam-Notes and Miscellaneous: FAS [Freely Associated States] Guam [OA/ID 1046]
Guam-Notes and Miscellaneous: Guam-Clinton Trip [OA/ID 1046]
Guam-Notes and Miscellaneous: Guam Press Coverage [OA/ID 1046]
Guam-Notes and Miscellaneous: Land Bills [OA/ID 1046]
Guam-Notes and Miscellaneous: Old Drafts (Guam Commonwealth Act) [OA/ID 1046]
Guam-Notes and Miscellaneous: White House Group on Guam, January 1997
[OA/ID 1046]
Guam-Notes and Miscellaneous: Young Letter [OA/ID 1046]
Asian Affairs
Keith, James; Huso, Ravic
Guam, 1998 [OA/ID 1943]
Kristoff, Sandra
Guam, 1995 [OA/ID 1039]
Suettinger, Robert
Robert Uriu Notebooks: [Guam] [OA/ID 1044]
Assistant to the President for National Security Affairs
Lake Subject Files, 1993-1996
Guam [OA/ID 1465]
Defense Policy
Bell, Robert
Guam, March 1994 [OA/ID 745]
Seaton, James
Guam BRAC [Base Realignment and Closure Commission] [OA/ID 1236]
2006-0193-F
http://www.clintonlibrary.gov
- 12 -
�Box 15
Clinton Presidential Records: White House Staff and Office Files (continued)
National Security Council
Democracy, Human Rights, and Humanitarian Affairs
Halperin, Morton
Guam #1 [1] [OA/ID 492]
Guam #1 [2] [OA/ID 492]
Guam #1 [3] [OA/ID 492]
Guam #2 [1] [OA/ID 492]
Guam #2 [2] [OA/ID 492]
Guam #2 [3] [OA/ID 492]
Guam #2 [4] [OA/ID 492]
Guam #2 [5] [OA/ID 492]
Guam #2 [6] [OA/ID 492]
Box 16
Clinton Presidential Records: White House Staff and Office Files (continued)
National Security Council
Democracy, Human Rights, and Humanitarian Affairs
Halperin, Morton
Guam #2 [7] [OA/ID 492]
Guam #2 [8] [OA/ID 492]
Multilateral and Humanitarian Affairs
Busby, Scott
Guam [1] [OA/ID 2251]
Guam [2] [OA/ID 2251]
Press and Communications
Crowley, Philip J.
POTUS Trip to Japan, the Republic of Korea and Guam (November 18-23, 1998)
[1] [OA/ID 3464]
POTUS Trip to Japan, the Republic of Korea and Guam (November 18-23, 1998)
[2] [OA/ID 3464]
POTUS Trip to Japan, the Republic of Korea and Guam (November 18-23, 1998)
[3] [OA/ID 3464]
POTUS Trip to Japan, the Republic of Korea and Guam (November 18-23, 1998)
[4] [OA/ID 3464]
POTUS Trip to Japan, the Republic of Korea and Guam (November 18-23, 1998)
[5] [OA/ID 3464]
POTUS Trip to Japan, the Republic of Korea and Guam (November 18-23, 1998)
[6] [OA/ID 3464]
Staff Director
Soderberg, Nancy
Guam, 1997 [OA/ID 1404]
Office of Records Management
4/28/97 Charles Ruff Memo-First Lady Guam Section 1D 5/14/97 [OA/ID CF 1164]
2006-0193-F
http://www.clintonlibrary.gov
- 13 -
�Box 17
Clinton Presidential Records: White House Staff and Office Files (continued)
Political Affairs
Guam State File [OA/ID 5172]
Presidential Personnel
Brackett, Lee Ann
US Attorney –Guam [OA/ID 19237]
De la Garza, Veronica
DOI Commonwealth of Guam [OA/ID 19240]
Montoya, Liz
Dept. of Interior Guam Legislation [OA/ID 9658]
Guam Commonwealth [1] [OA/ID 9658]
Guam Commonwealth [2] [OA/ID 9658]
Guam Commonwealth [3] [OA/ID 9658]
Guam [OA/ID 19026]
Press Office
Press Release
Subject Set
Guam [OA/ID 8690]
Public Liaison
Guam [OA/ID 8407]
Guam [OA/ID 8448]
Scheduling Office
AF
256344 [Guam] [OA/ID 10891]
AF
263226 [Guam] [OA/ID 10905]
Guam, Malaysia, Japan and Korea 11/13-11/22/98 [OA/ID 16415]
Speechwriting
Muscatine, Lisa
GUAM [OA/ID 12093]
Box 18
Clinton Presidential Records: White House Staff and Office Files (continued)
Speechwriting
Shih, June
Guam 11/23/98 [1] [OA/ID 16420]
Guam 11/23/98 [2] [OA/ID 16420]
Staff Secretary
Loy, Lisel
[Miscellaneous Last-Minute ―President Has Seen‖ Correspondence] [2]
[OA/ID 20899] [031] [OA/ID 43247]
2006-0193-F
http://www.clintonlibrary.gov
- 14 -
�Clinton Presidential Records: Automated Records Management System [Email]
OPD [OA/ID 250000]
[Guam, Political Status, Reform]
[04/14/1994-03/05/1999]
[03/05/1999-09/19/2000]
WHO [OA/ID 500000]
[Guam, Political Status, Reform]
[03/25/1994-06/13/1997]
[06/13/1997-10/05/1998]
[10/08/1998-04/30/1999]
[05/08/1999]
Box 19
Clinton Presidential Records: Automated Records Management System [Email] (continued)
WHO [OA/ID 500000]
[Guam, Political Status, Reform]
[06/07/1999-03/10/2000]
[05/24/2000-06/23/2000]
[07/31/2000-10/04/2000]
[01/12/2001-01/18/2001]
[01/18/2001] [1]
[01/18/2001] [2]
[01/18/2001] [3]
[01/18/2001] [4]
Box 20
Clinton Presidential Records: Automated Records Management System [Email] (continued)
Default [OA/ID 1100000]
[Guam, Political Status, Reform]
[05/25/1993-10/10/2000]
OPD [OA/ID 250000]
[Guam, Legislation, Tourism]
[12/10/1999-10/20/2000]
WHO [OA/ID 500000]
[Guam, Legislation, Tourism]
[02/26/1997-12/22/1998]
[01/21/1999-11/01/1999]
[11/23/1999-06/22/2000]
[06/22/2000-09/19/2000]
[09/19/2000-10/19/2000]
[10/19/2000-01/17/2001]
CEA [OA/ID 950000]
[Guam, Legislation, Tourism]
[12/29/2000]
2006-0193-F
http://www.clintonlibrary.gov
- 15 -
�Clinton Presidential Records: Automated Records Management System [Email] (continued)
Default [OA/ID 1100000]
[Guam, Legislation, Tourism]
[07/28/1993-11/23/1999]
[12/13/1999-01/13/2000]
[02/24/2000]
Box 21
Clinton Presidential Records: Automated Records Management System [Email] (continued)
OPD [OA/ID 250000]
[Guam, Economic Development, Military]
[07/14/1995-06/28/2000]
WHO [OA/ID 500000]
[Guam, Economic Development, Military]
[09/07/1995-10/13/1998]
[10/13/1998-11/17/1998]
[11/17/1998-12/28/1998]
[01/05/2000-02/28/2000]
[05/02/2000-01/18/2001]
CEA [OA/ID 950000]
[Guam, Economic Development, Military]
[11/14/2000]
Default [OA/ID 1100000]
[Guam, Economic Development, Military]
[06/09/1995-09/30/1999]
OPD [OA/ID 250000]
[Farrow: Guam]
[03/22/1999-05/17/1999]
WHO [OA/ID 500000]
[Farrow: Guam]
[11/17/1997-10/27/1998]
[10/29/1998-11/17/1998]
[11/17/1998-06/30/1999]
Box 22
Clinton Presidential Records: Automated Records Management System [Email] (continued)
WHO [OA/ID 500000]
[Farrow: Guam]
[06/30/1999-08/21/2000]
[08/21/2000-01/17/2001]
NSC [OA/ID 1200000]
[Guam]
[02/23/1996-10/23/1998]
[10/27/1998-11/20/1998]
[11/20/1998-05/06/1999]
2006-0193-F
http://www.clintonlibrary.gov
- 16 -
�Clinton Presidential Records: Automated Records Management System [Email] (continued)
NSC [OA/ID 1200000]
[Guam]
[05/07/1999-05/19/1999]
[05/20/1999-10/25/1999]
[10/26/1999-03/27/2000]
[05/02/2000-11/03/2000]
Clinton Presidential Records: Tape Restoration Project [Email]
WHO [OA/ID 500000]
[Guam, Political Status, Reform]
[06/24/1998]
CEA [OA/ID 950000]
[Guam, Political Status, Reform]
[11/24/1998]
Default [OA/ID 1100000]
[Guam, Political Status, Reform]
[01/09/1997-10/02/1998]
WHO [OA/ID 500000]
[Guam, Legislation, Tourism]
[10/27/1998-11/17/1998]
Default [OA/ID 1100000]
[Guam, Legislation, Tourism]
[03/20/1997-11/25/1998]
Default [OA/ID 1100000]
[Guam, Economic Development, Military]
[12/23/1996-10/13/1998]
Box 23
Clinton Presidential Records: NSC Cable, Email, and Records Management System
NSC Cables
Jan 1993-Dec 1994
[Guam]
[01/02/1993-10/20/1993] [OA/ID 505000]
[01/06/1994-12/16/1994] [OA/ID 505000]
Jan 1995-Dec 1996
[Guam]
[04/13/1995-08/05/1996] [OA/ID 510000]
[08/31/1996-09/16/1996] [OA/ID 510000]
[09/17/1996-10/11/1996] [OA/ID 510000]
[10/21/1996-12/13/1996] [OA/ID 510000]
Jan 1997-Dec 1998
[Guam]
[01/12/1997-11/04/1997] [OA/ID 520000]
[12/19/1997-12/09/1998] [OA/ID 520000]
Jan 1999-Dec 2000
[Guam]
[01/13/1999-05/10/2000] [OA/ID 530000]
[06/09/2000-12/21/2000] [OA/ID 530000]
2006-0193-F
http://www.clintonlibrary.gov
- 17 -
�Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Emails
A1-Record (Jan 93-Sept 94)
[Guam]
[04/20/1994] [OA/ID 570000]
MSMail-Record (Sept 94-Sept 97)
[Guam]
[11/15/1994-11/01/1995] [OA/ID 590000]
[07/19/1996-09/16/1996] [OA/ID 590000]
[11/01/1995-07/19/1996] [OA/ID 590000]
[09/17/1996-09/18/1996] [OA/ID 590000]
Box 24
Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Emails
MSMail-Record (Sept 94-Sept 97)
[Guam]
[09/18/1996-09/20/1996] [OA/ID 590000]
[09/23/1996-09/27/1996] [OA/ID 590000]
[10/10/1996-11/05/1996] [OA/ID 590000]
[11/05/1996-11/15/1996] [OA/ID 590000]
[11/20/1996-11/25/1996] [OA/ID 590000]
[12/02/1996-02/25/1997] [OA/ID 590000]
[02/26/1997] [OA/ID 590000]
[03/27/1997-04/19/1997] [OA/ID 590000]
[05/09/1997] [OA/ID 590000]
[07/26/1995-02/25/1997] [OA/ID 605000]
Exchange-Record (Sept 97-Jan 01)
[Guam]
[09/10/1997-04/29/1998] [OA/ID 620000]
[06/18/1998-09/03/1998] [OA/ID 620000]
[09/03/1998-10/20/1998] [OA/ID 620000]
[10/20/1998-11/09/1998] [OA/ID 620000]
[11/10/1998-11/18/1998] [OA/ID 620000]
Box 25
Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Emails
Exchange-Record (Sept 97-Jan 01)
[Guam]
[11/19/1998-04/04/1999] [OA/ID 620000]
[04/05/1999-05/24/1999] [OA/ID 620000]
[05/24/1999-08/02/1999] [OA/ID 620000]
[09/16/1999-10/12/2000] [OA/ID 620000]
Exchange-Non-Record (Sept 97-Jan 01)
[Guam]
[07/23/1997-03/04/1998] [OA/ID 630000]
[10/20/1998-10/25/1999] [OA/ID 630000]
2006-0193-F
http://www.clintonlibrary.gov
- 18 -
�Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Records Management System
PRS-Presidential Records
[Guam]
9304083 [OA/ID 150]
9304279 [OA/ID 151]
9306021 [OA/ID 156]
9306097 [OA/ID 156]
9307132 [OA/ID 162]
9307638 [OA/ID 165]
9308437 [OA/ID 169]
9308604 [OA/ID 170]
9309624 [OA/ID 176]
9400520 [OA/ID 183]
9400816 [OA/ID 184]
9402422 [OA/ID 190]
9402453 [OA/ID 190]
9405003 [OA/ID 201]
9405298 [OA/ID 477]
9405532 [OA/ID 204]
9405923 [OA/ID 478]
9406323 [OA/ID 208]
9406713 [OA/ID 210]
9408170 [OA/ID 217]
9409204 [OA/ID 222]
9409429 [OA/ID 223]
9409712 [OA/ID 224]
9409753 [OA/ID 225]
9500438 [OA/ID 560]
9504115 [OA/ID 585]
Box 26
Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Records Management System
PRS-Presidential Records
[Guam]
9505210 [1] [OA/ID 593]
9505210 [2] [OA/ID 593]
9505210 [3] [OA/ID 593]
9505210 [4] [OA/ID 593]
9505210 [5] [OA/ID 593]
9505210 [6] [OA/ID 593]
9505210 [7] [OA/ID 593]
9505210 [8] [OA/ID 593]
9505465 [OA/ID 595]
9506523 [OA/ID 602]
9506544 [OA/ID 602]
9506975 [OA/ID 605]
9508327 [OA/ID 614]
9600661 [OA/ID 1084]
2006-0193-F
http://www.clintonlibrary.gov
- 19 -
�Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Records Management System
PRS-Presidential Records
[Guam]
9604188 [OA/ID 1107]
9604997 [OA/ID 1113]
9605171 [OA/ID 1114]
9606281 [OA/ID 1121]
9606441 [OA/ID 1122]
9606909 [OA/ID 1125]
9606948 [OA/ID 1125]
9608136 [OA/ID 1134]
9608220 [OA/ID 1134]
9608273 [OA/ID 1135]
9700325 [OA/ID 1598]
9700394 [OA/ID 1598]
Box 27
Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Records Management System
PRS-Presidential Records
[Guam]
9700655 [OA/ID 1600]
9700755 [OA/ID 1600]
9701222 [OA/ID 1603]
9701653 [OA/ID 1607]
9702119 [OA/ID 1610]
9702362 [OA/ID 1612]
9702556 [OA/ID 1613]
9702653 [OA/ID 1614]
9706361 [OA/ID 1641]
9707106 [OA/ID 1647]
9707184 [OA/ID 1647]
9707267 [OA/ID 1648]
9707281 [OA/ID 1648]
9707290 [OA/ID 1648]
9707401 [OA/ID 1650]
9707786 [OA/ID 1654]
9708705 [OA/ID 1661]
9800150 [OA/ID 2009]
9800372 [OA/ID 2010]
9800554 [OA/ID 2012]
9800627 [OA/ID 2012]
9805676 [OA/ID 2054]
9805708 [OA/ID 2054]
9806731 [OA/ID 2061]
9807066 [OA/ID 2064]
9807351 [OA/ID 2066]
9807651 [OA/ID 2068]
2006-0193-F
http://www.clintonlibrary.gov
- 20 -
�Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Records Management System
PRS-Presidential Records
[Guam]
9807919 [OA/ID 2070]
9807928 [OA/ID 2070]
9902131 [OA/ID 2719]
9903101 [OA/ID 2725]
990513 [OA/ID 2738]
Box 28
Clinton Presidential Records: NSC Cable, Email, and Records Management System (continued)
NSC Records Management System
PRS-Presidential Records
[Guam]
9906748 [OA/ID 2749]
0000079 [OA/ID 4072]
0002143 [OA/ID 4084]
0002151 [OA/ID 4084]
0003005 [OA/ID 4089]
0006867 [OA/ID 4111]
Last modified: 04/25/2012
2006-0193-F
http://www.clintonlibrary.gov
- 21 -
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Finding Aids - Collection Descriptions & Inventories
Description
An account of the resource
Finding aids at the Clinton Presidential Library contain a detailed description of the collection including the total number of pages or photos and length of video and audio recordings. Finding aids also include background information of the collection’s topic and details on the record type (ex: email, memorandum, briefing book, Betacam video, audio cassette etc). <br /><br />Finding aids describe collections at the box and folder level, and include a folder title list and information about the arrangement of the collection. <br /><br /><strong>Please note the majority of collections have not yet been scanned nor made available online.</strong>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Guam - Collection Finding Aid
Identifier
An unambiguous reference to the resource within a given context
2006-0193-F
Description
An account of the resource
This collection consists of records related to Guam. These records discuss Guam’s political status, proposed legislation (namely the Guam Commonwealth Act), economic development, tourism, the United States Military’s use of land in Guam, immigration, and President William J. Clinton and First Lady Hillary Rodham Clinton’s visits to Guam. This collection consists of correspondence, memoranda, press clippings, reports, and speeches concerning Guam.
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Subject
The topic of the resource
Guam
Finding Aid
-
https://clinton.presidentiallibraries.us/files/original/5b19d005bd211517757ddadf617bac5b.pdf
9c848c3202fad33a7c7b5a0e06334ef3
PDF Text
Text
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
DATE
SUBJECfffiTLE
To Special Representative for Guam Commonwealth from' Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
· Commonwealth legislation (12 pages)
RESTRICTION
07/28/1994
P5
1£!38
002. statement
re: Comments on DOJ memorandum regarding mutual consent
provision in the Guam Commonwealth legislation (53 pages)
08/26/1994
P5
{Qsq
003.Ietter
To I. Michael Heyman from Walter Dellinger. Subject: Proposed
language from Department
Justice on Guam Commonwealth
legislation (4 pages)
06/2911994
P5
[LCf;D
of
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
OA/Box Number: . 20350
FOLDER TITLE:
Guam- Commonwealth Act 1996 [2]
Jamie Metrailer .
2006-0 193-F
'm587
RESTRICTION CODES
Presidential Records Act -(44 U.S.C. 2204(a)]
Freedom of Information Act- (S U.S.C. S52(b)]
PI National Security Classified Information [(a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office ((a)(2) of the PRAJ
PJ Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAl
.
PS Release would disclose confidential' advice between the President
and his advisors, or between such advisors (a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) ofthc FOIA]
b(2) Release would disclose internal personnel rules and practices of
·
an agency ((b)(2) of the FOIA]
b(J) Release would violate a Federal statute ((b)(J) of the FOIA]
b( 4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIAl
·b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells {(b)(9) ofthe FOIA)
C. Closed in accordance with restrictions contained in donor's deed
ofgift.
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�I .
~-.
trlllll'tll
Office of Le~al Cuun~l..'l
orr;,..... ,. lhc
Dt::p~l~ A-'~t~t~;~~
A.fh,rnc:.\ tic:ncraf
July 28. 1994
.ML\10RA.'NDlJM FOR
THE SPECIAL REPRESENTATIVE
·FOR Gt;A.:\1 COIVL\10NWEALTH ·
~\
v:-
W
From: Teresa Wynn Roseborough
Deputy Assistant Attorney General
Re:
Mutual Consent Provisions in
The Guam Common.wealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong~. lst Sess. (1993) contains
· two sections requiring the mutual consent of the Govertunent of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent .of the two governments. Section 202 provides that no Federal
laws, rules. and regulations passed after the enactment of the Commonwealth Act would ·
· apply to Guam without the mutual consent of the two governments. The Representatives of
Guam insist that these two sections are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in legislation governing .the relationship between the federal government and nonstate areas. -i.e. areas under the sovereignty of the United States that are not States, 1 have
ric 0 p y
' Territories that have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective govem~r. resent being called Territories and claim that .that
legal term arid its implications are not applicable lothem. We therefore shall refer to all Territories and
Commonwoalth• ".non·"•" """' ""d" lho "'""dgn<y of lho Unil"' S<a<o• o' bri<fly "
�..
been consis!c!ll.: Wr:. thC:reforc: have carefully reexamined !his issue. Our
IHll
·unchhltllt
rhat ihc:s<: clauses raise serious constitutional issues and are legally unenforcca le.'
i\
t..92e>
.
t;
~
In our vie\!. .. it is important that the text of the Guan1 Commonwealth Act 101 create ~~
. p:>
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation. We rriusttherefore oppose the inclusion in the
CommonweaJth Act of any provisions. such as mutual consent clauses, that are . legally
unenforceable, .unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
·
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whethercalled territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton, ·
101 U.S. 129. 132-33 (1880). There the Court held:
: To our knowledge th.e first consideration of the validity ~f mutua.l consent clauses occurred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time ltte Department took
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that they go beyond the constitutional power of Congress. In 1963 the Department of Jwtice opined tbat
such clauses were legally effective because Congress could create vested rights in the statUs of a territory that
could not be revoked unilaterally. The Department adhered: to this position in 1973 in connection wi.th then
pending Micronesians status negotiations in a memorandum approved by then Assistant Attorney General
Rehnquist. ·On the basis of this advice. a mutual consent Clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent clauses
in connection with tbe First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Pu:.:rto Rico Status Referendum Bill in light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapme'nt. .477 U.S. 41. SS (1986), and concluded that there could
.
not be an enforceable vested. right in a political status: hence that mutua.l consent clauses were ineffective
because they would not bind a subsequent Congress. We took the s8.me position in the Second Guam Task .
Force Report issued during the last days of the Bush Administration in January 1993.
·
Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordinance contained six "articles of compact, between· the original States and the people and
States in the said territory. and [shall] forever remain unalterable. unless by common consent." These artic}es
were incorporated either expressly or by reference into many early territorial organic acts. Clinton v.
Englebrecht. 80 U.S. ( 13 Wall.) 434. 442 (1872). The copious litigation under these "unalterable articles"
focussed largely on the question whether the territories· obligations under. them were superseded by the
Constitution. or when the territory became a State, as the result of the equal footing doctrine. We have,
however. not found any cases de.a!ing with the question whether the Congress had the i>ower to modify any duty
imposed on tbe United States by those articles.
3
- 2 -
COPY
�It is cenainly now wo late to doubt the power of Congress t
the T eniwries. There have been some differences of opinion as to
panicular clause of the Constitmion from which the power is derive
it. exists has always been conceded.~
All territory within the jurisdiction of the United States not included in
q.ny State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Territory. takes the place of a constitution as the fundamental law of the local
government. It is obligatory on and binds the territorial authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
·Insurance Co. v. Canter, 26 U,S. (l Pet.) 511, 542-43, 546 (1828). ·The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood].
Florida continues to be a territory. of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
Perhaps the power of governing a territory belonging to the United
States, which hasnot, by becoming'astate, acquired the means of self-
~ Some derived thai power from the authority of the United States to acquire territory, others from the mere
fact of sovereignty. others from the Territory Clause ,of the Constitution oftbe United States (Art. IV. Sec: 3.
Cl. 2) pursuant to which Congress bas "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". See~ American Insurance Co. , ..
Canter, 26 U.S. (I Pet.) 511. 542(1828): Monnon Church v. United States, 136 U.S. 1, 42-44 (1890):
Downes v. Bidwell, 182 U.S. 244. 290 (1901).
·At present. the Territory Clause of the Constitution is generally considered to be tbe source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
( 1945): Examining Board v. Flores de Otero, 426 U.S. 571, 586 (1976); Harris v. Rosario, 446 U.S. 651
( 1980): ~ also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), cert. denied sub .!!2ID· Philippin~
·Goods, Inc. v ..·Wabol. -._U.S._. 113 S.Ct. 675 (199:!.). (Footnote supplied.)
~
3-
COPY
�\~"\ON PfY(:U'.
~(1\~mnlt::rl!. ri1ay result nec~ssarily from till' facts. that
I! rs not wit) ~~"tilL'
jurisdiction ofany panicu!ar state. and is within the power and jlHi..'sdicuon ot
the United States.
·
Lo~
·%
~~
~
l.
"In legislating for them (the Territories], Congress exercises the combined
powers of the general. and of a state government."
Id. at 542-43. 546.
The power of Congress to govern the non-state aieas is plenary like every other
legislative power ofCongress but it is nevertheless subject to the applicable provisions of the
Constitution: As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 .
196 (1824), with respect to the Commerce Power:
This power [the Commerce Power], like aJl others vested in Congress is
comp!ete in itself, may be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the constitution. (Emphasis added.)
Tills limitation on the plenary legislative power of C9ngress is self-evident. It
necessarily follows from the supremacy of the Constitution. ~ u .. Hodel v. Vir~inia
Surface Minint: and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29Q- .
91 (1901): District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally. the power of Congress over the non-state areas persists "so long as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establishment of the Commonwealth of the Philippine
Islands and the fmal withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. !t terminates when the area loses that s~tus either by vinue of its
admission as ·a State, or by the termination of the sovereignty of the United States over the
area by the grant of independence. or by its surrender to the sovereignty of another country.
-4-
COPY
�IL
The Revocable Naturt: of Congressional Legislation
Relating 10 the Government of Non-Staie Areas
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas fuU powers of selfc
government. and an autonomy similar to that of Statesand has done so since the beginning of
the Republic. Such delegation. however, must be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13Wall.) 434. -+41
(1872); Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requiremem that
the delegation of governmental autho'rity to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise, alter. or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Sharpnack, 355
U.S. 286, 296 (1958), Harris v. Bareham, 233 F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D~C. Cir; 1973). The power of·
Congress to delegate governmental. powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal starutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
~ Thompson dealt wiih th~ .District of Columbia's government which is provided for by Art. l. Sec. 8. Cl.
17 of th¢ Constitution. rather than with the non-sute areas as to whom lhe Congressional power is derived from
the Territory Clause. The C9urt, however. held that in thisarea the rules relating to the Congressional power
to govern the District of Columbia and the non-sUI¢ areas are identical. Indeed, the Court relied on cases
dealing with non-sute areas. y .. Hornbuckle v. Toombs. 85 U.S. (18 Wall.) 6.48, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915). where it held that Congress can delegate its legislative
authority under Art. I. Sec. 8. Cl. 17 of the .Constitution to the District, subject to the power of Congres~ at any
time to revise, alter, or revoke that authority.
.
• Congress has exercised this power with respect to the District of Columbia. The Act of February 21 .
1871. 16 Stat. 419 gave the District of Columbia virtual territorial sutus, with a a governor appointed by the
President, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20. 1874. 18 Stat. 116. which abrogated among o~hers the provisions
for the: legislative assembly and a delegate in Congress. and established a government by a Commission
appointed by the President.
-5-
COPY
�Juthority
cx.ercis~
t~l_enact
ot
llS
.
.
.
.
.
'
.
.
.
~' PREs10
~
.
.
"0''"
.
·
. '~ lo2B "1--.;,
.
~
-../
Y' \
0
r
kg1slauon under tile.' Temtory Clause that would lim1t thc unlcttaed
1
powc:r w amend or repeal.
·
·
C:i
co;
if:;
~I
I
The same result flows from the consideration that all ·rion-state areas are ·ubject to t"
authority of Congress. which. as shown 'above, is plenary. This basic rule does not
tile creation of non-state areas that are only panially subject to Congressional authority.
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and tern1inates only when the area becomes a Statt! or ceases to be under United
States sovereignty. There is no intennediary status as far as the Congressional power is
concerned.
·
·
The two mutual consent clauses contained in the proposed Comm01iwealth Act
therefore are subject to Congressional modification and repeal.
·.
Ill.
The rule that legislation delegating ·governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general
rule that one Congress ·cannot bind a subsequent Congress. exccmt where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its IXJwer to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it. .
The rationale underlying that principle is the consideration that if one c;:ongress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen pennanentiy and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey. 431 U.S. 1, 45 (1977), a case involving the Impairment of the Obligation of ·
Contracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
One of tM fundamental premises of our popular dem'ocracy is that each
generation of representatives can and will remain responsive to the needs. and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the IXJlicies and
undertakings of. earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the IXJSSibility that
those same rascals might perpetuate their policies simply by locking them into
binding contracts.
-6-
COPY
�.
.
.
.
.
.
.
.
,'\O~ PR£810
. ._::; {J) :2.B <%,
~
0
uo
Nt,ndhck:-,s. the lllaXJill that lllll' CPn~re\\ "·;Jnnt)l bind luturc Cong~:·S\, liken en
legal ntk. has· it.~ limits. As early .as IS IU. Chief Justice Marshall explain d in Fletcher·,.
Peck. lO U.S. (6 Cranch) R7. 135 ( 181 Ol:
-
J;
r·
The principle assened is that one legislature is competent to repea
. act which a fonner legislature was competent to pass: and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness ofthis principle. so far as respects general legislation .
.can never be controverted. But. if an act be done under a law, a succeeding
legislature cannot un<?o it. The past cannot be recalled by the most absolute
power.· Conveyances have been made. those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot ce.ase to be a fact.
When, then, a law is in its nanire a contract, when absolute rights have ··
· vested under that contract, a repeal of the law cannot devest (sic) those rights.
'
'
''
The powers of one legisl~J.ture to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, See~ l 0, CL l) of
the ConstitUtion and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principlewas recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from depriving persons or corporations of property without due
, process of law. They cannot legislate back to themselves, without making
compensation. the lands they have given this corporation to aid in the
construction of its railroad .. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The.United States are as much bound by their contracts as are
individuals. (emphasis supplied.) .
See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 (1986).
-7 -
COPY
�IV
\
•
\
The Due Prnces<:. Clause does not Preclude Congress fronl
Amending or Repealing the two Mutual Consent Clauses·
Tile question therefore is whether the Due Process Clause of the Fifth Amend merit
precludes a subsequent Congress from repealing fegislation for .the governance of non-state
areas enacted, by an earlier Congress under the Territory. Clause. This question must be
answered in the negative:.
The Due Process Clause .of the Fifth Amendment provides:
No person shall ... be deprived of Life, liberty, or property without due
process of law. (emphasis supplied.)
'
This Clause is inappLicable to the repeal
First, a
meaning of the Fifth Amendment, and, second,
the non-state area of a property right within the
clau~es here involved· for two reasons.
or amendment of the two mutual consent
non-state area is not a "person" within the
such repeal or amendment would not deprive
meaning of the Fifth Amendment.
A.
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South CaroLina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person w.ithin the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), cert. denied, 493 U.S. 991
·
( 1989) ("The State of Alabama is not included among the entities protected by the due
.
process clause of the flfth amendment"): and State of Oklahoma. v. Federal Energy
Regulatory Comm.', 494 F.Supp. 636, 661 (W.D. Okl. 1980), affd, 661 F.2d .832 (lOth Cir.
1981), cert. denied, sub . .!.!.QJ.!L Texas v. Federal Energy Regulatory Conim., 457 U.S. 1105
(1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts. are not persons within the meaning of the Due Process
. Clause of the Fifth Amendment. City of Sault Ste. Marie. Mich. v: Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. IDWC/US, 701 F.
Supp. 121, 123-24.(W.D. Tex 1988).
. The non-state areas, concededly. are not States or instrumentalities of St;Hes, and we
have not found any case holding directly that they are not persons within the meaning of the
Due P~ocess Clauseofthe Fifth Amendment. They are. however, governmental bodies. and
. 8-
COPY
�.
o~
.
. .
.
. ..
·
r;munak nt St,uth Cawlllla\ .. Katzenhach. Jt>J L.S. at JOI. appears
.
.
:\
~~
PRL:sio
~
uss ~\
.
hl be t'Hat ~uLit
~
bodies are not protected by the Due Process Clause of the Fifth Amendment. l\1un.:u\'er. ii 1, r:. ·:
well established that ihe poliu..:al subdivisiPns of a Slate are not considad pe ·.ons protected . ~/
as against the State by the provisions of the Fourteenth Amendment.
. ~. ewark v. .,..$' · ·
New Jersey. 262 U.S. 192. 19o (1923): Williams v. Mayor of Baltimore. 289 U. .
4
'
(I QJJ ): South Macomb Disposal Authorily v. Township of Washington. 790 F.2d .500. 505 .
.507 (oth Cir. l986J and the authorities there cited. Tlie relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated.
supra, the Court held in' National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):
tilL
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States , ..
More recently. the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and since· the
political subdivisions. of States are not persons within the meaning of the Fourteenth
Amendment,· the non-state areas are not persons within the me3.ning of the Due Process
Clause of the Fifth Amendment. .
B.
Legislation relating to the governance of non-state areas does not create any rights or
status protected by the Due Process Clause against repe;U or amendment by subsequent
legislation:
As explained earlier, a subsequent Congress cannot amend .or repeal earli~r legislation
if such repeaJ or amendment would violate the Due Process Clause of the Fifth Amendment:
i.e.~ if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a .
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged. in the Guam
Commonwealth Act. would not create property rights within the meaning of that Clause.
Legislation concerning the governance of a non-state area, whether called organic act.
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does nor
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred ·
in connection with the District o( Columbia: See District of Columbia v. Thompson Co ..
346 U.S. 100, 104-05 (1953): supra n.6. Hence. in the absence of a murual consent clause.
-9 -
COPY
�k~islatinn
cuncemi11g lhe
hy suhse4uent legislation.
~tl\<.:nJillenl
t'!
;1
.
non-state art.:a . SllbJcl't
1:-,
O~ PRE,st.
~ . .
0~
.;j
~
0
-
·nt
(p <lllll'!ldil
Pr rcr<..:a!
1=- \
Lo38
$
I
~
Thi:. leads to the question whether the addition of a mutual consent claus
of a
provision that the legislation shaH not he: modifie<i or repealed without the consent o ·~--
.Government of the United States ~nd the Government of the non-state area. ha) the effect of
creating in the non-state areas a .specific statUs amounting to a property right within the
·meailing of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because ( 1) sovereign governmental powers cannot be contracted away. and
(2) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
·
'r-~~
j
. 1. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, JO·u.s. (5 Pet.) 115, 128 (1831). This
.·
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898).
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10; Cl. I) ofthe Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty.'' United States Trust Co. v. New Jersey, 431 U.S. I, 23 (I977).~ In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are. are subject to state restriction.
cannot remove them from the power of the State by m_aking a contract about
them .. Hudson Water Co. v. McCarter, 209 U.S. 349,357 (1908).a
Agreements or compacts to the effect that the Congress may not amend legislation .
relating to the government of a non-state area without the consent of the laner. or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential powers of the federal government. They are
7
Cases arising under the Contract Clause holding that a State cannot contract away a sover;:ign power are
.also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the fedenil government. Pension
·Benefit Guaranty Corp. v. R.A. Grav Co .. 467 U.S. 717.733 (1984); National Railroad Passenger Corp. Y.
A.T. & S.F. R .. _470 U.S. 451. 472-73 n.25 ( 1985). Hence. when state legislation does not violate the
Contract Clause. analogous federal legislation is all the more permissible under the Due Proces~ Clause of the
Fifth Amendment.
·Cited with approval with respect to federal legislation in Norman v. B. & O.R .. :!04 L.S. 240. 308
II QJS J.
- I0 -
COPY
�.
'
.
.
.
rllcrdPrL· nut hindlll~ iHl the.: llnired Stall'' and l'annnr L(llllcr ;1
.till:
Fifth Alll~nd!llelll. .,
pror)0n\
.
· .l\lor~ generally. the Supreme Coun held in Bowen\. A0 enc1es ( nsed
So\.'.
Entrapment. 477 U.S. 41. 55 (1986). that the contractual propeny rights protected b)"',.......,_ _..
Due Proces~ Clause of the Fifth Amendment are the 'traditional private contractual rights.
such as those arising from bonds or insurance conrracts. but not arrangements that ~;~ ran of
a regulatory program such as a State's privilege to withdraw irs panicipation in the Social
Security system with respect to its employees. Specifically. the Coun stated:
But the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "propeny" within the meaning of the ..
·
Fifth Amendment. The tennination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 4 I 8 itself. The provision constituted neither a debt of the
. United States. see~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a·
monetary premium, see Lynch v. United States, s.upra. The tennination clause
was not unique to this Agreement; nor was it a tenn over wh.ich the State had
any bargaining j,ower or for which the State provided independent
consideration. Rather, .the provision simply was pan of ·a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam .Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government .of Guam clearly do not constitute conventional
·
private contracts: they are elements of a regulatory system.
.
.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific·starus which would be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
"Cases such as Lvnch v. Cnited States. ::!92 C.S. 57! (1934). and Perrv v. l!nited States. 194 L:.S. 330
( \935 ). are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance:
Pcrrv: Government bonds) I'n Lynch the Court held that Congress could oot amend the contract merely to save
money ·unless. indeed the action falls within the federal. police police power o~ some other paramount power."
192 U.S. at 579. Perrv involved bonds issued by the United States under the authority of Art. I. Sec. 8, C'l. ::!
of the Constitution. to borrow money on the' cr~it of the linited.States. The Court held that Congress did not
have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating on.:
of the pivotal terms of the bonds to save money. While the Court held that the United States had broken the=
agreement. it nevertheless held that plaintiff .could not recover because. as the result of regulations validly issued.
by the Unit~ States. he had not suffered any monetary damages.
· Cf. n ::;
- II -
COPY
�..
:<._ON PR~,s.
.
'r~v.·
.
I'
.
I'
s
c
.
.
()..)~ u:?Jtio~ ·
-
ut tilL" ru rn~s ul t le uprcrllc l'lln tllJt le~rslatron concemrng tile goverila cc: ot a nonSlJlc areJ is necessarily· subject to CongreSSIOnal a!llendment and repeal: that go emmc:ntal
bodies are not persons within the meanin~ of the Due Process Clause: that gove mental
.powers cannot be contracted away. and espec1ally the exposition in the recent =B-"'o""-'-"'"'"'
that the proper1y rights protected hy tile Due Process Clause are those arising from
lav.· or commercial contrdcts and not those arising from governmental relations.''
~!:
Sections I 03 and 202 therefore do not create vested p·roperty rights protected hy the
Due Process Clause of the Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shaU apply to
Guam without the consent of thegovemment of the Commonwealth~ The inclusion of such.
provisions. therefore. in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. 13
Finally. the Depanment of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 ofthe Covenant with the
Nonhern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act so as .to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
" It is significant that the circumstances in which Congress can effectively agree not. to repeal or amend
legislation werediscussed in the context of commercial contracts, Bowen, 477 U.S. at 52.
:: Bowen. it is true. deah with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to unend without the
consent of the Government. of Guam. The underlying agreement5. however. are not of a private contractual
narure. and. hence, are not property within the meaning of the Due Process Clause. · We cannot pereeive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
t) The conclusion that Section 202 of the Guam Commonwealth Act (inapplicability of furure federal
legislation to Guam without the c·onsc::nt of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 20::!. In Currin v. Wallace, 306 U.S. I. 15-16 (1939), and United
States v. Rock Royal Co-op. 307 U.S. 533, 577-78 !1939), the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco fanners or milk producers affected by them.
The Court held that this approval was a legitimate condition for tru!.king the legislation applicable. Similarly. it
could be argued that the approval of federal legislation by the Government of Guam is a legitimate condition for
making that legislation applicable to Guam. Since, as stated above, a future Congress would not be bound by
Section 202. we need not decide the question whether the requirement of approval by the Government of Guam
for ~ furure federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
- 12 -
COPY
�.·i·.
1
"'-'·
Au gus
COMMENTS ON DOJ.MEMORANDUM.REGARDING MUTUAL CONSEN
PROVISION. IN THE GUAM COMMONWEALTH LEGISLATION.
We have had an opporturiity to review the July 28, 1994
!f!emorandum initialed by Deputy Assistant Attorney General
Roseborough and addressed to the Special Representative for Guam
Commonwealth (hereinafter the ''Memorandu..'ll").
That Memorandum
purports to reverse a thirty-year Justice Department policy
.
'
supporting the constitutionality and enforceability of mutual
consent clauses in legislation providing for internal selfgovernment in the territories . 1
.
According to the Memorandum,
mutual consent clauses are unenforceable because· (1) rulings of
the.Supreme Court·require that the "governance of a non-state
The Department of justice expressly has approved and
gone on record supporting Congressional passage of mutual consent
clauses in at lea~t two u~s. statutes implementing political
status agreements with one u.S. territory, .and the Freely
Associated States, and apparently continues to support the
constitutionality and enforceability of these provisions.
M.emorandum at 12 ("Finally, the Department has indicated that. it
would honor past commitments with respect to the mutual consent
issue"). But an Act of Congreas either is ~onstitutional and
enforceable or· it is· not.
If the Department of Justice means
what it has stated in the Memorandum, this will have profound
legal and political implications with respect to the state of law
and governmental relations for· the insular jurisdic~ions to which
the existing f~deral mutual.consent statutes apply,.as well as
one new.insular jurisdiction for which yet another mutual·consent
law is to take·effect within a matter of weeks.
Appendix A is a
~escripti6n of the legal and political nature of the existing
mutual consent precedents and some of.the possible effects if the
Department of Justice does not reconsider the views recorrunended
in the Memorandum of July 28.
COPY
�area is necessarily subject to Congressional amendment
repeal";
(2) "governmental bodies are not persons wit in the
meaning of the Due Process Clause"; and (3) "governroen, 1
cannot be contracted away" relying on the recent decision
Bowen v. Public Agencies Opposed to Social Sec. 477 U.S. 41
(1986). (popularly re£erred to as the "POSSE• decision) supposedly
because the Court held that the only "property iights protected
by the Due Process Clause, are those arising ·from private law or
commercial contracts and not those arising from government
relations".
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms .
. Not one of the reasons giveh for
r~je~ting
a mutual consent
clause in the Guain Conunonwealth legislation can.be justified
relying
ori
the POSSE decision or any other decision discussed in
the Memorandum. 2
inaccurate.
The Memorandum is misleading and disturbing!'y
It quotes parts of judicial decisions out of
.context, relies on decisions.which have nothing whatsoever·to do
with whether Congress has the power to bind itself when entering.
into a political status arrangement·with a territory,
holdi~gs
misstates
in cases cited, mistakes dicta for holdings in others
2
Interestingly while the Memorandum asserts that its
position must change as aJresult of 1 POSSE, the next most recent
decision relied upon is United States Trust Co. v. New Jersey 1 •
431 u.s~ 1, decided .in 1977. Virtually all of the other key
cases were decided in the· 19th Century and early 20th Century 1
none of which would justify the change.
If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
justification exists for the changed position.
-2-
COPY
�..
~
and relies upon a web of circular
rea~oning
which quite
does not justify the Department's changed position.
Perhaps
o~
most concern is that the Memorandum
absolute conclusion concerning Congress' authority to enter into
a binding.mutual consent arrangement with a territory, even
though this question has never been put directlybefore the
Suf>reme Cour.t or any other court.
This is all the more
disturbing because the only court which has ever even a·pproached
the question apparently assume:d that Congress could indeed birid
itself, notwithstanding its
Clause.
See,
~~
plenary power under the Territorial
U.S. Ex Rel. Richards v. De Leon Guerrero, 4
F.3d 749, 754 .(9th Cir. 1993).
This case is not even mentioned
in the Mernorandum. 3 'More importantly~ both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Congress can limit the ability of ftiture Congresses to change
laws which grant .vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
52; Merrion v. Jicarilla Apache Tribe, 455
u.s.
POSSE, .477 U.S. at
130, 148 (1982);
3
Our standards for legal advocacy properly allow
attorneys to present the facts and law in the light most
favorable to the proposition being espoused. Generally accepted
ethical standards, howev.er, obligate an attorney to undertake a
-reasonable inquiry and to ensure that the arguments put forward
are. ac~urate and fairly reflect existing law, even if asserting a
nonfrivolous proposition that the law should change.
In our view
the Memorandum was not prepared in a manner consistent standards
of advocacy required in.~roposing such an important change irl
policy, and it should not have been presented for app~oval by
departmental management-as an official position without further
deliberation between all concerned agencies and even comment by
the insular areas affected.
·
-3-
COPY
�Transohio Savin s Bank
v~
Director
967 F.-2d 598, 621 (D.C. Cir. 1992) { "Transohio").
this "unmistakable terms" doctrine (which served as the
the holding in POSSE) is also not addressed.
A section-by-section analysis of the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
precedent exists for the proppsed change in policy.
the contents of this analysis:
To summarize
(1) none of the cases cited for
. the proposition that Congress must retain the right to alter,
_amehd or repeal territorial legislation dealt with the question
placed before the
Department.~y
the mutual consent proposal; (2)
the issue of the Commonwealth of Guam not being a person for
purposes of the Due Process Clause is a red herring because the
proposal being discussed by Guam and the Administration
cqntemplates an ag1:eement between. the Congress and the people of
Guam based ·in part on the Commonwealth Of The Northern Mariana
Islands and Freely Associated States political status precedents;
and (3) the holding in the POSSE decision provides utterly no
support for the proposition set forth.in the Memorandum.
Perhaps no part of the Memorandum.is as disturbing as is the.
analysis of the Supreme Court's decision in POSSE which is put
forward as requiring the Department's change of its thirty-year
position on the constitutionality and enforceability of mutual
consent clauses.
The Memorandum cfaims the change is required
because the Supreme Court held in POSSE "that the [only]
contractual property rights protected by the Due Process Clau~e
-4-
COPY
�..
.
·,~
:\ON Pf?~
,~
u'v
2..
15'/.r.
lauot
v~
~,
of the Fifth Amendment are the traditional private co tractual .
)>
.
rights, such as those arising from bonds or· insurance · on tracts,
but not arrangements that are part of a regulatory prog
r-;.
1
·f'
·q;
~
m.... "~'0._.
Memorandum at 11.
Tha POSSE decision, however,
did not turn on the subject
matter of the cdntract in questioni and the Court's reference to
the bond and insurance cases had no direct bearing on the Court's
holding.
.Those cases were cited in POSSE for the limited
purpose of contrasting contracts where Congress clearly evidenced
its intent to bind itself from the
fact~
in the POSSE case where
"Congress expressly reserved to itself '[t]he right to alter,
.
.
amend, or repeal any provision of' the Act which authorized the·
c6ntracts at issue.
~ontrast
477 U.S. at 42.
The Court relied upon ihis
because its holding in POSSE was that the Congress could
amend the legislation in question, even if that amendment.·
interfered
~ith
coritractual rights,
because it had not
unmistakably indicated its intent to bind itself-- the standard
the Court has established for determining whether. Congress has
imposed limits on the exercise of its
The actual holding in POSSE
sover~ign
~-that
powers.
Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly· Analyzed by the D. c·. Court of Appeals in
Transohio.
The Transohio decision demonstrates conclusively that
the Memorandum's ·analysis of the .1 holding in POSSE is so
fundamentally wrong that one wonders how it could be relied upon
by the naiion's Dep~rtment of Justice to justify a proposed
-5-
COPY
�,~'\ON
reversal in such an important area of Administration p
that decision, the
o~t.
y.
Circuit makes clear that "[t]h
In
preme
Court reached (its) conclusion by analyzing the governin
U2l'i ~~
.
statute., the Social. Security Act" and focused on the fact
\--()
.
critical to its decision -- "(t]he sosial Security Act contained
an express reservation of Congress' power to amend· the law ... ",·
967 F.2d· at 621, not by establishing the per se "private
rights·~
.test asserted in the Memorandum.
According to the D.C. Circuit.
The ''principles form[ ing) the· backdrqp" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
that "'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the.
sovereign's jurisdictioni and will remain
intact unless surrendered in unmistakable
terms.
Id. at 622 (emphasis added).
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The 'unmistakability' doctrine is a special
rule of contract interpretatiori that applies
to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government;., Chief
Justice Marshall wrote .for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of i t~s sovereign
powers.
Id. at ·618.
Both the POSSE and Transohio cases dealt with the
-6-
COPY
�application of the "urunistakable terms" test
of whether Congress
regulatory
ha~
limited its right to exercise its
juri~diction.
This test has_nothing whatsoever
with a standard based·on "traditional private contractual rights"
which.the Memorandum would have us believe.is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by adopting the test advocated in. the Memorandum with
a simple finding that .alleged contractual rights associated with
the regulatory programs at issue in the cases ~re not traditional
private
contractu~!
rights.
They did not, of course, because the
Supreme Court applies the "unmistakable terms" test which
requires an analysis of Congress' intent, . not the per se s·tandard
proposed in the Memorandum.·
See,
~~
477
u.s.
at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can limit the exercise of its regulatory authority if it makes
clear its intent to do so.
~
Instead of dealing accurately with
~
The import of the POSSE decision has been recognized
even by its critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrender of Sovereignty~ analyzed the POSSE decision in
great detail.
It concluded that "(t]he p9wer to waive
.
sovefeignty was recognized" in POSSE.
92· Col. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Court relied entirely on Merrion v.
Jicarilla Apache Tribe for the propositioh that the federal
government can surrender sovereign power. Jicarilla in turn
relied upon cases involving primarily the taxation powers of
state governments ... Instead of endorsing the rule applyin~ to
-7-·
COPY
�Pf?t:,s-/.
c}'
the Court's actual analysis, the Memorandum at page· 11 relies
.
L.o$1
il
<:>~
~,
5>,
;t
upon a quote, claimed to set forth the holdingj which is taken
cb'
completely out of context and has nothing whatsoever to do with ~Y>-4.~
the holding.
The quote, taken from 477 U.S. 55, fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the
ba~is
of.the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
tl).e quote from page 11 of the Memorandum_.
This language makes
absolutely clear that what the Court focused on was the fact t;hat
instead of Congress having stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly
ret~ined
it.
··Rather, the provision simply was part of a
regulatory program over which Congress
retained auth9rity to amend in the exercise
of its power to provide for the general
welfare ... Under these circumstances, we
conclude that the termination provision ...
<;lid not rise to the level of "property.". The
provision simply_.cannot be vie~ed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved· power on agreements
entered into under a statute containing the
language of reservation.
477 u~s. at 55
(emphasis added).
the police powelis -- such powers cannot be surrender~d -- it
adopted the rule applying to taxation powers -- such·powers can
·only be surrendered if done so unmistakably. This m9ve should
not be followed'automatically: ·if the Court wants to enforce
.contracts that surrender the federal government's regulatory
· authority, i.t should do so on the· basis of policy arguments, not
on the basis of POSSE.". Id. at 460.
-8-
COPY
�,•
Con ress Can Utilize Its Plena
Authorit
Power -- The Greater Includes the Lesser.
to Limit Its
In part, the Memorandum goes astray ln
Congress/ plenary authority over the territories.
the Memorandum,
'
According to
.
Congress' plenary authority is infinite in time
or at least until one of three things happen:
(1) Guam becomes a
Siate; (2) Guam achieves independence; or (3) the United States
transfers its sovereignty over Guam to another country.
Memorandum at 4 ..
Thus, the Memorandum seems to suggest that Congre.ss is
estopped from exercising its authority with respect to
Gua~
if
that exercise o-f authority results in some form of meaning.ful
consent.to the form of government .under which the Guamanian
people live.
But Congress is .not the prisoner of its plenary
authority over the territories -- it is the master .. The fact
that Congress has plenary authority does not mean that Congress
cannot exercise this authority to limit its rights in the future
in the context of a political status change.
Plenary authority
means that congress can take whatever action it dedides is in the .
best interest of the
u.s.
and the territories, including a
decision that i t can.limit its own exercise of future authority,
if its intentions are stated in unmistakable terms.
To assert
otherwise stands the meaning of plenary on its head.
Plenary
means full power.
J
It does not mean full power, except when
I
Congress .attempts to exercise it.
'
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
-9-
COPY
�·-regulations.
. . .
.
/.(0~~-P. R~
·.
(d
~~29{ ·o~
The broad power of Congress under the terra.torial
,,
clause is grounded in the need for .the federal goverrunen\ to be
.
.
able to govern and/or dispose of territory which is not
state.
In this context, it
~s
clear that if
Congr~ss
.
·. -;;\!· ·
,...
fi 4
:-0
~-o..Ji.
.
has the
power to dispose of a territory in its entirety, it also has the
power to dispose of some of its control by exercising its power.
to ma~e all needful _rules and regulations.
It is an elementary
principle of. statutory interpretation that the "greater includes
the less".
See, Late Corp. of
the Church of Jesus Christ of
Later-Day Saints v. Romney, 136
The
issu~
u.s.
1, 45 (1889).
of Congress being able tb restrict its authority
over .territory of the United States has been long decided.
While
at first blush it may seem cou~ter-intuitive, Congressional
authority over the people of the territories and their political
rights emanates from Congress' authority
over Guam as property
brought within Congress' control by the Territorial Clause.
In
Edward v. Carter 1 the Court clarified-Congress' power under the
property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation" 1 the
Court was holding that Congress' al).thority
under Article IV §3 cl. · 2 embraces any
dispositiori of property of the United States
chosen by-Congress.
580 F.2d 1055, 1061 n. 18 (i978) (citatioris omitted) (emphasis
added).
Further definition was
~rovided
in U.S. v. Gratiot, 39 U.S.
526 (1840) where the Court considered Congress' power to impact a
lease of federal lands thr6ugh legislation.
The Court's approach
-10-
COPY
�;
to the question is quite interesting and seems to
·~
power over land with the power over territorial goverrunen'1!s.
First, it finds that the mines in question lie within
territory of the United States are, therefore, its property.
Second, it recites the Territorial Clause and concludes that
the term territory refers is a descriptive word referring to one
kind of property.
Third, the Court concludes that "Corigress has the same power
over fthe mine) as over any other property belonging to the
United States; and this power is vested in Congress without
.limitation; and has been considered the foundation upon which the·
territorial goverrunents rest". Id . .at 537.
Fourth, the Court then references cases involving
Con~ress'
authority over the territories, including ~lorida, includirig the
.
.
.
right of Congress "to.make all needful rules and regulations
respecting the territory or property of the United States". 1.Q..
at 538.
Finally, the Court concludes .. ( i )'f such are the powers of
Congress over the lands belonging to the United States, the words
'dispose of,' .cannot receive the construction contended for at
the bar; that they vest in Congress the power only'to.sell, and
.
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater inbludes the lesser.
The Court reachecf its
decision building on Congress'· authority over the territories.
If Congress has the power to dispose of territories or to make
-11-
COPY
�all needful ruies and regulations, it must then also hav'
power to limit its political tontrol
ov~r
the people
territory just like it has the right to limit its authority
territory by leasing it .
. The Result of the Department's Opinion is to Leaves the People of
Guam with a Hobson's Choice -- Remain in a Perpetual State of
Colonialism or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policy implications for United States
security interests in Guam and the Pacific Region, not to mention .
the United States' moral leadership on the issue of granting
democracy. to non-self-governing people around the world.
The
M.emorandum begins by defining Guam as a "non-state area, a catchy
p~eudonym for what Guam really, is ,...-'a territory, and U.S.
citizen population, whith the U.N. officially classifies as not
yet having been decolonized, and which has no realistic prospect
of achieving statehood -- the traditional path by which U.S.
territories ceased being
colon~es
and became self-governing in
our constitutional system.
Fortunately, the· Territorial Clause gives Congress the
.
constitutional power to address this problem.
In the Insular
Cases the Supreme Court recognized that Congress must have
flexibility to adapt federal }aw and ~olicy for island
territories which remain "unincor~orated" for an extend,ed period
of time, and which remain subject,to federal power without being
integrated into the system of constitutional federalism -~
-12-
COPY
�1.
leaving the U.S. citizens concerned without equal
. political rights when compared to citizens resident
states.
The m6ral
impera~ive
of ending Guam's neo-colonial
status· is fundamental· ·to the Administration's decision to pursue
a mutual
~onsent
provisi6n.
Mut~al con~ent
brings to the people
of Guam democracy by giving them a direct role in their own
internal self-government. which would no.t otherwise be
available. 5
By rejecting absolutely any possibility that the
Supreme Court may uphold a mutual consent clause in a political
status a~rangement, th~ Depaitment ~f Justice is putting thi~
Administration in the untenable position of saying to the
u.s.
citizens of Guam that they cannot have meaningful self-governriten!=.
.
within the framework. of the U.S. Constitution.
.
We do not think
.
this is a pos.ition which this Administration ought to be taking,
especially when the Supreme Court has not spoken directly to the
5
The American-citizen residents of-Guam do not have the
same rights to participate.in the representative democracy
enjoyed by the citizens of. the several .States. Without voting
representation in Congress or a vote in national elections, there
is no means by whic~ they meaningfully can consent to the laws .
and form of government under which they live. This colonial
status was awkWard even in its first fifty years, but has become
intolerable since the U.N. Charter was adopted and the era of
decolonization began. Guam is not seeking decolonization outside
the U.S. system, and it would b~ perverse to suggest that
decolonization is not available· to u;s. citizens. within the U.S.
political system. Thus, ·the question facing the Administration
is whether a nation founded on the principle of consent of the
governed can adapt its law and policy to. end denial of this basic
right and est~blish an appropriate alternative means of consent
for loyal citizens in the territories.
-13-
COPY
�,"\oN'
,'1::-
.
question and the most that can be
~aid
"
()
P'£.s··
/,0
.. ~
-t
~\
about the preced nt is .
(J~
,
The effect of the Department's changed position is t
;
.
that arguments exist on both sides of the. question.
:-00)
leave rY>--4
the people in a per6etu~l state of colonialism or force them into
independence.
The Clinton Administration ·has been the first to
state with candor and honesty· on the record what all those· who
have dealt with Guam have known for years -- Statehood is .not an
option for Guam.
It is simply to.o small, and remote.·
given Guam's strategic importance to
th~
Similarly,
United States, it is
inconceivable that sovereignty would be· voluntarily transferred
toanother sovereign power, nor do we believe that the people of
Guam would accept it.
The
clear implication of the Department's
position, therefore, is that the American citizen
residents of
Guam, if they desire to possess a truly democratic government,
will have no choice but to seek independence from the United
States.
The notion that independence .is the only political status
outcome through which the injustice of Guam's colonial past can
be remedied is not· only· counter to the robu.st common sense with
which Americans have implemented their Constitution, it is a
dangerous, fatalistic ano cold-hearted idea that will have a
chilling effect on the spirits of the Guamanian people.
Leaving independence as the only alternative also raises
seriods national security policy questions!
Policy coordination
for Guam Commonwealth negotiations is exercised by the National
Security Council because Guam is an important military and
-14-
COPY
�•.
St~tes.
A decision h
agr~ement
should be rea
strategic location for the United
made by the White House that an
the people of Guam which achieves two fundamental goals.
the people of Guam should be permitted to achieve meaningful
internal self-government free from unnecessary interference·.
Second, United States long-term security interestsmust be
pro~ected.
Offering the people of Guam the opportunity to
achieve meaningful participation in a d~mocracy only by forcing
them to seek independence is inconsistent with the second of
thes.e goals.
We do not believe that thts Hobson's Choice ought
t6 be forced.upon the United _States or people._of Guam based on
conclusions of anyone other than the
Supr~me
Court.
This is a policy issue whic'h is best left to the courts, if
a
~hallenge
ever arises.
In this regard, the
Depa~tment's
concern that no one should be misled concerning the certain
viability of a mutual
position.
~onsent
provision is consistent with our
We have consistently taken the position in the
negotiations that no one can be sure how the issue will.be
decided.
The best we can do is to meet the. ·requirements the
Supreme Court has set out as being
necessa~y
for Congress to bind
itself (a statement in "unmistakable terms") and state
forthrightly in the. political education process that we cannot be
sure of the outcome until the Supreme Court has acted.
It is
wel.i established 1 however 1 that when theJ intent of Congress with
respect to the precise question at issue is clear, ·the courts
must give it effect.
See,
Chevroh, U.S.A. v .. NRDC, 467 U.S.
-15-
COPY
�!
. 837, .842-43 (1984).
It is equally clear that the
great deference to Congress when it is exercising
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d
citing Torres v. Puerto Rico, 442 U.S.465, 460-70.
know of no decision of the
~upreme.Court
In
reversing any action by
the Congress takeh with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.
Attachments
-16-
COPY
�APPEND~X
A
U.S. Practice With Respect to Mutual Consent Arrangements for
Insular Areas Not Incorporated into the U.S. Constitutional
Process for Democratic Self-Government But In Which the U.S.
Retains and Exercises Sovereignty and/or Significant Powers of
Government:
BACKGROUND:
Under a succession of treaties with other nations and
international organizations inqluding ·the U.N., _in this_century
the U.S. has acquired and exercised actual sovereignty and/or the
full powers and jurisdiction of government over insular areas
(islands) which have not beem incorporated as territories or
states to which the U.S. Constitution applies· in full. Thus,
these areas.are not fully self~governing and have no power to
give consent to U.S. laws made applicable to them.
As each of .these territories has moved toward.greater.self-·
government the u.s. has agreed to various political, legal and··
budgetary measures which accommodate U.S. interests in retaining
certain powers of government, .while at the same time redeeming in
some greater degree the principle that free people must be
enabled to give some meaningful form of consent to the laws and
form of governinent under which they live.
In the case of U.S. territories over which the U.S. exercises
full sovereignty, but which have not been ·incorporated fully into
the system of federalism, measures aimed at enhanced selfgovernment have attempted to address the fact that the u.s.
citizens concerned do not have voting representation in Congress,
enfranchisement in national elections or~eneral legal or
political ·equality with their fellow citizens in the states~
For example, in the case of the Commonwealth of the Northern .
Ma:J;iana Islands (CNMI), as discussed below, the Executive Branch
of the fed~ral government and Cong-ress entered a "Covenant," or
agreement with the people of the territory, under which the U.S.
exercises sovereignty, bu~ which defines a political relationship
the central elements of which are not subject to modification
without mutual consent of t~e people of the territory and the
federal government;
·
·
.
·
This mutual consent arrange~ent constitutes a substitute set of
political rights intended to give the people of tt~e CNMI a
.greater measure of democratic self-government by granting them a
political power of consent to federal law not granted to U.S.
citizens in the states, who instead are able to give their
·consent to federal law through representation in Congress and
voting in national elections. This type of mutual consent
COPY
�·f(J .
{ <12ft
arrangement .has been promulgated by Congress pursuant to the
. Territorial Clause of the Constitution. (Article rv Section J~
Clause 2}, which empowers Congress to provide for areas not ye15-......
fully within the constitutional system but subject to U.S.
"·"·
federal law and sovereign powers.
··
I
.
'
.
For insular areas over wfiich the ti.s. exercised powers of
government but not sovereignty under agreements with the U.N.,
the federal government promulgated mutual consent provisions
through a combined statutory and treaty-making process.
Under
these arrangements the U.S; retains plenary authority·over broad
areas of government power in the concerned insular areas, i.e.,
full defense authority, while the separat~ citizenship,
sovereignty and national independertte of those insular areas have
been recognLzed. This arrangement is. known as "free
association."
·
The compact agreements establishing the·.free association
relationships between.the u.s. and·certain insular areas have
be.en approved by the U.S. Congress in the. forin of joint .
resolutions passed by both houses and signed by the President.
Like the CNMI covenant and the proposed Guam Commonwealth Act,
the u.s.· federal statute approving the free association compact
was inten~ed to create a unique and mutually agreed political
status for insular areas not incorporated into the u.s., but with
special close political, legal·and security ties .to this nation.
.
.
.
The fact that Guam and the CNMI are unincorporated territories,
while the freely associated states under the.· compacts are
sovereign, does not change the legal or constitutional analysis.
These acts of Congress which bind the federal government and
limit.the exercise of constitutional powers either are
constitutional and.enforceable or they are not.
·
There is no valid constitutional'distinction between the mutual
consent provisions inthe free associatidn compact and the CNMI
covenant or proposed Guam Commonwealth Act simply because the
power of Congress which is being limited involves foreign policy
and national defense powers arising from Article I or Article II
of the Constitution, or if the subject matter,gives rise to
Article IV territorial powers.
·
The general concept that Congress can alter, amend or repeal the
laws of purely domestic application has its parallel with respect
to laws and treaties which create obligations between the u.s.
and other.nations.
Spec)-fically, an element of sovereignty i;S
the power to abrogate treaties, and in the U.S. constitutional
system the President and Congress have the power to make trea~ies
and terminate trea.ties. ·Goldwater v. Carter, 617 F.2d 697 (D.C.
Cir. 1979).
As discussed below, in addition to formal·
renU:nciation of a treaty by the· President, Congress .can terminate
or prevent performance of treaties requiring appropriations
simply decline to appropriate funding to meet international
obligations.
This has the effect ~f superseding the prior act
COPY
-------
----
�~
#p~
of the Congress ratifying the treaty.
cl~
lo3q <;\
Thus, the question l;>efore us is whether Congress can l!limi t its
):>.
1
power to amendi alter or repeal a prior act so that c
itments
~~~
intended to be binding are set aside, and that questio
$.
relevant to any act of Congress which purports to make uch
~~~
binding commitments, including the statute making the fr
~
association compacts U.S. law.
We believe the test under POSSE for answering that question turns
on whether Congres~ makes its intent to do so unmistakably clear .
. If the position set fo+:"th in DOJ Memorandum stands and the
Department of Justice reverses prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisions in the CNMI covenant, the free association compacts
and the proposed Guam Commonwealth Act are unenforceable and
unqonstitutional, then the effect of that could reach far beyond
the Guam mut~al consent proposal.
·
For example, the mutual consent provisions relating to the·
political and legal relationships created by the free association
compacts are linked to tinprecedented multi-year funding
authorizations that bind successive Congresses to enact
.
appropriate laws providing funding for specified grants to the
governments of the free associated insular areas.
These
·
pr6visions are enforceable in ~he federal courts, and give t~e
free associated state governments concerned· access to domestic
u.s. legal remedies that foreign governments do not nave under
.conventiori~l u~s.
la~s ~nd t~eaties.
To illustrate the point, as a general rule if Congre~s refuses to
fund u.s. performance of a treaty, it is extremely unlikely that
without an explicit statutory basis. for jurisdiction the federal
courts would be inclined to reach beyond the political question
· doctrine.and interfere in the foreign policy domain of the
political branches by entertaining an action by a foreign
government seeking a court order to compel -payment of funding for
U.S. obligations under a treaty abrogated by the President or
Congress. Yet, under the free association compacts, that is
exactly what Congress has explicitly authorized and directed the
federal courts t·o do. See, Section 236, P.L. 99-239, discussed
below.·
Similarly, in Section 10l(d)(2)(B) of ·P.C. 99-239, the statute
approving the compacts, Congress required that amendm.ents to the
compact and certain related agreernen,ts made pursuant to the . .
applicable mutual consent provisions would require congressional
approval. Thus, Congress by statute_explicitly agreed to the
mutual con·sent provisions in the agreements identified in Section
10l(d)(2)(B) and established a role for Congress in· the procedure
for u.s. consent to an amendment.
Thus, just as the mutual consent.provisions of the CNMI agreement
limit the exercise of Article IV territorial clause powers. by
COPY
�-
·
.
:'\ Ul~
-->~
r'T~~
&0
Congress, the mutual consent and re.lated funding provisi ~s of (_{2~ ~
the free association compacts limit the exercise of .Art· le I and . ~
Article I I foreign policy and def.ense powers by the Pre :dent and
r-11
Congress. These unprecedented arrangements are intended to
enable the U.S. to sustain its authority over areas in wH' ch it
has significant national ·interests, but in which the peopl do
not enjoy the full rights and benefits of incorporation into~~-
U.S. federal political and legal system ..
To understand the gra~ity of the problems that will be· created if
the Department of Justice persists in what we believe is a
misinterpretation of the POSSE decision, it is imp6rtant to
examine the. existing mutual consent precedents very closely.
EXISTING MUTUAL CONSENT PRECEDENTS:.·
The first of the existing mutual consent precedents is found at
Section 105 in the Covenant to Establish 'the Commonwealth of the
Northern Mariana Islands; U.S. Public L~w 94-241, 90 Stat. 263 ·
(1976) 1 reprinted at 48 u.s.c .. 1681, note.
The additional
·
important insular area mutual consent. precedents are gi~en the
force.and effect of U.S. law pursuant to the agreements referred
to in Section 10l(d)(2)(B} of the U.S~ statute·approving the
·
.Compact of Free Association between the U.S., the Republic of the
Marshall Islands (R,MI) and the Federated States of Micronesia.
(FSM), U.S. Public Law 99-239, 99 Stat. 1770, 48 U.S.C. 1681,
note. The CNMI, FSM and RMI mutual consent provisions became
effective tinde~ Presidential Proclamation No. 5564 of October 3,
1986, Federal Register Vol. 51, Number 216, November 7, 1986.
As already.stated, the RMI and FSM.compacts also bind successive
Congresses through a pledge of the full faith and credit of the
U.S ..for economic assistance grants which are central elements of
the political relationship defined in the compact as an agreement
between the u.s. and the peoples.of the RMI and FSM exercising
their sovereignty by approving the agree~ent in a plebiscite.
See, Preamble and Section 236, Compact of Free Association·, P.L.
99-239.
These multi-year funding obligations are not •subject to
appropriation by Congress," .the typical treaty formulation 1 but
are enforceable in the U.S. courts, which are expressly granted
jurisdiction to enforce the payment obligations in the ¢ompact.
Thus 1 Congress has r~stricted its ability to alter, amend or
repeal those statutory obligation~ of its own making.
THE CASE OF PALAU:
A fourth mutual consent precedent is scheduled to enter·into
force on· October 1, 1994 under the terms of a Compact of Free
Association between the U.S. and Palau.
-
~
~
COPY
-
J.
'
... ______ _
�..
· '·
,~,oN P~
cY r , -~ ~~
. The Palau compact implementation agreement is terminab '
"-llvl ~~
unilaterally by Palau or the U.S., but once the Compac enters
S
into force, under Section 453(a) of U.S. Public Law 99-' 58, 100
r-1
. ,...
Stat. 3700, 48 u.s.c. 1681, note, _the Palau compact mut al
~
consent provision and all the related rights .and obligat.r ns
-o-<.--<>
under the agreement will be binding upon both Palau and th
t
United States..
If the DOJ Memorandum of July 28 is applied to
the Palauan compact mutual consent provision there may .be rea~ons
not to go forward with implementation.
.
The u.s. currently is under no legal obligation to implement the
Palau Compact, and even though the Palatians have approved the
Compact tne government of that insular area has no rights under
the agreement until it enters into force.by mutual agreement, and·
Palau .has no right to an arrangement with the u.s. which is
enforceable or unconstitutional ~- even if that arrartgement
achieves important u.s. goals such as granting Palau selfgovernment and ending the U.N. trusteeship under which the u.s.
has the ultimate powers of government in Palau.
Thus, implementing the Compact for Palau is not a case of .
honoring a previous commitment on mutual consent, but of creating
a new one. If mutual consent clauses binding Congress are
unenfor~eable and unconstitutional, the u.s. should unilaterally
terminate the implementation agreement as provided for in Article
I I, Section 4 of that agreemen-t, and seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
·
It would be bad faith to implement the Palau Compact knowing that
a key provision is unenforceable and unconstitutional under u.s.
law. Under the Vienna Convention on the Law of Treaties, to do
so could give rise to international ·legal issues affecting
enforceability of the compact. For the_DOJ Memorandum of July 28
puts Palau on notice that the mutual consent agreement contained
in Section 453(a) is viewed by the u.s. legal authorities as
unenforceable.
Yet, the Section 453(a) mutual consent arrangement with Palau -which gives the u.s. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity -- is the single
most significant provision which justified to Congress the huge
economic grants cont-ained in the funding sections of the Palau
compact.
As in the case of the FSM.and RMI, those funding
grants are backed by the full. faith and credit of the u.s. and
enforce~ble in the federal cou~ts.
If the Palau compact takes effect and the mutual consent '
provisiori in. Section 453{a) is unenforceable; it would appear
that the massive u.s. funding obligations .under Title Two of the
compact for Palau would survive under the terms of Section
·
· 452{a)., even if the U.S. followed the procedure under Section 442
to terminate the free association relationship due to loss of the
· defense rights which were to extend beyond the initial period of
COPY
�the compact.
Perpetual strategic denial is what the U.S. would be
to
retain under continuation of the U.N. trusteeship, and s
strategic denial that lasts beyond the agreed period of f
association under the compact is what Congress demanded in o~~-
to justify over $450 million in grants to a. community of 14,000.
If the Department of Justice wants the Administration to give
away what Congress approved ~ P.L. 99-658 just to win a debate
over mutual consent forGuam, shouldn't Congress be informed?
Thu$, the·decision of the Department of Justice to change its
position· on mutual consent does not impact on Guam alone.
The
most immediate impact may be on Palau. Of course,· th.e Department
of Justice may not have the· authority or ability simply to choose
to honor what_must be'viewed under its theory as an
unconstitutional and inchoate mutual consent commitment between
the U.S. and Palau.
Indeed, the ndtion that individuals in the
federal government have that degree of discretion in fundamental
matters such as this itself raises constitutional issues.
But, again, even if the Department of Justice is as generous with
respect to honoring·a mutual consent commitment to Palau as it
appears ready to be, a question may arise as to whether the U.S.
will b~ able to enforce its right~ or meet its obligations under
the Palau mutual consent provision:
On the fa~e of things
Section 453(a) and the related provisions of Section 311 seem to
be. a benefit to the u.s. which it simply·can enjoy by deciding·to
honor it.
.
That view may be folly.
If the same litigious parties in the
u.s. or Palau. who have. mounted legal challenges to the military
provisions of the compact tirelessly for the. last fifteen years
establish jurisdiction to challenge the v~lidity of the Section
453 (a) mutual consent provision in our own courts, ·and prevail
with the aid of the DOJ Memorandum, it appears that U.S ..
taxpayers co~ld end up paying Palau for defen~e ~uthority tied to
a mutual consent provision in Section 453(a) rendered null and
void.
·Having been seized 'fith what Palau and the U.S.prudentially must
view presumptively as a serious subs.tantive legal iil.firmity in a
provision that is .fundamental to the purpose of the agreement
prior to its entry into force, will the parties be able to rely
upon and enforce the reciprocal and interdependent rights and
oblig~tions set forth in the agreement?
Ib not, are the U.S.
funding obligations linked to the defense ~uthority and mutual
consel}t provisions severable so that the u.s. would_be able to
extricate itself from the full faith and credit payment
· requirements if the defense rights proved unenforceable.?
The answer to both those questions arguably would be in the
negative.
COPY
�We raise these issues not because we believe that the
consent provisions are either unenforceable or
unconstitutional.
Rather, we use them to sho~ the basi:
inherent in the Justice Departm~nt's approach. When th
covenant and the compacts were negotiated, Justi.ce suppo
mutual consent clauses.
Nothing has changed since then.
the POSSE case has caused a rethinking of this support and POSSE
merely explains the test that must be employed to determine
whether Congress bound itself validly to. a limitation on the
exercise of its power.
It did not establish a per~ rule to
the contrary.
m~tual
To avoid the perverse result that could tome about by applying
the position set forth in the Memorandum to Palau's mutual
consent compact, the DOJ Memorandum of July. 28 should· be
withdrawn immediately.
That would allow the Palau compact to be
implemented and enable the parties to 1;he Guam commonwealth
negotiations can move forward with the process of defining an
acceptabl~ mutual consent relationship as .endorsed by Secretary
Babbitt during his trip to Guam. ·
COPY
�,f
APPENDIX B
SECTION-BY-SECTIONANALYSIS OF THE.
MEMORANDUM FOR THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALTH DATED JULY 28, 1994
RE: MUTUAL CONSENT PROVISIONS IN THE
GUAM COMMONWEALTH. LEGISUTION
FROM THE DEPUTY ASSISTANT ATTORNEY·GENERAL
Introductory. Paragraphs '-- pp .1-2.
The Department's .Memorandum correctly recognizes that the
inclusion of mutual consent clauses in the
Co~onwealth
legislation is crucial to the people of Guam, referericing as the
reasons autonomy and economics.
clearly a
consider~tion,
While economic development is
the reference to autonomy is misleading.
It is true Guam seeks control over its internal affairs.
autonomy is less the goal than democracy.
resid~nts
of Guam do not have the same
.
But
The.Arnerican-citizen
righ~s
.
to participate in
the representative democracy enjoyed by.the citizens of the
several states.
If the cit·izens of the Guam maintain their
residence there, they elect voting membeis of
neith~r
the House
nor the Senate, nor can they vote in presidential elections.
They are effectively excluded from the most fundamental aspect of
our democratic syst~m -- t~e right of
u.s.
citizens to give some
form of meaningful consent to the laws and for:m of government
under which they live.
The circumstances of the people of Guam today are the direct ·
consequence 'of almost ·100 years of Arner ican rule, a period during
09/15;94, ll:59am
20029980
COPY
�'·
ha~
which the U.S.
exercised sovereignty over
Gu~m
withe
inco~porating
it into the U.S. system of constitutional
federalism.
No level of economic development can sustain
perpetual second-class citizenship.
A process must be
~reated
which will lead to resolution of Guam's status as a non-selfgoverning area under the U.N. Charter.
it will be
a
living contradiction of
Until Guam is decolonized
u.s.
moral opposition to
colonialism.
Thvs, the fundamental que$tion which the people of Guam and,
indeed, which this Administration must .ask today is similar to
that question asked by the leaders of the American revolution
can a nation, founded on the principle that government acts only
with the conserit of its people continue to deny basic rights of
self-government to some of its citizens solely because they live
in a territory? 1
The DOJ Memorandum recognizes ·that for the past thirty
years, the Department has supported the constitutionality and
enforceability of mutual consent clauses. 2
Appendix A
1
In footnote.l, the Memorandum chooses to define Guam as a
"non-state area", a catchy pseudonym for what Guam really is-- a
colony of the Uriited States. This is why people in the
territories object to their territorial status. As a ~erritory
they are precluded. from the democratic system. The Guam
Commission on Self-Determination, however, ·does not claim that
the legal implications of being a territory do not apply to them.
It is because they recognize that being a territory leaves them
out of the democratic process that they seek mutual consent.
2
Unfortunately, the Department has refused to provide us
with any of the prior opinions supporting mutual consent clauses.
09!15/94, !1:59am
. 20029980
2
COPY
�accompanying this document reviews the legal and politica
of relevant prior mutual consent precedents, as well as t~e
-~~:
\.
-
pendinif entry into force of ahother mutual consent arrange ent.
We do not understand how the mutual consent
other acts of Congress will be "honored" by the Departmentwhile
a similar provision proposed for Guam is unenforceable.
Memorandum at 12.
Appendix A.
N~ither ~he relevant provisions of the Constitution nor
applicable cases support different standards for the kind of
-mutual consent arrangements involved in these insular political
status relationships.
-~ongress_in
Nor_can it-be argued that an Act of
connection with the CNMI covenant or Compacts of Free
Association is any different or more binding on Congress than an
Act-adopting the Guam Corrunonwealth would be.
An Act of Congress
is either constitutional and enfbrceable or it is not. If the
Department intends to
sup~ort
the mutual consent pr6visions in
these other Acts and does not intend to interfere with
implementation of the Palau Compact 1 it must apply the same
policy to Guam.-
To quote the Memorandum at p ..2. -- " [ i] n our
view, it is important that the text of the ... Act not create any
illusory expectations that might to (s
) mislead the
electorate ... about the consequences of ~he legislation".
in the end, note 2 makes cle~r that the foundation for the
proposed change in position on mutual consent clauses is the
Supreme Court's decision in Bowen v. Agencies Opposed to Soc.
09/15194, 11:59am
20029980
3
COPY
�I
Sec. Entrapment, 477 U.S. 41 (1986)
"POSSE").
(popularly referred td as
~
As discussed in great detail infra, POSSE does
\
n.ot
bar
\,
'·
Congress from limiting its right to exercise sovereign power
b'~--
ehtering into a biriding contract, nor does it establish a per se
test that Congress can only bind itself when entering into
contracts dealing with traditional private
POSSE
right~.
In "fact,
dealt with the exercise of a regulatory right, and turned,
not on the nature of the contractual right at issue, but on a
determination·of whether Congress had expressed an intention to
bind itself in "unmistakable terms".
The following
section-by~section
analysis demonstrates that
none of the cases cited in the Memorandum leads to a certain,
conclusion that the Supreme Court would restrict Congr.ess'
ability to enter into a political status arrangement with Guam
based on mutual consent.
Section r~ - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty of the United States is Plenary with
Constitutional Limitations -- pp 2~4.
The DOJ Memorandum would lead us to believe that the Supreme
Court has already decided that Congress can~ot limit its exercise
of authority over the territories because its authority is
plenary.
In this regard, the Memorandum seems to argue that this
plenary authority is infinite ·and must remain unencumbered in
perpetuity-- or
~t
least until the U.S. alters Guam's status ..
09115!'14, !1:59am
·20029980
COPY
�---------------------:--:------:----
-·----
Memorandum at 4 . ·
.Thus, the Memorandum argues that Congress actually
estopped from exercising its authority with respect to Gua
that exercise of authority results in some form of meaningful
consent to the form of government under which the Guamanian
people live.
But
Congr~ss
is the master, not the prisoner of its
plenary authority over the territories.
authority, it follows that Congress can
if Congress has plenary
exe~cise
~ake
to limit the types of measures it will
this authority
pursuant to that
authority if that is in the best interests of the U.S. and the
To assert otherwise stands the meaning of plenary on
territory.
its head.
Plenary means full power.
It does not'mean full
power, except when Congress attempts·to exercise it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
regulations.
If Congress has the power to dispose of a territory
in its entirety, it also has the power to dispose of some of its
control by exercising its power to make
regulations.
~11
needful rules ahd
It is an elementary principle of statutory
interpretation that the "greater includes the less".
Church
v. U.S, 136 U.S. 1, 45 (1889). 3
•
3
See, Morman
Similarly, in Collins
While a distinction obviously exists between the
Government's rights to abrogate property rights and the issue of
its authority to exercise political power in the territories, the
Supreme Court's frequent statements that the Government can bind
itself do not appear to be limited to commercial-type contracts.
The Co~rt has, for instance, upheld limitations 6n federal
political powers in areas ceded to the federal government by the
09/151,94, ll:59am
20029980
s.
�v. Yosemite Park & Curry Co., 304 u.s. 518 (1938), the C
upheld an agreement between California and the Federal G
which reserved certain rights to California when it ceded
Yosemite Park.
'
The Court concluded that the Federal Government
and the states could enter into agreements concerning
jurisdiction over·property within their bordeis, and the courts
should "recognize and iespect'' the. agreements.
30.'
304. U.S. at 527-
For instance, the Su~reme Court has approved of the
Government's right to lease mineral rights.
Gratiot, 39 u:s:
See United States v.
(14 Pet.) 526, 536 (1840)("it lies in the
. discretion of Congress, acting in the public interest to
dete.rmine how much of the property it. shall dispose.").
In
Ashwander v. T.V:A., 297 U.S .. 288 (1936), the Court approved a
contract for the sale of electricity, rejecting an argument that
the Government lacked constitutional authority to dispose
partially of its property by contract and relying Dn Congress'
states pursuant to the Territorial Clause.
In Fort Leavenworth
R.R. v. Lowe, 114 U.S. 525 (1885), the Court upheld an agreement
between the Federal G.overnment and Kansas dividing taxing
authority.
The Court stated:
.
Though the jurisdiction· and authority of th~ general
government are essentially different from those of a .
State, they are'not those of a different country; and
the two, the State and the general .government, may deal
with each other in any way they may deem best to carry
out the purppses of the Constitution.
Fort Leavenworth, 114 u.s. at 541 ..
09/15194. !1:59am
200299BO
6
COPY
�l.SL at 330 36.
authority under the Territorial Clause.
5
None of the cases cited in the Memorandum are to the
contrary.
Each of them sets forth the gene'ral proposition
.
'
.
in regard to ihe territories, the Congress is ~upreme.
In .part,
the earlier cases were required to make this point because the
Territorial Clause was included to make clear that it was.the
Federal Government and not the States that would exercise control
over the Territories.
See,
~'
A. Leibowitz, Defining Statute
(1989) at 10...:11; See also, District of Columbia v. Thompson Co.,
.
346 U.S. 100, 109 {1953). But~ none of the cases cited in this
"
5
The Congress . also has authotity to dispose of properti
rinder the Territorial Clause. This power includes both the
absolute right to dispose of property in its entirety or to
dispose of part of the governments rights in property: ,
Of course, a significant difference may exist .between the
disposition of property and the dis~osition of sovereign
authQrity.
Nevertheless, the cortclusion that Congress can
partially dispose of matters ov~r which it has the power of
total disposition has considerable logical appeal.
If.
Congress could totally dispose of·· its power over the
Philippines by granting them independence, it seems logical
that it could also partially dispose of its powers by
granting .them something le.ss than complete independence.
Whether Congress could later change its mind as to the
partial disposition is.not clear, but some kinds of
dispositions are by nature final.
For example, if Congress
disposes of its powers over terri tory by admitting it· as a
state, .that would seem a. final disposition of its
.territorial pdwers; Congress cannot change later the status
of a state.
Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial power
over them for all time.
Inventive Statesmanship vs. The Territorial Clause: The
·constitutionality of Aoreements Limiting Territorial Powers, 60
Va .. L. Rev. 1041, 1060-61 (1974).
09/15/94, !1:59am
20029980
7
COPY
�·.
section address
di~ectly
the question of whether
exercise it~ plenary authority by restric~ing its abilit'
in the future.
The Memorandum bases .its. assertions about Congress' plenary
authority on Gibbons v. Ogden, 22 U.S.
(9 Wheat) 1 (1824).
That
case, of course, is the seminal decision establishing Congress'
power under the Conunerce Clause.
It has nothing whatsoever to do
with the Congress' Territorial Clause authority.·. It is
apparently cited to establish ·the proposition that in some
express areas
Congre~s'
'
power "acknowledges no limitations, other
than are prescribed in the Constitution'',
obvio~s
We think it should be
that the Department's proposed changed opinion on mutual
.
.
consent is entirely inconsistent with this principle.
than recognizing the scope of
~ongress'
Rather
powers, the Department is
claiming that a limitation exists on Congress' power -- that
Congress is imprisoned by its plenary power and cannot exercise
it to limit itself.
In fact, several of the other cases cited in ·
the Memorandum to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County of Yankton, 101 U.S .. 129 (1880).
The Memorandum utilizes
a quote to establish that Congress is supreme in
th~
territories.
But thi~ quote has nothing whatsoever to do wiih whether Congress
can act to limit its authority.
Unfortunately, what has been
left out fiom the quote are the next two sentences which bear
09!15/94, ll:59am
20029980
8
COPY
�directly on the issue presented by the mutual consent c
the analysis the Supreme Court adopted in· POSSE whether
has limited its
ght to exercise sovereign power.
The
apparently addiessing the is~ue that Congress had not expressly
reserved the right to amend acts of a territory stated:
In the organic act of Dakota .. there was not an
express reservation of power in Congress to
amend the acts of the territorial
legislature, nor was it necessary. . Such
power -is an incident of sovereignty, and
continues until granted away.
101 U.S. at 133 (emphasis added).
Clearly, the
imp~ication
of this decision is that while
Congre~s
has full power it has the right to grant it away. 6
While the·rrext case cited, Hodel-v. Virginl.a Surface Mining
and Reclamation Assoc., 452
u.s.
264,
276 (1981), like Gibbons v.
Ogden, does not deal with the Territorial Clause, it does
describe accurately the standard the Court applies when
determining whether Congress has acted within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question .of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine·whether a particular exercise of
congressional power is valid under the .
Similarly, American Insurance Co. v. Canter, 26 u.s. 511
(1828) and Downes v. Bidwell, 182 U.S. 244. (1901), cited in the
memorandum to establish the extent of Congress' power, do not
. address the issue of whether Congress can act to limit its
authority.
6
IYY/15!94. 11 :59am
20029980
9
COPY
�Conunerce Clause is relatively narrow.
The
court must ~efer to a congtessional
finding ... if there is any rational basis for
such a finding ... This established, the only
r~maining question fOr judicial inquiry is
whether "the means chosen by (Congress] m~st
be reasonably adapted to the end permitted .by
the Constitution." ... The judicial task is at
an end once the court determines 'that
Congres~ acted rationally in adopting a
particular reg~latory scheme.
452 U.S. at 276 (emphasis added).
Thi~
test recognizes the great deference the Court gives to
an exercis~ of power by Congress.
that a mutual
consent.cla~se
If Congress were to conclude
is within its power and that
s~ch
a
clause is.necessary to achieve Congress' purpose of granting
greater self-government to Guam, can anyone say with certainty
that the Court will not believe that a sufficient rational basis
exists.
If it does, not even the Memorandum asserts that
anything in the Constitution specifically bars a mutual consent
clause.
ft is well
~stablished
that when the intent of Congress with
respect to the .precise question at iss~e is clear, ~he courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A.
v.
u.s.
NRDC, 467
It is equally clear that the courts give
·great deference. to Congress when it exercises its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The incorporation analysis thus must be
undertaken with an eye .toward preservirig Congress' ability to
09/15194, !1:59am
20029980
10
COPY
�accommodate the unique social .and cultural conditions and
of the p~rticular teiritory.
More over
we must be ca~ti
1
restricting Congress' power in this area."), citing
Puerto Rico, 442 U.S.465,
know of no decision .of the
460~70
(emphasis added).
Suprem~
In
Court reversing any action by
the Congress taken with regard to the governance of
when the Congress has acted pursuant to
i~s
·~
territory
Territorial Clause
authority.
None of the rest of the cases cited for the proposition that
Congress' power continues indefinitely address the question of
'·
whether Congress can limit its ability to act in regard to the
territories without their consent.
Shively v. Bowlby, 152 U.S.
(1894) can be cited only for the proposition. that it is the
1
\
FedE:;!ral Government ·and not the states which exercises control
over the territory of the United States.
It did not address in
any way whether the Congress can limit its authority to act over
this territory.
u.s.
Similarly, Hooven & Allison Co. vl Evatt.,· 324
652 {1945), · can be cited only for the self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers would not be exercised during the transition
was not addressed.
Congressional authority over the people of the territories
and their political rights is derived from Congress' authority
09/151'94. !1:59am
20029980.
11
COPY
�.·
over Guam as property brought within Congress' control b'
Territorial Clause.
In Edward v. Carter, the Court
Congress' power under the property clause, stating:·
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 effibraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitted).
(~mphasis
added).
Further definition was provided in U.S. v. Gratiot, 39 u.s.
526 (1840)
~here
lease of federal
the Court considered Congress• power to impact a
l~nds
through
legi~lation.
The Couit's approach
' .
to the question is quite interesting and seems to analogize the
·power over land with the power over territorial governments.
First, it finds that the mines in question lie with
territory of the United States are, therefore, its property.
Second, it recites the Territori~l Clause and concludes that the
tenn territory refers is a descriptive word referring to one kind
of property.
~hird,
.
'
the Court. concltides that "Congress has the
same power over [the mine) as over any other property belonging
to the United States;. and this power is vested in Congress
, without limitation;· and has.been considered the foundation upon
which the territorial governments rest". Id. at 537.
Fourth, the
Court then references cases involving Congress' authority over
the territories, including Florida, incltiding the right of
Congress "to make all needful rules and regulati6ns respectin~
09/15194, 11 :59am
20029980
12
COPY
�u2F1
the territory or property of the United States". Id. at
Finally, the Court concludes "[i]f such are the powers of
Congress over the lands·belonging t6 the United States,
"dispose of," cannot receive the construction contended for at
the
bar~
that they vest in Congress the power orily to sell, and
not to lease such lands".
The Court's concept
Id.
~hich
forms the basis of these opinions
is that the greater includes the lesser.
The
Co~rt
reached its
decision building on Congress' authorit'y over the territor.ies.
.
'
If Congress has the power to dispose of territories or to make
all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
Section I I - "The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp S-6.
· ·
This section of the Memorandum offers nothing more than a
restatement of the "principle" asserted in Section I -- that
Congress~.
plenary authority does not include the right to limit
the exercise of this authority in the future by way of a mutual
consent clause.
As with Section I, the cases relied upon in this
section do not deal with the issue of Congress sxercising its
plenary authority in this way.
Clinton v.
Enqlebr~cht,
80
U.S~
(13 Wall) 434 (1872) does
not establish a rule that any delegations of authority to a
09/15/94, !1:59am
20029980
.13
COPY
�territo.iy "must be 'consistent with the supremacy and
of_National authority'" as asserted in the Memorandum a
The case did not address whether Congress could irrevocabl
its right to aiter a law because of a mutual consent ~lause, nor
·did it use the word "must".
The quote is.dicta and deals with
how Congress had approached local government up to that time.
The actual quote is as follows:
The theory upon which the various governments
for portions of the territory of the Unit~d
States have been organized, has.ever been
that'of leaving to the irihabita~ts all the
powers of self-government consistent. with the
supremacy and supervision of National
authority, and with certain fundamental
principles established by Congress.
80
u.s.
_~his
at 441 (emphaSis added).
quote establishes nothing more than the historical fact that
Congress in its approach to self-government for the Territories
had riot agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co., 302
nothing to the debate.
U.s~
The Court recites the
260 (1937) adds
quot~
set forth
above from Clinton v. Englebrecht but uses it to affirm.a broad
grant of·power to territorial legislatures, not to bar Congress
trom entering into an agreeme~t not to exercise its authority.
In fact, the holding in Puerto Rico was to affirm the. validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346
u.s.
100· (1963)
09!15!94, !1:59am
20029980
!4
COPY
�provides even less support for the Memorandum's assertions\".
As
with the other cases, the Court was merely referring to th
precedent regaiding the gen~ral authority of Congress to alte
its legislation relating to a territory, but, here again, .this
discussion was not in the context of an expression by Congress of
an .intent to limit itself.
7
More importantly, the laws in
question contained specific reservations P.errnitting Congress to
make such amendments.
346 U.S. at 195.
What is missing from this section, is a discussion of two
important decisioris more closely on point.
The first is Currin
v. Wallace, 396. U.S .. 1 {1938) which is mentioned in footnote 13
.of the Memorandum but summarily dismissed as being inconsistent
with the Department's new theory that Congress cannot bind
itself.
This is a decision which we suggest is more
apptopriately left to the Supreme Court.
Currin is significant
because the Supreme Court approved an Ac,t of Congress
implementatiori of which required the approval of those affected
by it, the
~isence
of the Guam mutual consent clause.
The Act,
7
The memorandum attempts to bolster the Department's
theory that Con~ress must retain the authority to revise, alter
·or revoke any authoFity it grants to the territories by citing
United St~tes v. Sharpnack, 355 U.S. 286 (1958); Harris v.
Bareham, 233 F.2d 110 (3rd Cir. 1956); Firemen's Insur~nce Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 U.S. 648 (1874) and Christianson v. King County, 239 U.S. 365
(1915). The cases cited, similar to D.C. v. Thompson, 346 u.s.·
100 (1953} do not discuss an express intent by Congress to limit
the exercise of its authority, rather they are limited to
situations whereby Congress clearly reserved the exercise of its
authority to r~vise, alter or revoke through enacted legislation.
091!5/94, II :59am
20029980
15
COPY
�<\oN Pf.?t:.
'\~
passed pursuant to the Commerce Clause which the Memorandu
~
v"
Lo2fl
asserts gives Congress the same plenary power as the Territ~ial
Clause,
was challenged as an unconstitutional. del
authority.
ation of
.
0'/A
v~
~,
~.'
~"-I
f'O~/f/
~
The Court disagreed finding that rather than a
delegation of legislative authority, the ·congress "has merely
placed a restriction upon its own regulation by withholding its
opera~ion
... 'unless two-thirds of the [voters] voting favor it.
Similar conditions are frequently found in police
306 U.S. at 15.
re9ulations.~
The Court went on:
Here it is Congress that exercises its
legislative authority in making the
regulation and in prescribing the conditions
of its application. The required· favorable
vote upon the referendum is.one of these
conditions ... "Congress may feel itself unable
conveniently to determine exactly when its
exercise of the legislative power should
become effective, because dependent on future
. conditions ... it may leave the determination
of such time to ... a popular vote of the
residents of a district to be effected by the
-legislation. While in a sense one may say
·that such residents are exercising
legislative power, it is .not an exact .
statement, because the power has already been
exercised legislatively by the.body vested
with that power under the Constitution, the
condition of its legislation going into
effect being made dependent by the
legislature on the expression of the voters
of a certain district."
306 U.S. at 16 (citing Hampton & Co. v. United States, 276 U.S.,
394, 407
(19??).
If the Court agiees Congress has the authority to make
implementation of its legislation subject to ratification by the
affected voters, it is inconceivable that the Court would find
09/15/94, !1:59am
20029980
16
COPY
�that Congress could not agree to limit its ability to
same law without the consent of those same voters, if
has expressed its intention unmistakably.
The most troublesome oversight in this section of the
Memorandum, however, is .the failure to discuss the Ninth
Circuit's decision in United States v. De Leon Guerrero, 4 F.3d
749 (9th Cir. 1993), cert. denied, ?? U.S. ?? (199?).
De Leon
Guerrero is the only decision of which we are aware that deals
with the applicability of a mutual cons.ent provision in
territorial legislation.
The case arose under the Covenant for
the .Commonwealth of the Northern Mariana Islands.
The Covenant
was ratified by an Act of the Congress .. · 48 U.S.C. § 1681b.
The
. case involved an ongoing debate about whether the c'ommonweal th, s
right of local self-government as defined in the Covenant under
Section 103 substantially limits Congress' legislative powers
over the Commonwealth under Section 105".
4 F.3d at 752.
The
specific issue was whether the audit provisions of the Inspector
General Act of 1978 "conflicts with the ,self-government
provisions of the Covenant".
~
F.3d at 753;
In order to reach the question, the court first had to deal
with arguments put .forward by the Department of Justice which· are
identical to those inthe Memorandum.
Arguing on behalf of the
Inspector General, the Department asserted that Congress had the
right to pass the Act under the Territorial Clause arguing "that
because the CNMI is governed through Congress' power under the
09/15/94, 11:59am
20029980
17
COPY
�Territorial Clause,
Congres~
has plenary legislative aut
over the ·cNMI".
4 F. 3d at· 7 54. 8
"unpersuasive".
According to the Ninth Circuit
The court found
'the authority of the United States towards
the CNMI arises solely under the Covenant.'
The Covenant has created a ·u~ique'
relationship between the United States ~nd.
the CNMI, and its provisions alone define the
boundaries of those relations ... The
· applicability 6f the Territorial Clause to
the CNMI, however, is not dispositive of this
dispute.
Even if the Territorial Clause
provides the constitutional basis for
Congress• legislative authority in the.
Corrunonwealth, it is solely by·· the Covenant
·that we measure the limits of Congress'
·
legislative authority.
4 F.3d at 754.
Ultimately,
th~
Ninth Circuit approved application of the
law not because Congress had ple.nary authority under the
Territorial Clause but because the Covenant specifically gave
Congress the right to enact. legislation applicable to the
Commonwealth.
The only limit on this right is a mutual consent
provision stating that a few limited sections of the Corrunonwealth
Act could not be modified ~ithout the mutual consent of the
8
The court referred to Simms v. Simms, 175 U.S. 162, 168
(1899) a case which explained.that under the Territorial Clause/
Congress "has the entire dominion and sovereignty/ national and
local, Federal and ~tate, and has full legislative over all
subjects upon which the legislature of a state might legislate
within the state". This is the same principle upon which the
Ju~tice Department again relies.
09/15/94, 11 :59am
20029980
18
COPY
�Commonwealth.
Covenant Section 105. 9
The Court found th
mutual consent provision as drafted did
passing laws affecting the Commonwealth where the
sufficiently significant interest to justify it.
The holding in De Leon Guerrero contradicts directly the
conclUsion paragraph to this .section.
This paragraph reasserts
that the. "non-state areas are s.ubject to the authority of
-
Congress, which, as shown above, is plenary ... (and] persists
(until] the area becomes a State or ceases to be under United
States sovereignty".
Memorandum at 6.
Rather, that decision
makes clear that Congress' authority, after a political status
change agreed to between Congiess and the people of the
terri tory, is defined solely by the. terms· of that agreement.
Section III -- The Rule that Legislation Delegating Governmental
Powers to a Non-State Area Must·Be Subject to Amendment and·
Repeal Is but A Manifestation of the Genera.! Rule That One
Congress Cannot Bind A Subsequent Congress, Except Where It
·creates Vested Rights Enforceable Under the Due Process Clause of
the Fifth Amendment-- 'pp 6-7.
This entire subsection is premised
~n
a fallacy.
There is
no.rule expressed in any decision of any court that governmental
powers to a non-state area must be subject to amendme.nt and
repeal.
As described above, the most that cari be said is that
there is dicta in a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the mutual consent
provisions which the Memorandum states the Department will
continue to support. Memorandum at 12.
091151'94, !1:59am
20029980
19
COPY
�.·
whether Congress can bind itself, that Congress' actions
territories are subject to later amendment.or repeal.
accurate in
th~
section is that these statements are nothin
than "a specific application of the maxim that one Congress
cannot bind another .... "
Memorandwn at 6.
The analysis does not end her.e, however, because it ·is
simply not true that one C6ngress cannot ~ind another, as the
Memorandum recognizes but then attempts to explain away.
described above,
th~
most that can be
s~id
As
is that there is dicta
in a series of cases, which do not address the issue of whether
Congress can birid itself.
They stand only .for the proposition
that when. express statutory language exists or when language . is
not provided and it is clear Congress originally had the power,
then
i~
those situations Congress retains its authority and its
actions in the territories may be subject to later .amendment or
repeal.
In the end, the section misrepresents as conclusive and
inflexible "the ciaxim that one Congress cannot bind another."
First, .the·law must create vested rights as Justice Marshal.l
explained in Fletcher v. Peck, 19
u.s.
(6 Cranch) 87, 135 (1810}
("When, then, a law is in its nature a contract, when absolute
rights have vested
unde~
that contract,
.cannot devest (sic) those rights." ) 10
~
repeal of the law
This, too, the Memorandum
10
Although the Department in its memorandum focus' on the
dissenting opinion in U.S. Trust Co. v. New Jersey, 431 U.S. 1
( 19 7 7 ). the actual holding was that impairment of contract by the
State was in violation of the Contract clause and neither
necessa·ry nor· reasonable in light of the circwn'stances. Although
09/!5194, 11 :59am
20029980
20
COPY
�recognizes but goes on to utilize a quote from the Sinki i
.
.
l
Cases as part of its effort to build a case that only con
rights of a private nature are protected from change.
· The analysis provided is incomplete.
The
te~t
11
actually
established by the Supreme Court to determine whether Congress
has bound itself turns not on the nature of the contract (private
right vs public) .but on whether Congress has expressed its
intention to protect the vested right in "unmistakable terms".
The "unmistakable terms" doctrine is not even addressed in.the
Memorandum.
Infra at p. 25 .
. Section IV~- The'Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two Mutual Consent Clauses - p. 8.
The Memorandum presents two· bases for its conclusion that
~he
Due Process Clause does not bar a repeal of a mutual consent
the Contract clause applies to States and not the federal
government, the "United States are as much bound by their
contracts as are individuals."· Sinking~Fund Casess, 98 U.S. 700,
719 (1879). The Court in .Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v; United States, 292 U.S. 571 1 579 (1934), stated "the Supreme
Court held that "(r]ights against the Unit~d States arising otit
of a contract with it" are property rights protected from
deprevation or impairment by the 5th Amendment." See also Madera
Irr. Dist. v. Hancock, 985 F.2d 1397, 1401 (9th Cir. 1993).
Moreover the Court,.in U.S~ Trust Co. noted that "a statute is
itself treated as a contract when the language and circumstances
evince a legislative intent to create private rights of a.
contractual nature enforceable against the State."
431 U.S. at
17, fn 14 (1977).
11
What is not disclosed about the Sinking Fund Cases is
that the ''statutes in question expressly reserved Congress•
authority to repeal, alter, or amend them, and Congress exercised
that power ... " POSSE, 477 U.S. at 53.
09115194, !1:59am
20029980
21 .•
COPY
�·.
f
clau~e.
First it points. out that a territory is not a
within the meaning of the Due Process Clause.
herring..
This is
Secondly, it asserts that a repeal would not deprive a
territory of property within the meaning of the Fifth Amendment.
This is not the test the Supreme Court has
not the nature of the
vest~d
e~tablished.
right that cbntiols.
It is
Rather,
the
·test involves a combination of a vested right coupled with· an
"unmistakable" commitment by the Congress not to interfere with·
the right.
Subsection IV, B -- "A Non-State Area. Is Not A Person in the
Meaning of the Due Process Clause of the Fifth Amendment.~ pp.89.
We do not need to de.bate the merits of the legal arguments
presented in this subsection because this is a non-eiistent
issue.· The mutual consent clause being discussed between the
?resident's designated
n~gotiator
and representatives of tha Guam
Commission on Self-Determination runs between the Governmentof
the United States and th~ Pe6ple of G~am, fiat thS political
entity of the Commonwealth of Guam as the Memorandum assumes.
The People
of
Guam clearly qualify·as persons under the Due
Process Clause.
We have attached the current configuration of the proposal·
for your review.
The reference to the People of Guam is
.
.
.
appropriate because elsewhere in the Act we intend to require
that after adoption byCongress the People of Guam hold a
09/15/94, !1:59am
20029980
22
COPY
�plebiscite to approve what Congress has enacted before
applicable to Guam.
In this regard,
nature of the Guam Commonwealth Act.
~e
also intend to
Rather than an Act of
Congress approved by the people before implementation, it .will
become a Covenant between the United States and the people of
Guam.
This Covenant will create vested and binding rights
protecting both the interests ,()f :the United States and of the
People of Guam.
Subsection IV, B -- Legislation Relating to the Government of
Areas Does Not Create Any Rights Or Status Protected By
the Due Process Clause Against Repeal Or Amendment By Subsequent
Legislation. ~ pp. 9-12.
Nori~State
While recognizing that the Government. may enter ihto
contracts, the Memorandum asserts that only contracts similar to
those ente~ed.into by private individuals are ~nforceable, and
"governmental powers cannot be contracted away", citing·North
American Coml. Co.
v.
United States, 171 U.S. 110, 137 (1898).
12
To'bolster its posit.lon 1 the Memorandum relies On the POSSE.
12
The comment by the Court relied upon by the Memorandum
is dicta.
It came in a case involving Congress' right to alter
the terms of a lease through regulation. The decision did riot
turn on the rule that sovereign regulatory authority could not be
waived. · It turned on the fact that an express reservation of
authority had been included
the contract. As the Court noted,
this was a lease "expressly subjected from the beginning; to
whatever regulations of the busin~ss the United States might
make" . 171 U.S. at 13 7 .
in
09/15!94. !1:59am
20029980
23
COPY
_..:___
_______ ______
_:___
--.--
--
..
�dec is ion.
loo'4
13
The POSSE decision, however,
did not turn on the
matter of the contract in question.
Court's holding was that if
Congr~ss
The actual foundation
was to surrender any of its
sovereign power in a contract, it must do so in "unmistakable
terms".
The "unmistakable terms" analysis would not be necessary
if the Court did not assume that Congress could.indeed surrender
sovereign powers, even in the realm of traditional regulatory
authority as was presented in the
POSSE~case.
This is exactly
the opposite of what the Memorandum asserts.
Indeed, the Court's reference to the bond and insurance
cases had no dire~t bearing on the Court's holding.
The cases
were cited for the.limited purpose of contrasting circumstances
. "
where Congress clearly evidenced its intent to bind itself from
· the facts in the 'POSSE case where "Congress expressly reserved to
itself "[t]he right to alter, amend, or repeal any provision of"
13
The Memorandum lacks examples that give support to the
Memorandum's. theory that Congress does not have the ability to
limit the exercise of its authority under the plenary power of
th~ Territorial Clause.
Rather, the cases cited involve
situations whereby the Congress through legislation, or the lack
of legislation 1 retained its authority.
For example, the
memorandum indicates Hudson Water Co. v. McCarter., 209 U.S. 349
(1908) has a much bfoader interpretation than the actual case
decision provides for.
In faGt, Hudson concerns an action
involving a water rights contract between the State and an
individual where the State did not include provisions limiting
its powers,. therefore allowing subsequent legislation by the
State and a resulting ineffective contract. · It is not about the
State's incapability to limit its power ~y contract, rather it's
about the authority of a State to retain its power when not
granted away.
09/15/94, !1:59am
20029980
COPY
�the Act which lead to the contracts at issue.
477 U.S.
The Court relied upon this contrast because its holding ~
was that the Congress could amend the legislation in questi
even if that amendment interfered with-contractual rights,
because it had not unmistakably indicated its intent to bind
itself -- the standard the Court has established for determining
whether Congress has waived its· sovereign power.
The actual holding in POSSE-- that·congress had not
surrendered its sovereign power to.alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thrift Supervision,
967 F.2d 598, 621 (D.C. Dir. 1992).
d~monstrates
holding in
The Transohio decision
conclusively that the Memorandum's analysis of the
POS~E
is so flawed that one wonders how it could be
used to justify a proposed
Administration policy.
rev~rsal
in such an important area of
In that decision, the D.C. Circuit makes
·clear that "[t]he Supreme Court reached [its] conclusion by
analyzing the governing.statute, the Social Security Act" and·
fotused on the fact critical to its
deci~ion
-- "[t)he Social
Security Act contained an express reservation of Congress' power
to amend the law ..
~·,
967 F.2d at 621, not by
establi~hing
the
per se "private.rights" testasserted in the Memorandum.
According to
th~
D.C. Circuit
The "principles form[ing) the backdrop" of
. the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
09/l.S/94. !1:59am
20029980
25
COPY
�..
that " 'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.' " Id. at 622 (emphasis added). 14
u39
The D.C. Circuit also discupsed the history of the
unmistakability doctrine.
"The "unmistakability" doctrine is a special
rule of contract interpretation· that applies
to contracts with the government.
The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification.
The goverrunent, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable.
to induce a partial release" of its sovereign
powers.
Id. at 618.
Both the POSSE and Transohio cases dealt with the
.
. .
application of the "unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
14
If the Court had actually established a per se rule
which depended on .the nature of the contract, then why did the
Co~rt continue after stating the unmistakable terms principle and
the general rule that "contractual arrangement, including those
to which a sQvereign itself is party, remain subject to
subsequent le~islation by.the sovereigri" ·state that "(t]hese
principles form the" backdrop against we must consider the
Di~trict Court's decision effectively to forbid Congress to amend
a provision of the Social Security Act".
477 U.S. at 52.
By
use of the "must consider" terminology, the Court made clear what
.the test is.
It would have been much more direct and ultimately
clearer simply to have ruled that the contract between the Social
Security Administration and the State of California was not a ·
traditional private contract~
It did not, of course, because
that is not the test. the Supreme Couit ever applies. The test is.
whether Congress has stated its intentions in unmistakable terms ..
09!15!94. 11 :59am
20029980
COPY
�·.
regulatory jurisdiction.
This test has nothing whatsoeve
I(
.
I
with a standard based on ··traditional private contractual
~ights"
which the Memorandl,lffi would have us believe is the standard.
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by adopting the "traditional private contractual
rights" te.st advocated in the Memorandum with a simple finding
that alleged contractual righ~s associated with the _regulatory
programs at issue
~n
contractual rights.
the cases are not traditional private
They did not, of course, because the Supreme
Court applies the "unmistakable terms" test .which requires an
analysis of Congress' intent, not the per se standard
the Memorandum.
See,
~~
477
u.s.
propos~d
in
at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can·contract away sovereign rights to exercise its regulatory
authority when its say~ so unmistakably.
15
Instead of dealing
15
The POSSE decision has even been criticized because it
appears to open the door wider than some commentators believe
·advisable. In an article by David Tosc~no entitled ~Forbearance
Agreements: Invalid Contracts for the Surrender of Sovereignty
analyzed the POSSE decision in great detail.
It concluded that
" [ t] he power to waive sovereignty was recognized'' in POSSE.
92
Colum. L. Rev. 426,_ 451.
It goes on "(i]n POSSE;. the Court
relied entirely on Merrion v. Jicarilla Apache Tribe for the
proposition thatthe federal government can surrender sovereign
power. Jicarilla in turn relied upon cases involving primarily
the taxation powers of· state governments ... Instead of endorsing
09!151'94, I 1:59am
20029980
27
COPY
�accurately with the Court's actual analysis, the
·page 11 relies upon a quote, claimed to set forth th~ hol
which is taken completely out of context and has nothing
whatsoever to do with the holding.
The quote, t.aken from 477 U.S. 55, ·fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
up the rest of this language beginning
The following quote picks
wi~h
.the quote from page 11 of the Memorandum.
the last sentence of
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress have stated in unequivocal terms 'its
intention to limit
~he
explicitly retained it.
by
th~
exerci~e
of its regulatory authority, it
After stating that the contract claimed
State of California "bears little resemblance to rights
held to constitute 'property' and citing to the insurance and
bond cases as examples, the .Court went on to explain their
relevq.nce.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
the rule applying to the police powers -- such powers cannot be
surrendered --.it adopted.the rule applying to taxation powers
such powers can only be surrendered if done so unmistakably.
This move should not be follo~ed automatically: if the Co~rt
wants to enforce contracts that surrender the federal
government's regulatory authority, it should do so on the basis
of policy arguments'· not on the basis of· POSSE."
Id. at 460. ·
Obviously the author did not like the test u~ed by the Court.
Nevertheless his criticism makes clear what the test is.
09/15194, 11 :59am
20029980
COPY
�of i.ts power to provide for the ·general
welfare.
Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring anysort of "vested right" in the
face of pr~cedent concerning the effect of
Congress) ~eserved power oh agreements
entered into under a statute containing the
language of reservation.
477 U.S. at 55
(emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contractin~ away its right to adopt
legisl~tion,
because the "Court has never held that the United
States cannot surrender regulatory
92 Colum. L. Rev at 458.
pow~rs
through contract .. ;"
But the Court has approved Congress
making effectiveness of its
le~islation
subject to approval by
the voters who are impacted by the legislation, see, Currin·v.
Wallace, 306 U.S. at 15-16.
It defies the rational of the POSSE
decision to argue that ·the Court would approve Congress adopting
legislation making effected-voters approval a requirement and
then pass subsequent legislation authorizing it to ignore the
vote of approval, if it has stated iri unmistakable terms that it
would not take such action.
After spending.eleven and one-half pages arguing that mutual
. co'nsent. clauses ,.are unenforceable and unconstitutional, the
Memorandum comes to an astounding conclusion.
It states that the
"Department of Justice ... would honor past commitments with
respect to the mutual consent issue·, including Section 105 of
09!15/94, !1:59am
20029980
29
COPY
�.I
the Covenant with the Northern Marianas Islands.
Department cannot have it both ways.
B~t
th
An Act of Congress
either constitutional and enforceable or it is pot.
cbnsent provision for Guam is unenforceable, then the Department
must reach the same conclusion for all other mutual consent
provisions.
Compact of
This includes the mutual consent provisions in the
F~ee
Association with Palati' scheduled to go into
effect on October 1, 1994.
solid
ba~is
The Department's Memorandum offers no
for such a significant
reve~sal
in policy.
All of
the cases upon which i t relies, except POSSE, were available to
i t .when its earlier positions supporting mutual consent were
made.
..POSSE does not change any rule with regard to Congress
binding itself.
It merely lays out clearly a test adopted in
1981 in Merrian v. Jecarilla Apache Tribe, 455 U.S. 130, which in
turr1 carried forward a principle which the D.C. Circuit states
"dates back to the early 19th century."
967 F.2d at 618 .
...
09!15194, !1:59am
20029980
30
COPY
�U. S. Department of Justi!:~
.
'
Office of Legal Counsel
l
1
.
I
l
l
l
Offi(;C u! !he
A.Uinul Anonloe'y C.CCr.l
.,
:-
June 29, 1994 · ·
L ~ficbael Heyroa.n ;.
.
.
Special:Rcpa:semativ~ for Ouam Commonweilth
UniwfStates Depa.ttmem. of the Interior
Office oftbe Secretary
:::·D.C.
20240
...
•
.
En~osed ue i few example.< of the
type
·I
. •.
'
of Janeu.ee
~ou might Jable
to use in your
n~go~ons w~. Guajn am.ceming ~ commonw~th act. These ~i~ps reflect the
~centy of ~c mtenti~ ~ tbe Uruted Stlll:es .wnh rcsp:C: ttl self-~Qv~ ~·Guam,
w1thout maldng unco~onal as.sertions of inwlne.mb~ 1D future C0~1onaJ · ·
encro:tchment We ~pe that; you will fmd these suggestio.Ill helpfuL ·If.rot•. plea.se let me
know and we will colrtinue tri work with yon .in craftiog · solat:ions. ; :
·:
'
,·
..
.
.
:
·
:
J·hope that you took a.~ay frolll our meeting a.ii ~pprc:ciat:ion of~ basi& for my
analysis of the mutual; con&en~ question. At bottom. tb.cre AT'C few co~tional limitationson the ability of one Congress to repeal the enactments of a prior CongTef~· .Those few
limitations do not spp~ to ~ to apply in the context of the proposed ~umal ronsent
P!OVision.
··
·
· .
... I have coosidefed Moitoo' s. view that Uiider the Teniwrles da~se Congress can
acbiCve by direct·sta~ory enactment what could be achieved by & ~t iiidepclldence
followed by a treaty. ~While this argument bas ~me appeal in light¢ ~;limited case law
on the scope of Congress' power under the Temtori.es Clause,·I am.ultinlately not p~uaded
by it. ·The example. I ~. in :onr meeting illustrates why. If a future :Co~s attempts to
irs wiD on an independent Guam in a manner not authorized by ntaty, the answer to
why it cann~ do so i( simply that Guam is outside .the s~v:reign!f of the]Uniteti ~tates.
That answer IS not available so long as Guam rcmams w1thin Urured Stat~s soverc1gnty.
•
. s
qt
nnpose
.
,
.
>
.
•
•
:1
Nor would we .want the case to be otherwise. So long as it is within the sovereignty
Of the Uniteli States, the obligation to insure tho citizens of Guam a free .bd democratic
goveniruent is burs. We cannot and should not give up the tools tbat would &e necessary to
fulfill that obligation. , .
. ·
·
· ·
·
:
' ..
.
:.
.
.
•J ..
l
..
:j
!
I
I
C.O.PY
�"-<I Ill)
;
I hope that your negotiation~ with Guam are successful. Again,lf I can
assistance, please let me know.
·
i
I
I
Sincerely,
'
I
cc: Monon H.a.1peri.h
.f
·•
·;
'l
!
i
1
!
i
:j
I
I
·i
·i '
I
.•
i
;j
"I
l
·1
:!;
.·:
.j
I
I
'
I
l
:.
I
COPY
1
�PrepaRed Al ternat:ives
for Mutual Consent Provision
~
There are two "mutual conaent" provisions i.n he Guam
Commonwealth Bill, H.R. 1521: mection ~03 (mutual, consent t
modify organic aetl ~d Gection 202 {mut~ conseof to tuture
applications of Federal law) • The !ocua o! concerp is section
103. which the Department of Justice consid~rs to:be
unconstitutio~l as: presently drafted.•. We suggest! the following .
th~ee alternat::~.ves •. ea.c:h of which il!l designed to srtisfy the
..
constitutional; standard while allowing flexibility in negotiating •
with Guam' s r~,pres enta tives .
.
. .:·
· .
.
.
Current sect:i~ 1.03: of H .• R. l..52l.
MIJTtm:r.
SRC. 1.03 ;..
CONSBNT .:· ·
· In order to: respect the ·.self .;g·ave~nt gr
ted to
the corm:nonwea.l.th of Guam under this ACt, the nitec1
States agrees to limit the ·eXE!rcise · o~ its au cirity so
that. tha provisions of thit!i.:Act may be ll'LOC.1i'fied ·only·
·with the jautua~ consent of the Government o~ lhe UDited
. States
tbe: Government cf the .~cxmnonwe~l~.} of Guam.
anf
Proposed alterpative drafts of section· 103
SBC. l. 03 .:
· :
lJttl".rttAL CONSENT.
- The Onlted States aoiemn.'ly uncferta.kes to: ~lspect the
self-gove:rnment· granted .to the commonwealth. o Guam
·
under t:.his Ac:t. :In giving this undertaking:, . t .is the
intention. of Congress to limit the exercise o its
authority~ so that. the provisions o! t.his Act. JPaY b: .
modit1ed only~ith the.consent o! th~ Governm~nt or the
Comnonweal. th of Guam.
·
. : .·1 ·
.
SBC. l.03 •(
MtJTimL
CON!l1mT • . . .
.
•
i.•
• .The un~ted States solemnly undertakes to: r•ls~ect the
self-govermnent. granted to the commonwealth o. Guam
·uitd.er t.his Act; In giving this undertaking:. :. t is the
intention·: of Congress to limit the exercise.
its legislatiyoe authority so that the· fundamental·! . .
provisions of this Ac:t relating to the self.-g9vernmep.t
of Guam, namely sections 101, · 103 ·, 201, and· 3~1 ma.y be
modified only with the .mutual consent of the q;.over:cmant
of the Onited States and the Government of th.r
Commonweal,.th o! ·Guam. .
·
, l
ot
.
~
.
l
I
·l
I
I
. I
!
I
.r. .
C.O.'?Y
A!..
,.
-------
�.
'
.
l
I
SBC. 103.
MUTUAL CONSRNT.
i
·•I
i
ij
The United States· solemnly undert-.kes to r~spe'ct 'the
self-government granted to the Commonwealth ofi Guam
under this Act. · In giving this undertaking, ~'ongree
affitmS its .intention not to modifY. the terms~of this
Act without the consent of the Comm.onwealth o · Guam.
. . ,
.
..
. .. I
.I
"I
J
;I
·I
·I
·I
:i
•1
:l
..
·I
. •l
j
...
I
j
.,!
.I
.!
'
�Withdrawal/Redaction Sheet
·
DOCUMENT NO.
AND TYPE.
001. memo
Clinton Library
DATE
SUBJECTffiTLE
To President Clinton from Mickey Ibarra and Fred DuVal. Subject:
Response to Guam's 1987 Federal policy package (I page)
10/25/1997
RESTRICTION
P5
COLLECTION:
·Clintop. Presidential Records ·
Counsel's Office
Bill Marshall
OA/Box Number: 20350
FOLDER TITLE:
Guam- Memos for the President
Jamie Metrailer
2006-0 193-F
'm588
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b)J
PI
P2
P3
P4
b(l) National securily classified information ((b)(l) ofthc FOIA!
b(2) Release would disclose internal personnel rules and practices of.
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA)
b(4) Release would disclose 'trade secrets or confidential or financial
information [(b)(4) ofthe FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]'
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(J) of the PRAJ
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
. PS Release would disclose confidential' advice between the President
and his advisors, or between such advisors !a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
ofgift.
.
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�'
.
.·
•
special provisions in federal law to address Guam's immigration concerns .
Although Governor Gutierrez and Delegate Underwood had hoped for Administratio
endorsem~nt of their Commonwealth proposals, and aredisappoint~d with our conclus
s, their
primary request has been that the Administration finally take a clear and unambiguous posm·~_,-
on the Bill, and be specific as to where we agree and disagree-- and why. A comprehensive
Aaministration response has been long-awaited by Guam. Garamendi's testimony will satisfy
this request. Nevertheless, you should be prepared forthe Governor to attack us for "bad faith"
and the possibility of his doing something publicly to underscore his disappointment. Based on
our conversations with Guam officials so far, we are not sure that this will occur, but want you to
be prepared for it.
We are considering ways to "soften the blow." On the substantive side, the testimony will
positively highlight areas of agreement as well as commit ·to further work with Guam and
Congress on the bill. We also are looking for ways to signal your continuing interest in our
Guam citizens. This could be accomplished by any one or more of the following actions:
will be in
•
Inviting the Governor to the China State Dinner Wednesday, October 29. (He
Washington.)
•
Inviting the Governor to sit with the First Lady at the State of the Union address and
recognizing Guam in the context of remarks that you.make on the Race Initiative.
•
Proposing long authorized-- but not provided-- appropriations to cover the cost of
immigration to Guam that occurred· because of the Micronesian Compacts, a federal
policy that fueled Guam's desire for immigration control. ($5.5 million for four years is
needed above funds already being identified.)
•
Committing to a visit by you to Guam within the next year, if feasible in the context of a
potential Asia trip.
A gesture of this type would need to be CL.'l:nounced before the hearingin order to have the most
impact.
4
COPY
�Withdrawal/Redactio·n Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. report
'
DATE
SUBJECTfflTLE
Draft Guam Commonwealth bill. Comments on selected new policy.
proposals (7 pages)
n.d.
RESTRICTION
P5
,: .
COLLECTION:
Clinton Presidential Records
Counsel's Office
Charles Ruff
OA/Box Number: 13213
FOLDER TITLE:
Guam
Jamie Metrailer
2006-o'l93~F
'm589
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- (5 U.S.C. 552(b)J
Pl National Security Classified Information ((a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
PJ Release would violate a Federal statute [(a)(J) of the PRAJ
P4 Release would disclose trade secrets or confidenti:d commercial or
financial information [(a)(4) of the PRAJ
PS Release would disclose confidential advice between the President.
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRA)
·
·
b(l) National security classified information ((b)(l) of the FOIAJ
b(2) Release would disclose internal personnel·ruks and practices of
an agency ((b)(2) of the FOIAJ
b(J) Release would violate a Federal statute ((b)(3) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
information j(b)(4) of the FOIAJ
·
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA]
b(7) Release would disclose ii1formatioit compiled for law enforcement
purposes ((b)(7) of the FOIA]
b(8) Release would disclose information concerning the reguJ.ation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOIA!
C. Closed in accordance with restrictions.contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�DRAFT
GUAM COMMONWEALTH BILL
COMMENTS ON qELECTED NEW POLICY PROPOSALS
Central Provisions
•.
•,
Agreement ·that no . provision of the law. may be changed
Guam•.s approval.
without~
This idea is the disputed heart of the Co~monwealth concept in
·Puerto Rico as well as Guam~ It is intended to limit Congress•
· Consti.tutional power to make policy regarding .territories. (in
local as well as national matters) and. override the principle
that one Congress cannot relinquish the power of.its successors
(in territories unless statehood or sovereignty is granted)~
.
.
.
'
'
.
While a commitment irt this regard couldbe made as a matter of
··solemn policy, it probably cannot be legally binding (although
the courts might well. sidestep the qliestion as 11 political 11 ) .
The provis:i.on includes a qualifier that theagreement·is made to
the extent constitutionally permissible but it does not overcome
the problems with the provision.
A) Justice agreed· to. it on the understanding that the
limitation on Congress• Constitutional power would not be
legally binding but Interior and Guain now want to assert
that it ·is meant to be .... as the language suggests ..
B) The qualifier would make the provision even more
objectionable to Puerto Rico statehooders who ..:-would see it
as enabling a concept 'that they believe to be ..;,
.
unconstitutional to be approved and misleadingly suggest
that an effective insulation from Federal territories ·
gov~rning power is possible.
.
'
Current-law does not provide even a commitment ~pr Puerto Rico
but some Puerto Rico.Commonwealth supporters claim that there is
an obligation in this regard created·by the mutual approval of
the. arrangement. The Northern Mariana Islands Commonwealth
Covenant includes purportedly binding language but limits it to
·"fundamental" matters: local authority; U.S. citizenship;
application of the Constitution;·and limiting the right to own
land to persons of local descent (uphe~d as being essential to
the arrangement and justified by the islands• non-U.S. past).
--
House Chairman Young and Senate Committee staff suggest that the
provision in the draft bill has no chance of passage. And even a
policy commitment limited to key. provisions would be hard for
Puerto Rico statehooders to accept. It would be hard·not to agree
to such a commitment, though, in light of the Marianas prec~dent
... and·~ince it can be done.
COPY
�2
•
Invitation for a status plebiscite excluding
not descended from residents as of 1898.
The potential opponents include citizens among the half of the
population that would not qualify. Although A) many of them agree
that the original Guamanians never exercised 'self-determination'
and" B) the vote· would not be binding, some would feel that they
have an equal right to vote on the future status of their home
island .
. A provision such as this is likely to be cited as precedent by
PuertO Rican independence and commonwealth advocates who
controversially want status votes to 1) include residents of the
U.S. descended from residents of the islands as of the date of·
acquisition (there are 2. 7+ million) and 2) exclude citiz_ens ·not
descended from- residents as of the date of acquisition.~·--:Interior/Other Agency Stalemate Provisions
•
Comm.iss~on with Interior as .chair, Defense, Justice, the
Governor, and the Delegate to Congress empowered to
A) modify the application of any regulation to Guam and
B) make recommendations on modifying laws which
Congress would .have to consider· on an expedited basis.•
Most agencies -- which would not be. represented --~would,.
understandably, be opposed to being excluded from decision-making
in matters within their jurisdiction. TheHouse and Senate. are
unlikely to agree to -have their· a.·genda set by such a body.
<
<
The provision would give Interior and Defens·e, at least,
·unprecedented roles in policies of. other agenci~s and in Guam·.
(Curr~nt law specifically excludes matters within other agencies'
jurisdiction from Interior's mission regarding Guam~)
This proposal stems, in part, from a mOre modest proposal by
Puerto Rico's commonwealthers for Federal review of laws and regs
at the islands' request and from an advisory commission in the
case of the Northern Marianas Commonwealth Coyenant.
•
Authorization for Interior/Commerce to waive any law or
regulation to benefit U.S.-Guam or U.S. through Guam trade.
There are too many potential problems to contemplate because of
the breadth of the proposal . . . "any law" .
....
.
COPY
�3
•
Authorization to enter into agreements ass.ociated
World Trade Organization and, possibly, other org
Puerto Rico .commonwealth and independence supporters have
proposed similar authority. Federal agencies contend that the
U.S. must speak with one voice on international trade matters.
•
Expedited Customs processing of Guam products.
Other areas/interests might be interested in a similar provision.
•
No automatic trade benefits for any other U.S. island area.
-
This wp.s included· because current. law provides that Nort:he·rn ·
Marian~s products will be treated equally with products of Guam.
•
Control· over immigration.·
The Northern Marianas Covenant· did not extend U.S. immigration
law to those formerly non-U.S. islands but gave the U.S. the
right to do so. Justice· and Labor oppose transferring authority
to Guam because of the way that the M~rianas has used its
exemption. Rep. George Miller is concerned about this provision.
The Marianas sought·exemption ostensibly to enact stricter limits
on immigrants and, thereby, prevent itself from being overrun by
aliens, But it·has developed a system which so liberally admits
temporary workers that a major:i_ty of the population·; are nonresident workers. These individuals have only limited rights ancl
influence in the community. There has been national attention to
spectacufar cases-·of employer abuse of workers in the Marianas.
''
Some House Members have considered extending immigration control
to the Marianas. Puerto Rico commonwealth supporters would want
immigration authority. The Virgin Islands has also sought· it.
•
Temporary workers• visa.
There might be concern because of the Marianas experience and
since the workers would be 'temporary• for up to four years.
•
A\].thority to· deny program
b~nefits
to aliens· for five year,s.
This would be inconsistent with the administration's stance
policy on a current, nationally controversial issue .
..
.
COPY
�4
•
Interior/Defense/Guam joint recommendations on
military land on Guam to the Commonwealth.
Defense may be opposed since it now makes its own decisions on
what.land it needs. Aprocess {~xcluding Interior) would be of
significant interest in Puerto Rico because bf the islands'
dispute with the Navy over the Navy's need for land it owns.
•
Authorization for the Commonwealth to tr~nsfer land obtained
from the Federal Government to private use~
GSA, OMB, and Congress may be concerned about authorizing private
gain from what is now a public resource·~
•
Special environmental standards.
EPA is opposed, fearing a precedent for region-specific policies.
Rep .. Miller is also concerned. ·
Targeted exemptions from Clean Air and Clean Water Act
requirements have been.enacted_ for Guam and other insular areas.
Puerto Rico commonwealthers have sought a similar blanket policy
using a similar rationale to the one used by Guam.
•
Priority for hazardous waste site clean-ups.
Defense opposes since it is involved. Many other areas also want
clean.:.ups funded.
Other Interior Re-commendations
·•
Authority to adopt "reasonable" voting requirements.
This would be controversia~ if used as authorization for a longer
residency than the courts have sanctioned -- as some Guam
officials have wanted (and it would be superfluous if not) . New
residents would be concerned about being disenfranchised.
•
Authorization for delegating Federal agency functions to
Commonwealth officials.
·
This would raise concerns about the performance of statutory
requirements and accountability in vaf"i6us sectors. Even the
Republican Cong~ess is unlikely to agree to blanket authority .
.... .
COPY
�-.
5
•
Guam taxation of U.S . .and foreign income of residen
.
.
'
Treasury objects to this applying to Federal employees bee
the precedent it would set for all Federal workers outside
u.s.
•
Approval to rebate taxes to individuals and on U.S. income •
..
The Marianas Covenant includes authority to rebate taxes on
Marianas income only. Treasury wouid object to rebating taxes on
U.S. income. Laws have been enacted to discourage rebates to
. -individuals (vs. companies) in the Marianas because the rebates
have effectively negated Covenant taxation requirements.
•
Inclusion in tax treaties.
Treasury would object to automatic inclusion since the island is
foreign for tax.purposes and would be able to enact laws at odds
with·u.s. tax code provisions .
.•
Access to or through military property.
Objectiveshave included commercial development of landlocked
private.property and use.of military recreation areas.
•
Submerged lands between three and nine miles -.'offshore.
Puerto. Rico has this due to a 1980 law. justified by. Spanish law.
It has .been an unfulfilled objective of some Gulf CQast States.
Other Proposals Interior Wants to Pursue
•
Congressional findings that Guam does not have equal
participation in Federal policy making and has a compelling
interest in protecting the island from inappropriate laws.
This would be of equal application to and interest in other
insular areas and be of concern to Puerto Rico statehooders.
•
Congress relinquishing its Constitutional power to govern in
territories to the extent provided in the legislation.
Would have tremendous appeal to Puerto Rico commonwealthers,. be
constitu~ionally questionable, and have no chance of enactment.
COPY
�6
•
Agreement to consult the Commonwealth to an appropr± te
"
extent before international negotiations which
State and Justice oppose as a limitation on the President's
foreign policy power.· Other insular areas .. also want t.his.
•
Requirement to consult the Commonwealth prior to significant
changes in military presence.
Defense opposes this as unworkable.
•
·Authorization for the Commonwealth to receive assistance
from foreign governments.
State has opposed Northern Marianas proposals in this regard,
wanting the U.S. to remain an aid donor rather than a recipient.
•
Authorization to enter into international agreements not
inconsistent.with U.S. policy and not binding on the u.s.
State is opposed to.the.U.S. speaking with more than one voice on
international matters.
•
Commonwealth replacement of Federal labor laws.
·Labor has· strong concerns based on the Northern Marianas
·experierice. Rep . Miller does as well.
;.
•
Joint recommendations on whether the requirement to use u.s.
vessels for u.s. shipping should cont.hiue to apply using the .
sole criteria of the island's economic interest.
·
The U.S. vessels shipping reqilirement does no.t apply to the
·adjacent Northern Mariana Islands, American Samoa, or the Virgin
Islands but does apply to Puerto Rico (which is adjacent. to the
V.I.). Consi~ered by many islanders to be a major burden on
consumer costs/ it is as big an issue in Puerto Rico as Guam.
Reps. Gutierrez 1 Velazquez 1 and Serrano have ·sponsored a Puerto
Rico exemption bill.
Transportation and U.S. merchant marine companies and unions are
strongly opposed to exemption and would even mo.re strongly oppose
using a standard of the island's interests only.
. .....
•,
COPY
�7
•
Exemption from the requirement to use U.S.-built
the waters near Guam.
-
Transportation opposes this provision which would amend
exemption limited by vessel size. The limitation was insisted
upon by the Hous.e Merchant Marine Committee .. This might also be
of interest .,. in Puerto Rico .
.
•
Exclusive~or concurrent authorityt6 manage and obtain
revenue from the U.S.'s Exclusive Economic Zone around Guam.
Other insular areas and Cal:i_forniahave expressed interest in·the.
EEZ. Justice objects to this provision~
•
SSI and any other Federal programs not now extended.
This has been on:e.of the primary objectives·of Puerto Rico's
commonwealthers. SSI has also been sought by the Virgin Islands
and American Samoa. SSA views the cost of extending SSI to all of
the areas as too great·. The Administration has proposed grE!ater -.
· -. but partial -- funding in Puerto Rico.
•
Joint recommendations on levels of program funding.
Puerto Rico and other insular areas would want similar input.
•
Authoriza.tion for any funds necessary for infi:astructure
projects, technical programs, and cooperative ventures.
Puerto Rico, the·-virgin Islands, and the Northern. Mariana Islands •'
would want a similar authorization. One exists for American Samoa·
but the House authorizing committee has questioned it. OMB would
probably oppose this provision for budgetary reasons.
..
.....
"
COPY
�Withdrawal/Redaction Sheet
Clinton Library
·DATE
SUBJECTffJTLE
DOCUMENT NO.
AND TYPE
RESTRICTION
00 I. list
Personal ( 1 page)
n.d.
Personal Misfile
0.02. notes
re: Gua111 (Personal file) (3 pages)
n.d.
P5
To President Clinton. Subject: Puerto Rico (1 page)
12/27/1997
P5
Phone No. (Partial) (1 page)
12/31/1996
P6/b(6)
~
004. memo
~0~(0
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
ONBox Number: 24088
FOLDER TITLE:
Guam - Various IV
Jamie Metrailer
2006-0 193-F
'ml09
RESTRICTION CODES
Presidential Records Act- J44 U.S.C. 2204(a)J
Freedom of Information Act -15 U.S. C. 552(b)l
PI
P2
P3
P4
b(l) National security classified information J(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAJ
b(3) Release would violate a Federal statute l(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes j(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions I< b)(8) of the FOIA 1
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAJ
National Security Classified Information ((a)(l) of the PRAJ
Relating to the appointment to Federal office J(a)(2) of the PRAJ
Release would violate a Federal statute ((a)(3) of the PRAJ
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAI
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(5) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the J>RAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
:
I
I
:
i
I
I
I
�27 December 1997
MEMORANDUM TO
THE PRESIDENT
cc
LEON PANETTA
EVELYN LIEBERMAN
ERSKINE. BOWLES
MARCIA HALE
JEFF FARROW l /
STEPHANIE STREETT
ANNE HAWLEY
DOUG SOSNIK
FROM
#iPBiiil
RE
Puerto Rico
an~
Governor Rossello (who plays tennis on the
level and jogs but who does not play golf) does
make an artificial stop in Puerto Rico just for
so. He also thinks that his meeting you in the
would. be somewhat artificial.
championship
not want you to
the sake of doing
Virgin Islands
Marcia Hale, Jeff Farrow and I advise that you make a well
publicized telephone call to Governor Rossello either on 2
January (the day he is sworn in) or on 1 January.
Based on conversations with the Governor's staff, this would
be preferable .to your doing an airport stop in San Juan on the
way back from the Virgin Islands.
(If you were to decide to play
golf in Puerto Rico, that of course would be welcomed by the
Governor, as would your visiting the Governor at LaFortaleza
(sp?) reputedly the oldest capital in the Americas, but there is
certainly no need for you to do so.)
We will provide you with talking points in the event you
decide to telephone Governor Rossello, which we strongly
recommend that you do.
�Withdrawal/Redaction. Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001 a. letter
SUBJECTfTITLE
DATE
RESTRICTION
To President Clinton .from Phil Caplan. Subject: Administration stance
· toward Guam ( 1 page) ·
10/27/1997
P5
To President Clinton from Mickey Ibarra and Fred DuVaL Subject:
Response to Guam's 1987 Federal policy package (Annotations) (5
pages)
10/2711997
P5
To President Clinton from Phil Caplan. Subject: Administration stance
toward Guam (1 page)
10/27/1997
P5
To President Clinton from Mickey Ib~a and Fred DuVaL Subject: .
Response to Guam's 1,987 Federal policy package (1 page)
10/2511997
p
002a. memo
To President Clinton from· Mickey Ibarra and Fred Du Val. Subject:
Response to Guam's 1987 Federal policy package (1· page)
10/2511997
p
002b. memo
To President Clinton from Mickey Ibarra and Fred DuVaL Subject:
Response to Guam's 1987 Federal policy package (1 page;)
10/25/1997
002c. memo
. To President Clinton from Mickey Ibarra and Fred DuVal.. Subject:
Response to Guam's 1987 Federal policy package (1 page)
10/2511997
002d. memo
To President Clinton from Mickey Ibarra and Fred DuVal. Subject:
Response to Guam's 1987 Federal policy package (1 page)
10/25/1997
002e. memo
To President Clinton from Mickey Ibarra and Fred DuVaL Subject:
Response to Guam's 1987 Federal policy package (1 page)
10/25/1997
002f. memo
To President Clinton from Mickey Ibarra and Fred DuVal. Subject:
Response to Guam's 1987 Federal policy package (I page)
10/25/1997
001 c. letter
~
;·~-;;
COLLECTION:
Clinton Presidential Records
WHORM Su~ject File-General
ST051-01
OAJBox Number:. 14051
FOLDER TITLE:
239943SS
Jamie Metrailer
2006-0193-F
'm568
RESTRICTION CODES
· Presidential Records Act- (44 U.S.C. 2204(a))
PI National Security Classified Information [(a)(l) of the PRAJ
Pi Relating to the appointment to Federal office [(a)(2) of the PRAJ
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA]
PS Release would disclose confidential advice between the President
·and his advisors, or between such advisors (a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
,
PRM. Personal record misfile defined in accordance witb 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act -15 U.S.C. S52(b)]
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compile!! for law enforcement
purposes [(b)(7) of the FOIA)
· b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA)
b(9) Release would disclose geological or geophysical information
ells [(b)(9) of the FOIA)
�------~THE
PRE!:>i!Jt!\1 i
.· .
111"\\J
I 0 -). "'l'
OiO .... I \
'i/
THE WHITE HOUSE
WASHINGTON
October 27, 1997
INFORMATION
MEMORANDUM FOR THE PRESIDENT
FRoM:
· Mickey Ibarra
Fred DuVal
MY"
SUBJECT:
Response to Guam's 1987 Federal Policy Package·
CC:
Hon. John Garamendi
Erskine Bowles
Sylvia Mathews
Jeff Farrow
I.
Sandy Berger
John Hilley
Frank Raines
Chuck Ruff
Janet Murguia
Lucia· Wyman
Bill Marshall
Sandy Kristoff
SUMMARY
. The House Resources Committee will hold a hearing Wednesday, October 29, on Guam's
Commonwealth Bill ("Bill"). The Bill, which Guam voters endorsed in 1987,would essentially
provide powers generally associated with national sovereignty and exemptions from
constitutional and other requirements while continuing the island's U.S. status and providing
increased federal benefits. As you directed, we asked OMB to conduct a full agency review of
.
'.
the Bill.
Interior Deputy Secretary John Garamendi,who serves as the Administration's Special
Representative on the Bill, will testify. The purpose of the testimony is three-fold: First; it will
clearly indicate that the Administration cannot support the Bill as proposed. (Guam has asked fora "clear answer.") Second, it Will identify specific areas of agreement and disagreement. Third, it
will highlight actions that can improve Guam's relationship with the United States.
The approach taken in the testimony was suggested by Deputy Secretary Garamendi and has
been agreed to and developed by the appropriate White House and agency staff. While it will
provide Governor Gutierrez (D) and Delegate Underwood (D) of Guam with the specific policy
response that they have long requested, they are disappointed that it will not accept the Bill's
controversial proposals in total.
II.
DISCUSSION.
·The U.S. citizens of Guam chose."Commonwealth" as a status option in 1982. Guam's officials
subsequently drafted the Bill for Congressto implement the choice. It went far beyond the laws
COPY
·
�that established the Puerto Rico and Northern Mariana Islands Commonwealths. In 1987,
. Guam's officials also obtained island voter approval of the Bill-- in spite of U.S. Congressional
cautions that doing so prior to federal consideration would make it difficult for Guam's officials
to later make the compromises that would be necessary for the Bill to obtain federai approval.
The Bill is more akin to the Free Association Compacts reached with other non-U.S.
Micronesian islands -- in which those areas are sovereign nations with special ties to the U.S. -.
than it is to a Commonwealth model with U.S. citizenship. Controversial provisions include:
.
•
requiring the island's consent for changes to the Bill once enacted and for new laws and
regulations to apply (''Mutual Consent") as well as other limits on F,~deral Constitutional
powers;
•
a status choice limited to the plurality of the people descended froni longtime inhabitants,·
excluding other U.S. citizens;
•
a longer residency requirement for voting than the Supreme Court has permitted;
•
authority to enter in~o international agreements and ·receive foreign aid;
~\•
'
consultation before intemationill negotiations that affect Guain;
limitations on U.S. military activities;
enabling the island to be a 'pass-through' for the entry of foreign goods into the U.S.;
eliminating requiremen!S for replacing l.R.C. tax rates asthe insular income tax and
authorizing Guam to reduce tax liability or rebate collections;
•
I
')
·,
...
.
immigration control;
..
replacement of federal labor laws;
a recommendation that Guam be exempt from having to use U.S. shipping that would be
made based on the island's interests only;
•
control of all resources within 200 miles of the island's coastline;
•
waving restrictions on past and future transfers of land and Guam's determination of what
military property should be transferred;
•
equal funding with States in all federal programs; and
2
ccrPTG
PHOTOCOPY.·
!
'
�•
an open-ended authorization for business development and infrastructure funds.
This Bill was reviewed by an Inter-Agency Task Force and found to·be Unsupportable as
proposed early in the Bush Administration. They concluded that agency opposition most
provisions was well-founded .. In a 1989 hearing, the Resources Committee requested the Task
Force to try to work otit a supportable substitute bill with Guam. This effort produced a second
report to Congress that reached many of the same conclusions.
You have pledged to work with Guam's officials and Congress for a bill that meets Federal
requirements as well as addresses the island's aspirations. This Administration's efforts on the
matter intensified under Deputy Secretary Garamendi. He undertook a rigorous effort to develop
alternative provisions more acceptable to Guam's officials for Administration consideration.
Some have become the basis for heightened expectations by Guam. But the Deputy Secretary,
.. we, and key agencies have ultimately concluded-- and key Members of Congress largely agree -that many provisions would require constitutional and policy changes that the Administration
cannot accept.·
Among the most controversial are:
•
The Justice Department, Chairman Don Young (R-AK) arid Rankirig Democrat George
Miller (D-CA) have strong concerns a,bout the Mutual Consent proposal that would
require the island's consent for any future changes in the many policies covered by the
Bill once enacted. This poses constitutional and policy problems, and goes far beyond
the bipartisan compromise on the House Puerto Rico Status Choice bill.
•
Justice has constitutional objections to quam's plan· for: a status :vote limited to native
Chamorros. A majority the island's residents are not Chamorro.
.
.
.
of
Many federal agencies oppose the proposal for a joint U.S.-Guam commission thatwoulq
independently make final decisions on the application of federal agency regulations.
•
Guam's proposal to transfer immigration control and replace labor laws would run
counter to your proposal to apply federal law to the neighboring Northern Marianas, and
it is opposed by the Justice and Labor Departments and Rep. Mi.ller.
In addition to identifying areas of disagreement, Gararnendi's testimony will indicate areas
where agreement has been reached between agency and Guam positions as well as alternatives to ·
Bill provisions that we can support. These include:
~
.~
a Mu~ual Consent policy of not unilaterally changing the fundamental relationship;
a joint commission to advise on the application of federal policy; and·
PHOTOCOPY
CJCYP'Y
�.•
.
~ecial provisions in federal law to address Guam's immigration concerns.
·
Alth'ciJgh Governor Gutierrez and Delegate Underwood had hoped for Administration .
endorsement of their Commonwealth proposals, and are disappointed with our conclusions, their .
primary request has been that the Administration finally take a clear and unambiguous position
on the Bill, and be specific as to where we agree and disagree-· and why. A comprehensive
· Adininistration response has been long-awaited by Guam. daramendi's testimony will satisfy
this request. Nevertheless, you should be prepared fat the Governor to attack us for "bad faith"
and the possibiHty of his doing something·publicly to underscore his disappointment. Based on
our conversations with Guam of~cials so far, we are not sure that this will occur, but want you to
be prepared for it.
We are considerit:J.g ways to "soften the blow." On the substantive side, the testimony will
positively highlight areas of agreement as well as commit to further work with Guam and
Congress on the bill. We also are looking for ways to signal your continuing interest in our
Guam citizens. A gesture of this type would need to be announced before the hearing in order to
have the most impact.
4
PHOTOCOPY
GO~T
�•
special provisions in federal law to address Guam's immigration concerns.
Although Governor Gutierrez and Delegate Underwood had hoped for Administration
endorsement of their Commonwealth proposals, and are disappointed with our conclusions, their
·primary request has been that the Administration fmally take a clear and unambiguous position
on the Bill, and be specific as to where we agree and.disagree -- and why. A comprehensive
Administration response has been long-awaited by Guam. Garamendi's testimony Will satisfy
this request. Nevertheless, you should be prepared for the Governor to attack us for "bad faith"
and the possibility of his doing.something publicly to underscore his disappointment. Based on
·our conversations with Guam officials so far, we are not sure that .this will occur, but want you to
be prepared for it.
.We are considering ways to "soften the blow.'' On ·the substantive side, the testimony will
· positively highlight areas of agreement as well as commit to further work with Guam and
.Congress on the bill. We also are looking for ways to signal your continuing interest in our
Guam citizens. This could be accomplished by any one or more of the following actions:
•
Inviting the Governor to the China State Dinner Wednesday, October29. (He will be in
Washington.)
•
Inviting the Governor to sit with the First Lady at the State of the Union address and
recognizing Guam in the context of remarks that you make on the Race Initiative.
•
Proposing long authorized -- but not provided -- appropriations to cover the cost of
immigration to Guam that occurred because of the Micronesian Compacts, a federal
policy that fueled Guam's desire for immigration controL ($5.5 million for four years is
needed above funds already being identified.)
·
•
Committing to a visit by you to.Gua.rn within the next year, it feasible in the context of a
potential Asia trip ..
. A gesture of this type would need to be aanounced before the hearing in order to have the most
impact.
4
COPY
�Withdrawal/Redaction Sheet
r·
,.
Clinton Library
DATE
RESTRICTION .
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
· OOla. memo
re: Appointment of a Special Representa~ive for purposes of political
status consultations with Guam (Annotations) (1 page)
03/16/1993
P5
OOlb. memo
To President Clinton from Secretary of the Interior. Subject:
Appointment of a Special Representative for purposes of political
status consultations with Guam (2 pages)
03/15/1993
P5
001 c. briefrng
paper.
re: Guam Commonwealth bill and Special Representative (4 pages)
03/1511993
P5
00 I d. resume
DOB (Partial) (I page)
03/15/1993
P6/b(6)
03/15/1993
P5
002a. memo
.. To President Clinton from Secretary of the Interior. Subject:
Appointment of a Special Representative for purposes of political
status consultations with Quam (2 pages)
l~
~
002b. briefrng
paper
re: Guam Commonwealth bill and Special Representative (4 pages)
03/15/1993
P5
002c. resume
DOB (Partial) (I page)
03/1511993
P6/b(6)
~Iff~
To President Clinton from Secretary of the Interior. Subject:
Appointment of a Special Representative for purposes of political
status consultations with Guam (2 pages)
03/15/1993
P5
03115/1993
P5
03/15/1993
P6/b(6)
003b. briefrng
paper
003c. resume
· re: Guam Commonwealth bill and Special Representative (4 pages)
DOB (Partial) (1 page)
Y\3~
COLLECTION:.
Clinton Presidential Records
WHORM Subject File-General
FGOOI-02
· OA!Box Number: 21801
',
FOLDER TITLE:
007422SS
Jamie Metrailer
2006-0 193-F
·ms9
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)l
PI National Security Classified Information {(a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(J) of the PRAJ
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAJ
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRAJ
C. Closed in accordance with restrictions contained in. donor's deed
. of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- (5 U.S.C. 552(b)]
b(l) National security classified information ((b)(l) of the FOlAJ
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIA]
b(3) Release would violate a Federal statute ((b)(J) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOlAj
b(6) Release .would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOlA] .
b(7) Release would disclose info.rmation compiled for law enforcement
·
purposes ((b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOlA]
b(9) Release would disclose geological or geophysical information
ells [(b)(9) of the FOIAJ
�· T H E S E C R ETA R Y 0 F T H E I'N T E R I 0 R .
WASHINGTON
93MAR I6
A9 :
3fj
March 15,· 1993
MEMORANDUM FOR. THE .PRESIDENT
. . ~~·
· .
~
.
~.~-?'IV
FROM:
SECRETARY OF THE INTERIOR
.
SUBJECT:
APPOINTMENT .·OF A SPECIAL REPRESENTATIVE FOR
OF POLITICAL STATUS CONSULTATIONS WITH GUAM
.
;
.
I.
ACTION-FORCING EVENT: The U.S. territory of Guam is seeking
enhanced political ·status as a u.s. Commonwealth. A Spetial
Representative appointe~ by the President would be useful in
facilitating progress on the political statu~ discussi9ns
with the relevant Guam leaders. I have already conveyed my
support for the appointment of a· Special Representative to
Governor Ada of Guam and to the Guam Commission on SelfDetermination. Further, such art appointment can serve as a
vehicle for ensuring the continued political support of the
people of Guam. The appointment will send a much needed
message to Guam and interested Congressional leaders that
this Administration is committed to improving the Federal
relationship with the island and to supporting greater selfgovernment.
·
·
II.
BACKGROUND/ANALYSIS: In·l988, the Delegate from the U.S.·
territory of duam intro~uced a draft bilL (H.R. 98) to
change Guam's political sta'tus to a u.s. Commonwealth. The
bill had been drafted in Guam and approved by popular
referendum. In response to Congressional requests for the
Administration's views on H.R. 98, a Federal Task Force was
established to. review the bill and to discuss compromise
language with Guam leaders to minimize the differences
between what Guam had proposed and what the Federal ·
Government could reasonaply support. The ·Task Force-Guam
discussions have ~esol~ed many.areas of dispute with respect
to the proposed bill but the discussions have reached an
impasse over seyeral issues which raise major constitutional
and policy questions. See exhibit A for the history on
Guam's request for Commonwealth status and the major issues
raised by the proposed legislation.
III. RECOMMENDATION: I strongly recommend that the White House
. appoint a Special Repres~ntative of the President who, in
coordination with policy-level represent'atives of pertinent
Federal departments and agencies, would be responsible for
reviewing the draft Guam Commonwealth Bill, previous Federal
Task Force Reports on the measure, and other relevant
materials. The. g o a l c . o ~vp an Administration
�. 2
position on the political stitus question and to make
. further recommendations to Congress on the Guam legislation.
The function and role of the Speci~l Representative are ·
discussed in exhibit A, attached hereto.
Finally, I recommend the appointment of Michael Heyman as
the Special Representative. ·He· is currently the Sel vin
Prrifessor of Law and Professor ot City Planning for the
University of California at Berkeley. Heyman has previously
provided consulting services to several insular areas on
governfuental matters, and his legal background and
managerial experience will be a tremendous asset in the
discussions on Guam's political status. A copy of his
resume is attached hereto as.exhibit B.
IV.
DECISION:
Approve
---No action
---Appr6ve
as amended
COPY
-~-
Reject
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
To Erskine Bowles and Sylvia Mathews from Mickey Ibarra, Fred Du
Val, and Jeffrey Farrow. Subject: Request for Guam (2 pages)
10/27/1997
P5
002. fax
Phone No.'s (Partial) (1 page)
10/25/1997
P6/b(6)
To President Clinton through Mickey Ibarra and Fred DuVal from
John Garamendi. Subject: Adrrlinistration position on Guam
Commonwealth (5 pages)
·
10/25/1997
P5
.re: Jeff Farrow suggestions concerning Adininistration comments on
Guam Commonwealth Draft Act, H.R. 100 (23 pages)
10/29/1997
P5
004. draft
(_\1'33
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
OA/Box Number: 24087
FOLDER TITLE:
Guam- Various II [1]
Jamie Metrailer
2006-0193-F
'ml07
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b)]
PI
P2
PJ
P4
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of ·
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes.[(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA)
·disclose geological or geophysical information
co~•er.,.,~ells [(b)(9) of the FOIA)
·
National Security Classified Information [(a)(l) of the PRA)
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(J) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 u ..,.,....,.
2201(3).
RR. Document will be reviewed upon request.
�~--~--~-----:------------
October 25, 1997
INFOR'M..,ATTON
MEMORANDUM FOR THE PRESIDENT
THROUGH:
Mickey Ibarra, Director, Intergovernmental Affairs
Fred Duval. Deputy Director, Intergovemmental Affairs
FROM:
Jolm Garamend.i, Deputy Secretary of the Interior and
President's Special Representative for Guam Commonwealth ·
. SUBJECT:
Administration Position on Guam Commonwealth
Erskine Bowie!; Lucia Wyman
Sylvia Mathews Bill Marshall
Sandra Kristoff JeffFattow
CC:
1. SUM.MAR.Y
The House Resources Committee will hold a hearing next Wednesday, October 29, on H.R. 100,
the Guam Commonwealth Draft Act. The upcoming hearing will represent the first time that
your Administration Vli.U present a position on the Conunoilwealtb. proposal -- the last
Congressional hearings on this matter were held 8 years ago.
·
The original bill, which Guam voters approved in 1987 plebiscites, has been introduced in its
original, uninOdified form in every C.Jngress since 1988. The original bill has been strongly
opposed by Executive agencies. from the beginning.· \Vhile ostensibly creating a Guam
Commonwealth "under U.S. sovereignty'' and increasing Federal benefits through "state-like''
treatment, the bill nevertheless would provide powers to the Commonwealth government
. normally associated 'With national sovereignty and autonomy.
··
As your Special Representative for Guam Commonwealth, I have been negotiating with Gua:i:n
and 'With Federal agencies for the better part of two years and 'Will be presenting the
Administration's testimony on the bill. The Administration's position will emphasize three
things: (a) we cannot support the original bill as drafted; (b) we nevertheless have made progress
support certain proposals, which. if modified, would improve Guam's relationship with
and
tbe United States; and (c) we offer a 'mllingness to bring the Commonwealth issue to fmal
resolution by working closely together with Guam and with Congress to build upon the progress
made thus far to enact mutually acceptable legislation. This approach has the concurrence of all
involved White House staff:
can
1
COPY
�II. DISCUSSION
The original Guam Commonwealth package finds its doctrinal origins in Executive agreements
(later codified) that the U.S. negotiat(~d in the 1970's with the former Pacific Island trust
territories-- the Covenant which created the U.S .-affiliated Commonwealth of the Northern
Mariana Islands, and the Compact of:Pree Association which created the sovereign Federated
·States of Micronesia, Republic of the Marshall Islands and Republic ofPalau. The latter three
are distinguishable from Guam's Commonwealth proposal because they are sovereign nations,
with special financial and base rights arrangements with the United States. The Northern
Mariana Islands example is distmguishable because: (a) it was not a U.S~ territory when the
Covenant creating it was negotiated; ~md (b) the scope of self-government granted was
significantly less than what Guam prc•poses.
The original Commonwealth Draft Act can be seen as hybrid legislation: .On the one hand, it
purports to create a commonwealth "tmderU, S. sovereignty," overwhichmostofthe U.S.·
CollStitlltion arid federal laws apply, <:llld whose residents continue to be U.S .. citizens. On the
other hand, it contains provisions creating a commonwealth government with strong aspects of
separate arid autonomous sovereignty. For example, the original bill would:
..
require Guam to consent before the United States could chBDge any provision in the Act
· creating Commonwealth;
·
·
require Guam to ·consent befo:re the United States could apply 11ew laws or regulations to
Guam;
authorize 11 CbrunOITO self-detE:rmination, 11 which is envisioned as a VOte by the indigenOUS
people of Guam to determine the jsland's ultimate political status, exclusive of the
participation of other U. S. citizens in Guam;
give Guam authority to enter :into international agreementS and receive foreign aid and
require the U.S. to consult wid1 Guam prior to entering foreign negotiations which might
affect the island;
give Guam authority to devel•lp and administer its own imnrlgration, labor, and tax
policies and to control all nanJial resources 'Nithin 200 miles; and
place limitations on U.S. militacy activities on Guam, and give Guam aut11ority to
determine what military land~: should be transferred to local control.
The Bush Administration had reviewed the original Guam Commonwealth package and twice
indicated its opposition to the origiilzll package based on widespread and deep agency concerns.
A 1989 Task Force Report found most of the original provisions objectionable on consti·~~·m;~
2
COPY
t
~~·
~ Llt13
�policy and administrative grounds. Bused on this first report, Congress held hearings in 1989
and requestedthe Task Force to work with Guam officials in order to bridge their differences and
come up with a supportable substitute bill. This effort resulted ma 1993 Task Report, which
recommended a number of alternative formulations to various provisions, but generally remained
strongly opposed to fundamental Con:monwealth concepts.
\Vhen you took office, you had pledge:d to work with Guam's leaders and Congress·for a
mutually agreeable compromise regarding Guam's Commonwealth proposal. Since 1994, the
bulk of these negotiations have been ttndertaken by your SpeciaJ. Representatives for Guam
Commonwealth ~I am the third and c:urrent one·. When I took over these negotiations in January
1996. I attempted to look beyond the programmatic concerns of particular agencies in order to
achieve mutually agreeable comprom:1ses that balanced Guam's legitimate aspirations for greater
self-govern.trient, while protecting fundamental Federal interests in GWun. In January and
February of this year, I made a series of preliminary proposals for White House consideration.
Before these proposals could be fully vetted by White House staff and appropriate agencies and
further refined through consultations ·.vith Congress, the Resources Committee unexpectedly
.called for hearings on short notice.
·
Notwithstanding the short period p!O'vi.ded to prepare a formal Administration position,
there is broad consensus among myself, White House staff, key agencies and
ConSz-essional members that many of the provisions that Guam has identified as· "deal
breaker isSu,es" in the original bill rai::e constitutional andpolicy obJections that cannot be
overcome. Among the most objectionable inclu9e the following:
Guam's insistence that the Urrited States obtain its consent before making any changes· to.
an enacted Commonwealth arrangement, or applying future Federal laws and regulations
to Guam;
Guam's requirement that the indigenous Chamorro people be granted the exclusive right
to vote upon the ultimate poJi1jcal status of Guam; ·
Guam's desire to have a Guam-controlled commission that would be authorized to make
final decisions on the application or modification of Federal regulations to Guam; and
Guam's proposal to have Fedt:ral jurisdiction over immigration and labor policies
transferred to local control.
While our objections to these provisi1)ns are similar in nature to those stated by the previous
·Administration, my testimony will emphasize the positive progress made since 1988, especially
in your Administration, and will higl:light substitute policies on key issues which we can
endorse, including:
COPY
�supporting a commitment, bas~~ on policy rather than on a legally binding obligation, not
to unilaterally change the fundamental relationship between Guam and the U.S.;
supporting the creation of a commission with significant input by Guam to review and
provide advice on the appropriate application of Federal policies to the island;
· supporting a call for the Charnorro people to express their desire for Guam's ultimate
political.status in a non-binding manner and without the endorsement or under the
auspices of either the Federal government or the Guam government; and
supporting the amendment of :appropriate provisions of the U.S. Immigration and
, Naturalization Act to accommodate Guam's. desire to limit the rate of permanent
immigration the island and to provide additional flexibility for Guam's permanent labor
needs.
to
Although Governor Gutierrez and Delegate Underwood bad hoped .for Administration
endorsement on the key Commonwealth original concepts, their primary request has been for
-your Administration to take a clear artd unambiguous position on the original bill. They have
requested that we provide a compreht:~nsive response as possible and that we be specific to where'
and why we agree or disagree. While we intend to emphasize the progress and positive aspects
of our negotiatio~ at Wednesday's ru~arlng, both Governor Gutierrez and Delegate Underwood
will be disappointed with our ultimat1! conclusions. Depending upon local political
considerations in Guam, you should tle prepared for the Governor and other Guam leaders to
attack us for "bad faith'1 or otherwise ''reneging" on prior understandings. ·
· I will work closely with White House: staff to engage Governor Gutierrez and Delegate
UndeiVJood constructivelyprior to the hearing to minimize this potential. In this regard, we are ·
actively discussing proposals to bolster a positive reaction from Guam. Besides emphasizing
. progress and
of support in regard to the Commonwealth proposal, White House staff and I
are considering alternatives to reinforce your continuing interest and engagement in Guam. 1bis
could ~e immediately accomplished in any number of ways, including the pre-hearing .
announcement of any of following:
areas
Committing to a visit by you to Guam within the next year, possibly 'Within the context of
a potential trip to Asia;
. Inviting Governor Gutierrez to sit with the First Lady at the State of the Union and
recognizing Guam in the context of remarks you will make on the Race initiative;
inviting the Governor to the Chitia State Dinner on Wednesday, following the hearing;
4
COPY
�t·
caused by the Compact of Free Association with the freely associated states of
Micronesia, Palau and the Marshall Islands;
Supporting Guam's formal par1icipation in the Smithsonian's current plans to
commemorate the centennial of the Spanish-American War, whlcb occurs next year.
Finally, you should be aware that I had considered proposing to offer the people of Guam the
option of undertaking a federally-sponsored political status plebiscite in 1998, the centennial of
America's acquisition of Guam_ The 1hree status options proposed included: independence, free
association and status quo with incremental improvements over time. We shared this idea with
the Governor and Delegate, who opposed it as being premature becaUse of their belief that ·
further negotiations between Guam artd the u.s. was warranted to reach a final conclusion on
Commonwealth. Given my testimony's emphasis on positive progress and its call for
Congressional participation in the fur1her development of Commonwealth, the White House staff
and I agreed to delete this proposal from my testimony.. At some time in the :future, however, it
may be appropriate to re-visit tlus as 1m option.
5
-COPY
�·Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTfflTLE
RESTRlCTJON
001. letter
To Carl T.C. Gutierrez from David W. Ogden. Subject: Position of the
Office of the Legal Counsel of the Justice Department. (2 pages)
10/2411997
P5
002. letter
To Fninklin D. Raines from Andrew Fois. Subject: Views of the
Department ofJustice regarding H.R. 100 (13 pages)
10/2411997
P5
003. letter
To Guam Delegation from Bill Clinton. Subject: Campaign (2 pages)
07/1511992
Personal Misfile
004. memo
To Mickey Ibarra through Fred DuVall from Jeffrey Farrow. S;ubject:
Guam Commonwealth bill plan (4 pages)
06119/1997
P5
005a. letter
To Carl T.C. Gutierrez from David W. Ogden. Subject: Positionofthe
Office of the Legal Counsel ofthe Justice Department (2 pages)
10/24/1997
P5
005b. letter
To Franklin D. Raines from Andrew Fois. Subject Views of the
Department of Justice regarding H.R. 100 ( 13 pages)
10/2711997
P5
To President Clinton from Phil Caplan. Subject: Administration stance
toward Guam (Annotations) (1 page)
10/2711997
P5
Lt\sLt
10/2711997
P5
Dyo
.-.rtt~
006b. memo
007. report
To President Clinton from Mickey Ibarra and Fred DuVal. Subject:
. Response to Guam's 1987 Federal policy package (Annotations) (4
pages)
Draft Guam Commonwealth Bill. Comments on selected (7 pages)
,~:
n.d.
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Earrow ·
OAJBo{ Number: 24087
FOLDER TITLE:
Guam - Various II [2]
Jamie Metrailer
. 2006-0193-F
'ml08
RESTRICTION CODES
Presidential Records Act [44 U.S.C. 2204(a)] .
Freedom of Information Act- [5 U.S.C. S52(b)J
PI
_P2
P3
P4
b(l) National security classified information ((b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute l(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
ells [(b)(9) of the FOIA)
National Security Classified Information ((a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information {(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
.and his advisors, or between such advisors (a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
.
2201(3).
RR. Document will be reviewed upon request.
�THE WHITE HOUSE
WASHINGTON
October 27, 1997
f
~~()(\.\.\\\k.L.t~'-\ tl\ :(_\A.Q~.\ fu~Q.?\1
c~& \'.t\.~~~l~\.\,\_\.{__l".6l~l~\. (._~~ '
~~ ~\.."-~ ~ \.~ t.ct~~~~ ()....'-W \J~\ "-~~
The attached mem~om Micke~ Ibarra updates y()b, on the •h" t{Th "-"-"--~
MR
DENT:
Administration's stance toward Guam. You do not need to ~"'"" ~
make any decisions here. ·But you should know that Deputy 6 ~
Secretary ofl11:terior Garamendi will be testifying on the Hill~~
on Wednesday. In short, he will make clear the. .
. ~t"~
Administration's opposition to the Guam Commonwealth 'tH\.h~\
Bill-- a controversial bill advanced by Gov. Gutierezz and Del.\-~\t
Underwoo.d that is more akin t~ the Fr~e Association Compacts &lL~\.\.~
reached With other non-U.S. Micronesian Islands rather than
.... : - .
the Commonwealth model. ·
~""'
t\
Garamendi's testimony has been coordinated closely among
OMB, other agencies and the appropriate WH offices. Key
Members of Congress -- including George Miller and Ted
Stevens -- also agree that many provisions ofthe bill would
require constitutional and policy changes that are unacceptable.
Garamendi will indicate areas of agreement as well as some
alternative measure the Administration could support and will
commit to work further with Congress and Guam on the bill.
But Gov. Gutierezz will likely be very unhappy. Although he
has asked for a "clear statement".from the Administration for
some time, it's not necessarily what he wants to hear.
.
•,
.
Mickey et al are also looking at other non-substantive, more
personal ways to "soften the blow" with the Governor and the
citizens of Guam.
PhilCapl~
COPY
·.
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2006-0193-F - Guam [Part 3]
Identifier
An unambiguous reference to the resource within a given context
2006-0193-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/44569b10eaa2a8aef577a97357c251f1.pdf
d9f365ed17aa40affc6b3a35b05229d2
PDF Text
Text
Withdrawal/Redaction Sheet
Clinton ~ibrary
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
·RESTRICTION
001. memo
Phone No.'s (Partial) (1 page)
02il8/1~~7
P6/b(6)
002. report
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
P5
u:J3
003: memo
To President Clinton from Jeffrey Farrow. Subject: Guam Governor
Gutierrez at dinner tonight (1 page)
12/13/1996
P5
~ ~'-{
004. memo
To President Clinton through Marcia Hale from John Garamendi,
Subject: Guam Commonwealth (4 pages)
12/30/1996
P5
(12_$
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bruce Lindsey
OA!Box Number: 19518
FOLDER TITLE:
Guam [1]
Jamie Metrailer
2006-0 193-F
'm137
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)j
Freedom oflnformation Act- [5 U.S.C. 552(b)J
PI National Security (::lassified Information [(a)(l) of the PRAJ
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
P3 Release would violate a Federal statute [(a)(3) of the PRAJ
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAJ
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRAJ
P6 Release would .constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRAJ
b(l) National security classified information [(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
'
b(7) Release would disclose information compiled for law· enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]·
C. Cl9sed in accordance with restrictions contained in donor's deed
of gift.
PRM. Persomil record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�DRAFT GUAM COMMONWEALTH BILL
COMMENTS ON SELECTED NEW POLICY PROPOSALS
Central Provisions
• ·
Agreement.that no provision of the lawmay be changed
without\ Guam's approval.
This idea is the disputed heart of the Commonwealth concept in
Puerto Rido as well as Guam. It is intended ~o limit Congress'
Constitutional power to make policy reqardinq.territorieR (in
local as well as national.matters) an override the princlple
that one Con ress cannot relin ish the ower o
rs .
(in territories ~less statehood or sovereignty is granted) .
While a commitment in this regard could be made as a ma~ter of
solemn policy, it probably cannot be legally binding (although
the courts might well sidestep the question as "political'·') .
The provision includes a qualifier that the agreement is made to
the extent constitutionally permissible but it does not overcome
the problems with the provision.
A') Justice agreed to it on the understanding that the
limitation on Congress' Constitutional power would not be
legally binding but Interior and Guam now want to assert
that it is meant to be ... as the language suggests.
B) The qualifier would make the provision even more
objectionable to Puerto Rico statehooders who -:·would see it
as enabling a doncept that they believe to be ~
unconstitutional to be approved and misleadingly suggest
that an effecti~e insulation from Federal territories
governing power is possible.
Current law does not provide even a commitment f.or Puerto Rico
but some Puerto Rico Commonwealth supporters claim that there is
an obligation in th~s regard created by the mutual approval of
the arrangement. The Northern Mariana Islands Commonwealth
Covenant includes purportedly binding language but. limits it to
"fundamental" matters: local authority; U.S. citizenship;
application of the Constitution; and limiting the right to own
land to persons of local descent (upheld as being essential to
the arrangement an~ justified by the islands' non-U.S. past).
House Chairman Young and Senate Committee staff suggest that the
provision in the draft bill has no chance of passage. And even a
policy commitment limited to key provisions would be hard for
·Puerto Rico statehooders to accept. It would be hard not to agree
to such a.commitment, though, in light of the Marianas precedent
... and since it can be done.
COPY
�2
•
Invitation for a status plebiscite
not descended from residents as of
The p6tential opponertts include citizens among the half o
population that would not qualify. Although A) many of them agree
that the original Guamanians never exercised 'self-determination'
and B) the yote would not be binding, some would feel that they
have an equal right to vote on the future status of their home
island.
A provision such as-this is likely to be cit~d as precedent by
Puerto Rican independence and commonwealth advocates who
controversially want status votes to l) include residents of the
U.S. descended from residents of the i~lands as of the date of
acquisition (there are 2.7+ million) and 2) exclude citi~ens not
descended from residents as of the date of acquisition.-:: .
.
Interior/Other Agency Stalemate Provisions
•
Commission with Interior as chair, Defense, Justice, the
Governor, and the Delegate to Congress empowered to
A) modify the application of any regulation to Guam and
B) make recommendations on modifying laws which
Congress would.have to consider on an expedited basis.
Most agencies -- which would not be represented -:-::would,
understandably, be oppused to being excluded from. decision-making
in matters within their jurisdiction. The House and Senate ar~
unlikely to agree to have their agenda set by such a body.
.
\.
.
-...
The provisiori would give Interior and Defense, at least,
unprecedented roles in polidies of. other agenci~s and. in Guam.
(Current law specifically excludes matters within other agencies'
jurisdiction from I~terior's mission regarding Guam.)
This proposal stems, in parti from a more modest proposal by
Puerto Rico's commonwealthers for Federal review of laws and regs
at the islands' request and from an advisory commission in the
case of the Northern Marianas Commonwealth Covenant.
•
Authorization for Interior/Commerce to waive any law or
regulation to benefit U.S.-Guam or u.s. through Guam trade.
There are too many potential problems to contemplate because of
the breadth of the proposal . . . "any law".
COPY
�3
•
Authorization to enter into agreements associate
World Trade Organization and, possibly, other or
Puerto Rico commonwealth and. independence supporters have~-~--~·--
proposed similar authority. Federal agencies contend that the
u.s. must speak with one voice on international trade matters.
•
Expedited Customs processing of Guam.products.
Other areas/interests might be interested in a similar provision.
•
No automatic trade benefits for any other U.S. island area.
This was included because current law provides that Northern
Mariaqas products.will be treated equally with products of Guam.
•
Control over immigration.
The ~Northern· Marj an as Cmrenaq,t did not ·extend U.S. immigration
~ law to .those formerly non-U.S. islands_but gave.the U.S. the
~ight to do so. Justice and Labor oppose transferring authority
to Guam becau~e of the way that th~ Marian~s .has used its
exemption. Rep. George Miller is concerned about this provision.
·The Marianas sought exemption ost~nsibly to enact stricter limits
on immigrants and, thereby, prevent itself from being overrun by
aliens. But it has developed a System which sa l i he·r:;!y adrqits
temporary workers that a majority of the populatjoni ___ nonresident workers. These individuals have only. limited rights and
1ntiuence in.the c"Ommunity. There has been national attent:ion to
spectacular cases of employer abuse of workers in the Marianas.
I
Some House Members have considered extending immigration control
to the Marianas. Puerto Rico commonwealth supporters would want
immigrationauthori~y. The Virgin Islands has also sought it.
•
Temporary workers• visa.
There might be concern because of the Marianas experience and
since the workers would be ~temporary' for up to four .years.
-- •
Authority to deny program benefits to aliens for five years.
This would be inconsistent with the administration's stance
policy on a current, nationally controversial issue.
COPY
�4
•
Interior/Defense/Guam joint recommendations on
military land on Guam to the Commonwealth.
Defense may be opposed .since it _no~ makes its own decisions
what land it needs. A process (~xcluding Interior) ~auld be
significant interest in Puerto Rico becaus~ bf the islands'
dispute with the Navy over the Navy's need for land it owns.
•
Authorization for the Commonwealth to tr;:msfer land obtained
from the Federal Governmen't to private use.
GSA, OMB, and ~ongress may be concerned. about authorizing private
gain from what is now a public resource ..
•
Special environmental standards.
EPA is opposed, fearing a precedent for region-specific policies.Rep, Miller is also concerned.
Targeted exemptions from Clean Air and Clean Water Act
requirements have been enacted for Guam and other insular areas.
Puerto Rico commonwealthers have sought a similar blanket policy
using a similar rationale to the one used by Guam.
•
Priority for hazardous waste site clean-ups.
Defense opposes since it is.involved. Many other·aieas also want
clean-ups funded.
Other Interior Recommendations
•
Authority to adopt "reasonable" voting requirements.
This would be controversial if used as authorjzation for a longer
residency than the courts have sanctioned -- as some Guam ~
'officials have wanted (and it would~ superfluous if not). New.
residents would be concerned about being disenfranchised.
•
Authorization for delegating Federal agency functioris to
Commonwealth officials.
This would raise concerns about the performance of statutory
requirements and accountability in various sectors. Even the
Republican Congress is unlikely to agree to blanket authority.
COPY
�5
•
Guam taxation. of U.S. and foreign income of
Treasury objects to this applying to Federal employees
the precedent it would set for all Federal workers outside
u.s.
.:··
•
Approval to rebate taxes to individuals and on U.S. income.
The Marianas Covenant includes authority to r~bate taxes on
Marianas income only. Treasury would object to rebating taxes on
U.S. incom~. Laws have been enacted to discourage rebates to
individuals: (vs. companies) in the Marianas because the rebates
have effectively negated Covenant taxation requirements.
•
Inclusion in tax treaties.
Treasury would object to automatic inclusion since the island is
foreign for tax.purposes and would be able to enact laws at odds
with U.S. tax code provisions.
•
Access to or through military
pr~perty.
Objectives have included commercial development of lahdlocked
private property and use of military recreation areas.
•
Submerged lands between three and nine miles -:offshore.
Puerto Rico has this. due to a 1980 law justified by Spanish law.
It has been an unfulfilled objective of some Gulf Coast States ..
Other Proposals Interior Wants to Pursue
•
Congressional findings that Guam does not have equal
participation in Federal policy making and has a.compelling
interest in protecting the island from inappropriate laws.
This would be of equal application to and interest in other
insular areas and be of concern to Puerto Rico statehooders.
•
Congress relinquishing its Constitutional power to govern in
territories to the extent provided in the legislation.
Would have tremendous appeal to Puerto Rico commonwealthers, be
constitutionally questionable, and have no chance of enactment.
COPY
�6
•
Ag~eement to consult the Commonwealth to an approp iate
extent before international negotiations which affe t Guam.
State and Justice oppose as a limitation on the President's
f6reign policy po~er. Other ins~lar areas also want this.
•
Requirement to consult the Commonwealth prior to significant
changes in military presence.
Defense opposes this as unworkable.
•
Authorization for the Commonwealth to receive assistance
from foreign governments.
State has opposed Northern Marianas proposals in this regard,
wanting the U.S. to remain an aid donor rather than a recipient.
•
Authorization to enter into international agreements not
irtconsistent with U.S. polic~ and not binding on the u.s ..
State is opposed to ihe U.S. speaking with more than one voice on
international matters.
•
Commonwealth replacement of Federal labor laws.
Labor has strong concerns based on the Northern Marianas
experience. Rep. Miller does as well.
•
Joint recommendations on whether tlie r~quirement to use U~S.
vessels for U.S. shipping should continue to apply using the
sole criteria of the island's economic interest.
The~.S. vessels shipping requirement does not apply to the
adjacent Northern Mar1ana Islands, American Samoa. or the Virg,;i.n
~slands but does apply to Puerto ~co (which is adjacent to the ·
V.I.)~Cohsidered by many islanders to be a major burden on
consumer ~osts, it is as big an issue in Puerto Ricci as Guam.
Reps. Gutierrez, Velazquez, and Serrano have sponsored a Puerto
Rico exemption bill.
Transportation and U.S. merchant marine companies and unions are
strongly.opposed to exemption and would even more strongly oppose
using~ standard of the island;s interests only.
COPY
�7
•
Exemption from the requirement to use U.S.-built
the waters near Guam.
Transportation opposes this provision which would amend an·----~
exemption limited by vessel size. The limitation was insisted
upon by the House Merchant Marine Committee .. This might also be
of inteiest~i~ Pu~rto Rico.
·>
•
Exclusive or concurrent authority to manage and obtain
revenue from the U.S.'s Exclusive Econo~ic Zone around Guam.
Other insular areas and California have expressed interest in the
EEZ. Justice objects to this provision··.
•
SSI and any other Federal programs not now extended.
This has been one_of the primary objectives of Puerto Rico's
·commonwealthers. SSI has also been sought by th.e Virgin Islands
and American Samoa. SSA views the cost of extending SSI to all of
the areas as too great. The Administration has proposed greater ~
- but partial -- funding in Puerto Rico.
•
Joirit recommendations on levels of program funding .
Puerto Rico and other insular areas would want similar input.
•
Authorization for any funds necessary for infrastructure
projects, technical programs; and cooperative ventures .. ·
Puerto Rico, the Virgin Islands, and the Northern Mariana Islands
would want a similar authorization. One exists for American Samoa
but the House authorizing committee has questioned it. OMB would
probably oppose this provision for budgetar~ re~sons.
.
.
COPY
�December 13, 1996
MEMORANDUM FOR THE 'PRESIDENT.
· CC:
HAROLD ICKES ~
MARCIA HALE
FARROW~
FROM:
JEFFREY
SUBJECT:
GUAM GOV. GUTIERREZ AT DINNER TONIGHT
and ask for a
Guam Governor Carl Gutierrez is likely to raise
<'\.brief meeting on-- the territory's 'Commonwealth' bill tonight.
Interior Deputy Secretary Garamendi supports many of Guam's
proposals but most agencies of jurisdiction have concerns. While
there are substantial arguments for many of the measures, key
ones are questionable .for constitutional or policy reasons. They
also require decisions that would be pivotal in Puerto Rico's
status debate and would impact other important constituencies .
.We and NSC staff are working on a recommendation that should
enable consideration of the bill -- which has been underway since
1989 --to finally be.completed with the best possible response.
We also suggest that a meeting with Gutierrez occur a bit later,
such as around the time of the NGA meeting in February.
COPY
�.United States Department of the Interior -..ff-~r-rr.~c~ ;J
...
OFFICE OF THE DEPUTY SECRETARY .
Washington, D.C. 20240
Memorandum
December 30, 1996
TO:
Honorable William J. Clinton
President of the United States
THROUGH: Marcia Hale
Director, White House Office of Intergovernmental Affairs
FROM:
· JohnGaramendi
Deputy Secretary of
I understand that you met briefly with Guam Governor Carl Gutierrez on December. 16, 1996, to
discUss the status of the Guam .Corrunonwealth negotiations. I am informed that you want key
issues brought to closure by January 20, 1997, before certain members ofyour Cabinet leave the
.Administration. This memorandum summarizes the negotiations and status of certain "deal ·
breaker" issues. ·The summary below is supplemented by attached briefing materials.
Overview
When I took over these negotiations in January of this year, I approached the issues from: the
perspective of nulximizing the amount of self-government for Guam in a way that would
safeguard the fundamental strategic interests of the United States. ·There are vestiges of .
tJo-tcolonialism in Guam's current status as an "unincorporated territory." Although it has its own
locally-elected governor and Iegislature,-Guain isautomatically subject to almost all Federal laws \ o...c.c...vSOv~ •
~.~~ _ .\ and policies. In 1982 and again in 1987, Guam voted to change ~ts political status fo~ gr:aterself- \. ~ ~~ s
v:J~'
governmen~ ~Ugh Commonwea.lth. From a. ~ractical r<:rspect.Ive: the~lanket app~Ica~10n of "'-slr ""'<..\- >....
. v:~
~ F~eral pohctes developed for mamland conditiOns seem mapp:~pnate given. Guam s stze, 'l.~\..~~
~
dt~ce: geography, econ?r:nY •. history and culture. From a poht~~ ~rs~tive, blanket · ~yu.;..~<-- F~~
s~ · application of Federal pohcies ts unfair because Guam lacks participation m the Federal process ~~~
:[.-\-i'=- ~~~-\~~ugh either.ful~ vo~g ~epres~ntation ~Con~ or electoral vo~es fo~ President. I do not ;-: ~~ ·
v'>r-6~ ·~\1eve that this SituatiOn tS co~Istent With the tdeals of a democratic SOCiety. I have therefore ._...,~~ ~ .
.,.__ v~. ~dvocated pos.it~o.ns ~n the Guam ~rrunonwealth ne~~tiations ~at provide Guam with greater <P"\r-U>~ ~
s~
mput and flextbihty In the applicatiOn of Federal pohctes to the Island.
~ !'\:;)~~~. L
.
~f~(~~~
-~~·
Status Of Deal Breaker Issues
The original Draft Act contains approximately 90 sections spread over 12 Titles. In prior
Administrations, Guam has insisted that 100 percent of these issues be resolved in precisely the
same way they were approved in the 1987 Guan1 plebiscites. In our negotiations and through the
COPY
�leadership of Governor Gutierrez, Guam has reduced its demands and identified a h ·
?EN)"~·.~,
issues as "deal breakers"-- i.e., issues which are at the core of Guam's Commonw ~package. '-<1< <:
Guam accepted the concept of negotiating principles first, then language. This pr j!.ss has led to · ~
the following proposed policies:. ·
.
· ~~\w\u:>
5/ ~ ry::;: ~
·.
(_)). c<.-S<..:»·
0
(j} (?(._) ~
·
Mutual Consent- agreed. Once a commonwealth pac ge is en~ted, Mut Consent
provides that neither Guam nor the United States can make any hanges to the packa
'thout
·the express approval of the other party. The Justice Departmen. contends that one Congress
·
cannot bind subsequent Congresses from unilaterally changing the Guam Commonwealth
leg~slati~n. ·Guam cites !:gal arguments indicating the o~~site. Both sides ~ea~hed agreement
t.\
by m~~mg ,~ cla~e makmg mut~al consent enforceable _to ~e ~xtent constitutiOnally \ ~~'c,s\.;~
penntssible. Bus preserves the Issue for subsequent detennmat10n by the courts.
0 ...,...\:o. ~:...<...0
·
r
\., _ L.sl
s~~~:~. ~~
.
.
,
.
.
0
· . . Ch~mo~ro Self-J.?et~rmination- agreed. The o_riginal Draft ActJ?ro~ided for Chamorro 'o\~ o. self-deterrrunat10n --a bmdmg, political act to be exerc1sed-sole!y by tlfeindige~ple of t»-~W
5
Guam to determine the ultimate political status of the island. The Justice Department questioned <~-- ~~;..s..._
the constitutionality of this provision on due process and equal protection grounds. These·
vJL~,;) \..;:, ·
I\\; jk\- k concen:s ~ere addres_sed when both sides agreed to language making Chamorro self-.·.
b "- ~\~ ·
v..~ determmat10n ~ advtsory act that would not be sponsored or funded by the government.
p --:-"~~s >J4:;
"'
~'\ r~"' ~\.\:~b.,..., Federal Excess Land- needS decision. The original Draft Act provided for a Guam~~1. ~controlled Commission that had the unrestricted power to detennin~ which F~er:ai lands in
~ .P-..s ,........
Guam are excess ·and to mandate their cost-free transfer to Guam wtthout restnctwns or
... s. ~-\:-~ compliance with Federal standards. This was strongly opposed by a ~wnber of agencies,
<>-"-l \'-\.~~eluding the Navy and the Air Force, which together own about one-third ofGUa.m. Guam's
~~¥-- current proposal, which I support, is significantly more modest. It proposes that once Federal
~ ~ ::;- lands in Guam are declared excess by the military or other Federal agency, the Government of
\ ~ :(.
Gtlam sh~uld be given the right to obtain such lands cost-free, but subject to all other applicable
f..P\
. Fede~ st:mdards. A ~umber of agencies, including Defense, GSA and the Fish and ~ldlife
·
Service still oppose this modest proposal. ~6"'-..c---;~ \) A~~("\~·7:\. q~~ ~,-Jt._+k l~~
.
.
•
. .
. •
·, ....,\:,.1\\..,...J..<, ~~ ~ ~~h\\- ~-\~~~~-y_,.;._~\\1~
Jomt Commtsston/AppllcatiOn of Federal RegulatiOns- needs dectston. The ongmal .J);.'J) '~ . ·
Draft Act called for a Guam-controlled Commission to regulate almost all aspects of Guam's. ~~~\
relationshi~ to the United States, including ~e power to modify the.appli~t~on of~ed~ra_II~ws \~~f>P~
and regulations to Guam. All Federal agencies strongly opposed this provision for JunsdictiOnal ~. ~'
.and operational reasons. Justi~ also questioned the constitutionality of endowing a local ·
comniission with Federaf regulatory and legislative powers. Guam's current proposal provides
· for a five-member commission, three of which would be Cabinet officers and two of which.
.. ~
·
would, be nomi~at~ by the Govemqr and appointed by the_ President. . With respect ~o Fe~eral f):'""~~~
laws, ~e commiSSion would merely provide recommendatiOns to Congress for consideratiOn. s~h~ b.l~.... · . (With respect to Federal regulations, the commission would be empowered to make fin'!l
i "~-o\~t. .,....,_
'\~~?et~rininati~n~ on how ~egula~i~ns ~e ~pplied to Guam. I support this mechanism as a way of~~~~··
-0-'--~ . "" mstttutwnahzmg Guam s partJcJpatwn m the Federal regulatory process.
~,....
. s.,_..,.
. ~ v-V
.
.
"'"
I
')\)'""1
"'
c;J~<$'--
~ ~
.
-~~;::>-.,~ ~ .}>·
? :j)~:/1 \
r-
~
. \)
y-r-.
2
;,.v'
o~'§()-"~
\
COPY
�-~---~--------------------------------------------------.
,
Immigration- needs decfsion. Guam desires local control over immigration to the ~fJ(t~
It wants to significantly reduce the amount of permanent immigration from Asia, while
ing its ability to bring in temporary workers. The Department of Labor and Federal law
ment authorities on the island strongly oppose giving Guam control over immigration.
The cite concerns about government corruption in Guam and the desire to avoid wide-spread
rand immigration abuses which have occurred in the Commonwealth of the Northern
Mariana Islands. I believe that these concerns can be met by placing very specific and rigorous·
safeguards in the Guam legislation that would ensure adequate local enforcement of local laws
that are at least as stringent as Federal laws. \ ~~ ~1- ~ ~ R-k...9...._ \~c;.!
------------~.----------
\
I
I
· Other Issues -~There are other high priority issues which Guam would like resolved in
an expeditious manner: e.g., Labor, Tax, Trade, International Activities and Environmental
Regulation, among others. I believe that resolution of these matters will fall into place if we can
resolve the issues outlined above.
.
Delinkage From Puerto Rico
Some have s~ggested that Guam Commonwealth may have an impaCt on the Administration's
efforts to deal with Puerto Rico status options. I do not believe that there will be much impact, if
any. First, Guam and Puerto Rico are literally
apart in tenus of culture, history,
&,~ ·
geograplty and population. I am informed that neither the leadership of. Guam nor the leadership IfR. ~
of Puerto Ri~ desire ~o see a linkage ~t~een their re_spective status quests. G~ is much ().)ro..sf'-~~:-4.:~
further 3long m pursumg a changed political status - 1t selected commonwealth m 1982,
. ·' (.:)<; s,u__
·
.
.
VU4JJ'
described its content in 1987 and has been negotiating with the United States oh the details of a' \, "~ ·
1
commonwealth since 1988. In contrast, Puerto Rico is still struggling with the initial step of ~~~ ·
f.U<,. ~\,....~ ~ choosing a status option among statehood, enhanced conimonwealth and independence, an .
f'O,) ,~ .
intenial debate that has raged unabated since the early 1950's. Finally, there is only one
~~-tv)~\~ fundamental issue in Guam Commonwealth that may be relevant to Puerto Rico- mutual
o...co...Ja....'\
~ \~ ~nsent and its implications on the viability of Puerto Rican commonwealth ~tus .. However, ·~ ~
~"..r'lJ even ~s issue has limited impact because the.Justice Department's position on mutual consent ,sc:_ ~ ·
~
in Guam Commonwealth has already been publicized in Puerto Rico·: l ~'r--ou\ ~~ ~ k~ ..:»-.<:.. ~
of~h~ t:."r ~"-\--- ~ 'o·, \\ N.J
Outlook
(_,.) . . .~, ,...-;. .
oceans
l
l
.
.
Sustained focus and involvement by the White House will provide the bro~der policy framework
to guide agency consideration of Guam Commonwealth. Without White House direction, agency
positions on key romrriolfwealth issues are likely to remain unchanged. Congress has not
reviewed commonwealth since 1989, when it directed the Executive Branch to work out
differepces with Guam. Nevertheless, there are indications that the majority in Congress may be
sympathetic to commonwealth provisions that are consistent with the devolution of Federal
control tolocal governments. Meanwhile, Guam's leadership is disillusioned with the length of
the negotiating process and the perception that little progress has been made. In light of
indications that U.S.-Guam relations are growing increasingly unpredictable, I strongly
3
~~~'", ~s\....~J~\ s'fi\.~~
COPY
�.,
I.
Memorandum to Sandra Kristoff, NSC Asian Affairs, dat
(Procedural History of Guam Negotiations, Outlook)
2.
Letter to William J. Perry, Secretary of Defense, dated De mber 3, 1996 (Resolution
issues for Defense: Guam Excess Lands)
3.
Letter to Janet Reno, Attorney General, dated December , 1996 (Resolution issues for
Justice: Immigration, Labor, Excess Lands)
4.
Letter to Robert Reich, Secretary of Labor, dated.Dece ber 3, 1996 (Resolution issues
for Labor: Immigration, Labor)
5.
December 12, 1996
Letter to Warren Christopher, Secretary of State, date December 3, 1996 (Resolution
. issues for State: Immigration, Foreign Affairs)
6.
Letter to the President, dated November 8, I 996 (Stat
Commonwealth);
Report on Guam
7.
Draft Guam Commonwealth Act, dated August 23, I 96 (Contains legislative language ·
being negotiated on all issues as of August 1996)
8.
Commonwealth Bill, Section-By:-Section Analysis, dated December 1993
(Compilation by Interior summarizing original provisions of Guam Commonwealth and
comments made by agencies in the 1989 and I 992 Federal Interagency Task Force
Reports)
9.
Pue
us 0 tions, Congressional Research Service Issue Brief (SummaiTI~
history from 1898 to legislative propo
4
COPY
�·withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
To Special Representiative for Guam Commonwealth from Teresa R.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/28/1994
PS
002. statement
re: Comments on DOJ memorandum regarding mutual consent
provision in the Guam Commonwealth legislation (53 pages)
08/26/1994
PS
003. letter
To I. Michael Heyman from Walter Dellinger. Subjcet: Proposed
language from Department of Justice on Guam Commonwealth
legislation (4 pages)
06/2911994
PS
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bruce Lindsey
ONBox Number: 19518
. FOLDER TITLE:
Guam [2]
Jamie Metrailer
2006-0 193-F
'm581
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office ((a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute ((b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
ofgift.
.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
'2201(3).
RR. Document will be reviewed upon request.
�.(
. ~-
trt llll'lll ol
.lt1•-t ll t·
Office of le!!al Couns~l
lruslsill~toll.
D.C
::r.'531!
July 28, 1994
ML'\10RANDUM FOR
TilE SPECIAL REPRESENTATIVE
FOR GC.<\.;.\1 CO:MM:ONWEALTH
From: Teresa Wynn
Roseborough~
Deputy Assistant Attorney General
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong .. 1st Sess. (1993) contains
two sections requiring_ the mutual consent of the Government of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws, rules. and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two. governments. The Representatives of
Guam insist that these two seetions are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
inCluded in legislation governing the relationship between the federal government and nonstate areas. i.e. areas under the sovereignty of the United States that are not States, 1 have
' Territories ihat have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective governor. resent being called Territories and claim that that
legal term and its implications are not applicable to them. We therefore shall refer to all Territories and
Commonwullh• a. non-•t.to '""-' und" the •owe;gnty of th< United Stat"' oc bdefly " n c
0py
�I~
In our vie\1.. it is important that the text of the Guam Commonwealth Act not create
lusory expectations that might to mislead the electorate of Guam about the
~-~consequences of the legislation. We must therefore oppose the inclusion in the
Commonwealth Act of any provisions, such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the_
document itself.
an
I.
The Power of Congress· to Govern the Non-State ·
Areas under the Sovereignty 6f the United States
is Plenary within Constitutional Limitations
All tei)itory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter; whether called territories, possessions, or .
commonwealths, are governed by and under the authority of Congress. A~ to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S.129, 132-33 (1880). There the Court held:
·
·
: To our knowledge the first consideration of the validity ~f mutual consent clauses occurred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took:
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that they go beyond the constitutional power o( Congress, In 1963 the Department of Justice opined that
such clauses were legally effective because Congress could create vested rights in the status of a territory that
could not be revoked unilaterally. The Department adhered to this position in 1973 in connection with then·
pending Micronesians status negotiations in a memorandum approved by then Assistant Attorney General
Rehnquist.- On the basis of this adviCe. a mutual consent Clause was inserted in Section 105 of the Covenant
with the Northern Marian~ Islands. The Department continued to support the validity of mutual consent clauses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Pu..:rto Rico Status Referendum Bill in light of.
Bowen _v. Agencies Opposed to Soc. Sec. Entrapment. 477 U.S. 41. 55 (1986), and concluded that there could
not be an enforceable vested right in a political status: hence that mutual consent clauses were ineffective
because they would not bind a subsequent Congress. We took the same position in the Second Guam Task
Force Report issued during the last days of the Bush Administration in January 1993.
3
Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordinance contained six "articles of compact. between the original States and the people and
States in the said territory. and [shall] forever remain unalterable. unless by common consent." These articles
were incorporated either expressly or by reference into many early territorial organic acts. Clinton v.
Englebrecht, 80 U.S. (13 Wall.) 434. 442 (1872). The copious litigation under these "unalterable articles"
focussed largely on the question whether the territories' obligations under them were superseded by the
Constitution. or when the territory became a State. as the result of the ~ual footing doctrine. We have,
however. not found any cases dealing with the question whether the Congress had the power to modify any dut)·
imposed on the United States by those articles.
- 2 -
COPY
�~--.,·
~s\0 EN/;~"-,,,
. ·q~
( (
~ ·
~ .{J)2(JJ
S
0
~
It is certainly now too late to doubt the power of Congress to _govem
~ he Territories. There have been some differences of opinion as to the
~ particular clause of the Constitution from which the power is derived. but that
. it -exists has always been conceded.•
AU territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions or'the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Territory takes the place of a constitution as the fundamental law of the local
. government. It is obligatory on and binds the territorial authorities; but ·
.Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
Yankton was anticipated .in Chief Justice Marshall's seminal opinion in American
·Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511,542-43,546 (i828). The Chief Justice
explained:
In the mean time [i.e, the interval between acquisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
·
.
.
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self- ·
~ Some derived that power from the authority of the United States to acquire territory, others from the mere
fact of sovereigntY, others from the Territory Clause of the Constitution of the United States (Art. Iv, Sec: 3.
Cl. 2) pursuant to which Congress has "Power to dispose of and make all needful RuleS and Regulations
respecting the Territory or other Property belonging to the United States". See~ American Insurance Co. '.
Canter, 26 U.S, (I Pet.) 511, 542 (1828): Mormon Church v. United States, 136 U.S. l, 42-44 (1890):
Downes v. Bidwell, 182 U.S. 244, 290 ( 1901).
At present. the Territory Clause of the Constitution is generally considered to be the source of the
·power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
(1945): Examining Board v. Flores de Otero, 426 U.S. 572,586 (1976); Harris v: Rosario, 446 U.S. 651
( 1980): ~also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), ~· denied sub nom. Philippine
Goods. Inc. v. Wabol. __ U.S._. 113 S.Ct. 675 ( 199:!). (Footnote supplied.)
-3-
COPY
�. ~s\OENr0 '\
t
q_~
1-
z
~
c.)
.
u~r
1'.
d- '-..LI
<(.. -: _:!llV~rnment. may r~sult nec~ssarily from the facts. that it is not within tilt:
~ ·urisdiction of any particular state. and is within the poi·er and jurisdiction
>
. ':lJ
he
.
Umted States.
.
.
of· ....
.
"\'
* "" *
"In legislating for them [the Territories], Congress exercises the combined
·
powers of the general, and of a state government."
Id. at 542-43.
546~
The power of Congress to govern thenon-state areas is plenary like every other
.
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As ChiefJustice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1.
196 (1824), with respect to the Commerce Power:
. .
This power [the Commerce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. See u., Hodel v. Virginia
Smface Mining and Reclamation Assoc., 452 U.S. 264, 276 (1981). Thaf the power of
Congress under the Territory Clause is subject to constitutional limitations has been
recognized in County of Yanktori, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
·
Finally, the power of Congress over the non-state areas persists ... so long as lhey
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 {1894). See also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establishment of the Commonwealth of the Philippine
Islands and the fmal withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains tha:t status. It terminates when the area loses that status either by virtue of its
admission as a State, or by. the termination of the sovereignty of the United States over the.
area by the. grant of independence. or by its surrender to the sovereignty of another country.
-4 -
COPY
�II.
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas full powers of self. government and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation. however, must be "consistent with the supremacy and
supervision of Nationa.l authority", Clinton v: Englebrecht, 80 U.S. (13 Wall.) 434. -Ml
(1872): Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requirement that
-the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise. alter. or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Sharpnack, 355 ·
U.S. 286, 296 (1958), Harris v. Bareham, 233 F:2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co.· v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
. non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty·over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the·
retention of the power to amend or repeal legislation delegating governmental powers to a
non~state area is an integral element of the delegation power. Congress therefore has no
~Thompson dealt with the District of Columbia's government which is provided for by Art. I. Sec. 8. Cl.
17 of the Constitution. rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court. however. held that in this area the rules relating to the Congressional power
to govern the District of Columbia and the non-state areas are identical.· Indeed, the Court relied on· cases
dealing with non-state areas, U·· Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative ·
authority under Art. I. Sec. 8. Cl. 17 of the Constitution to the District, subject to the power of Congress at any
time to revise, alter. or revoke that authority. ·
~Congress has exercised \his power with respect to the District of Columbia. The Act of February 21.
1871. 16 Slat. 419 gave the District of Columbia virtual. territorial status, with a a governor appointed by the
President, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20. 1874. 18 Slat. 116. which abrogated among others the provisions
for the legislative assembly and a delegate in Congress. and established a government by a Conunission·
appointed by the President.
- 5 :-
COPY
�The same result flows from the consideration that all non-state areas are subject to the
ority of Congress. which; as shown above, is plenary. This basic rule does not pennit
the creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and tenninates only when the area becomes a State or ceases to be under United
States sovereignty. There is no intermediary status as far as the Congressiomil power is
concerned.
The two mutual consent clauses contained in the proposed Commonwealth Act ·
therefore are subject to Congressional modification and repeal.
III.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general
rule that one Congress cannot bind a subsequent Congress. exce.pt where it
creates vested rights enforceable under the Due ProCess Clause of the Fifth
Amendment.
The rule that Congress cannot surrender· its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
Tl)e rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation ·
would be frozen permanently and would acquire virtUally constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey, 431 U.S. 1, 45 (1977), a case involving the Impairment of the Obligation of
Contracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
. ·"
One of the fundamental premises of our popular democracy is that each ·
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those Same rascals might perpetuate their policies simply by locking them into
binding contracts. ·
I
I
-6-
COPY
�Nl'llethekss. th~ maxim that lllll' Congress cannllt hind tutur~ Congress. like e\ en
lie. has its limits. As early as I 810. Chief Justice Marshall explained in Fletcher-,.
10 U.S. (6.Cranch) R7. 135 (1810l:
The principle asserted is that one legislature is competent to repeal any
act which a fanner legislature was competent to pass: and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness of this principle. so far· as respects general legislation.
can never be controverted. But. if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most· absolute
power.· Conveyances have been made. those conveyances have) vested legal
estates, and if those estates may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease to ~a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the· preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of .
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They are not included ·
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited. from depriving persons or cmporations of property without due
process of law. They· cannot legislate back to themselves, without making
compensation. the lands they have given this corporation to aid in the .
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bOnds
otherwise than according to the tenns of the contract already made in that
connection. The United States are as much bound by their contracts as are
individuals. (emphasis supplied.)
See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment, .477 U.S. 41, 54-56 (1986).
-7-
COPY
�IV
The Due Process Clause does not Preclude Congress· from
Amending or Repealing the two Mutual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth Amendment
non-state
precludes a subsequent Congress from repealing legislation Jor the governance
areas enacted by an earlier Congress under the Territory Clause, This question must be.
answered in the negative.
of
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This .Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive
the non-state area of a property right within the meaning of the Fifth Amendment.
A.
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), cert. denied, 493 U.S. 991
( 1989) .("The State of Alabama: is not included among the entities protected by the due
process clause of the fifth amendment"); and State of Oklahoma v. Federal Energy
Regulatory Comm., 494 F.Supp. 636, 661 (W.D. Okl. 1980), aff'd, 661 F.2d 832 (lOth Cir.
1981), cert. denied, sub. nom. Texas v. Federal Energy Regulatory Comm., 457 U.S. 1105
(1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts. are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. ·City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. IBWC/US, 701 F.
Supp. 121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are not States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendmt!nt. They are, however, governmental bodies, and
- 8-
COPY
�~s\DEN>-; ~,
«((..Tv
.
I F_,q( -.:: ...
~
0
<.:
till: ltionak of Sl'llth Carolina v. Katzenhacl1. 3~3 C.S. at 301. app~ars tl' be tllat \UciJ
hodif· are not protected by th~ Due Process Clause of the Fifth Amendm~nt. !vloreover. it ~~
well stablished that the politi~al subdivisions of a State are not consider~d persons protected
as gainst the State by the provisions of the Fotineenth Amendment. See. ~. Newark v.
--~. ew Jersey. 262 U.S. 192. 19o (1923): Williams v. Mayor of Baltimore. 289 U.S. 36. 40
(1C}33): South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500.505.
507 (6th Cir. 1986) and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated.
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):
(J dlJ
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is rriuch. the same as
that which counties bear to the respective Sui:tes ...
More recently, the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
.
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and· since· the ·
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Ciause of the Fifth Amendment;
B.
Legislation relating to the governance of non-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amendment by subsequent ·
legislation.
As explained earlier, a subsequent Congress cannot amend .or repeal earli~r legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment.
i.e., if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meariing of the Due Process Clause. Here it will be
shown. that mutual consent provisions in "legislation, such as the ones envisaged in the Guam
Conimonwealth Act. would not create prop~rty rights within the meaning of that Clause .
. Legislation concerning the governance of a non-state area, whether called organic act.
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
.
.
clearly subject to amendment or repeal by subsequent legislation. A .non-state area does not :
acquire a vested interest in a particular stage of self government that subsequent legislation·
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
in connection with the District of Columbia. See District of Columbia v. Thompson Co.'
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause.
-9-
I
COPY
�...
This leads to the question whether the addition of a mutual consent clause. i.e. of a
\-....._ ~------pr 1sion that the legislation shall not he modified or rep~aled without the consent of the
~-ovemment of the United States and the Government of the non-state area. has the effect of
creating: in the non-state areas a specific status amounting to a property right within the
meaning: of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because (1) sovereign governmental powers cannot be contracted away. and
(2) because a specific political relationshipdoes not constitute "property" within the meaning
of the Fifth Amendment.
1. As a body politic the Government of the United States has the general capacity to
enter into contraCts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmentalpowers cannot be
contracted away." North American Com I. Co. v. United States, 171 U.S. _110, 137 (1898) ..
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10, Cl. 1) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty. •· United States Trust Co. v. New Jersey, 431 U.S. I, 23 (1977).7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are,_are subject to state restriction.
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the latter ..or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential .powers of the federal government. They are
7
Cases arising under the Contracl Clause holding that a ·state cannot contract away a sover..:ign power are
also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp. v. R.A. Grav Co., 467 U.S. 717, 733 (1984); National Railroad Passenger Corp. v.
A.T. & S.F. R .. _470 U.S. 451. 472-73 n.25 (1985). Hence. when state legislation does not violate the
Contract Clause. analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
• Cited with approval with respect to federal legislation in Norman v. B. & O.R .. 294 L.S. 240: 308
( 19)5) ..
- I 0-
COPY
�/·
tllcrdtlrL' llllt
hindin_!.!
on
the: United
StalL''
and
L'lllllhll L'tinfcr a
prupcn:
tile Fifth Amemlment.''
t\lor~ generally. the Suprenie Coun held in Bowen '. Aoenc1es ( ose · to SoL·. SeL·.
Entrapment. 477 U.S. 41. 55 (1986). that the contractual propeny rights prorecre' ~.~
Due Process Clause of the Fifth Amendment are the traditional private contractual rights.
such as those arising from bonds or insurance contracts. but not arrangements ti1at an.: ran of
a regulatory program such as a State's privilege to withdraw its panicipiuion in the Social
Security system with respect to its employees. Specifically. the Coun stated:
But the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "propeny" within the meaning of the
Fifth Amendment. The termination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 418 itself.· The provision· constituted neither a debt of the
United States. see ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see Lynch~. United States, supra. The termination clause
was not unique to this Agreement; nor was it a term over which the State had .
. any bargaining jJower or for which. the State provided independent
. consideration. Rather, the provision simply was pan of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to· provide for the general welfare.
Agreements that the Guam Commonwealth Acr may not be amen~ed without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional
private contracts: they are elements of a regulatory system.
In the past the Depanment of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from unilaterial.
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
"Cases such as Lvnch v. Cnited States. 292 L'.S. 57! (!934). and Perrv v. Vnited States, 294 L',S. 330
( 1935 ). are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance;
P<=rrv: Government bonds) In Lvnch the Court held that Congress could not amend the contract merely to save
money "unless. indeed the action falls within the federal police police power or some other paramount power."
292 U.S. at 579. Perrv involved bonds issued by the United States under the authority of Art. I. Sec. 8, C'l. ::!
of the Constitution. to borrow money on the cr~it of the united States. The Court held that Congress did not
have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating one
of the pivotal terms of the bonds to save money. While the Court held that the United States had broken th<=
agreement. it nevertheless held that plaintiff could not recover because. as the result of regulations validly issued
by the Unit~ States. he had not suffered any monetary dama~es .
.:. Cf.
n.:.
- II -
COPY
�... - - - - - - - - - -
~---;-----.--
-------------
<.:
~
'ie\l.~l f the nilings ol the Supreme ClHirt that legislation concerning the govemance ot a nonstat~ rea Is necessarily. suhject to Congressional amendment and repeal: that govemmental
bod· s are not persons within the meaning of the Due Process Clause: that governmental
•ers cannot be contracted away. and espec1ally the exposition in the recent Bowen case.
that the property rights protected by the Due Process Clause are those arising from private
law or commercial contracts and not those arising from governmental relations. 11
Sections 103 and 202 therefore do not create vested property rights protected by the
Due Process Clause of the Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide· that its legislation shaU apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions, therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. 13
·
·
Finally, the Department of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. The question whether .
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act· so as to
limit the mutual consent requirement to Sections 101 , l 03, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
·
11
It is significant that the circumstances in wb..ich Congress can effectively agree not. to repeal or amend
legislation were discussed in the context of commercial contracts. Bowen, 477 U.S. at 52.
:: Bowen. it is true. dealt with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
·
consent of the Government of Guam. The underlying agreements, however. are not of a private contractual
nature. and. hence. are not property within the meaning of the Due Process Clause. We cannot pereeive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
1
'
The conclusion that Section 202 of the Guam Commonwealth Act (inapplicability of future federal
legislation to Guam without the c·onsent of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 202. In Currin v. Wallace, 306 U.S. I. 15-16 (1939). and United ·
States~- Rock Royal Co-op. 307 U.S. 533, 577-78 (1939). the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco fanners or milk producers affected by them.
The Court held that this approval was a legitimate condition for making the legislation applicable. Similarly, it
could be argued that the ~pproval of federal legisla.tion by the Government of Gtiam is a legitimate condition for
making that legislation applicable to Guam. Since. as stated above, a future Congress would not be bound by
Section 202. we need not decide the question whether the requirement of approval by the Government of Guam
for every future federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
- 12 -
COPY
�August 26, 1994
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION IN THE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to review the July 28, 1994
memorandum initialed by Deputy Assistant Attorney General
Roseborough and addressed to the Special Representative for Guam
Conunonweal th (hereinafter the "Memorandu.."ll") .
That Memorandum
purports to reverse a thirty-year Justice Department policy
supporting the constitutionality and enforceability of mutual
consent clauses in legislation providing for internal selfgovernment in the territories. 1
According to the Memorandum,
mutual consent clauses are unenforceable because (1) rulings of
the Supreme Court require that the "governance of a non-state
The Department of Justice expre~sly has approved and
gone on record supporting Congressional·passage of mutual consent
clauses in at least two U.S. statutes implemen~~ng political
status agreements with one U.S. territory, and the Freely
Associated States, and apparently continues to support the
constitutionality and enforceability of these provi~ions.
Memorandum at 12 ("Finally, the Department has indicated that it
would honor past commitments with respect to the mutual consent
issue").
But an Act of Congress either is constitutional and
enforceable or it is not.
If the Department of Justice means
what it has stated in the Memorandum, this will have . profound
legal and political implications with respect to the ~tate of law
. and governmental relations for· the insular jurisdic~ions to which
the existing f~deral mutual consen~ statutes apply,.as well as
one new. insular jurisdiction for which yet. another mutual consent
law is to take·effect within a matter of weeks.
Appendix A is a
description of the legal and political nature of the existing
mutual consent precedents and some of the possible effects if the
Department of Justice does not reconsider the views recommended
in the Memorandum of July 28.
�area is
meaning of the Due Process
carinot be contracted
away~
relying on the recent decision
~
Bowen v. ·Public Agencies Opposed to Social Sec. 477 U;S. 41
(1986) (popularly referred to as the
~POSSEK
because the Court held that the only
~p~operty
decision) supposedly
rights protected
by the Due Process Clause are those arising from private law·or
commercial contracts and not those arising from government
relations".
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guam Commonwealth legislation can be justified
relying on the POSSE decision or any other decision discussed in
·the Memorandum. 2
inaccurate.
The Memorandum is misleading and disturbingly
It quotes parts of judicial decisions out of
context, relies on decisions which have nothing whatsoever to do
with whether Congress has the power to bind itself when entering
into a political status arrangement with a territory,
misstates
holdings in cases cited, mistakes dicta for holdings in others
2
Interestingly while the Memorandum asserts that its
position must change as aJresult of POSSE, the next most recent
decision relied upon is United States Trust Co. v. New Jersey 1 •
431 U.S. 1, decided in 1977. Virtually all of the other key
.cases were decided in the· 19th Century and early 20th Century,
none of which would justify the change. If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
justification exists· for,the changed position.
-2-
COPY
�artd relies upon a web of circular reasoning which quite
does not justify the Department's changed position.
Perhaps
o~
most concern is that the Memorandum
absolute conclusion conc~rning Congress'
a binding mutual consent arrangement with a territory, even
though this question has never.been put
Supreme Court or any other court.
dire~tly
before the
This is all' the more
disturbing because the only court which has ever even ~pproached
the question apparently asswned.that Congress could indeed bind
itself, notwithstanding its
Clause.
See,
.§...:..9:.:_ 1
plenary power under the Territorial
U.S. Ex Rel. Richards v. De Leon Guerrero, 4
F.3d 749, 754 (9th Cir. 1993).
in the Memorandum. 3
This
c~se
is not even mentioned
More importantly, both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Congress can limit
th~
ability of
futu~e
Congresses to change
laws which grant vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
52; Merrion v. Jicarilla Apache Tribe, -455
0.s.
POSSE, .477
u.s.
at
130, 148 (1982);
3
Our standards for legal advocacy properly allow·
attorneys to preserit the facts and law in the. light most
favorable to the proposition being espoused.
Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the arguments put forward
are accurate and fairly reflect existing law, even if asserting a
nonfrivolous proposition that the law should change.
In our view
the Memorandum was not prepared in a manner consistent standards
of advoc~cy required in~roposing such an important chan~e irl
.
policy, and it should not have been presented for approval by
departmental management·as an official position without. furth~r
deliberation between all concerned agencies and even comment by .
the insular areas affected.
-3-
COPY
�Transohio Savin s Bank v. Director
Office of Thrift Su
967 F.2d 598, 621 (D.C. Cir. 1992) ("Transohio").
Inc
this "unmistakable terms" doctrine (which served as
the holding in POSSE) is also not addressed.
A section-by-section analysis of the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
precedent exists for the proposed change in policy.
the contents of this analysis:
To summarize
{1) none of the cases cited for
the proposition that Congress must retain the right to alter,
amend or repeal t~rritorial legislation dealt with the question
placed before the .Depar~ment by the mutual consent proposal; (2)
the issue of the Conunonwealth of Guam not being a person for
purposes of the Due Process Clause is a r~d herring because the
proposal being discussed by Guam and the Administration
contemplates an agreement between the Congress and the people of
Guam based in-part on the Commonwealth Of The Northern Mariana
Islands and Freely Associa~ed States political status precedents;
and (3) the holding in the POSSE decision provides utterly no
support for the proposition set forth in the Memorandum.
Perhaps no part of the Memorandum is·as disturbing as is the
anal:ysis of the Supreme court's decision in POSSE which is put
forward as requiring the Department's change of its thirty-year
position on the constitutionality and enforceability of mutual
consent clauses.
The Memorandum cfaims the change is required
/
because the Supreme Court held in POSSE "that the (only]
contractual property rights protected by the Due Process Clause
-4-
COPY
�of the Fifth Amendment are the traditional private
rights, such as those arising from
but not arrangement~ that are part
Memorandum at 11.
lo2l
matter of the 6ontract in question, and the Court's reference to
the bond and insurance cases had no direct bearing on the Court's
holding.
Those cases were cited in POSSE for the limited
purpose of contrasting contracts where _Congress clearly evidenced
its intent to bind itself from the facts in the POSSE case where
"Congress expressly reserved to its.elf '(t]he right. to alter,
amend, or repeal any provision of' the Act which a~thorized the·
contracts at issue.
477 U.S. at 42.
The Court relied upon this
contrast because its holding in POSSE was that the Congress could
amend the legislation in question, even if that amendment
interfered with contractual rights,
because it had not
\
unmistakably indicated its intent to bind i tsel.f -- the standard
.·the Court has established for determining whether Congress has
imposed limits on the exercise of its sover!=!ign powers.
The actual holding in POSSE
--that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Trans ohio.
The Transohio decision demOnstra-tes conclusively that
,-
the Memorandum's analysis of the .~holding in POSSE is so
fundamentally wrong that one wonders how it could be relied upon
by the nation's Department of Justice to justify a proposed
..:s-
COPY
�reversal in such an important area of
that decision, the· D.C. Circuit makes
Court reached [its) conclusion by analyzing the governing
statute, the Social Security Act" and focused on the fact
critical to its decision-- "(t]he Social Sec~rity Act
an express reservation of Congress' power to amend the law ... ",
967 F.2d at ~21, not by establishing the per se "private rights"
test asserted in the Memorandum.
According to the D.C. Circuit
The "principles form[ing) the backdrop" of
the Supreme Court'~ analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
that "'sovereign power, .even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.
Id. at 622 (emphasis added).
The D.C. Circuit al~o discussed the history of the
unmistakability doctrine.
"The. 'unmistakability' doctrine is a special
rule of·contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief ,Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding_contracts when it
finds "a consideration sufficiently ~aluable
to induce a partial release" of its sovereign
~
powers.
Id. at ·618.
Bdth the POSSE and Transohio cases dealt with the
-6-
COPY
�,---c------;;-------------~----------
application of the "Uiunistakable terms" test to
of whether Congress has limited its right to exercise
regulatory jurisdiction.
it~
This test has nothing whatsoever
with a standard based on "traditional private contractual rights"
which the Memorandum would have us believe is the-standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by adopting the test
a simple finding that alleged
advocat~d
in the Memorandum with
contract~al
rights associated with
the regulatory programs at issue in the cases are not traditiortal
private contractual rights.
They did not, of course, because the
Supreme Court applies the "unmistakable terms" test which
requires an analysis of Congress' intent, not the per se standard
proposed in the Memorandum.
See, i:h..9:....:.. 1 477 U.S. at 54.
We find it inconceivable that the Department woulddecid.e to
reverse a thirty-year old policy based on a decision which has
_been universally interpreted as suggesting exactly the obposite
of what the Memorandum asserts is the holding -- that Congress
can limit the exercise of its ·regula-tory auth6ri ty if it makes
clear its intent to do so.
4
Instead of dealing accurately with
4
The import of the POSSE decision has been recognized
even by its critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrender of Sovereignty" analyzed the POSSE decision in
great detail. It concluded that "[t]he P?wer to waive
sovefeignty.was recogn·ized" in POSSE. 92· Col. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Court relied entirely on Merrion v.
Jicarilla_Apache Tribe for the propositioh that the federal
government can surrender sovereign power. Jicarilla in turn
relied upon cases involving primarily the taxation powers of
state governments ... Instead of endorsing the rule applying to
-7-
COPY
�the Court's actual analysis, the Memorandum at page 11 relies
-
upon a quote, claimed to set
completely out of context and has nothing whatsoever to
the holding.
02.7
The quote, taken from 477 U.S. 55, fails to include
entirety of the paragraph, the remaining text from which
back into context the relationship of the bond and insuranc~
cases to the basis of the decision.
The following quo~e picks
up the rest of this language beginning.with the last sentence of
the quote from page 11 of the
Memorandum~
This language makes
absolutely clear that what the Court focused'on was the fact that
instead of Congress having stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
477
u.s.
R~ther, the p~ovision simply was part of a
regulatory program over which Congress
retained authorit~ to amend in the exercise
of its power to provide for the general
welfare. Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
at 55
(emphasis added).
the police powe~s -- such powers cannot be surrender~d -- it
adopted the rule applying to taxation powers -- such·powers can
onl~ be surrendered if done so unmistakably.
This move should
not be followed 'automatically: if the Court wants to enforce
contracts that surrender the federal government's regulatory
authority, it should do so on the basis of policy arguments, not
on the basis of POSSE." Id. at 460.
-:-8-
COPY
�Con ress Can Utilize Its Plena
Authorit
Power -- The Greater Includes the Lesser.
to Limit Its
In part, the Memorandum goes astray in its
Congress' plenary authority over the territories.
the Memorandum,
According to
Congress' plenary authority is infinite in time
or at least until one of three things happen:
(1) Guam becomes a
State; (2) Guam achieves independence; or (3) the UnLted States
transfer$ its sovereignty over Guam to another country.
Memorandum at 4.
Thus, the Memorandum seems to suggest. that Congress is
estopped from exercising its authority with respect to Guam if
that exercise of authority results in some form of meaning.ful
consent to the form of government under which the Guamanian
But Congre~s is not the prisoner of it~ plenary
people live.
authority over the territories -- it is the master.
The fact
that Congress has plenary authority does not mean that Congress
can~ot exercise this autho~ity to limit .its rights in the future
in the context of a political status change.
Plenary authority
means that Congress can take whatever action it decides is in the
best interest of the U.S. and the territories, including a
decision that it can limit its own exercise of future authority,
if its intentions are stated in unmistakable terms.
To assert
otherwise stands the meaning of plenary on its head.
Plenary
means full power.
~
It does not mean full power, except when
~
Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
rdispose of a territory or to make all needful rules and
-9-
COPY
�_regulations~
The broad power of Congress under the terr
clause is grounded in the need for the federal governmen
able to govern and/or dispose of territory
state.
In this context, it is clear that if Congress has the
power to dispose of a territory in its entirety, it also has the
power to dispose of some of its control by exercising its·power
to make all needful rules and regulations.
It is an elementary
principle of statutoryinterpretation that the "greater includes
the less".
See, Late Corp. of
the Church of Jesus Christ of
Later-Day Saints v. Romney, 136 .u.s. 1, 45 (1889).
The issue of Congress being able to restrict its authority
over territory of the United States has been long decided.
While
~t first blush it may seem counter-intuitive, Congressional
authority over the people· of the territories and their political
rights emanates from Congress' authority
over Guam as property
brought within Congress' control by the Territorial Clause.
In
Edward v. Carter, the Court clarified Congress' power under the
property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978)
(citations omitted) (emphasis
added).
Further definition was provided in U~S. v. Gratiot, 39 U.S.
526 (1840) where the Court considered Congress' power to impact a
lease of federal lands through legislation.
The Court's approach
-10-
COPY
�to the question is quite interesting and seems to analo
power over land with the power over territorial
First, it finds that the mines in question
territory of the United States are, therefore, its property.
Second, Lt recites the Territoiial Clause and concludes that
the term territory refers is a descriptive word referring to one
kind of property.
Third, the Court concludes that "Congress has the .same power
over [the mine] as o~er any oth~r prop~rty belonging to the
United States; and this power is vested in Congress without
limitation; and has been considered the foundation upon which the ·
territorial governments rest". Id. at 537.
Fourth, the Court then references cases involving Congress'
authority over the territbries,. including Florida, including the
right of Congress ~to m~ke all needful rules and regulations ·
respecting the territory or property of the United States". Id.
at 538.
Finally, the Court concludes "[i]f such
are the powers of
Congress over the lands belonging to the
Un.ited States, the words
I
'dispose of,' cannot receive the construction
contended for at
the bar; that they vest in Congress
the power only to sell, and
not to lease such lands". Id.
The Court's concept which forms the basis of these opinions
is that the greater intludes the lesser.
The Court reached its
decision building on Cdngress' authority over the territori~s.
If Congress has the power to dispose of territories or to make
-11-
COPY
�all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
The Result of the Department's Opinion is to Leaves the People of
Guam with a Hobson's Choice -- Remain in a Perpetual State of
Colonialism or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policy implications for United States
security interests in Guam and the Pacific Region, not to mention
the United States' moral leadership on the issue of granting
democracy to non-self-governing people around the world.
The
Memorandum begins by defining Guam as a "non-state area, a catchy
pseudonym for what Guam really is -- a territory, and U.S.
citizen population, which the U.N. officially classifies as not
yet having been decolonized, and which has no realistic prospect
of achieving statehood -- the traditional path by which U.S.
territories ceased being colonies and became self-governing in
our constitutional system.
Fortunately, the Territorial Clause gives Congress the
constitutional power to address this problem.
In the Insular
Cases the Supreme Court recognized that Congress must have
flexibility to adapt federal law and policy for island
~
territories which remain "unincorporated" for an extend.ed period
of time, and which remain subject·to federal power without being
integrated into the system of constitutional federalism --12-
�l~aving
the U.S. citizens concerned without equal legal
political
righ~s
when compared to citizens resident in
states.
status is fundamental to the Administration's decision to pursue
a mutual consent provision.
Mutual consent brings to the people
of Guam democracy by giving them a direct. role in their own
internal self-government which would not otherwise be
available. 5
'I
· By rejecting absolutely any possibility that the
Supreme Court may uphold a mutual consent clause in a political
status arrangement, the Department of Justice is putting.this
Administration in the untenable position of saying to the U.S.
citizens of Guam that theycannot have meaningful self-govern:rnent
within the framework of the u.s. Constitution.
We do not think
this.is a position which this Administration ought to be taking,
especially when the Supreme Court has not spoken directly to the
5
The American-citizen residents of·Guarn do not have.the
same rights to participate in the representative democracy
enjoyed by the citizens of the several States. Without voting
representation in Congress or a vote in national elections, there
is no means by which they meaningfully can.consent to the laws
and form of government under which they live. This colonial
status was awkward even in its first fifty years, but has become
intolerable since the U.N. Charter was adopted and the era of
decolonization began .. Guam is not seeking decolonization outside
the U.S. system,. and it would bj! perverse to suggest·that
decolonization is not availabl~ to u.s. citizens within the U.S.
political system. Thus, the question facing the Administration
is whether a nation founded on. the principle of consent of the
gov~rned can adapt its law and policy to end denial of this basic
right and establish an appropriate alternative means of consent
for loyal citizens in the territories~
-13-
COPY
�question
that arguments exist on both sides of the question.
The effect of the Department's changed position is
leave
the people in a perpetual state of colonialism or force
independence.
The Clinton Administration has been the first to
state with candor and honesty on the record what all those who
have dealt with Guam have known for years -- Statehood is not an
option for Guam.
It is simply too small.and remote.
Similarly,
given Gua~'s strate~ic importance to the United States, it is
inconceivable that sovereignty would be voluntarily transferred
to another sovereign power, nor do we b~lieve that the people of
Gua~ would accept it.
The
clear implication of ihe Department's
position, therefore, is'that the American citizen
residents of
Guam, if they desire to possess a truly democratic government,
will have no choice but to seek independence from the United
States.
The notion that independence is the only political status
outcome through which the injustice of Guam's colonial past can
be remedied is not only counter to the robu.st common sense with
which Alner-icans have implemented their Constitution, it is a
. dangerous, fatalistic and cold-hearted idea that will have a
chilling effect on the spirits of the Guamanian people.
L.eaving independence as the only alternative also raises
seriods national security policy questions~
Policy coordination
for Guam Commonwealth negotiations is exercised by the National
Security Council because Guam is an important military and
-14-
COPY
�strategic location for the United States.
A decision h
I
made by 'the White House that an agreement should be rea·hed with
the people of Guam which achieves' two fundamental goals.
the people of Guam should be permitted to achieve meaningful
internal self-government free from unnecessary interference.
Second, United States long-term security ~nterests must be
protected.
Offering the people of Guam the opportunity to
achieve meaningful participation in a democracy only by forcing
them to seek independence is inconsistent with the second of
these goals.
We do not believe that this Hobson's Choice ought
to be forced upon· the United States or people of Guam based on
conclusions of anyone other.than the Supreme Court.
This is a policy issue which is best left to the courts, .if
a challenge ever arises.
In this regard, the Department's
concern that no one should be misled concerning the certain
viability of a mutual consent provision is cohsistent with our
position.
We have consistently taken the position in the
negotiations that no one can. be sure how the issue will be
decided.
The best we can do is to meet the. requirements the
Supreme Court has set out as being necessary for Congress to bind
itself (a statement in "unmistakable terms") and state
forthrightly in the political education process that we cannot be
sure of the outcome untii the Supreme Court has acted.
It is
wel.i established, however, that when the~ intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
-15-
COPY
�837, 842-43 (1984).
It is equally clear that the
great deference to Congress when it is exercising its
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d
citing· Torres v. Puerto Rico, 442 U.S.465, 460-70.
In
know of ~o decision of the Supreme Cour~ reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.
Attachments
-16-
COPY
�U1l
APPENDIX A
Insular Areas Not Incor orated into the U.S. Constitution
Process for Democratic Self-Government But In Which the u.
Retains and Exercises Sovereignty and/or Significant
Government:
BACKGROUND:
Under a succession of t~eaties with other nations and
international organizations including the U.N., in this century
the u.s~ has acquired and exercised actual sovereignty and/or the
full powers and jurfsdiction of government over insular areas
(islands) which have not been incorporated as territories or
states to which the U.S. Constitution applies in full. Thus,
these areas are not fully self-governing and have no power to
give consent 'to u.s. laws made applicable to them.
·
As each of these territories has moved toward greater selfgovernment the u.s. has agreed to various political, legal and
budgetary measures which accommodate u.s. interests in retaining
certain powers of government, .while at the same time redeeming in
some greater degree the principle that free people must be
.enabled to give some meaningful form of consent to the laws and
form of government under which they live.
·In the case of u.s. territories over which the U.S. exercises
full sovereignty, but which have not been incorporated fully into
the system of federalism, measures aimed at enhanced selfgovernment have attempted to address the fact that the U.S.
citizens. concerned do not have voting representation in Congress,
enfranchisement in nat~onal elections or general legal or
·
political equality with their fellow citizens in the states.
For example, in the case of the-Commonwealth of the. Northern
Mariana Islands (CNMI), as discussed below, the Executive .Branch
of the federal government and Congress entered a "Covenant," or
agreement·with the people of the territory, under which the U.S.·
exercises. sovereignty, but which defines a political relationship
the central elements of which are not subject to modification
without mutual consent of t~e people of the territory and the
federal government.
. ·
This mutual consent arrangement constitutes a substitute set of
political rights intended to give the people of the CNMI a
greater measure gf democratic self-government by granting them a
political power of consent to federal law not granted to U.S.
citizens in the states, who instead are able to give their
consent to federal law through representation in Congress and
voting in national elections. This type of mutual consent
COPY
�arrangement has been prom~lgated by Congress pursuant t the
Territorial Clause of the Constitution (Article IV, Sec ion 3,
Clause 2), which empowers Congress to provide- for· areas ot yet
fully within t;he constitutional system but subject to U.
federal l~w and sovereign powers.
For insular areas.over which the u.s. exercised powers of
government but not sovereignty under agreements with the U.N.,
the federal government promulgated mutual consent provisions
through a·cornbined statutory and treaty-making process:
Under
these arrangements the u.s. retains plenary authority over broad
areas of government power in the concerned insular areas, i.e.,
full defense authority, while the separate citizenship,
sovereignty and national independ~nce of those insular·areas have
been recogni.zed. This arrangement is known as "free
association."
The compact agreements establishing the free association
relationships between the U.S. and certain insular areas have
been approved by the u.s. Congress in the form of joint
resolutions passed by both houses and.signed by the President.
Like ,the CNMI covenant and the proposed Guam Comni.onwealth Act,
the u.s. federal statute approving the free association compact
was intended to create a unique and mutually agreed political
status for insular areas not incorporated into the u.s., but with
special close political, legal-and security ties to this nation.
The fact that Guam and the CNMI are unincorporated.territories,
while the freely associated states under the compacts.are
sovereign, does not change the legal or constitutional analysis.
These acts of Congress which bind the federal government and
limit the exercise of constit~tional powers eithe~ are
constitutional ~rid enforceable or they are not.
There is no valid constitutional distinction between the·mutual
consent provisions in the free association compact and the CNMI
covenant or proposed Guam Commonwealth Act simply because the
power of Congress which is being limited involves foreign policy
and national defense powers arising from Article I or Article.!!
of the Constitution, or if the subject matter gives rise to
Article IV territorial powers.
The general concept that Congress can .alter, amend or repeal the
laws of purely domestic application has its ~arallel with respect
to laws and treaties which create obligations between the U.S.
and other. nations.
Spec,ifically, an .element of sovereignty ip
the power to abrogate treaties, and in the u.s. constitutional
system the President and Congress have the power to make treat7ies
and terminate treaties. ·Goldwater v. Carter, 617 F.2d 697 (D.C.
Cir. 1979). . As discussed below, in addition to formal
ren4nciation of a treaty by the President, Congress can terminate
or prevent·perforrnance of treaties· requiring appropriations
simply decline to appropriate f~nding to meet international
obligations.
This has the effect of superseding the prior act
COPY
�~,oN
..J
Thus, the question before us is whether Congres~ can li it its
power to amend, alter or repeal a prior act so that co ;itments
intended to be binding are set aside, and that question is
relevant to any act of Congress which purports to make uch
·~
binding commitments, including the statute making the fr
~~
association.compacts U.S. law.
r~
of the Congress ratifying the treaty.
(J
UJ7
We· believe the test under POSSE for answering tha.t question turns.
on whether Congress makes its intent to do so unmistakably clear.
If the position set forth in DOJ Memorandum stands and the
Depar.tment of Justice reverses prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisions in the CNMI covenant, the free association compacts
arid the proposed Guam Commonwealth Act are unenforceable and
unconstitutional, then the effect of that could reach far bey6nd
the Guam mutual consent proposal.
For example, the mutual consent provisions relating to the
political and legal relationships created 'by the free association
comp~cts are linked to ·unprecedented multi~year funding
authorizations that bind successive Congresses to enact
appropriate laws providing funding for specified grants to the
governments of the free associated insular areas.
These
provisions are enforceable in khe federal courts, and give the·
free associated state governments concerned access to domestic
u.s. legal remedies that foreign governments do not nave under
conventional U.S. laws and treaties.
To illustrate the point, as a general rule if Congress .refuses to
fund.U.S. performance of a treaty, it is extremely unlikely that
without an explicit statutory basis for jurisdiction the federal
courts would be inclined to reach beyond the political question
doctrine and interfere in the foreign policy domain of the
political branches by entertaining an action by a foreign
government seeking a court order to compel .payment of funding for
U.S. obligations under a treaty abrogated by the ~resident or
Congress. Yet, under the fre~ association compacts, that is
exactly what Congress has explicitly authorized and directed the'
federal courts to do. See, Section 236, P.L. ·99-239, discussed
·
below.
J
Similarly, in Section 10l(d)(2)(B) of P;C. 99-239, the statute
approving the compacts, Congress required that amendments to the
compact and certain rel~ted agreemei)tS made pursuant to the
applicable mutual consent provisions would require congressional
approval. Thus, Congress by statute explicitly agreed to the
mutual consent provisions in the agreements identified in Section
10l(d)(2)(B) and established a role for Congress in the procedure
for U.S. consent to an amendment.
Thus, just as the mutual consent provisions of the CNMI agreement
limi.t ·the exercise of Article IV territorial clause powers by
COPY
�~"ON P!f~
C,ongress, the mutual consent and related funding provisio 'of
15'0
the free association compacts limit the exercise of Arti le I and
Article II foreign ·policy and defense powers by the Pres'dent and .
Congress. These unprecedented arrangements are intended\ to (o;;)_l
enable the u.s. to sustain its authority over areas in w ich it
~
has significant national interests, but in which the peop e do
~--?>~
not enjoy the full rights and benefits of incorporation in
the ~~
U.S. federal political and legal system.
To understand the gravity of the problems that will be created if
the·Department of Justice persists in what we believe is a
misinterpretation of the POSSE decision, it is important to
examine the existing mutual consent prec~dents very closely.
.
·.
. EXISTING MUTUAL CONSENT PRECEDENTS:
The first of the existing mutual consent precedents is found at
Section 105 in the Covenant to Establish the Commonwealth of the
. Northern Mariana Islands, U.S. Public taw 94-241, 90 Stat .. 263
(1976), reprinted at 48 u.s.c. 1681, note.
The additional
important insular area mutual consent precedents are given the
force and effect of u.s·. law pursuant to the agreements referred
t6 in Sectiori 101(d)(2)(B) of the U.S. statute approving the
Compact of Free Association between the u.s., the Republic of the
Marshall Islands (RMI) and thee Federated States of Micronesia
(FSM), U.S. Public Law 99-239, 9~ Stat; 1770, 48 U.S.C. 1681,
note. ·The CNMI, FSM and RMI mutual--consent provisions became
effective under Presidential Proclamation No. 5564 of October 3,
1986, Federal Register Vol...,51, Number 216, November 7, 1986.
As already stated, the RMI and FSM compacts also bind successive
Congresses through a pledge of the full faith and credit of the
U.S. for economic assistance grants which are central elements of
the political relationsll.ip defined in the compact as an agreement
between the U.S. and the peoplesof the RMI and FSM exercising
their sovereignty by approving the agreement in a plebiscite.
See, Preamble and Section 236, Compact of Free Association, P.L.
99-239.
These multi-year funding obligations are not "subject to
appropriation by Congress," the typical treaty formulation, but
are enforceable in the u.s. courts, which are expressly granted
jurisdiction to enforce the payment obligations ,in the compact.
Thus, Congress has restricted its ability to alter, amend orrepeal those statutory obligation~ of its own making.
THE CASE OF PALAU:
A fourth mutual consent precedent is scheduled to enter into
force on October 1, 1994 under the terms of a Compact of Free
Association between the U.S. and Palau.
COPY
�0
~"ON P~l:.
t)·l
~
•.
Ill.
The Palau compact implementation agreement .1. s ter.minab (J ~oL
unilaterally by Palau or the U.S., but once the Compac ·enters
into force, under Section 453(a) of U.S. Public Law 99 :ssa, 100
Stat. 3700, 48 U.S.C. 1681, note, the Palau compact mu ual
consent provision and all the related rights and obliga 'ens
under the agreement will be binding upon both Palau ahd t
United States.
If the DOJ Memorandum of July 28 is applie~--~
the Palauan cOmpact mutual consent provision there·may be reasons
not to go· forward with implementation. ·
The U.S. currently is under no legal.obligation to implement the
Palau Compact, and even though the Palauans have approved the
. Compact the government of that insular area has no rights under
the agreement until it enters into force by mutual agreemeht, and
Palau :has no right to an arrangement with the U.S. which is
.enforceable or unconstitutional -- even if that arrangement.
achieves impoitant U.S. goals such as ~ranting Palau selfgovernment and ending the U.N. trusteeship under which the u.s.
has the ultimate powers of government in Palau.
Thus, implementing the Compact for Palau is not a case of
honoring a previous commitment on mutual consent, but of creating
a riew one. If mutual consent.clauses binding Congress are
unenforeeable and unconstitutional; the u.s. should unilaterally
terminate the implementation agreement as provided for in Article
II, Section 4 of that agreemen-t, and· seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
It would be bad faith to implement the Palau Compact knowing that
key provision is unenforceable and unconstitutional under u.s.
law. Under the Vienna Convention on the Law of Treaties, to do
so could give rise to international legal issues affecting
enforceability of the compact. For the DOJ Memorandum of July 28
puts Palau on notice·that the mutual consent agreement contained
in Section 453(a} is viewed by the U.S. legal authorities as
unenforceable.
a
Yet, the Section 45J(a) mutual consent ar.7:angernent with Palau -.which gives the U.S. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity -- is the single
most significant provision which justified to Congress the huge
economic grants contained in the funding Sections of the Palau
compact. · As in the case of the FSM and RMI, those funding
grants are backed by the full faith and credit of the u.s. and
enforcea1ble in the federal courts.
·1
If the Palau compact takes effect and the mutual consent
in Section 453(a) is unenforceable; it would appear
that the massive u.s. funding obligations under Title Two of the
compact for Palau would survive under the terms of Section
452(a), even if the u.s. followed the procedure under Section 442
to terminate the free association relationship due to loss of the
defense rights which were to extend beyond the initial period of
provi~iori
COPY
�t
oxnpact.
strategic denial is what the u.s. would be abe to
under continuation of the U.N. trusteeship, and s
; ffj~~ic denial that lasts berond the agreed period of f
·
~~Pv~~tion under the compact ~s what Congress demanded in or er
J~fpv1-tify over $450 million in grants to a community of 14,000.
~f! ~v£1 Department of Justice wants the Administration to give
~~P?p~~at Congress approved. in P.L. 99-658 just to w~n a debate·
~ vtual consent for Guam, shouldn't Congress b~ ~nforrned?
f
#
~t.lal
I
'a
~~~~ P'~heon mutual
decision
7.~~
, n
Dep.artmen~
ch~nge
of the
of ·J. ustice to
its
.
consent does not impact on Guam alone.
The ·
0
~) p~~~ediate impact may be on Palau. ·Of course, the Department
·~ lf }tice may not have.the authori~y ?r·ability simply to choose
~f~vPo~ what must"be v~ewed under ~ts theory as an
~~fjt1f"~itutional and inchoate mutual consent commitment between
g~
PG. and Palau.
Indeed,· the notion that individuals in the
~~ ~~'J government have that degree of discretion in ~undamental
~~~ f'!? such as this itself.raises constitutional issues.
f
:f~~~/ 4 8in,
even i f the Departme.nt ·of Justice is as generous with ·
p~ to honoring a mutual consent cornmitment.to Palau as it
~f.
ready to be, a question may arise as to whether the U.S. ·
~~h~~~~ able to enforce its rights or meet its obligations under
.~ ~t~~e~u mutual consent·provision.
On the face of things
f)~1 ~~ 453(a) and the related provisions of Section 311 seem to
J~{ff,tJ~~~fit tp the U.S. which it simply can enjoy by deciding to
i~~
v
~~~ttY'jtt
~~~~~
h~
~
,ew may be folly.
If the same litigious parties in the
J} Palau who have mounted legal challenges to the military
~~j t1~ 0 ns of the compact tirelessly for the last fifteen years
~~1 1 ~1-~n ju~isdiction to challenge the validity of the Section
J 1 f/jt~t.ltual consent provision in our own courts, and prevail
&f
~ ~) ~
J
e
aid of the DOJ Memorandum, it appears that U.S.
lfA Y]p ~ could end up paying Palau for defense authority tied to
'4~~k;~r
~~~~t
~~~~~
consent provision in Section 453(a) rendered null and
Peen seized with what Palau and the U.S. prudentially must
~umptively as a serious substantive legal infirmity in a
~~~~ 4fe~ that is fundamental to the purpose of the agreement
N'lk
f~fO its entry into force, will the parties be able to rely
ltr~ ~~~enforce the reciprocal and interdependent rights and
~J /~{; f, 0 ns set forth in the agreement? In not, are the U.S.
jf ~Njf~~}obligations linked tO the defense authority and mutual
fl flf~ 1"4 ~revisions severable so that the u.s. would be able to
I {;~~Afv e itself from the full faith and credit payment
t*%~~~~;ents if the defense rights proved unenforceable?
Y.z~~~~~~e~
~~~~'t~p·
~z~Jl f
~l
to both those questions arguably would be in the
C0 PY
�We raise these issues not because we believe that the p
mutual consent provisions __ are either unenforceable or .
unconstitutional. Rather, we use them to show the bas 'c
inherent in the Justice Department's approach. When t e
covenant and the compacts were negotiated, Justice supp
mutual consent clauses. Nothing has changed since then.
the POSSE case has caused a rethinking of this sUpport and
merely explains the test that must be employed to determine
.whether Congress bound itself validly to a limitation on the
exercise of its·power. It did not establish a per g
rule. to
the contrary.
To avoid the perverse result that could come about by applying
the position set forth in the Memorandum to Palau's. mutual
.consent compact, the DOJ Memorandum of July 28 should be
withdrawn immediately._ That would allow the Palau compact to be
implemented and enable the parties to'the Guam commonwealth
negotiations can move forward with the process of defining an
acceptable mutual consent relati6nship as endorsed by Secretary
Babbitt during his trip to Guam.
COPY
�APPENDIX B
SECTION-BY-SECTION ANALYSIS. OF THE
MEMORANPUM FOR THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALTH DATED JULY 28, 1994
RE: MUTUAL CONSENT PROVISIONS IN THE
GUAM ·cOMMONWEALTH LEGISLATION
FROM THE·DEPUTY ASSISTANT ATTORNEY GENERAL
Introductory Paragraphs - pp 1-2.
The Department's Memorandum correctly recognizes. that the inclusion of mutual consent clauses in the Commonwealth
legislation is crucial to the people of Guam, referencing as the
reasons autonomy and economics.
While economic development is
clearly a consideration, the reference.to autonomy is misleading.
It is true Guam seeks control over its internal affairs.
autonomy is less the goal than democracy.
But
The American-citizen
residents of Guaci do not have the same rights to participate in
the repr~sentati~e democracy enjoyed by the citizens of the
several States.
If the citizens of the Guam maintain their
residence there, they elect vot.ing members of neither the House
I
nor the Senate, nor can they vote in presidential elections.
.
.
They are effectively excluded from the most fundamental aspect of
our democratic system -- the right of U.S. citizens to give some
form of meaningful consent to the laws and form of government
under which they live.
The circumstances of the people of Guam·today are the direct
consequence of almost 100 years of American rule, a period during
09/15/94, 11:59am
20029980
COPY
�which the U.S. has exercised sovereignty over Guam witho
incorporating it into the U.S. system of constitutional \
federalism.
No level of economic development
perpetual second-class citizenship.
A process must be created
which will lead to resolution of Guam's status as a non-selfgoverning area under the U.N. Charter.
U'ntil Guam is decolonized
it will be a living contradict~on of U.S. moral opposition to •
colonialism.
Thus, the fundamental question which the people of Guam and,
indeed, which this Administration must ask today is similar to.
that question asked by the leaders of the American revolution
--
can a nation, founded on the principle that-government acts only
with the consent of its people continue to deny basic rights of
s·elf-goverrunent to some of its citizens solely because they live
in a terri tory? 1
The DOJMemorandurn recognizes that for the past thirty
years, the Department has suppor~ed the constitutionality and
enforceability of mutual. consent clauses. 2
Appendix A
1
In footnote 1, the Memorandum chooses to define _Guam as a
"non-state area", a catchy pseudonym for what Guam really is-- a
colony of the United States. This is why people in the
territories object to their-territorial status. As a territory
they are precluded from the democratic system.
The Guam
Commission on Self-Determination, however, does not claim that
the legal implications of being a territory do not apply to them.
It is because they recognize that being a territory leaves them
out of the democratic process that they seek mutual consent.
2
Unfortunately, the Department has refused to provide us
with any of the prior opinions supporting mutual consent clauses.
09/15/94, 11:59am
. 20029980
2
COPY
�~--------~--------------~------------~--------------~------------------------------------
accompanying this document reviews the legal and ·poli tica .·
of reievant prior mutual consent precedents, as well as t'e
v;;Il
pending entry into force of another mutual consent arrange
We do not understand how the mutual consent provisions in these
other acts 9f Congress will be "honored" by the Department while
a similar provision proposed f6r Guam is unenforceable.
Memorandum at 12.
See Appendix A .
. Neither the relevant provisions of the
Cons~itution
nor
applicable cases support different standards for the kind of
mutual consent arrangements involved in these insular political
status relationships.·
~ongress
Nor
~an
it be argued that an Act of
in connection with the CNMI covenant or Compacts of Free·
Association is any different or more binding on Congress than an
Act adopting the Guam Commonwealth would be.
An Act of Congr~ss
is. either constitutional and enforceable or it is not. If the
Department intends to support the mutual consent provisions in
these other Acts and does not intend to
inte~fere
with
implementation of the Palau Compact, it must apply the same
policy to Guam.
To quote the Memorandum at p . .2 -- "[i]n our
view, it is important that the text of the ... Act not create any
illusory expectations that might to (sic) mislead the
electorate ... about the consequences of the
legi~lation".
In the end, note 2 makes clear that the foundation for the
proposed change in position .on mutual consent clauses is the
Supreme Court's decision in Bowen v. Agencies Opposed to Soc.
09/15!94, 11:59am
20029980
3
COPY
�- - - - - - - - -
Sec. Entrapment, 477 U;S. 41 (1986)
"POSSE").
------------
(popularly referred
As discussed in great detail infra, POSSE does
Congress from limiting its right to exercise sovereign pow r by
entering into a binding contract, nor does it establish a·per.,..,...-test that Congress can only bind itself when entering into
contracts dealing with
tradition~!·
private rights.
In fact,
POSSE dealt with the exercise of a regulatory right, and turned,
not on the nature of the contractual right at issue, but on a
determination of whether Congress had expressed an intention to,
· bind itself in "unmistakable terms".
The following section-by-section analysis demonstrates that
none of the cases cited in the Memorandum leads to a certain
conclusion that the Supreme Court would restrict Congress'
ability to enter into a political status arrangement with Guam
based on mutual consent.
Section I. - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty_of the United States is Plenary with
Constitutional Limitations -- pp 2-4.
The DOJ Memorandum would lead us to believe that the Supreme
Court has already decided that Congress cannot limit its exercise
of authority over the territories because its authority is
plenary.
In this regard, the Memorandum seems to argue that this
plenary authority is infinite and must remain unencumbered in
perpetuity-- or at least until the U.S. alters Guam's statris ..
09/15/94, 11:59am
20029980
4
COPY
�Memorandum at 4.
Thus, the Memorandum argues that Congress actuall
estopped from exercising its authority with respect to
that exercise of authority results in some form of meaning
consent to the form of government under which the Guamanian
people live.
But Congress is the master, not the prisoner of its
plenary authority over the territories.
author~ty,
If Congress has plenary
it follows that Congress can exercise this authority
to limit the types of measures it will take pursuant to that
authority if that is in the best interests of the U.S_. and the
To
territory.
its head.
assert otherwise stands the meaning of plenary on
Plenary means full power.
It does not mean full
power, except when Congress attempts to exercise it.·
Under the Territorial Clause, Congress has the power to
dispose of a terri~ory or to make all-needful rules and
'regulations.
If Congress has the power to dispose of a territory
in its entirety, ·it also has the pow-er to dispose of ·some of its
v
.
control by exercising its power to make all needful rules and
regulations.
It is an elementary principle of statutory
interpretation that the "greater includes the less".
Church
v. U.S, 136 U.S. 1, 45 (1889). 3
See, Morman
Similarly, in Collins
3
While a distinction obviously exists between the .
Government's rights to abrogate property rights and the issue of
its authority to exercise political power i_n the territories, the
Supreme Court's frequent statements that the Government can bind
itself do not appear to be limited to commercial-type contracts.
The Court has, for instance, upheld limitations on federal
political powers in areas ceded to _the federal government by the
09/15/94, 11:59am
20029980
5
COPY
�v. Yosemite Park & Curry Co., 304 U.S. 518 (1938), the
upheld an agreement between California and the Federal
overnment
which reserved certain rights to California when it cede
Yosemite Park.
The Court concluded that the Federal Government
and the states could enter into agreements concerning
jurisdiction over property within their borders, and the courts
should "recognize and re~pect" the agreements.
304 U.S. at 527-
For instanbe, the Supreme Co~rt has approved of the
30.'
•
•
0
Government's right to lease mineral rights.
Gratiot, 39 U.S.
See United States v.
(14 Pet~) 526, 536 (1840)("it lies in the
discretion of Congress, acting in the public interest td
·determine how much of the property it shall dispose. ") .
Ashwander v. T.V.A.i 297 U.S.
In·.
288 (1936), the Court approved a
contract for the sale of electricity, rejecting an argument that
the Government lacked constitutional authority to dispose
partially of its property by contract and relying on Congress'
states pursuant to the Territorial Clause.
In Fort Leavenworth
R.R. v. Lowe, 114 U.S. 525 (1885), 'the Court upheld an agreement
between the Federal Government and Kansas dividing taxing
authority.
The Court stated:
Though the jurisdiction and authority of the general
government are essentially different from those of a
State, they are not those of a different country; and
the two, the State and the general government, may deal
with each other in any way they may deem best to carry
out the purposes of the Constitution.
Fort Leavenworth, 114 U.S. at 541 .
. 09/15/94, I 1:59am
20029980
6
COPY
�authority under the Territorial Clause.
Id, at 330-36. ;;
/'
I
None of the cases cited in.the Memorandum are to
contrary.
in
the
r~gard
Each of them sets forth the general proposit
to the tsrritories, the Congress is supreme.
earli~r
cases were required to make this point because the
Territorial Clause was included to make clear that it was the
Federal Government and not the States that would exercise control
over the Territories.·
See,~'
A. Leibowitz, Defining Statute
(1989) at 10-11; See also, District of. Columbia v. Thompson Co.,
346
u.s.
100, 109 (1953).
But, none of the cases cited in this
5
The Congress also has authority to dispose of property
rinder the Territorial Clau~e. This p6wer iricludes both the
absolute right to dispose of property in its entirety or to
dispose of part of the governments rights in property:
Of course, a significant difference may exist between the
disposition of property and the disposition of sovereign
authority. Nevertheless, the conclusion that Congress can
partially dispose of matters over which it has the power of
total disposition has considerable logical appeal.
If.
Congress could totally dispose of its power over the
Philippines by granting them independence, it seems logical
that it could also partially dispose of its powers by
granting them something le.ss than complete ·independence.
Whether Congress could later change its mind as to the
· partial disposition is not clear, but some kinds .of
dispositions are by nature final.
For example, if Congress
disposes of its powers over territory by admitting it as a
state, that.wouid seem a final disposition of its
territorial powers; Congress cannot change later the status
of a state.
Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial power
over them for all time.
Inventive Statesmanship vs. The Territorial Clause: The
Constitutionality of Agreements Limiting Territorial Powers, 60
Va. L. Rev. 1041, 1060-61 '(1974).
09/15/94, 11:59am
20029980
7
COPY
�section address directly the question of whether Congres
exercise its plenary authority by restricting its abilit
in the future.
The Memorandum bases its assertions about Congress' plenary
authority on Gibbon~- v. Ogden, 22 U.S.
(9 Wheat) 1 (1824).
That
case, of course, is the. s~minal decision establishing Congress'
power under the Commerce Clause.
It has nothing whatsoever to do
with the.Congress' Territorial Clause authority.
.apparently cited to establish the
~r6pOsition
It is
that in
so~e
express areas Congress' power "acknowledges no limitations, other
than are prescribed iri the Constitution''.
We think it should be
?bvious that the Department's pioposed changed opinion on mutual
consent . is entirely inconsistent with this principle .. Rather
than recogniziri~ the scope of Congress' powers, the Department is
claiming that a limitation exists on Congress' power -- that
Congress is imprisoned by its plenary pow~r and cannot exercise
it to limit itself.
In fact, several of the other cases cited in
the Memorandum to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County .of Yankton, 101 U.S. 129 (1880).
The Memorandum utilizes
a quote to establish that Congress is supreme in the territories.
But this quote has nothing whatsoever to do with whether Congress
can act to limit its ·authority.
Unfortunately, what has been
left out from the quote are the next two sentences which bear
09/15/94, 11:59am
20029980
8
COPY
�directly on the issue presented by the mutual consent
the analysis the Supreme Court adopted in POSSE whether
·has limited its right to exercise sovereign power.
.The
apparently addressing the issue that·Congress had not express
reserved the right to amend acts of a territory stated:
In the organic act of Dakota there was not an
express reservation of power in Congress to
amend the acts of the territorial
legislature, nor was it necessary. · Such.
power is an incident of sovereignty, and
continues until granted away.
101
u.s.
at 133 (emphasis added).
Clearly, the implication of this decision is that while Congress
has full power it has the right to grant it away. 6
While the next case cited, Hodel v. Virqinia Surface Mining
and Reclamation Assoc., 452 U.S. 264, 276 (1981), lik~ Gibbons v.
Ogden~ does not deal with the Territorial Clause, it does
describe accurately the standard the Court applies when
determining whether Congress has acted within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine whether a particular exercise of
congressional power is valid under the
~ Similarly, American Insurance Co. v. Canter, 26 u.s. 511
(1828) and Downes v. Bidwell, 182 u.s. 244 (1901), cited in the
memorandum to establish the extent of Congress' power, do not
address the issue of whether Congress can act to limit its
authority.
09/15/94. 11:59am
20029980
9
COPY
�Commerce Clause is relatively narrow. The
court must defer to a congressiorial
finding ... if there is any rational basis for
such a finding ... This ·established, the only
remaining question for judicial inquiry is
whether "the means choseri by (Congress] must
be reasonably adapted to the end permitted by
the Con~titution;" ... The judicial task is at
an end once the court determines that
Congress acted rationally in adopting a
particular regulatory scheme.
452 U.S. at 276 (emphasis added).
This test recognizes the great deferertce the Couit gives to
an exercise of power by Congress.
If Congress were to conclude
that a mutual consent clause is within its power and that such a
.clause is necessary to achieve Congress' purpose of granting
greater self-government to Guam, can anyone say with certainty
that the Court will not believe that a sufficient rational basis
exists.
If it does, not even the Memorandum assert.s that
anything in the Constitution specifically bars a mutual consent
clause.·
It is well established that when the intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
It is equally ~lear that the courts give
great deference to Congress when it exercises its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The incorporation analysis thus must be
undertaken with an eye toward preserving Congress' ability to
09/15/94, 11:59am
20029980
10
COPY
�accommodate the unique social
of the particular territory.
More over, we must be
restricting .congress' power in this area."), citing
Puerto Rico, 442 U.S.465, 460-70 (emphasis added).
In
know of no decision of the Supreme. Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority ..
Norie of the. rest of
th~
c~ses
cit~d
for
th~
proposition that
Congress' power continues indefinitely address the question of
whether Congress can limit its
~bility
territories without their consent.
(1894)
c~n
to act in regard to the
Shively v. Bowlby, 152 U.S. 1
pro~osition
be cited only for the
that it is the
Federal Government and not the states which exercises control
over the territory of the United States.
It did not address in
any way whether the Congress can limit its authority to act over
this territory.
u.s~
Similarly, Hooven & Allison Co. vl Evatt., 324
652 (1945),
can be cited only for the self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers would not be exercised during the transition
was not addressed.
Congressional authority over the people of the territories
and their political rights is derived from Congress' authority
09/15!'94, 11:59am
. 20029980
11
COPY
�over Guam as property brought within Congress' control
Territorial Clause.
In Edward v. Carter, the Court
Congress' power under the property clause, stating:
Thus, it appears that in referring t6
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
cho~en by Congress.
·
580 F.2d 1055, 1061 n. 18 (1978)
(citations omitted)
(emphasis
added,).
Further definition was provided in
u.s.
v. Gratiot, 39
u.s.
526 ( 1840) _where the Court considered Congress' power to impact a
lease of federal lands through legislation.
The Court's approach
to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, i t finds that the mines in question lie with
territory of the United States are, therefore, its property.
Second, i t recites th~ Te~rit6rial Clause and concludes that the
term territory refers is a descriptive word referring to one kind
of property.
Third, the Court concludes that "Congress has the
same power over [the mine] as over any other property belonging
to the United States; and this po~er is vested in Congress
without limitation; and has been considered the foundation upon
which the territorial governments rest". Id. at 537.
Fourth, the
Court theri references cases in~olving Congress' authority over
the territories, including Florida, including the right of
Congress·"to· make all needful rules and regulations respecting
09/lS/94, !1:59am
20029980
12
COPY
�the territory or property of the United States". Id. at 5
Finally, the Court concludes ''(ilf such are the pow~rs of
Congress over the lands belonging to the United Stat~s,
"dispose
of~"
cannot receive the construction contended for at
the bar; that they vest in Congress the power only to sell, and
not t6 lease such lands".
'
Id.
The· Court '.s concept which forms the basis of these opinions
lesse~.
is that the greater includes the
The Court reached its
decision building on Congress' authority over the territories.
If Congress has the power to dispose of territories or to make
all needful rules and regulations, it must then also have the
power to limit l.ts poli~ical control over the people of the
territory just like i t has the right.to limit its authority over
territory by leasing it.
Section II - "The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp 5-6.
·
This section of the ·Memorandum offers nothing more than a
restatement of the "principle" asserted in Section I -- that
Congress'. plenary authority does not include the right to limit
the exercise of this authority in the future by way of a mutual
consent clause.
As with Section I, the cases relied upon in this
section do not deal with the issue of Congress exercising its
plenary authority in this way.
Clinton v. Englebrecht, 80 U.S. (13 Wall) 434 (1872) does
not
e~tablish
a rule that any delegations of authority to a
09/15/94, I 1:59am
20029980
13
COPY
�territory "must be 'consistent with the supremacy and
of National authority'" as asserted in the Memorandum
The case did not address whether Congress could irrevocabl
its right to alter a law because of a mutual consent clause, nor
The qutite is dicta and deals ~ith
did it use the word "must".
how Congress had approached local gover~ent up to that time.
The actual quote is as follows:
The theory upon which the various governments
for portions of the territory of the United
~states have been organized, has ever been
that of leaving to the inhabitants all the
powers of self-government consistent with the.
supremacy ~nd ~upervision of National
authority, and with certain .fundamental
principles established by Congress.
80 U.S. at 441 (emphasis added).
This quote establishes nothing more th~n the hi~torital fact that
Congress in its approach to self-government for the Territories
had not agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co., 302 U.S. 260 (1937) adds
nothing to the debate.
The Court recites the quote set forth
above from Clinton v. Englebrecht but uses it to affirm a broad
grant of power to territorial legislatures, not to bar Congress
from entering into an agreement not to exercise its authority.
)
In fact, the holding in Puerto Rico was to affirm the validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346 U.S. 100 (1963)
09/15!94, I 1:59am
20029980
14
COPY
�.-------------~-------------------------
I.
provides even less support for the
~emorandum's
with the other cases, the Court was merely
p~ecedent
~ssertion
referr~ng
:.
to t e same
regaiding the general authority of Congress to al
its legislation relating to a territory, but, here again,"this
discussion was not in the context of an expression by Congress of
an intent to limit itself. 7
More importantly,. the laws in
question contained specific reservations permitting Congress to
make such amendments.
346 U.S. at 195.
What ·is missing from this section~ is a discussion of two
important decisions more closely on point.
The first is Currin
v. Wallace, 396 U.S. 1 (1938) which is mentioned in footnote 13
of the Memorandum but summarily dismissed as being inconsistent
with the Department's new theory that
··itself.
Co~gress
cannot bind
This is a decision which we suggest is more
appropriately left to the Supreme Court.
Currin is significant
because the Supreme Court approved an Act of Congress
implementation of which required the approval of those affected
by it, the essence of the Guam mutual consent clause.
The Act,
7
The memorandum attempts to bolster the Department's
theory that Congress must retain the authority to revise, alter
or revoke any authority it grants to the territories by citing
United States v. Sharpnack, 355 U.S. 286 (1958); Harrii v.
Bareham, 233 F.2d 110 (3rd Cir. 1956); Firemen's Insurance Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 U.S. 648 (1874) and Christianson v. King County, 239 U.S. 365 ·
(1915). The cases cited, similar to D.C. v. Thompson, .346 U.S.
100 (1953) do not discuss an express intent by Congress to limit
the exercise of its authority, rather they are limited to
situations whereby Congress clearly reserved the exercise of its .
authority to revise, alter or revoke through enacted legislation.
09/15/94, 11:59am
20029980
' 15
COPY
�passed pursuant to the Conunerce Clause which the MernoranR urn
a~serts
gives Congress the same plenary power as the
Clause,
UJ.l
Ter~itorial
was challenged as an unconstitutional delegation·
authority.
The Court disagreed finding
th~t
rather thah a
delegation of legislative authority, the Congress "has merely
placed a restriction upon its own regulation by withholding its
.operation ... 'unless two-thirds of the [voters] voting favor it.
Similar conditions are frequently found in police regulations."
306
u.s.
at 15.
The Court
~ent
on:
Here it is Congress that exercises its
legislative authbrity in making the
regulation and in prescribin~ the conditions
of its application. The required favorable
vote upon the referenduin is one of these
conditions ... "Congressrnay feel itself unable
conveniently to determine exactly whe!l its
exercise of the l~gislative power should
become effective~ because dependent on future
conditions .•. it may leave the determination
of such time to •.. a popular vote of the
residents of a district to be effected by the
legislation. While in a sens~ one may say
that such residents are exercising
legislative power, it is n6t an exact
statement, becau$e the power has already been
exercised legislatively by the body vested
with thatpower under the Constitution, the
condition of its legislation going into
effect being made dependent by the
legislature on the expression of the voters
of a certain district."
306 u;s. at 16 (citing Hampton
394, 407 (19??).
Co. v .. United States, 276 U.S.,
&
If the Court agrees Congress has the authority to make
implementation of its legislation subject to r~tification by the
affected voters, it is inconceivable that the Court would find
· 09/15/94, 11:59am
20029980
16
COPY
�that Congress could not agree to limit its ability to
same law without the consent of those same voters, if C
has expressed its intention unmistakably.
--~(127] ~~---
.
.
gress
.
L~~
.
The most troublesome oversight in this section of the
'
Memorandum, however, is the failure to discuss the Ninth
Circuit's
d~cision
in United States v. De Leon Guerrero, 4 F.3d
749 (9th Cir. 1993), cert. denied, ?? U~~· ?? (199?).
De Leon
Guerrero is the only decision of which we are aware that deals
·.with· the applicability of a mutual ·consent provision in
territoiial l~gislation.
The case arose under the Covenant for
the· Commonwealth of the Northern Mariana Islands.
was ratified by an Act of the Congress.
·The Covenant
48 U.S.C. § 1681b.
The
case involved an ongoing debate about whether the Commonwealth's
right 6f local self-govern~ent as defined in the Covenant under
Section 103 substantially limits Congress' legislative powers
over the Commonwealth under Section.105".
4 F.3d at 752.
The
specific issue was whether the audit provisions of the Inspe.ctor
General Act of 1978 "conflicts with the self-:-government
provisions of the Covenant". 4 F.3d at 753.
In order to reach the question, the court first had to deal
with arguments put forward by the Department of Justice which are
identical to those in the Memorandum.
Arguing on-behalf of the
Inspector General, the Department asserted _that Congress had the
right to pass the Act under the Territorial Clause arguing "that
because the CNMI is governed through Congress.' power under the
09/15/94, !1:59am
20029980
17
COPY
�Territorial Clause, Congress has plenary legislative aut
over the CNMI".
4 F.3d at 754. 8
"unpersuasive".
According to the Ninth Circuit
The court found this·
'the authority of the United States towards
the CNMI arises solely under the Covenant.'
The_Covenant has created a 'unique'
relationship between the United States .and
theCNMI, and its provisions alone define the
boundaries of those relations.~.The
applicability of the Territorial Clause to
the CNMI, however, is·not dispositive of this
dispute.
Even if the Territorial Clause
provides the constitutional basi~ for
Congress' legislative authority·in the
Conunonwealth, it is solely by the Covenant
that we measure the limits of Congress'
legislative authority.
4 F.3d at 754.
Ultimately, the Ninth Circuit approved application of the
law not because Congress had plenary authority under the
Territorial Clause but because the Covenant specifically gave.
Congress the right to enact legislation applicable to the
Conunonwealth.
The only limit on this 'right is a mutual consent
provision stating that a few limited ·sections of the Conunonwealth
Act could not be modified without the mutual consent of the
8
The court referred to Sinuns v. Simms, 175 U.S. 162, 168
(1899) a case which exp'lained.that under the Territorial Clause,
Congress "has the entire dominion and sovereignty, national and
local, Federal and state, and has full legislative over all
Subjec~s upon which the legislature of a state might legislate
within the state". This is the same principle upon which the
Justice Department again relies.
09/15/94, !1:59am
20029980
18
COPY
�Conunonweal th.
Covenant Section 105. 9
The Court found
mutual consent provision as drafted did
passing laws affecting the Conunonwealth where the
..
.
sufficiently significant interest to justify it.
The holding in De Leon Guerrero contradicts directly the
conclusion paragraph to this section.
that the "non-state
ar~as
T~is
paragraph reasserts
are subject to the. authority of
Congress, which, as shown above, is plenary ... (and] persists
[until] the area becomes a State or ceases to be under United
Stat.es sovereignty".
Memprandum at 6.
Rather, that decision
makes clear that Congress' authority, after a political status
change agreed to between Congress and the people of the
territory, is defined solely by the terms of .that agreement.
Section III -- The Rule that Legislation Delegating Governmental
Powers to a Non-State Area Must Be Subject to Amendment and·
Repeal Is but A Manifestation of the General Rule That One
Congress Cannot Bind A Subsequent Congress, Except Where It
Creates Vested Rights Enforceable Urider the Due Process Clause of
the Fifth Amendment-- pp 6-7.
This entire subsection is premised on a fallacy.
There is
no rule expressed in any decision of any court that governmental
·powers to a non-state area must be subject to amendme.nt and
repeal.
As described ab6ve, the most that can be
~aid
is that
there is dicta in.a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the mutual consent
provisions which the Memorandum states the Department will
continue to support.
Memorandum at 12;
09/15/94, 11:59am
20029980
19
COPY
�.whether Congress can bind itself, that Congress' actions
.territories are subject to later amendment or repeal.
accurate in the section is that these statements are nothin
than "a specific application of the maxim that one Congress
cannot bind another .... "
Memorandlim.at 6.
The analysis does not end· here, howe.ver, because it is
simply not true that one Congress cannot bind another, .as the
Memorandum recognizes but. then attempts to explain_away.
As
described above, the most that can be said is that there is dicta
in a series of cases, . which do not address the issue of whether
Congress can bind itself.
They stand only for the proposition
that ·when express statutory language exists or when language is
not provided and it is clear Congress originally had the power,
then in those situations Congress retains its authority and its
actions in the territories may be subject to later amendment or
In the end, the section misrepresents as conclusive and
repeal.
inflexibl~
"the maxim that one Congress cannot bind another."
First, the law must create vested rights as· Justice Marshall
explained in Fletcher v. Peck, 19
("When, then, a law_is in its
rights
hav~
u~·s.
natur~
(6 Cranch) 8.7, 135 (1810)
a contract, when absolute
vested under that contract, a repeal of the law
cannot devest (sic) those rights." ) 10
This, too, the ·Memorandum
10
,Although the Department in its memorandum focus' on the
dissenting opinion in U.S. Trust Co. v. New Jersey, 431 U.S. 1
( 1977) the actual holding was that impairme-nt of contract by the
State was in violation of the Contract clause and neither
necessary nor reasonable in· light of the circumstances. Although
· 09!15/94, 11:59am
20029980
20
COPY
�. ,~'ON P~l:.
v"'
O}o
~
recognizes but goes on t6 utilize a quote from the Sinkin& Fund
.
~
I
co~tras;..t~al
Cases as part of its effort to build a case that only
rights of a private nature are protected from change.
11
~
~Q;)_{
~~,'
't\~
.
I
The analysis'provided is incomplete.
The test actually
established by the Supreme Court to determine whether Congress
has bound itself turns not on the nature of the contract (Private
right vs public) but on whether Congress has expressed its
intention to protect the vested right in "unmistakable terms".
The "unmistakable terms" doctrine is net even addressed in.the
Memorandum.
Infra at p. 25.
Section IV -- The Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two Mutual Consent Clauses - p. 8.
The Memorandum presents two bases for its conclusion that
~he
Due Process Clause does not bar a repeal of a mutual consent
the Contract clause ~pplies to Stat~s and not the federal
·government, the "United States are as much bound by their
contracts as are individtials." Sinking-Fund Casess, 98 Q.S. 700,
719 (1879).
The Court in Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v. United States, 292 U.S. 571, 579 (1934), stated "the Supreme·
Court held that ''(r]ights against the United States arising out
of a contract with.it" are property rights protected from
Q.eprevation or impairment by the 5th Amendment." See also Madera
Irr. Dist. v. Hancock~ 985 F.2d 1397, 1401 (9th Cir. 1993)~
Moreover the Court, in U.S. Trust Co. noted that "a statute is
itself treated as.a contract when the language and circumstances
evince a legislative intent to create private rights of a
·
contractual nature enforceable against the State." 431 U.S. at
17, fn 14 (1977).
11
What is not disclosed about the Sinking Fund Cases is ·
that the ''statutes ·in question expressly reserved Congress'
authority to repeal, alter, or amend them, and Congress exercised
that power ... " POSSE, 477 u.s. at 53.
·
09/15/94, 11:59am
20029980
21
\
.
COPY
�clause.
First it points out that
~
territory is not a
within the meaning of the Due Process Clause.
herring.
This is
Secondly, it asserts that a repeal would not deprive a
territory of property within the meaning of the Fifth Amendment.
This is not th~ test the Supreme Court has established.
not
~he
nature of the vested right that controls.
It is
Rather,. the
test involves a combination of a vested right coupled with an
"unmistakable" commitment by the
Congr~ss
not to interferewith
the right.
Subsection TV, B -- "A Non-State Area Is Not A Person in the
Meaning. of the Due Process Clause of the Fifth Amendment." pp.S-
9.
We do not need to debate the merits of the legal arguments
'
presented in this subsection because this is a non-existent
issue.
The mutual
~onsertt
clause being discussed between the
President' s· designated negotiator and representatives of the· Guam
Commission on Self-Determination runs between the Government of
the United States and the People of Guam, not the political
entity of the .Commonwealth of Guam as the Memorandum assumes.
The Peo~le of Guam clearly qualify as persons under th~ Due
Process Clause.
We have attached the current configuration of the proposal
for your review.
The reference to the People of Guam is
appropriate because elsewhere in the Act we intend to require
that after adoption by Congress the People of Guam hold a
09/15/94, 11:59am.
20029980
22
COPY
�plebiscite to approve what Congress h~s eriacted before
applicable to Guam.
In this regard, we also intend to
nature of the Guam Commonwealth Act.
Rather than an Act of
Congress approved by the people before implementation, .it will
become a Covenant between the United States and the people of
Guam..
This Covenant will create vested and binding· rights
.
.
.
protecting both the interests of the United States and of the
People of Guam.
Subsection IV, B -- Legislation Relating to the Government of
Non-State Areas Does Not Create Any Rights Or Status Protected By .
the Due Process Clause Against Repeal Or Amendment By Subsequent
Legislation. - PP.· 9-12.
While recognizing that the Government may.enter into
contracts, the Memorandum asserts that. only contracts similar to
those entered into by private individuals are enforceable, and
"governmental powers cannot be contracted away", citing North
American Com!. Co. v. United States, 171
u.s.
110, i37 (1898). 12
To bolster its position, the Memorandum relies on the POSSE
12
The comment by the Court relied upon by the Memorandum
is dicta.
It came in a case involving Congress' right to alter
the terms of a lease through regulation. The decision did not
turn on the rule that sovereign regulatory authority could not be
waived.
It turned on. the fact that an express reservation of
authority had been included in the contract. As the Court noted,
this was a lea~e "expresSly ~ubjected from the beginning, to
whatever regulations of the business the United States might
make".
171 U.S. at 137.
09/15/94, 11:59am
20029980
23
COPY
�decision.
13
·'/
The POSSE decision, however,
matter of the contract in question.
did not turn on the s
The actual foundatio
of the
.
"/
:?>ci>'/
,\y.,~/
Court's holding was that if Congress was to surrender any
sovereign power in a contract, it must do so in "unmistakable
terms".
The "unmistakable terms" analysis would not be necessary
if the Court did not assume that Cqngress could indeed surrender
sovereign powers, even in the realm of traditional regulatory
authority as was presented in the POSSE case.·
This is exactly
the opposite of what'the Memorandum asserts.
Indeed, the Court's reference to the bond and insurance
cases had nd direct bearing on the Court's holding.
The cases
were cited for the limited purpose of contrasting circumstances
where Congress clearly evidenced its intent to bind itself from
I
the facts in the POSSE case where "Congress expressly reserved to
itself "[t)he right to alter, amend, or repeal any provision of"
13 '
The Memorandum lacks examples that give support to the
Memorandum's theory that Congress does not have the ability to
.limit the exercise of its authority under the plenary power of
th~ .Territorial Clause.
Rather, the cases cited involve
situations whereby the Congress through legislation, or the lack
of legislation, retained its authority. For example, the
memorandum indicates Hudson Water Co. v. McCarter, 209 U.S. 349
(1908) has a much broader interpretation than the actual .case
decision provides for.
In fact, Hudson concerns an action
involving a water rights contract between the State and an
individual where the State did not include provisions limiting
its powers, therefore allowing subsequent legislation by the
State and a· res~lting ineffective contract.
It is not about the
State's incapability to limit its power by contract, rather it's
about the authority of a State .to retain its power when not
granted away.
09/15/94, 11:59am
20029980'
24
COPY
�the Act which lead to the contracts at issue.
The
Cour~
relied upon
thi~
477 U.S.
contrast because its holding
was that the Congress could amend the legislation in questio
even if that amendment interfered with contractual rights,
because it had not unmistakably indicated its intent to bind
itself -- the. standard· the Court has established for determining
whether Congress has waived its sovereign power.
The actual holding in POSSE -- that Congress had not
surrendered its sovereign power to alter Social Security laws
has been .thoroughly analyzed by the D.C. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thiift.Supervision,
967 F.2d 598, 621 (D.C. Dir. 1992).
The Transohio decision
demonstrates conclusively that .the Memorandum's analysis of the
holding in POSSE is so flawed that one wonders how it could be
used to justify a proposed reversal in such an important area of
Administration policy.
In that decision, the D.C. Circuit makes
clear that "[t]he Supreme Court
rea~hed
[itsJ.cbnclusion by
analyzing the govern.1ng·statute, the Social.Security Act" and
focused on the.fact critical to its decision-- "[t]he Social
Security Act contained an express reservation of Congress' power
to amend the law •.. ", 967 F.2d at 621, rtot by establishing the
per se "private rights" test asserted in the Memorandtim.
According to the D.C. Circuit
The "principles form(ing] the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
09/15/94, 11:59am
20029980
25
COPY
�that " 'sovereign power, even when
unexercised, is an enduring presence that
governs all contr~cts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.' " Id. at 622 (emphasis added). 14
( ·. (f)7
\
The D.C. Circuit also discussed the history of the
!' -:
~
unmistakability doctrine.
"The "unmistakability" doctrine is a special
rule of contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early i9th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court-in a
case concerning the government's taxing
power, may·enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of its sovereign
powers.
Id . .at 618.
Both the POSSE and Transohio cases dealt with the
application of the "unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
1
~
If the Court had actually established a per se rule
which depended on the nature of the contract, then why did the
Court continue·after stating the unmistakable terms principle and
the general rule that "contractual arrangement, including those
to which a sovereign itself is party, remain subject to
subsequent legislation by the sovereign" state that ''.(t]hese
principles form the backdrop against we must consider the
District Court's decisioh effectively to forbid Congress to amend
a provision of the Social Sectirity Act''.
477 U.S. at 52.
By
use of the "must consider" terminology, the.Court made clear what
the test is.
It would have been much more direct and ultimately
clearer simply to have ruled that the contract between the Social
Security Administration and the State of California was not a ·
traditional private contract.
It did not, of course, because
that is not the test the Suprem~ Court ever applies. The test is
whether Congress has stated its intentions in unmistakable terms.
09/15/94, 11:59am
20029980
COPY
�_.,o~ PR~.St:
()..)~
{J) ;;;7 0<%
::::1:t::n~:::s:::::o:~ . ::::i::::a:a:r:::::n:o::::::::r ::h::.. . :)
which the Memorandum would have us believe is the ~tandar~
r
it were the test, the Supreme Court and D.C. Court·of Appeals
could easily have disposed of t~e contracts in POSSE and
Transohio
by adopting the "traditional private contractual
rights" test advocated in the Memorandum with a simple finding
that alleged contractual rights associated with the regulatory
programs at issue in the cases are not-traditional private
contractual rights.
They did not, of course, because the Supreme
Court applies the "unmistakable terrns"·test which requires an
analysis of Congress' intent, not the per se standard proposed in
the Memorandum.
See;
~'
477 U.S. at 54.
We find i t inconceivable that the Department would decide to
reverse.a'thirty-year old policy based on ·a decision which has
been universally interpreted as suggesting exactly the opposite
of what the MemorandUm asserts is the holding -- that Congress
can contract away sovereign rights to exercise its regulatory
authority when its says so unmistakably. 15
Instead of dealing
The POSSE decision has even been criticized becaus~ it
appears to open the door wider than some commentators believe·
advisable. ·In an article by David Toscano entitled "Forbearance
Agreements: Invalid Contracts for the Surre.nder of Sovereignty
analyzed the POSSE decision in great detail.
It concluded that
"(t)he pOwer to waive sovereignty was recognized;, in POSSE.
92
Colum. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Court
relied entirely on Merrion v. Jicarilla Apache Tribe for the
proposition that the federal government can surrender sovereign
power. Jicarilla in turn relied upon cases involving primarily
the taxation powers of .state governments ... Instead of endorsing
15
09/15/94, 11:59am
20029980
27
COP
�accurately with the Court's actual analysis, the Memorand~
at
U:J...7
page 11 relies upon a quote, claimed to set .forth the hold\~g,
r-!
·. .~..:oo/
which is taken completely out of context and has nothing · . ~
.
.
.
.
whatsoever to do with the holding.
The quote, taken from 477 U.S. 55, fails to include the
paragrap~~
entirety of the
the remaining
~ext
frofu which puts
back into context the relationship of the bond and insurance
cases.to the basis of the decision.
The following quote pick~
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress have stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
After stating that the contract claimed
by the State of California "bears little resemblance to r.ights
held to constitute 'property' and citing to the insurance and
bond cases as examples, the Court went on to explain their
relevance.
a
Rather, the provision simply was part of
regulatory program over which Congress
retained authority to amend in the exercise
l
-
the rule applying to the police powers -- such powers cannot be
surrendered -- it adopted the rule applying to taxation powers
such powers can only be surrendered if done so unmistakably.
This move sh6uld not be follo~ed automatically: if the Court
wants to enforce contracts that surrender the federal
government's regulatory authority, it should do so on the basis
of policy arguments, not on the basis. of POSSE."
Id. at 46 0.
Obviously the author did not like the test used by the Court.
Nev:ertheless his criticism makes clear what the test is.
09/15/94,
11:5~am
20029980
28
COPY
�of its power to provide for the general
welfare.
Under these circumstances, we
conclude that the termination provision
-did. not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent cohcerning the effect of
Congress' reserved power on agree~ents
entered into under a statute containing the
language of reservation.
477 U.S. at 55
(emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contracting away its right to adopt
legislation, because ~he "Court has never held that the United
States cannot surrender regulatory powers through contract ... "
92 Colum. L. Rev at 458.
But the Court has approved Congress
making effectiveness of its legislation subject to approval by
the voters who are impacted'by the legislation, see, Currin v.
Wallac~,
306
u.s.
at 15-16.
It defies the rational of the POSSE
deciSion to argue that the Court would approve Congress adopting
legislation making effected-voters approval a requirement and
then pass subsequent legislation authorizing it to ignore the
vote of approval, if i t ha·s stated in unmistakable terms that it
would not take such action.
After spending eleven and one-half pages arguing that mutual
consent clatises are unenforceable and unconstitutional, the
Memorandum comes to an astounding conclusion.
It states that the
"Department of Justice ... would honor past commitments with
respect to the mutual consent issue", including Section 105 of
09/15/94, 11:59am
20029980
29
COPY
�the Covenant with the N6rthern Marianas Islands.
.Department cannot have it both ways.
·But the
I
An Act of Congress ts
Ll:J7 );
,...1
\
either 6onstitutional and enforceable or it is not.
~·,
~tual ,.-~>9
Depar~
If a
consent provision for Guam is unenforceable, then the
must reach the same conclusion for all other mutual consent
provisions.
This includes the mutual consent provisions in the
Compact of· F.ree Association with Palau' scheduled to go into
effect on October 1, 1994.
The Department's Memorandum offers no
'
.
.
solid basis for such a significant reversal in policy;
All of
the ca·ses upon which it relies, except POSSE, were available to
it when its earlier positions supporting mutual consent were
.
.
mad~.
POSSE does riot change any rule with regard to
binding itself.
Con~ress
It merely lays out clearly a test adopted in
1981 in Merrian v. Jecarilla Apache Tribe, 455
u.s.
130, which in
turn carried forward a principle which the D.c.· Circuit states
"dates. back to the early 19th century."
967 F.2d at 618.
09/15/94, 11:59am
20029980
30
COPY
�U. S. Department of Justi~e
'
l
1
·uJo.
·Office of Legal Counsel
. :l
I
.
.
I
:j
1
Offi>c uf the
. Aliinur Anol"DC)' ~nt.l
WGthin,ton. D.C 20Jj0
.. ..~.
. June 29, 1994 · ·
L ~fichae!Heyman .;.
.
.
. .-.: .
Special~·R.et>tesentat:ive. for Oliam Cominonweattb
.. Unite~fStates ·Department of the Interior ·
Office of tbe Secretary .
. .. .
Washingron, D.C. 20240 ~
. ..· . ~ .
D~M::~
:
:·
.;
...
..
:
!·
:
=m~ of~ ~guB£e y~ jab~~· u~
nUght
myout
negotiations with.G~ concerning a commonwwth·act. These ~iops reflect the
sincerity of the intentions of the United Sta!es with respect to self·J9VFfnce in Guam,
without making unco~onal assortions. of inwlnuability to future co~siona.J
. ·enci'03chment. "J'e ~~that; you will_ fmd th:se SU~~DI ~l. ·Jfrot,_ please let me
. know and we will contmue to work With you .m craftitig solutiOns. ~ .:
·
=a &
eypo of
'wrcciation tht
hope that you took aw•y ftcm our meeting il1
of
bW for Diy
.analysis of ~e mutuar consen~ question. At bottom.. there are few conswptional limitations
on the ability of one Congress to repeal th.e enactments of a prior Coligtqs. _Those few
limitations do not appear to ~ to apply in the context of the proposed ~htual consent
-
I
provision.
· .. I have considered Morion•s view that under the Territories Ciattse Congress Ca.n
aemeve by direct sta~ory enactment what could be achieved by a ~t ~f itidepcndcnce
followed by a treaty. \WhUe this argument has some appeal in light pf the li~ited case law
on the scope of Congress' power under the Territories Clause,· I am. ultiniately not persuaded
by it. · The example I used in onr meeting illustrates why. If a future :copgress attempts to
impose its wiD on an independent Ouam in a manner not authorized by treaty, the answer to .
why it cannot do so is: siniply that Guam is outside tbe sovereignty of 'the_junited States.
That answer is not available sa long as Guam. remains within United Stat~s sovereignty.
.
.. .
.
'
.
I
.
: :j
· Nor would we .want the case to be otherwise. So long as it is within the sovereignty
CJf the United States, the obligation to insure the citize!ls of Guam a fr~ htd democratic
government is ours. We cannot and should not give up the tools that would be necessary to
fulfill that obligation.
. ·
·
. : :l . · .
.
.
.
:.J
. ·.
.
~
.
..:.l
.
•1
:,
'!
. I
'
''
i
.....
~.- ~
:.
Q~
:o::
~56
gz~u
COPY
�J.,
l hope that your negotiations with Guam are successful. Again,
.assistance, please let me know.
if I can b
l
j
Sincerely,
Ill)
1
-
'r- ,,
:P
I,
',,
1
· cc: Monon H.a1.pcifu
....
:tI
,,
:;
'·1
!
:i:I
'I
I
i
i
I
;
:i
'I
l
·~
·i
'
·!
.I
i
I
·,
·i
.I
:j
·i
I
- 2-
j
I
1
:.
I
COPY
�,'\o~
~
'
.
.
.
Propoied Alternative...e. . ·
.For Mutual Consent P:rovieion •.
!
·
j
~.
~
\
.
PR~.s;.
0~
(o;).f)
.·
~,
~:
r£/
·.
.'I'here are. two "mutual conaant:." provisione :Ln .~he Guam\ .. .
~~.. ~.~/
Commonwealth 131.11, H.R. 1521: lleotion ~03 (mutual. consent·~ ·
modi~y organic. act.): a.nd aec:tion 202 {mutu~. conrle4 to rutura
· ··
a.ppl~cacions of Federal law) • The !ocus at cancerp is section
l.03. which the Department of Justice considers to ·be·
unconstitutio~l as: presently dra.f~ed.: We suggest! the following
three alterna~l.ves,_ea.ch of which l.S designed to sfitisfy .the
constitutional; standard while allowing tlexibili'ty in negotiating ·
with Guam• s r~presentatives.
·
·
· ·
. Current secti~ 1.03: of lLR. is2l.
.
SBC. L03 .J
.
MIJ"l"tl1lL CONSllN'.l' .:: ·
In order t:o: respect the ·.self -government :gr ted to
the Commonwealth of Guam under this Act, the nited
. States a~ee.s to limit the .·exercise ot its au cirlty eo ·
that the provisions of thil!i.:Act may be mod~fied ·only .
. ·with the prutua~ consent of the Government o·f :l:he Umted
. s ta.t<Oo
the Government ot the Commonwealthj of Guam.
i
Proposed al terna·=.tive d.raft:s of a e. etion· 103
·:.
..
SKC. l.03•=
~ ~BNT.
: :1..
.···'.
The un?-ted States solemnly und.ertakes to,' r·~spect the
self -government granted to the commonwealth: o~· Guam
under this Act. In giving this undertaking:, . t .. is the
intention:. of Congress to limit the exercise. o· its
·
aut.hority:: so that the preVisions of ~his Act lf\aY.
mod.itied. :only with the. consent _of the Governm~ot or the
Commonwealth of Guam.
. : ·1 · :
.
b«:
.
'1
. SEC. ~ 03 .·~.
MO'l"'JAL CONSENT.
;
.I
.
The Un~ted states solenuliy undertakes to:· r~sp:ect the
· self-government granted to the Commonwealth: of. Guam . ·
·under t:his Act~ In giving this undertaking·, :_ t is the
intention' of .Congress to limit the exercise·. o; its .
legislative authority so that the· fundamental·l .
·
provisions of this Act relating to the self.-g9vermne~t
.of Guam, namely sections 101, 103, 201, and· 3¢>1 may be
modified· only .. with the .mutual consent of the tfovernment
of the Onited States and tbe Government of thr
Commonwealth o! Guam.
·. =1
,
I
i
:'I
:t
'l
COPY
�!al 0 0.~
sxc.
103 • . MUTUAL CONS !!NT.
·I.
.
·The United· states· solemnly undert•kes tor~epec' the
self~government granted to the Commonwealth ofi Guam
. under r.hie Act. In giving this undertaking ~'ongree
affirms its intention not to modi.fy_ the terms:of this
Act without the consent of the Commonwealth o . Guam.
I
..
.· . .
. .. ... . • 1 . ·. .
.· :1
. ;I
·I
j
. .:J
. J.
..
:i
J
.:t
:1
:~
I
·!
··r
.,
I
:r
·!
·•
..
..
!
:~
'
•·
.~o:.
456
9240
COPY
06·-·30-~4
09 :,SOAM
!'t;(t5 t!IS.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
OOla. memo
To Mickey Ibarra from Fred DuVal and Jeffrey Farrow. Subject:
Guam status position (2 pages)
10/16/1997
P5
00 I b. briefing
paper
re: H.R. 100 recommendations (9 pages)
10/15/1997
P5
002. letter
To Franklin D. Raines from Andrew Fois. Subject: Views of the
Department of Justice regarding H.R. 100 ( 13 pages) ·
10/24/1997
P5
DATE
RESTRICTION
{_Q;l 4
.(13 ()
(_Q
3'
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
OA/Box Number: 20350
FOLDER TITLE:
Guam- 1997 Testimony on G.C.A. [Guam Commonwealth Act]
Jamie Metrailer
2006-0193-F
'm582
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
PI
P2
P3
P4
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a){2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information ({a){4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
..
·PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information, Act- [5 U.S.C. 552(b)]
. b(l) National security classified information [(b){l) of the FOIA]
b{2) Release would disclose internal personnel rules and practices of
· an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b){4) of the FOIA]
b(6) Release would constitute a clearly unwar·ranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
·
financial institutions [(b){S) of the FOIA]
b{9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�October 16, 1997
MEMORANDUM FOR MICKEY IBARRA
"FROM:
Fred DuVal
Jeffrey Farrow
SUBJECT:
Guam Status Position
CC:
Lucia Wyman
This is to outline the position for the October 29 House Resources Committee hearing on Guam's
Commonwealth Bill that Interior Deputy Secretary and Bili Representative Garamendi discussed .
with us yesterday. We write it to facilitate a decision on whether to further develop this position.
There would be two basic elements of testimony that Garamtyndi would deliver.
•
The first would take clear positions on the 1987 bill's provisions for a .Wide range of
changes in Federal policy as it applies to the territory. It would not support most of the
bill's key provisions as proposed, in many cases taking positions similar to those reported
by the Executive Branch in January, 1993 and in 1989. It would also not support the
alternatives that Garamendi recommended to which there is also substantial agency (and .·
congressional) opposition. It would, however, highlight alternatives that agencies support
and provisions to which the Administration has no objection (or has overridden an
agency's concerns), offering to pursue them if Guam wants through this or other bills.
•
The second part would recognize that the autonomy that can be agreed to in
'Commonwealth' might not satisfy the island, that Guam does not consider the.bill as a
status solution, and that the territory has begun an. initiative to choose a permanent status ·
from the U.N.-sanctioned self-governing options: statehood (which is recognized as
unrealistic); independence (which has even less support in Guam); and free association(in
which a territory obtains national sovereignty but lets a larger nation exercise some of its
. rights, such as security powers). We would go on to state a willingness to work with
Guam and Congress to provide the island with a choice among self-governing options and
an enhanced territorial status (i.e., the Commonwealth Bill as we can support it).
.
-
\
Two aspects of this approach are different from the earlier agreed-upon plan. One is that the
hearing would dictate the schedule for taking positions on the bill. The reason for complying is
that it would be difficult not to have positions after all these years -- the reason Guam requested
the hearing. The other difference is the suggestion that we would work on other status options.
While they have generally been held to be open to non-self-governing Guam for years, they have
not been discussed openly by Federal officials since the Commonwealth bill was proposed.
CO-PY
�.
0
~PRESto
29
A decision is needed as soon as possible. Our tentative position should be discussed w· "-.: (}
Governor Gutierrez and Delegate Underwood with time enough for their reaction to .....,factored
into Garamendi 's final statement. They should already be prepared for the positions t at we
anticipate on the bill from a meeting that wejoined Garamendi in with them as well a om the
many objections to it that have been raised from various quarters, but the idea of an alt native to
the bill as a whole has not been discussed with them. In any case, we want to provide the
opportunity they have _requested to rnake a last pitch for the bill's provisions directly-to the
agencies of jurisdiction-- and not just Interior. Additionally, some time may be needed to-explore
positive alternatives to the bill's provisions with agencies and, ultimately, if necessary, here.
~
.1-~
~
Gutierrez and Underwood would, of course, much prefer the alternative provisions for the
Commonwealth Bill that Garamendi initially recommended, but Garamendi himself now
recognizes that they are not viable. The approach that we join hirh in recommending would,
however, fulfill the Guam officials' priority request: finally taking positions on Guam's proposals.
They want this, rather than further talks with the Administration, because they do not believe that
talks would really be worthwhile and so that they can again ask Congress for"the legislation. .
Although Resources Chairman Young told them that the bill would not pass in agreeing to the
hearing and there is virtually no congressional support for it, a formal congressional reaction in
addition to one from the Executive Branch would leave Guam free to consider other options.
The approach we are recommending would be consistent with the nation's responsibilities
regarding the territory and the President's recent pledges to seriously consider and expeditiously
respond to Guam's proposals. It. would also be consistent with-- and buttress-- our positions in
the cases of the two current Commonwealths: Puerto Rico and the Northern Mariana Islands.
As you appreciate, the fundamental problem with the Guam Commonwealth Bill is that it
proposes providing Guam with both substantial powers of nat!onal sovereignty and the maximum
benefits-- without most responsibilities-- ofbeing a part ofthe U.S. family. The combination is
unprecedented, contrary to constitutional principles, and very problematic.
Finally, the following history should also. be remembered. Guam developed its Commonwealth
.
.
Bill in the 1980's in the wake of 1) the non-US. northern islands ofthe Marianas chain obtaining
some of Guam's Federal policy objectives through their Commonwealth agreement to become
U.S. territory and 2) the other islanqs ofMicronesia that the U.S. had responsibilities for entering
into agreements to becoming freely associated with the U.S. with powers Guam wanted. Guam
officials drew from these agreements in developing the Commonwealth Bill in spite of strong
cautions from Federal officials. They then obtained their people's approval ofthe bill in order to
pressure the Federal Government to approve the bill. This would be the third administration to
find much of the bill lacking but the first to suggest working on the real options .
. Attached is a list of the bill's provisions prepared by Jeff that 1) highlights those that we would
explore supporting in bold type and 2) identifies those which we do not foresee supporting in
regular type. It reflects most (but not all) agency comments and is only a working draft.
2
COPY
�H.R. 100 RECOMMENDATIONS
.
.
lo30
This paper outlines recommended Administration positions onH.R. I 00, the Guam
Commonwealth Bill as proposed by Guam, which is scheduled to be the subject of a H se
Resources Committee hearing Odober 29th. (It should be understood that this bill is diffe t in
many important details from the.alternative legislation negotiated by the Interior Department'~s--.-
Special Representative on the bill with Guam's representatives during this Administration and is,
even, different in a number of respects from alternative proposals made by Guari1's
representatives to the Bush Administration.)
Provisions are identified below by bill section number. Those in bold type are recommended to
be supported or not opposed although, in most'cases, they would require critical language
changes that are not noted in order for such a recommendatiqn to apply. Those provisions .
recommended to clearly not support appear in regular type. Possible alternatives to many of these
latter provisions appear in italics.
2- Th'e United States would agree to protect the right of self-determination and heritage of
Guam's Chamorro people.
lOl(a)- Guam would be made
a 'Commonwealth'.
lOl(b)- Federal review would no longer be requiredfor a Guam constitution.
lOl(c)- Guam would continue to be authorized to waive its sover-eign immunity.
lOl(d)- Guam would continue to be authorized to operate its school system.
102(a)- Special Rep./Guam. agreement: Would request a political statl.1s choice by persons born
.
on Guam before the island's transfer from Spain and theirdescendants.
Recognition t!tat suc!t persous ltave not previous~r exercised self-determination.
102(b)- All residents ofGuam would be able to vote on final approval of the
Commonwealth bill. .
COPY
�---l
102(c)- The Federal Government would be required to and authorize Guam t
economic and social programs for Chamorros.
·~
102(d)- Affirmative action programs for other minority groups ,\lould be contin
102(e)- Rights of residents would not be impaired by this legislation or Guam's constitution.·
102(f)- Guam \vould be required to establish a land trust for Chamorros composed of
property provided by the Federal Government.
102(g) - Would require Guam's constitution to establish a ~'reasonable" residency requirement
for voting, intended to mean a requirement similar to thatwhich the Supreme Court has struck
down in States.
103- Special Rep./Guam agreement: Would require Guam's consentfor future changes in this
legislation.
Policy of not changing specified, fundamental provisions of the arrangement (e.g., the Guam.
constitution).
'
201 - Would extend the 1Oth Amendment to Guam, contradicting the Territory Clause power to ·
govern the island in local as well as national matters, and extend the first sentence ofthe 14th
Amendment.
202- Would require Guam's consent to enable new Federal laws or regulations to apply to the
island.
203- Special Rep/Guam agreement: Would establish a commission that would be able to 1).
determine the applicability of Federal regulations to Guam and 2) recommend changes in Federal
law concerning Guam that each House of Congress could be required by any Member thereof to
consider. The commission would be made up of the Secretary of the Interior as chair, Guam's
Governor and Delegate to Congress, the Secretary of Defense, and the Attorney General.
Recommendations in tire case of regulations as well as !ali'S. EOP (OAfB or otlzet) co-chair of.
commission li'itlr designee of Interior Secretary and otlrer Federal seats being /reid by designee
of the A G and /reads of agencies concemed wit!t policies at issue.
COPY
�204- The Federal Executive Branch would be authorized to delegate agency f
Guam.
301 -The Federal Government \"t'ould continue to have foreign affairs and defense
responsibilities regarding Guam.
302(a) c Wouldcommitthe Federal Governmentto consult Guam before negotiating any
international agreements that affect the island.
·
Policy of consulting Guam where appropriate andfeasible innegotiationstlrat substantially
conceriz tire island.
· 302 (b) - Would prohibit the Defense Department from establishing secure areas, bases; or
fo_reign troops oi1 Guam without Guam's approval except during declared wars.
Policy of consulting Guam where appropriate and feasible regarding secure areas and bases.
302(c)- Would require theFederal Government to consult with Guam before changing the level
of Defense Department activities on the island .
. Policy of consulting Guam where appropriate and feasible
011
11zajor changes in activity.
303(a)(l)- \Vould require the Federal Govcr·nmcnt to assist Guam in establishing offices in
the States and foreign countries.
303(a)(2)- Would require the Federal Government to assist Guam in becoming a rnember of
international organizations and authorize Guam to receive aid from other countries and enter into
. international agreerilents.
Require agencies to consider Guam proposalsfor intemational agreements or intemationa/
organizations members/rip.
303(b)- The Federal Government would be requin'd to seck favor·able tr·ade treatment for
Guam from other countries.
304(a)- The Federal Government would be prohibited from stor·iug nuclear waste in the
waters off Guam's coastline.
COPY
1
�~"\ON Pf:?~
.
0
.
''0'~
3 04(b) - The Federal Government wo uId be required to ci ean ur all miIi tary chern i a! :aste sites .
and be prohibited from storing hazard? us cheri1icals on Guam or the V:{aters off Gu \m. (j ?:£)
'6~ 1
~'
. 304(c)- The Federal Government would be required to compensate any individuals injurel'l"-'---because. of Federal storage of hazardous materials on Guam.
401 -Decisions of a Guam appellate court would no longer _be reviewable by the Ninth
Circuit for a 15 year period (before only being reviewable by the Supreme Court).
402- The Federal District Court of Guam would be continued.
403-: The current rules of the Federal Disfrict Court of Guam 'vould continue to apply.
404- The current provisions for the appointment of a Federal District Court Judge, U.S.
Attorney, and U.S. Marshalwould be continued. ·
'
·
501(a)- Guam would remain outside U.S .. customs territor;'.
501(b)- Guam products would enter the U.S. market freely.
50l(c)- Products with 30% of their value Guamanian in origin w,ould be considered Gualn
products.
501(d)- Guam would be able to impose duties on for·eign products and exports from Guam.
501(e)- Would exempt Guam products from Customs inspection on entering the U.S. market.
. SOl(f)- The current GSP treatment of Guam would continue.
50l(g)- Current Federal trade law would otherwise continue to apply to Guam.
COPY
�'HtleVI-Tieasury/GuamagreemeRti
sL~ ~o...S\- f~ ·~ \\\-~ J""S.
70 I - Immigration control would be transfened to Guam two years after enactment o ·
Retain Federal immigration authority but enact special provisions being proposed for the
Northern Mariana Islands: For a 10 year period, the islands would. not be a port of entry for
.
aliens seeking to iminigrate but a specified number of entries would be grantable for
employment-need and family reasons if requested by the insular government. The Executive
Branch would reportfurther on tire islands' immigration nec;ds mid-way during this period.
702- Would expandthe Guam-only visa to all'countries.
801 -Guamanians would be given preference ..for Federaljobs on Guam.· '
802 ~Would authorize the Labor Department to exempt Guam from Federal labor laws
(other than the minimum wage).
901(a)'- Guam would be exempted from the rcquircl)lent to usc U.S.-built vessels in the
waters off the coastline of the islands .
. 902(b)- The shipment offish from Guam to the U.S. would be exempted from the
requirement to usc U.S. vessels on shipping between U.S. ports.
90l(c)- Would require the commission established by section 203 to recommend that Guam be
exempt frorn the requirement to use U.S. flag vessels for shipping between U.S. ports if it finds
that the requirement inhibits Guam's economic growth. ·
Authorize the commission to make a reconuirendation.
902(a) -Would authorize Guam to authorize service by foreign air carriers and exempt Guam
from treaties between the U.S. and other countries that govern charters from other countries on
all matters other than safety requirements.
902(b)- Guam would continue to be assured of air sen• icc under the Federal essential air
scn·icc program.
COPY
�902(c)- Guam's consent would be.required for air carriers to serve Guam.
903 -Guam would continue to be considered domestic for telephone rate-scttin
·lOOl(a)- Guam would continue to have eminent domain power.
1001 (b)- Would give Guam control of all resources within 20Q miles of its shoreline.
lOOl(c) and (d)- Would p'reVeri.t the Federal Government from using its eminent dornain power
in Guam.
Policy of minimal/and acquisition.
lOOl(e) and (f)- Would give Guam all excess Federal land without restriction, waive all ·
restrictions on previously conveyed land, and exempt Guam from all Federal laws and
. regulations regarding excess land.
Substittlfe tlze provisions of the Administration subsiitute, passed by tlze Senate,for section 4
ofS.210.
1002 - Would authorize the commission established pursuant to sectiori 203 to order the transfer
·of all undeveloped Federal land and recreational facilities oil Guam to Guam and limit
compensation to the origina!Federal cost of acquisition.
(iutlwrize tlze commission to make recommendations regarding such transfers.
1003(a)"- Would limit the Defense Department's ability to deny Guamanians access to military
recreational facilities on the island to reasons of security.
l003(b)- \Vould require the military to provide access to privately held land on Guarn
where there is no other land access and adequate security can be maintained.
l003(c)- \Vould authorize the commission established (Hu·su:uit to section 203 to determine
which military recreational facilities should be open to Guamanian usc and which
casements over militar·y propcr·ty Guamanians should be provided. ·
COPY
�1004- .Would transfer the Federal ownership in all utilities jointly ovvned by th'
Government and Guam desired by Guam to Guam.
1101- Would continue to grant Guam all Federal-collections originating from the isla""""-including taxes from Guamanians in the military outside of Guam.
1102 - Would extend the Supplemental Security Income program to Guam and treat Guam
equally with the States in programs including Medicaid, Aid tq Families with Dependent
Children (now Temporary Assistance for Needy Families), and Children's Health Care.
Specific funding for the needy aged, blind, and disabled and increases in Medicaid and
Children's Health Care.
1103- Would grant Guam all revenue from the area 200 miles around Guam.
1104- Would provide for the Governor of Guam to request annual Federal payments for
Guam.
1105 - Would: commit the Federal Government to under\vrite Guam's costs related to its
'Commonwealth' efforts; provide Guam with funds to finance private sector development; and
authorize any funds needed for infrastructure on Guam.
·
I 20 l(a)- Would state that the legislation would make Guam completely self-governing and
should be interpreted to accomplish that purpose.
120l(b)- \Vould require Federal courts to accord Guam laws the status of State laws and
authorize Guam courts to interpret the legislation.
1202- Would continue existing Guam laws.
1203(a-c)- Would repeal a number of provisions of law including that authorizing the
Interior Inspector General to conduct audits of Guaiu.
1203(d)- Would continue a number of pr·ovisions of law.
COPY
�,~\ON Pfrt::
~'()~\
b"'.
.
lo2:(). ~\
1203(e) - Would repeal·the current authorization for Guam to adopt a constitution su ~ect to
;::
Federal review.·
1204- Would require Guamanian referendum app.roval-iri order for the legislation to.
become effective.·
10/15/97
COPY
�..
·
'
- .
Pf?~;s
0
~
.
601- The Federal income tax would co~tinue to apply in Guam as a local tax:
.
..
.
..
~)
~· ~i.
uao
#"·
602- Guam would continue to enforce the 'mirrored' Federal income tax co '.
.
.
.
. 603- Guam would be able to rebate or reduce any taxes it collects.
.
~
.
~-o
: Yi
.
604(a)- Guam would be able to tax the US. or other external source income of its residents.
604(b)- Guam would be able to replace Federal income tax rates without complying with the
requirements for that in current law, including the implementi~:tg agreement negotiated but not
entered into with the Treasury Department.
605- Guam bonds would be exempt from taxation by the Federal Government or any jurisdiction
ofthe U.S.
The substitute for this title drafted by Treasury staff in consultation with Guam
Treasury.
if cleared by
COPY
�ULI
U I'' I Jj I K 1J 1
L4"'::l(
U. S. Department of Justice
Office of Legislntive Affair&
lD3\
Honorable Franklin D. Raines·
Director
Office of Management and Budget
W•~hington,
D.C.
20503
This letter responds to your requeet for tho vicwo of tho
Department of Justice regarding H.R. 100, the proposed Guam
Commonwealth het. In p~rticul~r, you huvc oought our vicwe on
.·the six pr8liminary recommendations from the Special
Roprcccnt6.ti vo fo:r: tho Cuam. Commonwc;:.::1lth n090tia.tion";
Consent; Charnorro
Regulation~;
self~detertnination;
Mutual
Joint Commission/Federal
Immigr.:1tion, Labor; and Exccas Lande_.
bec:ou.~~
Deeauec of the aisnificance of theee eix :!.aauea and
the Special. :tepx·er:;ent.ative' s preliminary recommendations differ
in important reepecte from the propoeed lcgi.:5la.tion, we focus our
comments onth6 preliminary recommendations.
that
II.~.
concerns.
However, we note
i~~ues and
Because H.R. 100 appears to :Oe iaentical to H.R .. 1056,
100 raieee numeroua other legal and policy
which wa" introduced. in th~ :l.04th Cong~·ee5, we etttA(:h the
comment$ that the Department of Juetice prepared (&nd circulated
. within the Adminietl.·ation in 199!i, but did not 6end to Congresa)
addreaaing the earlier proposed legislation.
The Department of Justica strongly supports the underlying
goal of the legislation to provide _the pecpl.e of Quan\ with tl1e
opportunity to opt !or Commonwealth status, although, as set
forth below, the Departmetit. doecs have "ped.fi~ ~ono::erns regta.1ding
particular provisions of the proposed legislation.
l.
Mutual Consent
The first issue
of the Speoial
addree~ed
Rel?~-esentative
in the preliminary recommendations
is whethe1; "the Administl"dlt.:lou
[$houldl endorse a mutual consent clause which provides that
Congre:llSs, t~ the ;actcmt c9lUJ;,i.t.at.,iEna.llx: J?~nl1i ttl! ibll(: 1 dl.nd Ll•e
people of Guam agree that no provision of the Guam Commonwealth
Act n\ay be amended c..r l:epea.led ex.;:ept l:Jy \'1\'l.l.tua.l con.r.oenl... "
(Emphasis aodea) .. The Department supports the proposition that
the Guam(\niM) i'eople 111bould J?lo.y a. c:enl.:r:t&l
redefining the
rela~ionehip
J.Vl!~!:
lu
uts£luli1~
U.[:
between Guam and the United States.
COPY
�OMH/I<IJl
But the Departm~:~nt. firmly h:l'!liP.VP.s: that the proposed mutua
consent provision is not constitutionally enforceable and
r-i
hat it
io eaaenti~l th~t th• .Administration l'='<'~"l? n_n nl'mht. r~gRrni. g t·.ht~~
provision's lack of legally
The
T~rritories
pl9nary authority "t.o
hin~ing
effect.
Clause of the Constitution vests in Congress
diapoa~
of ;md mak• ~11 n~~df\.tl RlJlt!'~t ~nrl
Regulations respecting the Territor[ies.)"
53, .cl. 2.
In ·a
19~4
·
U.s.· Ccnst., art. IV,
Opinion of th9 Offir.e of Leaal
Department concluded that Congress ia empowered to
.t.uthorJ.ty
11
alil long ... the area retaina
r.c,_tni'J~J.,
ex~rciae
[t~rritorial)
thP
this
gt,.tua,"
~nd
that Congress cannot preclude a future Congress frorn exercising
t.hic authority. Memorandum for th& SpeC'i~l Rapresentativg for
_Guam Commonwe$lth from Teresa Wynn Roseborough, Deputy Assistant
Attorney _Oeneral 1 8.1...: Mutuil · Cgnpsmt Proyioione in th~ Gl.l§lm
gmunonwea.1th I.egialatiQU at 4 (July 28, l994) (hereinafter
''Mut.yal Csnoont Memorandum") (attaohgd h~areto) . Like oth&r
powers vested by th~ Conetitution in Co:r:.gress, the power to enact
rule:.. oncl :rogul-'lt.ione reepaoting thg tgrritori•s. 11 ic complete in
itself, may be Bxercieed to its utmost extent, and acknowledge~
no l;tmit..Ationc, other than ara preaorib~t~d in the oonstitueion. n
~. Gibbons v. Ogden, 22 u.s. (9 Wheat) 1, 196 (1824).
Although
Congrel!l3 me1y delegate· gove:r:·nm&ntal authority to the territories,
any "suoh delegation is necessarily subject to the right of
Congreae to rcvioo, oltcr, or revoke the authority g.-j,nteci."
s·. Thus, a 11tatute such at the Guam
Mutual Con;aent Memorandum at
Commonwealth Act bimply c~nnot preclude ~ fut~re Congreee f~om
exercising ite plenary .®n&t1tutional authori-ty to enact laws
reep~acting ll
u.o. territory .
.,
.
The Supreme Court's recenc dcci3ion in United StQtQQ y,
Winatar Corn., 116 S. Ct. 2432 (1996), ie fully consiatent with
this vi~w.
In Jiinatar, the Court idcntific~
11
two
fundv.mont~l
constitutional concepts" thilt govern the power of Congress. .l5l.
at 2453. Under the first, it is plain "tha.t one lcgitJlO.tl.lrc mv.y
not bind the legislative authority of its succe$sorr~." Id.
Quoting Slac::kDtone, the Court obse.-veci:
Acts of parliament derogatory from the power
subsequent
parliam~nts
bind not . . . .
of
Because the
lc~;,-islelt\l.l:e, being in tr1.1th the oovereign power, ia
always of equal, a1waya of absolute authority.
(quoting l w. Blackstons, Commentaries on the Laws of England
l.l11der the ~econ<i constitutional concept,
congressional authority is, of course, limited .by the
,Isi.
90 (1765)).
cum1LlLu.l..i.on ~nd ''the. obligations that it authorize~."
2454.
i..h~
l.Q. at
Thus, for example, if Congress create• -- or authorizes
EAtH.:u.Llve: to ~+eci.te -- a. veeted property intere6t, the power
of a future congresa to legislat8 with respect to that interest
l~ uuuaiil.L"dineli J;,y the due proeeae and. takinga claue~ee of the
!"'ifth Amendment. Seg u.S. Const. amend. V.
- 2 -
COPY
�UL I
OMBIRD 1 .
L4. :J ( .
Here, the proposed statutory proviaion iM r.ontr~ll~d y the
£irat of these constitutional concepts. The proposed leg' l~tion
does not to give rise to any ~(')'1'1Fit.it-.llt-.inni-l11.y prctectea in' ert!l~:~t
that a future Congress may not violate, such ae, for exampl' , a
legally enforceilble propert-_y ; nt".IIIT'A~t-... !:.£. P-trry y·. 'Q'nitoc;i
£'~, 294 .lT.S. 330 (1935); Lvnch y. unittd States, 292 TJ.S.
(1934). Similarly, t-.hR prnpogl:'d'·l~crieb.tion doeu not purport to
constitute an ext:~cise of Congre$1' authority to "dispose of" a
terri.tory, .wh1 C"!h wnnl n
lP.av~·
Gl.t,_,m outside the
cova~aign.ty
of the
Rather, the proposal would seek merely to limit
r.ongr~~FI 1 p1~nRry Con~titutional authority to· ~n~ot ruleo ~nd
regulations for the territory. This Congress may not do.
United State8.
Therefore, it is our considered view that the proposed
r.nn~~n.t
m11r-1;;1l
lancru-.o•
future Congress trtJm
iG
illusory b&eauu• it oannot preclude o.
modifying or repealing the Guam
Hwnca, we are eoncarn•d chat inelucicm of the
. recommended provision -- even with the nto the extent
~Ol'11tit,.tticn~lly permi~si:bl•" provico --· ri"sk~ miele~ding the
people of Guam and others regarding the legal force of the
Feder~l eommitmant not to modify thg CuQm Commonwe<hAot
without the conaent of the people of Guam. For this reason, if
th~ languag~ included in the Speoi~l Rgpre~$ne~tiv~'c prclimin~ry
proposal is to be used, it is essential that the Administration
m111.ke r.:laar to all concerned that thg ·provision ic not
enforceable. Alternatively, the risk of confusion would be
li\VOid•d altog-ether byrapl.aoing the propoced mutual. consent
provision with a statement that the Federal governmer~t is
oommitt61d, aa a matte:t" of oound policy cind principle, not to
alter Guam's Commonwealth status without the consent of the
pfAopla
<;uam. ·.Such a provioion would eliminate the riesk ot
misleading indi vidualt rega:rdin.g the enforceability of a. mutual·
eonsent provision, but would ore~tc .:1 otron9 record of .Unite~
unilater~lly
r.nmm6T'l.WP.alt:h Act_
of
States policy that a future congress could be expected to give
great
dafargnce~
3.
·chamorro Self -dctcrminQtiou
· Thq cocond. preliminary rec:ommemdat ion propose a that the
legislation ineludfl language pz·oviding that "Congress hereby
roquooto thot th¢ Ch~morroo provide Congre•• with an expreell'ion
of their desire" concerning Guam's future political status. We
not~ thd.t earlier vcreiorta of the legil!lation proposed
plebiecitea concerning Guam's political status that would be
· limited only to people ·legielativi!ly defineo aa ChamorJ.-o.
In
connection with the earlier proposals for Chamo:rro-only voting,
the Dcpartmont of .Juatioe coneietently opined that euch
·
plebiacitee would violate the Fourteenth and Fifteenth Amendments
o£
the C!onctitution.
Although the.languo.ge propO$ea in the
preliminary recommendetion is superior to earlier
veroiono, in light of recent dovelopm~nte in Guam, w& have
concerns regarding implementation of·the proposal.
se~ond
- 3 -
COPY
�Ul...l
UIVIl:j/ KJJ 1
L4"':j(
CJ3\
As we have previously observed, th~ ~iftP.P.nth AmQndme t
provides that the right t,o vote "aha:p not be· denied or ab idged
by the united Stat.ee or by any ,qt"_~t~ ·.nn 8Ct:'t:ll..mt of race, 00 or,
or previous condition of servitude.·n U.S. Conet. amend. XV
Therefore. ths Uniten ~t:At-.F>~ ~.c:tonf.lt direct o:r authori~~ a
limitation on voting to the Chamorros. Nor may Guam, .which is
equally subject to t.h~ Fl'i ft~?enth Amandm~nt, 48_ U.S. c. !i11:llb (u)
11~94), authorize such limitations in voting eligibility. 1 In
addition,
t:h~ ~nn8titutional doct~ine
,_.!.
o£ Q~u~l p~oteotion 1
provided by the Due Prooees clause of tha Fifth Amendment and the
Equal Prnt:111r:t inn· ('l <l.t\lt~ of.
Fo1.1:rteenth AmenQ.ment, ~leo would
tb.Q
·prohibit the United States and Guam from employing restrictions
em ,ilir.r.n11nt' t'f race, eolor, or
Pillrt:y,
4~7 T.T. g _ ~t
Ro~•iguez
(explaining
7 n~ 6
iU Dunp v.
~thnie origi~;
Blumstein, 405 U.S. 330 (1972);
th~t
v.
Po~ular
DemQcratic
i"nh~bit~ntc of
o.n
unincorporated territory enjoy the guaranty of equal protection
. t"'lf
th..;- lawc ll.nd it
i~
not necer.s;a:ry to rQsolve
whoth~:r ~uch
protection reate on the Fifth Amendment pr the_Fourteenth
Am~ndm•nt)
_ A restriction of tha
or color could
spe~ifically
violate 42
fr~nohice
u.s.c.
on the :bo.11ia of race
§1971 {1~~4), which
applies to United Statec torritorice.
al~o
It is true that
propoced
~ha
Ch~morro-only
voting provisions
have not contained any express words of exclueion f-rom the
righ~
to vote that a.re ba.eed on race or- eth11ioity. ·However, it is our
under~tanding that by defining the right to vote ~y r~ference t6
thoce horn in Cu•m b~fox-e huguot l, lgso (or April 11, 1099) ond
their deEcendants, the various proposed provisions have ensured
th-.t virtually all of thoo!l ont:i.tloCi to vote will be of Cho.morro
descent. Aa such, they have eff~ctively imposed a racial test
and thus would viohatc the Fourteenth and Fifteenth Amendmentes.
~ Guinn v. United States, 238 U.S. 347, 364-65 (19l5).
Indeed,
the
~eoondRcport
of-the
Int~r
agency Ts.ek I"ot-ce on the Guam
Commonwealth Bill noted that "the purpose of the subsection is to
dietinguich between n.:1tivo Chamorroa and all othe:t:IIJ in (]uam, so
as to accord only the former some msamingful politieal right to.
dote~ine
Qyam' c futu::rc.
11
Se:c~nd
Inte:r- agency Taok Fo1·ce Repo1·t
on H.R. 98, the Guam Commonwealth Bill at
l~
{January 1993).
Given thio impcrtr\i::J:Jiblo intent, the incluoion of ~ ema.ll numl;l~:t:
of persons of non-Chamorro descent, and the exclusion of a im&ll
numbor of pe:r:,:,o~a ¢£ Chamo:r-ro descent, would not c:ure tbe
constitutional infirmity.
231_3~
(1~85).
~ ~er
y, -Ynderwo2Q, 471 U.S. 22,
.
Svon if _the r:"ifteenth Amenament ho.d not been opcc:ifi..:.=~l1y
extended to Gua.m, the protection of voting' rights in the
Fift~~nth Amendment i3 among the fundament:al p:t:ovi5ionl$ of the
constitution that apply to the unincorporated territories of
1
their own force.
1, 7-8 (1982)'
R9~rigWQI
v·
Popular
P~ocratic
Party, 457
u.s.
.
- 4
-
COPY
�UL I
UM!:llf<LJl
Lll. ':H
~;~~
NO.VVl
~.VO
,:\oN Pf?~:;
(;0.._.
Similarly, we do not
boliev~a th~t
iA
Charnor:ro~only
{_p_
vot *ug
provision respecting the future of Guam can be re&eonably ',·
-·a" a oppoeed to·~ r~oi~l
c.lass~fication baaed on .the Supreme Cou.rt' s decision in :..:M:.::.:..:~~:.u..-~
Mtngari, 417 U.S. t;3S (1971} . . In that:.. c~o~. the Supreme Co
held that a statutory preference in hiring at the Bureau·of .
Indian Affairli ( 11 &!1\") for memberc; of fodcr.;1ll.y recognized Indio!l'l'i'-_.
.characterized as a
tribes was not
pol.itioW~l
O{
subj~ct
~{\
~\
to heightened scrutiny under the equal
protection component of the duo
p~occoo ol~uoc bcc~u~e th~
preference was political, not racial.
support o:f thic conoluoion, the Court
preference, as applied, is granted to
racial group, hut,
0'0~.\ .
r<lthcr,
Qlill
.
,lsi. at 551-555 & n.24.
:JtrC33Cd tho.t "(t]he
In
Indi~ns not as a discrete
mcmbcre of queJ.eic·"eovereign tribal
entities whose lives ana activities are governed by the BIA in a
uniquo
f~ohion.'i
,;r.a.
e1t SS4 .. ·Here, in eontrset, it cannot be
said that the proposed preference furthers any government~togovcrnment rclntionehip between the ~ederal gove~nment and a
Chomorro government. Moreover, it is s~gnificant that the voting
provisions at ieeue cio not
~elate e~cluaively
to the
re<latione~hip
between the Federal government and the Chomorro people, but to
the
relation~hip
between th.e U~tited Statee and all C~f tbc pcopl~
Therefore, the Supreme Court's decision in Mortpn y.
of Guam.
Mancari, 417 u.s.
!J3!i
(19"14), in :inappo"ite.
Accordingly, any plebiE>cite that io restricted in auty
faahion to only the Chamorro people and that is directed,
epon~:~ored 1 or implemented by either the Onite~ :Jt(ltt::" o;z;
Guamanian government would raise fundamental constitutional
mu.~L.
problems.
Therefe•re, at a minimutn, the pl·op.;..='e:Q. l!C!\i,jllllle&L.l.l.m
make
tha.t any eJxpresaion of the political determination of
~lear
tht1 Ch&morro people ehall be
maae
witho~t
AllY
lilf'I.JlltfU.t~hlJ:J. lJy !:illtl
not under the auspices of either government.
In this regard, we note that the Guamanian legillature
tor a
Guam-sponsored plebescite on Chamori:o aelf·determination. 3 We
l:ec;:e11tly en•~ced Gl.l-111.111 Pu.l.a. L. Nv. 23•l.47, whlt.:h ~,·ovidea
1
0n
J~nuary
15, 1997, the Guamanian legislature overrode the
veto o£ I.. he 90v~u. uu.t· u! G~et.m l.v .:uu<.:l.. Gu"ltl Pub, L. No, 2~ -14.7
(1996), which was entitled nAn Act to Create· the Commission on
Dt::5t.:lJluul~CLLlvu !v.r: I..h~ Implem~nt,.tion and Exercise ot Chamorro
Self-Determination.''
Section 10 of that act, entitled
"Plt::l.Jlti~..:.l.Lts Di':iLt:: i:iutl VvL.J.u9 Ballot", provides that:
J?.t·lrmuy. election, the Guam J!:lection
Commission, or any successors to it, &hall conduct a
~ullL.l~~l ~Li':iLu.~ ~l~bl~~L~~ ~t which the !ollow1ng
AL Lh1;1 u~;~xl..
·question shall be asked of the Chamo:rro people entitled
Lu
VUL~t~:
- 5
~
COPY
�9:00 No.OOl P.O?
OCT 24'97
10:202-395-5691
m1BIRDI
are· concerned that Con~rP.RH' nii ght. h~~! .,JT'In~r~=;t-nnn hy. F.'lomeo i
or incorporate the provisir:>n& of Guam. Pub. L. No: 23-147·
now
~nR~tR
H.~~
legisl~tion
nf
Th~~AFnrP,
100.
~ny· r~~pon~e
to
th~ p~n
should make clear that the solieitation
~h~ rh~mnrrn p~npl~
18
~ot
an
·~ndor~~m~nt
of
bf
ing
th
th~ ref~~en
provisions of Guam Pub. L. No. 23-47.
3.
Joint Commission/Federal Regulations
The third preliminary recommendation concerns the creation
cf a Joint Commiegion
th~t woulo:
l) provide a forum for
r~gular
consultations between the United States andGuam; 2) provide
"'dvie:'~ and rlifr.ommandationa concerning ap~lication of aalgot~d.
Federal laws to Guam; and 3) make final determinations concex-ning
wh~JtbQr
or not Federal x-egula.tiona t:hall apply in Quam.
'rhe·
proposed Joint Commiflsion wou.ld be comprised of five members,
thraa of whom
woul~
be
Fede~al
officialQ,
Thg Joint Commieeion
would include the Governor of Guam and the Delegate of Guam; and
from the Fed(lral gov•rnmant, th&~ ScaorGtary of Interior, the
Secretary of Ilefenae, and the Attorney General. While the
Department of Juatio• &~upport" the notion of pr-oviding C3Ui:!tri.::mLm
officials with a formal mechanism to advise and consider laws
affecting Guam, the.str\lotU.;t"fi and function of the Joint
Cominlaeion raises constitutional concerns. In addition, the
D.partment of J'uutioa object~, a2 a matter o£ policy, to g:ro.nting
the Commission ult.imate authority to suspend Federal regulations
.:tppliciablg to QuG&m ..
The Appoi:utmente Clau~e of the Conotitution provic;icQ that
the President "shall nom.inate, and by and with the Advice and
Concent of the.
Sen~te,
ch.:t~l
:1ppoint''. all
11
0fficcr3 of the U'nited
States" and that "inferior Officers'' may be appointed by the
"I'rooidont. alone,
(J
the Court3 of
L~w,
or [J the Ue~da of
tn recognition of your right to selfdetermination, which of the following
political status options do you favor?" (Mark
ONLY' ONE) ;
( )
Independ~nce
Free Aeeociatioh
!Jt~tehood
Oection 2(b) of Fub. L. No. 2J·147 define$ "Chamorro people
of Guam" as:
All inhabitants of Guam in 1898 and their descendants
who have to.kcn no a!fi:rmative etep~ to prcoel."Ve or
acquire foreign nat~onality.
-
6.-
COPY
�y:ul NO.UUl
UL I L4. ';! (
10:202-395-5691
UM!j!K!Jl
~.0~
Departments." U.S.· Const. art. !I ~2, cl.. '-. '!'he A.ppoi
C1au~:~e woulo apply to members of the Joint Commission if.
l':lembe~rsh!o on the Commigsion const;it.\J~flln R ['Osition· of e ploym~nt
with:!..n the Federal government that carried significant a.~thority
pursuant to the laws of the unit:.~n. ~·t-.~tPA. Givgn the prop sed
authority of the Commission to·d~termine which federal
regulationS WOUld apply in GllAm, there Ctm bQ little doubt th~:---
the authority at issue is 11 significant 11 for purposes of the
Appointments ClauRP.. Saa B1wkl~!-y ·v. \.1_i19o, 424 u.s. 1, l2S 2~
(1976) (per curiam). Accordingly, ~he relevant question·is
whether the m~mhiiiY'F''hir> r.'lf t'h• CovQrnGir and Dol$gate of cuQ.m on
the commission would constitute employment within the Federal
government.'
·
· ·
A forceful
argum~-nt:
'"'"'.,
b~
mt\d• that memberghip on the Joint
Comm:l!Jsion should l:>e p~operly .viewed as employment within the
Federal government. ThA ~~mmi•cion woula be exolu~ively ~.
creation ot Federal law, and given that.a majority of its members
are Federal offi~~r~, tt ig ~lso f~d~rally controlled. ~
Iahron v. National R.R. Passenge; ~U''' 513 U.S. 374 (1995).
Moreov~r,
~tll'Jm i
R
not fr&e to dtiltermin• it& own resproocntQ.tion
on
Rather the Federal statute specifies which
GuamRni;r~n offi~1ale lilhilll ae:rve ax o£fiaio.
On the other hand,
it mi.ght be argued that the. Joint Commiss.ion would be a hybrid
the Joint Commi.lilsion.
Fed~,_.,.,
/t'.Arri t'nr1al body and that thlil Govfolrnor
~rid·
DclcgQte of ·
Guam would serve exelueively as Guamanian officials.
thft
~nmmiR~1on,
8~
AlthQ~gh
a whole, would bQ gub;ect to Federal control,
the two Guamanian memll:lers ·of t.he. Commission would be beholden
nn1yto the people of th• Guam.
Und~r •ither view, howgvgr, membe:rchip of the Governor and
Delegate of Guam on a Joint commiesion, which has authority to
df.:'termine which Federal regulationc will e4pply in Guam, ~aisee
constitutional concerns. To the extent th~t each member of the
Joint C'ornrni8aion would hold Fedcrcd office "- so poeited by the
first view -- each wouJ.a need to be appointed in a manner
consi.!itent with the Appointrnentc CltluCJc. Oecause t.he Gove;~;nor
and Delegate of Guam would not be appointed in confonnity.wj.th
the Appointmant.11 Claur;~~, the p%:"ovioion could net; w;i,th~tand
constitutional scrutiny. To the extent that the Joint Commj.ssion
is viewed as a hybrid body, on which the Oove:rnor e.nd Delegate
would serve solely ae Guamanian official&, a significant question
still would
&xi~:~t
as to. whether
Congr~tJIIJ
may §JiVe
thOI!U!I
who are not subject to presidential supervision the
lrn addition, to the extent that the Atcorney
Secretary of Defense,
r•q\.1ired to angaga in
duties, they would be
Cl&\.18e.
&ho•mAkwr v.
~ :i,nfra p. 7.
menlbel"C
autho~ity
G~r1er~l,
to
L.l11:1
or the Secretary of Interior would be
funotiono not. germane to their normal
appointed in violation o~ the Appointments
United St~tc2, 1~7 C.O. 202, 300 (1e93) I
- 7 •
COPY
�.
ULI
1U:202-395-S691
UM.I:l/I<Ul
:L4'':::l(
,'\ON Pf?~&
.
u"'"'"
apply Federal statutory criteria to determine the appl.ic&bi. ity
of ~ broad array of Fe.deral laws and to supersede judgment . made
hy F.xfii!~Utive agencies that thos9 laws should ~pply Wl..· thout \.,
limitation. 1
In any event, we believe that.giving the Joint
f'l n~l
UO I
.
0~
~\
'{::. ;,
~ommissio
Nllt.hnri t-.y ov~-r t.ht=: npP.~~tion nf F~deral regulation~; in Guam
~ matt~r
is unsound as
~upports
th~
~nnn~pt
of policy.
The Justice Department
nf riPVAlnping
~
Fnrm~1
m~~h~niAm wh~r~hy th~
leaders of Guam can meet with and advise United States officials
on thQ impact of
pr.rti~l.tlarreoul~tionf:1.
w,.
h~li~v,.
thRt ~
purely advisory body along the lines described in the Special
Repre•entative's proposal would a•~ ~n inv,..lw~ble rol~ in
educating United States ofticiale and bridging the gaps between
Cuam and thQ Un:i.tQd Stat•s:. However, we object to thf:' p~ovi9inn
of the Special Repre:sentati.ve's proposal that would allow the
J"oint Commilillilion to "make final det~rminatiom: rt?<Jarding- which
federal :regulations will apply in Guam.".!
A grant of authority to suspend any or all Federal
The propoual
regul<ltionfil iat not atechnical or trivial matter.
provides the Joint Commission with review power over all manner
of F.aderal rul•a · and
'
regulatic;mq~,
avQn whar9 thirit aubj9ct matt&Pr
Memorandum For the General Counsels of the Federal
Covernm•nt, from Walter O$llingar, Aagietant
Oftice of Legal Counsel, ie:
Atto~nlfy
Tbe Constitutibnal
. k?we:r:g bei:wwen thC!l Ppt&:~dent aod Cpnqre@& tlt SS
f]•n'Cifra\l,
SeRAra~ign of
(May '7. 15151&)
(stating that in eertain circumrstancee a congressional delega.tion
of
~uthority
to
non-Ffild~aral
officialllll "might have a significant
impact on the executive branch's ability to fulfill its
conotitution~1
functione").
Of couraa, thia problem oould be.
minimized by· providing that the Joint Commission may not &ct
without tho preoenoe of the th:r&e Federal members, thQrahy
ensuring tha.t the Ex~cutive branch ultimately dete.rmined the .
dieposition of cmy qucotionc oonc:idered by the Commission.
s Wo nato
th~t.the
proposed limitation on thea authority of
the Commission to determine the application to Guam of Federal
regulationo
but not otatut~D -- poses a pro~lomatio
inconsistency. The enforcement and application of many Federal
etatutes rt.et upon.rcgulo.tiono
promulg~t~d purcu&.nt t.o cuc:h
Under the bill I. all Federal statutes would apply to'
auam, b'.lt theoretiOCllly the rcgul<l.tionc th011t enforoe ~nd a.pply
those stat.utes may not apply at all. This would create a.n
&nomaloue eituation .in whieh •to.tutoo thQt roquiro re~gul;!ltory
_statutes.
enforcement and interpretation would technically apply to Guam,
while the derivative o~ ncocooQry rcgulo.tiono might not ~ppl~.
This regulatory void could not be filled because, while the Joint
Commis•i.on mo.y dctcrmJ.no whether or
~ot
a regulation applias to
Guam, it may not: promulgate ito own alternative regulati:>ns.
- a -·
COPY
�1D:202-395-5691
UMl:Jii<LJl
ULI :L4
·:u
~=U:L
NO.UUl
0
~,oN
(j
of such regulations is not within the subeta.nti ve expert is
~.!U
of
(;"2 /
the members of the Joint Commission. For example, as cur antly v
drafted, the proposal \ltould, allow the Joint Cotnmiss~on tC'> ~,AuAp~nd
any or all environmental reg'ul;at:-ions applicable to Guam, cSver the ·.
objection of tfJe Environmental Protection Agency or othar xp~rt.~
in this area~ This provision would effectively allow t:h~ J ;nc
C6mmi~*ion -- made up of only a handful ~f m~mh~~~~ fy~m ~hA
United States and Guamaninn·gOvernment -- to su}:'plant the
knnw1flllog~ ~nn I"!'X'f'>P.Yt'.iA~ nf
Tha Justics.Oepa.rtment
fi!Mt-:ir~ ,.gP.n~i.-1=1
nM
pflllrt.'i~nlrir
i~~:~u.P.,;t
that the various agenciee with
knnwlPngP ~nr'l Axp~rt'i~~ r1T'I i'l p.-=~rtir.n1A,. FlnhjP.~t -- ~.ftt>r proper
consultation and ad.viaernent by the Joint Commission -- should
~ontinu~
to
b~
ve•tf!od
belie~ves
wi~h ultiMllt~ ~'1..\t:hority tc &omtct
regulations related to Guam.
4.
·
Immio-ration
Th~ De~artmli!'nt r!'COC(ni ze~~: Gu~m 1 Ill !..triir::.I'.\1!' cr~ccrraphic,
economic, cultural, and historical situation.
ln particular, the
DepartmQnt is aensiti~g to Cu;;tm'lil lagititnate conccarn!i; regarding
the impact of uncontrolled immigration to Guam on the island's
infrastructura and the ne~~ssity to attract adequate number~ of
workere to fill vacant positions in Guam's growing economy. For
thia~ :r:ea10on, th~ Pepa:r:em&nt of J'u.ctiee ie willing to pArticip;atll!il
in a dialogue with the Government of Guam and other interested
partie• to explore ways to a.ddres=s: the•e coneerru; within thea
context of .the existing Federal immigration framework. However, ·
the Department of J\lal:ice isoppo•ed. to tran~r:ferring oontrol over
immigration policy anct enforcement to the Government of Guam for
tha following reagonG.
J.O'irst, it ie our viQw that Cuam laoks the b~eic
infraat:x:·ucture to ensure adequate enforcement . of immigration laws
con&~istent with the inte:reets of the United Bt&t:ec.
Gu&m, ::tn
island with a population of some 150,000 persons, lacks the
reeou~ces and expertiee to run ~n effective immigration
enforcement program~ Although the Immigration a.nd Naturalization
Serviee ( 11 INS") cont.ingene in Cuam ie oompriceui gf lecc th:m 100
. p8rsona, it is subordinate to several other INS offices and in a
ve:t'y x-eal eenee, ~mjoye the -.upport of more than 25,000 el1\ployeee
of the INS, atJ well aa other components of the.Department of
Juetiee. For eKan~la, the Quam sub-office hso full aooeoo to the
eervices of, among others, the INS Forensic Pocumenc Laboratory.
The office alao h~D 1oc&ce to the v~riouo INS computori~od
databases a,[; well as those of other Federal law enforcetnent
ogcncicc.
!n Qddition to Juctioo Deportment rccour9co, cffcotivc
enfoi·cement of the immigration laws requires extensive Fed.enil
intor··ogcnoy coordin~tion Q~ well oc coordination with foreign
governments and law enforcetntt!lt .entities. The success of the
- 9 -
COPY
�------------
ULI
UMH/.k:IJ 1
':l=U~
:L4'':l(
NO.UU1
~.11
:\oN PR~S'
0
,~.
0'v
..
~
~
INS' internal enforcement efforts depends greatly on the c mbinP.o
~\
efforts of other OepartmerJt of Ju1tice components, euch as. the
~
Federal Bu;re~u o~ Inveatiqation and th~ Drug lilnforcement A ,P.nr.y.
r- /
'l'he Guam sub-offlce relies heav.ily on these and other Fede ~~·
~
agencies, sue~ as the Departments of Labor and De~e~se_ Tn\
~~~
short, we bel1eve Guam lacks the resources and ab~l1.ty to gat
. :. ·
the intelliqence reqa.rding suspected organized crime groupA,
031
fra~dulent
;.
document schemes, immigrant smuggling activities, and
.other information necessary tO instit1.tte and manage a
entorcement program.
~'lr.r.P.ARfn.l
second,. gX'anting Guam control over immigr&tion could have
serious secu1.·i ty impl icationa. . G'Uam is. otir!'ently thP. hr'lmFl of
Anderson Air Force Ba3e, a majot· military installation·which has
increased significance since the closure of A~v~r~1 T~it~d St~t•c
bases in the Philippines and other parts of Asia. Given Guam's
strat~9ic location and ita relatively close proximi~y ~n ~~m~ of
.the poorest and most heavily populated countries in the world, it
is essential that only alien8 who &re not aecuri~y ri~kR h~
admitted to Guam. For the reasons already stated, we believe
that Guam will not be able to ensure thiA i$; .r.rllA.
Thi:rd, ceding immig:r.8r.~ l"ll'l r.ont.rnl tn nnf!.m r:"CI\.\ld raise
serious foreign policy issues. The viea issuance process itself
implicates other.forfl:i.gn }!n1ir.y r.nn~P.rnJJ, FC~r •xampla, the
Attorney General, in consultation witb the State Department,
determines whC'I m~ty h• A1igih.1P. fr:tr tP.mporary protected atatuD in
this country. Similarly, the Federal governm'!nt may deem it
necessary to impC"'IIIfl: t: ·r"n" r.;;;nr:t ~ r'l'n'll att~inst 11 partiQular country.
Moreover, g:t·anting control over immigration to Ov.am could crea.tt-:
potential r:on£11 ~to.~ wi t.h t.ht:! t.n-:tited State' .a international
obligations regarding, among other things, treatment of refugees,
nonrefoul.P.mP.nt., ~nr1 mi grRt i."r1. of prof~acional,;r · undor the Genar.al
Agreement on Trsde and Services and the North American Free Trace
Ag're~mt"!nt:..
Fourt.h, ~u~m h.::i~ i ndi.~C\t~d that if" it gU~.inii control over
immigration, it would enact laws to allow the use of temporary
,m,ki 11 Pn
wnrkpr~
tc fill p•rrnanQnt: jobg.
Such a polioy not only
would be contrary to thit1 country's longstanding immigration
pnl i rd AA, h11t ,qJ ~CI wc11.tlr:\ ba
~n
affront to our nationQl v.alu•e.
'T'hP. lon.crst andin~ ba:r on t'lampo:t:·;ax-y ururkill•d
wo:rlr..ax·~
permanent positions is intanded to protect both the
1 ~hnr
m~y·k~t:
and Rlien .workQrli.
filling
·
dome~tic
With respect to tha affaeta of
.
such temporary unskilled workers on the domestic labor market, we
'nntP. thRt
•u~h
p•raons typically eoma £rom vary poor eountrico
and therefore are willing to work for relatively lowwages.
rP.~t\lt,
th~ir- presen~e
S~X"Vf;)$
tQ c;iepr•&&
Wi\§16ilil,
th8:t'8D)'
A.a a
.
discouraging local workers from taking such poeitiona.
This, in
t1.lrn, ~nCO'I.\rAQ'IIt& t.hQ craat ion of labor-intan&ive ind.u.,trit!lc ;,nd
creates a dependency on cheap foreign labor.
- 10 -
COPY
�OMB/f<Ul
ID:202-395-5691
'j:U~
NO.UUl t'.lL
:<;,.ON Pf?~
0~
S'0
31 .
Moreover, Guam has ir.dicated t.hat if it is grtt.nted ·
(_a
~
immigration authority, it will not provide temporary unsk, lled
);'
workers the·legal right to become lawful permanent: reside~ts of
r-1
Guam (or of the United States) and that it will not permi~ such
~~
persons to apply ultimataly for United States citizenship. ';~:-OQ:i
Therefore, suoh p~rsons -- although thay would hold permane
~~~.
positions and therefore play a central role in thb health of
' .
Guam's economy -- would have no legal right to participate in the
political system and would not have any assurance of job transfer
rights while preeent in Guam. This would create the inherently
coercive situation whereby a temporary worker, in fear of job
lo~s and ultimate deportation, might prefer to tolerate labor
abuses thanto file a labor complaint with the local or Federal
authorities. For these reasons and others, the Department of
Justice strongly believes that retaining Federal com::rol over
immig~ation is-the b&st means of ensuring that· economic growth
doea not come at the expense of creating an underclass of
unskilled foreign laborers.
0
Fifth, granting Guam immigration cont.-ol would increase the
potential for corruption. Evan under the best run immigration
program, there exists the potential for corruption. By its
·nature, immigration involves hi.gh human and economic stake:;~. For
example, an ali~n seeking to flee persecution may be tempted to
violate the immigration .laws.for·reaaona of personal safety. Ae
the other.end of·the spectrum, a large employer ma.y seek to
circumvent labor and immigration laws in order to employ low-cost
foreign labor. Decentralizing immigration control will only
increase the potential. for corruption inherent in the immigrtition
process.
Sixth, granting Guam control over immigration would
establish an unwise precedent with re~pect to other United States
territories and possessions. With the exception of the
Commonwealth of the Northern Mariana Islands &nd American Samoa,
there is currently no other United States territory which is
exempt from application of Federal immigration laws.~ Granting
Guam control over immigration could encourage other United States
possessions and territories, such as Puerto Rico anci the.United
States Virgin Islands, to seek immigration control based ori the
Guam precedent. In fact, while there certainly are some unique
fe~tures of Guam, not le&st of which is its geographical
remoteness from the remainder of the United States. other
jurisdictions conceivably could make a similar "uniqueness~~.
ar9ument.
6
We note that the potential abuses discussed above actually
have occurred in the Northern Mariana Islands and that the
·
Administration is about to submit legislation that would extend
the Immigration and Naturali~~tion Act to the Northern Mariana
Islands.
-
ll -
COPY
�UMI:J!I<Lll
ID:202-395-5691
Ull
24'9(
9:04 No.OOl P.13
Based on thQ~e consid~tration!l- 1 the DeJ?~rtmF.>nt of .:r
ia
opposed to granting control over immigration policy and
I II~,
enforcem<i\nt to the Govarnm.ent.. of .Guam.· Navarth~l~ss, t ,Q Vv
Department is sensitive to Guam's legitimate '.concerns r~arding
the impa.ct of \lncontroll•d immigration and the lilnc;.rtilS}"Q cl:. lii.bor
on the island. We are prepared to continue a dialogue wit Guam
~nd other ~ntere~tad pQrtiQ& to explore wsy~ to ad~ree1 theee
concerns. within the context of the existing Federal immigration
·
fr:1roowork.
5,
L.:tbor
We dofor to
G•
th~
viewo of the Department of
L~bor.
Sxoe::J:JI Lo.ndo
!n providing for the tr~ncf®r of excee€ real property to
Guam, the Ser,ate-passed bill, S. 210, distinguisned between the
tranefer of land for public purpooeo And th$ tr~nsfQr of land for
all. other purposes.
Land that is tra.nsferred for a public
purpose ia provided by tho United SltJAtec witho-ut furt.h•r
consideration, while land transferred
eold at fair
morl~ct
vc:ll\lc.
~or
other purposes is to be
We ouggoot ola1·ifyi.ng thie
distinction.
The Senate•paesed bill that we reviewed earlier defined
"public pUl."J>05e" by reference to, O.mong other thinga, "public
.benefit uses provided \mder the Guam Excess Lands Act, 11 Pub. L.
No. 103-339, 100 Stat. lllG (11~•>· Dcction 3(c) of the CuQm
Excess Land& Act, in turn, authori~es the Government of Guam to
el"l.act ''l&gielAtion which e!!lteobliahee o.. dct~iled plQP for public
benefit use (including, but not limited to, houeing, libraries,
o~hoole,
hoepitale, child car.= centere, parke and reere"ti¢1l'•,
conservation, economic aeveloprnent, public health, and public
&"fcty.)" ,ls;i. at:. 31~7. However, in implementing this proviBion,
the Government of Guam concluded that the bast ''public benefit
ut;;\!:" fo~ the lax'ld wa.e to 1."'etu1:n it to former "private" ownerr~.
~Guam Pub. L. No. 22·145.
The manner in which
Ar..:L.
r..:.n~.aL\!II::i
f:ICJme
Guam implemented the ~t.l~rn 3xcess Lands
regarding t.he meanin9 of ~ection
an'\l;li~uity
4(c)(5) of the l:>ill.
On the one hand, the bill pJ.ainly aeema to
:·uqul.n:1 liUlltpt:n5e&ti01l CJ.t fai1~ market vAlue for. lond t:ran:sferred to
private owners.
.n;~.Ct~.r:t~m.·t~
on the other
handi it might be argued thet the
\..0 \.he Guc!ir.m Exc:esa T.ianda Act 1$\.l.ggests tho.t land
transferred to Guam fo:r a ''public 11 purpose migh.t appropriately be
:tt!ltillll:l!t~.t·t·t~u \..Q "fH·ivate" il1dividual15.
Although we believe
that, in the end, such. a construction cannot withstand scrutiny,
- 12 -
COPY
�UMH/t<Ul
~:u~
10:202-395-5691.
No.UUl
~.i4
~0~ PR£:s;
0
~ I II
«-:
u> Lf3 I
we suggest clarifyin~ that th~ r~f~rAnr.~ to the Gu~m Exce c Landa
·Act is not. intended to bring tram.1fero1 to. "pri vaten indi ·.duals
within tha mfH3ning ~~ "pllhl i~ hP.nP.fi't. 1 ~w::h a r:larifioa .ion
'
nti.ght be accomplished simply by providing that the ''publi ·.
·
~,
~\
..- :·
i/
~~ 7
in~l"rrpnrr~t.Pn hy ):P.ferenc• to. thgCuam 6!~_oeali Lana'-.hct_
~-r;;_,/
include only those expressly enumerated in that Act or by
~ .
benf'!fit.,; 11
rf!turn'i T'lg t.C"l
t.hr:~
,.,~,..,
i.l?r proposed language-
Tn ~~~i~inn, th~ tP.rm ~a~~m
used in subsection {c) (4) of the
.r::hnnln hA
Th<!-
upti.c.t~d.
t~rm
N~tion~l
.
Wildlife
Admin1~tration
h~vt!:'
C>t:t:'\\rr~d 5~inr_·~
Refug~,"
.
~~
compromise bill,
ic: dafinad to limit the
applicability of the bill to the overlay Refuge.
thRt'
.
that lang\ulge
wa~
properly desoribes the Overlay Refuge.
Due to events
draft~ad,
it no longer
The submerged lands that
w~r~
d•=cribmd in th~ Pinal ~nvironm•ntal Asg~e~ment were
excessed by the ~avy and those lands up to the 30 meter isobath
were t~ansf~rred to tha Fiah and Wildlife Servico. Therefore,
they are no longer part of the Overlay ~efuga, but part of the
refuge propQr. ThQ remaining eubmerged l~ndo out to the three
mile limit were declared surplus.
No one, including the.
Gov•rnmant of Quam, requested thoce lando and they wore
re~turned
to the Navy.
Therefore, the:!:"~ al'e <;urrently no submerged lands
in th• Overlay Rsfuga anci the phrace ''and the cuhmcrgcd lr.mda in
figure 7, on page
78"
should be deleted.
Finally, we understand that the provisione of H.R. 100
. dealing with aor;~ee~ to Federal prop~:~rty ~nd other l~nda and
natural resource issuEs raised by title 10 have been r.esalved by
the hdminiatrstion'c oomprcmico oill. However, in the ev~nt th~t
the provisions dealing with access to Feder&l property a~e
retaintild we wo'l.\lli
o.equ~ct
any such propos&ls.
an opportunity to :review and comment on
'l'hank you for the opportunity to present our views. Please
do not heoit~te to c~ll upon ua if we m~y be of further
as~istano~.
Sincerely,
Andrew Pois
-
l:J •
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
,DATE
RESTRICTION
001. report
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
PS
(13~
002. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/2811994
PS
.~33
003. report
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
PS
(Q 31
.
.-
~o{~
{Q_3j{
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
ONBox Number: 20350
FOLDER TITLE:
Guam - Background Information [ 1]
Jamie Metrailer
2006-01 93-F
'm583
RESTRICTION CODES
Presidential Records Act- (44 U.S. C. 2204(a))
Freedom oflnformation Act- (5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
·financial information ((a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute !I clearly unwarranted invasion of
personal privacy J(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIA)
· b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
· financial institutions ((b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR..Document will be revi.ewed upon request.
�r---------------------------------------------------------------------
DRAFT GUAM COMMONWEALTH BILL
COMMENTS ON SELECTED NEW POLICY PROPOSALS
Central Provisions
•
Agreement that no provision of the law may be changed
without, Guam•s approval.
This idea is the disputed heart of the Co~monwealth concept in
Puerto Rico as well as Guam. It is intended to limit Congress'
.Constitutional power to make policy regarding territories (in·
local as well as national matters) and override the principle
that one Congress cannot relinquish the power of its successors
(in territories unless statehood or sovereignty is granted) .
While a commitment in this regard could be made as a mat.ter of
solemn policy, it probably cannot be legally binding (although
the courts might well sidestep the question as "political").
The provision includes a qualifier that ·the ·agreement is made to
the extent constitutionally permissible but it does not overcome
rthe problems with the provision.
A) Justice agreed to it on the understanding that the
limitation on Congressi Constitutional power would not be
legally binding but Interior and Guam now want to assert
that it is meant to be ... as the language suggests.
B) The qualifier would make the provision even more
objectionable to Puerto Rico statehooders who\would s~e it
as enabling a concept that they believe to be ,
unconstitutional to be approved and misleadingly suggest
that an effective insulation from F~deral territories
governing power is possible.
Current law does not provide even a commitment for Puerto Rico
but some Puerto Rico Commonwealth supporters claim that there is
an obligation in this regard created by the rr:tutual approval of
the arrangement. The Northern Mariana Islands Commonwealth
Covenant includes purportedly binding language but limits it to
"fundamental" matters: local authority; U.S. citizenship;
·
application of the Constitution; and limiting the right to own
land to persons of local descent (upheld as being essential to
the arrangement and justified by the islands' non-U.S. past).
House Chairman Young and Senate Committee staff suggest that the
provision in the draft bill has no charice of passage. And even
policy commitment limited to key provisions would be hard for
Puerto Rico statehooders to accept. It would be hard not to agree
to such a commitment, though, in light of the Marianas precedent
... and since it can be done.
a
COPY
�(
•
2
·•'
Invitation for a status plebiscite excluding U.S.
not descended from residents as of 1898.
The potential opponents include citizens among the half of th~
population that would not qualify. Although A) many of them agree
that the original Guamanians never exercised 'self~determination'
and B) the yote would not be binding, some would feel that they
have an equal right to vote on the future status of their home
island.
A provision such as this is likely to be cited as precedent by
Puerto Rican independence and commonwealth advocates who ·
controversially want status votes to 1) include residents of the
U.S. descended from residents of the islands as of the date of
acquisition (there are 2.7+ million) and 2) exclude citizens not
descended from residents as of the date of acquisition._ -.
Interior/Oth~r Agency Stalemate Provisions
•
Commission with Interior as chair, Defense, Justice, the
Governor, and the Delegate to Congress empowered to
A) modify the application of any regulation to Guam and
B) make recommendations on modifying laws which
Congress would have to consider on an expedited basis.
Most agencies -- which would not be represented --\would,
understandably, be opposed to being excluded from decision-making
in matters within their jurisdiction. The House and Senate are
unlikely to agree to have their agenda set by such a body.
The provision would give Interior and Defense, at least,
unprecedented.roles in policies of. other agencies and in Guam.
(Current law specific~lly excludes matters within other agencies'
.jurisdiction from Interior's mission regarding Guam.)
This proposal stems, in part, from a more modest proposal by
Puerto Rico's commonwealthers. for Federal review of laws and regs
at the islands' request and from an advisory commission in the
case of the Northern Marianas Commonwealth Covenant.
•
Authorization for Interior/Commerce to waive any law or
regulation to benefit u.s.~Guam or U.S. through Guam trade.
There are too many potential problems to.contemplate because of
the breadth of the proposal . . . "any law".
CO'PY
�3
•
Authorization to enter into agreements associated w th the
World Trade Organization and, possibly, other organi
Puerto Rico commonwealth and independence supporters have
proposed similar authority. Federal agencies contend that the
U.S. must speak with one voice on international trade matters.
•
·Expedited Customs processing of Guam products.
Other
•
area~/interests
might be interested in a similar provision.
No automatic trade benefits for any other U.S. island area.
This was included because current law provides that Nor~hern
Marianas products w.ill be treated equally with products of Guam ..
•
Control over immigration.
The Northern Marianas Covenant did not extend U.S. immigration
law to those formerly non-U.S. islands but gave the U.S. the
right to
so. Justice and·Labor oppose transferring authority
toGuam because of the way that the Marianas has used its
exemption. Rep. George Miller is concerned about this provision.
do
The Marianas sought exemption ostensibly to enact stricter limits
on immigrants·and, thereby, prevent itself from being overrun by
aliens. But it has developed a system which so liberally admits
temporary workers that a·majority of the populationare nonresident workers. These individuals have only limited rights and
influence in the community. There has been national attention to
spectacular cases of employer abuse of workers in the Marianas.
Some House' Members have considered extending immigration control
to the Marianas. Puerto Rico commonwealth supporters would want
immigration authority. The Virgin Islands has also sought it.
•
Temporary workers' visa.
There might be concern because of the Marianas experience and
since the workers would be 'temporary' for up to four years.
•
Authority to deny program benefits to aliens for five years.
This would be inconsistent with the administration's stance
policy on a current, nationally controversial issue.
COPY
�.
,•.
4
•
Interior/Defense/Guam joint recommendations on
military land on Guam to the Commonwealth.
Defense may be opposed since it now makes its own decisions on
what land it needs. A process (excluding Interior) would be of
significant interest in Puerto Rico because of the islarids'
dispute with the Navy over the Navy's need for land it owns.
•
Authorization for the Commonwealth to transfer land obtained
from the Federal Government to private use.
GSA, OMB, arid Congress may b~ concerned about authorizing private
gain from what is now a public resource.
•
Special environmental standards.
EPA is opposed, fearing a precedent for region-specific polici.es. · ·
Rep. Miiler is also conc~rned.
Targeted exemptions from Clean Air and Clean Water Act
requirements have been enacted for Guam and other insular areas.
Puerto Rico commonwealthers have sought a similar blanket policy
using a similar rationale to the one used by Guam.
•
Priority for hazardous waste site clean-ups.
Defense opposes .since "it is involved. Many other al?eas also want
clean~ups funded.
Other Interior Recommendations
•
Authority to adopt "reasonable" voting requirements.
This would be controversial if used as authorization for a longer
residency than the courts have sanctioned -- as some Guam
officials have wanted (and it would be superfluous if not) . New
residents would be concerned about being disenfranchised.·
•
Authorization for delegating Federal agency functions to
Commonwealth officials.
This would raise concerns about the performance of statutory
requirements and accountability in various sectors. Even the
·Republican Congress is unlikely to agree to blanket authority.
COPY
�5
•
Guam taxation of U.S .. and foreign income ·of residents_.'
Treasury objects to this applying to Federal employees becau
the precedent it would set for all Federal workers ·outside the
·U.S ..
•
Approval to rebate taxes to individuals and on U.S. income.
The Marianas Covenant includes authority to rebate taxes on
Marianas income only. Treasury would object to rebating taxes on
U.S. incom~. Laws have been enacted to discourage rebates to
individuals (vs. companies) in the Marianas because the rebates
have effectively negated Covenant taxation requirements.
•
Inclusion in tax treaties.
Treasury wo~ld object to automatic inclusion since the island is
foreign for tax purposes and would be able to enact laws at odds
with U.S. tax code provisions.
•
Access to or through.military
prope~ty.
Objectives have included commercial development of landlocked
private property and use of military recreation areas.
•
Submerged lands. between three and nine miles -..offshore.
Puerto Rico has this due to a 1980 law justified by Spanish law.
It has been an unfulfilled objective of some Gulf Coast States.
Other Proposals Interior Wants to Pursue
•
Congressional findings that Guam does not have equal
participation in Federal policy making and has a compelling
interest in protecting the island from inappropriate laws.
This would be of equal application to and interest in other
insular areas and be of concern to Puerto Rico statehooders.
•
Congress relinquishing its Constitutional power to govern in
territories to the extent provided in the legislation.
Would have tremendous appeal to Puerto Rico commonwealthers,. be
constitutiorially questionable, and have no chance of enactment.
COPY
�u3~
6
•
Agreement to consult the Commonwealth to an appropria
extent before international negotiations which affect
State and Justice oppose as a limitation on the President's
foreign policy pow~r. Other insular areas also want this.
•
Requirement to consult the Commonwealth prior to significant
changes in military pr~sence.
Defense opposes this as unworkable.
•
Authorization for the Commonwealth to receive assistance
from foreign governments.
State has opposed Northern Marianas proposals in this regard,
wanting the U.S. to remain an aid donor rather than a recipient.
•
Authorization to enter into international agreements not
inconsistent with U.S. policy and not binding on th~ U.S.
State is opposed to the.U.S. speaking with more than one voice on
international matters.
•
Commonwealth replacement of Federal labor laws.
Labor has strong concerns based on the Northern Marianas
experience. Rep. Miller does as well.
•
Joint recommendations on whether the requirement to use u.s.
vessels for U.S. shipping should continue to apply using the
sole criteria of the island's economic interest.
·
The U.S. vessels shipping requirement does not· apply to the
adjacent Northern Mariana Islandsi American Samoa, or the Virgin
Islands but does apply to Puerto Rico (which is adjacent to the
V.I.). Considered by many islanders to be a major burden on
consumer costs, it is as big an issue in Puerto Rico as Guam.
Reps. Gutierrez, Velazquez, and Serrano have sponsored a Puerto
Rico exemption bill.
Transportation and U.S. merchant marine companies and unions are
strongly opposed to exemption and would even more strongly oppose
using a standard of the island's interests only.
COPY
�7
\.
•
·~
vess~ls
Exemption.from the requirement to use U.S.-built
the waters ·near Guam.
in
......._
Transportation opposes this provision which would amend an
exemption limited by vessel size. The limitation was insisted
upon by the House Merchant Marine Committee. This might also be
of interest.in Puerto Rico .
.,
•
Exclusive.or concurrent authority to manage and obtain
revenue from the U.S.'s Exclusive Economic Zone around Guam.
Other .i:nsular areas and California have expressed interest in the
EEZ. Justice objects to this provision~
•
SSI and any other Federal programs not now extended.
. .
.
This has been one of the primary objectives of Puerto Rico's
commonwealthers. SSI has.also been sought by the Virgin Is1ands
and American Samoa. SSA views the cost of extending SSI to all of
the areas as too great. The Administration has proposed greater - but partial -- funding in Puerto Rico.
•
Joint recommendations on levels of program funding.
Puerto Rico and other insular areas would want similar input.
•
Authorization for any funds necessary for infrastructure
projects, technical .programs, ~nd cooperative ventures.
Puerto Rico 1 .the Virgin Islands I and the Northern Mariana Islands
would want a similar authorization. One exists for American Samoa
but the House authorizing committee has questioned it. OMB would
probably Qppose this provision for budgetary reasons.
COPY
�.J V'
.::..,v:
\JLV
VVV•)
J ""t
c:
L. S. Department of Justice
.·.
\yJ-·.:~f
::·~~ -::··
.
Office of Legal Counsel
L033
:)mutconst .oon
r-
E£
--------------------------~~\---------~~
Washingron, D. C. 20530
Office ot the
·•
~-?>
Deputy Assistant Atlomey General
July 28, 1994
:MEMORANDUM FOR
THE SPECIAL REPRESENTATIVE
FOR GUAM CO.M:MONWEALm
.~
From: Teresa Wynn Roseborough
· Deputy Assistant Attorney General
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains
. two sections requi.ririg the mutua} consent of the Government of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws, rules, and regulations passed after the enactment of the Commonweatth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam insist that these two sections are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in. legislation govern.irig the relationship between the federal government and nonstate areas, !&.. areas. under the sovereignty of the United· States that are no~ States, 1 have
1 Territories tba~ ~ve developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective governor, resent being Called Territories and claim that that
legal term and itS implications are not applicable to them. We therefore shall refer to all Temtories and
Commonwealths as .non-state areas under the sovereignty of the United States or briefly as non-state areas.
COPY
�vv uv.
liJ u ll.l
Ul,\ ..
0~ PREs;O
:'\.
~
J~ (j3~~~~
~\·
not been consistent. 2 \Ve therefore have'carcfully'reexamincd this issue. Ourcon-Iusion is
[i
that th<.:sc clauses raise serious constitutional issues and are legally unenforceab!eA\
\.
In our view, it is important that the text of the Guam Commonwealth Act n~i
any Ulusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation~ ·We must therefore oppose the inclusion in the
Commonwealth Act of any provisions, such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
·
I.
~.:t:J
~~
.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
· is Plenary within Constitutional· Limitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are riot States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areast
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129, 132-33 (1880). There the Court held:
' To our knowledge the first consideration of the validity of mutual consent clauses occurred in 1959 in .
connection with· pro~sals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that they go beyond the constitutiopal power ~f Congress. In 1963 the Department of Justice opined that
such clauses were legally effective because COngress could create vested rights in the status of a territory that
could not be revoked unilaterally. The Department adhered to this position in 1973 in connection with then
pending Micronesians status negotiations in a memorandum approved by then Assi5tant Attorney General
Rehnquist. On the basis of this advice, a mutual consent clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to supporlthe validity of mutual consent clauses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Puerto Rico Status Referendum Bill in light of
Bowen v. Agencies Oooo§ed to Soc. Sec· Eotraument. 477 U.S. 41, 55 (1986), and concluded that there coul!f
not be an enforceable vested right in a paliti~ status; hence that mutual consent clauses were ineffective
because they wouldnot biild a ~wmt Congress. We too~ the same position in the Second Guam Task
Force Report i5SUC!i during the last days of ~e Bush Administration in Janwuy 1993.
3
Mutual consent clauses are not a novel pbenomeoon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordinante coptained six "articles of compru:t, between the origiruil States and the people and
States in the said territory, and [shall] forever remain Unalterable, unJess by common consent. • These ~cles
were incorporated either expressly or by reference into many early territorial organic acts. ~ v.
Englebrecht, 80 U.S. (13 Wall.) 434. 442 (1872). The copious litigation under these "unalterable articles"
focussed largely on the question whether the territories' obligations under them were superseded by the·
Constitution, or when the terri~ry became a State, as the result of the equal footing doctrine. We have,
however, not found any cases dealing with the question whether the Congress had the power to modify any duty
imposed on the United States by those articles.
- 2 .,.
COPY
�'·.
.---------------------~----.------------
U
~v.:..
•J J
·1
IJ,JU,)
@004
_ ft is certainly now too late to doubt the power of Congress to
the Territories. There have been some differences ·of opinion as to th.
particular clause of the Constitution from which the power is derived,
it exists has always been conceded. 4
* **
.
.
.
.
.
All territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Temtories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that wruch counties bear to the respective States, and Congress may legislate
. for them as a Statedoes for its municipal organizations. Tne organic law of a
Territory takes the place of a constitution as the fundamental law of the local
government. It is obligatory on and binds the terntorial'authorities; but
Congress is supreme, and for the purposes of this department _of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prorubitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511,542-43,546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],·
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to.
the United States."
to
Perhaps the power of governing a territory belonging
the United
States, which has not, by becOming a state, acquired the means of self-
4
Some derived that power from the authority of the United StAtes to acquire territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec, 3,
Cl. 2) pursuant to which Congress bas "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". Sec:: U, American Insurance Co. v.
Canter, 26 U.S. (1 Pet.) 511, 542 (1828); Mormon CbUrch v. United State:!, 136 U.S. 1. 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244, 290 (1901).
At present, the Territory Clause of the Constitution is gcnerally-<:onsidered to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
(1945); Examining Board v. Flores de Otero, 426 U.S. 572, 586 (1976); .H.!!.!:I:i§ v. Rosario, 446 U.S. 651
(1980); see also Wabol v. Villacrusis, 958 F.2d 1450, 1459 (9th Cir. 1992), Cert. ~sub !lQm. Philippine
Goods, Inc. v. Wabol, - - . U.S. _ , 113 S.Ct. 675 (1992). (Footnote supplied.)
-3-
COPY
�I \II
.:..tJ,
:J'f
l
I
.·\11
u· t:.. u.::..
.
oJ 1
-+
u
d
u .> .
. ·..
.
.
:\oN PR~s .
~
·0
u"'
. ~
U33
government, may result necessarily from the facts, that it is not within the
jurisdiction of any particular state, and is witttin the power and jurisdi~tion of
the Un.ited States.
·
\
;){
ff
\""'
. . ~ -o-4.~
~
"'**
.
~\
.
"In legislating for them [the Territories], Congress exercises the combined ·
powers of the general, and of a state government."
Id. at 542-43, 546.
The power of Congress to govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1,
. 19~ (1824), with respect to the Commerce Power:
·
This power [the Commerce Power], like all others vested in Congress is .
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the constitution. (Emphasis added.)
Tills limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. See~-. Hodel v. Virginia
Surface Mining and ReclamationAssoc.,452 U.S. 264, 276 (1981). That the power of
Congress under .the Territory Clause is subject to consdtutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over-the non-state areas persists "so long as they
remain in .a territorial condition." Shively v. Bowlby, . 152 U.S. l, 48 (1894). See also,
.
Hooven & Allison Co. v. fu.ru.!, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establishment of the Commonwealth of the Philippine
Islands and the ·final withdrawal of United States. sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It terminates when the area loses that status either by virtue of its
adniission as a State, or by the tennination of the sovereignty of the United States over the
area by the grant of independence, or by its surrender to the sovereignty of another country.
- 4 -
COPY
�-
u.
;, 'I
..~ .;_ \J;..
·) 1 ;
tgj l) uti
· d •J \) .)
IT.
r·
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
While Congress has the power to govern the non-state areas it nee<l not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas fuU powers of selfgovernment and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation, however, ;.Just be "consistent with the supremacy and
. supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441
(1872); Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (19'37). The requiiement that·
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federalsupervision means that such delegation is necessarily subject to the
right of Congress to revise, alter, or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Sharpnack, 355
U.S. 286, 296 (1958), Harris v. Boreharn, 233 F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.Zd 1323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state areas thus is contingent on the
6
retention by Congress of its p()wer to revise, alter, and revoke that legislation. Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power: of Congress under the
Territory Clause to give up. its sovereignty over a non-state area includes the power to· make·
a ·partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental po,wers to a
non-state area is an integral element of the delegation power. Congress therefore has no
5 Thorilpsog dealt with the District of Columbia's government which is provided for by Art. I. Sec. 8, Cl.
17 of the Constitution, rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court, however, held that in this ·ate.'! the rules relating to the Congressional power
to govern the District of Columbia and the non-state areas are identicaL Indeed, the Court retied on cases
dealing with non-state areas, ~ .• Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. Kin& County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative
authority under Art. I, Sec. 8, Cl. 17 of the Constitution to the District, subject to the power of Congress at any
time to revise, alter, or revoke that authority.
6
Congress has exercised this power with respect to the District of Columbia. The Act of February 21,
1871, 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President, a legislative assembly that included an dected ho~ of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20, 1874, 18 Stat. 116, which abrogated among others the provisions .
for the legislative assembly and a delegate in Congress, and established a government by a Colnmission
appointed by the President.
-5-
COPY
�lf!J
UU I
authority to enact legislation under the Territory Clause that would limit. the un ettcred
~
exercise of its power to amend or repeal.
.
\
.
The same result flows from the consideration that all non-state areas are sutJ' t to the
authority of Congress, wh.ich, as shown above, is plenary. This basic rule does not perm1t
the creation of non-state areas that are only partiaUy subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and tenninares only when the area becomes a State or ceases
be under United
States sovereignty. There is no intennediary status as far as the Congressional power is
concerned.
·
to
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal .
. III.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general
rule that one Congress cannot bind a subsequent Congress. except where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or· repeal of legislation enacted by it, such legislation
would be frozen permanently and would acquire virtUally coristitutional.status. Justice
Brennan expressed this thought in his dissenting opinion in United States Ttust Co. v. New
~. 431 U.S. 1, 45 (1977), a case fuvolving the Impainnent
the Obligation of
Contracts Clause of the Constitution (Art. I, Sec ·w, Cl. 1):
·
of
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rascals might perpetuate their policies simply by locking them into
binding contracts.
~
6-
COPY
�llOJ vuu
Nonetht.:lcss, tht.: maxim that one Congress cannot bind future Cun2ress.
legal rule, ha~ its limits. As early as 1810, Chief Justice Marshall explai~ed i
Peck, 10 U.S. (6 Cranch) 87, 135 (1810):
\
.
lQ33
~-
The principle asserted is that one legislature is competent to repeal ~
act which a former legislature was competent to pass; and that one legislature - - - - cannot abridge the powers of a succeeding legislature.
The correctness of this principle, so far as respects general legislation,
can never be controverted. But, if an act be done under a law, a succeeding
legislature cannot undo it.· The past cannot be recalled by the most absolute
power. Conveyances have been made, those conveyances have vested legal
estates; and if those estates may be seized by the sovereign authority' still~ that
they originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights .
. The powers of one legislatUre to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. l)of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the ca5e
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recogniZed in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, .except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from dtmriving persons or coworations of property without due
process of law. They cannot legislate back to themselves, without making .
compensation, the lands they have given ~his corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. ·The United States are as much bound by their contracts as are
individuals. (emphasis supj>lied.) ..
See also Bowen v. Aeencies
OppoSed to Soc. Sec.
Eritrapment, 477 U.S. 41, 54-56 (1986) .
. - 7-
COPY
�~
... v._
vo-t
vuuu
ti!,JUU:-J
• ~ J ' - ~ ...
IV.
The Due Process Clause does not Preclude Con ress fro
Amending or Repealing the two Mutual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth
e
precludes a subsequent Congress from repealing legislation for the governance of non-state
areas enacted by an earlier Congress under the Territory Clause. This question ~ust be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:.
No person shall ... be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and; second, sucb repeal or amendment would not deprive
. the non-state area of a property right within the meaning of the Fifth ~endment.
A.
A non-state area is not a person in the meaning of the Due Process Clause 'of the
Fifth Amendment.
.
. In South Carolina v. Katzenbacb, 383 U.S. 301, 323-24 (1966), the Court held that a
State is. not a person within the meaning of the Due Process Clause of the Fifth Amendment.
~ ~. Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), .£m.. ~. 493 U.S. 991
(1989) ("The State of Alabama is not included among the entities protected by the due ·
process clause of the fifth amendment"); and S~e of Oldaboma v. Federal Energy.
Regulatory Comm., 494 F.Supp. 636, 661 (W.D. Ok.l. 1980), ~. 661 F.2d 832 (lOth Cir.
1981), cert. denied,~ nom. ~ v. Federal Energy Regulatory Comm., 457 U.S. 1105
(1982) ..
Similarly it has been beld that creatures or instrumentalities of a State, such as cities
or water improvement districts, are not persons within the meaning of the Due Process
Clause of the Flfth Amendment. City. of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. IDWC/US, 701 F.
Supp. 121, 123-24 (W.D. Tex·l988).
The non-state areas, concededly, are I}Ot States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
-8-
COPY
�li!J U Ill
tile rationale of South Carolina v. Katzcnbach, 383 U.S. at 301, appears to be
bodies are not protected by the Due Process Clause of the Fifth Amendment.
oreover. 1t 1s
well established that the political subdivisions of a State are not considered pers ns protected
as against the State by the provisions of the Founeenth Amendment. See, ~,'Newark v.
New Jersey, 262 U.S. 192, 196 (1923); Williams v. Mayor of Baltimore, 289 U.S':<.J6, 40
.
(1933); South Macomb Disposal Authority v. Townsltip of Washington, 790 F.2d 500,
· 507 (6th Cir. 1986) and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated,
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129; 133 (1880):
·The tenitories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is JJ1Uch the same as
that which counties bear to the respective States ...
More recently, the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Natimi and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating to the governance of non-state areas does not create any rights or·
status protected by the Due Process Clause against repeal or amendment by subsequent
legislation.
_As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment,
i~e., if such amending or repealing legislation w9uld deprive a person of property without
due process .of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
. Commonwealth Act, would not create property rights within the meaning of that Clause.
Legislation Concerning the governance of a non-state area, wnether called organic act, .
· federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular. stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it bas occurred
in connection with the District of Columbia. See District of Columbia v. Thompson Co.,
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause,
-9-
COPY
�4£J u J I
legislation concerning the government of a non.-state area is subject to amenu
by subsequent legislation.
This leads to the question whether the addition of a mutuaJ consent clause, i.e. o
provision that the legislation shall not be modified or repeaJed without the consent of the
Government of the United States and the Government of the non-state area, has the effect of
creating in the non-state areas a specific status amounting to a property right within the
meaning of the Due Process Clause. It is our conclusion that tltis question must be answered
in the negative because (1) sovereign governmental powers cannot be contracted away, and
(2) because a specific political relationship does not constitute "property" within the meaning
·Of the Fifth Amendment.
I. As a body politic the Government of the United States has the general capacity to·
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) ll5, 128 (1831). This
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898).
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10, Cl. 1) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. l, 23 (1977).7 In a similar
.. context Mr. Justice Holmes stated:.
One whose rights, such as they are, are subject to state restriction,
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the latter, or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential po'?fers of the federal government. They are
., Cases arising under the Contract Clause holding that a State cannot contract away a Sovereign power are
also applicable to the contracts made by the federal government because the Contract Clause i.mpoSes more
. rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp. v. R.A. Gray Co., 467 U.S. 717, 733 (1984); National Railroad Passenger Com. v.
A.T. & S.F. R.,_470 U.S. 451, 472-73 n.25 (1985). Hence, when state legislation does not violate the
Contract Clause, analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
R Cited with approval with respect to federal legislation Ln'Norman v. B. & O.R., 294 U.S. 240,308.
( i935).
- 10 -
COPY
�tg]UU,}
,'\
~
therefore not binding oil the United States and cannot confer a property .intere
the Fifth Amendment. 0
oN PRfs'
I<)\,.
u33 <:<:'~.
t
protected by
uv
t
r-
~
':-?>
More generally, the Supreme Court held in Bowen v. A encies
osed f Soc. Sec. ~-!>~
Entrapment, 477 U.S. 41, 55 (1986), that the contractual property rights protected by
·
Due Process Clause. of the Fifth Amendment are the traditional private contractual rights,
such as those arising from bonds or insurance contracts, but not arrangements that are part of
a regulatory program such as a State's privilege to withdraw its participation in the SociaJ
· Security system with respect to its employees .. Specifically, the Court stated:
But the "contractual right" at issue in this case bears little, if any,
·resemblance to rights held to constitute "property" within tl)e meaning of the
Fifth Amendment. The termination provision in the Agreement exactly
tracked the language of the statute, conferring no right on the State beyond
that contained in § 418 itself. The provision constituted neither a debt of the
United States, ~ ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see 1.wQ} v. United States, ~· The termination clause
was not unique to this Agreement; nor was it a term over which the State had
any bargaining power or for which the State provided ind~ndent
.
consideration. Rather, the provision simply was part of a regulatory program
over which Congress retained authority to amend in the.exercise of its power
to provide for the general welfare.
·
.
.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
. the Govenurient of Guam, or that future federal statutes and regulations shall not apply to
Guarri without the consent of the Government of G~ clearly do not constitute conventional
private contracts; they are elements of a regulatory system.
·In the past the Department of JustiCe at times has concluded that .a non.:.State area may
have a vested interest in a specific status which would be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
Cases such as~ v. United States, 292 U.S. 571 (1934), and~ v. United Slates, 294 U.S. 330
(1935);
not contrary to this conclusion; Both cases involved COllUJlerCial agreements ~ynch: insurance;
fm:y: Government bonds) In Lynch the Courfbeld that cOngress could not amend the contract merely to save
money "unless, indeed the action falls within the federal police police power or some other paramount power. •
292 U.S. at 579. ~involved bonds issued by the United States under the authority of Art. I, Sec. 8, CJ. 2
of the Constitution, to borrow money on the credit of the United States. The Court held that Congress did not
have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating one
of the pivotal te~ of the bonds to save money. While the Court held that the United States had broken the
agreement, it nevertheless held that plaintiff could not recover because, as the result of mgulations validly issued
b_r the United States, he had not suffered any monetary damages.
9
are
° Cf.
1
n.2.
- 11 -
COPY
�. j'
l,
!
\
;\ON PRc.s~,
.~
0~
0
033
~\
view of the rulings of rhe Supreme Court that legisla'tion concerning the govema ce of a non~·
r:: j .
state area is neCessarily subject ro Congressional amendment and repeal; that gov,, mmcntal
bodies are not persons within the meauing of the Due Process Clause; that goverrtmental
~/
powers cannot be ~ontracted away, and esp. ecially the exposition in the r~~nt Bow~n..case,
~Y>~ .
that the property nghts protected by the Due Process Clause are those ansmg from p~
law or commercial contracts and not those arising from governmental relations. t.l
Sections W3 and 202 therefore do not create vested property rights protected by the
Due Process Clause of the Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or w provide that its legislation shall apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions, therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisi6ns in the. Guam
·
Commonwealth Act. 13
Finally, the Department of Justice has indicated that it would honor past· commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 1989 Task force proposal to· amend Section 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
·
11
It is significant that the circumstances in which Congress can effectively agree not to repeal or amend
legislation were discussed in the context of commercial contracts. ~. 477 U.S. at 52.
Bowen, it is true, dealt with legislati~n that expressly reserved the right of Congress to amend, while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
consent of the.Government of Guam. The underlying agreements, however, are not of a private contractual
nature, and, hei::tce, are not property within the meaning of the Due Process Clause. We cannot perceive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
.
.
11
13
The conclusion that Section 202 of the Guam Commonwealth Act (in'applicability of future federal
legislation to Guam withOut the consent of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 202. In 9!!!:!!! v. WaJlace, 306 U.S. 1, 15-16 (1939), and United
States v. Rock: Rgyal Co-op. 307 U.S. 533, 577-78 (1939), the Court upheld l~gislation that made the
effectiver:1ess of regulations dependent on the approval of tobacco farmers or milk prodUCCI"'l affected by them.
The Co.Urt held that this approval was a legitimate condition for making the legislation applicable. Similarly, it ·
could be argued that the approval of federal legislation by the Government of GUam is a legitimate condition for
making that legislation applicable to Guam. Since, as stated above, a future Congress would not be bound by
Section 202, we need not decide the question whether the requirement of approval by the Government of Guam
for ~ future federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
- 12 -·
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
To President Clinton through Marica Hale from John Garamendi.
Subject: Guam Commonwealth (4 pages)
12/30/1996
RESTRICTION
P5
Lo35
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
ONBox Number: 20350
FOLDER TITLE:
Guam - Department of Interior
Jamie Metrailer
2006-0193-F
'm584
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)l
Freedom oflnforination Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA] .
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]'
P6.Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b}(l) of the FOIA)
b(2) Release would disClose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b}(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
·
purposes [(b}(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
.
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of thd.GWfbN LIBRARY PHOTO.C.OPY
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
J"'''
I
I
I
::
�0:.\
·-----"
United States Department of the Interi
OARCEOFTHEDEPUTYSECRETARY
W&Shington. D.C. 20240
Memorandum
December 30, 1996 ·
TO:
Honorable William J. Clinton
President ofthe United States
·'THROUGH: . Marcia Hale
Director, White House Office of Intergovernmental Affairs
FROM:
John Garamendi
Deputy Secretary oft
etffi!fed~
I understand that you met briefly with Guam Governor Carl Gutierrez on December 16, 1996, to
discuss the status of the Guam Commonwealth negotiations. I am informed that you want key
issues brought to closure by January 20, 1997, before certain members of your Cabinet leave the
Administration. This memorandum summarizes the negotiiuions and status of certain "deal
breaker" issues. The summary below is supplemented by attached briefing materials.
When I took over these negotiations in January of this year, I approached the issues from the
perspective of maximizing the amount of self-government for Guam in a way that would
safeguard the fundamental strategic interests of the United States. There are vestiges of
colonialism in Guam's current status as an ''unincorporated territory~" Although it has its .own
locally-elected governor and legislature, Guam is automatically subject to almost all Federal laws
and policies. In 1982 and again in 1987, Guam voted to change its political'Status for greater selfgovernment through Commo·nwealth. From a practical perspective, the blanket application of
Federal policies developed for mainland conditions seem inappropriate given Guam's·size,
distance, geography, economy, history and culture. From a political perspective, blanket
application of Federal policies is unfair beCause Guam lacks participation in the Federal process
through either full voting representation in Congress or electoral votes for President I do not
believe that this situation is consistent With the ideals of a democratic society. I have therefOre
advocated positions in the Guam Commonwealth negotiations that provide Guam with greater
' input and flexibility in the application of Federal policies to the island.
Statu Of Deal Breaker haua
The original Draft Act contains approximately 90 sections Spread over 12 Titles .. In prior
Administrations, Guam has insisted that I 00 percent of these issues be resolved in precisely tJ:le
same
they
approved in ·the 1987 Guam plebiscites. In our negotiations and through the
way
were
CLINTON LIBRARY PtfC>:FOC0,_Y
�leadership of Governor Gutierrez., Guam has reduced its demands and identified a
issues as "deal b~~rs" --i.e., issues ~hich are at the core of Guam's Common
Guam accepted the concept_ofnegotiating princip!~s first, then language. This p
the following proposed policies:
Mlllu.ai Consent- agned. Once a commonwealth paekage is enacted, Mutual Co
provides that neither Guam nor the United States can make any changes to the package without
the_express approval of the other party. the Justice Department contends that one Congress
cannot bind subsequent Congresses from unilaterally changing the Guam Commonwealth
legislation. Guam "cites legal arguments indicating the opposite. Both sides reached agreement
. by inserting a clause making mutual. consent enforceable.''to the extent constitutionally
permissible." This preserves thejssue for subsequent determination by the courts.
. I
· . Chamorro Self-Determination - agreed. The. original" Draft Act provided for Chamorro
self-determination -- a binding, political act to be exercised solely by the indigenous people of ·
Guam to determine the ultimate political status of the island. The Justice Department questioned
the constitutionality of this provision on due process and equal protection grounds. These
concerns were addressed when both sides agreed to language making Chamorro selfdetermination an advisory act that would not be sponsored or funded by the government.
Fmeral ExceM Ltmd- neetb tkcision. The original Draft Act provided for a Guamcon1rolled Cominission that had the unrestricted power to determine which Federallaods in
Guam are excess and to mandate their cost-free transfer to Guam without restrictions or
compliance with Federal standards. This was strongly opposed by a number of agencies,
including the Navy and the Air Force, which together own about one-third of Guam. Guam's
current proposal, which I support, ·is significantly more modest. It proposes that once Federal
lands in Guam are declared excess by the military or other Federal agency, the Government of
Guam should be given the right to obtain such lands cost-free, but subject to all other applicable
Federal standards. A nwnber of agencies, including Defense, GSA and the Fish and Wildlife
'
Service still oppose this modest proposal.
Joint Co111111ission/Applkation of Fethral R~gulatiom- n~eds decision. The original
Draft Act called for a Guam-controlled Commission to regulate almost all aspects of Guam's
relationship to the United States, including the power to modify the application ofFederallaws
and regulations to Guam .. All Federal agencies strongly opposed this provision for jurisdictional
and operational reasons. Justice also questioned the constitutionality of endowing a local
commission with Federal regulatory and legislative powers. Guam's current proposal provides
for a five-member commission, three of which would be Cabinet officers and two of which
would be nominated by the Governor and appointed by the President. ·with respect to Federal
laws, the commission would merely provide recommendations to Congress for consideration.
With respect to Federal regulations, the commiSsion would be empowered to make final
·determinations on how regulations are applied to Guam. I support this mechanism as a way of
institutionalizing Guam's participation in the Federal regulatory process.
2
CLINTON LIBRARY PHOTOCO:t"¥'
�~"\ON Pf?~
vv Ce35
&0
1
Immigration- needs decision. Guam desires local control over immig tion to the
island. It wants to significantly reduce the amount ofpennanent immigration m Asia, while
:; \
increasing its ability to bring in temporary workers. The Department of Labor d Federal law
;: ,;
enforcement authorities on the island strongly oppose giving Guam control over}
·gnltion. --or$
They cite concerns about government corruption in Guam and the desire to avoid
~read 't)~
labor and immigration abuses which have occurred in the Commonwealth of the Northern
Maiiana Islands. I believe that these concerns can be met by placing very specific and rigorous
safeguards in the Guam legislation that would ensure adequate local enforcement of local laws
that are at least as stringent as Federal laws.
Other Issues --There are other high. priority is~ues which Guam would like resolved in
an expeditious manner: e.g., Labor, Tax, Trade, International Activities and Environmental
Regulation, among others .. I believe that resolution of these matters will fall into place if we can
resolve the issues outlined above.
Delinkage From Puerto Rico
Some have suggested that Guam Commonwealth may have an impact on the Administration's
efforts to deal with Puerto Rico status options. I do not believe that there will be much impact, if
any. First, Guam and Puerto Rico are literally oceans apart in terms of culture, history,.
geography and population. I am informed ,that neither the leadership of Guam nor the leadership
of Puerto Rico desire to see a linkage between their respective status quests. Guam is much
. further along in pursuing a changed political status -- it selected commonwealth in 1982,
described its content in 1987 and has been negotiating with the United States on the details of
commonwealth since 1988. In contrast, Puerto Rico is still struggling with the initial step of
choosing a status option among statehood, enhanced commonwealth and independence, an
internal debate that has raged unabated since the eariy 1950's. Finally, there is only one
fundamental issue in Guam Commonwealth that inay be relevant to Puerto Rico -- mutual
consent and its implications on the viability of Puerto Rican Commonwealth status. However,
even this issue has limited impact because the Justice Department's positi~n on mutual consent
in Guam Commonwealth has already been publicized in Puerto Rico.
Outlook
Sustained focus and involvement by the White House will provide the broader policy fi'a!Dework ·
to guide agency consideration of Guam Commonwealth. Without White House direction, agency
positions on key commonwealth issues are likely to remain unchanged. Congress bas not
reviewed commonwealth since 1989, when it directed the Executive Branch to work out
diffe1csx:es with Guam. Nevertheless, there are indications that the majority in Conaress may be
sympathetic to commonwealth provisions that are consistent with the devolution of Federal
control to local governments. Meanwhile, Guam's leadership is disillusioned with the Ienath of
the negotiating process and the perception that little progress bas been made. In light of
indications that U.S.-Guam relations are growing increasingly unpredictable, I strongly
3
CLiNTON liBRARY PHO?PQQ.~~
�~ON PR£8
lo
~
recommend speedy resolution of priority commonwealth issues. The process has g neon too
long and Guam is too important for U.S. strategic interests to let our relationship d teriorate
further due to inaction.
·
·
lo 35
Attachments
1.
Memorandum to Sandra Kristoff, NSC Asian Affairs, dated December 12, 1996
·(Procedural History of Guam Negotiations, Outlook)
2.
Letter to William J. Perry, Secretary of Defense, dated December 3, 1996 (Resolution
issues for Defense: Guam Excess Uinds)
3.
Letter to Janet Reno. Attorney General, dated December 3, 1996 (Resolution issues for
Justice: Immigration, Labor, Excess Lands)
4. .
Letter to Robert Reich, SecretarY of Labor, dated December 3, 1996 (Resolution issues
for Labor: Immipatio~ Labor)
S.
Letter to Warren Christopher, Secretary of State, dated December .3, 1996 (Resolution
issues for State: Immigration, Foreign Affairs)
6.
7.
8.
Letter to the President, elated November 8, 1996 (Status Report on Guam
Commonwealth);
Draft Guam Commonwealth Ac~ dated August 23, 1996 (Contains legislative language
. being negotiated on all. issues as of August 1996)
'
Guam Commo11wealth Bill, Section-By-Section Analysis, dated December 1993
(Compilation by Interior summarizing original provisions of Guam Commonwealth and
comments made by agencies in the 1989 and 1992 Federal Interagency Task Force
Reports)
9.
Puerto Rico Status Options, Congressional Research Service Issue Brief (Summarizes
history from 1898 to legislative proposals in the 104th Congress) ·
<% ..
~\
'
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
· 001. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
DATE
07/28/1994
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
OA/Box Number: 20350
FOLDER TITLE:
Guam - Department of Justice
.Jamie Metrailer
2006-0193-F
·m585
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S. C. 552(b)]
Pl Na.tional Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office ((a)(2) of the PRA]
P3 Release would violate a Federal statute ((a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA] ·
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIAl
.
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9}_qf tlu:.E.QUL
a
C. Closed in accordance with restrictions·contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
.
·. mJJmJI~.l.1l:iru\R:Y PHOif:O.COf!lY
�':..-::~::
; ·:-.c:
~-:~
l..~..;,,·.:~,":t \:-:::"':1e::• Ge:ne:rai
.:·.
.-
July 28. 1994.
\IE.\lORA.'IDlYI FOR
THE SPECIAL REPRESE."\fT ATIVE
FOR GL"A.\1 COMM01'!WEALm
From: Teresa Wynn
Roseborough~
Deputy Assistant Attorney General ,
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth_ Bill, H.R. 1521, 103d Cong., lst Sess. (1993) contains
two sections· requiring the mutual consent of the .Government of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws. rules, and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam insist that these-two sections are crucial for the autonomy and economy of Guam_. The
fanner views of this Office on the validity or efficacy of mutual consent requirements
included in legislation governing the relationship between the federal government and nonstate areas, i.e. areas under the sovereignty of the United States that are not States, 1 have
' Territories that have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective governor, resent being called Territories and claim that that
legal term and its implications are not applieable to them. We therefore shall refer to all Territories and .
Commonwealths as non-state areas under the sovereignty -of the United States or briefly as non-state areas.
�::. r :--e;::n . r.~t~\;;-r.t · \\';: :herer'ore ha\e -.:Jret'tdl~ rc:eumtneJ thts issue .
.thJt thes-: ..:!Ju~es .r:11se serious ..::onstiruuonal issues Jnd .ue legally unenforceable ·•
In our vit!w. it is important that the text. of the Guam Commonwealth .-\ct no
Jn} illusory c.xpectations that might to mislead the electorate of Guam about th~
...:L1 n~equenccs of the'lcgislation, We must therefore oppose the inclusion in the
Common\I.~Jlth Act of any provisions. such as mutual consent clauses. that are legally
unenforceable. unless their unenforceabi~ty (or precatory nature) is clearly stated in the
document itself.
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereiemy of the United States
is Plenary within Constirutional Limitations
All territory under the sovereignty ofthe United States falls into two grou.ps: the
States and the areas that are not States. The latter. whether called territories, possessions, or
commonwealths. are governed by and under the authority of Congress.:. As to those areas, .
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129. 132-33 (l880). There the Court held:
.
.
.
: To our knowledge the first consideration of the validity of mutual consent clauses Cx:~urred in 1959 in
with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department .took
the position that the answer to th.is question was doubtful but that such clau.se$ should not be opposed on the
ground that they go beyond the constirutional power of Congress. [n 1963 the Department of Justice opined that
such .:lauses were legally effective because Congress could create vested rights in the status of a territory that
~auld not be revoked unilaterally. The Department adhered to this position in 19/3 in connection with then
pending \iicronesians starus negotiations in a.-memorandum approved by then Assistant Attorney General
Rehnquist. On the basis of this advice, a mutual consent ·clause was inserted in Section !OS of the Covenant
with the :-lorthern Mariana Islancb. The Department continued to support the validity of mutual consent clauses
in ;;onnection with the First 1989 Task Force Report on the Guam Coaurionwea!th Bill. The Department
revisited th.is issue in the early 1990's in connection with the Puerto Rico Status Referendum Bill in light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41. 55 (1986), and conCluded that there could
not be an enforceable vested right in a politic.&! status; hence that mutual consent cl&u.se$ were ineffective
because they would not bind a subsequent Congres,. We took the same position in the Second Guam Task
Force Report issued during the lut days of the Bush Administration in JanUAJ')' 1993.
conn~tioa
) \futual consent clau.ses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 of
the ~orthwest Ordinance contained six "articles of compact, between the original States and the people and
States in the said territory, and [slu.J.l) for:ever remai.D unalterable, unless by common consent. • These articles
were incorporated either expressly or by reference into !IWlY early territorial organic acts. Clintog v.
Englebrecht. 80 U.S. (13 Wall.) 434, 442 (1872). The copious litigation wider these "unalterable articles"
focussed largely on the question whether the territories' obligations under them were superseded by the
Constitution, or when the territory became a State, as the result of the. equal footing doctrine. We lave.
however. not found any cases dealing with the question whether the Congress had the power to modify any duty
imposed on the l;nited States by those articles.
- 2 -
�fL :~ .:::-:J1nh no•.1. tL~O IJ.t:
JL•ubr rhe po~J.cr of C1..1n£rcss to 2o\:,
the T::mtories. There ha" c been some differences of opinion- as w th~ ·
particular -:lausc of the Constirution from which the power is derived. bur th
· it exists has always been ..:onceded.J
'(..JJ3(p
to
1
.
"
,
.
. .-\11 territory· within the jurisdiction of the L"njted States not mcluded in
any State must necessarily be governed by or under the authority of Congress.
Th~ Temtories are but political subdivisions of the outlying dominion of the
Cnited States. Their relation to the general goverrunent is much the same as
th~it which counties bear to the respective States,. and Congress may legislate
f\~r them as a State does for its municipal organizations. The organic law of a
.Territory takes the place of a constirution as the fundamental law of the local
government. It is obligatory on and binds the territorial authorities: but
Congress is supreme. and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
Yarl.kton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (l Pet.)5ll. 542-43, 546 (1828). The Chief Justice
explained:
In the mean time .fi. e. the interval between a~quisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
. rules and regulations, respecting the territory, or other property belonging to
the United States."
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of. self.
.
' Some denved that power from the authority of the United S~te3 to acquire territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constirution of the United S~tes (Art. IV, Sec. 3.
Cl. :1 pursuant to wbic:b Congress bas "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belo~ging to the United States". See~ American l:nsurance Co. v.
Canter. :6 U.S. (1 Pet.) Sll, 542 (1828); Monnog Church v. UnitedS~te3, 136 U.S. 1; 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244, 290 (1901).
At present. the Territory Clawe of the Constitution is geoerally·considered to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison CA. v. Evatt, 324 U.S. 652, 673-674
t 1945): Examini.og Board v. Flo!'eS de Otero, 426 U.S. 572, 586 (1916); .H!r!iJ v. Rosario, 446 U.S. 651
( 1980): ~ also Wabol v. Villacrusis, 958 F. 2d 1450, 1459 (9th Cir. 1992), £91. denied sub .!lQ.!;g. Philiopine
Goods. lnc. v. Wabol, - - . U.S._, 113 S.CL 675 (1m). (footnote supplied.)
-3 -
�.fn !-:g-isiJting for them [the Territories]. 'Congress exercises the combined
· po•xcrs ur' the general. and of a state government."
IJ. at
5~2--U. 5~6.
The power of Congres.s t·o govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subjeCt to the applicable provisions of the
Constitution .. As Chief Justice Marshall stated in Gibbons v. O~den, 22 U.S. (9 Wheat) l.
196 (182-1-). with respect tO the Commerce Power:
This power [the Commerce Power], like all others vested in Congress is· .
complete in itself. may be exercised to its. utmost extent, and acknowled~es no
limitations. other than are prescribed in the constitution. (Emphasis added.) ·
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution~ ~~ ... Hodel v. Virm
Surface Minin~ and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause· is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901): District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953) ..
Finally. the power of Congress over the non-state areas persists "so long as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1·,48 (1894). ·~also,
Hooven & Allison Co. v. Evan, 324 U.S. 652, 675 (1945) (recognizing that during the
intennediary period between the establishment of the Commonwealth of the Philippine
Islands and the final withdrawal of United States' sovereignty from those islands "Congress
retains plenary power over the territorial government"). ·
The plenary Congressional authority over a non-state area. thus lasts as long as the
area retains that status. It tenninates when the area loses that status either by virtue of its
admission as a State, or by the termination of the sovereignty of the United States over the
area by the grant of independence, or by· its surrender to the sovereignty of another country.
-4-
�IT.
The Revocable ~arure of Congressional Legislation
Rclatin~ to the Government of ~on-State .
..Veas
CL1ngress has the power to govern the non-stare areas it need not e:<,ercise that
power itself. Congress ..:an delegate to the inhabitants of non-state areas fuU powers of self-.
go\ emment and an autonomy similar to trlt of States and has done so since the beginning of
the Republic. Such delegation. however ... ust be "consistent with the supremacy and
super.,-ision of ~ational authority''. Clinton v. En~lebrechr. 80 U.S. (13 Wall.) -1.34 . .WI
11872\: Puerto Rico v. Shell Co., 302 U.S. 253. 260. 261-62 (1937). ·The requirement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to. the
right of Congress to revise. alter. or revoke the authority granted. District of Columbia v. ·
Thompson Co .. 346 U.S, 100. 106. 109 (1953). 5 Sg also, United States v. Sharpnack, 355
U,S. 286. 296 (1958). Harris v. Bareham, 2~3 F.2d 110, 113 (Jrd Cir. 1956), Firemen's
Insurance Co.v. Washineton, 483 F.2d. 1323, 1327 (D.C. Cir. 1973), The power of
Congress to delegate governmental powers to non-state areas thus is contingent on the .
·. retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
Whtk
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its . sovereignty over a non-state area includes the power to make
.
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the .power to amend or repeal legislation delegating governmental powers to a·
non-state area is an integral element of the delegation power. Congress therefore has no·
~ Thompson dealt with the District of Columbia's government which is provided for by Art.
I. Sec. 8. Cl.
to wbom the Congressional power is derived from
the Territory Clause." The Court, however. held that. in this area the rules relating to the Congressional power
to govern the District of Columbia ond the non-state areas. are identicaL Indeed. the Court relied on cases
d<!aling with non-state areu, y., Hornbuckle v. Toombs. 85 U.S. (18 Wall.) 648. 655 (1874). and
Cluistianson v. Kjgs Cougty, 239 U.S. 365 (1915), where it beld that Congress can delegate its legislative
authority under Alt. 1, Sec. 8, Cl. 17 of the Coostitution to the District, subject to the power of Congress at any
time to revise, alter, or revoke that authority.
·
[7 of the Constitution. rather than with the non-state areas as
6 Congress has ex.ercised this power with respect to the District of Columbia. The Act of FebrUary 21.
1871. 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President. a legislative assembly that included an elected bouse of delega~. and a delegate in Congress. The
1871 Act was repealed by the Act of June 20. 1874. 18 Stat. 116. which abrogated among othen the provisions
for the legislative assembly and a delegate in Congress. and estAblished a government by a Commission
appointed by the President.
-
-5-
�. [l, -::nJ_: i-::::t:i!Jrron under the Territor\
.
.lu[hL\nt'.
'
:x:r-.:tse
l)t'
its power to amend or repeal.
The same result tlows from the consideration that aU non-state areas are subj
Jurhoriry of Congress. which. a·s sho\l..n above. is plenary. This basic rule docs not pennit
the ...:n~atton of .oon-statc areas that are only partially subject to Congressional authority. The
plenary pou.cr of Congress over a non-state area persists as long .as the area remains in that
...:ondition .1nd termtnarcs l~nly when the area becomes a State or ceases to be under Cnited
States sovereignty. ·There is no intermediary status as far as the Congressional power is
concerned.
The two mutual consent clauses contained in the proposed CommonwealthAct
. therefore are subject to Congressional modification and repeal.
ill.
The rule that legislation delegatin~ ~overnmental powers to a non-state area .
must be subject to amendment and ~1 is but a manifestation of the ~eneral
rule that one Con~ress cannot bind a subsequent Conmss. except where it
creates vested riihts enforceable under the Due Process Clause of the Fifth
Ainendment.
.
.
.
.
The rule that .Congress cannot surrender its power to amend or iepeai legislation
relating to the government of non-state areas is but a specific application of the ma.x.irri that
one Congress cannot bind a subsequent Congress and the case law developed under it. ·
'
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or i-epeal of legislation enacted by it, such legislation
would be frozen permanently .and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jers·ey, 431 U.S. 1, 45 (1977), a case involving ~he Impainnent of the Obligation of
Contracts Clause of the Consti~tion (Art. I, Sec 10, Cl. 1):
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
.desires of those whom. they represent. Crucial to this end is .the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rascals might perpetuate their policies simply by locking them into
binding contracts.
-
-6-
�.·
.
.
.
.
. .
.
it
.
.
.
~'\ 0~ PRE:.s;()
(J'V
/"''J.r_ -~
~
\·. cc:Ccic". :::c lnL\ir'n •hat one C,;ngress connot binJ iuturc Cc''"'"·
c·. ec. .
kg:1l ruk. has its limns. :-\s carl~ as I~ It). Chief Justice \farshall cxplai~ed in Fetcher·, .
Pc(k. [1) L'.S. 16 CranchJ 87. !3) r 1810\:
\
.
~,
~ •.
1
.t'}
~/
~~
.
The principle asserted is· that one legislature is competent to repeal any
.1ct whi.ch..a former legislature was competent to pass: and that one legislarure
~·annot abridge the powers of a succeeding legislature.
The correctness of this principle. so far as respects general le£islation.
can never be controverted. But. if an act be done under a law. a suc~eeding ·
legislature cannot undo it. The past cannot be recalled by the most absolute
power. Conveyances have· been made. those conveyances have vested legal
estates. and if those estates may be seized by the sovereign authority. still. that
.
they originally' vested is a fact, arid cannot cease to be a fact.
When. then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers .of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause·(Art. I, Sec. 10. Cl. 1) of
the Constinition and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinkine-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights. except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation ofcontracts, but equally with the States they are
prohibited from deprivine petsons or corwrations of property without due '
process of law. They cannot legislate back to themselves, without making · ·
compensation, the lands they have given ~his corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect. to the subsidy bonds
orher;vise than according to the tenns of the contract already made in that
connection. The United States are as much bound by their contracts as are
individuals. (emphasis supplied.)
See also Bowen v. A&encies Qpmsed to Soc. Sec. Entrapment, 477 U.S, 41, 54-56 ( 1986).
-7-
. ·
.
�rv.
The Due Process Clause does nor Preclude Congress from
.-i.mending or Repealing the rwo ~furual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequent Congress t'rom repealing legislation for the governance of non-stare
areas enacted by an earlier Congress under the Territory Clause: This question must be
answered in the negative:
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of life. liberty, or propert): without due
process of law. (emphash supplied.)
·
is
This Clause· inapplicable to the repeal
clauses here involved for two reasons. First, a
meaning of the Fifth Amendment. and, second,
the non-state area ofa property right within the
or. amendment of the two mutual consent
area is not a "person" within the
such repeal or amendment would not deprive
meaning of the Fifth Amendment.
non~state
A.
A non-state area is not a person in the meanin~ of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. ~. 871 F.2d 1548, 1554 (llth Cir.), ~denied, 493 U.S. 991
( 1989) ("The State of Alabama is not included among the entities protected by the due
process clause of the fifth amendment"); and Sta~e of Oklahoma 'v. Federal Ener:c
Regulatory Comm., 494 F.Supp. 636, 661 (W.O. Old. 1980), iff:4, 661 F.2d 832 (lOth Cir.
1981 ). cert. denied, ~ nom. ~ v. Federal Enerxx Reeu1atoa Comm., 457 U.S. 1105
(1982).
s·imilarly it bas been held that creatures or instrumentalities of a State, such as cities
or water improvement districts, are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. City of Sault Ste 1 Marie. Mich. v. Andrus, 532 F. Supp.
157. 167 (D.O.C. 1980); El Paso. County Water Improvement District v. IBWC/US, 701 F.
Supp. 121, 123-24 (W.O. Tex 1988).
· The non-state areas, concededly, are not States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, govemmen~ bodies, and
-. 8 -
�,~ON Pf?~S'
,~
0
be·~~·'~~J!Jcr ~\
·';;: ::H:\.'r:..1!;: .'r s,'uth C. lri_)llna \. Katzc:nbach. 383 l·.s. J.t 301. Jppears tl1
h,_,Jie-; Jre not protected b" the Due Process Clause of the Fifth Amendment. \ ·1rcu\cr. :t :'
;:;:
.\ell -:stJ.blished that the p~LiticaJ subdivisions of a Stare are not ..:onsidered perso. prote-.:r-:d
:i>())
as .1gainst the State by the provisions of the Founeenth Amendment. See. c. g.. ~e rk , . ;.Y>...q
~<e\\ Jcrsev. 262 U.S. 192. !96 (1923): Williams v. \favor of Baltimore. 239.C.S. 36.-..--1 lli33l: S\1uth .\Iiicomb Disposal Authority v. Township of Washing-ton. 790 F.2d 500. 505.
51): 16th Cir l ~86 l and the authorities there cited. The relationship of the non-state areas to
the Federal Go\emment has been analogized to that of a city or county to a State. :\s stated·.
o.;upra. the Coun held in National Bank v. County of Yankton, 101 U.S. 129. IJJ ( 1380!:
The territories are but political subdivisions of the 0Utlying dominion of che
L'nited States. Their relation to the general government is much the same as
that which counties bear to the respective States ...
\tore recently. the Cou11 explained that a non-state area is entirely. 'the creation of
Congress and compared the relationship between the Nation ·and a non-state area to that
between a State and a city. ·United States v. Wheeler, 435 U.S. 313, 321 (1978). It foUows
that. since States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the mea.nlng of the Fourteenth
·. Amendment; the non-state areas are not persons within the meaning of the Due Process
·
Clause of the Fifth Amendment.
B.
Legislation relatine to the ~ovemance of non-stat¢ areas does not create any ri~hts or
srarus prorected by the Due Process Clause aeainst re:peal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would viol.ate the Due Process Clause of the Fifth Amendment,
i.e., if such amending or. repealing legislation w9uld deprive a person of property without
due process. of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, su·ch as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
Legislation Concerning t·he governance of a non-state area, whether called organic act,
federal relatioos act, or commonwealth act, that does not contain a mutual consent clause is
dearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
in connection with the District of Columbia. ~DiStrict of Columbia v. Thompson Co.,
3~6 U.S. 100, 104-05 (1953); ~ n·.6. Hence, in the absence of a mutual consent clause,
-9-
�· oN Pn
~"\
'T£:.s:
v
0
;::;:,;J.ti•_:.
[1·, ~ubsc:yuc:nt
.
:nc
k::2tslauon.
_.:n-..:::::tn~
~L)\cmmc:nt
.
\.1 r J.
.·
:iL~n-'t.1tc 1r=.1
·
. ·.This lead: to the quest1on whether the
Ga·(p
ts subJe-:-t tu lmenJmc:n ._,r ::;:::_::
·
\
0
~
:;\,
,_
,..._
a~diuon of a mutual conse.nt dause. ~ij
pro\ tston that the legtslation shall not be modtttcd or repealed wtthout the consent of the
· GL)\ emment ot~he Cnited States and the Government. of the non-state area. has the effect of
-.:re.Jt-ing in the non-state areas a specific status amounting to a property right within the
mcJning L)f the Due Process Clause. It is our conclusion that this question must be answered
in the negative because ( 1) sovereign governmental powers cannot be contracted away. and
t 2 l because a specific political relationship does not constitute "propeny·· within the meaning
of the Fifth Amendment.
l. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tin~ey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power. however. is generally limited tp those types of'contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted at;1iay." North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898).
~fore recently the Supreme Court held in. connection with legislation arising under the.
Contract Clause (Art. I, Sec. 10. Cl. 1) ofthe Constitution that "the Contract Clause does
not require a State to adhere to a comractthat surrenders an essential attribute of its
sovereignty."· United States Trust Co. v. New Jersey, 431 U.S. l, 23 (1977). 7 In a.similar
context Mr. Justice Holmes stated:
One whose rights. such as they are, are subject to state restriction,
cannot remove them from· the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not ~end legislation
relating to the government of a non-state area without the consent of the latter, or that federal
·legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport. to surrender essential po~ers of the fedetal government. They are
· Cases arisina under the Contract Clause holding that a State cannot contract awiy a sovereign power are
also applicable to tbe contracts made by the federal government because the Contract Clause imposes more
rigorous restrictioaa on the States than the Fifth Amendment imposes on the federal government. Pensiog
Benefit Gu..aralltv Corp. v. R.A. Gray Co., 467 U.S. 717. 733 (1984); Natjoga.J Railroad Passenger Corp. v.
A.T. & S.F. R .. _470 U.S. 451, 472-73 n.25 (1985). Hence, when state legislation does not violate the
Contract Clause. analogous feder1.1 legislation is aU the more permissible u.oder the Due Process Clause of the .
Fifth Amendment.
' Cited with approval with respect to federal legislation in Nomw1 v. B. & O.R .. 294 U.S. 240, 308
( 1935).
• 10 -
1
~'
�,~'\ON Pfr~..S/.
:[~;:-~::r,_•r:: :-:~·' ':'::l~lll2' · 1n ~he l"nHcd StJt::~ JnJ _JnnL)t ..:onr'cr
~he Fifth Amendment.:
.
J
, _u'v ~ <:>~
propert: 1ntcrcst pt.[::_:::...!~.
\
\fore generaUy. the Supreme Court held in Bowen v. A encies
osed to~ ~. Sec.
EntrJpment. ~77 U.S.~!. 55 !1986). that the contractual property rights protected by t
Due Procc5s Cla-use of the Fifth Amendment are the traditional private contractual rights.
~uch as tho~c Jrising from bonds or 1nsurance contracts. but not arrangements that are part ot'
J regulatory program such as a.State's privilege to withdraw its participation in the Soc'ial·
Security system with respect to its. employees. Specifically, the Court stated:
But the ''contractual right" at issue in this ca·se bears little. if any .
. resemblance to rights held to constitute "property'.' within the meaning of the
Fifth Amendment. · The tennination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § ~ 18 itself. The provision con'stituted neither a debt of the
United States.~~ v. United States. supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see Lynch v. United States, supra. The tennination clause
was not unique to this Agreement; nor was it a tenn over which the State had ·
- any bargaining power or for which the State provided independent
·consideration. Rather. the provision simply was part of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for-the general welfare. ·
Agreements that the Guam Commonwealth- Act may not be amended without the consenr of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional
priv(!te contracts: they are elements of a regulatory system.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific Status wttich '?r'OUld be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
'Cases such~~ v.UnitedStates; 292 U.S~ 571(19'34). and~ v. U.nitedStites. 294 U.S. 330
1935). are cot contrary to this conclusion. Both cases involved commercial agreements Cl.:t!!£h: insurance;
Perrv: Govemmeat boGda) In ~ the Court held that CongresS could not amend the contract merely to save
money ~unless, ~ tbe action falls within the federal police police power or some other paramount power.·
292 L'. S, at 579. fm:x involved bonds issued by the United States under the authority of Art. I. Sec. 8. Cl. 2
of the Constirution. to borrow money .on the credit of the United States. The Court held that Congress did cot
have the power to destroy the credit of the United States or to render it ilhuory by unilaterally abrogating one
. of the pivotal terms of the bond! to save money. While the Court held that the United States bad broken the
agreement. it nevertheless held that plaintiff could not recover because. as the result of regulations validly issued
by the United States. he had not suffered any monetary damages.
1
:o Cf. n.2.
- ll -
:;\
r-
i
�,\o N
P f?E:.c-.
u"'~!1JN ~"0~
~
. ;:::., .•r ::~~ :-'J:rn~) _,r cnc Suprem2 Ct..'Ufi: that lcgisia[lon ..:i...'nccm1ng the E'l''-emJ.n ~ r 1 ::, :J·
S\
.,t.1tc. ..lr::a· ts ne(cssanly subJeCt to C.mgressional ..1mendmenr and repeal: that go' mmcnul
· 1:..
Di...'dics are not persons within the meaning of the Due Process Clause: that govern\ ental
!::: I
po\.l.ers ..:J.nnoc be contracted away .. and especially the exposition in' the rece~t ~case.
.Y..~--oC:/
that the property rights protected by the Due Process Clause are those arising from p~ .
IJ\.1. t..lr ..:ommerci,.11 contracts and not thos~ arising from governmental relations.''
.
· Scctroris l i)J lnd 202 therefore do not create vested property rights protected by the
Due Process Clause of the Fifth Amendment.': Congress thus retains the power to amend
the Guam Commonwealth Ad unilaterally or to provide that its legislation shall apply to
.Guam without the consent of the government of the Comm0nwealth. The inclusion of such
provisions. therefore. in the Commonwealth Act would be misleading. Honesty and fair ·
de.aling forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth .-\ct. iJ
·
·
Finally, the Department of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue. such as Section 105 of the Covenant with the
~orthern Mariana Islands. in spite of its reevaluation of this problem. The. question whether
the !989 Task force propoSal to amend Section 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such·
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
It is significant that the circumstances in which Congress can effectively agree not to repeal or amend
l~gislation were discussed in the conte)(t of commercial contracts. Bowen, 477 U.S. at 52 ..
: Bow~n. it is true. dealt with legislation that eltpressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
..:onseot of the Government ofGuam. The underlying agreements. however. are not of a private contractual
nature. and. hence. are oot property within the mea.niog of the Due Process Clause. We cannot perceive how
they can be converted into "property• by the addition of a provision that Congress foregoes the right of
amendment.
.
) The conclu.tion that Section 202 of the Guam Commonwealth Act (inappli~bility of future federal
legislation to Gu&IIL witbout the consent of Guam) would not bind a future Congress obviates the need to
<:umine ,the coa.stitutiooality of Section 202. [n ~ v. Wallace. 306 U.S. l, 15-16 (1939), a.nd United
States v. Rock: Royal Co-op. 307 U.S. 533, 577-78 (1939). the Court upheld legislation that made the
~ffectiveness of regulation.s dependent on the approval of tobacco farmers or milk producers affected by them.
The Court held that this approval wu a legitimate condition for making the legislation applicable. Similarly, it
.::ould be argued that the appro~aJ of federal legislation by the Government of Guam is a legitimate condition for
mak.ing that legislation applicable to Guam. Since. as stated above. a future Congress would not be bound by
Section 202. we need not decide the question whether the requirement of approval by. the Government of Guam
for ~ future federal st.ttute and regulation is eltcessive and inconsistent with the federal sovereignty over
Guam.
.
-
- 12 CL'"'TO'" L'BRll"'' "".:!. ·~Nm.~"/.
Jt<!
"1\1.
•
J't f\.l f""·i:"'m.J(J;~J:
1
�Withdrawal/Redaction Sheet
·
DOCUMENT NO.
AND TYPE
001. memo
Clinton Library
DATE
SUBJECTrriTLE
To Erskine Bowles and 'sylvia Mathews through Mickey Ibarra from
Fred DuVal and Jeffrey Farrow. Subject: Guam Commonwealth bill
plan (1 page)
06/24/1997
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
OA/Box Number: 20350
FOLDER TITLE:
Guam" Guam.Commonwealth Act 1996[1]
Jamie Metrailer
2006-0193-F
"m586
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential" advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of .
personal privacy [(a)(6) of the PRA]
·
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA[
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
·information [(b)(4) of the FOIA]
·
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
, b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of~~lfft{:ti).j L1BR1'oRY P!l~O~~~:(
C. Closed in accordance with restrictions contained in donor's deed
.of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3) .
. RR. Document will be reviewed upon request.
�review of the draftbill with an additional step: asking OMB to obtain initial agency co
ents
through the regular referral process. This would clearly -- and quickly -- demonstrate tha the
effort is serious even though it was delayed as well as provide more of the information tha ·n
be needed for final for decision-making. ·
~........-The comments that OMB obtains, as well as the Congressional comments that we were already
going to solicit, may also suggest that some basic decisions should be made here (as Garamendi
had initially requested) and given to Garamendi as guidance for revising the draft. We believe
that this would be preferable to White House staff conducting tp.e many meetings that would be
required. This approach would expose the need for substantive changes to both Garamendi and
Guam more than has already occurred, be easier for Garamendi to accept, and distance the White
House from the matter. ·
·
In coriduding, we note that Garamendi would prefer thataction be deferred until after the
hearing to give Guam a greater opportunity to express·its desire for the draft bill's provisions.
We do not think that this is the best option, however. The White House is already supposeg to be
working out the problems with the draft, and the Counsel's office, OMB, and agencies are·
,anxious for this to begin. It could be difficult to explain if it does not.
Some material that may be helpful in considering the issue is attached.
--,-Concur
Do Not Concur
-,---
. Let's Discuss Further
2
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2006-0193-F - Guam [Part 2]
Identifier
An unambiguous reference to the resource within a given context
2006-0193-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/4713e0cf55d7c70d4950dc44c6521cca.pdf
d4e59e14b9fdf21482744fea0dc9ce25
PDF Text
Text
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
To Erskine Bowles and Sylvia Mathews through Mickey Ibarra from
Fred DuVal and Jeffrey Farrow. Subject: Guam Commonwealth bill
plan (I page)
06/24/1997
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Chief of Staff
Erskine Bowles
OA/Box Number:
12885
FOLDER TITLE:
Guam
2006-0193-F
'm572
RESTRICTION CODES
Presidential Records Act- !44 U.S.C. 2204(a)J
Freedom of Information Act- J5 U.S.C. 552(b)J
National Security Classified Information J(a)(l) of the PRAJ
Relating to the appointment to Federal office J(a)(2) of the PRAI
Release would violate a Federal statute J(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAJ
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(5) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAJ
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
PI
P2
PJ
1'4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�...
'.·o\ , ,.
L.$ JE/v_·,~,:: ~;:,.,
' 0' ~ ' .~\::~)\
~:;J
,',)
~~hunents
I
""!"~
.. ~
I
:i~ .1
.
::{·;.
;9
review of the draft bill with an additional step: asking OMB to obtain initial agency
through the regular referral process. This would clearly -- and quickly -- demonstrate thattlie-..-""'
effort is serious even though it was delayed as well as provide more of the information that will
be needed for final for decision-making ..
The comments that OMB obtains, as well as the Congressional comments that we were already
going to solicit, may also suggest that some basic decisions should be made here (as Garamendi
had initially requested) and given to Garamendi as guidance for revising the draft. We believe ·
. that this would be preferable to White House staff conducting !Jle many meetings that would be
required. This approach would expose the need for substantive changes to both Garamendi and .
Guam more than has already occurred, be easier for Garamendi.to accept, arid distance the White
House from the matter.
In concluding, we note that Gararnendi would prefer that action be deferred until after the
hearing to give Guam a greater opportunity to express its desire for the draft bill's provisions .. ·
We do not think that this is the best option, however
. · House is 3:lready supposeg to be
· working out the problems with the draft, and th Colinsel's offic , OMB, and agencies are·
anxious for this to begin. It could be difficult to ex
1 1t do~
Some material that may be helpful in considering the issue is attached. . \
-~-~ ~u.-o L~~'
Concur
- - ·Do Not Concur
Let's Discuss Further
-----'
fu~w~
~~~o-lJz
~~~
'
w l 0 or6
2
l
t\
I.
o l<'"
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
001. memo
To The Special Representative for Guam Commonwealth from Teresa
Roseborough. Subject: Mutual Consent Provisions in The Guam
Commonwealth Legislation. (12 pages)
07/28/1994
P5
002. report
Draft Guam Commonwealth Bill. Comments on Selected. (7 pages)
I 0/1997
P5
?3
f4
COLLECTION:
Clinton Presidential Records
Counsel's Office
Dawn Chirwa
OA/Box Number: CF 1674
FOLDER TITLE:
Puerto Rico/Guam Bills: Puerto Rico and Guam Bills [2]
2006-0 193-F
vzll76
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
P3
P4
b(l) National security classified information l(b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would viohite a Federal statute ((b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�OLC
I4J 002
C
~.
Oepanmenr ,)f
.Ju~tice
>;~··-
·· OJfice of L2£:J.l CJunscl
July 28,. !994
\.fE'\!ORA.NDC\1 FOR
TIIE SPECIAL REPRESE..~TATIVE
FOR GCA.[\1 COMM:OJ'.WEAL TH
Roseborough~
. , From: Teresa Wynn
Deputy Assisianr Arr.omey General
Re:
Murual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill. H.R. 1521, IOJd Corig .. lsr Sess. (l991) contains
two sections requiring the mutual consent of the Government of rhe United Stares and rhe
Government of Guam. Section 103 provides rhar the Commonwealth Act could be amended
onl~ with murual conseilr of the two govenunents. Section 202 provides tbar no Federal
la,.,·s. rules. and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Represenratives of
Guam insist that these rwo sections are crucial for the autonomy and economy of Guam. The
former views of this Office on the validity or efficacy of inurual con.serit requirements .
included in legislation governing the relationship between the federal government and nonstare areas. ~ areas under the sovereigncy of rhe Unired Srates that are not Srares, 1 have
. ' Territories that have developed from the st.s.ge of a classical territory to th.ar of a Commonwelllth with a coustirurion of their own adoption and an elective governor. reseDt being called Territories .and claim that that
legal term and its implications are not applicable to them. We therefo~ sh.ail refer to all Territories a.nd
Comwoo~oalth• ~
ooo-•tato .u-= und" "'·' .ovonoigncy -of <ho Uai<od
s.., "
briofly "'
ooDD p y
�01/30/97
:1··r
lhdl
15:50
OLC
'B'202 514 0563
chcrer'ore hJ.\.>! artfuiJ:, r-:cumincJ rhis issue:. <Jur ..:':"h:!u~ 1 ,,n
the~.: .:l:lll'sc:-s· rJ.isc: :;c:rious constitutic)nal i5suc:s ,·Wd J.re legally unenr"orcc:abk. ·'
rc::::n
_.·rH~r~nr.
14Joo3
·
\\.2
:-
In ,)tJr \ icw. it is imporranr char the: tc:<.l of rhe Guam Commonu.·c:a!rh ...\.ct nor ...::re:uc
dlu:;or;-: expectations rhar might ro mislead the electOrate ofGuam about the
._:,)nscqucnccs of rhc legislation. We must therefore oppose rh~ inclusion [n the
(,_)111fi11)nl.l.. c.:rlrh ,..\([ or" any provisions. such as murual consent clauses. that are legallv" '
un~nforccablc. Linkss rheir unenforce.abiliry (or precarory narure) is clearly stated 1n r- ~:...€....-S_I_O_EI\1 ·
....
document itself.
·
\
.1m
("
I.
The Power of Congress to Govern the Non-State
:-\reas under the Sovereignty of the United States
is Plenary within ConstirurionaJ Limitations
All territory under the sovereignry of the United States falls into r~,-o groups: the ·
Srares and the areas that are not States. The larrer. whether called territories, possessions, or
commonwealths. a.:re governed by and under rhe authority of Congress .. As ro those areas,
Congress exercises the combined powers of the federal and of a state govenunent. These
basic considerations were set out in the leading case of National Barik v .. (.Q.unty of Yankton,
!01 U.S. 129. 132-33 (1880). There the Court held:
~ To our knowledge the first consideration of the validity of mutwiJ.I con.seot clau.ses occurred in 1959 i.n
con.n~non u.·,rb propos.a.ls to amend cbe Pueno Rico federal Relations Acr. At t:hac time the Departmeor cook
rhc positiou rhat the answer co rh.is question was doubtful but that ruch clauses should oot.be oppo3ed oa the
~round that th~y go beyood the constiruciooa.l power of Congress. [n 1963 the Department ofJustice opined that
;uch ;;Ia uses were legally c::ffective because Congre3s could crcare vested. rights in the starus of a ~rritary that
:ould not be revoked uc.ilatel'lllly. The Depar1:ment a.dhc:~ to th..is position in !973 in con.occtioc with then
pending Micronesians scaru.s oegati1tioll8 i.n :1. memon.odum approved by theo .'\.sSistant Artomey General
Rc:hnquist. On the basis of this advice. a muru.iu consent clause WSJ! iruerted in Section 105 of the Covenant
1.1.ich the \forthern Mariana Islands. The Department continued to support tbe validity of murual consent clauses
tn ~tmnccrioo 'Jo. i rb rbe First 1989 Task: Foree Repon oa the Gwun CommocwQ.!th Bill. The Department
revisited tb..is issue in the early 1990's in connection with the Puerto Rico Staru Rcfettndum Bill in light of
. Bo'.ven v . .-\g,wcjes Opwsed to Soc. Sec. Eptrapment, 477 U.S. 41. 55 (1986), and concluded thA1 there could
not be J.(l c:uforcea.ble v~tOd right in a politic.a.l s~; hence that muru.a.l consent cl.LUSC5 were ineffective
b~ausc: they would not bind a su~uent Cong~. ·We toolc the same ~ition in the Second GUAm T~k
. Force Rcp<Jr1 issued duri.cg the 1.&3! days of rhe Bush Admi.nisrnuiao in Janu.uy 1993.
-' \-1urw.J consent clau.ses ~cot a novel pbeoomerion: indeed. they an~ the Con.:~titution. Scx::tion 14 of
the: ~onhu:est Ordinance contained six. "articles .of COmpACt. beNceo rhe original SU~..t~::s and the people and
States i.o the said territory. ;md [sh-.11] forever re!Jll.i.n. unalterable, unleM by common coll5Ctlt. • These articles
u. ~re incorporated either expressly or by reference Laro many e.arly rerritoriA! organic a.ct.s. Clinton v.
Eogiebr~bt. 80 U.S. ( 13 WalL) .434, 442 (1872).
copioll5 litigation u.oder these "UO<enble articlc::s"
The
focu$scd largely on tbe question wb.ctber tbe territories' obli~arions under !.hem were superseded by the
Consticutioo. or -.~.·ben the territory became a StAte. as the resull of the equal footing doctrine. We have,
however. not found any case-s dealing with the question whether the Coogress bad the power to modify any duty
imposed on the lioitcd States by those articles.
- 2 -
COPY
�01/J0/9i
15:51
'B'202 514. 0563.
. 004
OLC
1l t~ _::-:Jlnh nL1u. (LlO l;u: ro J0uhr rh~ pou..cr or" Cungress to go•.::m
the Tc:rriwnc:s. There ha'-~ been -;orne differences of opiruon as w the
parricular clause .of rhe Constirurion r·rom which rhc power is derived. but c
it c:xists has aJ•;~,:ays been conceded."
All territory u; ithin the jurisdiction of rhe United States nm included in
3.ny Stare must necessarily be governed by or under the: aur.horitv of Con!:':ress.
The Tcrticoric:s are but palirical subdivisions of the outlying do~inion of-rhe
L"nired Stares. Their relation ro rhe general govemmem is much the same as
rhat which. counties bea.r to the respective Stares. and Congress may legislate
f\~r them as a State does for irs municipal organizations. The organic law of a·
Tc:rriwry takes the place of a consrirudon as the fundamenul law of the local
go\·emmenr. It is obligatory on and binds the rerritorial authorities: but
Congress is supreme, and for the purposes of this department of irs
governmental authority has all the powers of the people of the United States,
··except such as have been e;J;pressly or by implication reserv·ed i.n rhe
prohibitions of the Constitution.
Yankton was anticipated in ChiefJustice Mmhall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (l PeL) 511, 542-43. 546 (1828). The Chief Justice.
explained:
In the mean time [i.e. the i.nte~al between acquisition and statehood],
Florida continues ro be a rerrirory of the United States; governed by virrue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory. or other property belonging ro
rhe
States.,.
.
uruted
Perhaps rhe JX>Wer of governing a. territory belonging to the United
States. which has not. by becoming a state, acquired 'the means of self-
' Some derived th&t power from the authority of the Uo.ited Sta~ to acquirc·territory. others from the mere
fact of sovtn:ignty. oth~ from the Territory Clause of the Conscirution of the United S~t.c.s (All. IV. Sc:c. 3.
Cl. ~) pursuant to which. Congress has "Power to dispose of wd !IL3.k.e all ~eedful Rulc:3 arid ,Regulations
respecting the Ti:rritmy or other Property bclooging to rbe Ulliu:d sr.au.:s·. See~ Arocric.LI) i.osurmct: Co. v.
C<~ntcr. :::6 U.S. (I Pet.) Sll. 542(1S28): Mormon Church v. United Sta~, lJ6 U.S. 1. 42-44 (1890):
Do..,:oes ..-. Bidwell, 182 U.S. 244, 290 (l90l).
At present. the Territory Clause of the Constiru~ioa is gelierilly·considered to be the ~urcc of the
powcr of Coogn=ss to govern the ooo.-statc areas. Hooveg & A!ljsog Co. v, Evatt, 324 U.S. 652. 673~74
( 1945); Exlllllining Board v, Flores de Otero. 426 U.S. 572. 586 (1976); 1::l!.lJn v. Rosario. 446 U.S. 651
( t980): ~ ili.Q Wabol v. Villllqusj~. 958 F.2d 1450. !459 (9th Cir.l992). cett. denied sub .!!.Qffi. Philippi.De
Goods, ln.c. v. ~. _ _ U.S._. ll3 S.Ct. 675 (1992). (fooi:O~teslippl.io::i.)
.
-3-
COPY
�01/J0/97-
15:51
'B'202 514 056J
. 005
OLC
· [n lcgi:;Luing for rh~rn [the Terriwries). Congress exercises the combi
pou:c:rs ut' the general. and of a state government."
fJ.
ei.l
5-C--U. 5-+6.
The power of Congress to govern [he non-state areas is plenary like every other
legislative power of Congress bur ir is nevertheless subject to. the applicable provisions of the
Consrirution. As Chief Justice Marshall sr.a.red in Gibbons v. Ogden, 22 U.S. (9 Whea[) l.
196 (1~24), wirh respecr'ro rhe Commerce Power:
·
· This poU:·er [the Comm~rce Power], like all others vested in Congress· is
complere in itself. may be exercised to its utmost extent, and acknowled~es no
limitations; mher rhan are prescribed in rhe constitution. ~phasis <added.)
This Limitation on th~ plenary legislative power of Congress is .s,elf-evidenr. It
necessarily foUows from the supremacy of the Constirurion. ~ u., Hooel v. Vir~·
Surface Mi.ni.ng and Reclamation Assoc., 452 U.S: 264, 276 (l981) .. That the power of
Congress under the Territory Clause is subject to constitutional l.i.Inir.ations has been
recognized in Coumv of Yankton, 101 U.S. at 133; Downes v. Bidwell. 182 U.S. 244. 29091 t190l): District of Columbia v. niomQson Cg., 346 U.S. 100, 109 0953).
Finally. the power of Congress over the non-state areas persists "so long as they
remain in :l territorial condition.'' Sltively v. Bowlby, 152 U.S. l, 48 (1894). See also,
Hooven & :\ll;iSOlJ C2:. v. Evan, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establistunent of the Commonwealth of the Philippine
Islands and the fmal withdrawal of United States sovereignty from those islands "Congress
_rer.ains plenary power over the territorial govenunent").
The plenary Congressional authority over a non-state cl.rea thus lasts a.S long as the
area rer.ai.ns that srarus. It tenninates when the area loses that srarus either by vimle of its
admission as a State, or by the termination of the sovereigncy of the United States over the
area by the' grant of independence, or by its surrender ro the sovereignty of another country.
- 4 -
COPY
�II.
The Re"·ocahk ~arure of Congressional Legislarion
Rdaring co rhe Go"·emmem of Non-Stare ...Ve.:1s.
\\-hik C(•ngress has ·rhe power to govern the non-sr.are areas ir need not exercise rhal
powa irsclf. Congress can delegate to the inhabir.anrs of non-state areas fuU powers of selfgovcmmenc and an autonomy similar tO r~:r of Sr.ares and has done so sine\:! the beginning of
rh~ R~public. Such delegation. however. ;ust be "consistent with the supremacy and
·supervision of National aurhority''. Clinronv. EQgl.ebrecht. 80 U.S. (13 Wall.) +J+ . ..Wl
! 187~): Puerto Rico v. Sheil Co., 302 U.S. 253. 260. 261-62 (1937). The requirement rhar
rhe de legation of governmental authority ro the non-state areas be subject ro federal
supremacy and f~eral supervision means thar such delegation is ntX:essarily subject (0 the
right of Congress t:o revise. alter. or revoke the authority granted. District of Columbia v.
Thompson Co .. 3~6 U.S: 100. 106. 109 (-1953).~ ~ 9-liQ, United States v;. Sharpnack, 355
U.S. 286. 2.96 (1958). Harris v, Bareham, .233 F.2d 110. 113 (3rd Cir. 1956).-Firemen's
Insurance CQ. v_ Washinrum. 483 F.2d l323, 1327 (D.C. Cir. 1973). The power of
Congress w delegate governmenral powers to non-state areas thus is contingem on the
6
retention by Congress of irs power to revise. alter. and revoke that legislation. Congress
therefore cannm subject the amendment- or repeal of such legislation to the consent of the
non-state area.
This consideration also disJXJses of the argument that the power of Congress under rhe
Territory Clause t6 give· up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its poweno amend
or repeal starutes relating to the governance of non-sra.te areas. But. as shown above. the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
: Thompson de.alr wilh the: District of C~lumbia's gov~nt which i' providoi for by A.rt. I. Sec. 8. CL
17 of the Coastirutioo. rather than wiLb the non-state aras as to wbom tho Congressional power is derived from
the Territo~{ Clause. The Court. however. held that in this 3I't2 the rules relating to the Congressiooal po""er
to ~ovem lbe District of Columbia and the nco-state areas are identical. f.ndeai. the Court. relied on cases
d<!;liog u.·irh non-~Ui.i.o area.s. ~-- Hombuclc.le v. Toom,bs. 85 U.S. (18 Wall.) 64S. 655 (1874). aDd
Christianson v. King Coun,n:. 239 U.S. 365 (1915), where it held th.u Coogn:ss can delegati!! its legis/lltivc
authority under Art. I. .Sec. 8. CL 17 of the Conscirutioo to t.hc: District. Subject to the 'power of Congress :u :.w.y
tim<'! to n::vis.e. alter, or revoi::e. tha.c authority.
·
bu
6 Congress
exercised tb..is power with re:rpc:ct to the District of Columbia. The Act of February 21.
187 L. [6 St.:l.l. ~ !9 gave rhe Distrii:t of Columbia viiru.a.l territorial st:Jl!\U, wilh ll a governor appointed by the .
President. a legislarive assembly rba.t included aD elected house of delegates. and a delegate in Congress. The
1871 Act was rt:pe.aled by the Act of June 20. 1874. 18 Stat. 116. which abropted &lilOng others the provisions
for the legislative assembly and a delegate in Congress. and established .ll gove~t by a Coffimission
appoin(ed by tbc Prt:sidc:nt.
-
-5-
COPY
�01/.30/97
15:52
OLC
'5'202 514 0563
. 007
.lllthL'rit> lL' ~nJ.·~~ :;:~i:>LH[Un unJcr the T~nircry Cl;:m~c rhJ.t •.-.ould limH~thc unt'c:rr::r~J
:-\~rcis.:
·Jr" its po'-•:c:r to
1m~nd
or repcJI.
The .same result tlou.:s from rhe consideration rhar aU rion-sLJ.te areas are subject ro the
.lllthoric;-· of Congress. which. as shown above. is plenary. This basic rule docs not permlr
the crc:1rion of non-sr.are areas thar are only partially sub jeer to Congressional authority. The
pkna.r:· po•.1.·cr of Congress O\·er a non-state area persists as long as the area remains in that
~.,·l)ndition and rc:rminarcs C'nly wh~n .rhe area becomes a State or ceases ro be under Cnired
States so~·ereignry. There is no intennediary starus as far as the Congressional power is
CL1nccmed. ·
_ill.
The rule that legislation delegating governmenral wwers to a non-stare area
must be subject to amendment arid repeal is but a manifestation of the e-eneral
rule that one Congress cannot bind a subsequent Conmss, except where it
creates vested· rights enforceable under the Due Procejs Clause of rhe Fifth .
Amendment..
.
'
The rule that .Congress canrtot surrender irs power to .amend or repeal iegisiarion
relating (0 rhe govemmem of non-sr.ate
is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
areas
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation t!nacted by it, such legislation
·
u•ouid be frozen permanently and would acquire vinually constirutiona.l sr.arus_ Justice
. Brennan expressed this thought in his dissenting opinion in Qnited Stares Trust Co. v. New
Jersey, 431 U.S_ 1, 45 (1977), a case involving ~e Impairment of the Obligation of
Contracts Clause of the Constirution (Art_ I, Sec 10, CL 1):
.
.
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legisla.rors will nor automatically be bound by the policies and
undertakings of ~tier days __ .. The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government thai relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility thar
those same rascals might perperuate their policies sirnpl.y by locking them into
bin.ding comracrs.
·
-6-
COPY
�The principle asserted is that one legislarure is competent ro repeal an
a..:r .,.. hich a former !egislarure u:as comperenr ro pass: and rhar one legislature
·.:annL)t abridge the pou.:as of a succeeding legislarure.
The correctness of this principle. so far as respect:s general legislation .
.:an never be controverted. Bur. if an act be done under a law. a succeeding
legislature cannot undo it. Tlie past cannot be recalled by the mosr absolute
pouier. Conveyances have been made; those conveyances have vested legal
· csrares. and if rhose esrates rna y be seized by rhe sovereign authority_ still. that
rhey originally vested is:a facr, and cannot cease ro be a facr.
·When. then. a law is in its nature a contract, when absolute right:s have
vested under that contract. a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10. Cl. l) of
rhe Consrirurion and rhe Due Process Chi use of the Fourteenth Amendment. and i.n the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment.· Tilis
principle was recognized in the Sinkine-Fund Cases. 98 U.S. 700,718-19 (1879):
The United Stares cannot any more than a State inrerlere with private
rights, ex.cept for legirimare govemmenr.a.l purposes. They are nor included
within the constirutional prohibition which prevenrs States from passing I.aws
impairing the obugation of contracts, but equally with the States they are
prohibited from deprivine Qersons or corporations of pro_perty without due
process of law. They cannot legislate back ro themselves, without making .
compensation. the lands they have given ~his corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect. to the subsidy bonds
other-Wise than according ro the renns of·the contract a.J..ready made in that.
connection~ The United Stares are as much bound by their conua.cts as are
individuals. (emphasis supplied.)
See also Bowea v. A~encies Oppo~ 10 Soc. Sec. EntraPment, 477 U.S. 41, 54-56 (1986)_
- 7 -
COPY
�. 001
[V.
The Due Process Clause docs not Preclude Congress from
.-\.mending or Repc:aling the
(\l.:o
~furual
Consent Clauses
1l1c quesrion therefore is whether the Due Process Clause of the Ftfth Amendm~m
precludes a subs~qucnt Congress from repealing legislation .for (he governance of non-state
are.1s cnacred by an earlier Congress under the Terrirory Clause. This·question muse be
answered in the negative_
·
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of life. liberty. or QCOQei1Y without due
pro<.:ess of law. (emphasis supplied..)
. This Clause is inapplicable to the repeal or amendment of the two rriurual consent
clauses here involved for two reasons. First. a non~st.ate area is not a "person". within the
meaning of the -Fifth lunendrhent. and, second, such ·repeal or amendment would nor deprive
the non-state area of a property right within the meaning of the Fifth Amendmem.
·
A.
A non-state area is not a person in the meanine of the Due Process Clause of the
Fifth Amendment.
ln South Carotin£! v_ Katzenbach, 383 U.S. 301, 323-24 (1966), the Com1 held that.a
State is not a person within the meaning ofthe Due Process Clause ofthe Fifth Amendment.
See~. Alabama v. &fA, 871 F.2d 1548, 1554 (11th Cir.), ~ ~. 493 U.S. 991
( 1989) (''The State of A.Libaroa is not included among the entities pro£ected by the due
process clause of rhe fifth amendmem"); and State of Oklahoma v. Federal Enerey
Regulatory Comm., 494 F.Supp. 636, 661 (W.D. OkL 1980}, m::4, 661 F.2d 832 (lOth Cir.
19.81). ce11. deni~d. sub. rirun... ~ v. Federal Ene~y Re~latory Comm., 457 U.S. 1105
( !982).
J
Similarly it b.a..s lJeen held that creatures or instrumentalities of a Stat~, such as cities
or water improvement districts, are not persons within the meaning of the. DUe Process
Clause of the Fifth Amendment. City of Sault Ste .. Marie. Micq. v. Andrus, 532 F. Supp.
157. [67 (D.D.C. t980); E! Paso- County Warer Improvement District v. ffiWC/US, 701 F.
Supp. 121. 123-24 (W.D. Tex. 1988).
The non-state areas, concededly, are not States or ·instrumentalities of States, and ~,e
have not found any case holding directly that they are not persons within rhe meaning of the
Due Process Clause of the Fifth Amendment. They are, however, govern.rnental bodies, and
.8-
COPY
�. 002
r:Hi,'r1J.k ,_,(::;,'lith C .lr•_)l ina. \. Karz·~nba,:h_ 383 C S. ac )() l. J.ppc:J.rs r..._1 oe (h:H ,,~. h
r\.'Jic~ .Jre nL1 l protc(tcd by the Due Pm,:::-:;s Clause or' the Fifth Amcndmcm. :--.turcl)l.cr. :( ,,
._,ell :::~tJ.blished char the political subdivisions o( a Stare are nor considered P..crsons prorc:..:t:::d ·
J.S J.gainsr rhc Sr.are by the pro' isions of the Foun:eemh _.;..mendmenr. See . .:::g, _ \"cV.ark \.
,_:~c
'-'c:·v.. Jcrsev. 262 U S. !92 _ l96 ( !923): Williams v. ~favor of Balrimore. 289 C.S. J6 . .l.()
JG.JJi: s,_,urh ~!acomb Disposal Authority V, Township of Washington. 790 F.2d 500.505.
5t)-:' t6th Cir JQ%J and rhc:: aurhorirics there cited_ The relationship of the non-SlAte-areas ro
rhe federal Gu\ cmniem has been analogized w chat of a city or counry w a State. As scared,
·:.upra. the Coun: held in National Bank v. Cou'rny of Yankton. 101 U.S.- 129. 133 ( 1880):
I
.
.
.
·
·
The territories are but political subdivisions of the outlying dominion of the
United Stares. Their relarion ro the geneidl government is much the same as
rhar which counties bear ro the respective SlAtes __ .
~€:,SIDE"I\I~
<«.
f::
~
. -6
y:s
·
~(
.
~fore recently. the Coun: explained that a non-state area is entirely the creation
Congress and compared the relationship berween the' Nation and a non-state area to thar
betwee-n a St:.1te and a ciry. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
(hat. since States are nm persons within the meaning ofthe Fifth Amendment and since the
political subdivisions of States are nor persons within the meaning of the Fourteemh
Amendment. the non-state areas are nor persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating ro the e;overnance of non-stare areas does nor create any riehrs or
srarus proteoed by the Due Process Clause a!!lllnst ~ or amendment by subsequent
kgislation_
.::\s e;~;plained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment,
i. c., iJ such amending or repealing legislation w9uld deprive a person Of property without
dut process of law. It has been shown in the preceding part of this memorandum, that a
.
non-stare area is not a person with the meaning of the Due Process Clause. Here it will be
shou.'h (hat mutual consent provisions in legislation. such as rhe ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
'
Le~slation concerning the governance of a non-state area, whether called organic act.
federal relations act, or commonwealth act, that does noc contain a rnur:ual consem clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a. particular stage of seLf government that subsequenr legislation
could not diminish or abrogate. While such legislation has nat been frequent, it has occurred
in connection with the District of Columbia. ~District of Columbia v. Thompson Co ..
346 U.S. 100, 104-05 (1953); ~ n.6. Hence, in the absence of a mutual consent clause,
. 9.
COPY
�. 003
i:.:::1 ,jJrl\':-: _,:n.-::::lin~ ~he g0\ ~mmc:nr 1_1( 1. nc1n-~rJ.rc· lf:':1 is :;ubjc:-:t tv lmcndrnc:nr •.•r r::pc:
b:- )ubsc4ucnt ic'gislarion.
Tnis leads ro rhe question whether the addition of a murual consent clause.~ of a
pre)\ 1sion rhar rhe lcg!slation shall not be modified or repealoo without rhe consc:nr of che
G1...1\ c:mmcnt or' the Unired Scates and rhe Government of the non-sr.are a.re.a. has the effect vr'
c:re;:J.ti-ng in rhc non-stare areas a specific status amounting w a property right 'J.:irhin the
meaning of the Due Process Clause. It is our conclusion that this question musr be answered
in the negative because ( l) sovereign governmental powers cannot be comract:ed away. and
r.:l because a specific political relarionship does nor consrirure "property" within the meaning
of rhe Fifth Amendment.
I. As a body politic the Government of rhe United Sr..ares has the general capacity ro
enter inro contracts. Unired States v. Tingey. 30 U.S. (5'Pet.) 115.128 (1831). This
pou.:er. holl:ever. is generally limited co those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers caru10t be
comracted awav." North American Com I. Co. v. United States, 171 U.S. llO. 137 (1898).
More recently the Supreme Court held in connection with legislation arising under the
· Conrracr Claus~ (Art. I. Sec. 10. Cl. 1) of theConstirution that "the Contract Clause does
not require a Scare ro adhere to a contract that surrenders an essential arrribute of its
·sovereignty.·· United States Trust Co. v. New Jersey, 431 U.S. 1. 23 (1977). 7 rna similar
context Mr. Justice Holmes seated:
One. whose rights. such as they are. are subject to state restriction.
cannot remove them from the power of the Sra.te by making a comract about .
them .. Hudson Water Co. v. McCarter, 209 U,S. 349, 357 (1908).s
Agreemenrs or compacts to the effect that the Congress may riot amend legislation
relating to the government of a non-state area. without the corisenr of the laaer, or rhar federal
kgi:;[a(ion shall not apply to Guam unless consented to by the Goverrunent
Guam wnuJ~--
unque'srionably purport ro surrender essential po..yers of the federal governi'I!ent.
of
· Ca=sarising under the Contract Clause holding that a Sr.ate c.mnot C4:lOt.~t away a sovereign pow
also applicable to the ~tracts made by the federal governrneot becaus.e the Contract Clause imposes more
· rigorou.s rcstnc:tiol13 on the Sr.ue3 than the fiftb Amendmenr imposes on the fedenl government. ~
Benefit Guara_pcy Corp. v. RA. Gny Co., -+67 U.S. 717. 733 (1984): National Railroad Passenger C.Qll!. v .
.~.T. & S.f. R .. _470 U.S. 451. 4.72-73 n.2.5 (1985). Hence. when state legislation doe<~ not violate the
Contract Clause: . .malogous federal legisla[ioa is all the more penmssible under the Due Process Clause of the
Fi frh Arriendrnear.
'Cic.ed wic.h approval -w·ith
rcSpcct
to federal legislatioa in Norman v. B. & O.R .. 294 U.S. 240. 308
( 1935).
lO -.
COPY
�. 004
::1;:;~-:(._•r::.·
:·,L·(
l~''i1Gtil£ ... n
the Fir.th
A.mc:ndm~ni.'
:he
Cnic~d
State) ...tnJ
~·J.nni...)t
.:,)nrcr
::~ pr0pcr1: inrc:rc~r pn.·t:~<::''~
.,'-
~tore
generaUy. rh~ ~upremc Cour1 h~ld [n Bou:cnv. Agencies Opposed co Soc. Sc..-:.
Enrr:lprncnt. 477 U.S . .11. 55 (!986L char che conrncrual property rights protected by che
Due: ProCc'iS Clause of the Fifth Arnendm~nc are rhe traditional private comracrual rights.
su...::h as rh,)sc: Jrismg from bonds or insurance comracrs. bur not arrangements rhar are pan vr:
a rcgularory progrJm such as a Scare's privilege to withdraw irs pan:iciparion in the Social
Sccuriry system u:ich res peer w irs employees. Specifically. the Court sr..ared:
Bur the "concracrual right" .at issue in this case
bears little. if any.
resemblance to rights held to constitute "property". within the meaning of the
Fifth .-\.mendment. The renninarion provision i.n the Agreement exacily
tracked 'rhe language of the stanite. conferring no right on the State beyond
rhat comained li1 § 418 itself. The provision constirured neither a debt of the
United Stat~s. ~ ~ v_ United Stares. supra, nor an obligation of rhe
.
.
United States to provide benefits under a conrracr for wh..ich the obligee paid a
monetary premium. see Lynch v. United Stares. supra. The termination clause
was not unique w this Agreement: nor was it a tenn over which the Stare had
any bargaining power ot for which the State provided independent
consideration. Rather. the provision simply was. pan of a· regul.arory program
over which Congress retained authority ro amend in the exercise of its pOwer
to provide for-the general welfare. ·
.
.
Agreements that the Guam Commonwealth Act may nor be amended without the consent of
the Government of Guam, or rhar future federal statutes and regulations shall not apply to
Guam without rhe consent.of the Govenunent of Guam clearly do noc constitute conventional
pri1:are contracts: they are elements of a regulatory system.
In the past the ~artment of Justice at times has concluded that a non-Sta[c area may
ha"e a vested interest in a specific sra.rus which \YOUld be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue w adhere to that position i.n
• Cases sui::h a.s ~
Y.
Urutod Sl.l.t.t.-.s, 292 U.S. 57! (1934). and
' [93 5). are ooc coctraJ')' to this conclusion .. <h
.&to:
v_ Uili~ St&tes, 294
cases involved coo:unen:ial agreements
U.S. 330
(1.yn,ch: i.nsunl.!lce:
Perrv: Govcmmcnt bood3). In~ the Court hdd that Congres3 could nor amend the contra.ct merely to ·save
moo<!y · uoJess. i.o.deoj the .a.ctioo falls <w'ithin the federal police police power or some other puuooUllt pciwer. ·
::92 L'.S. <U 579: fEn. involved bonds issued by the Ua.ited State:! under the authority of Air.. I. Sec. 8. Cl. 2
of the: Constirutioc. to borrow IDOQey on the credit ofthe United St~~.tc:s. The Court held !.h.a.r Cocgress did not
have the power to destro;< the credit of the. Un.ited State5 or to render it illwory by unilaterally abrogating one
of the pivotal tenD.'l of the bonds to save wooey. Wblle the Court held that the United S!Jl.to ilzld brok:eo the
agreement. it nevertheless bc:ld that plaicti ff could not recover becall.5e. &S the result of regulations validly issued
~SIDEIV7".;:
·by the Ua..ited SL!I.tes. he bu.! not suffered any monetary d.mages.
q_~
:o
Cf. n.2.
~(
~
0
ll -
~
z
?u
COPY
�-----------------
. :::·-~ •:f
::~::: :I.Jitn~~ ·.·i· ci1c Suprem~ CL~urt
[hJ.t 1-:g!s[aciL11l _:(,ncc:mtng rhc ~~Y<nt:.m..:~ _,[ .1 1 , ·n.
,tJtc: J.r~a t~ nc:cc:ssanly subject to Congressional amendment and repeal: rhar go\ cminc:nul
b,xJics are noc persons IJ.tthi.n the meaning .of the Due Proc~ss Clause: rhar :;:o .. emm~ncal
pCI',.I. c:rs -:an nor be comracted JIJ.·ay. and especially [he e.-cposirion in the rec:;~t Bou.en ~::tse.
thJt tht: property rights protected by the Due Process Clause are those arising ~1-om pri,·are
IJu.. ur Ct)mmaci.al comraccs and nor those arising frorn govc:rnmenw relations.:;
·
Sections IUJ J.nd :02 therefore do not create vested property rights protected by the
Due: Process Clause of the Fifth Amendment. t: Congress rhus retains rhe power ro amc:nd
[he Guam Commonwealth Act unilaterally or to provide rhac irs legislation sh.aU apply w
Guam without the consent of rhe government of the Common•,.realrh. The inclusion of such
prO'- isions. therefore. in the Commonwealth Act would be misleading. Honesry and fair·
deaung forbid rhe inclusion of such illusory and deceptive provisions i.n the Guam
Commonv.:ealth .-\cr. 13
·
· ·
·
Finally. the Depanmenr of Justice has indicated that it would honor past commitmems
wi[h respect to the. murual consent issue, such as Section 105 of the Covenant with the
.\forthem Mariana.Isla.nds. in spire of its reevaluatio~ of rhis. problem. The question whether
the 1989 Task force proposal to amend Section l 03 of the Guam Commonwealth Act so as to
limit the murual consent requiremerlt to Sections 101. 103. 201, and 301 constitutes such
prior commitmem appears to have been rendered moot by the rejection of that proposal by
·rhe Guam Commission.
·\,
It is signiticant rhiH rb~:: circumstances i.e wbicb Congress CJIJl effectively agr= not to repeal or amend
i~g!slation u:~re discussed in the: :::onteXt of COOliDerciai contractS. ~· 477 U.S.· ai 52.
: Bo.,..cn. it is true. dealt with legisliuion rhar expressly r=rved the right of Con~ to amend. while the
proposed Gu.am Commonwealth Act would e:r;pressly preclude the right of Coogn:ss to ll!Ilend without the
~onscot of the Govern.ment of Guam. The underlying agreements. however. a.re not of a. privAie concrurual
nature. ;md. hence ..arc ooc property within the m=ning of the Due Process Cla.we. We ca.ruiot perceive how
lh~>' can be ~onvened in~o ·property • by the addition of a provisioc th.at Congress fo~gaes the right of
:J.fficodmcnr.
~ The conclusion th.a.t Soction 202 of the Guam Commoowea.Jr.h Ace (ina.ppli~bilicy of furun: faic:ral
lcgisla.rion to GLL.IJD without the cocsent of Guam) would not bind a furure Congr= obviate:'! the need to
::.umine the ~on.stinu:ioo.aliryof Section 202. (n Currin v. Waflao:. 306 U.S. i, !5-16 (!939), and United
St.1ces v, Rock Roy!i.Co-Qp. 307 U.S. 533, 577-78 (1939). the Court upheld legislation t:har made rhe
::r"fcccivc:(icss of regularioll3 dependent on the approval of tobacco fa.rtnel"'5 or mi.l.k produ.ct:r:i affectCd by tbem.
The Court held tb.ar this approval was a legitilllJUe condition. for making the legislation applicable. Similarly, it
~ould be argued chat the approval of federa.l l~g1slation by the Government of Gu..m i5 a legiti.mate condition for,
o::uk.ing that legislation applicable ra GLI..II.ID. Since. as stated above. a furure Congress -..ould not be boimd by
S~tion 202. we need not decide the: question wbether the requirement of a.ppro.val by the Government of Guam
for ~ furure federal surute and regulation i:s excc:s.sive and inconsistent with the federal savereignty over
Guam.
COPY
�DRAFT GUAM COMMONWEALTH BILL
COMMENTS ON SELECTED NEW POLICY PROPOSALS
Centtal Provisions
•
Agreement·that no provision of the law. may be·changed
. wi thou t1 ·Guam' s approval.
This idea is the disputed.heart of.the Commonwealth concept in
Puerto Rico as well as Guam. ·It is intended to limit Congress'
Constitutional power to make policy regarding territories (in
local as well as national matters) and.override the prindiple
that. one- Cong:r:-ess cannot relinquish the power of its successors
{in territories unless statehood or sovereignty is granted) .
While a commitment in this regard couldbe made as a mat:t~r of
solemn policy, it probably cannot be .. legally binding (although
the courts tnight well sidestep the question as "political'·') .
The provision includes a qualifier.that the agreement is made.to
the extent constitutionally permissible but it does not overcome
the problems with the prov~sion.
A) Justice agreed t_o it . ori the understanding that the
limitation on Congress' Constitutional power would not be
legally binding but Interior and Guam now want to assert
that it is tneant to be ... as the·language suggests;
.
'
B) The qualifier would make the provision even more
objectionable to Puerto Rico statehooders who -:·would see it
as enabling a· concept that they believe to be ·/
unconstitutional to be approved ·and misleadingly suggest
that an effecti~e in~ulation from Federal territdriea
governing power is possible.
Current law.does not provide even a commitment ~or Puerto Rico
but some Puerto Rico Commonwealth supporters claim that there is
an obligation in this regard created by the mutual approval of
the arrangement. The Northern Mariana Islands Commonwealth
Covenant includes purportedly binding language but limits it to ·
"fundamental" matters: local authority; U.S. citizenship;
application of the Constitution; and limiting the right to own .
land to persons of local descent (upheld as being essential to
the arrangement and justified by the islands' non-U.S. past).
House Chairm~nYo.ung and.Senate Committee staff suggest that the
provision in: the draft bill has no chance of passage. And even a
policy commitment limited to key provisions would be hard for
Puerto Rico statehooders to accept. It
rd not to agree
to such a commitment, though, in light
~.t as precedent
and since it can be done.
~~.
COPY
�2
•
Invitation for a status plebiscite excluding U.S. citizens
not descended from residents as of 1898.
The poteritial opponents include citizens amen~ the half of the
population that would not qualify. Although A) many of them agree
that the original Guamanians never exercised, 'self-determination'
and B) the yote would not be binding, some would feel that they
have an equal right to vote on the future status of their home
island.
A provision such as this is likely to be cited as precedent by
Puerto Rican independence and commonwealth advocates who
·
controversially want status votes to 1) include residents of t,he
u.s. descended from residents of the'islands as of the date of
. acquisition (there are 2. 7+ million) and 2) exclude citiz_ens not
descended from residents as of the date of acquisition.:. -
. Inte~ior/Other Agency Stalemate Provisions
•
Commission with Interior- as chair, Defense, Justice, the
Governor, and the Delegate to Congress empowered to
· A) modify the application of any regulation to. Guam and
B) make recommendations on modifying laws which
Congress would.have to consider on·an expedited basis.
Most agencies -- which would not· be ·represented .--::would,
·understandably, be opposed to being excluded from decision-making
in matt.ers within their jurisdiction. The House and Senate are
unlikely to agree to have their agenda set by such a body.
The provision would give Interior and Defense, -at least,
unprecedented roles in policies of-other agenci~s and in Guam.
(Current law specifically excludes matters within other agencies'
jurisdiction from Interior's mission regarding Guam.)
This proposal stems, in part, from a more modest proposal by
Puerto Rico's _commonwealthers for Federal review of laws and regs
at the islands' request and from an advisory commission in the
·
case of the Northern Marianas Commonwealth Covenant.
•
Authorization for I~t~rior/Commerce to waive any law or
regulation to benefit U.S.-Guam or U.S. through Guam trade.
There are too many
the breadth of the
because of
COPY
�3
•
Authorization to enter into agreements associated with the
World Trade Organization and, possibly, other organizations~
Puerto Rico commonwealth arid independence supporters have
proposed.similar authority. Federal agencies contend that the
U.S. must speak with one voice on international trade matters.
•
Expedited Customs processing of Guam products.
Other areas/interests might be interested in a similar provision.
•
No automatic trade benefits for 'any other
u.s.
island area.
This was includedbecause current law provides that Northern
Marianas products will be treated equally with products of Guam.
•
Control over immigration.
The Northern.Marianas Covenant did not extend u.s.· immigration
law to .those formerly non-u.s. islands but gave the u.s. the
right to do so. Justice and Labor oppose transferring authority·
to Guam because of t11e way that the Marianas has used its
exemption. Rep. George Miller is concerned about this provision.
The Marianas sought exemption ostensibly.to enact stricter limits
on immigrants and, thereby, prevent itself from being overrun by
aliens. But it has developed a. system which so libe·rally admits
temporary workers that a majority of the population"are nonresident workers. These individuals have only limited rights .and
influence in the community. There hasbeen national attention to
spectacular cases of employer abuse of workers in the Marianas.
Some House Membe~s have considered extending immigration control
to the Marianas. Puerto Rico commonwealth supporters would want
immigration authority~ The Virgin Islands has. also sought it.
•
Temporary workers' visa.
There might be concern because of the Marianas experience and
since the workers would be ~temporary' for up to fou,r years.
· ·. · · · · : " ·:. -,.n ·:·.' t c. :·.:. :~·. ··
-- •
Authority to deny program benefits to aliens for five years.
This would be inconsistent with
policy on a current, nationally
stance
COPY
�4
•
Interior/Defense/Guam joint recommendations on transferring·
military land on Guam to the Commonwealth.
Defense may be opposed since it _now makes .its own decisions on
what land i t needs. A process (~xcluding Interior) would be of
significant interest in Puerto Rico because bf the isl~nds'
dispute with the Navy over the Navy's need for land it owns.
•
Authorization for the Commonwealth to transfer land obtained
from the Federal Government to private use.
GSA, OMB, and Congress may be concerned about authorizing private
gain from what i~ now a public resource.
•
Special environmental standards.
EPA is opposed, fearing a precedent for region-specific policies.
Miller is also concerned.
Rep~
Targeted exemptions from Clean Air and Clean Water Act
requirements have been enacted for Guam and other·insular areas.
Puerto Rico commonwealthers have sought a similar blanket policy
using a similaJ: rationale to the one used by Guam.
•
Priority for hazardous waste site clean-ups .
. .' . . .
~
Defense opposes since it is involved. Many other areas also want
·clean-ups funded.
Other·Interior Recommendations
•
Authority to adopt "reasonable" voting requirements.
This. would be controversial if used as authorization for a longer
residency than the courts have.sanctioned _.;.;as some Guam
officials have wanted (and it would be superfluous if not) . New
residents would be concerried about being disenfranchised.
ns. r:c
•
Authorization for delegating Federal agency functions to
Commonwealth officials.
This would raise concerns about
requirements and accountability in
Republican Congress is unlikely to
COPY
�5
•
Guam taxation of
u.s.
and foreign income of residents.
Treasury objects .to this applying to Federal employees because of
the precedent it would set for all Federal workers outside the
u.s.
•
'
Approval to rebate taxes to individuals and on
u.s.
income.
The Marianas Covenant includes authority to rebate taxes on
Marianas income only .. Treasury would object to rebating taxes on
U.S. income. Laws.have been enacted to discourage rebates to
individuals (vs; companies) in the Marianas because the rebates·
have effectively negated Covenant taxation re~irements.
•
Inclusion in tax treaties.
Treasury would object to automatic inclusion since the island is
foreign for tax.purposes and would be able to enact laws at odds
with u~s. tax code provisions.
·•
·Access to or through military property ..
Objectives have included commercial development of landlocked·
private property and use of military recreation areas.
•
S':lhmerged lands between three. and nine mil13s -.'offshore.
Puerto Rico has this due to a. 1980 .law justified by Spanish law.
It ·has been an unfulfilled objective of some Gulf Coast States.
· Other Proposals Interior Wants to Pursue
•
Congressional' findings that Guam does not have equal
participation.in Federal policy making and has a compelling
interest in protecting the island from inappropriate laws.
This woul<i be of equal application to and interest in other
insular areas and be of concern to Puerto Rico statehooders.
•
' •• ,,:··r,·•,:
Congress relinquishing its Constitutional power to govern in
territories to the extent provided in the legislation.
commonwealthers, be
--of enactment.
COPY
�6
•
Agreement to consult the Commonwealth to.an appropriate
extent before international negotiations which affect Guam.
State and Justiceoppose as a limitation on the President's
foreign policy power. Other insular areas also want this.
•
Requirement to consult the Commonwealth prior to significant
changes in military presence.
Defense opposes this.as unworkable.
.
•
.
Authorization for the Commonwealth to.receive assistance
from foreign governments.
State has opposed NorthernMarianas proposats in this regard,
wanting the U.S. t.o remain an aid donor rather than a recipient~
•
Authorization to enter into international agreements not
inconsistent with U.S. policy and not binding on the U.S.
State is opposed to the.U.S. speaking with more than one voice. on
international matters.
•
Commonwealth replacement of Federal labor laws.
Labor has·strong concerns based on the Northern Marianas
experience. Rep. Miller does as well.
·.
•
.
.
.
.
.
Joint recommendations on whether the requirement to use u.s .•
vessels.for U.S. ·shipping should continue to apply using the
sole criteria of the island's economic inte.rest.
·
.
.
\
The U.S. vessels shipping requirement does not apply to the
adjacent Northern Mariana Islands, Atnerica:n.Samoa, or the Virgin
Islandsbut does apply to Puerto Rico (which is adjacent to the
.V.I.). Considered by many islanders to be a major burden on
consumer costs, it is as big an issue in Puerto Rico as Guam.
Reps. Gutierr¢z, .··Velazquez, and Serrano have sponsored a Puerto
Rico exemptio'p;,,J:tL.JJ>·
.
... .........,_.,';
·
:
Transportatiop'and:'u.s. merchant marine companies and unions are
strongly opposed . to exemption .and would even more strongly oppose
USing a Standar'd Of the island 1 S interPJOI~~"'''Q.
. Q.~Y:.
{~~
COPY
�7
•
Exemption from the reqUirement to use U.S. -built vessels in
the waters near Guam.
Transportation opposes this provision which would amend an
exemption limited by vessel si·ze. · The limitation was insisted
upon by the House Merchant Marine Committee .... This might also be
of interest,in Pu~rto Rico .
.,.
•
Exclusive or concurrent authority 'to manage and obtain
revenue from the U.S.'s Exclusive Economic.zone around Guam.
Other insular areas and California have expressed interest in the
EEZ. Justice objects to this provision.
•
SSI·and any other Federal programs no.t now extended.
This has been,one of the primary objectives of Puerto Rico's
commonwealthers. SSI has also been sought by the·Virgin Islands
and American Samoa. SSA views the cost of extending SSI to all of
the areas as too great. TheL Administration has proposed greater - but partial ~- funding in Puerto ~ico.
•
Joint recommendations .on levels ·.of program funding.
Puerto Rico.and other insular areas would want similar input.
•
Authorization for any funds necessary for inf~ast:hicture
· projects, technical programs, and ~oopera ti ve ventures • .
.
.
.
· Puerto .Rico,. the Virgin Islands,· and the Northern Mariana Islands·. •:
would want a similar authorization. One exists for American Samoa
·but the Hous.e aut~orizing committee has questioned it. OMB would .
probably oppose this provision for·budgetary reasons.
~t-h:rosc:;t L
.:.\.~·:;.tj ~::· ~--·~;
··.
·. .
tzdf--ti;e.r.n
1:\~;
~~-
.
~--·
......·
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
To Andrew Fois from Richard Shiffrin. Subject: H.R. 1056, the Guam
Commonwealth Act (33 pages)
04/25/1997
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michaellmbroscio
ONBox Number: 12733
FOLDER TITLE:
Counsel's Office- Lisa Hertzer & M. Imbro
2006-0 193-F
'm573
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)l
Freedom of Information Act- ]5 U.S.C. 552(b)l
National Security Classified Information ](a)( I) of the PRAI
Relating to the appointment to Federal office ](a)(2) of the PRAI
Release would violate a Federal statute ](a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRA]
b(l) National security classified information ](b)( I) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIA]
b(3) Release would violate a Federal statute ](b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information ](b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions ](b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIAI
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�'!SJ-t·- .c
~
~-
-0
~April
ttQ_
User: Karen Stevens
SUBJECT,
TO I
<Su~JECT>
.
25,
FROM, ..· DAT-E.: ... :....
H.R. 1056, The Guam Commonwealth Act
<DATE> August 22, 1995
<TO> AndrewFois, Assistant Attorney General, Office
Affa.ir·s;
Attn:
Lucy Koh
<FROM> Richard Shiffrinl Deputy Assistant ~ttorney General, Office
of Legal Counsel
DOCUMENT BODY:
.We are attaching a draft letter to the Director of OMB ~nd ~
revised report on H.R. 1056, based in part on the Departmental
comments in our initial report on that bill.
.
·
·
.
Alice M. Rivlin
Director
Offic~ of Management and Budget
Washington, D.C. 20503
Attn:
Jill Gibbons
Dear Ms. Rivlin: ·
This letter responds to the Departmental comments received by your
Office on the draft report o£ the Department of ·austice on H.R. 1056,
The Guam Commonwealth Act.
·
.
.
1. Department of the Treasury.
In as·much as 'the Department of·
the Treasury is submitting its own report on H,R. 1056 to Chairman
Young, we are not incorporating the cdmments of the Treasury in our
report.
Instead we defer to the views of the Department of the
Treasury . .
2 . . Environmental Protection Agency and OMB, IAD.
a. We agree to the substitution of "London Convention" for
"London Dumping Convention." I
I
b. We agree to insert EPA s paragraph beginning with ;, In particular"
after the second complete paragraph on p. 18 of our draft report, and
to begin our next paragraph with "Moreover" rather than "In
particular."
1
3.
Comments of EPA Region IX.
Attached to the comments of the EPA were the observations of the
PAGE
1
COPY
�Date: April 25,
User: Karen Stevens
EPA Region IX.
1997
We do not kno~ whether the EPA intended to irtco~porate
those observations in its comment, ~r whether they were att~ched only
as a m~tter of information.
The Region IX observations deal with
S~cs. 201, 202, 203, 204, 304 ~nd 1001 of the bill.
.
'
Region IX agrees with Sec. 1001. With respect to Sees. 201, 202,
203, and 304 Region IX apparently generally agrees with our
c6nclusibns but would prefer it if our pertinent discussions adopted
the language of the 1989 Report ori the Gua~ Commonwealth.bill. We
have not utilized that report, because of its supersedure by the
January 1993 Report, and be~ause of its lengt~. (16 page~ as again~t 6
pages in our comments) . The only substantive disagreement Region IX
has with our comments is with Sec. 204. Our present comments on Sec.
204 contain the substahce of our 1993 comments on Sec. 204;
they had
to be redrafted because the 1993 langu~ge did not parse.
W~ do not
share the concerns of Region IX that our Se~. ;204 would lead ~o
excessive or illegal delegations.
In our view Sec. 204 would be
limited by any ~xisting statutory piohibitions 6n appointments or
subdelegations.
4.
Comments of the, Department of State on Tit leVI I
(Immigration)
In view of those comments and of discussions with the Immigration
and N~turalization Service we have completely redrafted our report. on
Title VII.
5 ..
Comments. of the Department of Labor .on Title VII (Immigration)
•.
\.
The Department of Labor suggests that the discussion on Immigration
should be expanded to provide more information and detail on the
immigration and related labor abuses and civil rights violations in
the Co~monwealth of the Northern Mariana Islands. As the result of
earlier discussions with representatives from Guam we have
deliberately limited the discussion of that subject to a brief
reference in our comments on Sec. 701.
Further elaboration on that
p~int would be counterproductive becau~e the Guamanians deeply resent
any comparison with the inhabitants of the Northern Mariana Islands.
6.
In view of the June 12, 1995 decision of the Supreme Court in
Adarand v. Perra, No. 93-1841, we have revised the second and third
paragraphs of our comments on Sec. 102(f).
We are attaching a copy of our report on H.R. 1056 as redrafted.
Honorable Don Youn
PAGE
2
COPY
�U~er:
Kar~n
Stevens
Date:· April 25, 1997
Chairman
Committee on Resources
House of Representatives
Washington, D.C.
20515 ·
Attn:· Ann Vogt, Room 1324, Longworth HOB
Dear Mr.
Chair~an:
This letter complies with your request for the views of the
Department of Justice on H. R. 105'6, 104th Cong., 1st Sess., the Guam
Commonwealth Act.
(Commonwealth Act)
'
bill appears to be identical with H.R. 98 and S. 317, 101~t
1st Sess. (1989), on which an Interagency Task Force, .chaired
Department of the Interior, submitted a report on August 1,
this report raised objections t~ many aspects of the bill.
Hearing~ ~ere held on the bill in Honolulu, Haw~ii in the winter of
1989-1990 before the Subcommittee on Insular and International Affairs
The
Cong.,
by the
1989;
of the House Committee on Interior and Insular Affairs. During those
'hearings the Subcommittee urged the Executive Branch and the Guam
Commission on Self-Determination, them headed by Governor Ada, to
reconcile their differences and tO agree to a draft bill that would be
acceptable to both sides~
During th~ following three years the Task
Force and the Guam Commission held numerous meetings during which they
reached a substantial number of agreements proposing amendments to the
text 6f H.R. 98, but many~irreconcilable conflicts remained. On
January 1};9, 1993, the Task Force submitted a second report which noted
the agreements reached and. the questions that were left open.
In 1993
and 1994 further talks were held between the Guam Commission and I.
Michael Heyman, Special Represen·tative for Guam Negotiations.
We a:re
not aware of the results reached i~ those negotiations, except for an
agreement on section 103 of the bill, which is discussed below.
In November 1994, Carl Gutierrez was-elected Governor of Guam~
We
do not know whether and to what extent he will approve the agreements
reached thus far.
In these circumstances, the Departm~nt of Justice
believes that it must comment on H.R. 1056, as-introduced, without
regard to the agreements previously.reached with the Commission while
it was headed by Governor Ada.
This bill covers many subjects that are outside the expertise of
the Department of Justice.
We shall therefore limit this report to
those parts of the bill that are.within the jurisdiction and the
cognizance of th~ Department of Justice.
PAGE
3
COPY
�Oser: Karen
Stev~ns
Date: April 25,
1997
THE PREAI'v!BLE
The Preamble represents a statement of the motives and aspirations
of the people of Guam in ~eeking the enactment of the Guam
Commonwealth Act.
As a preamble, it does not have the force and
effect of law, ·and we therefore hesitate to take issue with it.
In
thr~e particulars, however, the language seems to us i~precise, and
therefore possibly misleading.
First, at the end of the first
subsection, reference is made to ~·the right 6f ·self-determination
. of the Chamorro people of Guam." As we will explain in our
commentary on subs~ctions {a) and (b) of sec~ion 102 of the bill, we
believe it is not constitutionally permissible to ~onfer such a right
upon only one part of the population of Guam.
Second, we are troubled by the ref~rence in subsection (b) to the
will of the people of Guam ''in concert" with the United States, which
seems to suggest that the Gu~m Ccimmonwealth Act would be in the nature
of a bilateral treaty.
We consider it imperative that Guam's future
"status be well understood and free from argument and therefore
recommend instead the prefatory languige ~sed in parallel
·
circumstances iri the Ncirt~ern Marianas Covenant, which refers to the
establishmeht of a ''self~governing co~monwealth . . . within the
American.political system." We therefore suggest that subsection (b)
of the Preamble refer to "the wish of the people of Guam to establish
a self-,.governing Commonwealth of Guam within the American political
system."
Third, we are also conce~ned by the phrase in subsection (a)
"conscious of their (the people of the United States) obligations
.under the Treaty of Paris of 1899 and the Charter of the United
Nations." We are not aware·of any pertinent .obligations relating to
the people of Guam that the United States undertook under the Treaty
of Paris.
While the cessions under which the United States acquired
territory prior to the Treaty of Paris did contain obligations toward
the inhabitants of the ceded territories, -- see, e.g., Louisiana
Purchas~:
Art~ III;
Florida Treaty: Articles 5 and 6; Mexican
Peace Treaty: Art IX; Alaska Purchase: Art. III . -- the Treaty of
Paris left the civil rights and the political status of the native
inhabitants of the territorie~ ceded to the United States to the
discretion of Congress (Art. IX), with the exception set forth in
Article X that the inhabitants shall be secured in the free exercise ·
of their religion. /1/ We defer to the views of the Department of
State as to the extent, if any, of the obligations of the United
States with respect to Guam under the Charter of the United Nations.
Section lOl{a).
we
have the following comments:
1.
The bill would refer to the "Island of Guam, and.its adjacent
The failure to
islands and waters,~ but does not define that term.
define the term "adjacent islands" is not likely to create any
practical problems.
It is, however, important that there be clarity
PAGE
4
COPY
�User: .Karen Stevens
Date: April 25, 1997
about the extent of {b_~ -waters included in ·-t-·he Commonwealth of Guam.
We recommend that the question of the Commonwealth's. authority over
the adjacent waters be addressed only in Ti~le X.
2.
The description of the relationship between the United States
and Guam does not state in so many words that Gu~m would be under the
sovereignty of the United States. We realize that section lOl(b)
. requires that the Constitution of the Commonwealth "recognize . .
the sovereignty of the United States.'~ Nevertheless we consider it
·important that·the Commonwealth Act do so directly and expressly, and
accordingly we recommend that the words "under the. sovereignty of the
United States" be added to the first sentence of section lOl(a).
Section lOl(a) also would provide that it shall become effective
"upon the enactment of this Act." That phrase would cause Guam to
become a Commonwealth when this bill is approved by the President, but
before it is approved by the people of Guam, and before th~
Commonwe~lth Constitution has become effective.
This ob~iously is
undesirable.
It is our view that the provisions incid~nt to·the
status of Guam as a Commonwealth should become effective only after
this bill has been approved by the p~ople of Guam, the Constitution of
Guam has been adopted by Guam and bee~ approved by Congress, and the
Commonwealth has been established.
The only provisions of this bill
that should become effecti~e upon its enactment should .be those
sections that govern the procedures for establishing the Commonwealth,
such as those relating to the submission of this bill to ihe voters of
Guam, the mandatory provisions of the Constitution, the approval of
the Constitution by Congress, and the final establishment of.tha
Commonwealth. The effective dates of the several sections of the
bill, therefore, should.be set forthin.Title XII of the bill. Any
reference .to th~ effective date of a section in the rest of the bill
should be deleted.
3.
It also should be made clear that the qualifier "applicable to
Guam" extends not only· to laws of the United States but also its
Constitution and treaties.
We would recommend that section lOl(a) be amended to read as
follows:
The Island of Guam, and its adjacent islands, shall become a
self-governing Commonwealth under the sovereignty/of the United
States, known as the "Commonwealth of Guam." This Act, together
with those provisions of the Constitution, treaties, and laws of
the United States that are applicable to Guam, and the
Constitution of Guam shall be the supreme law of the
Commonwealth.
PAGE
5
COPY
�Date: April 25,
User: Karen Stevens
1997
Section 10l(b) would provide that the people of Guam shall have
"the right of full self -gov~rnment ,-" e'xtending to "all rightful
subjects of government", and shall govern themselves in accbrdance
with a Constitution of their own adoption; which is required to meet
. four standards.
We suggest, first, that the various references in the bill to
"self -government" ought to be made uniform, -lest those- later concerned
with the construction bf the Act ascribe different meanings to
different references.
We presume that differences were not intended.
For example, the Preamble refers to "a greater measure of
.self-gover.nment 11 ;
section 101 (a). refers to "a self- governing
Commonwealth";
section 101(b) ~nd the title of section 101 refer to
11
fU:ll self-government 11 ;
and section 1201 refers to "complete int.ernal
self-government." We cannot perceive that any loss would result from.
the elimination of the adjective in section 101(b), and we thus
suggest that section 101(b) and the title of the section refer to "the
right of_self-government 11
,
~ithout
a modifier.
The subsection would provide that the rights 6f self~government
shall extend to all rightful subjects of'government "not inconsistent
with this Act and the laws of the United States applicable .to Guam."
It will be noted that this clause is similar but· somewhat narrower
than the comparable phrase in the second sentence of subsection (a) .
We believe the two should be made consistent -- lest a later construer
find different meaning in the different phrases. We think none was
intended. Accordingly, we suggest that the following. be substituted:
"not inconsistent . ·
. with those provisions of the Constitution,
treaties, and laws of the United States that are applicable to Guam."
With respect to the standards that the Guam Constitution is to meet
we would recommend, for the re~~ons set forth in our 6omments cin
section 101(a) that the first paragraph should b~ amended to irisure
that the qualifier "applicable to Guam" applies not only to the laws
of the United States but also to its Constitution_and the treaties.
Neither section 101 nor any other prov{sion of the bill provides
for the federal approval of the Guam Constitution.
We .believe that
such approval is important, if only to guarantee compliance.with the
standards set forth in section 101(b).
Moreover such federal approval
was required for the approval of the Constitutions of Puerto Rico and
the Northern Mariana Islands, and for the Constitutions of Guam and
the Virgin Islands authorized by Pub. L.
No. 94-584, 90 Stat. 2_899
(1976).
The details of the federal approval need not burden section
101, but should be set faith in Title XII dealing with the mechanics
PAGE
~~€-SIDt:l\1~
6
l q'S
~
~
COPY
�Date: April- 25, 1997
User: Karen Stevens
of putcing this Act into effect.
We do not_ believ~ it is necessary that amendments to the
Constitution should be subject to federal ap~~oval;
they should,
howeve~. be subject to judicial review for their consistency-with the
Ace and those pr6visions of the Constitution, treaties and laws of the
United
State~
that are applicable to Guam.
We therefore recommend that section .101 (b) . be modified as follows:
(b) The people of Guam-shall have the right of self- government,
which shall extend to all rightful subjects of government not
inconsistent with this Act and with those provisions of the
Constitution, treaties and laws of the United States that are
applicable to Guam, and shall govern themselves in accordanc~
with this Act through a Constitution of their own adoption.
Such Constitution shall
(1) recognize, and-be consistent with the sovereignty of the United
States over Guam, .and the supremacy of those provisions of the
Constitution, ·treaties, and laws of the United States that are
applicable to Guam;
(2) provid~ for a republican form of government;
(3) provide for three branches of government;
(4)
and
contain a bill of rights.
The Constit"ution of the Commonwealth of Guam shall be approved by the
Congress of the United States at the time and in the manner provided
for in Title XII of this Act.
Amendments to the Constitution may be
made. by the people of Guam without_ approval by the Government of the
United States, but the courts established by the Constitution or laws
of the United States shall be competent to determine in a properly
presented caseor controversy whether the Constitution and subsequent
~mendments thereto are. consistent with this Act and with those
provisions of the Constitution, treaties, and laws of the United
.States that are applicable to Guam~
Section 101(c) ~ould authorize the Government of Guam to waive
severe ign _immunity in certain cases. We suggest. that the authority
granted be broadened, so_that Guam's authority on this subject is
unlimited, and propose the following revision of the subsection:
The Government of the Commonwealth shall have the power to sue
in its own name, and it may be sued with the consent of the
Legislature, evidenced by enacted law.
The last four ~ords d6 not appear in
PAGE
they do ·
7
COPY
�Date·: Ap'ril 25,
User: Karen Stevens
1997
appear in existing law (48 U.S.C. Sectiori 142la). We s~ggest that
they be added, so that a waiver of~sovereign immunity would be based
on a duly enacted law, and not, .arguably, upon action by the
legislative branch only.
Section 10l(d) would require the "Government" of the Commonwealth
to establish and operate a public education system, "to the same
extent as the several States." Except for the final phrase, the
subsection substantially parallels existing law, .as amended in 1986
(48 U.S.C. Section 142lg(b)).
(Before that date, the authority was
reposed in the "Governor", which gave rise to .an executive-legislative
dispute that was settled by an amendment substituting "Government.")
We have no objection to the portion of subsection (d), that would
require the G6vernment of Guam to establish and operate a public.
education system although we doubt it is necessary.
The meaning of the·phrase ''to the same extent as the several
States" is uncertain to us.
We understand that it was included.
because of Guam's general aspiration for "State-like'' treat~ent in the
Commonwealth Act.
We fear, however, that those words may have
unexpected effects on federal grant formulas, some of which treat
Gu~m
not as a State but provide for benefits to the Territories on a
diff~rent basis.
We therefore recommend the.elimination of the
terminal phrase.
S~ction 102(a).
This subsection would provide fo~ the
Congressional recognition of the inalienable right of selfdetermination· of the indigenous Chamorro people·, defined as those born
on Guam before August 1, 1950, ~nd their descendants, and mandates
that the .Guam Constitution shall provide for the exercise of that
right of self-determination.
The Department of Justice must oppose this subsection on
grounds.
constitut~onal
Section 1 of the Fifteenth Amendment to the Constitution .of the
United St~tes provides:
.
•
SECTION 1. Tqe__ right. of ci.tizens.....of_.the ... United States· to
·vote•SUii!!!nofCOe'-:denied or abridged by the United States or by
any St~9~~'=:c~t. of race, ·color~ or previous condition of
s e rv i ~ $5.zi• ·4 .. ·• ··
It is true that section 102(a) does not
of exclusion from the right to vote on the
envisaged by section 102 (a) that are based
However, the selection of the- date, August;..
was a closed area administered by the Navy
PAGE
contain any express words
act of self~ determination·
on race or ethnicity.
.
l,.. 1950-r a time when Guam
and· when·, consequently,
8
COPY
�Date: April 25, 1397
User: Karen Stevens
virtually all its residents were of Chamorro descent, makes.it clearthat section..10J (a)> wotild -in effect· impose a racial test and that it
was intended to have thac result.
Guinn v. United States, 238 u.s.
341, 364-65 (1915).,..;
t'
Th~ selection of the date of August 1, 1950, therefore establishes
an intent to deny thE: right to vote .to persons not of Chamorro
descent;. .. Section 101(a) consequently violates the Fifteenth
·Amendment.
Hunter v. Underwood, 471 U.S. 222, 233 (1985).
In view of
thai racial motivatioh it is immaterial that the formulation of
section 102(a) would not achieve that result perfectly.
Under section
102(a) a small number of persons of non- Chamorro descent who resided
in Guam on August 1, 1950, and their descendants would be permitted to
vote, and persons of Chamorro descent who were not residents of Guam
on August 1, 1950, and their descendants would be denied the suffrage.
This marginal discrepancy between the eligible voters and the
Chamorros is at best de minimis and does not "trump()" the
impermissible motive. of racial discrimination.
Hunter v. Underwood,
471 U.S. at 231-32.
It will be noted that the prohibitions of the Fifteenth Amendment
are directed at the United States and the States. The United States,
therefore, cannot direct or authorize the limitation of the right to
vote on the question of self- determination to the indigenous people
of Guam.. Neither can Guam include those limitations on the right to
·vote in its Constitution, because the Fifteenth Amendment has been
.made applicable to Guam as if it were a State (48 U.S.C. Section
1421b(u)). Moreover, the provisions of the Constituti6n of the United
States protecting vbting rights are among the fundamental provisi6ns
of the Constitution that would apply to the unincorporated territories
of their own fbrce, even if the Fifteenth Amendment had not been
specifically extended to Guam.
Rodriguez v. Popular Democratic Party,
457 u.s. '1, 7-8
(1982).
Since the Fifteenth Amendment specifically and absolutely prohibits
limitations on the right to vote ·based on race or color, there is no
need to go into the questi6n of whether section 102(a) also.
constitutes a durational residence requirement prohibited by the Equal
Protection element of the Due Process Clause of the Fifth Amendment,
and whether a provision of the Constitution _of Guam implementing
s~ection 102 (a) would violate· either the Equal Protection element of
the Due Process Clause of the Fifth Amendment or the Equal Protection
Clause of the Fourteenth Amendment.
See Dunn v. Blumstein, 405 U.S.
PAGE
~~SIDEtv~
9
!
~
<?
~5
A?(
COPY
�Date: April 25, 1997
User: Karen Stevens
330 (1972), and Rodriguez v.
J?_<;:>pula_r Democratic Party, 457 U.S.· at 7-a
n.6 ~explain~ng that, while the inhabitants of an unincorporated
terr1tory enJOY the guaranty of the Equal Protection of the Laws, the
Supreme Court has never found it necessary to resolve the precise
question of whether that guaranty is provided-under the Equal
Protection Clause of the Fourteenth Amendment or the Due Process
Clause of the Fifth Amendment) .
It is therefore recommended that section 102(a) be deleted from the
bill.
Those supporting the Chamorro-only vote have suggested that the
Congress has authority under the Territory Clause (U.S. Canst. art.
IV, Section.3, cl. 2) to permit a depart~re.from-the constitutional
precepts, discussed above, concerning the deprivation of the right-to
vote for racial or ethnic reasons.
The Territory Clause, however,·does n9t supersede the Con~titutidn.
To the contrary, the power of
Congress under that Clause, like every other governmental power, must
be exercised in subordination ~o the applicable provisions of the
Constitution.
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 186 (1824)
District of Columbia v. John R. Thompson Co., 346 U.S. 100, 104
(1953).
Section 102(b} would provide that the Government of Guam will
insure that. nothing in the Act will be interpreted "as depriving any
qualified resident of Guam of the right to participate as a voter" in
the ratification pro~ess provided for in ~ection 1204.
In other
words, section 102(b) would exempt ~he plebiscites t6 be conducted in
the approval processes of this bill and of the Constitution frdm the
. Chamorro-only vote requirement of subsection (a} , indicating, however,
the persons who are not native Chamorros may be excluded from- further
acts of self~determination.
Subsection (b) thus suffers from the same
infirmities as subsection (a)
and should be deleted.
Section 102(cf would prov{de that the United St~tes Governmen~
shall and the Commonwealth of Guam may promote the. following
activities:
(1) the maintenance and preservation of the Chamorro
language, culture, and traditions; .
(2) the enhancement of economic, social, and educational
opportunities for Chamorros;
and
{3) training of Chamorros for employment as professionals,
skilled workers, and leaders in business and ind~stry.
This subsection would provide constitutional problems if it
PAGE 10
COPY
�-~------------------------,--------~-------------:-------,
User: Karen Stevens
Date: April 25, 1997
established racial or ethnical classification for the recipients of
its benefit~:·· -It does~not appear. however that this provision would
ha-ve that· effect- It does riot -e-xpr-essly set-up programs tha~ are
reserved for Cha.morros, nor does it expressly provide that Cham.orros
are to be granted preferences on the basis of their ethnicity in
connection with program~ funded by the federal Government or the
Commonwealth. Thus, the promotion of Chamorro language, culture, and
traditions that is described_in paragraph (l) does not necessarily
entail the establishment of programs in which individual Chamorros
benefit on the basis of ethnic criteria;
rather, paragraph ·(1) simply
may involve the creation of educational programs.-- open to all, and
in which no ethnic preferences are awarded -- that further the
preservation of Chamorro culture.
Again, on their face, paragraphs (2) and.(J) entail outreach and
recruitment efforts to attract Chamorros to the socioeconomic,
educational, and employment training programs described in those
p~ragraphs,- but stop short of actually allocating benefits, positiqns,·
or jobs to Chamorros on the basis of ethnicity. Such efforts
do not trigger the appliGation of the legal standards
governing the use of racial or ethnic classifications, b~cause they
are considered race/ethnic neutral with respect to allocatidn of a
benefit. City of Richmond v. J.A. Croson Co., 488 U.S. 46~, 507
. (1989);
id~ at 526 (Scalia, J., concurring).
Analogous legislative
precedents may be found in 2D u:s.c. Sections 1059c, 1133b(b) (11) &
(e) (2), 7901-7912.
gene~~lly
Section 102(d) would provide that the establishment of the
p~ograms
envisaged in section 102{c) shall not affect the continued eligibility
to existing programs by minority groups now qualified to receive the
of those existing programs. We. perceive no objection to this
ben~fits
subsection at this time.
Section 102(e) seems to mean that nothing in the Act or in the
Constitution of the Commonwealth of Guam shall impair:
(a) the United
States citizenship of the residents of Guam and their descendants, or
(b) the rights and privileges under the first sentence of the
Fourteenth Amendment of aliens legally admitted for permanent
residence who are residing in Guam.
The first clause of this subsection appears to be unnecessary,
considering that section 201 would extend to Guam the first sentence
of the Fourteenth Amendment pursuant to which all persons born or
naturalized in the United States are citizens of the Uni~ed States.
This Act or the Constitution of Guam thus could not ~impair~ ~he
con~titutionally guaranteed citizenship for all persons born or
PAGE 11
COPY
�User: Karen Stevens
naturalized 1n the United
Date: April 25, 1997
St~tes.
'
The meaning of th.e s-econd ctaus~e Of the subsection is uncertain.
When it speaks of "legally admitted aliens permanently residing in
Guam'', it is not clear whether it refe~s to aliens admitted .0nder
Federal la~ or under Guamanian law under Title VII, infra.
Moreover
the first senterice of the Fourteenth Amendment refers to ditizenship'
and not to rights and privileges.
The second sentence of the first
section of the Fourteenth Amendment prohibits the abridgement o{ the
privileges and immunities of citizens of the United States. Only the
Due Process and EqualProtection Clauses, also located in the second
sentenc~ of the first section of the Fourteenth Amendment, apply to
."any person" regardless of their citizenship. Assuming that. section
102(e) is intended to·refer to tte fixst section, rather than the
first sentence of the Fciurteenth Amendment; it should be noted that
the second sentence of that s~ction was intn)duced to guam by statute
in 1968~ and that much, if not all of it, has been in effect in Guam
even before that tfme by its own forcie. · Hence, neither th~ Guam
Commonwealth Act nor the Constitution of the Commonwealth of Guam
would b~ capable of impairing those rights arid privileges to which
alien residents of Guam who have been lawfully admitted for permanent
residence in the United States are entitled under the first section of
.the Fourteenth Amendment.
We therefore recom~end that sec~ion· 102(e)
_be eliminated, unlesi there is received a satisfactory explanation of
the purpose it is designed to accomplish.
We want to add that the
Guam Commission on Self-Determination at one time agreed to the
deletion ~f this subsection.
·Section' 102 (f) ~muld provide for the establishmept by the·
Commonwealth of Guam of'~~ Chamorro Land Trust for dle benefit of the
'indigenous Chamorro people of Guarri.
The trust would be composed of
"certain lands"_returned by the United States to the Commonwealth of
Guam. The subsection does not specify what the "certain lands" are,nor does it specify the purposes and terms of the trust.
In those
circumstances it .is difficult, if not indeed premature, to evaluate
the constitutionality of this subsection. We therefore limit·
ourselves to the following observations.
If the principal or the income of the trust are to be used to fund
the Commonwealth's programs provided for under section 102(c),
considerations similar to thos~ discussed in connection with that
subsection would_ apply.. Different tests would apply, if. the trust
were require~se-11-m:::~ lease the lands conveyed to it mily to
indigenou!4C~roaaao. If that were the true import. of section 103(f),
the provisiorr.-Woulct authorize Guam to use a racial or ·ethnic
classification. Racial or ethnic classifications intended to benefit
.minorities that are adopted pursuant to Congressional authorization,
are now subject to strict scrutiny in the wake of Adarand·
Constructions Inc. v. Pena, No. 93-1841, (June 12, 1995). That. is the
PAGE 12
COPY
�U~er:
Karen Stevens
Date: April 25,
1997
same standard that applie~ 1n classi~ications that discriminate
against minorities:~·:: :under that sL3.ridard, a. racial and- et:hnic
classification is unconstitutional unles~ it serves a compellirig
governmental interest and is narrowly tailored to the achievement of
that objective.
·
·
·
·
In Adararid, the Court said that the federal government has
compeiling interest in adopting racial and ethnic classifications to
remedy the "persistence of both ·the practice and lngering effects of
discrimination against minorities in this cour,ttry." (slip op. at 35).
See also Croson, 488 U.S. 469, 490 ("Congress may identify and redress
the effects of ~ociety-wide discrimination" through race-based
measures) . Under strict scrutiny, however, the evidence of
disc:;-rimination that is to be remedied through a racial or ethnic
classification must be fairly precise-. Furthermore, in order to meet
the "narrowly tailored" requirement,.: the government must have
considered race-neutral alternatives before resorting to
race-conscious action, and the classification must be flexible, and
subject to periodic review.
We believe that, as presently drafted,
section 102(f) probably would not pass strict scrutiny, if it-in fac~
involves government decision making on the basis of race and
·
.ethnicity, rather than a mere .outreach or recruitment effort of the
sort reflect in sectiOn 102 {c) . On the other hand, it~ may be possible_
to craft the legislation in such a way so.that it satisfies strict
scrutiny, i.e. through the establishment of a sufficient factual
predicate of discrimination and the proper tailoring of the
classificaton.
·
Section 102(g). This subsection would provide that the
.
Constitution of Guam shall establish reasonable residency requirements
for voting purp9ses. We question the need for this subsection.
It
does not appear necessary to burden the Constitution of Guam with a
provision to that effect. ·The power to attach reasonable residency
requirements to the electoral franchiSe no more and no less, flows
·from the Fourteenth Amendment and does not have to be spelled out. On
the one hand, the residency requirements-may not be any longer than
"reasonable", as de-fined in Dunn v. Blumstein,. 405 U.S. 330 (1972).
We therefore believe that it should be left to the discretion of·the
Constitutional Convention whether or ~ot to include in that document a
provision dealing with a residency requirement complying with the
federal durational mandate.
Even in the absence of a pertinent
provision in the Guam Constitution, the Guam legislat~re would have
the power to enact a residency requirement for voting, as long as it
is compatible with the federal standard.
Section 103.
This section would provide
this, the Guam Commonwealth Act, may be
provisions of
the mutual
PAGE 13
COPY
�User: Karen Stevens
Date: April 25, 1997
consent of the Government of the Urtiied States and the Go0ernment of
Guam.
The Department of Justice is opposed to this section for constitutional reasons. We realize that the 1989 report, whil~
_
rejecting this section as a whole, proposed a mutual consent provision
analogous to section 165 of the Covenant with the Northern Mariana
Islands that would subject four fundamental provisions of the Gu~m
Commonwealth Act, vi~. sections 101, 103, 201 and 301 to a mutual
consent requirement. Since then the Department of Justice has
reexamined the question whether ~rid in what circumstances one Congress
may 'prevent the mc, .. ification of its laws by a subsequent Congress.
.
We
.
have.cohcluded that one Congress cannot immunize· legislation such as
the proposed Guam Commonwealth Act ·from subsequent Congressional
~mendments for.the following reasons:
1. Legislation enacted under the Territory Clause delegating .
congressional governmental authority or any part of· it to a Territory
is "necessarily" subject to the power of Congress to revise; alter, or
revoke that delegation. District of Columbia v. John R. Thompson
Co., 346 U.S. 100, 106, 109 (1953); and the authoriti~s there cited.
2.
It is true that Congress can immunize legislation from
subsequent amendments where it. creates vested· rights in "persons" that
ar·e protected against subsequent legislative impairment by the Due
Process Clause of the Fifth Amendment, especially where Congress
agrees in unmistakable terms to- forego its right to amend or repeal.
This exception, however, applies to only conventional property rights
within the meaning of the Fifth Amendment, and does not extend to.
regulatory or political relations.
Bowen ·v. Public Agen~ies Oppo~ed
to Social Sec. Entrapment, 477 U.S. 41, 59 (1986);
Peterson v. U.S.
Dept. of Interior, 899 F.2d 799, 807 (9th Cir.), cert. denied, 498
U.S. 1003 (1990);
Parkridge Investors Ltd. v.
Farmers Home Admin.,
13 F.Jd 1192, 1198 (8th Cir. 1994), cert.
denied, 114 S. Ct. 2163
(.1994). /2/ In other words, Congress canriot bargain away sovereign
governmental powers by creating.vested rights in them. Nqrth America
Commercial Co. v. United States, 171 U.S~ 110, 137 (1898)j
see also
United States Trust Co. v. New Jersey, 431 U.S. 1, 23 ·(1977) r~lating
to the analogous problems of States under the Contract Clause (U.S.
Canst. art. I, Section 10, cl. 1). /3/ Moreover, governmental entities
are not "persons" within_the.meaning of the Fifth Amendment.
Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966).
South
In the second half of 1994 the Special Representative for Guam
Status Neg6tiations and the Governor of Guam agreed on the following
PAGE 14
COPY
�Date: April 25, 1997
User: Karen Stevens
language on the qui:;s~ion of mutu~Lc::_onsent :_
The Congress, acting to the extent cdnstitutionally permissible,
in the exercise of its plenary authority under Article IV,
Section. 3~ Clause 2 of Che Cdnstit~tion, and the people of Guam
agree that no provision of this covenant may be altered,
amended, or repealed without the mutual consent of the
Government 6f Guam and the United State~ Congress~_
The Department of Justice acquiesced in th~ language in the belief
that the clause "to the extent constitutionally permissible"
constituted a forceful, if not indeed a perempt6ry, warning as to the
legal ififirmity of the mutual consent provision; The Department of
Justice adh~res to its position that ~ongress lacks authority to bind
a future Congress to the terms of the mutual consent provision.
Because we are concerned that section 103 -may be misleading to t~e·
Guamanians, we recommend that it be deleted.
Section 201.
This _section would continu~ the application·to Guam
of those provisions of the CortStitution of the United States that now
apply to Guam, unless specifically modified by the Commonwealth Act,
and ·would proyide that ce~tain additional provisions of the
Constitution shall have the same force and effect on Guam as in the
United States or in any State of the United States.
The Department of Justice has the following comments:
_The provisions of the Constitution now applicable to Guam fall into
several groups:
1.
The Territory Clause (U.S. Canst. art. IV, Section 3, cl.
2)
2. The fundamental provisions of the Constitution that apply of
their own force which include at least Freedom of Speech, the
prohibition against unreasonable searches and seizures, the Due
Process and Equal Protection Clauses of the Fourteenth Amendment, and
the. Due Process Clause· of the Fifth Amendment, including its Equal
Protection component, and the Fifteenth Amendment.
3.
The provisions of the Constitution that were expressly extended
to Guam by section 5 of the Elective Governors Act of September 11,
i968, 48 U.S.C. Section 1421b(u), viz. Article I, Section 9, Clauses 2
and· 3; Article IV, Section 1 and Section 2, Clause 1, the First to
the Ninth Amendments inclusive, the Thirteenth Amendment, the second
sentence of the first section of the Fourteenth Amendment, the
Fifteenth Amendment, · and the Nineteent-h Amendment.
We are concerned about the clause "unless specifically moditied by
PAGE 15
COPY
�Date: April 25, 1997
User: Karen.Stevens
this Act." We have been advised...that the Guam Commission on
Self -Determiriat ion reads. this cTa-:use not as expressly. mod.ifi.ecl" 'but
as "modified by necessary implication." Thus· the extension of the
Tenth A~endment to Guam wduld supersede the Territory Clause, the
Chamorro only voting provision would supersede the Fifteenth Amendment
II
and the
~onstitutibnal
In addition,
guaranties of Due Process and Equal Protection.
the following provisions of
t~e
Act are in the view of
.the Guam Commission designed to supersede the U.S. Constitution:
-~
Title VII on immigration, as it relates to the power of
under Article I, Section 8;
Congr~ss
-- Section 1001 on·eminent domain, as it relates to the Fifth
Amendment;
-- Section 202 (and perhaps others} on the effect df Federal
law, as it relates to the power of Congress under ~he last
paragraph of Article I, Section B, to make unecessary and
proper"· laws;
·
--·section 303 on agreements with for~ign entities, as it
relates·to the bar to conclude treaties by a State iri Article I,
Section 10;
and
-- Section 303 on agreements with foreign entities, as it
relates to the President's treaty-making power under Article II,
Section 2.
The "unless specifically.modified by this Act" clause is objectionable
for two reasons.
First, the clause is in our view ineffective,
because it cannot.affect the ap~lication of the Constifution to any
area under the sovereignty of the United States and, second, because
. it would inject an impermissible degree of uncertainty into the
operation of the Act.
Section 201 would newly introduce into Guam Article IV, Section 2,
Clause 2 and Section 4, of the U.S. Constitution, the first sentence
(of the first section} qf the Fourteenth Amendment, and the Tenth
Amendment.
a.
Aiticle IV, Section 2, Clause 2, the Interstate Rendition
·and the first sentence of the first section of the Fourteenth
Amendment, providing for citizenship at birth, ate both already
applicable to Guam on a statutory basis, see 18 U.S.C. Section 3182
Clause~
PAGE 16
COPY
�Date: April 25, 1997
User: Karen Stevens
and 8 U.S.C. Section 1407.
The apparent purpose of including .those
provisions in section 201 is to immunize them, in particular the
citizenship at birth ..provis.ion, fr-om changes in the federal law.· ·The.
Department of Justice has no objection.
We must point out, however,·
t·hat there is no assurance that the stat~tory introduction 6f
constitutional provisions in Guam cannot be iepealed by a subsequent
st~tute o~ by the loss of U.S, sovereignty over Guam.
We are aware of
two isolated statements by Brown, J., in Downes v. Bidwell, 182 U.S.
244, 261, 270-71 (1901), and in Rassmussen v. United States, 197 U.S.
516, 536 (1905), that the introdubtion of the Constitution or a part
thereof irito a Territory is irrevocable.
In ihe absence of further .
Supreme Court precedent supporting that proposition, we cannot say
that its validity has been established beyond a doubt.
b. Article IV, Section 4, provides that~the United States shall
guarantee every State in the Union a republican form of government and
protect them from invasion.
We assume.that this clause has been
occasioned b~ the inability of the United States to defend Gu~m at the
beginning of World War II, and the resulting 3 1/2 years of Japanese
occupation. .We have no objection td this provision.
c. We must object, however,
Tenth Amendment to Guam.
·
to the proposed application of the
The purpose of rendering the Tenth Amendment oJ the Constitution
applicable to Guam is, in the .words of the Guam Commission, to limit
the power of Congress over the internal affairs of Guam in the same
way that Congress' authority over a state government is limited.
Such
limitation of the powe~ of Congress over Guam would be in~onsistent
with the .Constitution.
According to the Constitution, all areas under the sovereignty of
the United States are divided in t~o, and only two, categories:
States, with respect to which the l~gislative power of Congress is
limited by the Constitution, and area~ th~t are not States. The
latter areas "must necessarily be governed by or under the.authority
of Congress." National Bank v. County of Yankton, 101 U.S. 129, 132-33
(1880).
Or in the words of Chief Justice Maishal, "{i)n legislating
for them (the Territories) Congress exercises the combined powers of
the general, and of a state government." American Ins. Cci. v. Canter,
26 U.S. (1 Pet.) 511, 546 (1828).
Thus, as long as.Guam remains under
the sovereignty of the United States, the power of Congress to
legislate over Guam cannot be limited, unless Guam becomes· a State on
equal footing with the 6ther States.
In other words the Tenth
Amendment cannot be extended to an area under the sovereignty of the
United.States.that is not a.State.
PAGE 17
COPY
�U~er:
Karen Stevens
Date: April 25, 1997
We therefore object to the inclusion of the Tenth Amendment in
section 201.- On the other hand, in order to avoid misunderstandings
of th~ kind that occurred in the Northern Mariana Islands we urge that
the Territory Clause (U.S. Const. art. IV, Section J, cl. 2) be
specifically included in the constitutional provisions applicable to
Guam.·
Section 202.
This section would provide that no federal laws,
rules ahd regulations passed after the date of this Act shall apply to
Guam, _unless ~utually consented to by the Goveinment of the Unit~d
~t~E~s and the Govern~ent of ·Guam~
The Department of Justi~e objects
to this section for the reasons set forth in its objecfion to the
extension of the Tenth Amendment to Guam. ~The s~ction is inconsistent
with the sovereignty of the United States.and the plenary powers of
Congress over an area under the sovereignty of the United States that
is not a State.
We have the further formal o}?jection to the clause "after the-date
of this Act." It is not clear to which stage of the ratification
process it refers.
We realize that Guam is 10,000 miles away from Washington, and that
its geographic, climatic, demographic, and cultural conditions differ
largely from those prevailing on the mainland.
We therefore suggest
the development of a fast track legislative process to grant Guam
exemption from federal laws that are obviously not suited to it.
Similar provisions may be considered for administrative rulings.
Section 203 .. This section would establish a Joint Commission on
the Applicability of Federal Law consisting of three members appointed
by the President of the United States, and four members appointed by
the Governor of Guam. The Commission would have far reaching powers
~nd functions, including the determinations of what federal real
property is surplus (section 1002) and of which federal recreational
facilities and which ea~ements over federal property shall be open to
the Government of Guam and the general public on Guam (section
1003
(c)) .
We object to the provisibn, if 6nly on the ground that a Commission
ihat has such broad powers, especially those relatini to the disposal
and the use of federal property, should not have a controlling
majority of Guamanian members.
In addition this provision would
appear to raise problems under the Appointments Clause (U.S. Canst.
art. II, Section 2, cl. 2). We also note that under subsection (c)
the costs of the Commission would be born exclusively by the U.S.
PAGE 18
COPY
�Usei: Karen
Stev~ns
Date: April 25,
1997
Treasury ..
Section 204.
This section would a~thorize the President or his
designee to delegate to the Governor of Guam total or parti~l
performance of functions vested in administrative agencies of· the
Federal Government.
We fully appreciate that the administratiori of federal statutes
10,000 miles away from the seat of the Government presents difficult
problems for the agencies as well a~ for the citiz~ns, especially in
connection with the many agencies whose responsibilities on Guam are
limited and therefore do not warrant ·the maintenance of a field office
on Guam.
For technical reasons we would substitute the term uappoint" for
udelegateu and suggest that section 204 be amendedto read:
(a) The President alone may appoinc the Governor of Guam or,
after consultation with the Governor of Guam, an officer of the
Government of Guam to perform in Guam any function vested in any
executive agency of the Federal Government.
(b) The head of an executiv~ agency of the United States that has
ptogram responsibilities in Guam may appoint the Governdr of Guam or,
after consultatiori with the Governor of Guam, an office~ of the
Government of Guam to perform in Guam any functions vested in that
agency.
Sections 301 through 303.
With respect to .those sections the
Department of Justice defers to the views of the Department of State
and the Department of Defense.
We recommend, however,
that section 301 be rephrased as follows:
The Unit~d States will have complete responsibility fdr and
authority with respect to matters relating to foreign affairs
and defense that affect the Commoriwealth of Guam.
Section 304. This section would (a) prohibit .the United States
Government from using the island of Guam and its internal and
surrounding waters, ·including the.U.S. exclusive economic zone, as a
nuclear waste storage or disposal site;
(b) pr~Vent the Federal
Government from storing or disposing of hazardous chemicals on Guam.
and require a cleanup of any hazardous waste disposal sites created by ,
the Department of Defense;
and (c) authorize the District Court of
Guam to require th~ United Stat~s Government to compensate anyone
injured as a result of the use, storage, or disposal of chemical,
.nuclear or other hazardous substance by the Federal Government on
Guam, We object to section 304 in its present form for the following
PAGE 19
COPY
�User: Karen. Stevens
Date: April 25,
1997
reasons.
Subsecti6ns (a) and (b) deal with topics that ar~ covered in
considerable detail by federal statutes and by relevant treatie~.
The
.principal federal statutes that bear on the objectives covered by
these subsections are:
the Clean Water Act (CWA);
the Solid Waste
Disposal Act (as amended by the Resource Conservation and Recovery Act
- RCRA);
the Marine Protection, Research and. Sanctuaries Act
(MPRSA);
the. Comprehensive Environmental Response, Compensation, and Liability
Act (Superfund- CERCLA~;
the Toxic Substances Control Act (TSCA);
the Nuclear Waste Policy Act of 1982. (NWPA).; .Atomic Energy Act (AEA).
.
.
The London Convention (LC} and the Convention for the Protection of
the Natural Resourc~s and Environment of the South Pacific Region ·are
also relevant to this section.
Subsections (a) and (b) would either duplicate these statutes and
treaties or create a ·new se·t of requirements and liabilities that, for
lack of the details required in'this complex area of the law, would
result in un6ertainti~s and doubts inconsistent with the efficient ·
achievement of the purposes of those subsectioris.
In particular, the MPRSA arid the London Convention contain specific
prohibtions and requirements for "radioactive waste" and "industrial
waste". ·use of undefined terms in section 304 such as "nuclear wasce"
or "hazardous. chemicals" could create confusion or difficulties in
interpretation as to how section 304_ is meant to fit with the MPRSA~
Moreover, we wish to point.out that RCRA and CERCLA control the
treatment, storage, and disposal of solid and hazardous waste, and
provide for the cleanup of contamination at federal facilities.
These
two statutes provide well established requirements enforceable by
regulators and by citizen suits, under which the United States is
addressing contamination nationwide.
The language of section 304(b}
and (c) would create a wholly new set ofrequirements that wouldbe
duplicative of these existing laws, and that would interfere with ·
ongoing cleanups being carried out under existing law.
If these subsections are to be retained at all they should be
rephrased so as to be consistent with the applicable provision of the
existing federal law.
Subsection (c) would provide that any
of chemical, nuclear or other hazardous
pers~~~
used, or ·
PAGE 20
COPY
�User: Karen Stevens
Date: April 25, 1997
disposed of by agencies of the United States in Guam shall be
.,compensated by ··the United Sta.tes 'in a manner to be decided by the
District Court of Guam.
We object to this provision which wo~ld subject the Unite~ States
to tort liability in a manner to be determined by the District Court
of Guam without any.statutory guidance.
The assu~ption of tort·
liability by the United States constitutes a waiver of sovereignty.
The Federal Tort Claims Act.w~s enacted after a careful weighing of
the conflicting considerations militating fo~ and against this waiver.
That. Act strikes a delicate balance between the legitimate need to
provide an avenue for pers6ns s~eking tompensation for torts of
government agencies and officials, and the fiscal and other policy·
concerns reflected in the exemptions, exclu~ions, and ~onditions set
forth in the Act.
Thus, the Act does not permit liability to be
predicated upon a strict liability theory (28 u.s.c~ Section 1346(b)),
does not apply to acts or omissions of any contractor with the United
States (28 U.S.C. Section 2671), and does not provide jurisdiction to
resolve claims founded Gpon any of the nu~erous exceptions set forth
in 28 U~S.C. Section 2680, of which exception (a) (discretionary
function) and (j) . (combatant activfties during war) are particularly·
pertinent here.
It is important that the tort liability of the United
Sta~es be subject to the well considered contours of the Federal Tort
Claims Act and that this liability be uniform throug_hout the United
States. ·We·are not aware_of any reason why the liability under
section 304(c) should not be one provided for in the Federal Tort
Claims Act, in particular where this liability would be governed by
the vague, and to our knowledge unprecedented standard of "in a manner
to be decided by the District Court of Guam."
Title IV - Courts
This title deals mostly with federal courts;
it is based largely
on sections 22 through 220 of the Guam Organic Act, 48 U.S.C.
Sections 1424 - 1424-4. There are, .however, a number of differences,
to which the Department of Justice must object.
Section 401. This.section corresponds to section 22B of the
Organic Act of Guam, 48 U.S.C, Section 1424-2 which provides generally
that th~ relations between the local court on Guam and the federal
courts shall be governed by the law governing the relationship betw~en
the federal courts and the state courts.
Section 401, however, omits
the proviso in section 228, pursuant to which for the first fifteen
years after the establishment of an appellate court in Guam, its
decision should be reviewed by the Court of Appeals for the Ninth
Circuit by writ of certiorari.
PAGE 21
COPY
�User: Karen Stevens
Date: April 25 1 1997
The- proviso is derived from- thee A:ct of October 5 1984 Pub. L.
No. 98-4541 98 Stat. 1732, 1742, revising the organizat~on of the
territorial Courts.
Congress ~xplained the reason Dnderlyin~ ·it as
follows:
I
I
The trarisitional period ·of fifteen years is the same as the one
provided for in Section 4 of the Act of November 8 ,· 1977, 48
U.S. C. Section 1694c_, relating to the Northern Mariana Islands.
It is based on the consideration that, duting the for~ative
-years of the new appellate court and wh~le it establishes its
institutional traditions, all decisions.of that court should be·
reviewable by ~ court of appeals which_ is familiar with the
local conditions rather than on a di~cretionary basis by the
Supreme Court.
·
130 Cong. Rec. 23,790 (Senate) and_id. at 25,476 (House bf
Representatives) (1984):
These reasons persist. We therefore
recommend that the pioviso be restored.
Though~ might .be given to
limiting the:jurisdiction of the Ninth Circuit to cases involving
federal questions, and in turn .to provide for mandatory review by way
of appeal.
·
Section 402. _This section corresponds in many respects to section
22 of the Organic Act of Guam, 48 U.S.C. Section 1424.
It omits
· subsection (a) on the theory that the local courts ar~ not the proper
subject of the Commonwealth Act,- and subsection (c) which ha~ become
obsolete. The following clause should be added to the description of
the District Court's jurisdiction ''and such additional jurisdiction as
may be expressly provided by this Act, and any additional, special
jurisdiction given it by Congress.~ This clause envisages the possible
need to vest in the District Court spectal jurisdiction prompted by
circumstances uniquely applicable to Guam, such as the Act of October
15, 1977, Pub. L.
No. 95-134, 91 Stat. 1159, 1162 conferring on the
District Court of Guam jurisdiction to review certain land claims.
Section 402(a) would continue the District Court of Guam. This
subsection is unnecessary and should be deleted.
Section 403. This section corresponds to section.22D of the Guam
Organic Act, 48 U.S.C. Section 1424-4. We have no comment on this
section.
Section
404~
Act of Guam,
~8
This section corresponds t6 section 24 of the Organic
U.S.C. Section 1424b.
We have the fdllowing comments.
On page 16, line 16 substitute "35 and 37~ for "31 and 33." Omit as
unnecessary subsection (c) which would continue the District Judge,
the Uriited States Attorney and the United States Marshal. We have the
PAGE 22.
COPY
�U~er:
Karen Stevens
Date: April 25, 1997
following additional comments on Title IV:
(i) Title IV ~auld not make any reference to th~ local courts.
In
view of the Supreme.Court decision in Territory of Guam v. Olsen, 431
U.S. 195 (1977) and the precedent established in section 203(d) of the
Covenant with the Northern M~rianna Islands, w~ consider it desirable
to make reference to the authority of Guam to provide for in its
Constitution or vest in its legislature the authority to establish an
appellate court and trial courts.
· (ii) ·Existing law provides that, prior to the establishment of an
appellate court by the legislature of Guam, the decisions of the local
courts are subject to appellate review in the Appellate Division of
the federal District Court (section 22C 6f the Organic Act of Guam, 48
U.S.C. Section 1424-3).
Section 1203(c) of .the bill would abolish
this appellate jurisdiction of the District Court, upon the"adoption
of t~e Constitutiori of Guam, even if no appellate court has been
established by then.
In our view the appellate jurisdictiori of the
Federal District Court should continue until a local appellate cdurt
ha~ become ciperational.
Mor~over, the technical transitional
provisions of section 22C(d) of the Organic Act of Guam (48 U.S.C.
Section 1424-J(d)), should be retain~d in order to preserve the
jurisdiction of the federal courts over appeals pending in them.at the
time the appellate court of Guam becomes operational.
Title V - Trade
We defer to the views of the Departments and Agencies primarily
concerned with this stibject matter. ·
Title VI - Taxation
On this title we defer to the views of the Department of the
Treasury.
Title VII - Immigration
Section 701(a) recitis in substance, that, as the result of the
proximity of Guam to the nations of Asia and the Pacif1c, many
immigrants from that region have chosen to ~ake Guam their home, that
the admission of substantial numbers of such immigran.ts to Guam
threatens to pr6duce a severe impact on the limited infrastructure,
health, education, housing and other services available in Guam, thus
making it necessary to limit the number of persons permitted to
.
immigrate to Guam, and that Guam therefore should.have the authority
to control the entry, exclusion, and expulsion of aliens.
PAGE 23
COPY
�-------------------------------------~--------------------~
User: Karen Stevens
Date: April 25, 1997
. Section 70l(bl therefore w6uld provide that the U.S. Immigration
and Nationality Act and implementing regulations would remain
applicable to Guam Tor -~t -~period--of two years after the enactrrierit of
the Act, and that thereafter it would be replaced. by a local law
enacted by Guam during that interim two-year period.
This section is not acceptable to us.
The entry of. aliens into
Guam presents §erious security problems for the United States in view
of the exposed strategic position of the island and the military
installations located on it.
Moreover, we consider it important that
the national immigration policy set forth -in .the Immigration and
Nationality Act apply uni£ormly throughout the United States, aqd that
persons who have been legally admitted to the United States and are
not under deportation proceedings shall not be restricted from
traveling throughout the country except fo~ security reasons. The
experiences gathered in connection with the Co~monwealth of the
Northern Mariana Islands counsel strongly against· any further inroads
on that policy.
·
Finally, it should be hated that the citizenshi~ provisions
governing Guam are included in the Immigration and Nationality Act.
Under this bill the United States citizenship bf persons born or
residing in Guam would be governed by a local law. This result
qbviously is not acceptable.
Sec~ion 70l(c) (3) would provide ''that the Governor of Guam shall
continue to have the authority to ·issue United States passport~ within
/
existing regulations." This statement is inaccurate and should be
deleted.The authority of the Territorial Gov~rnors, including the
Governor of Guam, to issue United States passports was terminated by
the Secretary of State in 1986.
We have been advised by the·
Department of State that it opposes, for mana~erial and operational
reasons, the restoration of the passport issuance authority to the
Governors of American Samoa, Guam, Puerto Rico, and _the Virgin
·Islands.
Section 701 (c) (4) would provide that this title shall not preclude
a person who previously has been lawfully admitted for permanent
residence in the United States and who is otherwise admissible from
bein~ r~admitted in Guam upon return to the United_States.
(Emphasis
supplied).
It is unclea~ what this paragraph means.
In a scenario
-where Guam would have its own immigration law and in which the
Immigration and Nationality Act would not apply to Guam, Guam would
not be considered part of the United States for the purpose of the
admission of aliens to the United States.
Insofar as the above
language means that Guam can determine who is admissible to the United
State~ as a returning lawful permanent re~ident of the United States,
we must object.
Inspections of persons entering the United States
from Guam would have to be performed by immigration officers of the
PAGE 24
COPY
�Date: April 25, 1997 ·
User: Karen Stevens
United States under the provision?. ()f thS! I_rnmigration and Nationality
Act governing· inspectio-n-of persons ·arrivinsf from foreign ports or
·
places.
Section 70l(d) would provide for Guam to be considered, in certai~
cases, a port of entry for admission into the United States of aliens
for lawful permanent residence.
Insofar as this implies that the
immigration law enacted by Guam may provide for th~ admission of
persons as aliens lawfully admitted to the United States for permarient
residence or any other immigration status, we must object. · Persons
may achieve immigration status in the United Stat·es only pursuant to·
the Immigration and Nationality Act.
Section 702 .. This section would provide·. for the ·issuance of
visitors visas limited for travel only to Guam.
The need for this
section appears to be superseded by section 212 (1) of the Immigrat-ion
and Nationality Act, 8 U.S.C. Section 1182(1), which provides for the
visa free entry to Guam for the citizens of certain countries, and
thus gives .a relief analogous to the one intended to be giveh by
s~ction 702.
It should be noted that pursuant to sec. 214(a) of the
INA, 8 U.S.C. 1184(a), no person admitted to Guam pursuant to the visa
free entry provision of sec.
212(1) of the INA, 8 U.S.C. 1i82(1), may
be ~uth6rized to enter the.United States other than Guam or remain in
Guam for more than fifteen days.
In these circumstances there is no
need for a Guam only visa.
Moreover, we object to the enactment of
special visa classifications for admission to Guam only.
This
objection is based on the same policy considerations stated in the
discussion of sec. 701, i.e. that persons holding a vi~a should not be
precluded from tr~velling·throughout the United States except for
security reasons.
Sec.· 702 refers (at lines i3-14) to "the means by which the aliens
(h()lding a Guam orily visa) could alter visas to permit entry into the
United States." The wording of this clause is poorly chosen: aliens
can never "alter their visa." The clause, probably-refers to
adjustment of status proceedings.
We object to this provision ..
Adjustment of status would. nullify the purpose and safeguards of a
Guam-only admission. ·
Title VIII - Labor
We defer to the views of the Department of Labor.
Titl~
I~
-
Tran~portation
and Telecommunications
We defer to the views of the Departments and Agencies concerned ..
Title X - Land, Natural Resources and Utilities
PAGE 25
COPY
�User:
~aren
Stevens
Date: April 25, 1997
Section iOOl(a) would grant the Government of Guam eminent domain
powers "over prope-r-ty within the~commonwealth in accord with the· ·
Constitution of Guam." The power of eminent _domain over land within
its rightful jurisdiction is an inherent power of government and,
therefore, we believe the Commonwealth would have this power (as does
the current Government of Guam) whether or not it is covered in the
Commonwealth Act.
The Constitution of Guam is indeed the proper
vehicle for establishing this power for a self- governing
·
Co.mmonwealth.
We do not object to this provision subject to the
understanding that the Commonwealth's power o~ eminent domain cannot
apply to federal property, nor would the Commonwealth's eminent domain
power in any way dimini~h Federal powers of emirient domain.
We,
therefore; suggest adding a second sentence to section 1001(a) as
follows:
"The Commonwealth of Guam's eminent domain power does not
extend to Federal property and does not diminish Federal powers of
eminent domain."
Section lOOl(b) would provide:
. The Commonwealth of Guam shall have jurisdiction over all
living and nonliving nattiral resources of the seabed, .subsoil,·
tidelands, and adjacent t~rritorial waters, as defined by the
United States law, of the Island of Guam. The Commonwe~lth
shall exercise rights to determine the conditions, in~ludlng
pollution control, and terms of all scientific research,
management, exploration, and exploitation of all ocean resources
and all sources of energy and prevention Of pollution within the
200-~ile Exclusive Economic Zone, including pollution
originating outside ·the zone that poses a threat within the
zone.
- We object to this provision in its entirety.
The first sentence of section 1Q01(b) relates to matters alre~dy
resolved by the Territorial Submerged Lands Act.
48 U.S.C. Section
·1705.
Inclusion of this text will serve .no purpose other than to
create confusion and possible litigation over the scope of the
Commonwealth's jurisdiction.
The s-econd sentence of section 1001 (b). is problematic because the
200-mile ·Exclusive Economic Zone has always been a federal zone, not a
state or territorial zone. As written, the authority of the United
States in the 200-mile region around Guam apparently would be shifted
entirely to the Commonwealth.
No other state or territory -including Puerto Rico and the Virgin Islands -- has such authOrity.
Particularly in corribination with the first sentence of section
lOOl(b), this second sentence could be interpreted to give away
PAGE 26
COPY
�Us~r:
Karen Stevens
Date: April 25, 1997
valuable mineral and other rights that properly belong to the United
States, or to exempt this area from federal marine pollution and
marine resource manageine-hc·-Iaws. ----- ·
Accordingly, section lOOl(b) should be revised to read:
The Commonwealth of Guam shall h~ve jurisdittion oVer natural
resources in the waters and tidelands adjacent to the Island of
Guam in accordance with and to the same extent as previously
granted t9 Guam purs~ant to 48 U.S.C. Section 1705.
Sections 1001-(c) and 1001 (d) would govern land acquisitions by the·
United States in the Commonwealth of Guam. .Both of these provisions
are extraordinarily restrictive of the rights and powers of the United
States. We recommend against enactment of these two subsections as
inimical to the interests of the United States.
Subsection (c) would provide that the 11 UnitedStates may, upon
written riotice to the Government of the Commonwealth of Guam, acquire
fo~ public purposes in accordance with Federal laws and procedures,
any interest in real .property in the Commonwealth only by voluntary
means 11 (emphasis added).Subsection (d) would provide that the United States agrees'not to_
exercise within. the Commonwealth the power of eminent domain except in
time of war and then only to the extent necessary and iri compliance
with applicable United States and Commonwealth of Guam laws, and with
full recognition of due process required by the Constitutions of Guam
and the United_States 11 (emphasis added).
Under these provisions,
real property interests in
voluntary means, except in
power of the United States
the power of the United States to acquire
the Commonwealth would be limited to
time of war.
This is a limitation on the
that the fifty states do not enjoy. Such a
limitation creates a grave risk that an acquisition of property on
Guam that is necessary for the public good or national defense may
fail because of an owner's unwillingness to sell the needed property
or because of an exorbitant price demand that exceeds the government's
willingness or ability to pay.
The government at least would have to
pay above-market 11 hold-up'' val~es demanded by sellers, many of whom
undoubtedly would attempt to take advantage of the United States' lack
of eminent domain powers.
The Supreme Court has expressed the danger
such a provision would create:
It has not been seriously contended during the argument that
the United States government is without power to appropriate
lands or other property within the States for its own uses; and
PAGE 27
COPY
�User: Karen Stevens
to
en~ble
Date: April 25, 1997
it to perform its proper functions.
Such an authority
is essenti.al to. its -independent existence and perpetuity.
These···
cannot be preserved if the obstinacy of a private person, or if
any other authority, can prevent the acquisition of the means or
.
'
instruments by which alon_e governmental functions can be
performed.
The powers vested by the Constitution in the general
government demand for their exercise the acquisition of lands in
all the States. These are needed for forts, armories, and
arsenals, for navy- yards and light-houses, for custom-houses,
post-offices, and court-houses, and for other public uses.
If
the right to-acquire property for suct:-.uses may be made.a barren
right by the unwillingness of property-holde~s to sell, cir by
the action of a State prohibiting a sale to the Federal
government, the constitutional grants of power miy be ·rendered
nugatory, and the government is dependent for its practical
~xistence upon the will of a State, or even upon that of a
private citizen. This canriot be.
·
·
Kohl v. United States, 91 U.S. 367, 371 (1875).
We also object to the requirement in section 1001(d) that the
Government's eminent domain power be exercised ~only .
in
compliance with applicable .
. Commonwealth of Guam laws .
with
full recognition of due process required by the Conptitutions of Guam
.and the_United States.~ The exercise of the United States' sovereign
power of eminent domain, which is already subject to federal laws
including the Due Process_Clause of the Fifth Amendment, should not be
subject to local law~ When the United States exercises its eminent
domain power in the fifty states; federal law governs as to both
substantive and procedural matters·.· United States v. Miller, 317 U.S.
369, _379-80 (1943); United States v. 93.970 Acres of Land, 360 U.S.
328, 333, n.7 (1959)
In takings by the United States by eminent
domain, the rights of the citizens of the fifty states are protected
by the Constitution of the United States, not by the constitutions of
the citizens' states. The same should be true with respect_to the
Commonwealth of Guam.
Section 1001(eY would provide
that~
(a)ll excess real properties of
the United States on the Island of Guam released after establishment
of ~he Commonwealth will be conveyed .
. without any condition,
limitation or reversion clause in such conveyance.~ SimilarlY, section
PAGE 28
COPY
�User: Karen
Steven~
Date: April 25, 1997
1001 ( fl provides that "(a) 11 land heretofore ·transferred to the
Government of Guam by the United States are (sic) released from e3,ny ··--·--·
and all provisions-limiting the use of such land, ~nd are conveyed iri)-fee simple." These provisions give no consideration to the United
States' national concerns, including national security and public
_safety.
Section 1002.
Section 1002·, "Transfer of Excess Federal Real
Property",- would provide, in part:
All real property .
. controlled or owned by (the United
States) on Guam and not necessary for direct and continuous
operational, logistical, or security use as a military facility
or other Federal function shall be transferred as excess Federal
real
prop~rty
to the Government of Guqm .
This section would make inapplicable in Guam a body of existing
legislation that relates to GSA transfer_of'excess federal land.
Instead, federal lands deemed excess would be transferred to.the
Government of Guam.
Section 1D02 further would provide that:
Such transfers will be, whenever possible, at no cost to the
people of Guam, or, when appropiiate, at cost no higher than the
valuation of the property at the time of original acquisition by
the.Federal authority, regardless of any subsequent alterations
or additions to the property.
Whatever the wisdom of exempting Guam from the operation of existing
excess lands laws, this "no cost .
. or .
. at cost" provision is
~holly inappropriate.
Much of the Guam land being excessed either has
benefitted f~om federally-funded improvements on the property or has
benefitted indirectly from federally-funded improvements to the
infra-structure in the vicinity of the property.
Furthermoie, much of
the potentially excess land at issue was acquired by means of
condemriation actions which were the focus of ten years 6f litigation
against the United States under 48 U.S.C. Section 1424c. The United
States settled these claims with additional compensation payments of
approximately $40 million.
As a consequence, there should be no legal_
or equitable grounds to provide ~dditional compensation in the form of
free or below-market land transfers.
Section 1002 also would provide:
Final determination of wh~ch Federal real property is excess to
Federal needs, and the authority to mandate prompt and fair
PAGE 29
COPY
�User: Karen Stevens
Date: April 25, 1997
transfer to the Government of Guam by the Federal proprietor,
shall be with the .Joint Commission after consultations with the ·
proprietor-. · : - ·.This provision appears to grant the Joint Commission -- a majority of
which is appointed by the Goveriwr of Guam-rather than by the United
State~ -- the absolute authority to declare Federal prop~rty e~cess,
and to mandate .its transfer to the Government.of·Gua~ at no_cost, or
below-market cost,. Under se~tion 203(b) (7), a primary charge of the
Joint Commission is to "seek to obtain the maximum economic
de~elopment and political autonomy for th~ Commonwealth of Guam
without impairing United States national secu·rity interests." These
provisions create a serious risk that excess property dispositions
will be made- in a manner that does not adequately protect (or reflect)
the interests of the United States.
Secti6n 1003.
Under section 1003(c), the Joint Commission would be
authorized to "determine, after consul t.ation with the
·proprietor, which Federal recreational facilities and
over Federal property shall be open to the Government
the general public on Guam and the manner of access."
gerierai'
which easements
of Guam arid to
Access issues on
Guam are matters of significan~ controversy on Guam, including one
pending takings claim which is the litigation responsibility of this
Department and regards access to .two parcels in the north of Guam.
Thus, section 1003 raises a concern that future access decisions will
be made by a Commission on which the United States is in the minority.
We also wish to point to the failure of Title X to clarify the
whether and to wh~t extent the United Stat~s is reserving
legislative jurisdiction (exclusive, partial or concurrent) over
property to which it is retaining title;
the extent of legislative
jurisdiction it will exercise over property it acquires in the future;
~uestions
or the procedures that are required to obtain legislative
jurisdiction over future acquisitions.
Cf. U.S .. Const. art. I,
Section 8, cl. 17;
40 U.S.C. Section 255.
Sec. 1004. Authority over Utilities.
The subject matter of this
section appears to have been dealt with in an agreement between
Department of the Navy and _the Guam Power Authority.
Title XI - United States Financial Assistance
We defer to the views of the Depariments and Agencies directly
concerned with this issue.
Title XII - Technical Amendments and Interpretation
PAGE 30
COPY
�User: Karen Stevens
Date: April 25, 1997
Section 1201(a) would express the intention of Congress that the
Act provide "complete internal self-government" for the commonwealth
of Guam/ and that the Act be interpreted liberally to accomplish that
purpose. We must object to this subsection in its present form/ at
least tint il the meaning of the term "complete in_ternal
self-government" is defined.
The subsection invites claims by the
Common~ealth that, except in the field of foreign relations and
defense, the Federal Government has rto jurisdiction over any matt~r.
that would be within the competence of an independent country.
·
Section 120l(b) would provide that '' (w)hen ruling upon the laws of.
the Commonwealth, the courts of the United States shall give the same
deference to the laws of the Commonwealth as they give to the laws ofthe several States." We believe that this subsection is designed-to
make applicable to Guam the Rules of Decisions A~t, 28 U.S.C. Section
1652, pursuant to which the laws of the several states shall be
reg~rded as the rules of decision in civil ~ctions in the courts of
. the United States, and to overcome the decision in Territory of Guam
v. Yang, 850 F.2d 507 (9th Cir. 1988), which held that the Court of
Ap~eals for the Ninth Circuit would review cases coming from Guam de
novo, and that where the appeal involves a Guamanian law derived from
a California statute reliance on California l~w is proper. ~e would
recommend the extension of the Rules of Decisions Act to Guam and to
· move this subsection to Title IV of this bill which deals with
judicial matters.
Section 1202 would ~ontinue in effect the laws of Guam in force on
the dat~ of the enactment of the Act. We have no objection to this
section except for the.phrase "in force on 'the date of enactment"
which, as shown in our comments on section 101(a), is ambiguous and
should be omitted.
·
Sections 1203 and 1264'provide for the effective date of ~he Act
and the repeal of most of-the provisions of the Organic Act of Guam.
We believe that it is premature to discuss these sections before this
legislation has reached a ~or~ definite stag~, in particular before a
decision has been made as to the requirement and form of the federal
approval of the Guam Constitution.
(See our comments on section
101 (b)).
.
For the above ieasons the
bill in_ its present form.
Depa~tment
6f Justice objects to this
·
The Office of Management and Budget advises ~hat there in no
.
, objection to this report from the stand point of the Administration's
program.
(Keep this section)
Metro Broadcasting, Inc. v. FCC~ 497 U.S. 547,. 564-65 (1990)
It
~auld seem that such a classificatio~, if adopted by state or
territorial governments pursuant to and within the limits of a
PAGE 31
I
COPY
�User: Karen Stevens
Date: April 25, 1997
Congressional auth6rization, would also be subject to intermediate
scrutiny. See City of Richmond v. J.A. Croson Co., 488 U.S. at 491
. (plurality .opinion.)-::, :c:.::::-::;c=
Under that ~tandard, a benign racial clas~ification is
constitutional if it serves an important governmental objective and 1s
narrowly tailored to the achievement of that objective. Metro
Broadcasting, Inc., 497 u.s. at 563-65. The Supreme Court has
indicated that there are at least two objectives that are important
enough to justify racial and ethnic cilassifications: remedying the.
effects of society-wide discriminatiort, and the pro~otion of diversity
r .
in particular sectors and industries. See id. at 564 -65.; Fullilove
v. Klutznick, 448 U.S. 448 (1980); see also J.A. Croson Co., 488 u,s.
at 490 (plurality opirtion) c~congress may iaentify and redre~s the
effects of society-wide discrimination~ through race~based remedial
mea~ures).
Even so, a Congressional authorization of racial and
ethnic classifications requires an evidentiary record supporting the
need for the classification,· the consideration of available
a~ternatives, an~ ~h~ adoption of flexible means toward the
achi~vement of that goal.
Fullilove v.
Klutznick, 448 U.S. at
463-67, 480; Metro Broadcasting, Inc., 497 U.S. at 584, 594.
We
believe that section 102(f) in its present vague form would not pass
judicial scrutiny, if it were designed to benefit individual Chamorros
rather than the programs referred to in section 102(c). On the other
. hand, it may well be possible to traft pertinent legislatidn if the
language .i~ sufficiently precise and if it is supported by adequate
Congressional findings.
FOOTNOTES:
/1/ Articles IX and X of the Treaty of Paris of Dec. 10, 1898 (30
Stat. 1759-60) provide:
ARTICLE IX
The civil rights and political status of the native
inhabitants of the territories hereby ceded to the United States
shall .be determined by the
Congre~s.
ARTICLE X
The inhabitants of the terriiories over which Spain
relinqUishes or ceded her sovereignty shall be secured in the
free exercise of their religion.
/2/ Otir earlier view that Congress could provide that the
fundamental provisions of a territorial relations act could be subject
PAGE 32
COPY
�User:. Karen Stevens
Date: April 25, 1997
to a mutual consent requirement was based on the assumption that a
Territory could atquir~ a vested interest iri a status that would be
protected by the Due Process Clause of the Fifth Amendment:
The Bowen
case and ~he rulings following it, h6wever, establi~h that the Due
Process Clause protects only conventio~al property rights and not a
political statu~.
/3/ .Transohio Sav, Bank v. Director, OTS, 967 F.2d 598,. 621 (D.C.
Cir. 1992) doesnot hold to the contrary. Thatcase merely stands for
the proposition that,• absent an undertaking in unmistakable terms· not
to amend or repeal, there was no need for the court to go into the
question whether the United States cotild.surrender an essential a~pect
of its sovereignty.
ATTORNEY:
Marcuse
PAGE 33
COPY
�.
.
f
l
:
'
'
,. '
'
·: :, ~;j.!l(~
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
. P5
f~
n.d.
P5
g~
re: Comments on Guam's proposed Commonwealth negotiations
directive (I page)
n.d.
P5
gg
003b. draft
To All Departments and agencies from President Clinton. Subject:
Negotiations between the USG and the government of Guam (Typed
comments) (I page)
n.d.
P5
~q
004. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/2811994
P5
001. memo
To President Clinton through Marcia Hale from John Garainendi.
Subject: Guam Commonwealth (4 pages)
12/30/1996
002. briefing
paper
re: Governor Gutierrez of Guam (3 pages)
003a. note
CfO
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael1mbroscio
OA!Box Number:
12734
FOLDER TITLE:
Farrow [I]
2006-0 193-F
'm574
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a))
Freedom of Information Act- IS U.S.C. 552(b)J
PI
P2
P3
P4
b(l) National security classified information J(b)(l) or'the FOIAI .
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAI
b(3) Release would violate a Federal statute J(b)(3) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
·personal privacy J(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement.
purposes J(b)(7) of the FOIAJ
b(S) Release would disclose information concerning the regulation of
financial institutions J(b)(S) of the FOIAJ ·
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of theFOIAJ
·
National SecuritY Classified Information J(a)(l) of the PRAI
Relating to the appointment to Federal office J(a)(2) of the PRA] .
Release would violate a Federal statute J(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAJ
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in acco.rdance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed· upon request.
�United States Department of the Interior
-·~----19(r3'x :S---
oFFicE OF THE DEPUTY SECRETARY
washington. D.c. 20240
""/··~:.;-
. Memorandum ·
,
December 30, 1996
TO:
Honorable William J. Clinton
P
reSident of the United Slates
b
I
\:?) .
\
· THROUGH: · Marcia Hale
.,,
0
,,.,~-:0./l jV)S>·~
z~
,, \
9
'( '.
·'
~'
~f;.
'~-
Director, White House Office of Intergovernmental Affairs
FROM:
SUBJECT:
John Garamendi
Guam Comlllon
I underS1and that you met brief]y with Guam Governor Carl Gutierrez on December"l6, 1996, to
discUss the status of the Guam Commonwealth negotiations. I am infonned that you want key
issues brought to closure by January 20, 1997, before certain members of your Cabinet leave the
Administration. This memorandwn siunmarizes the negotiations and status of certain "deal
brealcer" issues. The summary below is supj>lemerited by· attached briefing materials.
Overview
WhCn I took over these negotiations in January of this year, I approached the issues .Jiom the
perspective of maximizing the amount of self-govetnment for Guam in a way that would
safeguaro the fundamental strntegic interests of the United Slates. There are vestiges of .
I~<~· .
fo~
app~1cat1on ~:1.\'1:.,_,~."~
~-'
COlonialism in Guam's cuirent status as an "unincorporated tenitory." Although it has its own
tJ ot. locally-elected governor and legislature, Guam is automaticallt subiect to almost all Federal laws
_ '\ and policies, In 1982 and again in 1987, Guam· voted to change its P£litical slatuS
greater self-1. c, "'f' s
•
government through CommonWealth. From a
the blanket
of
+
"
w
Federal po1Jc1es developed for m:uruand condJt1ons seem mappropnate g1ven, Guam s SJZC,
d1stance, geogrnpby, economy, history and culture. From a po1Jt1cal P=pecbve, blanket >ru;.t,,_
ofFederal_policies is unfair because Guam lacks participation in the Federal process....
J:.\c; > '"" '_,;_&u"ough e1ther full voting represenlation in Congress or electoral votes for Pres1dent. I do not >. .
"bl:l1eve that this situation is consistent with the ideals of a democratic society. I have therefore_
advocated
<?>mmonwealth negot1ahons that prov1de Guam wJth greater
s'""
. mput and fleXJbdJty m the applicatiOn ofFederal pohc1es to the ISland.
p"'f'"-'- '.
·
~-~
..,~;~
~=tlca!Jl<:rspectlve:
~
';;~.\. applicati~n
""s~
~ 0~.
.
~""o.f>\<,
~~""""'
b
~"ll~¥." ·
U>""'""';.,
po~1hons ~nthe·Guam
.Status Of Deal Breaker Issues
.
"tn-~-
.
The original Draft Act contains approximately 90 sections spread over 12 Titles. In prior
Administrations, Guan, has insisted that 100 percen 1 of these issues be reso I ved in precise!y the
same way they were approved in the 1987 Guam plebisciles. In our negotiations and through the
COPY
�leadership of Govef11or Gutierrez, Guam has reduced its demands and identified a handful of
issues as "deal breci.kers" --i.e., issues which are at the core of Guam's Commonwealth package.
Guam accepted the concept of negotiating principles first, then language. This' process has led to
. the following proposed policies:
·.
~~~h-·-~\..r~5
·
.
.
.
GJ·
· Mutual Consent- agreed. Once' a commonwealth pac ge is
r<.-'>'-~'
en~ted, Mutual Consent
.·provides that neither Guam nor the United States can make any hanges to the package without
the express approval of the other party. The Justice Departmen. contends that one Congress ·
cannot bind subsequent Congresses from unilaterallychangi.hg the Guam Commonwealth
· legislation. Guam cites legal arguments indicating the opposite. Both sides reached agreement
. ()
.by inserting a Clause making mutual consent enforceable ·~to the extent constitutional!)' \ ~~rts_.,~~~~
permissible., This preserves the issue for subsequent determination by tile courts. . . . p
:::.t~~::
.
.
.. .
s\-~\)w>
.
.
.
.
o'o·u..~ +v
Ch~mo~ro Self-J?et~rminatwn - agreed. The o_riginal Draft Act ~ro~ided for Chamorro .
self-detemunatiOn --a bmdmg, political act to be exercised solely by the Ihd1genous people of ~\o--W '~'~"
. Guam to determine the ultimate political status of the island. The Justice Department questioned o-:. ~f'4,'-'><-
L "'-
. the constitutionality of this provision on due pr6cess and equal protection grounds. These
wL¥-,-.;,;) ·\.;:,
fr\ijk\-k conce~ v:ere.addressed when both sides agreed to lan~uage ~akiiig Chamorro self- .
b._~\~.
c...~ C>-S determmatiOn an advisory act that would not be sponsored or funded by the government.
-~.
.
p _,~ ,..3;s <.~
. .
9'\ f~'" ~:\\~~or-. Federal Excess Land- needS decision. The original Draft Act provided for a G~-.
~ ~1 ;._controlled Commission th~t had.the unrestricted power to determin~ which F~e~~tllands in
~.9-s '"'
Guam are excess and to mandate their tost-free transfer to Guam Without restrictiOns or
.~ V'll.r ~ compliance with Federal standards. This was strongly opposed by a number of agencies,
t0-l \',......\~:).including the Navy and the Air Foree, which together own about one-third of Guam. Guam's
~~¥- current proposal, which I support, is significantly more modest. It proposes that once Federal
~ ~ ~ ·lands in Guam are declared excess by the military or other Federal agency, the Government of .
\ ~ :(.
Gtfam sh(!uld be given the right to obtain such lands cost-free, but subj~t to ~I other appli~ble
y~
Fede_ral ~dards. A ~umber of agencies, including Defense, GSA and the Fish and ~ldhfe
Service stdl oppose this modest propoSal .. ~ b\J...c--; ~ \) Av..~r\ "t.;.. ~ q ~ ~ ~ ''>~~+k l~ ~
I
·
.
•
•
•
•
•
·, "'\:,-.
,~... ~~ ~ ~~~\\- ~.)'\~~~ l:.r-~\\)~ :~\)'""1
Jomt CommiSston/Appflcatton of Federal Regulatwns- needs deciSion. The ongmal --::!).'}) '""
Draft Act called for a. Guam-controlled Commission to regulate almost all aspects ()f Guam's: ~~~\
·
relationshi~ to the United States, including ~e power to modify the_appli~t~on of~ed~ra.ll~ws. \~~{Or~.
and regulatiOns to Guam. All Federal agencies strongly opposed this provision for Junsdictwnal ~ . ~
and operational reasons. Justi~ also questioned the constitutionality of endowing a local
commission with Federal regulatory and legislative powers. Guam's current proposal provides
for a five-member commission, three of which would be Cabinet officers and two of which
. . ~
·.
would, be nomi~at~ by the Governor and appointed by th~ President. With respect ~o Fe~eral '( ~~~~ r'\
laws, the conumss10n would merely provide.recommeridatwns to Congress for consideratiOn. sh<..h~ ~
· ~. . • . (With respect to Federal regulations, the commission would be empowered to make fin<}l
.
i "~~\~.J--. ""·
. '\....._.~~et~rminati~n~ on how regulations are applied to Guam . .I support this mechanism as a way of ~~~~c·
~~.
mstJtutwnahzmg Guam's participation in the Federal regulatory process.
ll,.....
• sc,.'..'lr.#
. .
c;:>«';~ ~
~y-r-.
2 .
----
o-1'"
-~ ~;V u~ .....~\.,
0
~:;;~"'...,.1
...
,..y'-""
\
\).--~It"'~·
,~-
COPY
�~~i~t
~t<---
\ _
~~:r.
dr-~\- -
Immigration~ needs decision. Guam desires local controi over immigration to the ~rJ~
island. It wants to significantly reduce the amount of permanent immigration from Asia, while
increasing its ability to bring in temporary workers. The Department of Labor and Federal law
enforcement authorities on the island strongly oppose giving Guam control over immigration.
They cite concerns about government corruption in Guam and the desire to avoid wide-spread
labor and immigration abuses which have occurred in the Commonwealth of the Northern
Mariana Islands. I believe that these concerns can be met by placing very specific and rigorous
safeguards in the Guam legislation that would ensure adequate local enforcement of local laws
that are at least as stringent_as Federal laws. \ ~~ ~"\--,~ ~ ~~ \~o;. J·
tf:-.,.
issu~s
Other Issues -- There are other high priority
which Guam would like resolved in
an expeditious manner: e.g., LabOr, Tax, Trade, International Activities and EnviroJ;1111ental .
Regul~tion, among others. I believe that resolution of these matters will fall into place if we can
resolve the issues outlined above.
Delinkage From Puerto Rico
Some have suggested that Guam Commonwealth may have an impact on the Administration's
efforts to deal with Puerto Rico status options. I do not believe that there will be much impact, if
.
apart in terms of culture, history,
&,~
any.. First, Guam and Puerto Rico are literally
geography and population. I am informed that neither the leadership of Guam nor the leadership ·/ fR ·
of Puerto Rico desire to see a linkage between their respective status quests .. Guam is much s ~~~~ ~· .
further along in purs·uing a changed political status - it selected commonwealth in 1982,
~<;~~
described its con~ent in 1987 and has been negoti~tin? wi_th the U~ted S~tes o~ ~~details of . ·17'-- \ \ (\~?
commonwealth smce 1988. In contrast, Puerto Rico ts still strugglmg With the lillttal step of ~~~ ·
f.!R. ~~~ choosing a status option among statehood, enhanced commonwc:ruth and ind~pendence, an .
·
ro..:> ,~
internal deba~e tha~ has raged unabated since the early I 950's. Finally, there~ only one
t%i-t01;)-\.·
JJ~\~ fundamentaltssue m Guam Commonwealth that may be relevant to Puerto Rico- mutual 1. o-.COo..Io...~
~. ·\~ consent and its implications on the viability of Puerto Rican commonwealth ~tus. However, . ~ iw..
this issue has limited impact because the Justice Department's position on mutual consent . )sc;
....rc.... ·
in Guam Commonwealth has already been publicized in Puerto Rito. l
.:»..r:..
oceans
I
~"' ""'J._}.'\~'ven
.(,&-~
Outlook
~\-.tv\ ~s ~\\c.~
.
.
~
of();ls-.~ 1:)\- ~~ ~ 'o·, \\ N,.J
.
w ......
~, .... c:;.
~
Sustained focus and involvement by the White House will provide the broader policy framework ·
to guide agency consideration of Guam Commonwealth. Without White House direction, agency
positions on key commonwealth issues are likely to remain Unchanged. Congress has not
reviewed commonwealth since I 989' when it directed the Executive Branch to work out
.
.
· differences with Guam. Nevertheless, there are indications that the majority in Congress may be
sympathetic to commonwealth provisions that are consistent with the devolution of Federal
control tolocal governments. Meanwhile; Guam's leadership is disillusioned with the length of
the negotiating process and the perception that little progress has been made. In light of
indications that U.S.-Guam relations are growing increasingly unpredictable, I strongly
3
~~ ~,..- ~s\..__~J~\ s\:.f~~~
1
COPY
�I
· recommend speedy resolution of priority commonwealth issues. The process has gone on too
long and Guam is too important for U.S. strategic interests to let our relationship deteriorate
further due to inaction. ~ ~ ._ \ ~ 5 , "'~''?'{ _ ~~ ~r{<. i ...... ~
0
sv--6s~\.:,& c.c~\<u-~e-\)sil..<..; -~~
· w\)\.._-\- ~ ~
~\l\~tl. w.-~\ v~b\Q_ o-\.~~'-"'-A _4-::>_ ~
' ~1'\:)l?w}. ~
Attachments
WJ.,.~~ . '\~"--~ ,":\\ !,.._~,
~ ~"'
~--'"""~~ ~'tlA ~~~-J~,
_· ·
.
I. ·
'
Memorandum to Sandra Kristoff, NSC Asian Affairs, dat
(Procedural History of Guam Negotiations, Outlook)
December 12, I 996
2.
Letter to WilliamJ. Peny, Secretary of Defense, dated De mber 3, 1996 (Resolution
issues for Defense: Guam Excess Lands)
·
J.
Letter to Janet Reno. Attorney General, dated December , 1996 (Resolution issues for
'ustice: Immigration, Labor~ Excess Lands)
·4.
Letter to Robert Reich, Secretary of Labor, dated Dece ber 3, 1996 (Resolution issues
for Labor: Immigration, Labor)
5.
Letter to Warren Christopher, Secretary of State, date Deeember 3, 1996 (Resolution
issues for State: Immigration, Foreign Affairs)
6. .
Letter to the President, dated November 8, 1996 (Stat
Commonwealth);
7.
Draft Guam Commonwealth Act, dated August 23, I 96 (Contains legislative language
being negotiated on all issues as of August 1996)
8.
Commonwealth Bill, Section-By-Section Analysis, dated December 1993 _
(Compilation by Interionummarizing original provisions of Guam Commonwealth and
comments made by agencies in the I 989 and 1992 Federal Interagency Task Force
Reports) .
9.
Pue
us 0 tions, Congressional Research Service Issue Brief (Summ
history from I 898 to legislative propo
Report on Guam
4
COPY
�-
/ ,•'<2:·~{t~;'i13t;i;~;)\.
~·
·"'t.l\
., ..h
/:~~:./·
\~:~\
·. . 8rt
GOV. GUTIERREZ OF GUAM
c:,;··
'i··.··:2)
~-
The territory ·
~,.
'
,~~1
.
.
.
~
,
-:t).
. • ~~':;~ l
,c,,.
))•, I
-
Guam is the southernmost Mariana Island and the largest in Micronesia. Acquired in f89'8~witn"""'
_Puerto Rico in settlement of the Spanish American War, it was mostly populated by the
· indigenous Chamorro people (who also lived in the Northern Mariana Islands) and little
developed until recent decades (in part because of U.S. military restrictions but also because of its
·
location and other factors).
Guam's economy is dominated by Japanese tourism and spending from the major Navy and Air
Force bases on the island. Chamorros are now slightly less than half the population of some
140,000. Other large groups are Filipino and Chinese immigrants and people from the States;
many ofthem military-related.
The Japanese occupation of the island in World War Two and the subsequent U.S. liberation and
rriilitary build-up are seminal events in the territory's history. Some of the island's major issues are
still consequences ofthem: military ownership-- but not noticeable use-- of30% ofthe land;
unfair payment for much of this land; claims for compensation for suffering during the Japanese
occupation (for which the U.S. absolved Japan from financial responsibility).
'External; domination is a ~ajor factor underlying many other issues. Cham·orros feel that they
. will lose political control to newcomers. Asian interests own much of the tourism industry.
Federal environmental, labor, and tax laws make it difficult to compete economically. 'f'he
requirement to use US. flagged and manned vessels for U.S. shipping also makes U.S. shipping
costly.
Guamanians are also frustrated that their lesser developed, less formerly supportive of the U.S .
.·neighbors have developed politically and been able to obtain autonomy and benefits thai they
· desire while they have not (although the real problem is the unrealistic aspects of the
Commonwealth Bill). The Northern Marianas were Japanese islands through World War Two but
.
.
are alr~ady a 'Commonwealth', get SSI, and are exempt from U.S. shipping and immigration
requirements. The other Micronesian islands that the U.S. took from Japan are now three
sovereign nations in 'free association' with the U.S. (We have military control and give them a lot
of funding but they are otherwise independent.)
· Guamanians feel that they are taken for granted and "its the squeaky wheel that gets the grease."
Personal
· Gutierrez uses dramatic rhetoric easily but can affect an easy-going demeanor. A longtime but
often· controversial legislator, it took him a long time to become Governor. (The controversies
have been personally as we!I as substantively based.) His victory was made possible by asking the
popular widow of his longtime rival for leadership ofthe Democratic Party (former Gov. Ricky
Bordallo, who developed the Commonwealth Bill) to run with him for Lt. Qov.
COPY
�His predecessor, Joe Ada, will be tough to beat next year if the Republicans stay unified and he
has to use resources to fend off a primary challenge from a member of the Legislature.
Accomplishing real movement on the Commonwealth Bill can be a key factor since Ada was also
closely identified with the effort. (Ada worked out a compromise with an Interior-led task force
but it was undercut at the end of the Bush Administration by unilateral changes by O.MB and the
· White House for policy reasons as well as some political reasons related to Puerto Rico.)
Gutierrez's problems on Federal matters go beyond the Commonwealth Bill and are often at the
agency level. T,hey are also in addition to problems with the Legislature, etc.
· Commonwealth Bill
Guti~rrez used to privately talk ab9ut f~ee association and suggest that ~f the Federal Government
was unwilling to agree to Commonwealth Bill proposals it-should clearly state that sO that
Guamanians could explore other options.
At least the autonomy that Guam wants would be possible under free association. The problem is
that the citizenship and Federal programs that most Guamanians want even more would not. ·Dep. Sec. Gani.mendi's agreement to much ofwhat Guam wanted has raised expectations. (It has
also diminished a lot of theopposition that used to exist in Guam to the remaining responsibilities
that the Interior Department has on non-environmental matters in the territory.) Gutierrez still
thinks that much of what Garamendi agreed to is Viable if only:
~
_the matter wasn't muddied by the campaign contributions controversy; ·
the White House would override objections from agencies, which he believes are unwilling
•
to change basic policies constructed for conditions in the States because of bureaucratic
..
intransigence rather than sound positions; and
•
we were willing to resist claims from Puerto Rico's Commonwealthers and others that
changes in policies for Guam set prececients that should be applied in their islands.
Getting comments from agencies. and Congress on the Garamendi recommendations will
demonstrate that their problems are more serious than he believes. He would, though, recognize
the pitfalls for the bill, so -- if he agrees to keep the conversation private -- you may only want to
say that the Administration will seriously consider the Garamendi recommendations. The review
was delayed by changes in persormel but will "think outside the box" (of convention) anq be
expeditious, as the POTUS said to him in Dec. There are conflicts between the recommendations ·
and policies that the initial review revealed need to be reconciled, but the Administration will
make its decisions and finally answer Guam's petition~ The answers should provide a package that
we can work together for in Congress. And Garamendi remains the representative Qn the matter .
. A number of positive measures suggested by Commonwealth Bill proposals .can be advocated
but are tied up in the package. (Guamanian leaders have known this but have hoped that they will
help pull more controversial· proposals along,)
2
COPY
�Gutierrez also seems to believe that the presence of the bases on Guam provides more leverage on
other issues than Defense or NSC positions reflect. This view reflects the influences that military
objectives exerted in the cases of-the Northern Marianas Covenant in the 1970's and Micronesian
free association Compacts in the 1980's. It was encouraged by the closing of our bases in the
Philippines. But it does not recognize that we did not have base rights (as we do on Guam) that
we wanted in the other islands and that our post Cold War strategy is different.
The House:hearing now looks like it will be later in the Fall (with the Puerto Rico status bill not··
going to the Floor be until Sept. or Oct. because of Resources Chairman Young's heart surgery
and controversies regarding English language requirements for statehood and the definition of
Commonwealth). Guamanians want the hearing to be on their original bill so that the Garamendi
· recommendations look like more of a compromise.
Other Matters
Medicaid:
Our initiatives to increase Medicaid in Guam:.._ $4.2 million in FY '97 --by $7.9 million over five
years, not including inflation, has resulted in Republican congressional agreement so far on $3~8
million, not including inflation. (lam exploring getting this up to $4.5 million.)
·
Defense Schools:
Gutierrez has not been fighting the DoD plans to set up Defense schools for military dependents
on the island partially because the Legislature shifted education authority from the governor to an
elected school board, although he may raise it.
DAS Carolyn Becraft, who has been working on DoD's complaints about Guam's schools for a
couple ofyears, has offered to briefMary Eva Candon as well as Delegate Underwood. She and
an NSC staffer will meet with Underwood Monday. (These meetings may obviate the need for us
to do one.) Becraft thinks that the issue on Guam is moving from whether DoD sets up schools
to how it. will do so and how Guam can improve its school system for its people.
Sec. Cohen is ready to endorse the plan. DoD will pay Guam $14 million for a final year of
'impact aid' (but this has not been announced). It has paid some $108 million over a decade.
Base Privatization:
The Navy just announc·ed that it will study contracting "for support functions performed by 1800
rather than 1200 (as-announced earlier) military and civilian employees on Guam. This is in line
with Reinventing Government and could create economic opportunities. But Guamanians may see
it as a cutback (and a loss ofthe leverage that they hoped to gain from the military presence).
3
COPY
�comments-on Guam's Proposed Commonwealth Negotiations Directive
1st graph: Would effectively ~ndorse Guam's common~ealth bill
and, particularly, it~ controversial autonomy proposals, which
are similar-to the. heart of the Puerto Rico-commonwealthers'
position -- since the '87 plebiscite was on the text of the bill.
POTUS has endorsed the goal of a bill but should not suggest that
he supports its contents or specific objectives.
3rd graph: Like the'othei territories, Guam sees its situation as
unique; but the key issues (especially those involving autonomy)
are common to' Puerto Rico (and the other areas). This graph
suggests that concessions should be made to Guam that we ~ouldn't.
make to other areas; POTUS shouldn't do so.
4th and 5th graphs: Suggest other agenci.es should defer to
Garamendi on issues. They are now resisting his desire.to
accommodate Guam on a number of its proposals. The law gives
Interior "administrative" responsibility for Guam relations but
not the authority to supersede the policy jurisdiction of other
agencies. POTUS should not suggest that one agency has to defer
.to another on matters within it~ jurisdiction. (A~encies can ha~e
lead responsibility on issues but the EOP -- not indiVidual
agencies -~ should reconcile different recommendations.)
This is sort of what Mayor Acevedo wants to have replace the
nBush Mernon (the current Puerto Rico directive) .
.
COPY
�\..:--
Directive
From:,
The President
To:
All Departments and agencies
Re:
Negotiations between the USG and the government of Guam
It is my goal to extend to the people of Guam the maximum 9egree of self-government possible,
consistent with the Constitution and keeping in mind the Territories Clause, U:S· strategic
objectives, and the expressed desire of the people of Guam, as stated in their 1987 plebiscites and \.
· subsequent governmental actions.
__.---·
I remind all Departments and agencies that the people of Guam have been loyal Americans since
1899. For decades, the people of Guam have sought greater self-government within the
American family, and formally requested a change in their status in 1987. It is now time for
America to act.
Guam self-government must be accomplished in a new way since Guam is not likely to become a
State in the foreseeable future, ?-nd because its geography, history , political status and population
are like any other territory. Therefore, each Department and agency is directed to review its
provision on the C'JUam Commonwealth legislation for the purpose offirializing'the draft
Iegisla~ion that accommodates the unique status of Guam and the desire ofthe people ofGuallL
I h~ve appointed John Garamendi to be the U.S. Special Representative to complete this process
for me and to finalize a bill for me to send to Congress by the end of this year. . As much as
pnssible, this bill should incorporate the wishes ofthe people of Guam.
I ask that each of you work with Deputy Secretary Garamendi, as my Special Representative for
Guam Commonwealth,' and direct your staffs to work with him, to accomplish this goal.
I
GUAM HOPES THE ABOVE DRAFT IS S.TRONG ENOUGH ON THE FOLLOWING
POINTS:
l.
The primary U.S. interest in Guam is national defense. Other U.S. interests in Guam are
secondary and should be subordinate to the people of Guam's primary interest in selfgovernment.
2. .
A general policy that federal laws and programs should have uniform application
throughout the U.S. ·can~ot control our unique relationship, and each individual agency
must look beyond the narrow confines of its particular interaction with Guam toward the
larger change in political status that is being forged
DRA'COPY
�~--.tJ.-~}
.
. •·,.•
L. S; Departm~nt of Justice
.
.-.i.-;··
Office of Legal Counsel
·,Jmutconst. oon
Office uf the
D~Pury Assisfanr Anon1ey General
Washing/On, D. C. 20510
July 28, 1994
MEMORANDUM FOR
THE SPECIAL REPRESENTATIVE
FOR GUAM COM1\10NWEALTH
~
From: Teresa ·wynn Roseborough
·Deputy Assistant. Attorney General
Re:
Mutual Consent Provisions· in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R.I521, 103d Cong., 1st Sess. (1993) contains
t~o sections requiring the mutual c6nsent of the Government ofthe United States and the
Goverrui1ent ofGuam. Section 103 provides that the Commonwealth Act could be amended
the two governments. Section 202 provides that no Federal
only with mutual consent
laws, rules, and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
of
Guam insist that these two sections are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in-legislation governfug the relationship between. the fooeral goveinment and nonstate areas, L!,!. areas under the sovereignty of the United States that are nor States, I have
. I Teqitorie11 that ~ve developed from the' stage of a classical territory to that ot a Ullnmonwealth with. a
consti~tion of their own adoption and an elective governor, resent being Called TerritOries and claim that that
legal term and itS implications are not applicable to them. We. therefore shill refer to all Temtories and
Commonwealths as non-state areas under the sovereignty of the United Sui.te3 or briefly 113· nOn-state areas.
COPY
�not been consistent.: \Ve therefore have carefully reexamined this issue. Our conclusion
. that these clauses raise serious constitutional issues and are legally unenforceable. 3
15
. In our view, it is impoitant that the text of the Guam Commonwealth Act not ~reate
any·ulusory expectations that might to mislead the electorate of Guam about the ·
..
consequences of the legislation. We must therefore oppose the inclusion in the
Commonwealth Act of any provisions, such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
·
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary. within Constitutional f.:imitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the fedenil and of a state government. These
basic considerations were set out in the leading case of National Bank v. Count}'of Yankton,
101 U.S. 129, 132-33 (1880), There the Court held:
of
l To our knowledge the first consideration of .the validity
mutual consent clauses occurred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such clauses should not. be opposed on the
ground that they go beyond the constitutional power of Congress. In 1%3 the Department of Justice opined that
such clauses were legally effective bocause. COngress could create vested rights in the sf&tUs of a territory that
could not be revoked unilaterally. The Department adhe~ to this position in 1973 in connection with then
pending Micronesians status negotiations in a memorandum approved by thea Assi!ta.ot Attorney General
Rehnquist. On the basis of this Sd~ice, ·a mutual consent clause was inserted in Section 105 of the Covenant
~itb the Northern Mariana Islands .. The Departm~t continued to support the validity of mutual consent clauses·
in connection with the First 1989 Task Force Report ~n the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's
connection with the PUerto Rico Status Re{erendum Bill in light of.
Bowen v. Agencies Opposed to
Soc· Eutraplilent. 477 U.S. 41, 55 (1986), and concluded~ there coulf.i
not be an· enforceable vested right in a p()liti~ status; hence that mutual consent clauses were ineffective ·
because they would QOt biild a ~uent Corigress. We took; tho same position in the SeCond Guam Task
Force Repart issued during the ia.st days of tqe Bush Admin.istration in Janwiry 1993.
.
.
m
Soc:
a.
3
Mui:uaJ 'collllent clauses are not novel phenomenon; indeed thciy antedate tho Constitution. Section 14 of
the Northwest Ordinance captained six ·~cles of compact, between tho original States and tlie poop!~ and
States in the said territory, and [sball) forever remain uDaltorable, unless by common !:O~t. • Those 4rticles
were incorporated either expressly or bY reference into many earlY territorial organic acts. 9iru!2u v;
Eng,lebrecbt, 80 U.S. (13 Wall.) 434, 442 (1872). The copious litigation under these "Unalterable articles"
focussed largely on the question whether the territories' obligations under the~ were superseded by the
Constiiution, or when the territory bociune a State, as the result of the equal footing doctrine. We have,
howeyer~ not found any cases dealing with the qUestion whether the Congress bad the pawer to modify any duty
imposed on the United States by th.ose articles.
- 2 -
qo
COPY
�ft is certainly now too fate to doubt the pov.ier of Congress to govern
the Territories. There have been some differences of opinion as to tlie
particular clause of the Constitution from which the power is derived, but that
it exists has always been conceded. 4
All territory within the jurisdiction of the United States not included i.n
any State must necessarily be governed by or under the authority of Congress.
The Territories are but ·political subdivisions of the ouHying dominion of the ·
United States. Their relation to the general government is much the same as
that which count,ies bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations.·. The organic law of a
. Territory lakes the place of a constitution as the fundamental law of the local
' government. It is .obligatory on and binds the territorial"ituthonties; but
Congress is supreme, and for the purpOses of this department of its
govemmental authority has
the powers of the people of the United States,
·
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
au
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice
explained:
·
,
.
In the mean t.ime [i.e. the interval between acquisition and statehood], .
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the Uniteo States."
·:·{
to
Perhaps the power of governing a territory belonging
the United
States, which has not, by becoming a state, acquired the means of self-
4
Some derived that power from the authority of tho United States· to acquire territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. _IV, Sec. 3,
Cl. 2) pursuant to wb.ich Congress bas "Power to dispose of and make all noodful Rules B.Dd Regulations
respecting the Territory or other Property belonging to. the United States". See~ American
Co. v.
Canter, 26 U.S. (1 Pet.) 511, 542 (l828)i Mormon Church v. United StatY§, 136 U.S. 1, 42-44 (1890);
Downes v. Bidwell. 182 U.S. 244, 290 (l901) .
Insulance
. At present, the Territory Clause of the Constitutioit is gencra.l.ly-consider-ed. to be the source of the
power of Congress to govern the non-state areas. H02veti & Allison Co, v. Evatt, 324 U.S. 652, 673-674
(1945); Examining Board v. Bores de Otero, 426 U.S. 572, 586.(1976); .!i!.I:Jll v. Rosario, 446 U.S. 651
(1980); ~also Wabol v. Villacrusis, 958 F.2d 1450, 1459 (9th Cir. 1992), cert. ~sub .DQID. Philippine
Goods. Inc. v. Wabol, _ _ U.S._. 113 S.Cl 675 (1992). (Footnote supplied.)
-3-
COPY
�· govanment, may result necessarily from the r·acrs. that i(is not within the
jurisdiction of any particular state. and is witllin the power and jurisdiction of
the Un.ited States.
* "' *
"In legislating for them [che Territories], Congress exercises the combined
powers of the g.eneral, and of a state government."
. Id. at 542-43, 546. ·
is
The power of Congress to govern the non-state areas plenary like ·every other
legislative power of Congress but it is nevertheless subject ro theapplicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. ~. 22 U.S. (9 Wheat) I,
196 (1824); with respect to the Commerce Power:
This power [the Commerce Power], like ail others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
.
'This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution.. See ~-, Hodel v. Virginia.
Surface Mining and Reclamation Assoc. ,452 U.S. 264, 276 (1981). That the power of
Congress under .the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-state areas persists ... so long as they
·remain in a territorial condition." Shively v~ Bowlby, 152 U.S. l, 48 (1894).· See also,
Hooven & Allison Co. v. lirn!, 324 U.S. 652, 675 (1945) (recognizing that during the
intennediary period between the establishment o~ the Commonwealth of the Philippine
Islands and the ·final withdrawal of United States sovereigrity from those islands "Congress·
retains plenary power over the territorial government").
·
'
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It teiminates when the area loses that status either by virtue of its
admission as a State, or by the termination of the sovereignty of the United States over the
of independence, ·or by its surrender to the so~ereignty of another country.
area by tlie
grant
-4-
COPY
�II.
The Revocable Nature of Congressional ugi~lation
Relating·to the Government of Non-State Areas
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to_ the inhabitants of non-state areas full powers of self, government and an autonomy· similar to that of States and has done so since the beginning of
the Republic. Such delegation, however, •. 1ust be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441
(t872); Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (193?)- The requirement that
the delegation of governmental authority to the-non-state areas be subject to federal
supremacy and federal su.pervision means that such delegation is necessarily subject to the
right of Congress to revise, alter, or revoke the authority .granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, Un.ited States v. Sharpnack, 355
U.S. 286, 296 (1958), Harris v. Boreham, 233 F.2d 110, 113. (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore. cannot subject the amendment or repeal of such legislation to the con~nt of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the po\\{er to make.
a partial disposition of that authority, hence that Congress could give up its power to ame~d
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non.:state area isan iritegral element ofthe delegation power, Congress therefore has no
. 5
Thompsog dealt with the District of Columbia's government which is provided for by Art.
I. Sec. 8~ Cl. .
17 of the Constitution, rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court, however, held that in this area the rules relating to the Congressional power
1o govern the District of Columbia and the non-state areas a.f7 identical. lndeed, the Court relied on cases
dealing with non-state areas, .2.:.,g., Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. Kine ~ty. 239 U.S. 365 (1915), where it held that Congress ca.n delegate its legislative
authority under Art. I, Soc. 8, a. 17 of the Constitution to the District, subject to the power of Congress at any
time to revi5e, alter, or revoke that authority.
6 Congress has exercised this power with respect to the Distri~t of Columbia. The Act of February 21,
1871, 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointod by the
President, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20, .1874, 18 Stat. 116, which abrogated among others the provisions
for the legislative assembly and a delegate in Congress, and established a
ent by a Comniission
.
-·
..,_~SIDE"I\Ir,
appointed by the President.
.
.
. qr
-5-
~
~
z
~
()
~
<'
COPY
�authority to enact legislation under the Territory Clause that would limit the unfet1cred
· exercise of its power to amend or repeal.
The same result flows from the consideration that aU non-state areas are subject to the
authority of Congress, wh.ich, as shown above, is plenary. This basic ruie does not penn it
the creation of non-state areas that are only partiaUy subject to Congressional authority. The
·plenary power of Congress over a non-state area persists as long as the area remains in that
condition and terminates only when the area becomes a State or ceases to be under United
. States sovereignty. There is no intennediary status as far as the Congressional power is
concerned.
The two mutual consent clauses contained in the propOsed Commonwealth Act
therefore are subject to Congressional modification and repeal.
ill.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and reQea1 is but a manifestation of the general
rule that one Congress cannot bind a subsequent Congress. except where it
creates vested fights enforceable under the Due Process Clause of the Fifth
·
·
Ainendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas. is but a specific application. of the maxim that
one Congress cannot bind a subs~uent Congress and the case law developed under it.
. The·rationale underlying that principle is.the consideration that if one Congress could
prevent" the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen permanently and would acquire virtually constitutional status. Justice ·
Brennan expressed this thought in his dissenting opinion in United States Tiust Co. v. New
~. 431 U.S. l, 45 (1977), a case involving !he Impairment of the Obligation of
·
Contracts Clause of the Constitution (Art. I, Sec 10, Cl. ·1):
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represenL Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopaidize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rascals might perpetuate their policies simply. by locking them into
binding contracts.
-6 -
COPY
�. . Nonethtkss, rhc maxim that one Congress cannot bind future Congress. like every
legal_ rule, ha~ its limits. As early as 1810, Chief Justice MarshaU explained in Fletcher v.
·Peck, 10 U.S. (6 Cranch) 87, 135 (1810):
The principle asserted is that one legislature is competent to repeal any
.act which a former legislature was competent to pass; and that one legislature
cannot abridge the powers of a succeeding legislature.
·
The correctness of this principle, so far as respects general legislation,
can never be controverted. But, if an act be done under a law, a succeeding
legislature cannot undo it. The pastcannot be recalled by the most absolute
power. Conveyanc~s have been made, those conveyan'ces have vested legal ·
estates, and if those estates may be s'eized by the sovereign authority, still, that
they .originally vested is a fact, and caruiot cease to be a fact.
When, then, a law is in its nature a contract;· when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
the Obligation of Contracts Clause (Art. I, Sec. 10, ci. l) of
limited in the. case of States
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment.
principle was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
6y
This
The United States cannot any more than a State interfere with private.
rights, except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from depriving persons or COIJK>rations of property without due
process of law. They cannot legislate back to themselves, without making
compensation, the lands they .hive given this corporation to aid in the
·
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the terms of the contract already made in that
connection.· The United States are as much bound by their contracts as are
· individuals. (emphasis supj>lied.) .
See also Bowen
V.
~encies Qv.posed to Soc. Sec. Entrapment, 477
-7-
u.s_ 41, 54-56(1986).
qo
COPY
�IV.
·The Due Process Clause does not Preclude Congress from
Amending or Repealing the two Mutual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequent Congress .from repealing legislation for the governance of non-state
areas enacted by an earlier Congress under the Tenitory Clause. This question must be
answered in. the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of Life, liberty, or property without due
·
process of law. ·(emphasis supplied.)
This Clause is inapplicable to the repeal
clauses here involved for two reasons. First, a
meaning of the Fifth Amendment, and, second,
the non-state area of a property right within· the
or amendment of the two mutual consent
non-state area is not a "person" within the
sucb repeal or amendment would not deprive
meaning of the Fifth ~endment.
A ..
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
·
·
In South Carolina v. Katzenbach, 383 U.S. 301,323-24 (1966), the Court held that a
State -is. not a person within the meaning of the Due Process Clause of the Ftftb Amendment.
~ !illQ, Alabama v .. EPA, 871 F.2d 1548, 1554 (11th Cir.), ~ ~~ 493 U.S. 991
( 1989). ("The State of Alabama is not included among the entities protected by the due
·process clause of the fifth amendment"); and State of Oklahoma v. Federal Eile~y
Regulatory Comm., 494 F.S~pp. 636, 661. (W.D. Old. 1980), m:DJ, 661 F.2d 83i (lOth Cir.
1981), cert. denied, m., llQ!]L. Thw
F¢eral Energy Regulatory Comm:, 457 U.S. 1105
(1982)...
'
v.
Similarly it bas been held that creatures or instrumentilities of a State, such as cities
or water improvement districts, are not persons within the meaning of the l)ue Process
Clause ofthe Ftfth Anlendment_ City of Sault Ste. Marie. Mich.v. Andrus, 532F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. IBWCIUS, 701 F.
Supp. ·121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are l}ot States.or instnmientalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
- 8-
COPY
�tile rationale of South Carolina V. Katzcnbach, 383 U.S. ar 301' appears to be that such
bodies are not protected by the Due Process Clause of the Fifth Amendment. Moreover. it is
well established that the political subdivisions of a State are not considered persons protected
as against the State by the provisions of the Fo'urteenth Amendment. See, u.,., Newark .v.
New Jersey, 262 U.S. i92, 196 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36, 40
( 1933); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 505,
507 (6th Cir. 1986) and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As ~tated,
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (I 880): .
The. territories are but political subdivisions of the outlying dominion of the
. United States. Their relation to the general government is much the same as
that which counties bear to the respective States , ..
More recently, the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state
to that
between a State and a city. United States v. Wheeler, 435 U.S, 313, 321 (1978). It foUows
that, since States are not persons within the meaning of the Fifth Amendment and sinee the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth· Amendment.
area
B.
. Legislation relating to the governance of non-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress caru1ot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment,
i.e., if such amending or repealing legislation wquld deprive a person of property without
due process .of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in .the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
.
. .·
Legis~on eoncerning the governance of a non-state area, whether called organic act,
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to ameridinent or repeal by subsequent legislatiOn. A. non-~
does_ not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
in connection with the District of Columbia. See District of Columbia v. Thompson·co.,
346 U.S .. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause,
area
-9 -
COPY
�I
. legislation concerning the government
by subsequent legislation.
of a noncsta.te area is subject to amendment or repeal
This leads to the question whether the addition of a mutual consent clause, i.e. of a
provision rhat the legislation shall not be modified or repealed without the consent Of the
Government of the United States and the Government of the non-state area, has the effect of
creating in th~ non-state areas a specific status amountirig to a property right within the
meaning of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because (l) sovereign governmental powers cannot be contracted away, and
- (2) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
l. As a bOdy politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however; is generally limited to those types of contracts in which private persons or
corporations can engage: By contrast [sovereign] "governmental powers cannot be
·contracted away," North American Coml. Co. v. United States, 171 U.S. llO, 137 (1898).
More recently the St1preme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10. •Cl. l) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v, New Jersey, 431 U.S. l, 23 (1977).7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are, are subject to state restriction,
cannot remove them from the power of the State by making a contract about ·
McCarter, 209 U.S. 349, 357 (1908). 11
them. Hudson Water Co.
v.
Agreements or compacts tQ the effect that the Congress may not amend legislation
·relating to the government of a non-state area without the consent of the latter, or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential po..yers of the federal government. They are
., Cases arising under the Contract Clause hol~ing that a State cannot contract away a iiovereigiJ p<>wcr are
also applicable to the contracts madeby tbe federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit GliBranty Corp. ~- R.A. Gray Co., 467 U.S. 717, 733 {1984); National Railroad .Passenger Com. v.
A.T. & S.F. R.,_470 U.S. 451, 472-73 n.25 (1985). Hence, when state legislation does not violate the
Contract Clause, analogous federal legislation is all the more· permissible under the Due Process Clause of the
Fifth Amendment.
.
·
R Cited with approval with respect to federal legislation in Norman v. B. & O.R., 294 U.S. 240, 308
( 1935).
- 10 -
COPY·
�therefore not binding on the United States and cannot confer a property interest protected by
the Fihh Amendment."
·More generally, the Supreme Court held in Bowen v. Agencies Opposed to Soc.Sec.
Entrapment, 477 U.S. 41, 55 (1986), that the contractual property rights protected by the
Due Process Clause of the Fifth Amendment are the traditional private contractual rights,
such as those arising from bonds or insurance contracts, but not arrangements that are part of
a regulatory program such as a State's privilege to withdraw its participation in the Social
Security system with respect to Its employees. Specifically, the Court stated:
·
But the "contractual right" at issue in this ~se bears little, if any,
resemblance to rights held to constitute -"property" withiri the meaning of the
Fifth Amendment. The termination provision in the Agreement exactly
tracked the language of the statute, conferring no right on the State beyond
.
that contained in § 418 itself. The provision consqti.rted neither a debt of the . ·
United States, ~ ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see~· v. United States, supra. The termination clause
was not unique to this Agreement; nor was it a term over which t.he State had'
any bargaining power or for which the State provided independent
consideration. Rather, the provision simply was part of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare .. ··
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall.not apply to
Guam without the consent of the Government of G~ clearly do not constitute conventional
private contracts; they are elements of a regulatory system .
.In the past the Department of Justice at times has concluded that a non~State area may
have a vested interest in a Specific status which would be i.ID.mune from unilaterial
Congressional amendment or repeaL 10 We cannot continue to adhere to that position in
Cases such as~ v. United States, 292 U.S. 571 (1934), and~ v. United States, 294 U.S. 330
(1935), are not contrarY to this conclusion. Both cases iri.volvod commercial agreements~: insurance;
~: Government boods) In Lynch the Court held that cOngress oould not amend the contract m~ly to save
money "unless, indeed the action falls within the federal police police power or some other p&ramount power..
292 U.S. at 579. ~involved bonds issued by the United States under the authority of Art. I, Sec. 8, Cl. 2
of the Constitution, to borrow money on the credit of the UDitod. States. The Court held that Congress did not
have the power to destroy the ~redit of the United States or to reudCr it illusory by unilaterally Abrogating one
of the pivotal terms of the bonds to save money. While the Court held that the United States had broken tho
agreement, it nevertheless held that plaintiff could not recover becaUse, as the result of rogulations validly issued
by the United States, he had not suffered any monetary damages.
9
° Cf.
1
n.2.
- 11
~
COPY
�view of the rulings of rhe Supreme Court that legislation concerning the governance of a non.state area is necessarily subject to Congressional ame~dment and repeal; that governmental
. bodies are not persons within the meaning of the Due Process Clause; that governmental
powers cannot be contracted a way, and especia!ly the exposition in the recent Bowen case,
that the property rights protected by the Due Process Clause are those arising from private
law or commercial contracts and not those arising from governmental relations. 11
Sections 103 and 202 therefore do not create vested property rights protected by the
Due Process Clause of the Fifth Amendment. 12 Congress. thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shall apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisio,ns, therefore, in the Commonwealth Act would be misleading. Honesty and fair
· dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. 13
·
Finally, the Department of Justice has indicated that it would honor past commitments
with respect to the mutual.consent issue, ·such as Section 105 of the Covenant with the
Northern Mariana Islands. in spite of its reevaluation of this problem. The question whether.
the 1989 Task force proposal to amend Seetion l OJ of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101, l03, 201, and 301 constitutes such
prior commitment appears to have-been rendered moot by the rejection of that proposal by
.
.
the a·uam Commission.
" It is sigri.ificant that the circumstances in which Congress can effectively agree not to repeal or amend
legislation were discussed in th!( context of commercial contracts .. ~. 477 U.S. at 52.
~. it is
dealt with legislatio~ that expressly reserved the right of Congress to amend, while the
proposed Guam Commonwealth Act would expressly preclude the right of
to Amend without the ·
consent of tbe.Govemment of Guam. The underlying agreements, however, are not of a private contraetual
nature, and, hence, are DOt property within_thc meaning of lhe Due Pi-ocess Clause. We cannot perceive bow
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
·
12
true,
Coo8rcss
11
The conClusion that Section 202 of the Guam Commooweallh Act (Uiapplicability of future fedecal
would not bind a future Congress obviates the need to
examine tile ooOsti~aoality of Section 202. In Q!!!il! v. Wallace, 306 U.S~ 1, 15-16 (1939), and United
State$ -v; Rock:R.qy&l Cg-op. 307 U.S. 533, 517-78 (1939), the CoUrt upheld l~latiori that made the
effectivC!iess of r8gUlati011J5 dependent on the approval of tobacco farmers or milk producers affected by them.
The ~Urt bel~ that. dlis approval was a legitimate condition for making the legiSJ&tjon applicable. Similarly, it
could-~ argued :that approval of federal legislation by the Govern.tnent of GUain is a legitimate condition for
making that legislation· applicable to Guam; Since, as stated above~, a future Congress would not be bound by
SeCtion 202, we need not decide lhe question whether the requirement of approval by the Government of GUA.Ol
for~- futw-e federal Statute and regulation i~ excessive IUld inconsistent with lhe federal sovereignty over
Guam.
legisla~~n to .Guam ~ the consent of Guam)
the
- 12 -
qD
COPY
�-------------------------------------------
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTrnTLE
RESTRICTION
001. memo
To Jeff Farrow from Marcia Hale. Subject: Guam Commonwealth bill
issues (2 pages)
11/2111996
P5
'11
002. memo
To Harold Ickes and Marcia Hale from Jeffrey Farrow. Subject:
Puerto Rico issues raised by Guam talks (2 pages)
08/2111996
P5
q~
003. memo
To Harold Ickes and Marcia Hale from Jeff Farrow. Subject: Guam
and Puerto Rico (I page)
08/1611996
P5
004. memo
To EMO from Jeff Farrow. Subject: Guam and Puerto Rico (I page)
07/30/1996
P5
Cf3
qLJ
005. memo
To Marcia Hale from Jeff Farrow. Subject: Guam Commonwealth
representative position (I page)
n.d.
P2, P5
Cf5
006. memo
To Marcia Hale from Jeff Farrow. Subject: Guam and Puerto Rico
status issues (I page)
n.d.
P5
i~
Phone No.'s (Partial) (I page)
ll.d.
Pe/-G(6)
008. memo
Phone No. (Pdi tial) (I page)
02/27/1997
P6/'o(6)
009. memo
To Marcia Hale from Jeffrey Farrow. Subject: Omnibus Insular Areas
bill (3 pages)
02/04/1997
P5
010. memo
To Harold Ickes, Marcia Hale, and John Angell from Jeff Farrow.
Subject: Guam and benefits (I page)
n.d.
P5
Cff
011. memo
To Harold Ickes, Marcia Hale, and John Angell from Jeff Farrow.
Subject: Guam and benefits (I page)
n.d.
P5
CJ~
~07.
memo
qq.
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael lmbroscio
OA/Box Number: 12734
FOLDER TITLE:
Farrow [2]
2006-0 193-f
'ml29
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)(
National Security Classified Information ((a)(l) of the PRA(
Relating to the appointment to Federal office ((a)(2) of the PRA(
Release would violate a Federal statute l(a)(3) of the PRA(
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRA(
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRA(
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRA(
b(l) National security classified information l(b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
·
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical infi1rmation
concerning wells l(b)(9) of the FOIAI
PI
P2
P3
P4
C. Closed in accordance with .restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Withdrawal/Redaction Sheet
Clinton Library·
DOCUMENT NO.
AND TYPE
SUBJECTrrJTLE
DATE
RESTRICTION
IDO
012. memo
To EMO from Jeff Farrow. Subject: DOD submission to Congress re
Guam excess land (I page)
09/2611996
PS
e-1-3. list
PhtlAe Jl.IG. (Partial) (I pag0)
06125/1996
P6/h(6)
014. list
PRGile No (Partial) (I page)
()J/14119'fi'
)36/'6(6)-
015. memo
To Marcia Hale from Jeffrey Farrow. Subject: NGA Puerto Rico and
Guam proposals (I page)
01/17/1995
PS
016. memo
To Leon Panetta from Jeffrey Farrow. Subject: Guam mutual consent
agreement results (2 pages)
11/07/1994
PS
lD~
017.memo
To Bruce Reed from Jeffrey Farrow. Subject: Bush's inauguration eve
Guam Commonwealth proposal (I page)
01/2111993
P5
lo 3
OJ 8. memo
To Bruce Babbitt through Stephanie Solien from Jeffrey Farrow.
Subject: Possible question on Guam Commonwealth (2 pages)
n.d.
PS
lOY
019. memo
To John Hart from Jeffrey Farrow. Subject: President's Guam
Commonwealth Representative commitment (2 pages)
03/27/1993
PS
l0 ~
020. memo
To Bruce Babbitt through Stephanie Solien from Jeffrey Farrow.
Subject: Possible question on Guam Commonwealth (2 pages)
n.d.
PS
oz 1. fa)(
PheAe Jl.IG. EPaFtial) (I page)
04130Ll991
P6ib(6)
10 I
l0
(p
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael lmbroscio
OA!Box Number: 12734
FOLDER TITLE:
Farrow [2]
2006-0 193-F
'm129
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)i
PI
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency i(b)(2) of the FOIAI
b(3) Release would violate a Federal statute i(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information i(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for·Jaw enforcement
· purposes l(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions i(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells i(b)(9) of the FOIAJ
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office i(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or be.tween such advisors la)(S) of the PRAI
· P6 Release would constitute a clearly unwarranted invasion of
personal privacy i(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Nov. 21, 1996
To: ·Marcia
Fr: Jeff
Re: Guam Commonwealth Bill Issues
The report D/S Garamendi submitted was to the POTUS. The measures
which may be of the greatest interest in Puerto Rico of which I
was not aware when I prepared the attached memo are listed below.
Given the overall situation (i.e. I re Puerto Rico as well as
Guam), I think that there should be decisions ASAP on-1) the provisions that he considers resolved subject.to
formal clearance and
2) the policies that he wants the White House to resolve
because of opposition from the relevant agencies.
It would also be helpful to give guidance on the proposals that
he still.wants to discuss with agencies.
Unless you disagree, I ~ill formalize this memo for Harold,
Janet, Emo, and Elena Kagan tomorrow.
We should also make sure that his report (copy also attached) is
not misdirected.
Provisions to.which he has Agreed
• Authorizing Commonwealth officials to enforce Federal law in
lieu of Federal officials .
.• Prefere'tlce for hiring local residents for Federal jobs.
Policy .fo.r>:which he w~nts a Decision due to Agency Oppositiori'
• Special environmental requirements.
Proposals.he is still Discussing with Agencies
• Policy of equal funding in Federal programs (e.g., SSI).
• .Relinquishing the Constitutional Power to govern territories.
• Effective exemption from the requirement to use U.S~ vessels
for shipping.
COPY
�Guam Bill Issues
-
2 -
i___
Nov. 21, 1996
• Policy that Federal laws should be selectively applied.
• Authority for the Commonwealth to enter into international
agreements and participate in international organizations.
• Consultation with the Commonwealth re international
negotiations.
• Transfer of authority re the Exclusive Economic Zone around the .
island.
• Statement re the lack of equal representation in policy-making.
• Commonwealth participation in international.air route
negotiations and a policy of not using rights re the ·island to
gain advantages re other u.s. destinations.
t1\
COPY
�August 21, 1996
MEMORANDUM FOR HAROLD ICKES
MARCIA HALE
Farrow~
Frain:
Jeffrey
Subject:
Puerto Rico issues raised by Guam talks
. ·''
From what I've been told by Dep .. Sec. Garamendi's assistant, the
following aspects of Interior's current Guam 'commonwealth' bill
effort are of interest in the Puerto Rico context.
Panetta Meeting: They're arranging for Guam's reps to see Leon
Sept. 4 (presumably to demonstrate our commitment to the effort).
Mutu.al Consent: Interi~r has. agreed to commit to the extent
constitutional that policies in the wide-ranging bill cannot be
changed without Guam's consent. A similar commitment is the
disputed heart of the commonwealth concept in Puerto Rico.· (A key
unre~olved aspect of this issue is that Justice signed off on the
Guam language earlier on the understanding that the commitment
w6uld not be enforceable in court and Interior wants it to be.)
Federal Laws and Regs:. Interior wants a commission-- it, Guam's
Governor and Delegate, :and two other £ederal agencies -- that
would 1) overrule agencies on the application of-regs to Guam and
.2) make recommendations on laws affecting Guam. The proposal
would address an 'Achilles Heel' of Puerto Rico's commonwealth:
its lack of representation in the federal policy-making process.
Immigration: . Interior wants to eventu<;1lly give Guam control and'·
in the interim, allow i t to limit the number of i1nmigrants.
Puerto Rico's comrnonwea.lthers have made immigration proposals in
the past but seem to have given up doing so.
Work is also being done ofi proposals to 1) enable Guama~ians to
·not have to file a federal .tax return on U.S. incoii!~.~;.. which
would be of majOr interest in Puerto Rico and 2) "liberalize trade
laws applicable· :to Guam -- which would be of less·.interest given
the current d:J.:ft'erent situations of the islands; but .,Garamendi 's
'assistant said.' that he was not familiar with the: det'ails.
Two matters that he was familiar with that would probably not
cause a problem in Puerto Rico but are worth noting are 1)
Interior's desire to enable Guam to replace federat labor laws so
long as its laws are as strict -- Puerto Rico's cornnionwealthers
would probably rtot want to battle the unions -- and 2) Interior's
agreement to an unofficial native Guamanian status vote -- an
issue somewhat related to.the claim of many U.S. Puerto Ricans
that they should be able to vote on Puerto Rico's destiny.
COPY
�Guam commonwealth
- 2 -
August 21,. 1996
Again, noting the above should not be misinterpreted as
opposition. I am sympathetic to seriously exploring Guam's
aspirations in areas such as Mutual Consent and Federal Laws ·and
Regs. (I'm not as sympathetic in others, such as Labor, though.).
But I don't think that we can endorse them unless we've decided
whether we would or wouldn't agree to similar measures in the
much larger case of Puerto Rico -~ which ~ould be pivotal in its
status choice; And, while I am anxious for these decisions -- and
think we'll have to make them sooner or later because of the·
Young bill or otherwise ·-- doing so before Nov. 5' could cause
·problems.
COPY
�Aug. 16, '96
NOTE FOR HAROLD v
MARCIA
·From:
Jeff Farrow
·.. :
You may want to mention to Leon that positions taken re Guam's
'commonwealth' proposals may have significant_Puerto Rican
implications -- both in terms of the islands and the 2.7 million ·
Puerto Ricans in the u.s.·
Interior Dep. Sec. Garamendi told me that he's already Sriefed
Leon on his Guam negotiating plans and that he will proceed with
them although he doesn't expect to conclude them before the
election. He did, though, say he'd keep me briefed.
As you know, many of the issues are the same and pivotal in
Puerto Rico's status debate and politics. Positions taken in the
relatively obscure ~ase of Guam dotild effectively put us in the
position of having to critically disappoint the statehooders or
the commonwealthers in the much, .much larger case of Puerto Rico.
(Interior arguments that 1) agreeirtg to Guam proposals can be a
precedent that Puerto Rico's commonwealthers can cite or
we
can turn down the same proposals in the.case of Puerto Rico by
saying that Puerto Rico can b~ a state would be explosive~)
2r
Again, while I perso~ally want Guam to be responded t~ as
positively as possible, coordination is essential.
I may have additional thoughts after his staffer briefs me on his
specific positions next week.
COPY
�NOTE FOR. EMO
From Jeff Farrow
After I talked to Jennifer about our meeting with D/S Garamendi
re Guam's Commonwealth bill this week or·next, I heard that he
plans to meet with Gov4 Gutier~ez Fri. on it. So, it would be
helpful if we could do it before then.
FYI orily, Guamaniahs are trying to obtain political support f6r.a
"presidential directive".that they understand Garamendi needs to
get more from the Administration for them on the legislation.
The issue is that many of the key substantive questions
from
federal territories governing powers can be limited in a
'commonwealth' to how individual federal programs apply
are
also critical in the much larger and more sensitive case of
Puerto Rico.
ho~
Some in Guam and Int~rior and statehooders in Puerto ~ico would
like to make a distinction based on an argument that "Puerto Rico
can be a state" and go along with insular aspirations in Guam but
not in·Puerto Rico. But that doesn't wash with most Puerto Ricans
(3.8 million on the island-and 2.7 million in the U.S. vs.
· 140,000 people in Guam) including the commonwealth party that
controls the Democratic organization.
And the issues are immediate in Puerto Rico: a bill has been
reported by committee in the House and the Rules Committee is
planhing to act on it.
I'~
sympathetic to Guam and Gutierrez has long been a friend. We
just need to coordinate~
COPY
�May 4
...\:)
NOTE FOR MARCIA
(]5 ;\)
·~~
"""{'
- ,.
FROM JEFF
'7
. ··/f
\./
'\;.)
"
'\.·l.-.1:.....,._
.
/'
I'
Craig Smith says they've now offered the Interior Guam
"'"'~~~,...-·.,....,
commonwealth rep job to ex-Oregon Gov. (etc.) Neil Goldschmidt.
It would, presumably,. follow-up on Michael, Heyman's agreement
with the territory on the fundamental issue re commonwealth (the
extent to which it limits Federal powers) . ·
We ·should remember that Guam bill positions need to be
coordinated with those re Puerto Rico as well as pursued.
><.:..
~ . ·•·
cc: Janet
••..
\
/
.I
COPY
�r----------------------------c--~--
----
. April21
To: Marcia
Fr: Jeff
Bill Marshali; wh_o has been doing Puerto Rico and Guam status issues for the Counsel's Office,
says that Ruff wants to have D/S Garamendi' s draft Guam Commonwealth Bill interim report to
· · the Resources Comm. held since Justice doesn't want Garamendi to brief Chm. Young as the
letter proposes (presumably because of Justice's concerns about the Garamendi
recommendations) and in light of the Committee's investigation of what influenced the
recommendations. (Bill will also take over controversy about therecommendations questions
from Lanny since Lanny was named in Yoimg's investigati6"n letter.)
Meanwhile, the OMB and NSC staffers handling the matter have expressed concern about getting
the recommendations revision process going in light ofYoung's commitment to a hearing after
the Puerto Rico bill is reported next month or so and your impending departure in addition to .
· Emo's~
I'm anxious because the next step onthe Puerto Rico bill is for us to take a position on the
definition of Commonwealth based on the Commonwealthers' alternative and, possibly, t.he bill's
language. I think I can get agreement with the agencies of jurisdiction relatively easily (from
conversations with Justice which ·has most of it). But, as you know, it would be a real political
and legislative problem if we did so and the Administration took contrary positions on key issues
in the case of Guain a month or so later. (It might also be an unnecessary problem in light of what
Del. Underwood said about Guam primarily wanting positions with whlch they could go forward.)
How Guam is going to be handled post-you should be considered.
COPY
�February 4, 1997,
lv!EMORANDUM FOR MARCIA HALE
From:
Jeffrey Farrow
Subject:
Omnibus Insular Areas Bill
·OMB has asked for our comments -- by COB today, if possible -- on draft Interior testimony for
Thursday on a bill that would take a number of measures re insular areas (S. 210 by Chairman
Murkowski and Sen . Akaka). They particularly want guidance on proposals to:
•
create a presidential commission to recommend measures to make the Virgin
. Islands economy "secure and .self-sustaining" through 2025 -- particularly in light
of likely future competition from--Cuba in the tourism and rum industries;
•
create another presidential commission to -1) recorpmend measures to make t~e American Samoan economy" "secure
and self-sustaining", specifically in this case including changes in Federal
laws and programs and trade or other international agreements, and
2)report on the overall Federal-territorial relationship; and
·
•
give Guam a priority claim on land that the military no longer needs and exempt
such land from the normal restrictions on transfers other than environmental ones.
Commissions
. As you'll recall, Harold had agreed last year that the V.I. commission should not be supported ·
because _it was similar to a centerpiece of one of the Puerto Rico local parties' campaigns (the
commonwealthers) as well as because Puerto Rico's need in this regard is Virtually the same as the
V.I.'s -- and the President had not agreed to the Puerto Rico commission proposal.
That led to Interior last year testifying that the Administration -1) supported planning to improve the V.I. economy,
2) opposed creating l'I.On-essential new commissions, and
3) questioned the cost ofthe commission,
and that Interior, therefore, would.work directly with Gov. Schneider to identify any measures
that need to be taken, using eXisting funds.
'
.. .
Interior now wants to say that a presidential commission is needed to ensure that
recommendations have the support nee-ded to be implemented and that the Administration now
supports creating a commission (at a cost of $300,000/year).
OMB 's intent had been to seek to have last year's testimony strengthened ... not reversed.
COPY
�2
One concern is the creation of non-essential new entities while the Administration is trying to
Reinvent Government.
.
'
.
Another is that placing a priority on a territory's economic interests-- vs. those of the country as
a whole-- might effectively get the Federat"Government into expenditures and other policy
changes that might not be. as justifiable from a broader perspective. This concern is exacerbated by
the proposed structure: a 'pr:esidential' commission staffed by one department without clear
involvement of others that have responsibility for the policies likely to be exafnined, such as
Treasury and USTR. (The draft Guam Commonwealth Bill demonstrates what can result.)
A third concern is that other areas also have econonlic needs that could also use more assistance.
Additionally, the NSC is opposed to using the (hoped-for) eventuaL opening-up of Cuba to justify
Federal measures for the V.I.
From a policy perspective, my inclination is th~t our position should not change. But l want to see
ifyou're still comfortable with it in light ofthe politics ofthis. They inClude: the headache of
another area ofdifference with Interior;. Gov. Schneider and Delegate Green wanting the
commission; and the Murkowski and Akaka sponsorship.
.
.
The similar Samoa commission proposal is another complication. This proposal is a modification ·
of a proposal by Del. Faleomavaega for status cominission -- which is. more warranted; given.
Samoa's unique status situation. and the greater need for a special process to address an overall
intergovernmental relationship than to address just economic development. And, in this case the
proposed role of Interior makes more sense because Interior has a greater responsibility for
government in Samoa under law than it has re the economy of the V.I.
·
a
Thus, from a policy perspective, it would make sense not to change our position on individual
island.area economic commissions but not object to the Samoa status commission. The question is
whether we should press this.
Guam Land Transfers
Provisions to maximize the transfers of military-controlled land to local ownership· are also a
major element ofthe Guam Commonwealth Bill as well as this bill. Interior's proposed testimony,
however, recommend,s rules different from those reconunended by its Dep. Sec: in the draft
Commonwealth Bill. Under the testimony, the transfers would still be exempted from the normal
rules for transfers (other than those relating to the environment) but the designation of what land
to transfer would still be made by the military (vs. an Interior and Guam dominated commission
. making it ~nder the Commonwealth Bill).
COPY
�3
Interior will try to overcome boD's objections today. (The NSC staff thinks that a process to
maximize the .amount of land that goes to local control could be worked out if DoD felt more
confident of Interior's objectives,)
·
I view this proposal as an improvement (if n~t enough of one) and will advise Emo of it.
Marianas Minimum Wage
Also noteworthy is Interior's proposal to phase-in the Federal minimum wage in the
Commonwealth of the Northern Mariana Islands. The most surprising aspect of the proposal is
.that it is inconsistent with the proposed Guam Commonwealth Bill, which would transfer labor
law responsibility from the Federal to the Commonwealth Governments ..
Gov. Tenorio won't like the proposal but aphase-in is warranted. (The most questionable aspect
of the proposal is that it would allow at least seven years for the phase-in.) ·
COPY
�·9 Jan.
To:
Harold/
Marcia
John Angell
Re:
2 pm in Rm. 476
Fr:
Jeff Farrow
I was struck in meeting D/S Garamendi yesterday that· he was
unaware that his bill would extend SSI to Guam.
When his Guamanian staffer confirmed this, he q~ickly said he'd
drop it (which I think is excessive: I got SSA and OMB to agree
to partial funding for Puerto Rico unde·r Commonwealth) .
MY
guess is that.SSA and OMB were also unaware that it was in
there. (Treasury_was unaware of the language on tax treaties and
ihdividual income tax rebates. The NSC staff has found that ·
sev~ral agencies haven't s~en language that concern~ them.)
My guess and what we know oth~rwise from agencies supports the
need for meaningful r~levant agency participation~ (I'd,
personally, be for ftill ~SI in both are~s
but we owe island
citizens a real position not what they or we individually might
like.)
What he said also questions whether the bill is ready for POTVS
decisions.
Garamendi was also frustrated when I told him I'd like a few
hours on revised Mutual Consent for Changes to the Commonwealth
Law language -- the pivotal issue for both Guam and Puerto Rico.
(As it was, I was tentatively ready within minutes.)
We·developed our Puerto Rico position to date in consultation
with Justice, the Counsel's office (Elena Kagan), Leg Affairs
(Janet Murguia), and you (excluding John A.).
Garamendi and Guam are under the misimpression that the only
issues with the bill 'are the Puerto Rico ones. In fact, most of
what I've highlighted in response to .the POTUS's questions are
non-P.R. issues.
Finally, I just got an upset call from Delegate Underwood, with
whom I've long been friendly, about the Puerto Rico angle. It is
difficult for US' to resolve this harmoniously if there are
constant leaks to Guam.
·
COPY
�9 Jan.'
To:
Harold/
Marcia
John Angell
Re:
2 pm in Rm. 476
Fr:
Jeff Farrow
1 was struck in meeting D/S Garamendi ye~terday that he was
unaware that his bill would extend SSI to Guam.
When .his Guamanian staffer .confirmed this·, he quickly said he'd
drop it (which I think is excessive: !"-got SSA and 'OMB to agree
to. partial funding .for Puerto Rico under Commonwealth) .
My guess is that SSA and OMB were also unaware that it was in
there. (Treasury was unaware of the language on tax treaties and
individual income tax rebates. The NSC staff has found that
several agencies haven't seen language that concerns them.)
My guess and what we know otherwise from agencies supports the
need for meaningful ~elevant agency participation. (I'd,
personally, be for full SSI in both areas
but we owe island
citizens a real position not what they or we individually might
like.)
.
·
What he said also questions whether the bill is ready for POTUS
decisions.
Garamendi was also frustrated wheri I told him I'd like a few
hours on revised Mutual Consent for'Changes to the Commonwealth
Law language -~ the pivotal issue for both Guam and Puerto Rico.
(As it was, I was· tentatively ready w{thin minutes.)
·
We developed our Puerto Rico position to date in consultation
with Justice, the Counsel's office. (Elena Kagan), Leg Affairs
(Janet Murguia), and you (excluding John A.).
Garamendi and Guam are under the misimpression that the only
issues Wit~ the bill are the Puerto Rico ones. In fact, most of
what I've highlighted in response to the POTUS's questions are
non-P.R. issues.
Finally, I just got an up~et call from Delegate Underwood, with
whom I've long been friendly, about the ~uerto Rico angle. It is
difficult for us to re~oive this harmoniously if there are
constant leaks to Guam.
COPY
�26 Sept. 96
TO: EMO
Fr: Jeff Farrow
re: DoD submission to Cdngress re
G~am
excess land (follows)
The argument that the land return issue -- one of ,the biggest in
the territory -- ought to be handled in the Commonwealth bill
runs counter to what we agreed with Leon: to hold off on the
fundamental commonwealth issues thru Nov: and help resolve other
issues that could separately be resolved, including this one
because ()f its importance and because.congress was acting on it.
The proposal to require Guam to pay fo:r: .land -:-- which existing
etc. has found ·to have been unfairly acquired by the
military after WWII -- runs counter to a decade of legislative
efforts (including bills that have passed one House or the. other)
in the case of land to be used for public purposes.
~aw,
The apparent desire to tr~nsfer ~hat could substanti~l portioris
of the land to another Federal agency rather than Guam may also
run counter to past efforts.
Guam is very upset.
since the proposal probably won't have any viability with ei~her
the Dems or GOPs in Congress trying to enact a law, it will only
have succeeded in making the.Administration look bad there,
. enabling Members of Congress to .criticize us, and creating more
problematic commonwealth pressure.
·
lt may .also result in the territory not cooperating with the plan
to house more Kurds there tempora~ily.
The letter/bill weren't essential and shouldn't have been sent.
Garamendi seems to have gotten rolled on this by.Fish and
Wildlife as well as DoD (although he may not have objected to DoD
saying the land issue should be haridled thru his commonwealth
bill) . He also personally looks bad in Guam. (The reaction is
still somewhat muted.since they're still hoping for congressional
action that will ignore DoD.)
Garamendi had earlier asked me for support on the issue,
consistent with the Leon understanding, but proposed another
overreaching memo. Marcia's alternative idea h~d been for John A.
to.call a meeting with all the relevant agencies where a decent
· position could be worked out. (She says she suggested he call you
when Cong. Underwood called him to complain.)
Such a meeting -- and position -- is needed more than ever now. I
can advise so you and John .A. don't need to devote much time.
COPY
�The Interagency Working Group on Puerto Rico
January 17, 1995
Confjdential
MEMORANDUM FOR MARCIA HALE
Sf-
FROM:
JEFFREY, FARROW
SUBJECT:
NGA Puerto Rico and Griam Proposals
CC: John Hart
This is in response to your request for comments and suggestions
regarding proposals EC-6 and 14 ("POLITICAL SELF-DETERMINATION
FOR PUERTO RICO". and ·"COMMONWEALTH STATUS FOR GUAM") for· policy
statements by the National Governors' Association.
In general, I would note that both proposals would have to be
changed before Administration support could be recommended (with
the Puerto Rico proposal containing what would be a controversial
position ~nd the Guampioposal raising. a more obscure~- althdugh
significant-- policy question).
·But I·also.don't know that we should try to get these proposals
changed since:
I assume that such efforts wo~ld create problems with
Governors Rossello and Gutierrez;
other governorswi;Ll probably·want to defer to their
colleagues from Puerto Rico and Guam on these matters;
...
and
.the statements won't change the dynamics of the issues
involved very much.
· ~pecific thoughts on each of the proposals follow on separate
. pages.··
Room 6061, U.S. Department of Commerce Building, Washington, D.C. 20230
Telephone (202) 482-0037 • Facsimile (202) 482-2337
COPY
�\\
DETERMiNED TO BE AN
ADMINISTRATIVE MARKING
INITIALS: ...:::!!_~DATE: .l!l/tg j1o
d-Do'-- o l<i 3 - S-.,. ...... ·....
November 7, 1994
-Confidential-
;";/<i__ ;:,.~--·.J,~·,;,,, . .
MEMORANDUM FOR LEON PANETTA
THROUGH:
FROM:
!1
MARCIA HALE
JEi;~;~-!~~~' w;~~~~~i~~oup
.
SUBJECT:
·(....
\~~~
\
.
'\
\
1\
u:.,
on Puerto Rico
'\
"~\ ~
\
J
Q~ ;;/-)
,~
1
Guam Mutual Consent Agreement May Result in Choice
,)
·Between Commonwealth and- Statehood for Puerto Rico-~""......
CC: Keith Mason
The Interior Department's Representative on Guam's 'Commonwealth'
agenda, Smithsonian Secretary Heyman, has reached an agreement
with territorial representativ~s that may put the Administration
in the position of effectively endorsing the basic platform of
either the commonwealth or the statehood party in Puerto Rico.
The position could be decisive in Puerto Rico's status deb~te ·and
politics and affect the President's ability to continue to appe~l
to Puerto Ricans on both sides in the islands and in the States.
The agreement would osten~ibly require Gua~'s consent to change
any provision 6f a Federal law cOvering a wide range of matters.
It could force taking a controversial stance in Puerto Rico
because a-fundamental (but unresolved) premis~ of Puerto Rico's. ·
commonwealth -- now also before the Administration.
is
identical to what _the Guam agreement is understood to provide.
A p6sitive response would: validate the claims of Puerto Ric~'s
commonw·ealthers, who include longtime Democrats; not be
appreciated by the statehOoders, who control most elected offices
. (but have lost the two referenda since ·1992;) and would raise
que~tions in Congress. A negative resportse would undercut
.commonwealth and encourage a contentious statehood petition.
Another problem is that the agreement contains a clause that
could lead to it undermining commonwealth rather than supporting
it. Because of Justice Department concerns, it says the guarantee
against unilateral Federal action is provided to_the extent it is
constitutional _..;which could confirm-doubts about commonwealth.
Finally,· a suggestion by Guam negotiators that the arrangement
have to be available to Puerto Rico because it has the
·option of.statehood would be the equivalent of saying that
statehood is.Puerto Rico's only alternative to a.colonial status!
doe~n't
A fuller discussion.of the matter is attached.
COPY
�- --r-f U
I
o_ '
0
0
.....
~
-confi-dential.
---------.-------
November 3, 1994
------ -.- XA-
. Jc:..\'
DETERMINED TO BE AN
ADMINISTRATIVE MARKING
INITIALS:.,l8M _DATE: tof9/ro
. ';)..OOh ..,o\'7 3 - p
The Guam Mutual Consent Agreement and Puerto Rico
The Interior Department's Representative on-Guam's
'Commonwealth' agenda (Michael Heyman) has reached an agreement
with the territory's ~epresentatives that may force th~
Administration to take a position that 6ould be decisive in
Puerto Rico's continuing statehood vs. commonwealth contest.
The "mutual consent" agreement would ostensibly say that no··
provision of the entire •icovenant" on the new Federal-insular
relationship could be changed without the corisent of the
Commonwealth as well as the Congress. It is being promoted.as a
guarantee that.will insulate policies of importance to the island
embodied in a law covering a wide range of subjects (e.g., trade
preferences) against unilater~l Federal policy changes.
Although the agreement would only apply to G.uam, i t would
positively address the fundamental and controversial question
about 'commonwealth' inother insular areas as well: Can it
reliabiy limit the broad powers that the Fed~ral government has
in territories, providing permanence in agreed-upon matters as
weil as local government· autonomy?
The question·is so inuch a part of Puerto Rico's debate that
the first premise of the commonwealth petition that confronts the
Administration from last year's status plebiscite claims the same
..
'
local power that_the Guam agreement is now generally understood_
to offer. A:nd since both Puerto Rico and Guam·· have raised the
same _question, the Guam. agreement will box the Administration
into taking a position on it in Puerto Rico.
A positive answer would make commonwealth much more
acceptable in Puerto Rico, since the commonwealth option has lost
cred{biii~y due in part to Federal resistance to
ideas. It would mean that commonwealth is really
territorial (colonial) status and offers bot
~s well
as some benefits of the U.S. political
�MEMORANDUM
To:
Bruce Reed
Date:
From: Jeffrey Farrow
Re:
. Bush's Inauguration eye Guam commonwealth proposal
The Bush administration late Tuesday afternoon' submitted a complicated and controversial
proposal to Congress that would make the territory ofGuafTl theCommonwealth of Guam.
The territory's lead counsel (Walter Mondale has also been involved in the past) has asked
that the new administration reconsider the package. It was developed after a few years of
talks between territorial leaders and administration officials but is said to contain
-"outrageous" differences from agreements that had supposedly been reached.
.
.
During the campaign, President Clinton pledged to try to end Guam's 10 year commonwealth
'quest' by working legislation out with Guam's leaders and the Congress.
Congressional leaders may warit to see such an effort because they do· not seem anxious to
directly confront the difficult issues involved. The matter also requires sensitive. handling
beeause of U.N.' decolonization committee sympathy for the Guamanian position, Jesse
Jackson taking up Guam's cause, politics in Guam (affecting its Democratic Congressman
and other candidates,) Puerto Rico's upcoming statehood vs. commonwealth decision, and
increasing tension related to our important military bases on the island.
The issues are fundamental as well as· wide-ranging. Guam has insisted on provisions of
questionable constitutionality. (One of the most controversial· would force the federal
government to drop -- or a~ least reconsider -- policies to which the commonwealth objects.
Another would only allow the indigenous minority of the island's population to vote in a
future status referendum.) The territory has also sought to have provisions that are more
related to its economic situation than its political status included. (An example is a section on
telephone rate-setting, which is not essential -- unlike a section ori free trade, which may be.)
I haven't seen the Bush proposal yet; but Guam's representatives may be most upset about it
backing away from earlier controversial agreements .. (One would have allowed temporary
aliens to be admitted for permanent jobs. Another would have permitted federal land to be
given to individuals without compensation.)
Governor Ada and congressional committees can be expected to press for a position on the
Bush proposal soon. The matter will require interagency policy coordination however it is
· · handled vis a vis the Congress and the territory.
·
cc: Nancy Soderberg
COPY
�:. ...
-.
MEMORANDUM_
To:
· Secretary-designate Babbitt ·
Through: Stephanie Solien
From: Jeffrey Farrow, Insular Affairs Coordinator, Domestic Policy Staff·
Re:
Possible Question on Guam commonwealth
Senate staff Say that a question may be asked regarding Guam commonwealth, probably by
Senator Akaka.
··
The question:
The question could either be whether you will support the Bush administration's task force's
report on the bill or whether you will support the people of Guam's position. A suggested
·
answer to either follows.
- First, let me note thatthe President-Elect is committed to trying to end the 10 year
quest of the people of Guam for commonwealth by working out a bill with their
leaders and the Congress.
Let ~e also note that the bill that has been pr~posed is extraordinarily complicated,
encompassing a number of concerns of the territory, and that many of the issues are
difficult and fundamental.
AI though there has. been a great deal of effort exerted on· this matter to ·date, the Bush
task force's report does not include agreements on many of the most important issues. ·
Also, both some in Guam and in Congress question some of its positions.
So, I would want to review this matter before deciding on a course of action. I
recognize that this should be done on a priority basis and at a policy level, with some
basic understanding on the future relationship and more consultation with Congress.
Background:
Guam has been seeking a-package of changes in fed-eral policy that it Calls "commonwealth"
for 10 years. Its rhetoric talks about a closer relationship with the U.S.; but the package
really seeks· a degree of autonomy that, at best, is of que-stionable constitutionality. (The most
controversial provisions would force the federal government to drop -- or at least reconsider
-- policies to which the commonwealth objects and allow only the indigenous minority of the
COPY
�population to vote in a future status referendum.)
The package also includes many provisions that are more related to the island's economic
situation than they are to its political status. (Example: a section on telephone rates.)
.
.
An OTIA-led task force has tried, at Hill requests, to negotiate a more realistic package; but
it has only succeeded in reaching agreements in the least difficult areas ... and even some of
these agreements ar~ questionable. (Examples: provisions to admit temporary aliens for
permanent jobs and to permit federal land to be given to individuals without compensation.)
Further, OTIA has now given up on the effort and asked OMB to ·submit the partiallycompleted report to Congress for final resolution.
Congress is not anxious to tackle the issues, though, and Chairm.an Johnston would like the
. Executive Branch to tell Guam's leaders even more bluntly than it has that their bill is
unrealistic. (Akaka hasn't been involved in the issue but has a Guamanian staffer who may
get him to .appear to be more sympathetic to the Guamanian position.)
Guam's lawyers (who have included former Vice President Mondale) also want further talks;
but they hope that the new administration will be liberal thari the Bush task force. Republican
Governor Ada, who has two years remaining in his term, will push for new talks to begin
soon. Some 'insular Democrats, however, aren't willing to compromise on the issues,
possibly hoping that Ada-led compromises will be an issue in the '94 election.
The issue is-also .sensitive because of U.N. decolonization committee sympathy for the.
Guamanian position and because Jesse Jackson has recently taken up Guam's cause.
The President-Elect's commitment has been to work with Guam's leaders and the Congress
for a mutually-acceptable bill. The Committee should be satisfied with this position.
cc: Dan Sakura ·
f
�I
..
,
.
(
To:
MEMORANDUM
John Hart
Date:·
March 27,
From: Jeffrey Farrow
Re:
The President's Guam commonwealth Representative Commitment
In his recent m~eting with the Hispanic Caucus; the President
agreed to Guam's request that a presidential representative
negotiate the Guam commonwealth bill.
The commitment made sense and was consistent with the campaign
pledge to try to work a bill out with Gl:lam's leaders and the
congress. It also, however, raises a technical issue: Current law
gives the Secretary of the Interior authority over Guam relations
matters not within.the responsi~ility of othe~ agencies~
secretary Babbitt is also said to have agreed that a presidential
representative should handle Guam conu1tonwealth and, I think, all
others concerned will as well. ~till, the ~tatutory ~ituation
shbuld be considered in assigning a representative.
There_ are two real options: Amend the law or havethe
representative report through the Secretary.
Although amending the·law should not be difficult, Governor Ada,
a Republican who heads the island's commonwealth effort and has
to leav~ office after 1994, will probably be concerned that it
will delay the negotiations. (So~e Democra~s,.though, may not be
as anxidus for the effort to succeed before the next election.)
With regard to a representative.who reports through the
Secretary, it should be recognized that Guamanians are seeking a
presidential representative because of p~st failur~s of Interior
leadership on this matter. The territories office has lacked the
clout to effectively influence decisions on commonwealth issues
made by other agencies·-- or even ensure serious policy~level
consideration of the issues. Guamanians also feel that the office
lacks sensitivity arid creativity rega~ding their aspirations. And
they are not confident that its problems will change.
The problems were dramatized on the eve of the Inauguration when
the Bush administration (Justice and OMB) reneged on agreements
that a territories office-led interagency task force had reached
with Guam.
Guamanians (who weren't totally happy with the
agreements to begin with) were that convinced presidential-level
leadership is needed. So were some federal officials.
To be effective and generally acceptable to Gu~m, a pr~sidential
representative who reports through the Secretary should have a
clear mandate to lead agencies on commonwealth (and be separate
COPY
�.
,
•
' --
2
from the territories office.) The lack of the necessary authority
and interagency structure h~s resulted in the statutory
presidential representative f6r issues in relations with the
Northern Mariana Islands (who has traditionally had ties to
Interior) failing to get cooperation from ~gencies.
If.should also be tinderstood.that Gu~m commonwealth will be very
difficult to resolve.whatever structure_is put in place. Some
proposals raise constitutional questions, 6thers conflict with
national policies, and the bill .covers most issues imaginable.
Guam is insisting on provision~ that would block -~ or at least
force the u~s. tb reconsider -- the application of federal
policies to which the coinmonwealth obje~ts. (The Bush
administration's reversals of agreements that its own task force
entered into ~ith Guam has ~ade Guam even more. insistent on these
provisions~) It also wants to be able to limit voting in a future
status referendum to the in-digenous minority of its population.
Other controversial sections would grant the island immigration
authority, exempt it f~om u~s. shipping and customs requiremerits,
allow federal functions to bedelegated to the commonwealth, and
permit Defense land to be given to individual~ without
compens~~ion. There are provisions on taxes, foreign affairs, and
even telephone rates.
The matter requires sensitive handling because of the interest
that the U.N. de.colonization committee and Jesse Jackson have
expressed in Guam's position, the important military bases on the
island, Puerto Rico's upcoming decision between statehood and
com~onwealth, and a possible Ada challenge to Delegate.Underwood.
COPY
�· MEMORANDUM
To:
Secretary-designate Babbitt
Through: Stephanie Solien
From: Jeffrey Farrow, InsularAffairs Coordinator, Domestic Policy Staff
'Re:
Possible question on Guam commonwealth
· Senate staff say that a question may be asked regarding Guam commonwealth, probably by
. Senator Akaka.
The question:
The question could either be whether you will support the Bush administration's task force's.
report on the bill or whether you will support the people of Guam's position. A suggested
answer to either follows.
First, let me note that the President-Elect is committed to trying to end the 10 year
quest of the people of Guam .for commonwealth by working out
leaders and the Congress.
abill with their .
Let me also note that the bill that has been proposed is extraordinarily complica:ted,
encompassing a number of concerns ofthe territory, and that many of the issues are
difficult and fundamental.
Although there has been a· great deal of effort exerted on this matter to date, the Bush
task force's report does not include agreements on many of the most important issues.
Also, both. some in Guam and in Congress question some of its positions.
So, I would want to review this matter before deciding on a course of action. I
·recognize that this should be done on a priority basis and at a policy level, with some
basic understa1iding on the future relationship and more consultation with Congress ..
Background:
Guam has been seeking a package of changes in federal policy that it calls "commonwealth"
for 10 years. Its rhetoric talks about a closer relationship with the U.S.; but the package
· really seeks a degree of autonomy that, at best, is of questionable constitutionality. (The most
controversial provisions would force the federal government to drop -- or at least reconsider
-- policies to which the commonwealth objects and allow only the indigenous minority of the
COPY
�l
t~
2
population to vote in a future status referendum.)
.
.
.
. The package also includes many provisions that are more related to the island's economic
situation than they are to its political status. (Example: a section on telephone rates.)
An OTIA-led task force has tried, at Hill..requests, to negotiate a more realistic package; but
it has only succeeded in reaching agreements in the least difficult areas ... and· even some of
these agreements are questionable. (Examples: provisions to admit temporary aliens for
permanent jobs and to permit federal land to be given to individuals without compensation.)
Further, OTIA has now given up on the effort and asked OMB to submit the partiallyc~mpleted report to Congress for final resolution.
Congress is not anxious to tackle the issues, though, and Chairman Johnston would like the
Executive Branch to tell Guam's leaders even morebluntly than it has that their bill is
unrealistic. (Akaka hasn't been involved in the issue but has a Guamanian staffer who may
get him to appear to be more sympathetic to the Guamanian position.)
Guam's lawyers (who have included former Vice Prl(sident Mondale) also want further talks;
but they ·hope that the new administration will be liberal than the Bush task force. Republican
Governor Ada, who has two years remaining in his term, will push for new talks to begin
soon. Some insular Democrats, however; aren't willing to compromise on the issues,
·possibly hoping that Ada-led compromises will be an issue in the '94 election.
The issue is also sensitive because of U.N. decolonization committee sympathy for the
. Guamanian position and because Jesse Jackson has recently taken up Guam's cause.
The President~Elect's commitll)ent has been to work with Guam's leaders and. the Congress
-for a mutually-acceptable bill. The Committee should be satisfied with this position.
cc: Dan Sakura
COPY
�Withdrawal/Redaction Sheet
Clinton ·Library
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
RESTRICTION
001. draft
Questions for Secretary Bruce Babbitt from Congressman Regula:
Guam (Annotations) (4 pages)
04/02/1997
P5
002. draft
Questions for Secretary Bruce Babbitt from Congressman Regula:
Guam (Annotations) (4 pages)
04/02/1997
P5
Phoue No.'s
n.d.
107-
P6/b(6)
-OOJ.: meme
(Partial) (I
page)
l 0 &'
004. memo
For Erskine Bowles and Sylvia Mathews through Mickey Ibarra from
Fred DuVal and Jeffrey Farrow. Subject: Guam Commonwealth bill
plan (I page)
06/24/1997
P5
101
005. report
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
P5
IlV
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michaellmbroscio
OA/Box Numb.er: 12733
FOLDER TITLE:
Gray I- 1,999- GUAM Source OMB N/R [I]
2006-0 193-F
·ml30
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed·in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�I
I
Qu~tioru
fQr Secretary Bruce 6aboitt
(From Congressman Regula)
.
GUAM
\
cently both the .Wl'.:~hington rest and the J:Ya.ll Str®t Tournai ran articles
. g possible changes in U.S. policy toward Guam to campaign contributions to · ·
.Ptesi*ent Clinton's reelection. According to both .stories, until late last year
successive U.S.
Ad.ministra~ons
had been wary of the
propo~d
Guam
· ·
~om:l-tonweal.th Act, but in n~c~mb~r, 1996 Dep~t~ ~cretary John Ga.ramcnd.i
Cll'culfted an mternal report.~upportlng key prcTVIStons of the bill. Quot1J.1g from the
I:.W ~rticle: ''One senior U.S. official said 'the pplitical side' of her ag~ncy had
informed her that the administration's shift was llitked to campaign contributions .
. 'We Had always opposed giving Guam authority over its own immigration,' the
offic~l said. 'But wh~ that $600,000 wa!> pzid,th~ political side &-witched." Quoting
from fu~m's gov~nor; CarlGutierre?. the &'ost rep~~ ''only when we !ihowed
w·ashlngton that there were people who could 't'v'Iite a Sl,OOO check, a $5,000 check, a
$25PJb check cUd people begin to ~it up and ~e notice." This is a very disturbing
allegation if true and I am interested in your reaction. VVhat is the Department's
policy~with respect to the Guam Commonweolth Act an4 if it has changed,whyl
Answer: ·
trt cate
unn my or pre3entntion before the Sub
ee,
· Depu~ Secretary Garamendf, as the President's Special Re ·
·ve, Is ·
··
re!!porlsible for the development of Admini.strJ
cy 'Witb. regard to the Guam
Comm\onwealth Act. The agencies of th
putment of the Interior, along wifh
other Federal agencies and de
nts, participate in the dGvelopinent of
Adm!~sf.ra.tton policy a' ' ay t.ffect theft' particular intere5b and ·responsibilities.
As yo~r ~ubsumt"
uestions.on this topic appear to be directed at the evolution of
Adminis
n policy generally, I am attaching responses prepared by Deputy
.
·
··
is c:.a ad as
. · m!s Spacial llcpresentafuze. . :!l' ··,' . ~ ~.
\
~b·'·"He. Ptu~S ~ ~~7 .\l"\l-,.-:6r-1X-pu.\-j ~
It mus~ be emphasized that the AdminiJ:tr.:ation}is
in th; process of reviewing Jo ~"- qA-r"-"'<
and disrussing Gu~m Commonwealth. No official Adm.inistration position has
been rdpciled on any issue, with the exception of Guam excess lands, which is subject
..
·
to separate legislation (S. 210) currently being considered by the Senate Energy and tv~iu.J~
Naturaf Resources Committee. PolicieS pertaining to other .issues are still being
~~~
considered and 1lQ ~Aal decisioo h,a, l1"~ n~tt. ~ .suhj ec..A-' -f6 ;n fu--~l-tl c.:J ·
...c..
.urr
..
F'
Fi rpJ
I
~re ~been. nolshi£t in the Admlnist~tion'5 policy with respect
.
r. -- ~
~~r~n
.
~
lX...-
~d')'l;: ~ -
-
.1- . • ...,,
·~~
~
the Guam
·
\
· Commdnwealth Act. All actions Lake.tL£Y._,.~ D~,W¥tent with respect to Guam ..,. .c::.u~ vr .
Com_mqnwealth have been ~onslstentf~cfu~ecommendations'f~flect the ~
cononu.Btion and .fu.rther refinement of"P~cesJRat eegan even before 1his ·
Aa~l!!ation camE to office. As early as July 15, 1992, three y~ars bQforQ the
pub~d cimpAign donations: w~re made and more than three months before he .
WM oi•.f•d president, Bill Clinton ossured Guo.numian representatives ln a letter
I
to
•
COPY
�tt.zo2 zoa J911
O!.l/O.Ull7
DOI Bl"DGET(fOB)
-+H
~003
O.IB-Ii\'1'.
that"· will fulfill the commitment contained in our party's platform to support the
territo s right fo decide it£ future sb.tm; by wc:d:ing with Guam's la~d4'ri im.d ~
· U.S. c<fngra;s to enacl mutually accepta.bi~ co.mmonwwth legislation." During the
first year of his Administration, Pr~sident Clinton carried through on this
cornffiitment by concurring ln the designation of the Administration's first Special
Repre~entative for Guam Commonwealth, I. Mlchael Heyman (Noven1ber 1993 to
Febru ty1995). The Pres1dent later nan1ed as successor Special Representatives
Stanle Roth (August 1995 to December 1995) and Deputy Secretary John GnrnmGndi ·
Oanua y 1996 to prc:Bent).
· ·
, .
v 1
epu y ecre ary aramen ·· ·
recom{nendatiorU:i re~ardin~ high priority is~u~!i ~uch a~ m
consent,
1mmigfation and labor are consistent with pc>sitions d
oped prior to the
·
publiciZed -campaign contrib'Ution. by Guam and
ra in no way affech:ld by suclt
contril:~uticns. With respect to mutual co
, for examp[e, Deputy Secretary
Garam~ndi's recommendations are i
cal to the policy adopted by Special
Reprerntative Heyman and
stice Department in October 1994. With respect
to labor, neputy Secreta . aramer1di's recommendation is idet"ltlcal to the
agrea~ent reache
tween Guam and the pre-.;rious Administration in December
1991. ~
pect to immigrEttion, Deputy Secretary Gnreunendi'11 recommendation
is a ~ ·
ent of his predecessors' positio.T'lS and, LT'l important ways discussed .
~,1 more-rfltri-etiye than: previoug positiotls:
· _
Dlfwouldstill have ~oncerns that granting Guam of low-wage laborers from Asia
you
authority over irruni.gration
policy
result in the importation of thousands
· ·(2)
and
s~bject .them
to poor treatment including a ban on. unions such as has occuned
in the Northern Mariana Islands?
Why would you antldpate the situation would
be difffrent in Guam thart what has been experienced in nearby Saipan?
I
A-'1.5Wy:
vs.
J~f+
.
.
·
Gtl~uthority
If the
were to adopt a policy of granting
over intmig1"stlon that
is co11Slstent with Deputy Secretary Garamendi's recommendation, there wou1d be
stroni Jstatuto:y safeguards to ensure that the situation in .the .Commonwealth of the
:-Jorthe:rn Manana Islands (CNMI) would not be repeated m Gua.m. In order to ·
bD'tappredate the differen~, 1t is nec~s~~h'ast the Northam Marian-.s' current .
·
t-1~~ ~ {'h~ :~mtutok-y regime, with whtJ.t i:9 being p11~_.,for Guam. On the one hand,~ the
\S rt\~CNMI Jmently ha.~ complete and unfettered?local governmental control over its
~.... own ~grntion policies il.nd its own minimum wage policies. It has used thls
".;
1'\k tJ-5' , authonty to bring in thousands of temporary guest workers from ~A..sla, who ·now
:
_r'""'"\P\ j l+riVoutnmhber the local resident pop~on who do not have the ri~ and
and
·
Df'u) 1;1> ~J't -.v/ prot.ctl.ona of pQrmarwnt r(;roide:o:t . ~ln
trilst.-:;~ ~ ~posal for Cua.m is-tUt7U/J b0
J}e-•~~17-'-"" much Jtricter and ~developed · t1 view to~:18c;~~g the problem:s in the
- CN1v'fLj Rather than unrestricted local control, $a piir;eposctl for Guam ~ fof em: Wav {tf he
Svbje<.-t h M approP,riate transition period under close federal scrutiny during which adequate ·
·
. ··· safeguhds are developed and :instituted to protect i
· rants and to enforce local
• ......D
0~
~
~
...
~~ES/0~1'~
~
Lc{r
~
COPY
�.------:.-~~~~~~~~.----~~~~~~-~~~~~c-;-~~-~~~~~--~~~~~~----
~202
208 3911
DO!
Bu~GET(POB)
~~~ OlB-I~T.
-- - - - - - - -
~ 004
COPY
�.,.
I
Odi02/G1
~2:33
~005
.·
As documented by two interagency ta:!k force reporbl in the prc:viou"
. Admf1Ustration, one issued in 1989 and the second in Januaryl993, there 1s little ·
!cder~l support for the original pr0vislons of the Guam Cornmonweulth Draft Act.
':rhere1was little progres.~ made during commonwealth diScussions in~ previous
Admiiustrations, Whlil~ Guam took ±he po•iti.or'l that ther~?. could bQ no dGlvi:il.tion
from dhe originnl provisloru of the Draft Act. In f~ct, it w~~ thi! gulf behveen
Guam~s original proposal and federal agency concerns, that prompt¢ Congress in
1989 direct the executive branch to work out its differences wit~,. before
1~m
.
Cong_.¥ss w~uJd take any .further ac?on on Gua;n Commonwe~l 4f / this
_ _J
Admutw;tr4tJ.on, md undlir the ausptCQ~ of Sp~cial R.ep·resenta.~y
.eyman ~ e_o-th. CA-r10
Deputf Secretary Gnrnmendi, Cuo..m.'s representatives agre€d not to rnsist
the
oli~l provisions. ·Insre~d; the parties agreed to go fonv~d with a process by
whlchjthe two sides would seek agreement on principles first;. and then attempt to
draft specific language mutually agreeable to Guam and to the federal goverrunent
that ~culd implement t_h~se p7in~ples. Consequ~ntl_y, the G~an: Col!'..nio~wcalth
tb
:fn
propo,als that thQ Adm.irush'a.tion lS rurrQntly revwwmg are SJ.gniflcantly different
. 'fro~ the:: original Dre.ft Act provision.!.
·
·
-.·1.
the
.
.
.
. ~s discussed in
answer above, the current immigration and labor ~-f'+
· ,
~or Guam is qualitatively different and much stricter than the CNlvil's
·
~~~ Q::.C1St:ing unfattwrQd authority ov"r .inun.igtaticn"'' policy and minimum wage. In
·
.
othe-r words, the CNMI currently .enjoys much bro;d,Qr right' than the tightly
·
!
condl~oned and closely morutored propo~cl. that the Administration i~ coruidering
.
-
for Guam.
.
.
.
.
I
~~
~'
.
.
.~·
~ tne current'!Jroposals for ~u.am and the CNMI1 a:re not ine:on~ist:e~
'
Vl(;!Wof&~'\'~ vanta~ tbe~ae pnpo~pJ~ ate camplem~ntary
·
-of..
a ~cy!'ofcow.lr~e One·
Of the poliCy sc~ks to impose stricter (but not
compl~te) ft:!deral control over ~he C:t\TMI.. Th~ other ·~seeks to provide greater
(but not complete) local authonty to Guam. The goal of these policies ls.ta·seek
.
reason}ible middle ground between the existing extl'emes of totallocal.autonomy in
the C~1vU 51nd total federal.control in Guam .. Since each insular area has its own
uniquircwnstOnoos, the point at whioh federal concern& aro approl"'ia.t.ly
balanc agaimt local desire:! for self~vcrnment could ultfm:atelybe different for
eaeh i
d. 'While the end-result may t"'Ot be an identical policy for Guam and the
..
cmn) the feder~l policies for each insular area will nevertheless be closer, more
. consistent and more wiliorm than what they are now. .
.
I
...I
. .. .
.
.
.
.
.
..
.
'\:
:
COPY
�'
002
.Que!ltioru fqr Secretary Bru(;e :Babbitt·
(From Congressman Regula)
GUAM
centl.y both the WA=hingtQn rost and the ;wall Strt:t:t Journal ran articles
~g possible changes in U.S. policy toward Guam to campaign contributions to
Presi~ent Clinton's reelection. Accordillg to both stories~ until late Ja-st year
·
·succe~sive U.S. Administrations had been wary of the propo~d Guam
Coiilll10nweaUh Act, but in n~c~mber, 1996 Deputy Secret!Uj' Jo.lm G~ramcndi
·
c.irculR.ted an internal report ~upporting key promions of the bill. Quoting from the _
r_w ~rticle: ~~One senior U.S. official said 'the p<;Jlit:l.cal side' of her agency h.ad ·
(1)
informed her that the administration's shift was linked to campaign contributions.
'We ~ad always opposed giving Guam authority over its own inunigratiori/ the
officia,l said. 'But when that $600,000 was pa!d, th6) political $ide switched." Quoting
from fu~m'~ gov~rnor., Carl Gutierre:r. the Post rep~: ''0111y whe:t:J. we l5howed.
.
Waahington that there were people who could l\"iite a 61,000 check, a $.5,000 check, a
$25~ check d.td people begin to :-;it up and take notice." This is a very disturbmg .
allegation if true and I am interested in yolir reaction. What is the Department's
· policylwith respect !o the Guam Commonweill!h Act and if it has changed, why?
Answer:
tn cate
unn my or presentntion before the Sub
ee,
Depu~ Secretary Garamendl, as the President'S Special Re
. ·ve, fs
·
re~porlsible for the development of AdministrJ
· . cy. with regard to the Guam
Comm!onwealth Act. The agencies of th
parlment of the Interi~r~ along wifh
other F!deral agencies and de
nts, participate in the dGvelopment of
Admlrlllfration policy R • • ay Affed thefr particular intere:Jt" and·responsibilities.
As yo~r substimt"
uestions on this topic appear to be directed at the evolution of
Adminis
n policy ge11erall y, I am attaching responses prepared by Deputy
·
· · is c:a ad as
. · m!.s Spada! Rcpre»entatiue. . ~- ;· ;:;-., : ~~I/.-& ~~.s ~ J?.c.P;t.\~~··6.-:'D«-pu~j S
It mus~ be en1.phaslzed tha.t the Admini.~:tr~tion}i.s •~ in tlw process of revie~ Jo h'\ qtV"-"'tl
and discussing Gu~m Commonwealth. No official Administration position has
·
bCE::n rdac:hed on any issue, with the exception of Guam excess lands, which is subject
to sepa}ate legislation (S. 210) runentlybeing considered by tha Senate Energy and (VI'it.M.i~
Natura\ Resources Committee. Policies pertaining .to other .issues are still being
.1,., . . __
considered and nQ ~nal decisiGt~ ~' lal&l!O!l'l: n1oat!i•- ~ subJ ~ -1-t> ;~ t~~t.-11 ~ ~o-).~
.
.,
"'"' n;t~ .
. . ~F'Dt<:..- fti-p.J ~dn": ~ ~·
'There ~ been nolsil~ in the Admlnistnttion'5 policy with respect to the Guam
.
· ·
Conunonwealth Act. All. actions laken.Jlc)*-~ DW~ent with res.pect to Guam .,. c:::.v~ 1A1
Commdnwealtl'l have been consistentf~a,~recommendations'feflect the .RJ!i
..
c::ontinuktion and further refinement o£.ApWaes.'t9at b€ga:n: even before this
·
·
. As early as July 15, 199:2, three y~ars bQforQ the
public · d a.mpaign donations w~re made and more t:han thTee months before he
waA ele ed presidet\t, Bill Clinton assured Guturumian
esentatives In a letter
·
n..~SI Etv7:1.
q~
.
~(
I·
. .·
. .
·
t
(
COPY
�l.z: 32
04/0%/91
'C'%0Z Z08 3911
DOI
Bl~GET(FOBl
~~~ OIB-I~7.
li1J 003
that '' ·will fulfill the coliliilitment contained in our party's platform to support the
territo s right to decide Hs future statu' by we:d::ing with Guam'& laa~r• and tlw
U.S. c ngr~s to enact mutually acceptabla conunonw~th legislation." During the
first y a.r of his Administration, Pr~sident Clinb:m Cl!rried through on this .
co~tment by concll!rlng 1n the designation of the Administration's first Special
Repre entative for Guam Commonwealth, I. Michael Ileymm (Noven1ber 1993 to
Febru ty 1995). The President later named as successor S~cial Representatives
Stanle Roth (August 1995 to December 1995) and Deputy Socrctary John G<l.r<lmGndi ·
Ganua y 1996 to prc::.~ent).
·
·
ol
(2)
you still have concerns that granting Guam authority over .immigration .
· policy iv;ould result in the importation of thousands of. low-wage laborers from Asia
and s~bject them to poor treatment including a ban on unlo!13 such as has occw·red
in the f'JOrthern Mariana Islands? Why would you antictpate the situation would
be difffrent in Guam tha."l. what has been experienced in nearby Saipan? .
I
.
.
.
A..'1.,W&r:
.
f+
.
I
.
- Ji'.J~
.
.·
If the rp.s. were to adopt a policy of gr.aitting Gtlr authority over immigrL~tion that
is cons1stent with Deputy Secretary Garamendi's recommendation, there would be
stroni Jstatuto:y safeguards to ensure that the situation in .the Commonwealth of the
Northern Manana Islands (C~ would not be repeated m Guam. rn·order to
.
appre4ate the difference, it is n~c~ssa;;; tStrast the Northern Mariana.s' cuxrent.
t-1)\-c.. ~ {'h£..1C- ~:~mtutoty regimr:, with what: i8 being P'~~ for Guam. On the one hand,~ the
~ ~CNMI Jcurre~tly has complete and unfettered?'local governmental control over its
_;p~- ii'IVO~~.... own ~gration policies and its own minimum wage policies. It has used thls
~)-. ~ ~ ~ authority to bring in thousands of temporary guest workers .from Asia, who ·now
~lP\ j ~r11k>utrunhber the local resident popC*on who do not have the righti. and . ·
and
~Cit-
vr~
·
trast~~ ~ R;iPO~al £or Cua.n.'\ is-Wc:1UIJ b0
trlcter nnd ~developed · e view to~~c!a~~g the probleD:l!! in the"
we- .
Cl\.TlVfi. Rather than unrestricted local control, t-5e prlii'pesai forGuam w~tk feP rm: Wavltf he_ .
Svbje<.-t h M appro riate· transition period under close federal scrutiny during which adequate
·
. .. safegu rds are developed and instituted to prote~ im · ·
and to enforce local
l;r>
~:ct IV/ prot~6.oru of parm.U\Qnt re&iden.t . ~In
fJ. ,~;,~e.- much
.
. . .
.
¢
.
q
~
I
!
I
~
z
~
~.·
~
.
. .
.
.
('
COPY
�~202
.zos 3911
I>oi
BUDGET!POBJ
-+-+-+
on-n:T.
.la!004
COPY
�DOI BUDGET(POi)
~~~ 0~-INT.
fa~ 005
,_
;
.
.
A5 d~uinented
:·Adm4Ustr~tioni
by two interageney task force repom in the
previou~
one issued in 1989 and the second in January 1993, there 1s little ·
_!cder~l support for the original provisions of the Guam
Cornmonw~ulth
"rhere1was little· progr~c; made during commonwealth diScussions in
Drn-ft Act.
tru: previous
Administrations, whgn Gttcun took the po•ition that the-re could bg no dQvi:&tion ·
from bhe odgiwl provisions of the Draft Act. In fact, it w~! thi! gulf bet\veen
·
Guam~s original proposal and federal agency mncerns, that prompt~ Congress in
1989 direct .the executive branch to work out its differences wit~,. befor-e
· -1~m
.
tb
Cong.rbss would take any further action on Guam· Co.tru.ilonweal 4f. this
-1
Admi~tr.ation, :rnd un®r ·the auspiCQs; of S~cial Rep:resentati;v ... ~jrman1 ~ {?.o-fh. ~
Deputf Secretary Gnrnmendi, Cuo.m' s representatives agieed ~ot .to ~nsist on the . ·
ori~l proVisions. Iru;read, the parties agreed to go iorward with a process by
·
which the two sides would seek agreement on principles first,. and then attempt to
draft ped_fic language mutually agreeable to Guam and to the federal goverrunent
that auld .implement those principles. Consequently, the Guam Commonwealth
propo al!S that thQ Adminish'~tion is curr~mtly revWwing are significantly diHerent
from e original Dre.ft Act provision!.·
·
~
I
.
. .
.
~s discussed in the answer above, the current imm.igration ~ labor ~-t-+
..
prop~or Guam is q\l~tatively .diffe,rent .and much stride~ ~an the C:N'"MI's
~~1;: Q::.C1Sti.1)3 unfattwred authorxty ov~~ mgtatJOT'I policy and rrurumum wage. In
1
G_ .
·
oth~rf ords, the CNMI currently crijoys much broader righb~ than the tightly ·
!·
.
j
condi oned' and clmsely monitored
· fo:r G Iam.
.
~~~'
~
~
.
.
.
.
...,
propo~al that the Admini:stration il5 con~idering
.
.
.
.
. . . •
~
tne currentrproposals for <.;;uam and tfie CNMI1 a:re net inc:on~5iste~
vil:'!w~~~"\~vantas:J}~-1 t:be'" P;'!PO~Pl~ axe.compl~m~ntary~-Ofr
tt
·
·
• One-~ the policy seeks to rmpose strictar (but not
of
· corupl te) federal control over the CNMI. Th~ other pn B seeks to proyidc greater
(but n ·t complete) local authority to Guam. The goal of these polictes 1s to seek
reaso~le middle ground beh'leen the existing extxemes of total local autonomy in
the CN'MI and total federal control in Guam .. Since each insular area has its own
uniquJ cirC'Ull"'.5taru:e9, the point at which fQderal concern& arQ a.ppiopriataly
.
balai-lckl aga~t local desire~ for self·govcrrunent could ultimately be di£ferent for
eact\ i~d. While the end-result may nat be an identical policy for Guam and the CNMI.J.I the federAl policies for each insular area will nevetfheless be closer, more
,
consisJnt and more uniform than what they ar~ now.
I
COPY
�.~
.'
The comments that OMB obtains, as well as the Congressional comments that we were already
going to solicit, may also suggest that some basic decisions should be made here (as Garamendi
h:idinitially rcquc.sted) an.d.given to Garn,.mendi as guidance for revising the draft. We believe
· . that this would be preferable to White House ·staff conductiri.g the many meetings that would be
required. Tnis app::-o~~h would e:!epose the need for substantive changes to both Garamendi and
Guam more than has already oceurred, be easier for Garamendi to accept, and distance the White
House from the matter. . ·
In concluding, we note that Garamendi would prefer that action be deferred until after the
hearing to give Guam a greater opportwrity to express its desire for the draft bill's provisions.
We do not t1ink that this is the'best option, however; The White _House is already suppo~ to be
working out the problems with the draft, and the Counsel's offiCe, OMB, and agencies are·
anxious for this to begin. It could be difficult to explain if it does not.
Some material that may be helpful in considering the issue is attached.
._ _Concur
_ D o Not Concur
--Let's Diseuss Further
2
COPY
�DRAFT GVAM COMMONWEALtH BILu
COMMENTS ON SELECTED NEW POLICY PROPOSALS
Ccntral~.Froyisions
·.
·•
Agreement ·that· no provision of the law. may be ch.an.ged
without>, GuaJn 1 a approval.
This idea is the disputed heart of the commonwealth concept in
PUerto Rico as well as Guam. It is intended to limit Congress'
Constitutional power~ to make policy regardipg.territories (in
local as well as national matters) and override the principle
that one Congress cannot relinquish the power of .its successors
(in· territorie& unless statehood or sovereignty is granted) . ·
While a commitment in thisregard could be made as a mat.t~r of
solemn policy, it probably cannot be legally·binding (although·
the courts might well sidestep the question as 11 po1iticaln).
The provision includes a qualifier that the agreement is made to
the extent constitutionally permissible but it does not overcome
the problema with the provision.
Justice agreed to it ori the understanding that the .
limitation on Congress• constitutional power .would not be
legally binding but Interior and Guam now want to assert
that it is meant to be .... as the language suggests.
A)
qualifier would make the provision even more ·
objectionable to Puerto Rico statehoodera who ~·would see it
as enabling a concept that they believe to be:-'
unconstitutional to be approved and. misleadingly suggest
that an effective insulation from Federal territories
governing power is possible.·
· . E) . The
CUrrent law does not provide even a commitment for Puerto Rico
but some Puerto Rico Commonwealth supporters cla..im that there is
an obligation in this regard created by the mutual approval of
the arrangement. The Northern Mariana Islands Commonwealth
Covenant includes purportedly binding language but ·limits it to
"fundamental 111 matters: local·authority; u.s. citizenship;
application of the Constit:.ution; and limiting the right to own
.land to persons of local descent {upheld as being essential to
the arrangement and justified by the islands• non-U.S. past).
0
-
House Chairman Young and Senate Committee staff suggest that the
in the draft bill has no chance· of passage . .And. even a
policy commitment limited to key provisions would be hard for
Puerto Rico statehooders to accept. It would be hard not to agree
to such a commitment, though, in light of the Marianas precedent
. . . and since it can· be done .
~
provisio~
COPY
�.
'
2
.
'
~.
•
Invitation for a statu~ plebiscite excluding U.S. citizens
descended fr~ re~idents as of 1898.
not
The potential opponents include. citizens among the half of'the
population. that would not qualify. Although'A) many of them agree
that the original Guamanians never exercis~d "'self-determination~
and B) the ~ote would not be binding, sorne.would feel that they
- have an equal right to vote on the future status of their home
island~
A provision such as this is likely to be cited as precedent by
PUerto Rican independence and commonwealth .advocates who
·
controversially want status votes to l.) 'include residents of the
u.s. descended from residents of the .islands as of ·ehe date of
acquisition (there are 2.7+ million) and 2) exclude citi:{ens not
descended from residents as of ·the date of acquisition.:,. I:nterior/Qt~er
•
Agency Stalemate Proyisiops
Commission with Interior as chair, Defense, J"ustice, the
·Governor, and the Delegate · to congress empowered to
A)
any
modify the application of
regulation to Guam and
B) make recommendations on modifying laws which
Congress would .have to con&ider on an expedited basis.
Most agencies -- which would not be represented --\Would,
be opposed to being excluded from decision·making
in matters within their jurisdiction. The House and Senate are
unlikely to agree to have their agenda set by such a body.
~d&rstandably,
.
'
'
The provision would give.Interior and Defense, at least,
unprecedented roles in.policies of. other agenci~s and in Guam.
(CUrrent law specifically excludes matters within other agencies'
j ur '-sdict.ion from Interior' s miss ion regarding Guam. )
T is proposal stems, in part, from a more modest proposal by
ue:rto Rico 1.s commonweal thers . for Federal review o-f laws and regs ·
t the islands' request and from an advisory commission in the
of the Northern Marianas Commonwealth Covenant.
Autho~ization
for Interior/Commerce to
!!'egulation to benefit U.S.-Gu&m or
u.s.
~ive
any law or
through Guam trade.
because of
COPY
�3
•
Authorization to enter into agre~nts ass.ociated with the
World Trade Organization and,. poasibly, other organizations.·.
Puerto Rico common\1/ealthand independence.supporters have
proposed· similar authority. Federal agencies contend that the
u.s. must apeak with one voice on international trade matters .
.4
•
Expedited Cuatom. procesaing of ~products.
· · Other areas/interests might be intereat'ed in a similar provision ..
•
No·automatic trade benefits for any other tr.s. ialand area..
This was included because current law provides that North~rn
·Marianas products will be treated eq>..1ally with products of Guam.
•·
Con·.trol over immigration.
The Northern Marianas Covenant did not extend U.S. immigration
·law ·to those formerly non-u.S. islands but gave the U.s. the
right to do so. Justice and Labor oppose transferring authority
to Guam because of the way that the Marianas has used its
exemption. Rep. George Miller is concerned about this provision.
The Marianas sought exemption ostensibly to enact stricter limits
on immigrants and, thereby, prevent itself from being overrun by
aliens. But it has developed a system which so liberally admits
temporary workers that a majority of the population·.: are nonresident workers. These individuals have only limited rights and
influence in the community. There has been national attention to
spectacular cases of employer·abuse of workers in·the Marianas.
Some•House Members have considered extending i!Tlll'iigration control
to the Marianas.·· Puerto Rico commonwealth supporters would warit·
.immigration authority. The Virgin Islands has also sought it.
•
Temporary workers•'viaa.
There might be concern because of the Marianas experience and
s::i:nce the workers would be 'temporary' for up to four years.
-
~
Authority to deny program benefits to aliens for five years.
This would be inconsistent with
policy on a current, nationally
stance
COPY
�•
l:nterior/Defe.u&e/Guam joint recommendations on transferring
military land on Guam to the Commonwsalth.
·
Defense may be opposed since it_now makes its own decisions on
what· _land it needs. A process (excluding Interior) would be· of
significant interest in Puerto Rico because of the islands'
dispute witij the Navy over the Navy's need for land it owns.
•
Authorization for the Commonwealth to tr~afer land obtained
from the .P'ederal Government to private use.
GSA, OMB, and Congress may be concerned about authorizing private
gain from what is now a public resource.
-
w
•
Special environmental •tanda.rds.
EPA is opposed, fearing a precedent for region-specific polic{es.
Rep. Miller is also concerned.·
Targeted exemptions from Clean Air and Clean Water Act
requirements have been enacted for Guam and other insular areas~
Puerto Rico commonwealthers have sought a similar blanket policy
using a similar l;ationale to the one used. by Guam.
· ·
.
•
Priority for hazardous ·waste site clean-ups.
Defense opposes since it is involved. Many other areas also want
clean-ups funded.
',
Other Interior Reoommenda.tions
e
Authority to adopt •reasonable• voting requir~ents.
'
This would be controversial if used as authorization fora longer
residency than the courts have sanctioned -- as some Guam
officials have wanted {and it would be superfluous if not} . New
residents would be concerned about being disenfranchised.
•
Authorization for delegating Federal agency functions to
Commonwealth officials.
This would raise concerns about
requirements and accountability
Republican Congress.is unlikely
COPY
�5
Guam taxation of U.s. lllid foreign income of resid~nts.
•
Treasury objects to this applying to Federal employees because of
the precedent it would se~ for ~11 Federal workers outside the
u.s.
•
.
.+
Approval. to rebate taxes to individual• and on
u.s.
income.
· The Marianas Covenant includes authority to rebate taxes on
Marianas income only. Treasury would object to rebating taxes on
U.S. income. Laws have been enacted to discourage rebates· to
.
indi vidua).. s {vs •_ _£:~~~~e~J. _in __the_ Marianas. because --the- rebates·-· -- -· - ·~-- ------ -hav~-effectively negated Covenant· taxation requirements.
·
•
Inclusion. in tax treaties.
·Treasury would object to automatic inclusion since the island is
foreign for tax.purposes and would be able to enact laws at odds
with u.s. tax code provisions.
•
Access to or through mdlitary property.
Objectives have included commercial development of landlocked .
private· property and us·e of military recreation areas.
•
Submerged lands between three a.nd nine ~les ~:-offshore •
'
.
•.•
Puerto Rico has this due to a 1980 law-justified by Spanish law.
·rt has been an unfulfilled objective of some Gulf Coast States.
Othe;: Proposala Inter;!,or Wi.nte to Pursue ·
•
Congressiona.l findings that Guam does not have equal
participation in Federal policy making and has a compelling
~terest in protecting the island fr~ ina.ppropria.te laws.
This would be of equal application to an~ interest in other
insular areas and be of concern to Puerto Rico statehooders.
-
•
Congress relinquish~ its Constitutional power to govern in
territoriea to tho extent px-ov.ided in the legislation.
COPY
�6
:
•
Agreement· to consult the Commonw.alth to an appropriate
extent before international negotiations which affect Guam.
·state and Justice oppose as a limitation on the President's
foreign policy power .. Other insular areas also want this .
. .
..
.f
•
Requirement to consult the Commonwealth prior to significant
changes in .. military preaenoe.
·
Defense opposes this as unworkable.
•
AUthorization :for the Commonwealth to receive aaaistanoe.
from ..foreign governments.
_
State has opposed Northern Marianas proposals in this regard,
. ~anting the U.S. to rema~n an aid donor rather than a recipient.
•
" Authorization to enter into international agreements not
inconaistent with u.s~ policy and not binding on the u.s ..
State is opposed to the
international matters.
•
u.S. speaking wi t.h more than one voice on
Commonwealth replacement of Pederal labor laws.
Labor has strong concerns based on the Northern Matianas
experience. Rep. Miller does as well.
'
•
Joint recomn~.e.ndations on whether the requirement to uae u.s .
ve&Qels for·UoSo 8hipping should continue to apply using the
sole criteria of ~e i&lanc1' s eooncmic int~·rest.
..
.
':('he UoS. vessels shipping requirement does not apply to the
adjacent Northern Mariana Islands, A,merican Samoa, or the Virgin
Islands but does apply to Puerto Rico (which is adjacent to the
V.I.). Considered by many islanders to be a major burden on
consumer costs, it is as big an issue in Puerto Rico as Guam.
Reps. Gutierrez, Velazquez, and Serrano have sponsored a Puerto
Rico exemption bill.
·
and unions are
strongly oppose :
COPY
�7
•
Examption from the requirament to use U.S.-built vessels in.
the waters near Gu~.
.
Transportation opposes this p·rovision ·which weuld amend an
exemption·limited by vessel size. The limitation was.insisted
upon by the House Merchant Marine cOmmitte~.: This might also be
of interest -'in Puerto Rico.
·
•
Exclusive or concurrent authority 'to manage IUld obtain
revenue from the u. B.
Kxolu.ive Bcon=Uc Zone &round Guam •
I"
.
Other insular areas and California have expressed- interest in· the
EE.Z. Justice objects to this provision~
•
ssr
and any oth~r . Federal progra.ma not now cue tended.
This has been one of the primary objectives of Puerto Rico's
com.monwealthers. SSI has also been sought by the Virgin Islands
and American Samoa. SSA views the coat of extending ssr to all of
the areas as too great. The Administration has proposed greaterbut partial -- funding in Puerto Rico.
•
Joint recommendations on levels of program fundihg.
Puerto Rico and other insular areas would want similar input.
•
· AuthOrization for any funds necesaary for infi:-astructure
projects, technical programs, and cooperative ventur•a.
Puerto Rico, the Virgin Islands, and. the Northern M&riana Islands
would want a similar authorization. One exists for American Samoa
but the House authorizing committee has questioned it. OMB would
probably oppose this provision for budgetary reasons.
~
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
ANDTYP.E
001. memo
SUBJECTffiTLE
DATE
RESTRICTION
I II
~Lkr-c-P*
To Erskine Bowles and Sylvia Mathews through Mickey Ibarra from
Fred DuVal and Jeffrey Farrow. Subject: Guam Commonwealth bill
plan (I page)
06/24/1997
002. memo
ToT. J. Glauthier from E. Irene James. Subject: Guam lands disposal
and Guam Commonwealth update (2 pages)
05/0711997
P5
"tl03. memo
Phone No.'s (Partial) (I page)
nd
Pe/b(6)
004. letter
Phone No. (Partial) (I page)
03/20/1997
P61b(e)
005. memo
To Ronald M. Cogswell from E. Irene James. Subject: Guam
Commonwealth Q's and A's (I page)
04/02/1997
P5
l/3
006. memo
To T.J. Glauthier from E. Irene James. Subject: Politically sensitive
Guam Commonwealth Q's & A's (2 pages)
04/01/1997
P5
II Y-
P5
ID9
II~
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael lmbroscio
OA/Box Number:
12733
FOLDER TITLE:
Gray I - I ,999 - GUAM Source OMB N/R [2]
2006-0 193-F
'ml31
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)]
Freedom of Information Act- ]5 U.S.C. 552(b)l
National Security Classified Information ](a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information ](a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
b(l) National security classified information l(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIAI
b(J) Release would violate a Federal statute ](b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information ](b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes ](b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions ](b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIAI
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Documen.t will be reviewed upon request.
�.------------------------------
~-~---~-~
·.;
From:
E.. lrene James on 05/07/9711:02:56 AM
Record Type:
To:
· Record
T J. Glauthier/OMB/EOP
See the distribution list at the bottom of this message
cc:
Subject: Guam Lands Disposal and .Guam Commonwealth Update .
Guam Lands
S. 210, the Omnibus Territories Bill scheduled for mark-up on Weds., 5/14, contains a provision to
transfer remaining excess bOD land to Guam. Federal agencies (DOD, DOl, GSA, DOJ) have been
working this issue on a separate track from the larger Guam Commonwealth proposal in hopes of
getting a satisfactory .provision. included in S. 2.1 0. The only questions that await resolution are 1)
constitutionality. of transferring lands to a Chamorro land trust · (which is· defined as a public purpose·
yet limits benefits'": to a particular group of ·people) and 2) whether to transfer at Fair Market Value
. (FMV) lands intended for non-public use (public-use lands would be transferred at no cost to Guam).
Re . the Chamorro land trust, either (1) new DOD-drafted alternative language, currently being
circulated, will satisfy DOJ and others' concerns; or, (2) the Chamorro land trust will be excluded
froni the definition of "public purpose"..
.
·
·
The FMV issue is more troublesome. DOD, whose goal is to simply cover their costs, deviseq a
"modified" formula that would recov~r their original cost to buy the land, add interest based on
T~bond returns, and add clean-up costs incurred by the U.S.
However, the WH Counsel's office
(Bill Marshall), WHIGA (Marsha Hale per Jeff Farrow). and DOJ Associate Deputy AG David Ogden
clearly favor Guam paying current FMV. DOD will likely be neutral about this position, but DOl is
likely to complain that the Federal government is not being flexible. However, given the recent bad
press, the WH policy makers are unlikely to agree to any scheme with even the slightest ·chance of
a potential windfall (e.g. difference between DOD formula and actual FMV should land be resold).
NRD and LRD recommend agreement with the WH/DOJ on FMV.
Guam Commonwealth
You will recall that the 2/4 Emerson meeting was to set up -an expedited process, yet nothing has
occurred three_ months later. The applicability of Federal laws and Labor/Immigration control remain ·
as "deal-breaker" issues, along with a host of smaller (some possibly controversial) provisions.
Fahow (through LRD) reports that Don Young told Guam that Commonwealth isn't going
anywhere-- but he will give them a hearing (possibly in July) once the Puerto Rico status bill is
reported. In the meantime, Fred Duval, Deputy Chief of Protocol at State, is expected to replace .
Emerson and re-activate the review process.
Farrow reports that last Saturday Sylvia Mathews asked him "how we are progressing" on Guam
Commonwealth. He told her further action is on hold pending Duval's arrival. Given past
disagreements, achieving closure before July will likely be problematic.
Message Copied To:
COPY
�f.
. Alecia Ward/OMB/EOP
Ronald M. Cogsweii/OMB/EOP
Janet E. lrwin/OMB/EOP
James C. Murr/OMB/EOP
Ronald K. Peterson/OMB/EOP
Anna M. Briatico/OMB/EOP
COPY
�~.:. . ~.r·=-~-~---~-~-~.:.: . . . . . . . . . . . . . . . . . . . . . . . . . . .\.:. . . .1...................... . z~~-~!.~.?. .?.?..:.~--~·:·~-~---·····
Record Type:
To:
Record
Ronald M. Cogsweii/OMB/EOP, James C. Murr/OMB/EOP
cc:
Janet E. lrwin/OMB/EOP, Ronald K. Peterscin/OMB/EOP, Anna M. Briatico/OMB/EOP
Subject:· Guam Commonwealth Q's and A's
Just wanted to let you know I got a detailed voice-mail message (which I can forward to anyone
interested} from John Emerson basically ok'ing clearance of the O's and A's with. some conditions
(make less defensive, delete section on mutual consent, downplay Garamendi role, emphasize that
agencies are still working out pesitiens}. He did not say whether he had discussed this with TJ.
Assuming these changes are made, I would appreciate your guidance on how you want to handle
clearance. Thanks.
COPY
�Record Type:
Record
To:
E. Irene James/OMB/EOP
cc:
See the distribution list at the bottom of this message
. bee:
Subject: Re: Politically Sensitive Guam Commonwealth O&A's
1J
Note to all readers and to be more precise. First, LR advises that the questions concerning the
Guam Commonwealth process are not subject to A-19 clearance and are, therefore, inappropriate
for clearance through the LR process. Secon.d, LR recommends that the RMO check with GC
(Damus) before taking any clearance actions on this item... Thanks.
E. Irene James
Record Type:
To:
Record
T J. Glauthier/OMB/EOP
See the distribution list at the bottorn of this message
cc:.
Subject: Politically Sensitive Guam Commonwealth Q&A's
DOl has drafted responses to questions (which we will send to you) from Representative Regula
regarding the Guam Commonwealth process. LRD (Murr, Peterson) advise that career staff not
clear or be involved in editing these Q's and A's because of their potential partisan political
sensitivity; and because DOl goes into detail regarding positions that are identified as Admin. policy, .
when in fact, no Admin. positions have been formally cleared (the approved language on "excess"
lands is in the final clearance stage).
NRD, however, is concerned that not clearing them or even modifying them could still be viewed
· suspiciously.
Then:ifore, we (1 )recommend allowing DOl to submit the responses as drafted but clearly indicating
that they reflect DOl's and not the Administration's position; and (2) your consulting with John
Emerson or his successor on territorial afffairs or intergovernmental affairs on how to proceed (John
also has a copy of theO's and A's). Please advise if you agree with handling the responses this
way or would like them handled differently.
· Message Copied To:
COPY
�Ronald M. Cogsweii/OMB/EOP
Alecia Ward/OMB/EOP
Janet E. lrwin/OMB/EOP
Gary C. Reisner/OMB/EOP
James C. Murr/OMB/EOP
. Ronald K. Peterson/OMB/EOP
Anna M. Briatico/OMB/EOP
Message Copied To:
T J. Glauthier/OMB/EOP
Ronald M. Cogsweii/OMB/EOP
Alecia Ward/OMB/EOP
Janet E. lrwin/OMB/EOP
· Gary C. Reisner/OMB/EOP
Ronald K. Peterson/OMB/EOP
Anna M. Briatico/OMB/EOP
Robert G. Damus/OMB/EOP
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. report
SUBJECTffiTLE
DATE
RESTRICTION
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
P5
To Jill Gibbons from Velma Taylor. Subject: H.R. 1056, "Guam
Commenwealth Act" (2 pages)
·
08/23/1995
P5
003. memo
To T.J. Glauthier from James J. Jukes. Subject: Interior appeal rea
Justice letter on HR 1056 (Guam) (2 pages)
08/09/1995
P5
004. memo
To E. Irene James from Thomas C. Jensen. Subject: Guam meeting
request (2 pages)
06/21/1996
115
P5
.002. memo
I I~
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michaellmbroscio
OA/Box Number:
12733
FOLDER TITLE:
Gray- I- 1,999- GUAM Source OMB N/R [3]
2006-0 193-F
'm576
RESTRICTION CODES
Act~
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information
PI
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information i(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells i(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute i(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information i(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy i(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
JS U.S.C. 552(b)J
�DRAFT GUAM COMMONWEAI,TB BILT,.
;.( . " )
··"'·
l ~ .. ~ ..
1.
~
Central Proyisions
·.
•
Agreement ·that no provision of the law. may be changed.
withou~ Guam• s ·approval.
This idea is the disputed heart of the Commonwealth concept in
PUerto Rico as well as Guam. It is intended to limit Congress'
Constitutional power to make policy regarding .territories (in
local as well as national matters) and override the principle
that one Congress cannot relinquish the power of its successors
(in territories unless statehood or s·overeignty is granted) .
~
-
While a commitment in this regard co~ld be made as a matter of
solemn policy, it probably cannot be legally binding (although
the courts might well sidestep the question as "political").
The provision includes· a qualifier that the agreement is made to
the extent constitutionally permissible but it does not overcome
the problems with the provision.
A} Justice agreed to it on the understanding that the
limitation on Congress' Constitutional power would not be
legally binding but Interior and Guam now want to assert
that it is meant to be . . . as the language suggests ..
B) The qualifier would make the provision even more
objectionable to Puerto Rico statehoodera who ::would see it
as enabling a concept that· they believe to ~e ·:
Unconstitutional to be approved and misleadingly suggest ·
that an effective insulation from Federal territories
governing power is possible.
.
.
CUrrent law does not provide even a commitment for Puerto Rico
but some Puerto Rico Commonwealth supporters cla'.im that there is
. an obligation in this regard created by the.mutual approval of
the arrangement. The Northern Mariana Islands Commonwealth
Covenant includes purportedly binding language but limits it to
"fundamental" matters: local authority; u.s. citizenship;
application of the Constitution; and limiting the right to own
·land to persons of local descent (upheld as being essential to
the arrangement and justified by the islands' non-u.S. past).
House Chairman Young and. Senate Committee staff suggest that the
-- provision in the draft bill has no chance of passage. And even a.
policy commitment limited to key provisions would be hard for
Puerto Rico statehooders to accept.. It would be hard not to agree
to such a commitment, though,' in light of the Marianas precedent
~·~and since it can be done;
·
COPY
�...
2
•
Invitation for a •tatus plebiscite excluding
not descended fr~ residents as of 1898.
u.s.
citizens
The potential opponents include. citizens among the half of the
population that would not qualify. Although A) ma.IlY of them agree
that the original Guamanians never exercis~d 'aelf-determination~
and B) the ~ote would not be binding, some.would feel that they
.have an equal right to vote on the future status of their home
island.
A provision such as this is likely to be cited as precedent by ·
~erto Rican independence and commonwealth advocates who
controversially want status votes to 1.) ·include residents of the
U.S. descended from residents of the ··islands as of the date of
acquisitiop (there are 2.7+ million) and 2) exclude citi~ens not
descended from residents as o! the date of acquisition.~ -
:Interior/Other Agency Stalemate Provisions
•
·Commiss~on
·Governor,
with..Interior as chair, Defense, J"ustice, the
the Delegate to Congress empowered to
and
A) modify the application of any regulation to Guam and
B) make recotal:llendatiQns on modifying laWs which
Congress would have.to COllllide:r on an expedited basis.
Most agencies -- which would not be represented --~would,
understandably, be opposed to being excluded from decision-making
in matters within their jurisdiction. The House and Senate are
unlikely to agree to have their agenda set by such a body~
..
The· provision would give Interior and Defense, at least,
unprecedented roles in policies of. other agenci~s and in Guam.
(CUrrent law specifically excludes matters within other agencies'
jurisdiction from Interior's mission regarding Guam .. )
This proposal stems, in part, from a more modest proposal by
Puerto Rico's commonwealthers for Federal review of laws and regs
at the islands' request and from an advisory commission in the
case of the Northern Marianas. Commonwealth Covenant.
•
Authorization for Interior/Commerce to ~aive any law or
regulation to benefit U.S.-Guam or U.S. through Guam trade.
There are too rr~ny
the breadth of the
=
because of
COPY
�3
•
Authorization to enter into agre~ents associated with the
World Trade Organization and,· poss.ibly, other organizations.·.
Puerto Rico commonwealth and independence supporters have
proposed simila~ authority. Fedel:al ageneies contend· that the
u.s. must •peak with one voice on international trade matters .
••
•
·Expedited Cu•toms proaesaing of
~
products.
Other areas/interests might be interested in a similar provision.
•
No automatic trade benefits forany other U.S. iala..nd area.
This was included because current law provides that Northern
·Marianas products will be treated equally with products of Guam. ·
•
Control over imm.igration ..
The Northern Marianas Covenant did not extend U.S. immigration
law to those formerly non-u.s. islands but .gave the u.s. the
right to do so. Justice and Labor oppose transferring authority
to Guam because of the way that the Marianas has used its
exemption. Rep. George Miller is. concerned about- this provision.
The Marianas sought exemption ostensibly to enact stricter limits
on immigrants and, thereby, prevent itself from being overrun by
ali~ns. But it has developed asystem which so liberally admits
temporary workers that a majority of the population·; are nonresident workers. These individuals have only limited rights and
influence in the community. +here has been national attention to
spectacular cases of employer abuse of ·workers in the Marianas.
some House ·Members have considered extending imrru,i.gration control
to the Marianas. Pue~to Rico commonwealth supporters would want
~mmigration authority. The Virgin Islands has also sought i~.
•
Temporary workers' viaa ..
There might be concern because of the Marianas experience and
since the workers would be "'temporary' for up to four years.
•
Authority to deny
progr~
benefits tc aliens
This would be inconsistent with
policy on a current, nationally
for.fi~e
years •
stance
COPY
�4
•
rnterior/Defense/Guam joint recommendations on transferring
mili tar:y land on Guam to tbe Commonwealth.
Defense may be opposed since it.now makes its own decisions on
what land it needs. A process (excluding Interior) would be·of
significant interest in PUerto. Rico because ·of the islands •
dispute with the Navy over the Nary's need for land it owns.
•
Authorization for the Commonwealth to tr~sfer land obtained
from the Federal Gove~t to private use.
GSA, OMB, and· Congress may be concerned about authorizing private··
·gain ~rom what is now a public resource.
•
Specia1 environmental standards.
EPA is opposed, fearing a precedent for region-:specific policies ..
Rep. Miller is also concerned.
Targeted exemptions from Clean Air and Clean Water Act
requirements have been enacted for Guam and other insular areas.
Puerto Rico commonwealthers ha:ve sought a similar blanket policy
using a similar rationale to the one used by Guam.
•
Priority for hazardoues waste site clean-ups.
Defense opposes since it is involved. Many other areas also want
clean-ups funded.
·
Other Interior Reoommenda.tiOns
•
Authority to adopt •reasonable" voting requirements.
This would be controversial if used as authorization for. a longer
residency than the courts have sanctioned -- as some Guam
officials have wanted (and it would be superfluous if not) . New
residents would be concerned about being disenfranchised.
•
Authorization for delegating Federal aganoy funotions to
Commonwealth officials.
This would raise concerns about
requirements and accountability
Republican Congress is unlikely
.
COPY
�5
•
Guam taxation· of 0' .s. and foreign income of reaide.nts.
Treasury objects to this applying to Federal employees because of
the precedent it would set for all Federal workers outside the
u.s.
•
.+
Approval. to rebate taxes to indiv:iduala and on 'C'.S. income.
The Marianas Covenant incl~des authority to rebate taxes on
Marianas income only. Treasury would object to rebating taxes on
u.s. income. Laws have been enacted.to discourage rebates.to
individuals (vs. companies) in the Marianas because the rebates
have eff_ecti vely negated Covenant taxation requirements.
•
Inclusion in tax
treati~s.
Treasury would object to automatic inclusion since the island is
foreign for tax.purposes and would be able to enact laws at odds
with u.S. · tax code provisions . ·
•
Access ·to or through m.ili tary property.
Objectives have included commercial development of landlocked
private property and. use of military recreation areas.
•
Submerged lacds between three and nine miles~~ffshore.
Puerto Rico has this due to a 1980 law justified by Spanish law.
It has been an unfulfilled objective of some Gulf Coast States.
Other Proposals :tnterior Wants to PurBuo
•
Congressional findings that Guam does not have equal
participation in Federal policy making and has a compelling
interest in protecting the island from inappropriate laws .
. This would be of equal application to and interest in other
insular areas and be of concern to Puerto Rico statehooders.
~
Congress relinqui•hing its Constitutional powe~ to govern in
territoriel!l to the extent p~ovided in the legislation~
~
Would have tremendous appeal to Puerto Ri~-eemm
constitutionally questionable, and have~ \
Q
( \ls
()
COPY
�6
•
Agreem.e.nt to consult. the Commonwealth to a.n appropriate
extent before international negotiations which affect Guam.
State and·Justice oppose as a limitation on the President's
foreign policy power. Other insular areas also want this.
•\
:f
•
Requirement to consult the Commonwealth prior to significant.
changes in military pre•ence.
Defense opposes this as unworkable.
•
Authorization for the Commonwealth to receive assistance
from,foreign governments.
_
State has opposed Northern Marianas proposals in this regard,
wanting the u.s. to remain an aid donor rather than a recipient.
•
Authorization to enter into international agreements not
inoonsistentwith u.s. policy and.not binding on the u.s.
State is opposed to the.U.S. speaking with more than one voice on
international .matters.
•
Commonwealth replacement of Pederal labor laws.
Labor has strong concerns based on the Northern Matianas
_experience. Rep. Miller does.as well;
•
Joint ~•commendations on whether the requirement to u•e u.s .
vessels for u.s. ahipping should continue to apply using the
sole criteria of the island•& economic int~·rest.
The U.S. vessels shipping requirement does not apply to.the
adjacent Northern Mariana Islands, American Samoa., or the Virgin
Islands but does apply to Puerto Rico (which is adjacent to the
V.I.). Considered by many islanders to be a. major burden on
consumer costs, it is as big an issue in Puerto Rico as Guam.
Reps. Gutierrez, Velazquez, and Serrano have sponsored a Puerto
Rico exemption bill.
Transportation and U.S. merchant marine companies arid unions are
strongly opposed to .exemption and would even more strongly oppose .·
using a standard of the island' S
sts only .
-
. o.f.,' . - .,.~
. !'
1(
COPY
�~------------------~----------~------------------
7
•
Exemption frQm the requirement to use u.s.-built vessels in
the wa terlil near Guam.
Transportation opposes this provision which would amend an
exemption limited by.vessel size. The limitation was insisted
. upon by the House Merchant Marine Committe~.: This might also be
of interest 4 in Puerto Rico.
•
·Exclusive or concurrent autl:lority ·to manage and obtain
revenue from the u.s.' s Bxaluaive Economic Zone around Guam.
Other insular areas. and California have expressed interest in the
EEZ. Justice objects to this provisi~n.
•
s·s:r an.d any other Federal prograliUJ not now extended.
This haEi been one of the primary objectives of Puerto Rico's
eorrunonwealther~. SSI has also been sought by the Virgin Islands
and American Samoa. SSA views the east of extending SSI to all of
the areas as too great. The Administration has proposed greater - but partial -- funding in Puerto Rico.
•
Joint recommendations on level• of program f.unding.
Puerto Rico and other insular areas would want similar input.
•
Authorization for any funds necesaary for inf~ast~cture
projects, technical programs, and cooperative vanturea.
Puerto Rico, the Virgin Islands, and the Northern Mariana Islands '
would want a similar authorization. One exists for American Samoa
but the House authorizing committee has questioned it. OMB would
probably oppose this provision for budgetary reasons.
-
-~·
.
'
COPY
�U. S. Dcpllrtmentof Justice
Office of Legislative Affairs
TO:
JILL GIBBONS, OMD
FROM;
VELMA '!'AYLOR,
RE:
H. R. .~ 0 56,
DOJ
"81;.am Commonweal t.h Act"
~
Th.i.:::; .r.csponds to the Departmental comments received by your
OMB c.;H Llle u_L d.[ l ::epo:::.·t. of the Department of Ju:sti ce on II. R.
1056, "Tb~ Gui:l.m CultUllOfJ.Wealth At;t."
1. Deparcrr.ent of th~ T.rt!a:;;uLy. Iu ::;u:::;; utuch a.s the
Department of ::he Treasury is sul:>mitting ll~ vw.u L't!IJVLL uu H.R.
1u:,6 to chairman Young, we are noc incorporating th~ c.;ununt!uL::s ur
.'the ·rreasury in our report. Ins'tead we defer to. the views of the
Departmer.'t of .::he Treasury.
2.
Environmental
~rotec'tion
Agency and OMB, lAD.
We agree to the substitution of "London convention"
for "L::mdon .Dumping Convention."
a.
b. We agree to insert EPA's paragraph beginning with
particular" after the second complete paragraph on p.
18 of our craft report, and to begin our next paragraph with
nMoreover" rather than "In. partioular.n
~~In
3.
Comments of EPA Region IX.
Attached to the comments of the EPA were the observations of
the EPA Reqion IX. We do not know whether the EPA intended to
incorporate those observations in its comment, or whether they
were attached only as a matter of information. The Region IX
observations deal with Sees. 201, 202, 203, 204, 304 and 1001 of
the bill.
Region IX ag~ees with Sec. 1001. With respect to Sees. 201,
?.0?., ?.03, and 304 Region IX apparently generally agrees with our
::rmr.1 11~'i nnn but. would prefer it if our pertinent discussions
;:u1npt-.P.c1 t-.h~ 1 anguag~ of the 1989 Report on the. Guam Commonwealth
hi 11 _ WP. ho:lvr. nnt-. 1Jt. i li z~d that report, because o'f its
·
S1JrH?YF.IP.r'h:rP. hy t-.hP. .i<'l'l"ln~ry 1 9 93 R~port, and because of its
lencrth. (16 L'8fJ1?8 o:lR o:lgo:l~n::<t-. !=i pr:tgf."':~ i;; nllr r.nmm~nt.n). Th~ only
substantive disag-rP.ement 'RPgi nn TX hi=l R wi r.h nllr r.nmmt=mt.~ i::; wi t.h
Sec. 204 ~
Our present comments on £ec. 204 cc.ntain .the substance
COPY
�...
~
'
....
of our i.99J comments on ~cc. 204; they had to be redrafted.
because ehe 199J langungc did riot p;:iroe.
We do not share the
concern5 of Region IX that our Sec. 204 would lead to excessive
. or illegoJ. delegations.
In our view Bee. 201. .would be limited by
any e:x:ise:ing statutory prohibitiono on appoint.mente or
subdelegations.
4.
Co:nmcnts of the Department of St01.te on Title VII
(Irnrnigre.tion) .
In view of those comments and of discussiono. with the
Inutt.i.::~.ra.~ion a1'ld Naturaliz;ation Gervice we have corr.plctcly
r~drciiLe~ vu£ report on Title VII.
5.
Cuntm~HL::I vi Lhe Departme!"lt Of Labor on 'I'itle VII
(Immigration)_.
The Depar:.rnent of L<:lbu.r:· l:!U~~el::!L::I Lhc~.L Ll:Le discussion o:1.
Immigration shou~d be e:xpanded Lu p.r:·uvlu~ muH::l h1fu.rtuc.tion aJ.•d
;:'l.etail on the immigration and related l<:lllu.r:· i;iDW:H::!i:l cUltl t;.iv .i.l
right"s violations in the Commonwealth of the Nu.i·Lll~.::·H Mcul~nci
lslands. AS the result of earlier discussions with
representatives:from Guam we have deliberately limited the
discussion of that subjec~ to a brief reference in our comments
~n Sec. ~01.
Further elabora~ion on that point would be
counterproductive because the Guamanians deeply resent any
comparison with the inhabitants of the ~ortbern Mariana lslands.
6. In view ot the June 12, 1995 de~ision of the ~upreme
Court in Adarand v. Pena, No. 93-1841, we_ .have revised the second
and third paragraphs of our comments on Sec. 102(:1:).
We are attaching a copy of our report on H.R.
redrafted.
as
----
\\\]
COPY
�E XE C UT I V E
0 F F I C E
0 F
T H E
09-Aug-1995.06:02p~
TO:
FROM:
James J. Jukes
Office of Mgmt and Budget, LRD
SUBJECT:
·.: ::
(See Below)
Interior Appeal Re a Justice Letter on HR 1056 (Guam)
-
·Interior staff just advised me that tha Department's Chief of
Staff, Ann Shield~, intends to call you today to object to the
clearance of the subject letter from Justice.to Chairman Young on
this bill, the "Guam Commonwealth Act."
The letter is a 28-page constitutional analysis of the bill, which
would substantially restructure the relationship between Guam and.
the United.States. Interior argues that no letters on this bill
should be cleared until.an Interior-chaired interagency process,;
to be managed by the Department's Special Representative for Guam .
. ·Justice argues that its letter is a constit~tiohal analy~is which
was requested by Chairman Young ~- not a position on the bill -and·that it should not be held up by a lengthy policy review
process. (Interior's Special Representative position has been.
vacant for some time.. Th~ vacancy was to have been filled today,
but the prospective appointee today declined to accept the
position.)
I had advised Interior that i intended to proceed to clear the
Jristice letter, but would (1) allow the new appontee to review the
letter, and (2) give Interior an opportunity to propose edits to
delete passages that they view as more policy arguments than
constitutional analysis. -This approach is acceptable to Justice.
Interior told me today that they rejebt this offer and.want to
appeal to you to shut the Justice letter down for a period that I
expect will last many months. I am certain that Justice will
appeal if we go the other way.
·
I would be happy to participate in your conversation with Shields
if you find it useful.
Coming attraction: We also have in clearance a Treasury letter
opposing tax-related provisions of the bill. Interior wants to
hold it up for the same reasons. Treasury is arguing that since
their ·letter addresses only the tax code, it should not be held u p
.
by the interagency process, and they are pressing hard~~~
clearance. I think Interio~ has a stronger case. on t h V ' \ : 1 .
. ..
y·
�but e~pect that Treasury will· appeal if we tell them they lose.
(The clearancs process on this letter is not as far advanced as on
the Justice.letter.
I'll come back to you for guidance on this
letter after we dispose of the Justice letter.)
Distribution:
TO:
T J Glauthier
CC:
Alice E. Shuffield
Ron Cogswell
Bruce D. Beard
E. Irene James
James C. Murr
M.. Jill Gibbons
Robert G. Damus
Joseph Minarik
Randolph M. Lyon
cc:
cc:
CC~
CC~
cc:
cc~
CC~
CC:
.. :·
COPY
�0 F F I C E
E X E C U T I V E
0 F
T H E
2l-Jun-1996 04:53pm
TO:
(See Below)
FROM:
Thomas c~ Jensen·
Council on Environmental Quality
SUBJECT:.
RE: Guam Meeting Request
Guam .... The-things that come across the desk .. ,.
I hope that T~ will be able to join the meeting.
Obviously/ we
would weicome whomever he thinks belongs in the room.
It sounds
1
like you do 1 since alone among the rest of us you may know what S
going on.
My sense of the situation is that as a threshold matter/ we need
to improve the quality .of communications among the agencies (and
perhaps·within Interior 1 too).
I 1 ve advised Katie that we should
not assume much if anything about the seriousness of the present
interag~ncy disagreements 1 since senior folks don 1 t appear to have
been speaking to each oth~r recently in a manner that hastens
resolution of problems.
1
I would .like to think that Monday 1 s meeting will give us a better·
feeling for the scope and intensity of interagency disagreements
and allow us to define a process for their timely resolution.
CEQ is to be very clear 1 only one of several EXOP offices that.
need to be involved in this effort.
I 1 Ve advised my colleague
David Sandalow 1 who also wears an NSC hat.
If you know of others
around here who should be included 1 I'd be grateful for that
advice.
We re .probably capable of helping sort out the natural
resource and environmental feud, but the national security/
budget 1 iabor 1 and other issues are well beyond our portfolio.
1
:·.·.:-.
1
.
.
What a great additiOn to the issue plate.
Distribution:
TO:
E. Irene James
CC:
CC:
CC:
T J Glauthier
Ron Cogswell
Gary Reisner
COPY
�CC:
CC~
Janet E. Irwin
Alecia Ward
·:'··
. : .··
::::·
'I
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
II Cf
001. memo
To Ron Peterson and Anna Briatico from S.T. Brick. Subject: LRM
EHF40, S 210- Proposed Interior testimopy (3 pages)
02/03/1997
P5
002. letter
Phone Ne. (Partial) (I page)
(')~/20/1~~6
P6fo(6) --.
003. letter
To Don Young from Judith A. Miller. Subject: Draft views of the
Department of Defense on H.R. 3501, the "Guam Land Return Act"
(3 pages)
08/14/1996
P5
{)04 memo
Phone No. (Partial) (I page)
0772571996
fl6fo(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michaellmbroscio
ONBox Number: 12733
FOLDER TITLE:
Gray I - I ,999 - GUAM Source OMB N/R- OMB I Nat Sec 8/11/97 - Guam Land
Issues [2]
2006-0 193-F
'ml33
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information I( b)( l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute J(b)(J) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAI
b(7) Release would disclose information compiled for. Jaw enforcement
purposes J(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office J(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
220I(3).
RR. Document will be reviewed upon request.
�/~;, ?I;::·;··Hi;:·iv);:_/ ~ .
DEPARTMENT OF CEF'ENSE:
/>>
2
OFFICE OF GENERAL COUNSEl}::! .
1 eoo OEF"ENSE PENTAGON
l :;~;
WASHINGTON, DC 20301~1800
\:6
\
\0
·cz
\
February 3, 1997 3:25PM
MEMORANDUM FOR RON .PETERSON/ANNA BRIATICO, LEGISLATIVE REFERENCE
DIVISION, OFFICE OF MAGA~NT·AND BUDGET
FROM:
DIRECTOR·, LEGISLA;IVE .RE~~--DEPARTMENT OF DEFENSE
~~~
S.T. BRICK,
SERVICE,
.
'
SUBJECT;
LRM EHF40, S ·210-..;Proposed In.terior Testimony
Genera~ IssueB
·modifications:
•
wi t:h ,t;
:?.1 0,
hP.FnrP. and
;i 'ft:.er
Tn t:P.ri or
'
The Department of Defense believes that every reasonable
effort should be made to return unneeded DoD lande to the
Government of Guam. However, in
doing, the Department of
D~.Ceuse must eneure that the rules for return of .that
·property are fully consistent· with c.ontinued military
i:l.c,.;Ll.vlLl~t> u.n Guam.
To that end, DoD hae 4. major concerns
regarding the disposition of excess lands on. Guam ~hat must
be· reflected in IuL~L·luL·' ~ L~t=~Llmu.uy: ~(~) The Department
.of Defense must control the determination of that which is
excess to ·its needs (althougll not. cl.LL-~t.:Lly lmJ:Jlil;~L~u Ly s
210, this issue could become critical if HR 100, the Guam
.C.:ommonw~alth Act., receives serious consideration in iL::J
current· form);t.{2) The Department of Defense must retain the
ability to impose rest~ictions on the future use of such.
property to ensure that such use is compatible with
continued military activities on Guam and that it. 1s
compatible with its intended use considering the planned
level of the environmental cleanup; ~J) 'J.'he J.Jepartment of
Defense must be able to rec~jve land declared excess by
another Federal agency; and.~4) The uepartment. o~ Defense
needs the ability to recover the costs of environmental
remediation through obtaining tair market value for the
property :Lf the Guamanians intend to use it for other than
public benefit purposes as those purposes are defined in t.he
Federal Property and Administrative Services Act and the
Federal :eroperty Management Regulations.
'
so
•
s 2~0~ particularly after it is modified as suggesteQ
Interior is confusi~g and unclear.
by
· (1) What is the effect of the amendment adding "public
purpose"? _Does Guam get priority over other Federal
agencies with respect to property that it does not intend to
use for a public purpose or do they only get the rignt·to
acq~ire property when they intend to use it for a public
puroose. Furthermore, this public purpose requirement has
no teeth. What is a public purpose? Who decides if Guam has
0
COPY
�(l/}~
.s
0 ~\:,SID~!\1~
•.
~~
\
\''
.met that tes~ and on what basis? What happens if they · 7
ro
change the ~se of the property after it is transferred. ~~1
£?
these quest1ons need to be answered and clarified in any
~
legislation.
(2). s 210, before modification as suggested by Intericr
provided that the disposition of any lar.ds ·in the Guam '
· N'~t..i nn~l Wildlife: Refuge, it;clu~ing, those lands managed by
Do.D that are subJect to a W1ldl1fe Refuge overlay, could
only ()r.r.nr fn11nwing a specific act of Congress. However
Interior's modification remove that requirement and inste~d·
speak-in terms of cons"I.Jltatinn hP.t.wAA'n Tnt".P.rin,.- and Guam
regarding those properties arid then just stops.
happens after such consultation?
subject to
~he
What
Is the. property the::1
normal Federal Property Act disposal process·
or io it to be dispos&d of in accordance with the process
outlined in S 210? In the alternative, does Congress have .
to act to effectuate any agrQement between .Interior and
Guam~
Furthermore, if there are to be discussions r~garding
the disposition. of ouch property, The. military should be.a ·
party to such discussions to ensure that the. future use of
the property proposed by the Guamanians ie coneistant w:i:th
continued military activities on Guam. ·
Issues with Interior's testimony:
•
The military does·riot own land. The United States owns land
Lha.L ..i.s then managed and controlled by o. Fodcri:ll 1\.gency, the
military departments. All references to ownership.should be
changed· Lu· "uwn.ed "by the United States and mo.no.god by a
military department".
•
The testimony is inaccurate ·in its assertions that s 210
merely con~1nuea the pull~l~~ ~stablished by PL 103-JJ~. D
210 and PL 103-339 are different in a number of very ·
impprt:.ant:. ways:
(l) PL 103-339 ~uvt!.c.u.:!d a discrete
identified amount identified by parcel whereas S 210 applie·s
to aJ.J. property t:.hat is noc a part or Ll.1~ Guam National
Wildlife Refuge or the refuge overlay;· {2} Under PL 103-339
property was eligible for transfer to. the Gu.C;Lma..uld..llt:o only
after it went through a screening by other Federal Agencies
meaning essentiaJ..Ly that :be disposition rules spell~tl uut
in"PL 103-339 applied only to surplus, rather than excess ·
property; (3) Onder PL 103-:n~ property was eligible fo:z:·
transfer only after the Government of Guam enacted
legislation to established a de~a1led plan for ita public
benefit use and submitted that plan to congress and congress
did· not object to that transter within ~~0 days. s 2~0
contains no such requirement, even as modified by Interior;
(4) Under PL 103-339 all·property transferred that Wi:il:i .
located w/in 6 miles of an airport needed special approval
before construction could be undertaken t:o ensure thoL Lll~
use of such property did not interfere with operation of
that.airport; and. (5} PL lO::i-J~:t contained a general
COPY
�, .../?~ESID~t\1
·~':>.
.
~
E
~
.. ~ 1\\
. Jii
override provision wherein the Administrator of GSA ·co
decide not to ~ranafer a parc~l on whi~h there was exte sive
~
environmental contaminaX~on, ·if th~ remedy o~ that
contamination would requ~re the Un~ted Str:~t.F!~ t".o incur
extraordinary costs. S 210 contains no such authority.
•
~
The last sentence of the third paragraph must be deleted
be~~uBe
it eugge~ts that on the basis of ~orne interni=l1
policy dispute over land that the G1.1amanians would engage in
sedi t..lvn.
The OUamaniems h.::1.ve consistently iii.Ild wi thnur.
exception loyally supported our national defense. Their
· loyalty Lu Lhe. United States ho.o been and· should contim.ll?.
be unquestioned. Any inference tha_t theyrwould act
.otherwise is ~Lo.ssly unfair to the Cuu.manians who have
·loyally served the United States over the decades.
•·
r.n
Cannot concur with lnterior's assertion that "P.ecause of the
unique situation in Gu.sm~ the Administru.tion ctrongly holds;
that this provision does not establish a precedent for the
treatment or excess land::. t~lsewhere."
While it ic correct
that the United States owns approximately l/3 of the land on
G·uam, it is also correct that Lh~ United States. owns
approximateiy 90 percent of· the land in Nevada and mo_re than
33 percent of other sta~es. What m~kt~~ Guam unique is its
status as a territory and its lack of voting representation .
in congress. That uniqueness applie~ t~qually to.all ~edcro.l
laws, including the Endangered Species Act.
**
COPY
TOTAL PAGE.004
**
�ID:202-395-5691
OMB/RDI
AUG 14'96
11:25 No.002 P.04
Tha Hqnorablo Don YOUDB
Chairman. Committee on Resources·
H.ouae of Kepresentatlves
Washington. DC 20515-6201·
DOM Mr. Chllrman:
the
In respon.se to your requeat tor the Vlews of Vepartrilentof tlte Navy, the D~amnent
of.Oefense provideG the following views on H.R~ 3501, the "Guam LM.d Return Aot'.
.
.
.
.
.
Section 2 ot tht bill would pl~cc the GoYmunoct of Ounm in n positiQo. of priority over
Federal agencies with respect .to the acquisition of P~eral
property deciared by one agency
to be excess to that agencies needJ. Specifically, Section 2 would amend the Orp'lic Act of
C'ruam. tn require the Administrator of GSA to transfer to the Govetmnedlt of Guwl. at D.O·CO$t,
ail exoess Federal roal prope~1 n.otwithliltandin.~ thet oth« Federal agoncies may have expressed
~ ll.~ fv1 il.till pmpat_y. ~tio.u3 oftbe bill.woull;i rclcuc CCl"t&i.n lands previously COD.'t·cycd to
Quam by the United States from a oondition on disposal. Sections 602 and 603 res~vely of
real
H..R. 3721, "A Bill. to Establish the Omnibus Teaitories Acrt 11 contain idemicallariiUaac. As ·
such, please ~de..r the view exp.rP.SSI"'.d hf'I'P.in on Ser.t.inns 2 and :; of H. k. 3501 as equall)'
. applicable to Section~ 60.2 and 603 of H..R. 3721.
The Deparunent of Deftmae opposes ena.cunent of Section 2 ofHll 3'01, but has no
objection to Section 3 of the bill. .
Our prlnciple objection 1x> Section 2 is that it represents a pieceme.al a.,PJoach to the
. rHOhJtioo of is.E;USS currently belDg dJsO\UI&ed with the Ouaman.iarJ.s· i.O.· the conwxt ot tt. wtl!~
CommOIIl'mlltb A(;t. The Omimm.iao8, through Mr. John Garammdi1 Deputy Secretary
Guam
.of the Interior 'and the Admlnistratlon'$ Special Representative for tb.e Guam Cominonwealth
n~gotiations, hnvo proposed a drnft Guam Commo.awea.lth. Act for comidtration by in.tereated .
Federal agencies. (An earlier wtsion of this draft was introduced in the l 04th Conp1 as H.R.
1056,. the "Guam Comm.oc.wea.ttb. Act"; the draft under conJicltration in 1bese negotlatlou ha$
evclvod aigaificantl;v from tht&t which fW).ilns before Con~eaa.) The Ot;pMtmflnt of Defens~
ha& b~ a~vely engaged in dis.tuSStons wi.dl the Ouamania~s an. d otber ~~cral ag~cies and is
workUJ& Wlth all tiOOcerDod parti~ to develop o. mublnlly Sllti3fcwtory poettion on alltswes
(~ {b
(),
~
prescotc<l in the draft Ouam Commonwealth Act. including those
y .
Section 2 of this bill. Because the disposition of
·
amis on liuam is being
· . ( _ · A'/
A.ddre&&ed in the oor.fA'Srt nf fie o • '
e drift Ou.am Cpmmor:~wea!t!l Act; and beciUI6
C-f.-</ ~
resulutioo. of tbi5 issue itHAox.tdcably link:od to .ot.h~
Jl[C'Cnmi b,- the OIWD.
Commonwealtb.Al-"t, ~ Dqlai lmcatt or Defense belieVes Conpsiona.l action on 5eoticm 2 of
HR. 3501 is· not appropriate at this time. We rcoommend instead that this issue be considered
only in the oontext of4e mttntttoas odtet isfies tffe6mtN iA the dr-at\ Guam Commonwealth
. TM Departm~. nt ~!Male i11 oom itted tO tna.l:illi every effofrtaeh a mutually
'by the draft Guam Comm nwcalth Act, and to thot
end will continue 1u p111Lil;ip~c ·l:l~,;Liv~:~Jt iu • U:ra&cu~y di110~5ions ot
d.rAft Act.
benefioial reaowti.on of all i5sum pr«ttC.
~s~OV. s
J
LL
1~
COPY
�OMBIRDI
In addition to our principal concern that piecemeal Congressional action would
· o\lt.."lli.lt nc:~uliatioru wlth the Oovommont of Guam on a oomprehoneivo Gunm CoJnmoo.w
Act, the Department ofDefenll.l!l h.u the followinB s.pecific concerns with Section 2 ofH.R.
3S01:
.
_Tbe Defense. mission requires much of the current flexibility of th~ OSA lcu:td
dlspoaal process to tm:iUit: the:
~ilwility ~:>f ooi'Idlt wd
antic-ipated missions. There
may be cases where lands may be declared excess to the needs of the. Department
of 'Defense in ord~ to tnosf~r them to another Federal sove.ro.ment a,g~cy to
. further that aeency'• miasioa. wbUe '.(till prnt~r.tine the def8flRe mil'~ ion!! OA
adjacent lands.11Dsucb A ~ituatiori, the lands would o.ot nocam.rUy be excess to · ·
. defense requirelnentsJ but wour--.:~e more tosice.lly m~w by 4UIUlucJ ftderal .
agency for that aaency's PUJWlle: GSA's emtina·l.and disposal process would not
only seJVe 8$ the _IT'tMn& to a.chi.... such a transft~r but would a1ao provide th@i
Depmrlm ent o'f Deienn with the ~·pportunity to sam r.tum of tho'e lat1ds ill ~
tWeot the qmcy 10 whom the Jands m:r~ t.IlWf'wed later declanm thQ~ l4lt:llob
excess to tta Deec16. StctlOn Z w'oultl completely :tnl&ttate this process by allowing
the GovemmMt of Guam to demand transfer excess Federal property to it
or
· ootwithstaudin& that another Federal aaency has a need for that property. Faced
.·with this rcsult, the Dopnrtmca.t of Defen-Se would be uu.ble to make .an ~••
property det.ecminati.on unlet~ it was absoluwly certain it h.acl no beed for the uac
of such pro~ Con1equent1y, eontnuy 'tO iUI mtent, .enactment or SectJ.on l
oould.resul
veJJless land beilijt available for transfer to the GoviM'JlD'lalt of
Guam.
\~
·.
.·
., ·.
.
Give the roq_uirement of Section 2 to transfer Federallao.d.9 without
rei mbursemcnt, 1he United States "WOUld be Utlab lc to.~ a.oy ~&ta U&ociated
with ~vironmentlll r:l~.anup from the proceeds of a subsequent sale. Funhec. as
dlafted, Section 2 may require The Depa.rtm~nt of Defense to incur additionil
unrecoverable costs a~i"LW with llliW>fcn-.Lua laod uo.dcr- Guamanian law, &\loh
. u perfomlln.g confinning iUl'Veys and environmental bueli.ne !NtVeys..
•
Section llieemir1S1y contemplate9 the immBril.IU.s transfer to Guam of all Federal
lands determined to be ex~. Section 120(h)(3) of the Comprehens.ive
Environmental R.cBponse, COtllpens&t.lon, and Litlbilhy A"'~ vr 1980 (CERCLA),
however. Rqllires that Slit o:ecessary environmental cleanup a.ctiona be in place
and.openJting •uooeesfuli)'' before Fedttal property
tt&.%1Bf'ea.d. U.nl"s
· Gwu:Q il pnpQRICI to w:sit until al1 ocx:at~n.ry deanup ·&YtitJnl bave bt.ell tftln-:n
(Which may ·-depending on the complexity of the situation, t.be rtsk presented,
may.,.
and the ava.Uabthty of' resources -take several ycu.s), these two provhions may
be difficult to harmo.ni.zc. ·
l;naQtmQAt of ;.,-tion ~ y,.ouJd.r~lt in a legidativ~ ox~tiQn to tb.eBAS(t
ItWignmeat and Clo~ure (BRA C) procc:J:s for Guam. The Dq~ent of
DefeJ.J.se hu generally recommended a.satnst special legialatiOD that: circUmvw~
COPY
�.ID:202-395-5691
AUG 14'96 ·
11:26 No.002 P.06
. Defense Department obligatiom under the Endangered Species Act rn.ay t!ffec.1 th~· ...__ _.
terms under which transfers of ~cess Department of Defense real property may
occur. Specifically, if the Fi~h and Wildlife Service determ.iri.es that u.ocontrolled
dcvolopment or ttKOOM Fo4~ roal proporty may jeopardize tb.e ~onti.n\IH
existenoe of a species, then conditions or restrictions would have 10 be in~luded
in. any conveymce of tlle property $ufficient to protect the endarJ.geJ:~ JPCCie&.
While Section 2 does not mB.IJ.dat.e that the property be transferred to Gua.m. .
withbut restric+Jons, the la1est draft of the Guam Commonwealth Act does. Taken
toa~, thCS~c piccc2
o£ l_osiiliWoc. would eith~ lCI!lt~•n pl'Ot.otiol1 E'or at~.d~qd ·
speoiee (by requiring traMfem Without mtnctions) or force the !>cpartmcm of
Ocfc:nso to reta.in land nt> loopr nl:ledc::d tor deten~e putposes simply to in~
Endangered Species Ac1 obl~ptions
. Soction 3 of H.ll. JSOl would repeal Section 818(bX2) of Public L'!,w 96-4 Ut
S0Ction 818(bX::!) provides that if"th~ Government or Guam elects to &~11 or leuo c;ertwn
property that baa been tnmf~ tu it by the United States, such sale or leue must be
for at least the fair ma.r.lret. v~lue or tll~ property. Any ~ce."~ profits received by the
Govemmeot of Guam on the sale or lease of the property must be returned to the United
·States Treasury. At illliUtt iu lbb IJIO~ tt::yocd are matters of f1sW and territorial · ·
policy; Dd~ Departme21t ifttet.,esu are not .implicated. The Depa.rtment of Defense hu
· no objection to this Segtion; rather;·wedefer to the Departme.ut& of Treasury and Interior. .
In summary, the Department of Defense oppoaes etllctment of Section~ of H.R.
JSO l, but has no objOQtion to Section J of the bUl.
The Oft'ico of .Management ao.d :8\Jdset advi&es that7 &om the st&tadpoint of the
AchnioisttuUQ111L' pi'"Qsnun, it;luw·rw obj~.ion to the presentation of this report for
consideration of the oommittee.
. Sincerely,
'':
Honorable Oeor.ge Miller
R,.nlcine Min()rity Member
.. TO TALc o·p y
�Withdrawal/Redaction -Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
001. memo
To Erskine Bowles and Sylvia Mathews through Mickey Ibarra from
Fred DuVal and Jeffrey Farrow. Subject: Guam Commonwealth bill
plan (I page)
06/24/1997
002. report
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
RESTRICTION
P5
I J_ d-.
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael Imbroscio
OA/Box Number:
12733
FOLDER TITLE:
NSC Guam- N/R [I]
2006-0193-F
'm578
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information j(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency j(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privl)cy j(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes j(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions j(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical'information
concerning wells j(b)(9) of the FOIAI
National Security Classified Information !(a)( I) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�~itt~t«~i~"{j'~~·:· .;;~~~~~~;,
'·
. ',' ::y:
,
.
DRAFT GUAM COMMONWEALTH BILL
.COMMENTS ON SELECTED NEW POLICY PROPOSALS
-
·'
Central
•
Provi~ions
Agreement that no provision of the law.may be changed
without; Guam' s approval . ·
This idea is the disputed heart of the Commonwealth concept in
Puerto Rico as well as Guam. It is intended to limit Congress'
Constitutional power to make policy regarding territories (in
local as well as nat.ion·al matters) and override the principle
that one. Congress cannot relinquish the power of its successors
(in territories unless statehood or sovereignty is granted).
While a commitment in this regard could be made as a mat:te·r of
solemn policy, it probably cannot be legally binding (although
the courts might well sidestep the question as "political").
The provision includes a qualifier that the agreement is made to
the extent constitutionally permissible but it does not overcome
the problems with the pi:"0V,~.~~on.
A) Justice. agreed to it on the understanding that the
limitation on Congress'·. Constitutional power· would not be
legally binding but Interior and Guam now want to assert
that it is meant to be .. : as the language suggests.
B) The qualifier would make the provision even more
objectionable to Puerto Rico statehooders who -:·.would see it
as enabling a concept that they believe to be ;
unconst~tutional. to be approved and misleadingly suggest
that an effective insulation from Federal territories
governing power is possible.
Current law does not provide even a commitment t:or Puerto Rico
but some Puerto Rico Commonwealth supporters claim that there is
an obligation in this regard created by the mutual approval of
the arrangement. The Northern Mariana Islands Commonwealth
Covenant includes purportedly binding language but limits it to
"fundamental" matters: local authority; U.S. citizenship;
application of the Constitution; and limiting the right to own
land to persons of local descent (upheld as being essential to
the arrangement and justified by the islands' non-U.S. past).
.
.
House Chairman Young and Senate Committee staff suggest .that the
provision in the draft bill has no chance of passage. And even a
policy commitment limited to key provisions would be hard foi
Puertq Rico statehooders to accept. It would be hard not to agree
to such a commitment, though, in light of the Marianas pred~dent
... and since it can be done.
COPY
�2
. ·:···!.,
..
Invitation for a status .plebiscl.te excluding U.S .
· . not descended from residents as of ·1898 •
::,The potential opponents include citizens among the half of the
·population that would not qualify. Although A) many of them agree
ihat. the original Guamanians never e~ercised- 'self-determination'
and B) the vote would not be binding, some would feel that they
have an equal right to vote on the future status of their home
island.
A provision such as this is likely to be cited as precedent by
Puerto Rican independence and commonwealth advocates who
controversially want status votes to 1) .include residents of the
u.s. descended from residents of the islands as of the date of ·
acquisition (there are 2.7+ million) and 2) exclude citiz~ns hot
descended from residents as of the date of ·acquisition . ..-;..Interior/Other Agency Stalemate Provisions
•
Commission with Interior as chair, Defe1;1se, Justice, the
Governor, and the Delegate to Congress empowered to
A) modify the application of any regulation to Guam and
B) make recommendations·on modifying laws which
Congress wou1dhave to consider on an eXpedited basis.
Most agencies -- which would not be represented --~would,
understandably, be opposed to being excluded from decision-making
inmatters within their jurisdiction. The House and.Senate are
unlikely to agree to have their· agenda set by such a body. ·
The provision would give Interior and Defense, at least,
unprecedented roles in policies of. other agencies and in Guam.
·(Current law specifically excludes matters withinother agencies'
jurisdiction fro~ Interior's mission regarding Guam.)
This proposal stems, in part, from a more modest proposal by
Puerto Rico's commonwealthers for Federal review of laws and regs
at the islands' request and from an advisory commission in the
·case of the Northern Marianas,Commonwealth Covenant.
•
Authorization for Interior/Commerce to waive any law or
regulation to benefit U.S.-Guam or U.S. through Guam trade.
There are too many potential problems to contemplate because of
the· breadth of the proposal . . . "any law".
COPY
�3
.~ ~ . . .
•
Authorization to· enter into agreements associated wi h
world Trade Organization arid, possibly, other organiza
Puerto Rico commonwealth and·independence.supporters have
proposed similar authority. Federal agencies contend that the
u.s. must speak with one voice on international trade m~tters .
..\
•
Expedited Customs processing of Guam products.
Other areas/interests might be interested in a similar provisi6n.
•
No automatic trade benefits for any other U.S. island area.
-
This was included because current. law· prov1des that Northern
Marianas products will be treated equ.ally with products of Guam.
•
Control over immigration.
The Northern.Marianas Covenant did not extend U.S. immigration
law to those formerly non-U.S. islands but gave the U.S. the
right. to do so. Justice and Labor oppose transferr~ng authority
to Guam because of the way that the Marianas has used its
exemption. Rep. George Miller is concerned about this provision.
The Marianas sought exemption ostensibly to enact stricter limits
on immigrants and, thereby, prevent itself from being overrun by
aliens. But it has developed a system which sO liberallyadmits
temporary workers that a majority of the~population'are nonresident workers. These individuals have only limited rights and
influemce in the community .. There has been national attention to
spectacular cases of employer abuse of workers in the Marianas.
Some House Members have considered extending imm~gration control
to the Marianas. Puerto Rico commonwealth supporters would want
immigration authority. The Virgin Islands has·also sought it.
•
Temporary workers• visa.
There might be concern because of the Marianas experience and
since the workers would be 'temporary• for up to four years.
•
Authority to' deny program benefits to aliens for five years.:
=
This would be inconsistent with the administration•s stance
policy on a current, nationally controversial issue.
COPY
�4
•
Interior/Defense/Guam joint recommendations
military land on Guam to the Commonwealth.
Defense may be opposed since it_now makes its o~n decisions on
what land it needs. A process (~xcluding Interio~) would be of
significant interest in Puerto Rico because of the islands'
dispute with. the Navy over the Navy's need for land it owns.
•
Authorization for the Commonwealth.to transfer land obtained
from the Federal Government to private use.
GSA, OMB, and Congress.maybe concerned. about authoriz1ng private
gain from what is now a public resource.
•
·special environmental standards.
EPA is opposed, fearing a precedent for region-specific policies.
Rep. Miiler is also concerned.,
Targeted exemptions from ·clean Air and Cleari Water.Act
requirements have been ·enacted for Guam and other insular areas.
Puert9 Rico commonwealthers haVe sought a similar blanket policy
using a similar rationale to the one used by Guam.
•
Priority for hazardous
w~ste
site clean-ups .
. Defense opposes since it is involved. Many other ar.eas also want
~lean-ups funded.
Other.Interior Recommendations
•
..
Authority to. adopt "reasonable" voting requirements.
This would be controversial if used as authorization·for a longer
residency than the courts have sanctioned -- as some Guam
officials have wanted (and it would be superfluous if not) . New
residents would be concerned about being disenfranchis~d.
•
Authorization for delegating Federal agency functions to
Commonwealth officials.
This would raise concerns about the performance of statutory
·requirements and accountability in various sectors. Ev~n the
Republican Congress is unlikely to ~gree to blanket autho~ity.
COPY
�..
5
•
Guam taxation of. U.S. and foreign income of
-
-
Treasury obj.ects to this applying to Federal employees because of
the_precedent it would set for all Federal workers outside the
u.s.
•
Approval to rebate taxes to individuals and on
u.s.
income.
The Marianas Covenant includes authority to rebate taxes on
Marianas income only. Treasury would object to rebating taxes on
U.S. in6ome. La~s have been en~cted to discourage rebates ~o
individuals (vs. companies) in the Marianas because the rebates
have effectively negated Covenant taxation requirements.
.
•
Inclusion in tax treaties.
Treasury would object to automatic incl~sion since the island is
foreign for tax purposes and would be able to enact laws at odds
with u.s. tax code provisions.
•
Access to or through military property.
Objectives have included commercial development of landlocked
private property and use of military recreation areas.
•
Submerged lands between three and nine miles\offshore.
Puerto Rico has this due to a·1980 law justified by Spanish law.
It has been an unfulfilled objective of some Gulf Coast States.
Other Proposals Interior Wants to Pursue
•
Congressional findings that Guam does not-have equal
participation in Federal policy making and has a compelling
interest in protecting the island from inappropriate laws ..
This would be of equal application to and interest in other
insular areas and be of concern to Puerto Rico statehooders:
.
-
.
Congress relinquishing its Constitutional power to govern in
territories to the extent p~ovided in the legislation.
Would have tremendou~ appeal to Puerto Ri~o commonwealthersr be
constitutionally questionable, and have no chance of enactment~
COPY
�6
•
Agreement to consult .the Commonwealth.to an appropriate
extent before international negotiations which affect'Guam.
·State and Justice oppose as a limitation on the President's
foreign policy power. Other insular areas also want this.
·.~
•
Requirement to consult the Commonwealth prior to significant
changes in military presence.
Defense.opposes this as ·unworkable.
•
Authorization for ·the Commonwealth to receive assistance
from foreign. governments.
_
::.
State has opposed Northern Marianas proposals in this regard,
wanting the U.S. to remain an aid donor rather than.a recipient.
• ·
Authorization to enter into international agreements not
inconsistent with u.s. policy and.not binding on the u.s.
State is opposed to the.U.S. speaking with more than one voice on
international matters.
•
Commonwealth.replacement of Federal labor laws.
Labor has strong concerns based on .the Northe,rn .vrarianas
experience. Rep. Miller does as well.
•
Joint recommendations on whether the requirement to use U.S.
vessels for U.S. shipping should continue to apply using the
sole criteria of the island•s economic interest.
The U.S. vessels shipping requirement does not apply to the
adjacent Northern Mariana Islands, American Samoa, or the Virgin
Islands but do.es.apply to Puerto Rico (which is adjacent· to the
V.I.). Considered by many islande~s to be a major burden on
consumer costs, it is as big an issue in Puerto Rico as Guam.
Reps. Gutierrez, Velazquez, and Serrano have sponsored a Puerto
Rico exemption bill.
Transportation and U.S. merchant marine companies and unions are
strongly opposed to exemption and would even more strongly oppose
using a standard of the island's inierests only.
==
COPY
�•·
7
•
Exemption from the.requirement to use U.S.-built
the waters near Guam.
Transportation opposes this provision which would amend an
exemption limited by vessel size; The limitation was 'insisted
upon by the House Merchant Marine Committee. .. This might also be
of interest~in Puerto Rico.
•
Exclusive or concurrent authority to manage and obtain
revenue from the U.S. •s Exclusive Economic Zone around Guam~.
Other insular areas and California have. expressed interest in the
EEZ. Justice objects to this provision.·
·
•
SSI .· ari.d any other· Federal programs not now extended.
This has been one of the primary objectives of. Puerto Rico's.
commonwealthers. SSI has also been sought by theVirgin Islands
and American Samoa. SSA views .the· cost of extending SSI to. all of
the areas as too great. The Administration has proposed greater - but ~artial -- funding in Pue~to Rico.
•
Joint recommendations on levels of
prog~am
funding.
Puerto Rico and other insular areas would want similar input.
.
•
.
X
.
Authorization for any funds necessary for infrastructure
.projects, technical programs, and cooperative ventures.
Puerto Rico, the Virgin Islands, and the Northern Mariana. Islands
would want a similar authorization. One.exists for American Samoa
but the House authorizing committee has questioned it. OMB would
probably oppose this provision for budgetary reasons.
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
~~------~P~h~orrnre~l~~o~.t(P~arrtmtiarli)Tf{l~r~a~g~@)~--------~----------------_ulOW/0[7~/Ul9~9~6__JP~6~fu~(~6)~--
002. note
re: Advice from Office of the Secretary of Defense on interagency
meeting on Guam ( 1 page)
12/09/1996
P5
!62-3
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael lmbroscio
OA/Box Number: 12733
FOLDER TITLE:
NSC Guam- N/R [3]
2006-0 193-F
'ml36
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy j(a)(6) of the PRAI
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9)'Reieilse would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�;, · "DE:\;l,~\
t~", ) ·J
~
Bob:
/ 2· .
t\.~· ..... •
',
~·"''\
·
,\,
1;;
i.
Phil Barringer, Ralph Thomas, Nicole Doucette and I met to\~~~)
''i
' .
,
discuss the upcoming interagency meeting on Guam. We offer the"""'~,
,,.,~"'
following advice:
.
-"'·"~...- ·
.
~uv
• We all believe that there should be no;Piscussions with
anyone representing Guam interests until we have a coordinated
Federal position. ·Above all, this initial meeting, and any follow-on
meetings, should be conducted freely and openly, without fear that
interagency positions will be. compromised.
• We suggest this strawman as a starting point for process:
• • Interior produces the draft USG Commonwealth Act
based onGaramendi's views of where we stand, as referenced in his
letters to Cabinet members.
•• Draft Act is distributed for interagency review.
•• Interagency meets an<;! reps are assigned to Title subgroups based upon expression of interest and organizational equities. ·
• • Within each sub-group, NSC should appoint lead .
agency to run groups, and given charter to staff level interagency
position.
• • Titles are brought together for second, reissued draft.
•• Full draft text is Circulated for staff review.
• • Once staff agrees on eritire text, NSC seeks
coordinated position on Act from each agency.
• • Act is presented to Guam as Federal response.
We see utility in NSC retaining control of the.proce~s. Interior
is in a good position to draft the first Act, in light of their recent
correspondence and research into Agency positions. Give us a tall if
you have more questions.
j
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrrtTLE
DATE
RESTRICTION
001. notes
re: Guam land issues (12 pages)
n.d.
P5
002. memo
To T.J. Glauthier from E. Irene James. Subject: Guam lands disposal
and Guam Commonwealth update (I page)
05/07/1997
P5
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
f;L.L/·
P5
. 003. report
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael lmbroscio
OA/Box Number: 12733
FOLDER TITLE:
OMB (Guam) [I]
2006-0 193~F
·m579
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)l
Freedom of Information Act- ]5 lJ.S.C. 552(b)J
National Security Classified Information ](a)(l) of tbe PRAJ
Relating to the appointment to Federal office l(a)(2) of the PRAJ
Release would violate a Federal statute J(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRA]
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(5) of the PRA]
P6 Release would constitute a-clearly unwarranted invasion of
personal privacy J(a)(6) of the PRAJ
b(l) Na_tional security classified information l(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAJ
b(3) Release would violate a Federal statute J(b)(3) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAJ
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAJ
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 li.S.C.
2201(3).
RR. Document will be reviewed upon request.
�; . 6.
-=~·
. :·
::·-:-. ..
)JD
Qbp_./-c
>?£r:s c••f:,;
EM.v_,£_
f'Yl!P-- UECod-:-
�. -·- ···-·· ----._
.....
. : . ';.
.
..
J:;eC~~t-_--~h5cc 0; ::··-. . - .
r-·
~--
___
I
<" i-··-.,./
i
-~
t::l
1.
. _··i~
. -
'
l
V¥5 . r.m -r Q,
v.
~.
-~-~'·«':•/:; ;,
.
·..
7---···-··-······-·-·
...... - ·- ···--·-····- -.
.
c_]?~s~J!!:;;,;~:S-+
v-yOy,..._~
---.·-- (}·"-,-
..... -
-
.
- . . - --
z
/
iu r:~~~::r.r:;;t·:__ ·: ·------; ,~' - . / .------- z
~v1 --[-S< -d-e' I .•I2~Cr:L,,~
z_
"
.
1
.
-
0
.I . .
..
·;)o e ~ :_:
~~·· -: -: ·-~·;~t;;.t{tE··~~=--~~~:_.;_· .;_L~~~liL=-;~~:~~L=·-···· ·;;~~~-·~_
.
-==~-~~--=:--~~~;;~-~-:
''--'----~[.___--·-~--------- ------~~~~2<'
:
.· .. .
... ,· ... ::: ~ ....; .
.. ...•
..· ·' :<:
-------c---.:__...,...i·-:·--'-.·'-"--..<:l;·::-.. ·.··
·:.,;:·,,,·: . . .
--
�.
.
...
.
. ·.·.. ·
.....
.. -.· ... . . .
.
·-:-.
.·.
·:
..
·.
. .:
. __ . .'·.'. :-··._.
:.
. .·. _:_... . . ... .. . ..
...
. .
��.
..... · .. ·... ·. : :'::-- ·.
·:- ..·.· . :
··.·
:
. . ·.· .. ··· .
. .~.:.. .. . :· . . ·. . .·.·: . .·_: ...· .. : .....
. .
.
. .
.....
.· .
. . ·. ·. .'.. ·: :: : . ....
·.. · ..
.. .
'•
..... .·. .
.
.
.
.•
..
.
·. . . .
. . . : .·. .. : ..
.
·.
.·.. ·.~ :.· ·... ·.
:
.
...·
..........··.·. ·.
......· .
.. .-·: .. ·• ··. ·.
:.:
·.
.... : ·.. ·.
...
.
.
. .. . .
. .. .
. · ... ·
..
.
..
.· . . .
··.
:
.
.
. .·.· .. ·
~
..
.
·.·.· ...
..........
.
·.. . .
. . . ·.·:· .. ·
·..
.
.
. ·
..
.
:: ·.·
.·..
. ··
.·
.
. .. .
. ·"· ..
. :.
.'
: : .· . .
.
.
.
.
·..
.. . .
.
. : ·: . . · ·:::.: .. :·~-- ..... · . .::· . .
.. .. ·.. . ....... :. . : ·: : ·....: .·. .. ...
. . .· ..
.
.. :. . . . ·.
:_· .. · .··:·.·· ... ··. · .. ·
. . . . ... .
:.
·.· ... : . ·. ·.·: ..
. . .· .· .. . ... ~•'.
.
:-.:.·:.
.. ... . . ~
.· ..
.
.. .
.
·.. ·~ ~·>: .··:. .-:~:-.'·.·.::'· ·..··.· .·-::._._..·.·_.· :- .·..'· ·:::·:..::.-·. ·.... · . :·. :.~ .·. .·.:_>·.·-....::'-:.-:.:·
.
.
.
. ..
.·.
: : . . .: :·. ·. ·........ : : . :. ':. . .
·. ·. ::: ........... :· : ... ·: ... .·: ..
. . ... :. . ::' . .
. . : .. : . . . ·. . ... .
·
.
.
.
.
.
.·=.. ·.· .. ::..:---.
.
... .
.
.
.
:. . . .· ·. . . . .
.
.
. .
. .
·.•·..
··. · ·.• · ::•·;. •.• ·• · · ·• · .·• · COP·Y
�'.-
~..
-- -
-. ----- ... -
"·
�.
..·.
. ~ . .. .·· . .
.
.
·,..·.. . · Jo.···.!A.J ,.,. ·.X.· . · . : ,- . ;7·~
Y .
.
/~
'}~ 'Wo'' if;[~
;
;I
........ -····
.
'I
------------------
---·-·
..
.
.
------·- ·------·-----.
~.
.
--- _______l~-l.~----C~-~-. b.Jv;..~v-e- _______ fit:C________ -.
I
.
.
.
.•
!
.
·~--·-~-~--&~--~~ w~ ~~~--I .
·
.
.
1
-~-
~ -~--. ----;:;;;__;_;_····-~--·
--A-
Ji . ~~A-
•
-----~---·-:·- ............
----
...
-;------·-
--·-----
/(·-.
:-·-:~f:?{Z_KG~
_ _ _~~~p<e_c_;t:r__~_ .. ------- ---·--··-.-·
;i
------~----
Jo
.
____ l.j_l/~
,., - .
.,..h,
---r+~~~--)v~--------:f2'1:1L~-~~-~
---~---··_d3_.f.vs:._____ !A.1_r;_ ____~-.~-~
.
· ·:lb._~-~. tb -~ __Vh_C.· ~-SD-r-M "'tvp___.·_. _
- ---...
.
--.-!+rI~·~--~1./~--t~=t-.~-, w,
~~~-C-JI==Li-b-.
j _'_!5_u~-,~. .cf,·J CV:S! ~- /J7Y-- 2 -~ . - ~--------- -
1! .
--·-1-~~-A.~ .
. .
__
I
.
__
.c,
_______________
.
!(
·.oy
.. -
·--------~---------··G·0----~.
. .
.
~
.
..·
��-··-·
_ !Afl---:J-
..._ __
··- -· ·-- ·-·-·-···-
---- ·-----·- ·--·····--- -··-····-----..:___.-···---
~---- .Y-S.G.-~~-~:£Jv
-~ ' . "'--~~ -_ ~-. -- ------·---:----~------· ---------:
.·
._
---------:--+---·------------·--·--·-----·---·-···------------'---------------------------------i-+-------------------·----·-----------·--,-i------------·----------- --------
___ ....
______________________________________________
-------'++--------------------·---------------.:._____________________
!---~----------
·---·----.. -.... -.. -· ·---.......
----·-·--·--------- ...
·-------·-------------------·-
��·.::
.....
.
.
'-~.:~':
...
.. ·
. ~. -:
...
,. •1 V:>r--.:. _ · _.~c- ... issVCJ -~~---.~13-- ---~-,--~__c_ ___ d>.... fe 0 a... ~.n--
-__···· _(:rrtfj/'jql-' c,·~- -~~--·~-Yo~--~-~---~/~- ck-0·#·~
. -· -·-·· ·- . ..
.
..
..
. ..............
--···
. 6/.v6-n....&rvrJi-:-
_ •~-+~-
-·
-·-- -- .. - -·
..
...
~--·····
. ...... ...
.
.
.. ·--· ---- .. -,.. ---·
-~ _ _ -/.o
.: .
..... .
___ )--eS6/~ __ --_bJ·<j
_L;S{ft:f __
ZJ~r VJjl/·ftf'-ll_L~_:·:p~U<_.
-----
f'l·r5f~. _
----
.-
. __ . .·. . f(:;!:fr? {71,-._ _~ ds C {f!Av-l~f,.~n ~~ ~&__ . _
.· . - - .• . :?~J~ '- ·_- f:y;if - :CjJ~- c;p;;:;--___ ffJ::~bTli~~ --&;;io _ : -
._·.: ________ o:!J.·:
;~
_
l-o----!6vu-~;,---_---c~sJr-,:__ /!>dJ•
..;{es.
1
AA~. _________ ·
~~ _____ --~-~/( -~ -~--- L·-~--~--~--"'-lt--~-~--~iz
•. -._ }~ C2 tZ· ~----- ~~·
i --- ~~-f;~~~erJ-i~ ~-:-~ -~ _c
__
__ .- __
' .f_e_~--
_ ___
i~~-:
.
'
_--
· ·- _ ... . --~ ___ ~
. ·---~-~,~~~~~~-~!:1;_~~~;7!~!-~:tz:~···--~-_
.fo . . / ... _ _ _
: - -·- .· rf-Q_c~l/r...:. ..
r/?DTU
_
,~~------~-~-f:_. __
:_:----~-:-~~Y----r;~--·-6-?-e-~----~~--~---------
..
__________
:;...:~:~-~:...~~-~:.:.:~:.....~• .....
:{~ --~
.. =
..
·:> ~ .:.
··-·--·--
�· ... ·:._
.. ·.··
·-. --.
__ .._ · ••.. .: . ..:_..
·--~-·-:~. ;_ '•·t :.:..:.~ __ ..:._._~-:--"-·· ·-
.......
... ·,,
-- ··-··· ---· ·- --· .... -· · · - -
. .
..
..
"
--·.:··.-:··-7-··-~:·~-.o::-: ,.:-~·-·.·-<:.:·
.•
~
. .~,:.
._... ~ ... · \' .. : ·-
~~--)~~·· (C..l_0t·: D~ .-_. fi r:s: +·>; _ ~ Fvs~-~:~: :' "~~.-~ :.:·.··r··· ·--~<· ~. .
~ _ :L-.-' :", -: {:, ;__j;~J -: .CJ~ 0, · ~d- f-0- ~~~"'t7. X~r to ·6v'l""': · '
r
.
.•
~~·- _ L1U~-:~t'~~r:;y:{ -&~t-::~~ ~-~~£~~;: ;'"' --- - -· _:·~.
I\J6 f-.
/_·· .......... ·-· .. .:....
6-
. ~ ·, .~ .
(Cil . ~.
SiS·' -~d~:.,_f(J~;Z_t(_~·--···· ·-
k
·
. \·. .-<..... _.· ·.<..._
_;_::~:~:-:·-~_:_·_~::·~·~:~:__._-~~----·- ~:: . - - ...
~ . _. Pf-yi~ 1 ~J-. -F:ut_-n f~~c· _-~ _- _.
:T~
.>.
~,J,_,.__.PJ_D ..:: ·:,. :-J~·t'c:;h$-:__ 'ft>·.-·.fdv,..__l5-">tn .. r--'.fvy~,;--<tf
;0: .:;;~
-~-
_··- ·- --•- -_-, ---~-- _tJM'! S~Urf~
~- - ' -· ·-· . ~ ·-- ' ·. - ~-;. ----- - _'.
t)·
·. cJC-f'VJ;-..N.J · e..sS0-,r-€
.,., •.• -
; : :; '- ·:. ·_
i;~ r~~ ~~w~~f~.(\~~;~ti r~Y:~?~;;:Vr~~~
~.:.:
~:-:_·
~~~"",,wsJ . :_sh_~J-r-•~rfr~/~~~0d
-
<)
. '- ·.
. - -... . . '
~?---lfc EH64\£ . ~--.
. -..·. "'· .. -
...
)____ : ·._-::-, ...
: .
.., ' .... ·.:-:, ..
~i~ tH1_>--.-:::~~ · .__ .
(kJ ib.= · ~;.-.·;
. .?~~~~--~ •'
.......
·.:. . _ ______ ~""!· :;'.:..-~
..
v L. ·. - -· ::_:_-~·o'./_, ·;:_...,"· . ~·_,,;·.:·,_ .·\·':·-.-~·· ~· ;·· .',~·-.u;'r-1-.,~.,_:.ff'lrr:::_:;j '7.-.·:_. -~·: :_ ....
-····.Jl.~- ~:AluA.M.n~·.-"""«
·
..
"-- - G~c::~~ i-~-: -_.1-:J--/ ~I
·..r
:6~--
~>(6Ls5 ~5 ---
- .. --
.
-~~~-
I
I' I
-· -
--
-
. •..
---· ---~~----~-~-·---~;---~-~~~~-
. .
-
......._
..
·:>.. --"Gu~ :0;;..~-~k~; Ld:tl~i~{;l.il?~~--
-•·.
!~~~- ~~ --~~ . ~:-,·. -:·- :
':_:,_'_iii&~.-~-'-~~~=!:~L·~:-~:::·~~:~: ~ -, :·. -· --g:J/if]e_-[{ ... r"-'-rv-U.J________ - ...... ·. .... .... . .
~---- f!Sul(e../:5
~}·---
. . 0,-r--...
j ..
-:r·
.
.
..
\
....
..
..
............, .. .
---- •.. - -
··--·--·
-0~---····d4p7'-~---'7A7- ··-- -··
-e·"k-:- - - -..------------· .... _ ................ - . -- --- -····
~~-----=~--~::
.,. .. _ __ _____
----------- ·- ----- - -- - - --
--. - .. -
... - ·~. -.. ; ........... -----.~--.-....-............................................. .
_____ ?f>-\ _ . ~. ...... _,SS0;[---'-.1..Q.ko/v(/ ...... -.. .
ct- ·----.. . -..
I
-··
. ...
···--------------··-···-- --- ---------------------·······----····--···
----------------·-
�•
.
Omnibus Territories Bill scheduled for mark-up on Weds., 5/14, r;ontains a provision to .
i.::;:-..~·:.;:';;.~....-IE:IrJ-.alping excess DOD land to Guam. Federal ~agencies (DOD, DOl, GSA, DOJ) have been? ·
this issue on a separate track from the larger Guam Commonwealth proposal in hopes of __.·.-··.
a satisfactory provision included in S. 21 0. The only questions that await r~solution are 1 l
' constitutionality of transferring lands to a Chaniorro land trust (which is defined as a public purpose
y~t limits benefits to a particular group of people) and 2) whether to transfer at Fair Market Value
(FMV) lands intended for non-IJl:Jblic use (public-use lands would be transferred at no cost to Guam) ..
u131Lu••u
Re. the Chamorro land trust, either (1) new DOD-drafted alternative language, currently being
circulated, will satisfy DOJ and others' concerns; or, (2) the Chamorro land trust will be excluded
·
from the definition of "public purpose".
The FMV issue is more troublesome. DOD, whose goal is to simply cover their costs, devised a
.. modified" formula that would recover their original cost to buy the land, add interest based on
T-bond returns, and add clean-up costs incurred by the U.S. However. the WH Counsel's office
(Bill Marshall), WHJGA (Marsha Hale per Jeff Farrow), and DOJ Associate Deputy AG David Ogden·
clearly favor Guam paying current FMV. DOD will likely be neutral about this position, but DOl is
likely to complain that the Federal government is not being flexible: However, given the recent bad
press, the WH policy makers are unlikely to agree to any scheme. with even the slightest chance of
a potential windfall (e.g. difference between DOD formula and actual FMV should land be resold). · ·
NRD and LRD recommend agreement with the WH/DOJ on FMV.
-·
Guam Commonwealth
You wiil recall that the 2/4 Emerson meeting was to set up an expedited process, yet nothing has
occurred three months later. The applicability of Federal laws and lab()r/lmmigration control remain
as "deal-breaker" issues, alon~ with a host of smaller (some possibly controversial) provisions.
•,;,: ...
Farrow (through LRD) reports that Don Young told Guam that Commonwealth isn't going
anywhere-- but he will give them a hearing (possibly in July) once the Puerto Rico status bill is
reported. In the meantime, FredDuval, Deputy Chief of Protocol at State, is expected to replace ,, ·
Emerson and re-activate the review process.
Farrow reports that last Saturday Sylvia Mathews asked him "how we are progressing" on Guam
Commonwealth. He told her further action is on hold pending Duval's arrival. Given past
disagreements, achieving closure before July will likely be problematic.
Message Copied To:
COPY
�.·
Central Proyisions
·.
•
-Agreement ·that no provision of the law. may be changed
wi thou~ Gurun 1 s appro'Val .
This idea is the disputed heart of the Commonwealth concept in
Puerto Rico as well as Guam·. It is intended to limit Congress •
Constitutional pow('r to make policy regarding .territories (in
local
well as national matters) and override the principle
that one Congress cannot relinquish the power of its successors
(in territories unless statehood or sovereignty is granted).
as
While a conunitment .in this.regard could be made as a matter of·
solemn policy, it probably cannot be legally binding (although
the c.ourts might well sidestep the question as 'Political" J •
The provision includes a qualifier that the agreement is made to
the problems with the provision.
the extent constitutionally permissible but it doeS not overcome
·
A) Justice agreed to it on the understanding that the
limitation on Congress• Constitutional power l<ould not be
legally binding but Interior and Guam now want to assert
that it is meant to be ... as the language suggests.·
B) The qualifier would make the provision even more
objectionable to Puerto Rico statehooders who<would see it
as enabling a concept· that they belie\Te to be ·:
unconstitutional to be approved and misleadingly suggest
that an effective insulation from Federal territories
governing power is possible.
CUrrent law does not provide even a commitment for Puerto Rico
but some Puerto Rico Commonwealth supporters claim that there is
an .obligation in this regard created by the mutual approval of
the arrangement. The Northern Mariana Islands commonwealth
Covenant inCludes purportedly binding language but limits it to
•fundamental" matters: local authority; u.s. citizenship;
application of the Constit-ution, and limiting the right·to own
land to
of local descent
as
essential to
the arrangement and justified by the islands• non-u.s. past).
pers~s
-
(up~ld
bei~
House Chairman ~oung and Senate Committee staff suggest that the
provision in the draft bill has no chance of pasSage. 1\nd even a
policy cornmitm~nt limited to key provisions would be. hard for ·
Puerto Rico statehooders to accepe. It would be hard not to agree
to such a commitment, be done. in light of the Marianas precedent
... and since it can though,
COPY
�..
2
•
Invitation for .a status plebiscite excluding
not descended from residents as of 189.8.
The potential opponents include;citizens among the half of the
population that would not qualify. Although A) many of them agree
that the original Guamanians never exercis~d.. 'self-determination~
and B) the yote would not be binding, some.would feel that they
have an equal right to vote on the future status of their home
island.
·
· A provision such .as this is likely to be· cited as precedent by ·
Puerto Rican independence and commonwealth advocates who
controversially. want status votes to 1.) ·include residents of the
U.S. descended from residents of the islands as of the date of
acquisition. (there are 2. 7+ .million) and 2) exclude citiz_ens not
descended from residents as of the date of
acquisition.~
-
Intetior/Other Agency Stalemate Proyisioos
.
•
.
Commission with Interior as chair, Defense, j-ustice, the
·Governor, and the Delegate to congress empowered to
A) modify the appiication of any regulation to Gurum and
B) make recommendations on modifyiDg laws which
Congress would .have to consider. on an expedited basis.
Most agencies -- which would not be represented --\would,
understandably, be opposed to being excluded from·decision-making
in matters within their jurisdiction. The House and Senate are
unlikely to agree to have their agenda set by such a body.
The provision would give Interior and Defense, at least:,
unprecedented roles in policies of. other agenci~s and in Guam.
(CUrrent law specifically excludes matters within other agencies'
jurisdiction from Interior's mission regarding Guam ..>
·
in
This proposal stems,
part, from a mor-e modest proposal by
Puerto Rico's commonwealthers for Federal review of laws and regs
at the islands' request and from an advisory commission in the
case of the Northern Marianas Commonwealth Covenant.
•
'
.
Authorization for Interior/Commerce to waive any law or
regulation to benefit. U.S.-Guam or U.S •. through Guam trade.
=
There are too many potential problems to contemplate because of
the breadth of the proposal . . . "~ law".
COPY
�3
•
Authorization to enter into agreements ass.ooiat
the
World Trade Orgaitiza.tion and, poss.ibly, other organizations.·.
Puerto Rico commonw-ealth and independence supporters have
proposed· similar authority. Federal agencies _contend that the
u.s. must speak with one voice on international trade matters .
.f
Expedited Customs processing of Guam products.
•
Other areas/interests might be interested in a similar.provision.
u.s. island area~
This was included because current law provides that Nort:h~rn
Marianas products will be treated e~~ally with products of Guam.
•
No
•
au~omatic trade benefits for any
other
Control over immigration.
The Northern Mari~as Covenant did not extend U.s. immigration
law to those formerly non-u.s. islands but gave the U.S. the
right to do. so. Justice and Labor oppose transferring authority
to Guam because of the way that the Marianas has used its
exemption. Rep. George Miller is concerned about thisprovision.
The Marianas sought exemption ostensibly to enact stricter limits
on immigrant:s and, thereby, prevent itself from·being overrun by
.. aliens. But it has developed a system which so liberally admits
temporary workers that a majority of the -population·=' are nonresident workers. These individuals have only limited rights and
influence in the community. There has been national attention tospectacular cases of employer abuse of workers in the Marianas.
.·
Some House Members have considered extending immigration control
to the Marianas. Puerto·Rico commonwealth.supporters would want
immigration authority. The Virgin Islands has also sought it.
•
Temporary workers' visa.
There might be concern because of the Marianas experience and
since the workers would be 'temporary• for up to four years.
"
Authority to deny program benefits to aliens for fi~e years.
This would be inconsistent with the administration's stance
policy on a current, nationally controversial issue.
. .
.
COPY
�f\v
\rF
4
•
Interior/Defense/Guam joint recommendations
m:ilita.ry land on Guam to· the Common'Wealth.
Defense may be opposed since it now makes its own decisions
what land it needs·. A process (~xcluding Interior) ·would be on
significant: interest in Puerto Rico because 'of the islands • of
dispute wit~ the NaV-y over the Navy's need for land it owns.
• ·
Authorization for the Commonwealth to transfer land obtained
from the Federal Government to private u~e •
Congress inay be concenl'ed about authorizing private
gain from ~hat is now a public resource.
. GSA, OMB, and
•
.special environmental standards.
EPA is opposed, fearing a precedent for region-specific policies.
Rep. Miller is a1so con~erned .
. Targeted exemptions from Clean Air and Clean Water Act
requirements have been enacted for Guam and other insular areas.
Puerto Rico commonwealthers have sought a similar blanket policy
using. a similar rationale to the one used by Guam~
•
Priority for hazardous Wa.ste site clean-ups.
Defense opposes .
clean-ups funded since it is involved. Many other az-eas also want
. Other Interior Reoommendations
•
Authority to adopt •reasonable• voting requir~ents.
This would be controversial if used as authorization for a longer
residency than the courts have sanctioned -- as some Guam.
officials have wanted (and it would be superfluous if not) . New
residents would be concerned about being disenfranchised. '
•
Authorization for delegating Federal agency functions to
Commonwealt~ officials.
This would raise concerns about the performance of statutory
requirements and accountability in various sectors. Even the
Republican Congress is unlikely to agree to blanket autho:r-ity.
:
COPY
�5
•
Guam taxation o£ u.s. and foreign income of
Treasury objects to this applying to Federal employees because of
the
u.s. precedent it would set for all Federal.workera outside the
.f
•
Approval. to rebate taxes to
individua~s ·and
on 0'. S. income.
The Marianas Covenant includes authority to rebate taxes on
Marianas income only. Treasury would object to rebating taxes on
u.s. income. Laws have been enacted to'discourage rebates to
individuals (vs. companies) in the Marianas because the rebates
have effectively negated Covenant taxation requirements. ·
• .·
Inclusion in tax treaties.
Treasury.would object to,automatic inclusion since the island is
foreign for tax.purposes and would be able to enact laws at odds
with u.s. tax code provisions.
•
Access to or through military property.
Objectives have included commercial development of landlocked
private property and use of military recreation areas.
•
Submerged lands between three and nine
miles;~ffshore.
Puerto ~ico has this due to a 1980 law justified by Spanish· law.
It has been an unfulfilled objective of some Gulf Coast States.
Ot4er Proposals Interior Wants to Pursue
•
Congressional findings that Guam does not have equal
parti_cipation in Federal policy making and. has· a dompelling
interest in. protecting the island frOlll inappropriate laws.
This would be of equal application to and interest in other
insular areas and be of concern to Puerto Rico statehooders.
- ·•
Would
Congress relinquishing its Constitutiona~ power to govern in
territories to the extent pl':ovided in the legislation.
have
tremendous appeal to Puerto Rico commonwealthers, be
constitutionally questionable, and have no chance of e n a C n b
py
�6
•
·Agreement to consult the Commonwealth to an appropr te
extent before international negotiations which affect·"'fh!@!!l~
State and. Justice oppose as a limitation on the President's
foreign policy power. Other insular areas also want this.
,.
•
Requirement to consult the Commonwealth prior to significant
changes in military presence.
Defense opposes this as unworkable.
•
Authorization for the Co.zmnonwealth to receive assistance
from· -foreign governments.
_
State has opposed Northern Marianas proposals in this regard,
~anting the U.S. to remain an aid donor rather than a recipient.
•
Authorization to enter into international agreements not
inconsistent with U.s. policy and not binding on the u.s.
State is opposed.to the.u.s. speaking with more than one voice on
international matters.
·•
Commonwealth replacement of Federal labor laws.
· Labor has strong concerns based on the Northern Marianas
experience. Rep. Miller does· as well.
•
Joint recOlmllendations on whether the requirement to use u.s .
vessels for·u.s. shipping should continue to apply using the
sole criteria o£ ~e island's economic interest.
The U.S. vessels shipping requirement does not apply to the
adjacent Northern Mariana Islands, American Samoa, or the Virgin
Islands but does apply to Puerto Rico (which ~s adjacent to the
V.I.). Considered by many islanders to be a major burden on
consumer costs, it_ is as big an issue in Puerto Rico as Guam.
Reps. Gutierrez, Velazquez, and Serrano have sponsored a Puerto
Rico exemption bill.
Transportation and u_s~ merchant marine companies and unions are
strongly opposed to exemption and. would even more strongly oppose .·
using a standard of the island's interests only.
COPY
�7
•
Exemption from the-requirement to use U.S.-built
the waters near GuaJn.
Transportation opposes this p·rovision ·which would amend an
exemption limited hy vessel size. The limitation. was insisted
upon by the House Merchant Marine Committe~.: This might also be.
bf interestAin Puerto Rico.
•
Exclusive or concurrent authority to manage and Obtain
revenue from the U.S.'s Exclusive Economic Zone around Guam.
Other insular areas and california have· expressed interest in the
EE.Z. Justice objects to this provision.
•·
ssr and any other Federal progra=s not now ~tended.
This has been one of the primary objectives of Puerto Rico's
com!nonwealthers. SS! has also been sought by the Virgin Islands
and American Samoa. SSA views the coat of extending ssr to all of
the areas as too great. The Administration has proposed greater - but partial --· funding in Puerto Rico.
•
Joint recommendations on levels of program. funding.
Puerto Rico and other insular areas would want similar input.
Authorization for·any funds necessary for inf~astruc::ture
projects, technical programs, and cooperative ventures.
Puerto Rico, the Virgin Islands, and the Northern Mariana !alands
would want a similar authorization. One exists for American Samoa
but the House authorizing committee has questioned·it. OMB would.
probably opp{}Se this provision for budgetary reasons.
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!fiTLE
DATE
(Q.Q,l:'jnemo·":;.,, .· .: ... '· ..7 ,"'I9,.~r~~Jgep.!_ PiD.tp!).Jtgm John Garamendi through M~rcia Hale.
Subject: Guam Commonwealth (with marginalia). (4 pages)
12/30/1996
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Asian Affairs ·
OA!Box Number:
1046
FOLDER TITLE:
Guam--Agency Positions: Guam--DOl [Department ofthe Interior] Positions [1]
Van Zbinden
2006-0193-F
vz1175
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S.C. 552(b)]
Pl
P2
PJ
P4
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA]
b(J) Release would violate a Federal statute [(b)(J) of the FOlA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOlA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOlA]
b(9) Release would disclose geological or geophysical information
ells [(b)(9) of the FOlA]
National Security Classified Information· [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(J) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�United States Department of the Interior ---~:--1 1'-J ·_c!Ji {;)
ORRCEOFTHEDEPUTYSECRETARY
Washington, D.C. 20240
Memorandum
· December 30, 1996
TO:
Honorable William J. Clinton
President of the United States
THROUGH: Marcia Hale
Director, White House Office of Intergovernmental Affairs
FROM:
John Garamendi
Deputy Secretary of
SUBJECT:
Guam Common
I understand that you met briefly with Guam Governor Carl Gutierrez on- December 16, 1996, to
discUss the status of the Guam Commonwealth negotiations. I am informed thatyou want key
issues brought to closure by January 20, 1997, before certain members of your Cabinet leave the ·
Administration. This memorandum summarizes the negotiations and status of certain "deal
breaker" issues. The summary below is supplemented by attached briefing materials.
Overview
When I took over these negotiations in January of this year, I approached the issues frorn the
perspective of maximizing the amount of self-government for Guam in a way that would
safeguard the fundamental strategic interests of the Uilited States. There are vestiges of
colonialism in Guam's current status as an "unincorporated territory." Although it has its own
f.lo\- ·
locally-elected governor and legislature, Guam is automatically subject to almost all Federal laws \ "'-'-~~ ·
~..~~N1'- '\and policies; In 1982 and again in 1987, Guam voted to change·its political status for greater self- \.~~ss
.,..>....\..~ •
government through Commonwealth. From a practical perspective, the blanket application of """".,.~ "'"c...\- \.>.
w~~ Federal policies developed for mainland conditions seem inappropriate given Guam's size, ...~~~~
. ·
~ dis~ce: geography, econ~I?Y •. histo~ and culture. From a polit~~ ~rsp~ctive, blanket s~~~t.- FJl~
-s~ ~ apphcat10.n ofFederal.pohctes ts unfrur because Guam lacks partictpatiOn m th~ Federal processzc-.:~~
r:..\- is ~ 1 ~&uough either full votmg representation in Congress or electoral votes for President. I do not "S
~r6~r;;;;. ·~~ieve that th~s. situ~tion is co~sistent with the ideals o~ a ?emocratic so.ciety. I hav~ therefore ""~'~_:-;;;;~_+<>'
v- v
. ~dvocated pos.It~o.ns ~n the G~ c:ommonwealth ne~~tlatwns ~at provide Guam With greater ep~~., ~
s~~ mput and flextbthty m the apphcat10n of Federal pohctes to the Island.
~~~"':>C.- \_
b·
.
.
Status Of Deal Breaker Issues
~~~t"'"'~
~~·
The original Draft Act contains approximately 90 sections spread over 12Titles. In prior
Administrations, Guam has insisted that I 00 percent of these issues be resolved in precisely the
same way they were approved in the 1987 Guam plebiscites. [n our negotiations and through the
COPY
�leadership of Governor Gutierrez, Guam has reduced its demands and identified a handful of
issues as "deal breakers"-- i.e., issues which are at the core of Guam's Conunonwealth package. ·
Guam accepted the concept of negotiating principles first, then language. This process has led to
the following proposed policies:
.
,~t\A~\.s~s
~
~c,t...:»·
Mutual Consent- agreed. Once a commonwealth pac age is e~ted, Mutual Consent
provides that neither Guam nor the United States can make arty changes to the package without
the express approval ofthe other party. The Justice Departmen. contends that one Congress
cannot bind subsequent Congresses from unilaterally changing the Guam Conunonwealth
legislation. Guam cites legal arguments indicating the opposite. Both sides reached agreement
~
by i~er:ting ,~ cla~se making mut~al consent enforceable "t.o ~e ~xtent constitutionally \ ~~,ss~~ ~
permissible. This preserves the Issue for subsequent determmatwn by the courts.
p...,...r\-':. '?,_;,<...4:)
s~~..,wl
· Ch~mo~ro Self-J?et~rmina~i~n - agreed. The o_riginal Draft Act ~ro:ided for Chamorro ~\~t...~
self-deterrnmatwn --a bmdmg, pohtlcal act to be exercised solely by the mdigenous people of
Guam to determine the ultimate political status of the island. The Justice Department questioned o-. ~~:....">'- ·
the-constitutionality of this provision on due process and equal protection grounds. These
· vJL~-.:l ~
concerns were addressed when both sides agreed to language making Chamorro selfb.._'\-...._\~·
determination an advisory act that would not be sponsored or funded by the government.
0
f\\i~h\-b<LI
c...,~ ()o.c;
::.
s\f.-W "'"'
~~=
Federal Excess Land- needS decision. The original Draft Act provided for a Guam~~\.~ controlled Commission that had the ~estricted power to determin~ which F~e~allands in
~.P-">
,.......
Guam are excess and to mandate their cost-free transfer to Guam without restnctwns or
...,.._..s. V\:l'lr- ~ compliance with Federal standards. This wa.S strongly opposed by a number of agencies,
(>ft'-l '' ..r-o.\~~cluding the Navy and the Air Force, which together own about one-third of Guam. Guam's
~~¥-- current proposal, which I support, is significantly more modest. It proposes that once Federal
~ ~ ::- lands in Guam are declared excess by the military or other Federal agency, the Government of
\ ...... :(.
G1.iam sho,uld be given the right to obtain such lands cost-free, but subjc;x;t to all other applicable
Fede_ral s~dards. A ~umber of agencies, including Defense, GSA and the Fish and ~ildlife
Service still oppose thiS modest proposal. r~ b ~s: \) A"'--vr..r-\ 't-'. ~q ~ ~ ~ ,~~.....+k l~ ~
.·
.
. .
. . •
·.r-h·h~... ~~ ~~~~\\- ~>~~~~1:. ~\\)~-~"()\tV.\
Jomt Commtsszon/Appltcatzon of Federal Regulatzons- needs dectszon. The ongmal J),"J) ·~
.
Draft Act called for a Guam-controlled Commission to regulate almost all aspects of Guam's ~~~:'\
relationship to the United States, including the power to modify the application of Federal laws \.._..__~1);)1)
5
and regulations to Guam. All Federal agencies strongly opposed this provision for jurisdicti~nal ~ . 1. ~\:~
and operational reasons. Justi~ also questioned the constitutionality of endowing a local
commission with Federal regulatory and legislative powers. Guam's current proposal provides
. ~
.
for a five-member commission, three of which would be Cabinet officers and two of which
would be nomi~at:ct by the Governor and appointed by th~ President. With respect ~o Fe~eral '(.j::'.,.~J:\1 1'\
laws, the conumss10n would merely provide recommendatiOns to Congress for corlSlderatwn.
~ 'bA~r- • • ( With respect to Federal regulations, the commission would be empowered to make final
i .... ~\l\~.l ._ ....._
'\ ........... ~~et~rrn~nati~n~ on how ~egula~i~ns are applied to Guam. I support this mechanism as a way of~~~~,..,
~~
mstltutwnahzmg Guam s partiCipation in the Federal regulatory process.
f.P\
..
skh
. v-V
c-:>~;~ ~ ~
~y-r-.
. s.,-._~.n
'tl,....
':)~~ ~~ .-.~-,'>
~·;sJ
~"I
~i)
2
~0·-~ \
,
1)<"""-
..,
,.yc-
~r 0""'~
.....\ : )
COPY
�Immigration~ needs decision.
P~rJ\ 'tk
Guam desires local control over immigration to the
island. It wants to significantly reduce the amount of permanent irrunigration from Asia, while
increasing its ability to bring in temporary workers. The Department of Labor and Federal law
enforcement authorities on the island strongly oppose giving Guam control over immigration.
They cite concerns about government corruption in Guam and the desire to avoid wide-spread
labor and immigration abuses which have occurred in the Commonwealth of the Northern
Mariana Islands. I believe that these concerns can be met by placing very specific and rigorous
safeguards in the Guam legislation that would ensure adequate local enforcement of !<~cal laws
that are at least as stringent as Federal laws. \ ~\....... N::\-\-- ~ ~~ Kk~ ~~<;. ?""
.
\
I
I
Other Issues -- There are other high priority issues which Guam would like resolved in
an expeditious manner: e.g., Labor, Tax, Trade, International Activities and Environmental
Regulation, among others. I believe that resolution of these matters will fall into place if we can
resolve the issues outlined above.
Delinkage From Puerto Rico
Some have suggested that Guam Corrunonwealth may have an impact on the Administration's
efforts to deal with Puerto Rico status options. I do not believe that there will be much impact, if
any. First, Guam and Puerto Rico are literally oceans apart in terms of culture, history,
~~
geography and population. I am informed that neither the leadership of Guam nor the leadership IfR ·
of Puerto Rico desire to see a linkage between their respective status quests. Guam .is much s ~~ ... ~ \J.
furtlieralong m pursumg a changed po.httcal status-- It se lected corrunonwealth m 1982 , o..x---.~ ~"<'<\~
.
.
..
.
.
l"'ol ~.lW\'
~'>
described its content in 1987 and has been negotiating with the United States on the details of .,.... \, "'~?
commonwealth since. 1988. In contrast' Puerto Rico is still struggling with the initial step of 'w:,~~...,... •
.
f ~~. ~\,"'"~ choosing a status option among statehood, enh~ced commonwealth and independence, an
f'O,) ;~
\ internal debate that has raged unabated since the early 1950's. Finally, there is only one
~r0"1:l1v)~\~ fundamental issue in Guam Commonwealth that may be relevant to Puerto Rico- mutual
o...C.c.>...rCL~
~ \~ consent and its implications on the viability of Puerto Rican commonwealth status. However, ~ ~
~"";l,.}-~ven this issue has limited impact because theJustice Department's position on mutual consent ,ss .....rc_ ·
in Guam Commonwealth has already been publicized in Puerto Rico. l ~~\ ~~ ~v.h \-c..~ ..:»..o... ~
.
.
of(X>h\q__ t:."r-. ~~ -.\.4._ '0, \\ N..J
Outlook
·
C.:l"--\...,:",s ·
l
vi""
Sustained focus and in\;'olvement by the White House will provide the broader policy framework
to guide agency consideration of Guam Commonwealth. Without White House direction, agency
positions on key commonwealth issues are likely to remain unchanged. Congress has not
reviewed commonwealth since 1989, ·when it directed the Executive Branch to work out
differences with Guam. Nevertheless, there are indications that the majority in Congress may be
sympathetic to commonwealth provisions that are consistent with the devolution of Federal
control to local governments. Meanwhile, Guam's leadership is disillusioned with the length of
the negotiating process and the perception that little progress has been made. In light of
indications that U.S.-Guam relations are growing increasingly unpredictable, I strongly
3
COPY
�re<;:ommend speedy resolution of priority commonwealth issues. The process has gone on too
long and Guam is too important for U.S. strategic interests to let our relationship deteriorate
further due to inaction. ·~ b-u.,.-., o- b-\- 5 ~ <" l..ll.._, '6"\ . l~ ~.\-<:. , 0~
sv-b~,.~......\:,.& c..a"'--~~~\)~c:,.. ·1~
·
N'-0-j
~\)\-l~ ...,..._~\ ..J~b\.&_ ~-\~.--....k-._~ {-::> ~
w~~~. ~~~<;. vh\\ ~.f.n_..~·
Attachments
w~'.-.\- .~ ~
I
~ ·,...,_~ ~ ~~~ ~'i~· j~,
~~~~~ ~
~ ~~
\
l.
Memorandum to Sandra Kristoff, NSC Asian Affairs, date December 12, 1996
(Procedural History of Guam Negotiations, Outlook)
2.
Letter to William J. Perry, Secretary of Defense, dated De mber 3, 1996 (Resolution
issues for Defense: Guam Excess Lands)
3.
Letter to Janet Reno, Attorney General, dated December , 1996 (Resolution issues for
Justice: Immigration, Labor, Excess Lands)
·4.
· Letter to Robert Reich, Secretary of Labor, dated Dece ber 3, 1996 (Resolution issues
for Labor: Immigration, Labor)
5.
Letter to Warren Christopher, Secretary of State, date December 3, 1996 (Resolution
issues for State: Immigration, Foreign Affairs)
6.
. Letter to the President, <.Iated November 8, 1996 (Stat s Report on Guam
Commonwealth);
7..
Draft Guam Commonwealth Act, dated August 23, I 96 (Contains legislative language
being negotiated on all issues as of August 1996)
8.
Commonwealth Bill, Section-By-Section Analysis, dated December 1993
(Compilation by Interior summarizing original provisions of Guam Commonwealth and
comments made by agencies in the 1989 and 1992 Federal Interagency Task Force
Reports)
9.
Pue
tus 0 tions, Congressional Research Service Issue Brief (Summan:U!S-history from 1898 to legislative proposa ·
4
COPY
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2006-0193-F - Guam [Part 1]
Identifier
An unambiguous reference to the resource within a given context
2006-0193-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/338be90c1783725a0a3bf8f52bd0937d.pdf
b62c4cf42c04fcc969f24e4e662ec969
PDF Text
Text
-----
-------~----c-----------------~------------~-----c----------------
.
I
,, :,
Withdrawal/Redaction Sheet
· Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
OOia. memo·
.re: Appointment of a Special Representative for purposes of political
status.consultations with Guam (Annotations) (I page)
03/16/1993
PS
OOlb. memo
To President Clinton from Secretary ofthe Interior. Subject:
Appomtment ofa Special Representative for purposes of politiCal
status consultations with Guam (2 pages)
03/15/1993.
PS
001 c. briefing
paper
re: Guam Commonwealth bill and Special Representative (4 pages)
03/1511993
.P5
001d. resume
DOB (Partial) (i page)
03/15/1993
P6/b(6)
002a. memo
To President Clinton from Secretary ofthe Interior. Subject:
Appointment of a Special Representative for purposes of political
status consultations with Guam (2 pages)
03/15/1993
P5
002b. briefing
paper
re: Guam Commonwealth bill and Special Representative (4 pages)
03/15/1993
PS
. 002c. resume
DOB (Partial) (1 page)
· 003a. memo
To President Clinton from Secretary of the Interior: Subject:
Appointment of a Special Repres~ntative for purposes of political
status consultations with Guam (2 pages)
03/1511993
P5
003b. ·briefmg
paper
re: Guam Commonwealth bill and Special Representative (4 pages)
0311511993
PS
003c. resume
DOB. (Partial) (1 page)
03/15/1993
P6/b(6)
. 0311511993
G tJ... 'l ~ o~....p
~')_qq
P6/b(6)
(.p
'd- C} ~
D~
COLLECTION:
·.· · Clmtcin Presidential Records
WHORM Subject File-General
FGOOl-02
.
.
OA/Box Number: · 2180 I
FOLDER TITLE:
.007422SS
Jamie Metrailer
2006-0193-F
'm89
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
PI National Security Classified Information [(a)(l) of the PRA]
· .P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
)>4 Release wo·uld disclose trade secrets or confidential commercial or .
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
. and his advisors, or between ·such advisors [a)(S) of the PRA)
. P6 Release would constitute a clearly unwarranted invasion of
· personai privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift..
PRJ\1. Personal record misfile defined in accordance with 44 U.S.C .
. 2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
ari ·agency [(b)(2) of the. FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release wo.uld disclose.trade secrets or confidential or financial
. . information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
·n
�EXHIBIT A
BACKGROUND ON GUAM COMMONWEALTH
Guam ctirrently is an unincorporated territory of the United
States~
In 1982, the people of Guam voted overwhelmingly (73
percent) for a Commonwealth status with the United States. Guam·
leaders ~enerally defined that status at the time "as a cl6ser
relationship to the United States~" Statehood received the
second highest number of votes (27 percent). In response to the
territory's desire for Commonwealth~ the Guam Commission on SelfDetermination drafted a proposed bill for submission to the u~s~
Congress to implement that ~tatu~. Against the recommendations
of Congre~sional leaders, Guam included in the draft. bill several
p~o~isions which U.S. leaders had stated they could not support.
The bill was formally introduced in Congress in 1988 and
reintroduced in 1989 and 1991.
A Federal Task Force, representing ~3 F~d~ral departments an~
agencies, has been engaged in discussions with the Guam
Commission on the draft bill for the past five years·.
Congressional leaders ~sked that Federal inter~gency group "to
narrow. the gap" between the bill's provisions and what the
Federal Government could realistically be expected to sti~port.
Congressional leaders share many of the concerns and objections
expressed by the Task Force in two reports on the legislation
which ~ere sent to the Congress in 1~89 and 1993.
Those reports supported the concept of a Commonwealth status for
Guam and endorsed a number of provisibns in the billi The Task
Force and Guam officials had reached compromise agreements on
revised versions of many provisions. However, the previous
Federal Task Force objected to key provisions, some on the basis
that they are unconstitutional or inconsistent with u.s.
sovereighty. Moreo~er, the Office of Management and Budget,
under the previous Administration, dire~ted the Task Force to
withhold comment in the 1993 report on topics already agreed to
. by Federal and Guam officials~
·
MAJOR ISSUES IN GUAM COMMONWEALTH BILL
.The major provisions in the proposed bill that must be examined
are as follows:
Section 102(f) - Chamorro Land Trust: Guam's desire for a Land
Trust that wquld be for the sole benefit of the Chamoiro people
was supported by the first report but opposed by the second. A
review might regain the original positi6n.
Section 102(g) - Residency for Voting: Guam desires lariguage that
would require up to three years residency to qualify for voting.
The task Force believes that durational residency clauses, as
opposed t6 bona fide residence requiremen~s, raise serious
�constitutional questions.
A review might produce a compromise.
Section 103 -Mutual Consent on the Commonwealth Act: Guam's
desire that there be· no amendment to any part of the Act without
Guam's consent presents a major concern . . Some accommodationmutual consent on a few fundamental provisions, as enunciated in
the 1989 Report, - may be possible through a further review.
Section 202 -Mutual Consent on Federal Laws: Guam's desire for
mutu~l consent (a veto) on Federal laws and regulations made
applicable to Guam under Commonwealth is inconsistent with u.s.
sovereignty, law, and policy. A "fast-track" reYiew process to
address this problem may be possible. The first Task Fo~ce
report supported such a mechanis~, but OMB directed the T~sk
F.orce not tci comment. on. this topic .in the 1993 report.
S~ction 203 - Joint Consultative Group: The first Task Force
. report supported such a group a·s a mechanism for conducting
regular discussions with Guam under Commonwealth on problems in
on-going relations. OMB directed the Task Force to withhold
coriunent on this subject in the _1993 report.
Section ·702 - Immigration: Guam desires a Guest Worker program to
provide alien laborers, but wants .to prevent them fr6m acquiring
naturalization rights and citizenship-on Guam iri order to ensute
that the local population will not be politically overwhelmed by
new immigrants.
A Task Force agreement with .Guam to address
this was blocked by the Labor Department in the 1993 r-eport,
which withheld comment on.the topic. A review might regain the
original position.
·
Section 1102 - Federal Programs and Supplemental Security Income
(SSI.): The Task Force opposed these issues but pointed out that
the only valid reason why SSI could not be extended to Guam was
the new ''Pay-As-You-Go" requirement of the Budget Reconciliation
Act. OMB directed the Task Force to ~ithhold comment on this
section in the 1993 report.
Other out•tanding issues are probably not resolv~ble.and should
not be opened to r~negotiation because they involve the integrity
of U.S. sovereignty and the application of prov~sioris of the U.S.
Constitut~ori and othei Federal laws to Guam.
These includ~:
Section 101(b) - Full Self-G~vernment: Guam's concept of "full
self-government~ is equivalent .to ~n internal sovereignty
inconsistent _with u.s. sovereignty and law. Gu~m's concept
envisions the local government having co~plete_ and exclu~ive
authoiity for all matters that could be handled by the local
government, i.e., everything except foreign ~ffairs and defense.
Local self-government in the United States must conform with the
Constitution and applicabl~ ~ederal law. Therefore, local selfgovernment is limited, not full.
Section 102(a) - Chamorro Only Vote on Self-Determination: The
�3
indigenous Chamorro p~ople of Guam acc~~nt for approximately 43
percent of the island's 133,000 popGlation. A Chamorro-only
self-determination vote denies other non-Chamorro U.S. citizens
on Guam fundamental constitutional protections.
.
.
.
Section 303 - International ·Activities: Guam's de~iie for carte
blanche authority for Guam to enter treaties in its own name with
sovereign states and join international groups is in~onsistent
with U.S .. sovereignty and foreign affairs. Section 1001 - Exclusive Economic Zone (E.EZ): Guam's. desire for
ownership 6f the u.s. Exclusive Economic Zone around the island
is inconsistent with U.S. sovereignty and law.
FUNCTION AND ROLE OF A SPECIAL REPRESENTATIVE OF THE PRESIDENT
The Guam Comm:i s'sion on seff-Determina tion, in a February 8, 199 3
meeting with me, expressed great disappointment with the recent
· Task Force repbrt and asked for my support of a ~residential
appointee to lead a Federal team in an~ther round of t~lks with .
. the Guam Commissio"n. Guam Governor Joseph F. Ada, who is
Chairman of the Commission, believes this appointment will
provide the Federal team with the higher policy-level influence
necessary to define a position more re~ponsive to Guam's
objectives. I understand the Governor .also has ~ritten to the
President requesting such an appointment and has met with White
House officials to reiterate the requ~st. Given the complexity
of the coordination process within the Executive Branch and the
uniqueness of the. insular territories in our Federal system, I
believe a Presidential ~ppointme~t wotild help to restore the
confidence of Guam leaders in the discussions and expedite the
development of this Administration's position on the bill and the
forwarding of thos~ views to the Congres~.
In making the appointment, the role and function of the
President's Special representative need to be clearly explained
to Guam leaders and the public. At the outset, it should be made
clear to Guam that the Presidential appointment in no way implies
an endorsement of the Guam Commonwealth Bill as drafted.
Parameters for the consultation piocess ne~d to be set. These
parameters should incl~d~ limiting the number of issues to be
examined ~nd setting a timeframe in which to complete the
consul tat ions and i:epo rt to Congress. Becau·se these discussions
already have taken five years~ arid the process o"n Gu~m is more
than a decade old, it is important that.the n~w round 6f talks be
complet~d expeditiously and that a report be sent to Congtess.
Six months to a year should be the Special Representative's
target timeframe.
The President's Spe6ial Representative should consult regularly
with and work closely with the Assistant Secretary of the Office
of Territorial and International Affairs and with representatives
of other federal ag~ncies and departments. The .Special
Representative also should ~egulaily consult with Congressional
committees regarding topics and issues discussed. Congressional.
�4
r~presentatives
should be invited to attend negotiating sessions.
-Iri addition to compl~ting the prjma~y task ~f reviewing and
commenting on the proposed bi 11, the Pr.esident' s Representative·
should also have the authority to discuss with Guam and
C6ngressional l~aders ~he possibility of another referendum on
.Guam with Free Association and Commonwealth 'on the ballot.
Members of the Guam Commission and Guam indigenous rights group
leaders h~ve stated to Federal offici~ls and the public that they
prefer Free Association. Moteover, num~rous.Executive Branch and
Congressional revi~wers of the Guam bill have stated that many of
the key concepts of the bill are closer to Free Association or
independence than to a commonwealth under United States
sover~ignty.
It should be noted that the overwhelming majority
of Guam residents appear to support a political status that
retains u.s. citizenship. If another referendum is pursued,
.Federal parameters for each status option should.be clearly
Qutlined and a public education campaign conducted ~o that voters
clearly tinderstand the differences between the status· options.
The expeditious appointment of a Special Representativ~ of the
President for these discussions with Guam will clearly
demonstrate this Administration's commitment to impr6ving Federal
relations with the insular areas.
�Withdrawal/Redaction Sheet
Clinton Library.
DOCUMENT NO.
AND TYPE
001. memo
·
DATE
SUBJECTfTITLE
To Steven M. Mertens from Jeffrey L. Farrow. Subject: Guam illegal
entries (1 page)
04/14/1999
RESTRICTION
P5
·COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Irene Bueno
OA!Box Number: 17173
FOLDER TITLE:
MISC-GUAM
.Jamie Metrailer
2006-0193-F
'm590
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- (5 U.S.C. 552(b)]
PI National Security Classifled Information [(a)(l) of the PRA]
· P2 Relating· to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]·
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of tlie FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
· . personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
· purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Jeffrey L F~r.row
04/14/99 04:53:15 PM
Record Type:
To:
Record ·
Steven M. Mertens/OMB/EOP
cc:
Irene Bueno/OPD/EOP
Subject: Re: Guam illegal entries ~
I
Interior opposes the Northern Marianas location because it would be taking advantage of the INA
· not applying to those islands when ·the President has strongly pushed for it to. (Interior is
responsible for overali policy concerning Guam and the Marianas.) Our using the Marianas that way
could be an argument tor Tom Delay in his effort to block the Administration (George Miller/Danny
Akaka) bill.
I think higher levels at DoJ may also share this concern -- the foreign worker situation in the
Marianas is a problem that has attr;:tcted national/international media, union, human.rights groups
attention. (20/20 may run a 2nd piece on it this week or next.) I have discussed this with Scott
Busby in the context of the boat heading to Guam. That may be ari isolated case that can be
directed to the Marianas but want to talk about it tonight on the 7 pm call. There are some other
islands associated with the US in the regiori that would be less probl~matic from this perspective
but may not be a solution forthis boat because of their distance.
�- - - - - - - - - - -
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE.,
DATE
SUB.fECTrriTLE
· RESTRICTION
001a. memo
To Andrew Fois from Randolph D. Moss. Subject: Department of
Interior report on S. 210 (2 pages)
08/12/1997
P5
U.30\
001b. note
re: ENRD comments to Interior letter to Don Young on S. 210 (2
pages)
08/14/1997
P5
(.p
002. memo
To Sylvia Mathews through Mickey Ibarra from Fred DuVal. Subject:
Guam (3 pages)
07/22/1997
P5
30 'd.,
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
OAfsox Number:
24088
.FOLDER TITLE:
Guam- Various V
Jamie Metrailer
2006-0193-F
'm593
RESTRICTION CODES
... Presidential Records Act- (44 U.S.C. 2204(a)] ·
Freedom oflnformation Act- [5 U.S.C. 552(b)]
Pl
P2
P3
P4
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Fede'ral office [(a)(2) of the PRA]
Release would violate a Federal. statute [(a)(3) of the PRA]
Release would disclose trade· secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
.and his advisors, or between such advisors (a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
c 0.
C. Closed in accordance with restrictions contained in donor's deed
ofgift.
· PRM. Personal record misfile defined in accordance with 44 U.
notm
·
RR. Document will be reviewed upon request.
·
·
.
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
.
b(3) Release would violate a Federal statute [(b)(3) of the FOlA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOlA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA]
b(8) Release would disclose information concerning the regulation of .
f i n · I ins· utions ((b)(8) of the FOlA)
b Rei se
d disclose geological or geophysical information .
erni wells [(b)(9) of the FOIA]
.
.
.
.
�L£:JVV ...
I
Mem.orandum
Date·
Subject
Departmen~
of Interior Report on S. 210
To
Andrew.Fois
• Assistant Attorney General
Office of Legislative Affairs
August 12, 1997
~~~dolph D. Moss~
Deputy Ass't Attorney General
·Offiee of Legal Couns~l
The Office of Legal Counsel has only one comment regarding the
Department of Interior Report on s. 210.
In providing for the
transfer of excess real property to Guam, section 4 of the bill·
dtstinguishes between the transfer of land for public purposes and
. the transfer of land for all other. purposes.
. Land that is
transferred fo'r·a public purpose is provided by the United States
without further consideration, while land transferred for other
purposes
to be sold at fair market value. The Office of Legal
C6unse~ suggests clarifying this distinction.
·
is
Section 4(c) (5) of the bill defines "public purpose" by
.reference to, among other things, "public benefit uses provided
under the Guam Excess Lands Act," Pub. L. No. 103-339, 108 Stat.
3116.
Section ·3(c) of the Guam Excess Lands Act, in turn,
authorizes the Gove:rnmemt of Guam to enact "legislation ·which
establishes a detailed plan for public benefit uses (including, but
not limited to, housing, schools, hospitals, child care centers,
parks and recreation, conservation, economic development, public
health and public safety.)" . In implementing this provision,
however,· the Government. of Guam concluded that the best "public
benefit use" for. the land was to return it to former "private"
owners.·~ Guam Pub. L. No. 22-145 (a copy of which is attached).
The manner in which Guam implemented the Guam Excess Lands Act
creates some ambiguity regarding the meaning of section 4(c)(5) of
S. 210.
.On· the one· hand, S. 210 seems plainly to reqliire
cornpensatiori at fair market·value for land transferred to private
owners. On the other hand, it might be argued that the reference
to the Guam Excess Lands Act suggests that land transferred to Guam
for a "public" purpose might appropriately be retransferred to
"private" individua,ls. Although we believe that, in the end, such
a c6nstructibn cannot withstand scrutiny, we suggest clarifying
that the reference to the Guam Excess Lands Act is not intended to
bring transfers to "private'' individuals within the meaning of
"public benefit." Such a clarification might be accomplished by
simply providing that the "public benefits" incorporated by.
reference to the Guam Excess Lands Act include only' those expressly
�enumerated
in
that Act.
�00/:L't/lll
:L:L.'t"
VL"'
ENRD Comments to Interior Letter to Don Yoting on
S~210
A.s a general matter, we think that it would be useful to
continue pursul.ng discussions with House Resources Committee
staff on the. Guam-related issues raised in the letter._ We r~gard ·
to the letter, we h.ave the following specific suggestions.
.
.
1.
We suggest that on page 3, the 2d full paragraph (starting
"Guam is a small island
.") be entirely deleted. We don't
think that this portion of the letter is necessary. If it is
retained, it should ·be clarifie-d that the overlay refuge is part
of the acreage administered by the military, and it would
accordingly be appropriate to use the_ proper GSA terminology:·
The paragraph, if retained, would then read:
.
Guam is a small island .
. is owned by the United States
and :a:mt:C.a~n:.:a~e:.de>r.nr. . ·,;q;;;:;:.c;m~r~.·4B:· . ea· b y a mil . ry dep a:itrnent. In
ita
g ·~,~-~~!")""~---- .........'jl,)~.....~....•~.-addition to the military, the United States Fish and
· Wildlife Service ii"dinYni'l'i:te"'ffSJr.f::aTi:Ni±i"afd•;~;'i;;-~;z~~f:une\:EO.£i<~qis a ma~ er
ili!lillililWi~'Wii~ru~b~JUW~bUk~~t2~~~~:~~~§~~ii~ifti.i~il~~.k2l.~:l.!fril~!!~~.d;[~!
Federal land manager en Guam. It mana§fes a 23,274 aeFe
\iJileilife Fefl:i~e, e-f uai€h-about 22,502 acres is an overlay
en lands managed ey 'tfie fflilitary. about 770 acres at.
Ritidian Point (400 acres of which are submerged)-are
Hiar.ta§Jeei ey 'tfie Serviee-=rer--t~· Federal Government:.
.
·
·
11 oJrWIL1I't l"l,.~lll!:.l~c:,i.:.., ...:~o,::.s:..~~~-·=•·•llo!•-·• ..
J
2.
All of the. 4th full paragraph (starting "The Congress and
the Administration _
.") should be deleted and only the last
sentence (starting "While t~e Administration agrees generally
with .
. ") retained in the. following modified form to clarify
that the proposed changes must be made prior to administration
approval:
While the Administration agrees generally with the approach
embodied in section 4 of S. 210, the Administration streFJ:g=ly
_believes ~~J~~t.ii~i~i that the ·following co·rrections fft'd-S-t:- be
made to properly implement this approach.
1)
The second full paragraph on page 4 should be modified as
follows to clarify.that the proposal only deals with the overlay
3~
�lands.:
The Administration proposal
c:~at.tefi'ffi'?,['O"fii;\~Guam
:!iillt~:!;1wi;••.~.~~;ii1m::m;~;llllr.!..l,~urum:&.ni,'
. located within the
:~~~*!'~~~
National Wildlife Refuge.
·
4 ..
The fi~st paragraph on page 5 shciuld be modified as follows
to clarify that the· propos-al only deals with the overlay land:
( 4) The term "~~~~~~~I~~~~f£~"!~~;1tf~~R;~;~;;I~ Guam National
Wildlife Refuge" . . . oz;~. page 74 and as s'l:l:BffieF~ea lanes
iB. fl§'u:??e 7 efi pa~e 78 of the ''final Environmental
Assessment for the Proposed Guam National Wildlife Ref~ge,
Territory of Guam, July 1993." ee tfie exteHt tfiat the
~al Government holds title to such lands.
Fourth full paragraph on page 5 should be modified to
reflect the fact that the District Court has ruled on these
·issues. However, since the court has been asked to reconsider
i~s decision and the ruling is therefore not final at this time,
it would be premature to emphasize this. Therefore, the passageshould most appropriately read:
5 ..
·Besides being unnecessary, . . . In that ease, wfiiefi is
fully 'briefea a;aa ar~ea aHa eld:rreRtly 'tl:ftaer aavisement, the
Ufiited St:ates has eeftsistefitly argtted t::fi:at: tl:lere is ·ae le~al
basis for Guam's elaim to.the land . . A statement by Congress
raisiHg, ld:ftfieeessa:??ily, seH!:e !fliestiea a:Seut: the prese:at
state of title to some of the lands at .issue in this case
has the ~eteRtial fer ~re)ld:~iei~uhe defense ef the title
·~ this land.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.··
AND TYPE
001. note.
002a. memo
002b. memo
. 003. memo·.
DATE
SUBJECTffiTLE
RESTRICTION
n.d.
P6/b(6) ·
08/1611996
P5
To Marcia Hale from John Garamendi. Subject: Guam Issues (I page)
08/I5/I996
P5
(i page)
08/I5/1996
P5
Phone No. (Partial) (I page)
To Harold Ickes and Marcia Hale from Jeff Farrow. Subject: Guam
. and Puerto Rico (I page)
To Marcia Hale from John Garamendi. Subject: Guam Issues
004. briefmg paper
re: Guam mutual consenfprovision agreyment and Puerto Ric.o (4
pages)
'*
Il/03/1994
P5
005a. memo
To Marcia Hale from Jeff Farrow. Subject: Points regarding the Guam
Commonwealth bill proposal (I page)
08/I9/1994
P5
005b. briefmg
paper
re: Points regarding the Guam Commonwealth bill proposal (2 pages)
08/19/1994
P5
006. list
Phone No. (Partial) (1 page)
12/16/1996
P6/b(6)
···-·
G·3o3
COLLECTION:
Clinton Presidential Records
. Intergovernmental Affairs
Marcia Hale
OA!Box Number:
9712
FOLDER TITLE:
Guam
Jamie Metrailer
2006-0193-F
'm114
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
. Freedom of Information Act- [5 U.S.C. 552(b)]
Pl.National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would. disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
·
b(8) Release would disclose information· concerning the regulation of
'al in 'tutions [(b)(8) of the FOIA)
) R as :w ld disclose geological or geophysical information
·
cern
wells ((b)(9) ofthe .FOIA] ..
.
.
.
c0 p
C. Closed in accordance with restrictions contained in donor's deed
of gift.
·
PRM. Personal record misfile defined in accordance with 44 U C.
2201(3).
RR. Document will be reyiewed upon request..
.
.
r
�Points Regarding the Guam Commonwealth Bill Proposal
Puerto Rico's commonwealth vs. statehood de~ate has to be
considered :Ln the handling of Guam•s commonwealth proposals.
Many of the same issues are involved. The fundamental .one is the
nature of a conunonwealth: Both Puerto Rico and Guam have
petitioned for a relationship under which they do not have to
a~cept the application of some Federal c3.ecisions~ Their lack of
power in the Federal process argues for limiting Federal
powers •.. but doing so involves constitutional questions.
Asserting that this power can be provided Guam because it has no
prospect of statehood· but not Puerto Rico because it does is
unfair and would suggest Puerto Rico has to and will become a
·state -- propositions which would create substantial controversy.
Among other major proposals in both the Puerto Rico and Guam
commonwealth efforts are: extension of s. s. I. (which would only
cost a few million doll,ars a year in Guam but some $900 million a
year in Puerto Rico) gng exemption from the requirement to use
u.s. flag shipping (a mainstay of the u.s. maritime industry.)
Puerto Rico commonwe~lthers are watching(;tiam. An observer went
·to the Pacific for a Guam bill hearing. Interior's recent
willingness to discuss lettingGuam determine the application of
some Federal policies made headlines in Puerto Rico. ·
·. Many of the issues are also common factors in relations with the
three other U.S. insular areas. In fact, Guam was encouraged to
include the proposals noted above because of their treatment in
the Northern Marianas Commonwealth Covenant.
The bottom line is that none of the insular areas other than
.Guam will accept the notion-that Guam's situation .makes "special
application of federal laws easier to limit to just that island. 11
And, ·contrary to the case of Guam, the political implications
regarding Puerto Rico (with 3~6 million people on the island and
2. 7 million in the States) are significant.· Policies that seem
unfair to Puerto Rico could backfire in 1996 and in Congress.
lGA should coordinate this with all policy councils/Legislative
Affairs. Other agencies should :be on the Working Group.
.
.
.
Guam commonwealth is primarily a ·domestic governmental relations
matter involving a.range of domestic and economic policy concerns
as well as the security interests noted in the memo.
IGA has been designated to lead an interagency effort on Puerto
Rico that will·include_all three policy councils and Legislative
Affairs. IGA also handles relations with Guam and other islands.
Because of the diversity of the issues and the need to coordinate
�'insular relations. IGA should lead coordination of. this effort
with other EOP offices and with other insular relations efforts-.
In view_ of. Guam•s proposals, Treasury, H.H.s., Justice{I.N.s. and
Legal Counsel, commerce, Transportation, and Labor should be .on
the Working_Group in addition to the reconunended agencies . .
While the memo proposes approving a Guam commonwealth structure
before deciding the handling of other insular relations matters,
IGA already has-a responsibility for those matters. The only
-questions regard setting up coordinating mechanisms for areas
other thanPuerto Rico and coordinating the various efforts.
·Because of the interrelationship of the issues and interests,
these insular structures shou)d be decided upon simultaneously.
The issues ·and instruotions should be clearer.
The key issues should be identified .to Panetta. In addition to
giving Guam the power to determine the application of some
Federal policies, S.S.I., and exemption from shipping laws, they
include: special rights for the indigenous minority of the
population; Customs requirements; local assumption of-Federal
functions; control of the u.s. economic zone off Guam; income
taxes; immigration; judicial appeals; and Federal land ownership.
The negotiating instructions should address all of.Guam•s key
proposals and be cleared by al~ agencies of jurisdiction in the
context of those proposals and of congressional positions.
Key Members of Congress should be-consulted on the issues.
Congressional committees have expressed general support for the
effort. But Cong~ess has specific constitutional and treaty
authority for insular status matters and some Members have
strongly held views on the issues. Senate Chairman Johnston has
already warned us. not to raise _Guam• s expectations and staff have
suggested recent positions on Puerto Rico provide precedents. The
President's commitment was to work with Congress as well as Guam.
Tbe timetable should permit consultation with Guam•s new leaders.
The memo calls for recommendations by the end of the year (when
the Republican-Governor leaves office and his lawyers hope his
successor has continued their retainer.) Guam's new officials
should have an opportunity to review the agreement; they will
. have· to support it in Congress. The Democratic Legislature
Speaker and leading candidate for governor have reservations
about the commonwealth process ... although not the proposals.
�I.
I
I
Withdrawal/Redaction Sheet
Clinton Library
DO-CUMENT NO.
AND TYPE
SUBJECT!fiTLE
DATE
RESTRICTION
001. memo
Memo from Bill Clinton to Guam delegation re: campaign (1 page)
07/15/1992
Personal Misfile
002. briefing paper
re: Points regarding the Guam Commonwealth bill proposal (2 pages)
08/19/1994
P5
003. memo
To Leon Panetta from Anthony Lake, Marcia Hale, Carol Rasco, and
Slli;an Brophy. Subject: Inter-agency working group on Guam (2
pages)
08/24/1994
P5
LP3D~
004a. briefing
paper
re: Specific comments on the memorandum for Leon Panetta (2 pages)
n.d.
P5
L0305
004b. briefing
paper
re: Specific comments on the memorandum for Leon Panetta (2 pages)
n.d.
P5
0
lo305 ·~
005. briefu:ig paper
re: Specific coniments on the memorandum for Leon Panetta (3 pages)
n.d.
P5
G3Dv
006. briefing paper re: Guam mutual consent agreement and Puerto Rico (4 pages)
11103/1994
P5
007. memo
Phone No.'s (Partial) (1 page)
11108/1994
P6/b(6)
008. memo
To Leon Panetta through MarCia Hale from Jeffrey Farrow. Subject:
Guam mutual consentagreemimt results (1 page)
11107/1994 . P5
009. memo
To Marcia Hale from Jeff Farrow. Subject: Washington Post article (1
page)
11116/1994
&3oS
Dl,..p .
I
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Cecily Williams
OA!Box Nuniber: 9901 ·
FOLDER TITLE:
Guam·
· Jarnie Metrailer
2006-0193-F
'mll9
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
PJ Release would Violate a Federal statute [(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
.
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release woilld violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
w;·"~·ation [(b)(4) of the FOIA]
.
PS Release would disclose confidential advice between the President
·and his advisors, or between such advisors [a)(S) of the PRA]
b(6) Relea would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
COR~o al privacy [(b)(6) of the FOIA]
.
7) Riea would disclose information compiled for law enforcement
personal privacy [(a)(6) of the PRA]
·
purpo es [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's de
u 1u 1 .-~•~a'
would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. D.ocument will_ be reviewed upon request.
r-----.....,.·
�6323
THE WHITE HOUSE
WASHINGTON
MEMORANDUM FOR.LEON PANETTA
FROM:
·SUBJECT:
L~
ANTHONY
MARCIA HALE
CAROL. RASCO
SUSAN BROPHY
Inter~Agency
Working Grou~ on Guam
Secretary Babbitt, with the conc~rrence of the President,·
appointed I. ~ichael Heyman in November 1993 as Special
Repi~sentative for Guam to n~gotiate a change. in the political
status of Guam.
Secretary Babbitt has now asked Tony Lake to convene an inter-
~agency working group un~er the auspices o£ the NSC to provide ~
high level forum to resolve issues that may arise ih his
with representatives 6f Guam.
Since fhe main
.American interest in Guam is the preservation of, our base rights,
we agree th~t the NSC structure is the right mechanis~ for interagericy coordination.
The NSC staff has briefed rel~vant
congressional committees which are supportive of this effort, as
are concerned federal agencies.
discu~sions
Attached at Tab A is a proposed NSC memorandum establishing the
IWG on Guam and providing terms of- refer~nce.
That .document has
been_ informally ·cleared by the agencies that would participate in
the working group.
·
·
There is a b~oader question of how the White Hduse should be
organized to deal with insular territories issues in general-and
how th~t should relate to Puerto Rico and to areas· in ~he Pacific
which have recently entered into new relations with the United
States.
In order to help-us think about those issues we asked
Interior to prepare a memorand-um on insuiar territories and State
to do a memo. an· the recently independent territories.
(The two
texts are attached at .Tab B-.) We will present a recommendation.
to you shortly on how we think we should proceed on the broader
question, but ~e are agreed that it makes sense to move forward
now with the inter-agency effort on the status of Guam.
�2
RECOMMENDATION
That you approve the process outlined above.
Approve _ _ __
-
Disapprove· _ ___
.Attachments
Tab A Memorandum for Mr. Itoh with ~egotiating Inst~uctions
Tab B Incoming Memorandums dated March 30, 1994 and·April 28,
1994
.
/..
�I
-·
'
j
~
. [o305 .
SPECIFIC COMMENTS ON THE MEMORANDUM FOR LEON PANETTA
lst paragraph
The purpose of the negotiations are to develop a positionon the
bill to make the territory of Guam the Commonwealth 'of Guam.
Whether this would change Guam into a different political status
is anunresolved question with major implications.
"Commonwealth" is a name that has no specific legal meaning.
Several States are commonwealths• Most Federal authorities
consider the two existing insular commonwealths to be territories
in a constitutional sense. Statehood, independen6e, and free
association are clear non-territorial status options. Commonwealth, in an insular context~ generally refers to a mutuallydetermined status arrangement, distinct from a relationship
solely determined by the Federal ·_Government.
Guam wants its commonwealth to be a different status (but some
say what it actually wants is closer to free association.) Its
primary_goal is for its consent to ·be required for Federal
policies to be applied, limiting Federal powers beciuse of the
island•s lack-of powe~ in the Federal system.
This involves a major constitutional issue that has been one of
the fundamental aspects of the status debates in Puerto Rico and
other insular areas. It should be recognized before a decision on
how to proceed is made. (Indeed, Guam thinks it is being
considered here •.. although the memo doesn't clearly address it.)
2nd paragraph
"The main American interest in Guam" is not "our base rights."
Guamanians are u.s. Citizens; their welfare is a main interest.
Also,. the term "base rights" is not applicable in U.S. islands
(where the Federal Government owns land) in the way it is.in
other countries (where it leases through bilateral agreements.)
The main purpose of st~tus legislation for ci U.S. insular.area
should be to improve its place within the U.S. political family .
. This· is ·in·. contrast to a primary purpose of the recent status
talks conducted under NSC auspices with the non-u.s. -Pacific
territory administered on behalf of the U.N. They had base rights
and fulfi~ling a commitment to the U.N. as their main purposes.
.
.
.
.
Given that Federal welfare,· shipping, customs, immigration,
labor, and tax laws as well as constitutional requirements and
basic Federal-insular government relations are major Guam
commonwealth issues, and given the implications for the Puerto
Rico and other Federal-insular relationships, the p~oposed
·
structure for inter-agency coordination should be revised.
�- 2 -
IGA has a lead responsibility on insular relations matters. The
DPC and NEC have substantive jurisdiction over many of the major
issues (and other lesser ones.) Also, Congress has specific
con~titutional and treaty responsibilities fo~ the territories
and so~e Members. are keenly interested in the subject.
The statement that the relevant congressional committe~~ are
supportive of the effort should be qualified. The lead committees
are supportive of the effort but have qualms about some of the·
proposals. Other committees may also need to be.consulted later
in coordination with the lead committees.
3rd paragraph
The "terms of reference" (or "negotiating instructions'.') should
be clea~ed in the context of Guam•s specific proposals bi all key
EOP offices and agencies of jurisdiction. They should also be
discussed with key Members of Congress before being finalized.
Additionjlly, the key issues should be more clearly identified in
the memo. In addition to those mentioned above, they include:
rights for the indigenous minority that would not be available to
other u.s. Citizens there; judicial appeals; the local as'sumption
of Federal functions; transfetring militar~ facilities; etc.
4th paragraph
The broader que-stion of how the White House should be organized
to ~eal ~ith other territories issues is distin6t but should be
resolved before a decision is made on this structure.
Fortunately, it should not take too long. House Chairmen George
Miller and de Lugo have.already raised it with Panetta and
Marcia. There have been discussions for months that have aiso
involved Senate Chairman Johnston.
How both of these structures should relate to the structure for
handling Puerto Rico•s commonwealth proposals and issues is
critical •.The Puerto Rico matters have significant national
·substantive and political implications. Further, ·they are not as
separable from the identical proposals relating to Guam as has
been advised. IGA is leading an Inter-Agency Working Group on
Puerto Rico that has already been announced .
.On the. other hand, how these structures should relate to the
three non-u.s. Pacific insular areas which have or·are entering
into special relationships with the u.s. is really a minor
matter. There should be coordination with the existing
Interagency Group on Freely Associated State Affairs but major·
changes do not need to be made.
�'.
'l
SPECIFIC COMMENTS ON THE MEMORANDUM ·FOR LEON PANETTA
.1st Graph
Mike Heyman is understood to have been appointed to negotiate
making the territory of Guam the Commonwealth·of Guam ... rather
than to negotiate changing Guam's political status. Whether
commonwealth would change Guam into a different political status
is ~n unresolved question with major implications.
ricommonwealth" is a name that has. no specific legal meaning.
Several States are commonwealths. Insular areas considered by
most Federal authorities to be ter~itories in a constitutional
sense are called commonwealths. The preponderance of opinion is
that statehood,· independence, and free association are the nonterritorial status options. Commonwealth, in an insular context,
· generally refers to a mutually-determined status arrangement,
distinct from a relationship solely .determined by the Federal
Government.
It is clear that Guam wants its commOnwealth to be a dif.ferent
status. (Some say what it wants is closer to what is generally
con.sidered to be free association thi:m what is generally considered to be commonwealth.) The island's key goal is for its·
consent to be required for the application of any future or
speci~ied Federal policies (limiting Federal powers because of
the island's lack of power in the Federal system.)
·This involves a major constitutional issue that has been one of
the fundamental aspects of the status debates in Puerto Rico and
other insular areas. It should be recognized befor·e a decision on
how to proceed is made. (Indeed, Interior, ·has su~gested that i$
the purpose of this memo.)
2nd Graph
It is 6ffensive, iriaccurate, arid misleading to say that ''the main
American interest in Guam is the preservation of our base
rights."
Guamanians are u.s. Citizens; their welfare is a main interest.
Also, the term "base rights" .is not applicable in u~s.
territories in the way it is in foreign countries.
The main purpose of status legislation for a U.S. insular area
'should be to improve its place ~ithin the u.s. political family.·
This is iri contrast:to a primary purpose of the status
negotiations conducted under NSC auspices (and, during Republican
administrations I by I among others,· Guam I s current lawyers) with
non-u.s. insular areas. They had base rights as a main purpose.
Given that Federal immigration, labor, welfare, shipping,
�,-----~--------------------------------------~--------------------------------~------------,
- 2 customs, and tax laws as well as constitutional requirements and
basic Federal-insular government relations are major Guam
commonwealth issues, and given the implications for the .Puerto
Rico and other Federal-insular relationships, the structure for
inter-agency coordination should be revised.
IGA has a lead responsibility within the White House on insular
relations matters. The. DPC and NEC have .substantive jurisdiction
over many of the ~ssues. Also, Congress has specific
.
constitutional and treaty responsibilities for th~ territories
and some Members are keenly interested in the subject.
The statement that the relevant congressional committees are
·supportive of the effort should be qualified. The.lead committees
are generally supportive of the effort but have qualms about some
of the proposals. Other committees may also need to be ·consulted
later in coordination with the lead committees.
3rd Graph
The "terms of reference'' (or negotiating instructions) should be
cleared in the context of Guam's specific proposals (bill) by all
the EOP offices rtoted above as well as by other agencies and
should be discussed ~ith ~ey congres~ional leaders before being
finalized.
·
.The key issues should be more clearly addressed and noted. In
addition to those mentioned above, they include: rights for the
indigenous minority that would not be available to other U.S.
Citizens there; judicial appeals; the local- assumption of Federal
·functions; transferring military facilities; etc.
4th Graph
The broader question of how the White House should be organized
to deal with the other territories issues (including American
Samoa, Northern Marianas, and Virgin Islands issues as well as
other Guam issue~) ~s·'distinct but should be resolved before a
decision is made· on the structure for Gu·am. It should nof take
too long to resolve, though. House Chairmen George Miller and de
Lugo are dissatisfied with the current staffing arrangement and
_have already raised it with Panetta and Marcia. There have been
discussions for months also involving Senate Chairman Johnston.
How th~ structures for handling territories issues and Guam's
commonwealth proposals relates to the. structure for handling
Puerto Rico's commonwealth proposals and issues is critical. The
P.uerto Rico matters have significant national substantive and
political implications and.are not as separable from the
�- 3 -
.identical proposals relating to Guam as the Interior Department
has advised the NSC. Marcia and I are about to organize an InterAgency Working Group on Puerto Rico that has already been
announced.
On the other hand, how these structures should relate to the
three non-U.S. Pacific insular areas which have or are entering
into spe~ial relationships with the U.S. is really a minor ·.
·matter. There should be coordination with the existing
interagency Group on Freely Associated State Affairs but major
changes_do not need to be made.
�·Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. memo
To Robert Suettinger from John Garamendi. Subject: Guam
Commonwe~1th Negotiations. (2 pages)
03/13/1996
. P5
w3D7
002. i:nemo
To Leon Panetta and Sandra Kristoff from John Garamendi. Subject:
Situation in Guam. (2 pages)
·
·
10/18/1996
-P5
Co3D8
COLLECTION:
Clinton Presidential Records
National Security Council
Asian Affairs
OA/Box Number:
I 046
FOLDER TITLE:
Guam, 1996
Van Zbinden
2006-0193-F
vzll74
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
.. PI
P2
P3
. P4
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors· [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal:privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with.44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b))
b(l) National securitY classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release. would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
lliformation [(b)( 4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
�.12ll [oi'j
&>3D/
United States Department of the Interior
OFFICE OF THE DEPUTY SECRETARY
Washington, D.C. 20240
( '\ I
' l
'(\
I
~~
,.....
;;-
(5'.1
March 13, 1996
TO:
Robert Suettinger ·
Director, Asian Affa~
FROM:
John Garamendi
Deputy Secre.taiy
SUBJECT:
Guam Commonwealth Negotiations
Surmriary: A successful negotiation is possible if the Administration is willing to accept
that Guam is unique and should have special status and laws. However, the negotiations with
U.S. Government departn:ients have notbeenproceeding well becauseofpolarized views on
several issues. Agencies have been reluctant to move when it requires exemption or variation to
existing Federal laws and regulations or allowing for self-governing status for Guamanian
jurisdictions. At the saine time, the agencies are trying to be responsive and we will be meeting
with them individually during the next two weeks in an attempt to break up some of the logjams.
Our most recent meeting with the Governor and some members of the Guam Commission was .·
very promising. End Summary .
On Febru~ 23, I chaired a meeting of all Federal agencies having an interest in our·
negotiations on Guam's Coinmonwealth status. I made it clear that we (myself and Mark
Mulvey who has been detailed from State to assist me) were going to actively engage the
.agencies, and the latter have responded accordingly by providing us with updated position papers
based on the most recent Guamanian positions (attached). As you can discern from the four .
position papers, the Guamanian demands focus on self-determination in general and pose a
dilemrrl.a for the Federal agencies entrusted to maintain the uniformity of U.S. laws and
regulations. The essence of some of the agencies' arguments is one of principle and they see no
basis for granting exemptions.
·
. There is room for :movement on both sides. At a March 1 meeting with the Governor and
his staff, the Guamanians were open to suggestion on how best to articulate their need for
change.· I also sense the Governor sincerely wants to close on these negotiations and is n~er
. taking a position of"all or nothing". During the next two Weeks, Mark Mulvey will meet with
1849 C St., NW, Room 5108
Phone: 202-208-6291
�2
.the agencies individually to bring the· two sides closer together -- something I believe is
achievable within the next few months. In response to Guam's request to control the
i~igration process. State suggests that to create a separate process for Guam is an unwelcome ·
burden and expense at a time of massive downsizing. This type of excuse is unacceptable. We
. have an obligation to the people of Guam to negotiate in good faith. Twelve years of similar
excuses have left the Guamanians with little, if any, trust with respect to the agencies.
.
\
Our goal should be to provide Guam with maximum democracy within the American
family consistent with long term strategic objeCtives. We must therefore take into consideration
all the aspects of Guam's uniqueness. I also am managing these negotiations in the context of
US national interests -- and in this light we have to be flexible and creative enough to grant
exemptions to Guam in meeting these interests. I plan to produce an agreement for
Congressional approval this yeat, and I expect the Federal agencies to be forthcoming and
helpful in this process.
Attachment
·.·.
�.l.o3o3
United States Department of the Interior
. OFFICE OF THE DEPUTY SECRETARY
Washington, D.C. 20240
October 18, 1996 .·
MEMORANDUM
TO:
·Leon Panetta
Chief of Staff
The White House
. vSandra.Kristoff
Director, Asian Affairs
- National Security Council
FROM:
.
John Garamend~i !.
. ,/
DeputY Secretary
· /
Department of e I~) ·or
.
.
/
/
/
__;_/._.
SUBJECT: Situa-tion in Guam ·
.The President should stop in Guam when he travels to the.APEC meeting. I am informed that ·
Governor Gutierrez is under significant presstire to obtain White House agreement for the
President to .stol? on the island Of\ the way to or from the upcoming APEC meeting in Manila.
The Governor and other Guam leaders consider a Presidential stop of 1,1tmost importance to
continued good relations with Guani. Not only would a Presidential stop reaffirm the importance
of Guam to the United States, but it would also go far in defusing the negative public perceptions
.ofthe events previously outlined above. Conversely, ifthe President does not stop in Guam, it
· may be considered the proverbial "straw that broke the camel's back." I am informed, among
other things, that this may result in Guam's immediate termination,ofthe Commonwealth
negotiations arid local political fall-out on continued U.S. military presence in the island.
.
.
.
As the Administi~tion's Special Representative for Guam Commonwealth, I have been
. attempting to bring closure to these political status negotiations· since the beginning of this year.
My goal has been and remains to reach an ·agreement which·wouldaccompli"sh Guam's desire for
maximuin self-government under continued U.S. sovereignty, while addressing the concerns of
various Federal agencies whose programs might be impacted by a new status for Guam. While
prospects for a speedy resolution of these talks seemed bright early on, these prospects dimmed
considerably during the summer and early fall wheri Federal agencies retreated to harder line
positions.
�- 2·-
Nowhere has this reversal been more glaring than with the agencies' position on the issue of .
. .Federal excess land in Guam .. The Department of Defense, the General Services Administration,
the Ffsh & Wildlife ·service and the. Department ofJustice all strongly opposed Guam's modest
. proposal to be given the "right of :first refusal" to obtain lands that Federal agencies no longer
needed in Guam. As you may be aware, Delegate Underwood's bill on this issue died in the ·
waning days of Congress despite last minute attempts to reach an accominodation .with interested
Federal agencies:
.
.
..
From the Guamanian perspective, the failure of the excess lands bill has been intertwined with a
series of events which are considered affronts to Guam's dignity-- e.g., stalled progress ln. .the
.
Guam Commonwealth negotiations, the lack of a presiden~ial directive on Federal, a perception
that the Fish·& Wildlife Service desires to obtain large tracts of the island as critical habitat or
wildlife refuge, a recent report denying Federal responsibility to appropriate funds to offset the
impact of Micronesian immigration to Guam and a recent Navy decision ~o relocate a
$35-million-a-year Diego Garcia shuttle mission from Guam to Japan. As a result of these
events, Governor Gutierrez, Delegate Underwood and other Guam leaders have significantly
stepped up their public criticism of U.S. policies toward the island. In short, an atmosphere of
tension,_ qistrust and hostility is.growingi~ Guam against the United States. See attached
articles. .
·
This deterioration ofU.S.-Guam relations cannot but,have a detrimental effect on our long-term
strategic interests in the Asia-Pacific region. It is ironic that this increase in tensions with Guam
is occurring at precisely the same ti.tv.e that the U.S. has used its Air Force base in Guam to
Iaurich bomber attacks against Iraq, thatthe U.S. is now using Guam as a staging area for
thousands of ~urds evacuated fr9m Turkey and Iraq, and !hat there are currently discussions to
transfer some Marine units to Guam from Okinawa due to the unpopularity ofU.S. presence ·
there. 'Many of Guam's leaders are seriously beginning to question whether it is in the island's
· bes~ interest to continue cooperating with the United States.
I raise these issues for your consideration because I think the President should be made. aware of ·
them. As soon as the elections are over and before the President leaves for APEC, I suggest that
we get together to discuss our next steps in addressing Corrinionwealth and other Guam issues.
At some point before the end of the year, it will probably be necessci.ry for the White House to get
more directly involved in these matters: In the meantime, my staff and I will COJ?,tinue to monitor
the situation in Guam closely.
Attachments:.
I. An American Colony
2 Land Bill Hits New Snag, Clinton, Defense Oppose Guam Land Return Act.
3 .. Gutierrez Returns Federal ,Check
4. Humans· Are Also Endangered Species
5. 2000 Refugees, Kurds Flee Saddam, Arrive In Guam
6. Underwood's War Of Words Over Supply Ship Continues
J
�Withdrawal/Redaction Sheet.
Clinton Library
DOCUMENT NO.
DATE
SUBJECT/TITLE
RESTRICTION
AND TYPE
001. email
To Morton Halperin from Danny Aranza. Subject: Special
Representative on Guam Commonwealth. (2 pages)
02/14/1995
P5
·oo2. memo
ForT. Alexander Aleinikofffrom Janice Podolny and Craig
Raynsford. Subject: Commonwealth Negotiations with Guam: (4
pages)
11/30/1994
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Democracy, Human Rights, and Humanitarian Affairs (Morton Halperin)
,ONBox Number: · 492
FOLDER TITLE:
Guam#2 [1]
Van Zbinden
2006-0193-F
vzl182
RESTRICTION CODES
Pr-esidential Records Act- [44 U.S.C. 2204(a)] .
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate Federal statute [(a)(3) of the PRA]
P4 Release woUld disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
a
C. Closed in accordance with restrictions contained in donor's dee,__ _ __......,~="i"'
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request.
�Jvlen1ora11dum
DRAFT
·Dat~.
commonwealth Negotiations with Guam
NOV 3 0 1994
j,,
From
~-
Alex~rider
Janice Podolny
Aleinikoff
craig Raynsford
General counsel
Associate
Gen~ral
Counsol
Th~ issue of immigration. control has aris~n in· discussions
concerning the Guam Commonwealth Bili. The Representatives from
Guam .want to restrict permanent immigration, while at the sa1ne
time establishing a temporary Worker program to promote economic
dt:1VEd oprnent.
·
The Guamanians argue that the ever...,.increasing migration of
r~ndered the indigenous population a
minority. consequently, they have requested that complete control.
over immigration policy and administration be turnad over to the
newly created Commonwealth. As a compromise, the last Federal
Task Force to consider this issue suggested amendments to the
Immigration and Nationality Act that would limit immigration to
the island without relinquishing Federal control.
East Asian immigrants has
These recommended amendments would limit immigration to: (a)
spouses and children of both United states Citizens and permanent
resident aliens in the United States Armed Forces stationed in
Guam; (b) spouses and chiJdren of United States citizens
·permanently residing on Guam; ·and (c) .spouses and unmarried
children of permanent resident aliens residing on Guam for two
ysars from the date of enactment. Once this t\.lo-year grace period
expires, permanent resident aliens-on Guam, other than members of
the Armed.Forces, would no longer be permitted to petition on
behalf of their relati~es. Additionally, Guarn ~ould tio lo~ger be
considered ~art &f the United States in calculating the length of
a permanent re-sident alien's physical presenc~ for naturalization
purposesF thus making Guam less attractive to prospective
imm1grants.
Iss~~s
Presented.
1.
Doea this proposal violate the constitutionally guarantead
right to equal protection?
·~
f. ~.Jr ,-;-. ( ... 2
(Nev. 1-Z-C.:l~
tf~LINTONLIBRARY PHOTOCOPY
'\
�I
.·
,
'·
'
.'
2.
Is tnere a viable alternative to the restrictions proposed
by the Fedaral Task Force?
Summary C.9i"J.Clueione.•
· 1.
.The Task Force proposal is not unconstitutional as a denial
of equal protection. The. constitutionality of legislative
prono~cements distinguishing between aliens and United states
citizens is based en whether tha laws in question have a rational.
basis. ·~inca the Task Force proposal is rationally relate~ to a
legitimate federal interest, i.e., preserving the .ethnic identity
of Guam's indigenous population, the Charoorros, it most likely
·
would withstand constitutional challenges on e~ual protection
grounds.
2.
One alternative to the Task Force proposal· is the creation
of a special visa preference system for Guam.
Discussion.
1. · Const.itutional it)!. ·
'l'he scope of judicial inquiry into irn.ro.igration legislation
is extremely limited. The Supreme Court "has repeatedly
emphasized that •over no conceivable subject. is the l~gislativ~
power of Congress more colhplete that it is over' the admission of
aliens.~~ Fiallo v. Bel]., 430 U.S. 787, 792 (1977), quoting
Qceanic Nayiqation Co,. v. StranahEU],_214 u.s. 320, 339 {1909).
«•congress regularly makes [immigration] rules that would be
unacceptable if applied to citizens'~" Ziallo at 792, guoting
. Matthews y. Diaz, 426 u.s. 67,80 (1976). In Fiallo, appellants
argued that they .were denied equal protection by the provisions
in the immigration and Nationality Act of 1952, which
distinguished between the preferemtial immigration status granted.
to an illeaitimate child.and his natural mother but not to su6h a
child and his natural.father. The Court held that this
·
· .·tinction was a policy question within Congress~. exclusive
~nee, and that congress' determination of whether preference
g should be granted to illegitimate children and their
· 1 fathers is a legislative decision subject to limited
... · ~1 review •
. · long as a rational basis e>eists ·for a legislative
·
betw~en aliens and citizens, the law will s~rvive
. l.challenge on equal protection grounds. H[T)he role
• s ~n analyzing an equal protection challenge to a
. tion statute is limited to determining- whether .the ·
~ue is rationally related to the achievement of a
c:l~ral interest. " lllsok;v-ell v. Thornburgh, 745
,,. "'"'·..:\,·.1_ 5.39 (C.D. Cal. 1989). ~ ~' Smith v.
...
~~~!.Sl.!iia!!:~~~~!lL£§~:J..SC~,
6S 4 F. Supp. lll3 , 1116
the Task Force proposal has an arguably
pe:~.co·\r;:,.J!•f"'\JN oHnTnfY1PY
P·r·t_l~~~~!
~
i':i b-~. L•_.. • -......- •.-:.......-
·
-1\
\.
LIBRARY PHOTOCOPY
j
�v
.... j
-
rational basis--to protect·the ethnicity of .Guam's indigenous
pbpulation, the Chamorrosl-~ it is likely it would withstand
constitutional muster.
2. Alternative to Fe.deral Task_.i'orce Eroposal,.
One·alternative to the Task Force proposal would be the
creation of a separate special visa preference program for Guam.
Modeled after the existing preference systeru for the entire
United States, such a program would preserve present immigration
· · policy while addressing the concerns of the Guamanian people by ·
placing numerical ·li~itatidns on the issuance of vis~s for
inunigrants destined. to Guam.. Assuming that. this limitation .
furthered a legit iina te government interest , ·i . e, to protect the
ethnic identity of the Chamorro people, euch a program should
withstand a constittitional challenge on equal protection grounds,
as the scop~ of judicial. inquiry would be very narrow.
Clearly, such an admissions program would only relate to
persons entering Guam from outside the United States. Thase ·
~imitations would not affect perscins legally admitted to other
parts of the United States from traveling to Guam. Aside from
.the constitutional problems inherent·in trying to prevent such
migration, it·would be difficult to police the movement of aliens
from other parts of the United.States to Guam.
'l'he de·fini tions, documentation requirements, and procedures
used in the program.· wo.uld those set forth in the Immigration and
Nationality Act, although these categories could be adjusted to
better meet Guam's needs.
Placing numerical limitations on each of the categories in
this manner would discourage immigration to Guain and respect
Guamanian interests in self-determination • . Furthermore, this
alternative proposal would permit the regulation of immigration
to ~uam in a manner consistent with the existing pr~ference
sy:::~tem .. ·
we anticipate the following objections to this proposed
. nmini-preference" system:
1. Since people can ·move. from the tnainland to Guam, this system
would not totally restrict non-Chamorro immigration to. Guam.
as
This is true under the current system
well.
Moreover, it is a circuitous and unattractive alternative for one
Response:
lThis might be challenged as an impermissible race-based
· HoweVer, it is consistent with the range of
statutes dealing with the territories and analogous to federal
.efforta regarding protection, study and self-determination of
Indian tribes. ·
di~tinction.
PRE~E.f.iVAY !ON PHOTOCOPY
. .
·r::;:-~-i(
.
U~LINTON LillRARY PHOTOCOPY
\
.
\
�l s :2 1
~.j 0 .
0 17 p . 05
individual to move to th~ continental United States with the
intention of tiltirnately residing iri Guam.
2.
The creation of these special immigration limitations for
Guam may draw criticism from persons in other are&s heavily
affected by legal and illegal immigration, such as_ California and
FJor·ida.
Response: The territories ~re different fro~ individual states,
and special arrangements have'historically bQen made with respect
to their immigration policies. For example, the Northern Mariana
Islands have nearly total control -of their ·own irntnigration, while
Puerto Rico has virtually no control.
3. lf a mini-pr~ference system is created, and the priority
dates are more favorable than the normal worldwide-quota system,
·this will provide an incentive to immigrate through the Guam
preference system.
Response: T~is mini-preference syste~ could be ~ntegrated int.o
the present worldwide. system, providing for a separate numerical
limitation for Guam, limited by ~receiving" destination, i.e.
·Guam. r.rhere would· not be an ·in¢entive to imn'ligrate through the
Guam system if aliens issued immigrant visas under the Guam
preference system were restricted in where they could reside. In
other words, all aliens immigrating under the Guam preference
system would have their visas stamped "restricted--only valid -in
.GuamH. Likewise, all persons immigrating under the normal (nonGuam) system would have their immigrant visas stamped ·"valid
except in Guam". • This raises the issue of whether there is a
constitutional right to travel on the part of lawful permanent
resident aliens, and whether ·the federal gover~ment could
lawfully try to limit such travel •
.,
,_-r' ..
LA~LINTON LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE'
·
DATE
SUBJECTmTLE ·
RESTRICTION
06/2911994
P5
Proposed Alternatives for Mutual Consent Provisions. (2 pages)
06/29/1994
P5
002a. letter
Duplicate of001a. (2 pages)
06/29/1994
P5
002b. memq
Duplicate of001b. (2 pages)
06/2911994
P5
003a. letter
Duplicate ofOOla: (2 pages)
06/29/1994
P5
Duplicate of001b. (2 pages)
06/29/1994
P5
004. memo
For Secretary Babbitt frOm Mike Heyman. Subje~t: Guam
Commonwealth. [partial] (4 pages)
·
06/30/1994
P5
(o~IO
005. memo
Duplicate of004. (4 pages) ·
06/30/1994
P5
031D 0~
006: note
To-Morton Halperin-from-Mike -Heyman: (1-page)
06/-1-6/-1994
p~
007a. letter
To Morton Halperin from Mike Heyman. (1 page)
06/02/1994
P5
U>311
007b.memo
Guam's Negotiations. (5 pages)
06/02/1994
P5
(J,3l~
001a. letter
To Michael Hayman from Walter Dellinger. Subject: Guam
Commonwealth Act. (2 pages)
001b. memo
·oo3b~
memo
'
COLLECT!ON:
Clinton Presidential Records
National Security Council
Democracy, Human Rights, and Humanitarian Affairs (Morton Halperin)
OA!Box Number: 492
FOLDER TITLE:
Guam#2 [5]
Van Zbinden
2006-0193-F
vzll83
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA]
N atiomll Security Classified Information [(a)(l) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
Relating to the appointment to Federal office [(a)(2) of the PRA)
an agency [(b)(2) ofthe FOIA]
Release would violate a Federal statute [(a)(3) of the PRA]
. b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
Release would disclose trade secrets or confidential commercial oi:
b(4) Release would disclose trade secrets or confidential or financial
fmancial information [(a)(4) of the PRA]
P5 Release would disclose confidential advice between the President r---~~.:inf~o~r.::m~ation [(b)(4) of the FOIA]
b(6) Releas would constitute a clearly unwarranted invasion of
and his advisors, or between such advisors [a)(5) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
privacy [(b)(6) of the FOIA]
_
as would disclose information compiled for. law enforcement
personal privacy [(a)(6) of the PRA]
os s [(b)(7) of tl!e FOIA]
.
- .
p
C. Closed in accordance with restrictions contained in donor's deeo...---~11,1-1;'-1:.1.1~ would disclose information concerning the regulation of
of gift.
financial insgtutions [(b)(8) of the FOIA)
PRM. Pe-rsonal record misfile defmed in accordance with 44 U.S, C.
b(9) Release would disclose geological or geophysical information2201(3).
concerning wells [(b)(9) of the FOIA)
RR DocUment will be reviewed upon request.
· Pl
P2
P3
P4
Co~
�. .
.. . .
'-: .... • l' •
~·
1.. l
~
~~ .:.
~ .:. 'I -
1
L .:.
··~ 1.
3 ..
We probably will do decently with the pragmatic
subjects, although the initial reaction of·career folk in a
number of agencies is a bit discouraging.
I am not optimistic about the syffibolic matters.
There
are. four of concern:
land, self-determinatidn, required
mutual consent to changes in applicable Federal law, and
required mutual consent· to changes J.n the. commonwealth
c6venant.
If we do not show flexibility on any of the
symboUc .issues, we will lose credibility,· respect and
connection wi-th a good number of Guamanians, especially
those of Chamotro identity. Moreover, we will help
legitimize the independence movement, esp~cially ~mong the
young . . It is often said ~hat a large.rnajoiity of Guamanians
are pro~united States. This is· true. But the percentage of
fiiends diminishes with the age .of the respondent.
Those
who will run Guam 10 and 20 years from.now owe no allegiance
to Uncle Sam.
If we ~re to maintain otir substantial
.·military presence and potentia1 other ·than by force behind
walls, we must act in a way that meets spiritual as well as
economic needs.
·
Mutual Consent to Changes in a Commonwealth Act
Of the four symbolic issues, the one most amenable to
our positive response is a requirement in the eventual ,
Commonwealth Act that changes in the Act require the consent.
of both the Congress and Guam.
A provisibn of this sort was included in the covenant
establishing the Commonwealth of the Northern Marianas:
Section 105
In o~der to respect-the right of self government guaranteed by this Covenant, the United
States agrees to limit the e~ercise of that authority
[to p~ss laws applicable to the North~rn Mariana.
Islands] s6 that the fundament~l provisions·of this
covenant, artibles I, II and III and Sections 501 and
805, may be modified only ~ith the consent 9f the
Government of the United States and the Government of
the Northern Mariana I~lands.i
The Depaitment of Justice is taking the position that a
.similar provision in the Conunonwealth Act for Guam would be
~nconstitutional.
This was stated ~irectly in a letter of
May 12~ 1994, from Walter Dellinger to Michael Heyman.
The
operative paragraphs are:
~The most difficult problem presented by your
proposal j_::; ~hether it i_s_ p_QJ2§ 2.ble to inununi ze the
·
.
~~:iNToN ~~~~· ;~oTotoi>¥-~RESE~~JAT! ON PHOTOCOPY
�4
autonomy that is to be.granted to Guam from future
intrusion, in other words, whether the
mutual consent provision that would preclude Congress
from unilaterally amending the Commonwealth Act is
constitutional. After serious consideration we have
regretfully come to the conclusiori that a mutual
consent clause could nbt bar a subsequent congress tram
amending the Commonwealth Act vli thout the consent of
the Government of Guam.
congres~ional
This letter ·obviously is not the proper place for .
·an extended leg'al discussion. We shall therefore give
you in a nutshell the reasons that cause us to reach
.the above result. Under the Constitution the areas
under the. sovereignty of the United States fall irtto
two groups: States and areas that are not States.
The
latter are 'necessarily governed by or under the
authority of Congress.'
National Bank v. county of
Yankton, 101 U.S. 129, 133 (1880).
This Congressional
authority .is plenary and based on the Territory Clause
of the Constitution. Art. IV, Sec. 3 Cl. 2 The
· Constitution does not admit of any third category i.e.
a non~state area that is not governed by the Territory
Clause. Legislation enacted under that clause, like
all other legislation, is subject to the pow~r of
amendment or repeal by subsequent Congresses
Specifically, it has been held that while Congress need
not itself exercise its power to legislate for ·the
. Territories and ma·y delegate. that power to them, that·
delegation is 'of course' subject to the right of
·
Congress to revise, alter, or revoke. District of
·Columbia v. Thompson Co., 346 u.s. 400, 406 (1953);
United States v. Sharpnack, 355 U.S. 286, .296 (1958).
.
. It follows that mutual conse~t clau~es ~r~ either
directly unc6nstitutional or ineffectual, because they
cannot preclude a subsequent Congress from amending or
repealing the legislation supposed to be protected by
that Clause. Th~ inclusion of such clauses in the
proposed agreementwould be deceptive because i t would
create an illusory expectation in the Guamanians. For
that reason, the Department of Justic~ m~st obje6t to
them. Analogous consideration would apply to any
attempts in the <;onunonwealth Act. to limit the power of
Congress to enact legislation applic-able to Guam.'
2 The 6nly except{on to that rule is the situation where one
Congress creates vested rights of a private or commercial nature.
See. Bowe~ v. Agencies Opposed to social Security Entrapment I 4 7 7
{J •
s.
41
1
52
f
5 5 ( 18 8 6 ) •
. ..· - -
,
.
... -,--- -- -· ---- - P~'f=-s.;r::~• ',..,..........,
. .
[)~LiNTON LiBRARY PHOTOCO;;:-l- h {./.{I lfUf\} PHOTDCO P:f .
~"':::~-
�; • ~
•· _.' "':" _.! • ~
I responded to these observations in my letter to
Dellinger of May 16, 1994. I revis~d the Negotiating
Inst~uctions so as to leave the issue open and indicated
surprise given Justice • s ·assent in the case . of C-NMI. .·I also .
suggested that further discussion was necessary.
I find quite persuasive to the contrary the Ctfrwti
precedent. The CNMI covenant contains a mutual consent
provision which was treated as valid in the recent case of
u.s. Ex. Rel. Richards v. DeLeon Guerrero, 4 F.3d 749 (9th
Cir. 1993). In that case, CNMI resisted a subpoena issued
by the·rnspector General of the Department of the Interior
for various tax records relevant to an audit of the
Commonwealth's Department of Finance. CNMI argued that the
audit.violated CNMI's right of self-government as provided
in section 103 of the Covenant and protected by the
'provision in Section 105 quoted above requiring mutual
consent. The cou~t did not question the applicability 6r
.the constitutional validity of the mutual consent provision.
It rejected the argument that provision was nugatory and
that Congress could always act under the Territorial Clause.
Ratherr it stated:
'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." 4 F.3d.at 754.
This ·quotation seems a straightforward holding that
tongress has the authority under the Territorial Clause to
limit its ~uture exercise of authorlty quite to the contrary
of the statement in the Dellinger lett~r of May 12th.
·
(Perhap~ there is some argument .lurking that
distinguishes the validity of a mutual co·nsent requirement
in a covenant that transforms a trust territory to a
cornmonweatth under U.S. sovereignty ( CNMI} and one contained.·
in a bovenant that tran~forms a territory under U.S.
sovereignty to commonwealth under u.s. sovereignty (Guam).
If so, it would remind me of anclent property laws
distinguishing, for .in·stance, between springing and shifting
executory intetests ~- r~les without any present day policy
justifications.)
Guam's lawyers have a number of other arguments
supporting their contention that Congress, under ~he
Territorial Clause, can "bind" a future Congress (~ee
attached memorandum of August 3, 1993.) I find most
interesting the proposition that if Congress has the power
~nder the Territorial Clause to dispose of all U.S~
interests in p.ro.pe.rt.y, and_thus....b-i.nd future Congresses, i t
· ·
~~~-wfnN T.m~~~~;Ho· ·o·coP~J<='~-r'e>~Ji'<Tit',~) P! r:r,..-rr·,~OPY
.
:·T.
.
·
1 .....8~:...~:·.~"..-_"·r-:,c-= •: u ~ .
.u···u :i.
~......_,·;:'"""
..
" ..
-~
·
�. ' . . ' -: :..l :··-
i ...
:! ·: _. ·_ :' ~ - -
would seem axiomatic that it could dispose of less than all
u.s. interests in a final way. In the case Of the
Philippines, for instanc.e, a complete divestment occurred.
TD the case of Guam, it is argued, a partial divestment is
Mort ~nd I ~ad~ our oral presentation to Justice a week dgo.
Today w~ were given a6ceptable language by Justice on mutual
consent to changes in the Commonwealth Act, which 1_ beJi eve gives
11s the needed fl~xibility to negotiate a deal with Guam~
This is
~ real breakthrough.
3.
In ligh£ of the for~going, I sriggest that you address tne
f:ommnnwealth matter in. accordance \o.'ith the following
A.
w~nt to. bring closure to the
negotiation on Commonwealth as soon as feasible.
As I have said, I
B. . As r·have also said, I want an act which
create~
a
partnership between Guam and the u.s. Government which
recognizes that the primary interest of the U.S. is
a~~uring the continuation of u.s. rights to maintain
military base~ while providing Guam heightened
opportuniti~s for self-government.
c.
I have· faith. in Mike Heyman • s ability to negotiate· t.o
ends.
I share his frustration that progress has
been slower than we anticipated.
th~se
D.
This has ·been due primarily to the complex11:.y oi
~ddressing subject matters within the jurisdiction of a
host of other Federal Agencies .
. E.
Mike informed me on Friday, however, that 'the
Department of Justic& has finally ac~epted our approach
to the thorny issue.of whether future changes in an
acceptable Commonwealth Act could require mutual
consent by both Congress and the Guam legis latuL-e. · He
believes. that the approach provides the needed
flexibility to make likely an agreement on this issue
in our negotiations with Guam.
F.
4.
This is an important milestone, in my view, ana
increas~ the momentum towards the successful
negotiation w~ all desire.
If you need any additional information,
w!th you, is very knowledqea0l8.
Danny .u.ranzc,
shou~d
w110
is
�G31l
United States Department of the Interior
OFFICE OF THE SECRETARY
Washington, D.C. 20240
JUN -2 1994
I
.
Dr. Morton Halperin
Special Assistant to the President
for Democracy
N~tional Security Council
Old Executive Office Building, Room 393 ·
17th St. and Pennsylvania Avenue, NW
Washington,· D.c. 20506
Dear Mort:
I address the primary ~ut~al consent 9ontroversy in the
enclosed memorandum . . It, togeth~r with the Israel memorandum of
August 3, 1993, is sufficient, in my view, to use as a basis for
discussion with OLC ih which we seek to talk them out of the
position taken in their May 12th letter. I believe the iss~e is
one of policy, not law. They have steadfastly refused.to address
the former. Their argument on the latter is not based on cases;
in fact they omit reference to the only case of relevance·
.. (Guerrero) . ·
I would like to have this issue resolved in June. If we
prevail we will give momentum to our effort to treat Guam as a
partner, and we will give Bruce Babbitt and Governor Ada a
principle to celebrate when Bruce visits Guam on July 5 and 6.
(If we £ail, we are in real trouble.)
You want·ed to read some cases. I enclose my marked up copy
of Guerrero. Tell Danny Aranza what others you would like,·and
he will respond rapidly.
I will be in California until June 8th.. I w6uld appreciate
it if by then you could have gotten our Negoti~ting Instructions
okayed and thought out a w~y to precipitate a decision discussi~n
on the mutual consent matter. Possible?
. r
Sin~
I. Michael He~an.
Counselor to the Secretary.
Enclosures
�Guam's Negotiations
Background
· Guam's demands in its Commonwealth Act fulfill two
"needs~"
One is symbolic -- a recognition by the United States that Guam
atid its people are ethnically and culturally distinct, mature,
worthy of respect, and no longer "colonial subjects."
The second
is more pragmatic -- adjustmetits largely to reflect Guam's
distanc~
from the mainland; potentialities for. economic success,
shortages of land, and
initi~l
port of entry for a stream of
Asian. immigrants to the United States.·
We probably will do decently with the pragmatic subjects,·
'
although the initial reaction of career folk in a number of
. agencies is a bit discouraging.
·I am not optimistic about the symbolic matters.
four of concern:
There· are
land, self-determination, required mutual
consent to changes in applicable Federal law,
~nd
required mutual
consent to changes in the Commonwealth covenant. ·If we do not
show flexibility on any of the-symbolic issues, we will lose
credibility, respect and connection .with a good number of
Guamanians,.especially those of Chamorro identity.
~ill
help legitimize the
the young.
independe~ce
Moreover, we
movement, .especially among
It is often said that a large majority of
are pro-United States.
This is true.
Gua~anians
But the percentage of
friends diminishes with the age of the respondent.
Those who
will run Guam fo and 20 years from now owe no allegiance to Uncle
Sam.
If· we are to maintain our _substantial military presence and
�2
potential other than by force behind walls, we. must act in a way
that meets
~piritual
as well as economic neeqs.
Mutual Consent·to Changes in a Commonwealth Act
Of _the four symbolic issues, the one most amenable to our
positive.response is a requirement in the eventual Commonwealth
Act that changes in the Act require the consent of both the
Congress and Guam.
A provision of this sort was included in the covenant
establishing the
Commonweal~h
of the Northern Marianas:
Section 105
'' . . . In order to respedt the right of self
government guaranteed by this Covenant, the United
St~tes agrees tb limit the exercise of that autho~ity
[to pass laws applicable to the Northern Mariana
Islands] so that the fundamental provisions ·of this
covenant, articles I, II and III and Sections 501.and
805, ~ay be modified onlYwith the consent of the
Government of. the United States and the Government of
the Northern Mariana Islands."
The Department .of
Justic~
is
t~king
the
po~ition
that
~
similar provision in the Commonwealth Act for Guam would be
unconstitutional.
This was stafed directly in a l~tter of May
12, 1994, from Walter Dellinger to Michael Heyman.
The operative
paragraphs are:
"The most difficult problem presented by your
proposal is whether·it is possible to l.mmunize the
autonomy that is to be. granted to Guam from future
congressional intrusion, in other wordsi whethe~ the
mutual consent provision that would preclude Congress
from unilaterally amending·the Commonwealth_Act is
constitutional. -After serious donsideration we have·
regretfully come to the conclusion that a mutual
consent clause ~ould not bar a subsequent Congress from
amending the Commonwealth Act without the consent of
the Government of Guam.
�3
This.letter obviously i~ not the proper place for
an extended legal discussion. We shall therefore give
you in a/nutshell the reasons that cause us to reach
the above result. Under the Constitution the areas
under the sovereignty of th~ United States fall into
two groups: States and areas that are not States. The
latter are 'necessarily goVerned by or under the
authority of Congress.' National Bank v. County of
Yankton, .101 u:s. 129, 133 (1880). This Congressional
authority is plenary and based on the Territory Clause
of the Constitution. Art. IV, Sec. 3 Cl. 2 The
Cons_ti tution does not admit of any third category i.e.
a non-state area that is not governed by the Territory
Cla~se.
Legislation enacted under that clause, like
all other legislation, is subje~t to the power of
amendment or repeal by subsequent Congresses 2
Specifically, it has been held that while Congress need
not itself exercise its power to legislate for the
Territories and may delegate that power to them, .that
delegation is 'of course' subject to the right of
Congress to revise, alter, or revoke. District of
Columbia v. Thompson Co., 346 U.S. 400 1 406 (1953);
_United States v. Sharpnack, 355 u.s. 286, 296 (1958).
It follows that mutual consent clauses are either
directly unconstitutional or ineffectual, because they
cannot preclude a subsequent Congress from amending or
repealing the legislation supposed to be protected by that
Clause. The inclusion of such clauses in the proposed
agreement would be deceptive because it would create an
illusory expectation in the Guamanians. For that reason,
the Department of Justice must object to them. Analogous
consideration would apply to any attempts in the
Commonwealth Act- to limit the power of Congress to enact
legislation applicable to Guam."
I responded to these observations in my letter to Dellinger
of May 16, 1994.
I revised the Negotiating Instructions so as to
leave the issue open and indicated surprise given Justice's
assent in the case of CNMI.
I _also suggested that further
discussion was necessary.
The only exception to that rule is the situation where one
Congress creates vested rights of a private or commercial nature.
See Bowen v. Agencies Opposed to Social Security Entrapment, 477
u.s. 41, 52, 55 (1886).
2
�4
I_ find quite persuasive to the contrary the CNMI precedent.
/
The CNMI covenant contains a mutual consent provision which was
treated as valid in the recent case of
u.s.
DeLeon Guerrero, 4 F.3d 749 (9th Cir .. 1993).
Ex~
Rel. Richards v.
In that case, CNMI
resisted a subpoena issued by the Inspector General of the
Department of the Interior for various tax records relevant to an
audit of the Commonwealth's Department of Finance.
CNMI argued
·that the audit violated CNMI 's right of self-government as
provided in section 103 of the Covenant and protected by the
provision in Section 105 quoted above requiring inutual consent.
The court did not question the .applicability or the
constitutional validity of the mutual consent provision.
It
rejected the argument that provision was nugatory and that
Congress could always act under the Territorial Clause.
Rather,
it stated:
"Even if the Territorial Clause provides the
constitutional basis for Congress' legislative
authority in the Commonwealth, it is solely by the
Covenant that ~e m~asure the limits of Congress'
legislative power." 4 F.3d at 754.
·. This quotation seems a straightforward holding that Congress
has the authority under the Territorial Clause to limit its
future exercise of·. 'a'uthori ty quite ~0 .the contrary of the.
·statement in the Dellinger letter of May 12th. .
...
(Pe-rhaps there is some. argurrierit .lurking that distinguishes·
the validity of a mutual consent.requirement in a covenant that
transforms a trust territory to a commonwealth under U.S.
sovereignty {CNMI) and one contained in a covenant that
�----------------------~-------------------~-----------,
5
transforms a territory under u.s. sovereignty to commonwealth
under U.S. sovereignty (Guam).
If so, it would remind me of
ancient pro~erty laws distinguishing, ~or instance, between
springing and shifting executory interests -- rules without any
present day policy justificati6ns.)
Guam's lawyers have a number of other arguments supporting
their contention that Congress, unde~ the Territorial Clause, can
"bind" a future Congress (see attached memorandum of August'3,
1993.)
has
th~
I·'find most interesting the proposition that if Congress
power under the Territorial
Claus~
tb dispose of all U.S.
interests in property, and thus bind future Congresses,.· it would
·seem axiomatic that it could dispose of less than all
interests in a final way.
instance~
i~
Inthe case of the Philippines, for
a complete divestment occurred.
In the case of Guam,
is argued, a partial divestment is possible.
Attachment
u.s.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION .
OOla. letter
To Morton Halperin from Michael ~eyman. (1 page)
05/16/1994
P5
Co3 \3
001b. memo
Proposed Negotiating Instructions. (2 pages)
05/16/1994
P5
Co31 ~
002. letter .
To Walter Dellinger from Michael Heyman. (3 pages)
04/22/1994
P5
(_p
003. draft
Letter to Walter Dellinger from Michael Heyman. (5 pages)
04/20/1994
P5
(;?315
004. letter
To Michael Heyman from Walter Dellmger. (3 pages)
04/12/1994
P5
(.o':)llp
005. list
Proposed Negotiating Instructions. (2 pages)
04/1994
· P5
G,3\'1
..
3 l5
Duf>
o·
wp.
COLLECTION:
Clinton Presidential Records
· National Security Council
Democracy, Human Rights, and Humanitarian Affairs (Morton Halperin)
.. OA/Box Number: 492
FOLDER TITLE:
Guam #2 [6]
Van Zbinden
2006-0193-F
'
.
.
. .
-.
.
.
.
.
..
.
'
vz1184
.
. RESTRICTION CODES
Presidential Records Act- [44 U;S.C. 2204(a)]
PlNationai Security Classified Information [(a)(l)ofthe PRA]
'p2 Relating to the appointment to Federal office [(a)(2).ofthe PRA]
· P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade se·crets or confidential commercial or
financialinformation [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
·. personal privacy [(a)(6) ofthe PRAl
. c: Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
:2201(3).
·::RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA[.
b(2) Release would disclose internal personnel rules and practices of.
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) oftheFOIA]
b(4) Release would disclose trade secrets or confidential or financial
info-..mation [(b)(4) of the FOIA].
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�.., ,.
!.!"' ..
t.·.
lTnited States Departn1ent of tile Iriu~Tior
OFFICE OF THE .SECRETA...
l\.Y
WashingTon. D.C 2rt24(i
.MAY I 6 1994
Walter Dellinger
Assistant Attorney General
ottice ot Legal counsel
U.S. Department of Justice
Washinqton, D.C.
20530
Dear Walter:
'!'hank you for your letter of J'.fay l9, 1994. reqarding· the. proposed
negotiating instructions for the Guam comrnomJe:::tlth negotiations.
'I'he thrust of your letter concerns· tlJe constitutionality of. a
mutual_consent clause, and thus tbe extent of autonomy that can be
afforded to Guam.
You conclude that such a clause 1.-vould be
unconstitutional
and
suggest. revisions
~c
the negotiating
instructions to r~flect that conclusion~
~he issues raised in your letter go to the heart of the political
relationship to be established between the United States and Guam.
It is therefore critical that we discuss these is~ues thoroughly
before foreclosing any options. As you may know, in both the CNMI
Covenant and in earlier Guam Commonwealth neqotiations. the United
States took the position that at least tertain fundamental
provisions of the political relationship could be subiect to mutual
consent -- an approach that is at odds ~vith the position t·aken in
your letter. Accordingly, before adopting a~ approach that would
foreclose f lexibili_ty, further discussion of these issues is
riecessarv.
the meanwhile, in order not to delay further the ·negot-iating
I propose that the instructions be revised to the
extent necessary to leave the i~sues ·that· you have raised open for
further discussion.' '.The instructions can then .t·e issued with the
under~tandin~
that the outstanding issues will be resolved
definitively in the near future. I hav~ enclosed a revised version
of the instructions that I believe accomplishe~ this end. arid ihat
I ~ould like to proceed with at this time.
1n
instruc~1ons,
1
lock
forward
to working with you
to
tesol\'e the outstanding
)ssnP.~.
:::;incerel y,
....--'1!'].' L/rJ..f.(.
I. Michael Heyman
PRESERVt\TiON PHOTOCOPY
Special Representative t·o.r
Guam Commonwealth
�PROPOSED NEGOTIATING INSTRUCTIONS
GUAM COMMONWEALTH
1.
The United States shall enter inb) a politicaJ. relationship with
Guam in which Guam shall be an internally self-governing
Commonwealth under the sovereignty of the United States, as
reflected in the Commonwealth Act.
2.
The Commonwealth Act shall allow Guam the maximum amount of
governmental autonomy that is constitutionally permissible,
consistent with the primary interests of the United Sfates as
reflected in these neootiatino instructions. The Act shall also
provi~e mechanisms ~which ~ill
allow Guam .the gieatest
constitutionally
permissible
input
regarding
any
future
amendment~ to the Commonwealth Act.
3.
The Commonw~alth Act and the Guam Constitution shall guar~ntee
due process and equal profection of the law to all persons to
whom· the Due Process and Equal Protection Clauses of the United
States Constitution apply.
4.
The Guam Constitution shall:
.
.
a.
b.
provide for a
c.
provide for three branches of government; and
d.
5.
recognize, and be consistent with, the sov~reignty of the
United States·, as reflected in the Commonwealth Act, and the
supremacy of those provisions of the Constitution, treaties
and ~aws of the United states that are applicable to Guam
pursuant to the Commonwealth Act;
contain
~
republ~can
forrn of government;
bill of rights.
~hall contain a process by which the United
States can ensure that the Guam Constitution complies with the
applicable requirements of the Commonwealth Act.
The Commonwealth Act
6.
Recognizing that statehood does not appear to be a viable option
for Guam, and that Guam is geographically dislent., culturally
distinct and economically oriented toward Asia, the Commonwealth·
Act shall ·provide mechanisms fo ensure thit:
(a} the
. applic~tion of fed~ral laws and regulations to ~uam take into
·account ~uarn's unique location and local conditions; and (b)
Guam has the opportunity to provide input into future decisions
regarding the application of federal laws and regulations to
Guam.
7.
The Commonwealth Act shall: (a) secure indefinite. military base
rights consistent with the sho~t ~nd lorig-range national
security interests of the United States;
(b) . safeguird
decisj.~nmaking authority and operating rights of the United
States in national security matters; and (c) provide for
�. :
'
.·=
~
.!. .!.
'
. ; .,,
.:..·-
~
l
~ ~
~
..;;;
~
.:. ~~. .!.
.-
~ ~~-
appropriate avenues for partic~pation by and consultation with
Guam cons~stent with the national security interests of the
United Stci.tes.
8.
The Commonwealth Act shall~ (a) safeguard the authority of the
matters of foreign affairs that affect Guam~
appropriate avenues for participation ·by. and
consultation with Guam consistent with· the foreign affairs
ihterests of the United states.
~united States in
and {b)· provide
9.
The Commonwealth Act shall be consistent with
prQvisions of the United States Constitution
i:!ppli-.:able law.
2
applicable
and other
I
�I
--.
- United States Department of the Interior
OFFICE OF THE SECRETARY
Washington, D.C.
~0240
APR 2 2 1994
Walter Dellinger
Assistant Attorney General
Office of Legal Counsel
U.S. Department of Justice
Washington, D.C. 20530
Dear Walter:
Thank you.for your letter of April 12, 1994, regarding the
proposed ~egotiating·Instructions for the Guam Commonwealth
talks. I find your suggestions quite useful, but I do want to
emphasize that the Proposed Instructions embrace language of
direction, not precise language expected to be contained in a
finally acceptable covenant. The dir~ctions urged, which have
_f~vorably been treated in the White House, are (1) to provide
Guam as much autonomy as ·feasible wh,tle protecting important
Federal interests, and (2) to bring this negotiation to a
conclusion as rapidly as possible.
· The direction to provide Guam a· good measure of autonomy is
premised on a number of factors.
First, Guam is without any meaningful participation in
United States elective politics- -- Guamanians do not vote for
President and have no vote in Congress -- and it is highly
unlikely tbat political integration can ever be obtained through
Statehood. Second, Guam is still listed by the United Nations as
one of twelve non-self-governing places in the world-- i.e., as
a- colony. Third, Guam is literally in another world -- it is
geo~raphically remote from the rest of the United States (seven
hours from Hawaii and three hours from Tokyo), culturally
distinct, has a small island environment, and its economy is
oriented toward Asia. Finally, .Guam serves as an important
·military ba~e for both the Navy and the Air Force, particularly
since the withdrawal of United States forces from the
Philippines, and continued availability of Guam·sites for these
purposes are our highest priority.
In my view, these factors counsel in favor of granting as
much a,utonomy as possible to Guam in exchange for the assurance
of ipdefinite military base rights dn the island for the United
States. In pursuing this objective, we should be as creative and
flexible as reasonably possible, consistent, of course, with the.
dictates of the United States Constitution and applicable law.
Such an approach would be in accord with our democrat!~
�2
tradition; would recognize the uniqueness of Guam's
circumstances; and would safeguard what is, unquestion~bly,
United States' primary interest in Guam.
th~.
With ~his in mind~ I would .like to address the two major
issues contained in y6ur letter to me.
I.
The first issue concerns whether, anq if so to what extent;
Guam has the right to. be free from Fede~al laws or interventions
with regard to particular subject matters of local concern. Your
letter essentially urges that Guam should have no guarantee
against future t~de~al interventions. You fear .that the language
in Proposed Instructions 1 and 4 (by coupling the words
·''sovereignty of the United States" with "as reflected in the
Commonwealth-Act") will limit Federal authority to defense and
foreign affairs. You have a similar worry.that the emphasis of
Proposed Instruction 2 ("allow Guam as much-governmental autonomy
as possible 1 consistent with the primary interest of the United
States as reflected in these negotiating instructions" implies a
like limitation.
I can understand your worry. I agree that the interests of
the United States to be protected embrace more than foreign
affairs, defense, and due process equal protectioh, although ~s I.
indicated, I believe that defense is the primary one. My problem
with your comments, however, are that they go too far at this
stage in seeking to protect the right of the United Stat~s to
intervene in Guam in the.future with respect to any matter it
chooses. If that is the result I see no·change in status ensuing
from a Commonwealth'Agreement.
·
What I will be questing for in these regards is a status
analogous to a municipality in a Home Rules State, such as
California,where a limited number.of subject matters are purely
local, many are purely state, and the balance· require a.
determination, whether the State interest justifies the
intervention into the local arena. I trust that this was the
undertaking when negotiating the CNMI. Your letter indicates
dissatisfaction with that process (that "pitfalls" and
uncertainties were created leading to litigation). I too like
~ertainty, but it ~s often very hard .to achieve if the statutory
result is noi to be-one~sided. · You cite the DeLeon Guerrero case
.n~gatively.
I rather like the way the court phrased the ultimate
.question:
·
'' · . . ~e think it appropriate to balance the
Federal interest to be served by the legislation at
issue against the degree of i~trusion into the internal
affafrs of the CNMI." 4F. 3d 749, 755.
�3
II. .
Your second point involves the breadth of due process and
equal protection guarantees and a worry that Proposed Negotiating
Instruction #3 is too narrow. Pleased be assured that the
tnst~uction is not meant to be precise and that your rtotations on
the sweep of both the 5th and 14th Amendments are welcomed and
will certainly be followed. To address that probl~m I suggest
the following modification to Proposed Negotiating Instruction
No. 3:
The Commonwealth Act and the Guam Constitution
shall gua~antee due proces~ and equal protection of'the
law to all p~rsons to whom the Due Process and Equal
Protection Clauses of the United States Constitution
apply.
Again, I thank you for your observations. I hope that this
letter clarifies the meanings I att~ibute to the Proposed
Instructions and gives you comfort that my views are within
reasonable parametets. Morton Halperin at the White House
concurs in my responses. The Office of Legal Counsel, of course,
clearly will be involved in drafting and discussions as the
negotiation proceeds.
·
.
.
May I treat my redrafting of Proposed Instruction #3 andthe
"Legislative history" regarding Proposed Instructions #1 and #4
contained in this letter as a suf~icient response to your
observation so that I can report that the Department of Justice
is on board? A response at yqur earliest convenie~ce would be
much appreciated.
·
·
A final note: I have inherited a few legal problems at
Interior.where lawyers still in the Solicitor's Office took
defensible positions during the last Administration with which we
disagree. It is understandably very hard for them to rework
their prior anal~ses. I hope that this will not be:the. case here
. and that you will assure that I will be given sufficient room to
seek to attain the Administration's objectives. If you think
that it would be useful for us to chat about this now, I stand
ready to visit you at yorir earlie~t convenience.
·Sincerely,
I. Michael Heyman
Special Representative for
Guam Commonwealth
.
I
�.Lo31iP
U. S. Department of Justice .·
Office of Legal Counsel
Office of the
Assistant Attorney General
Washington, D. C.· 20530
April 12, 1994
Michael Heyman
Counselor to the Secretary
Room 5129
· U.S. Department of Interior
Washington, D.C. 20240
.
''
..
, Dear Mike:
. As you requested, OLC has reviewed the Proposed Negotiation Instructions for the
Guam Commonwealth talks. While we do not presume to rewrite them, we submit the
following suggestions which are mostly ~esigned to avoid the pitfalls we encountered in
. connection with the Commonwealth of the Northern Mariana Islands. Cf. U.S. ex rei.
Richards,v. De Leon Guerrero, 4 F.3d 749, 754-55 (9th Cir. 1993). 1
We should avoid any language that could support chlms by the Guamanians that the
relations between the United States and Guam are governed solely by the tenns of the
Commonwealth Act or that Guam has full legislative authority over all internal matters, and
hence that the authoritY of the United States with respect to Gtiam is limited to foreign affairs
and defense. Similarly, it should be made dear in the text of the Comnionwealth Act that
the Territory Clause of the U.S. Constitution (art. IV, § 3, cl. 2) applies to Guam (in the
Northern Mariana Covenant that reference appears only, but unambiguously, in the
negotiating history). We therefore suggest a formula such as that the Commonwealth of
Guam shall have the maximum amount of local self-government compatible with the
sovereignty of the Unitea States over Guam and the Constitution and laws of the United ·
. States.
For the same reason it should be made absolutely. clear that the United States has full
and undivided sovereignty over Guam. We therefore counsel against the clauses in Proposed
Instruction #1 and in Proposed Instruction #4(a) that use the term "the sovereignty ofthe
. Uruted States as reflected in the Commonwealth Act." This could lead to the assertion that
the Commonwealth A~t limits· the scope of the sovereignty of the United States over Guam. ·
1
For your information, I am attachirig a draft report on Covenant interpretation that is indicative of the type
of arguments to which the United States may expose itself unless extreme care is taken in the formulation of ·
these provisions.
�We would a~9id the foimula contained in Proposed Negotiating Instruction #2 to
"allow Guam as much governmental authority as possible consistent with the primary interest _
of United States, as reflected in these negotiating instructions". This clause permits the
inference that the authority retained by the United Stites is limited to foreign relations and
defense.
S4Jlilar problems arise from the Supremacy Clause contained in Proposed Negotiating
Instruction #4(a) providing for "the supremacy of those provisions of the Constitution, · ·
treaties and laws of the United States that are applicable to Guam pursuant to the ,
Commonwealth Act." The Commonwealth Act cannot limit the application of the
Constitution of the United States in Guam. Moreover, if any existing federal legislation now
applicable to Guam should terminate under the Commonwealth Act, the repeal should be
express. We should avoid litigation and uncertainties resulting from Claims that fedeial
·statutes are repealed by implication because they are inconsistent with the Commonwealth
Act in particular because they are inconsistent with the Commonwealth Act's grant of the
right to internal self~government. Whether the proposed Supremacy Clause should have the
effect of limiting the applicability of future legislation to Guam is clearly related to the
mutual consent issue and would have to be discussed in future_ instructions dealing with that
_subject.
'The third Proposal Negotiating Instruction would provide that the Commonwealth Act ·
and the Guam Constitution shall guarantee due proeess and equal protection of the law for all
permanent residents and citizens of the United States in Gmim, apparently to the exclusion of
non-residents and illegal aliens. However, the Due Process Clause of the Fifth Amendment
and its Equal Protection element apply to "any person"; the Due Process Clause of the
Fifteenth Amendment applies to "any person"; and "the Equal Protection Clause-of the
· Fourteenth Amendment applies to "any person within its jurisdiction." These clauses
_therefore apply to every person geographically located in Guain, including illegal aliens.
Plyler v. Doe, 457 U.S. 202, 210-16 (1982). The Supreme Court has held with respect to
Puerto Rico that Due Process and Equal Protection are fundamental provisions of the
Constitution that apply of their own force to the unincorporated territories, although the
Court did not fmd it necessary to determine whether those Constitutional guaranties were
provided under the Fifth or the Fourteenth Amendment. ·Rodriguez v. Popular Democratic
fmY, 457 U.S. 1, 7-8 (1982) and the authorities there cited.
Moreover, the Fifth Amendment and the second sentence of the first section of the
Fourteenth Amendment, containing the Due Process and Equal Protection Clauses, have been
specifically introduced to Guam by the Act of September 11, 1968, Pub. L. No. 90-497,
82 Stat. 842, 847, 48 U.S.C. § .1421 b(u).
'
If the Third Proposed Instructions is designed to limit the scope of the Due Process
and Equal Protection Clauses to permanent residents and citizens of the United States in
- Guam to the exclusion of temporary workers and aliens, it would raise serious constitutional
_problems. It has been held that once a constitutional provision has become applicable to an
- 2 -
�. area, it cannot be wj~hdrawn by legislation. Downes v. Bidwell, 182 U.S. 24{ 261, 270,
271 (1901); R.assmussen v. United States, 197 U.S, 516 (1905), especially the concurring
opinions of Harlan, J. and specifically Brown, J. at 536. This is particularly true with
respect to provisions of the Constitution that are applicable to an area of their own force.
Please let us know if we can be of further assistance.
Sincerely,
Walter Dellinger
Assistant Attorney General
Attachment
cc:
Morton Halperin
National Security Council
Wilma Lewis
Associate Solicitor
General Law
Department of Interior
- 3 - .
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
ANDTYPE
.
DATE
SUBJECT/TITLE
RESTRICTION
OOla. form
r~590.
[partial] (2 pages)
c. 09/1999
,P6/b(6)
OOlb. foim
I-590. [partial] (2 pages)
c. 09/1999
P6/b(6)
002. email
To Fred Duval from Jeffery Farrow. Subject: Scott Busby. (1 page)
.04/09/1998
P5
003. email
Duplicate of002. (1 page) .
04/09/1998
P5
004. memo
For John Podesta from Samuel Berger and Mickey Ibarra. Subject:
Deterring Chinese illegal Immigration to Guam. Record ID: 9903101.
(2 pages)
07/30/1999
P5
~3\l
.005a. memo
For John Podesta froin Samuel Berger. Subject: Oeterrmg Chinese
illegal Immigration to Guam. Record ID: 9903101. (2 pages)
Q4/24/1999
P5
Co'3\'&
005b. draft
Memo for John Podesta from Samuel Berger and Mickey Ibarra.
Subject: Deterring Chinese Illegal Immigration to Guam. Record ID:
· 9903101. (lpage)
04/24/1999
P5
. Co3 \7
..
Oy>
.COLLECTION:·
·Clinton Presidential Records
. National Security Council
Mu~tilateral and Humanitarian A:ffarrs (Scott Busby)
OA/Box Number: 2251
FOLDER TITLE:
Guam [1]
Van Zbinden
2006-0193-F
vz553
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)J .
Pl National Security Classified Information [(a)(l) of the PRA]
b(l) Natiimal security classified information [(b)(l) of tbe FOIA]
P2 Relating to tbe appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
.
an agency [(b)(2) of the FOIA)
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose· trade secrets or confidential commercial or
b(3) Release would .violate a Federal-statute [(b )(3) of the FOIA)
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financiai
PS Release would disclose confidential advice ·between. the President ,..-----o~.~i"nW~.~;fn-.m.tm.tion [(b)(4) ofthe FOIA]
and his advisors, or betwe-en such advisors [a)(S) of the PRA)
b(6) Release would constitute a clearly unwarranted invasion of
privacy [(b)(6) oftbeFOIA]
_
.
·
··
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
~Rt;J_ase would disClose information compiled for law enforcement
· purpos s [(b)(7) oftbe FOIA)
.
C. Closed in accordance with restrictions contained in donor's deed-----t~..fl,,.~,*e
~mt~would disclose information concerning the regulation of
of gift.
financial institutions [(b )(8) of the FOIA)
b(9) Release would disclose geological or geophysical information. PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
concerning wells [(b)(9) of the FOIA)
RR. Document
be reviewed upon request.
DVn
CO
will
�3101
G317
THE WHITE HOUSE
WASHINGTON
July JO, 1999
INFORMATION
MEMORANDUM FOR JOHN PODESTA
FROM:
_SUBJECT:-
SAMUEL -R. BERGER<!::>~
MICKEY IBARRA~
Deterring Chinese Illegal Migration to Guam
This is an update on the issue of irregular Chinese boat.
migration.
In April, to stem the growing numbers of illegal Chinese
migrants seeking to reach Guam, we increased our interdiction
efforts and decided to take interdicted Chinese to the territory
of the Corrtrnonwealth of the Northern Mariana Islands (CNMI) for
further processing. As you may recall, the Immigration and
Nationality Act (INA) does not apply on CNMI,. thus making it
easier for us to pr6cess migrants expeditiously (while
~6ntinuirig to take care that genuine refugees are hot returned
to China) .
Our decisions in those cases have yielded success; there have
been no· interdictions or arrivals of Chinese migrants in the
Guam area .since May 29. Of the 537 migrants we interdicted in _
April and May, 392 were repatriated to China. Ninety-seven were
found to have credible asylum claims and are undergoing further
processing in the continental United States-or-Guam. _The
remainder.are either defendants or witnesses in: alien smuggling
prosecutions that ar~ being brought in connection with these
incidents ..
-
Three issues remain.. First, there are still .432 Chinese
migrants detained on Guam, and the adjudication process
available to them under the Immigration and Nationality Act
(INA) will take at least six months for most of the cases.- As
the 432 detainees exceed available detention capacity bn the
island, we have constructed temporaryhousing for about 300
migrants in tents at Guam's correctional facility. With the
recent arrival of typhoon seasbn, this situation is of growing
�2
concern, and we are working·with th~ Government of Guam to
·. devel·op permanent structures where these migrants and other
future. il.legal immigrants may be held.
Second, we owe the Government of Guam approximately $4 million
and CNMI approximately $1 million for the assistance theyhave
provided to date in the implementation of our deterrence
strategy. Although there were no funds availabl~ in ~xisting
budgets to reimburse these governments immediately, the
Administration has proposed an amendment to our .FY 2000 budget
for the Department of Justice that w_ould makesuch a
.
reimbursement possible. It would also provide prospective
funding of $19.4 million for the continued detention on Guam of
Chinese migrants or other illeg~l aliens.
Third, we must establish a long:-term policy towards the
processing of Chinese migrants whom we interdict in the vicinity
of Guam. The Executive Order which permitted the Department of
Justice ·to detain and process Chinese migrants on CNMI will
expire at the end of the calendar year and, while renewal is an
option, there are downsides. In particular, the CNMI
authorities have·sought to exploit our use of the territory in
these cases to bolster their arguments against our efforts to
extend the INA. there. The NSC, in collaboration with the Office
of Intergovernmental Affairs, will be convening an interagency
meeting to develop options that are consistent with the
President's proposal to extend federal immigration law to the
CNMI.
�Q7 llJ/99
TUE 21:53 FAX
CD:::> JO
APNSA .
141001
_\0~~,.
- 3101
THE WHITE HOUSE
WASHINGTON
Co3l8
April 24, 1999
INFORMATION
· MEMORANDUM FOR JOHN
PODESTA
l3ERGE~ (""'
FROM:
_SAMUEL
SUBJECT:
. Deterring Chinese Illegal Migration to Gu-am
The Coast Guard interdicted a boat carrying approximately 17~
Chinese illegal migrants west of Guam last. night. This is the
third such boa~ in th~ past week. One boat holdin~ 147 Chines&
~ai taken by Coast Guard to_the Northern Marianas Islands late
last week. Another with 108 Chinese landed directly in Guam. at
the same time. Guam now has close to 600 Chinese illegal
migrants on its soil, roughly 100 more than its detention
capacity. Coast Guard.believes more .may be on the way.
The root of the problem is that we have had difficulty in
ex editiousl re atriating Chinese
from Guam. U.S.
immigration laws .apply on Guam, an
ese make it virtually
impossible to process quickiy Chinese migrants who apply for
asylum. Justice is seeking to address this problem by investing
greater adjudication resources, but this will not cure the
problem entirely~
.Consequently, we have sought to bring the people aboard the two
.vessels we have interdicted to the-Northern Marianas Islands,--I
where our asylUII1 procedures do not apply. We believe that
·migrants can be processed there within a two to three-week
period. , Those Chinese who appear to have credible asylum claims
will be brought to Guam for further processing; the rest will be
repatriated. Justice is also seeking to identify for
prosecution those migrants involved in the smuggling rings.
We also intend to demarche the Government of China in the next
few days to see whether it can do more to target alien smuggling·
China and deter these migrant vessels from departing
1
�cr
~
~.---------------.-------
2
3\o\··
~
.·
'
concern, .and we are working with
e Government of Guam to
de~elop p~rmanent strucfures wh ~e these migrants and other
future illegal immigrants.ma
e·held.
Second, we owe the Gover ent ~f Guam appro~imately $4 million
and CNMI approximately 1 millioi1 for the assistance they have
provided to date in t e implementation of our deterrence
str~tegi.
Although here were no funds available in existing
bu'dgets to reimbu e these gover:aments immediately, the
·
Administration £Ylal4.& t~ propose"an amendment to our FY 2000
budget for the Department of .Jus·cice that would make such c:;;....reimbursement. possible. . It would also provide prospect± ve .
fundin for the continued dete.nt~_on on Guam 9f. Chinese migrants
o
er illegal aliens.
·
~ .
~
_h:-a
.
· ..
1
IT...._
·
.
n
-~
~let~'+ J11,-,;,·~
·
·
· .
·
"Third, we must e~tablish a long-term policy tow~rds the
processing of Chinese ciigrants whom we interdict in the vicinity
:af Guam. 'The Executive Order which permitted the Department of
Justice·. to detain and process Ch.:.nese migrants on CNMI will
expire at the end of the calendaJ: year and, while renewal is an
option, there are downsides. In particular, the CNMI
.
authorities have sou~ht to ~xploit our use of the territoiy in
these cases to bolst~r their arguments against our efforts to
exten~ the INA there.·
The NSC, · :i.n collaboration with the .Office
of Intergove:;-hmental Affairs, wi 1.1 be convening an interagency
meeting-to develop options that ace consistent with the
President's proposal to extend f<·d.eral immigration law to ·the
CNMI.
.NSC Log #
·Date:
Please sign I initial for concurrence or approve the
attached document and return to-NSi::: West Wing Desk
(in Situation Room) or call 6-9425 for-pick up.
Thankyou.
~-<
•
~
~
/J
v-iJ
r~
f ~C
West Wing Desk
®
~ L...
�·
1
;
•
.
•
·
.
.
:
.
.
•
:'.·''·:r
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
OOla. memo
OOlb. list
DATE
SUBJECT/TITLE
RESTRIC:riON
'·
Pl/b(l)
Sum.mary of Conclusions for Meeting of the NSC Deputies
Committee. Subject: Summary of Conclusions for DC Meeting on
Migrant-Burden Sharing. (2 pages)
08/26/1999
Deputies Committee Meeting, August 26, 1999, Attendees [partlal]
[CIA Act] (1 page)
08/26/1999 . P3/b(3)
\.
OOlc. draft
Summaiy of Conclusions for Meeting of the NSC Deputies
· Committee. Subject: Summary of Conclusions for DC Meeting on
Migrant-Burden Sharing. (1 page) ·
08/26/1999
Pl/b(l)
o·old. draft
Summary of Conclusions for Meeting of the NSC Deputies
Committee. Subject: Summary of Conclusions for DC Meeting on
Migrant-Burden Sharing. (2 pages)
08/26/1999
P1/b(l)
OOle. draft
Summary of Conclusions for Meeting of the NSC Deputies
Committee. Subject: SWiliilli.ry of Conclusions for DC Meeting on
Migrant-Burden Sharing: (2 pages) ·
08/26/1999
Pl/b(l)
002. memo
From William Treanor to James Baker. Subject: Authority to
Implement Burden-Sharing Plan for Migrant Operations at
Guantanamo and Other Over~eas Facilities (8 pages)
04/02/1999
Pl/b(l)
003a. form
Routing Sheet. Annotated. (1 page)
04/24/1999
P5
003b. draft
For John Podesta from Samuel Berger. Subject: Deterring Chinese
illegal Migration to Guam. RecordiD: 9903101. (1 page)
.04/24/1999
P5
(o
003c. draft
Duplicate of003b. (1 page)
04/24/1999
P5
f..o313 ~U{J
3 \~
Dv..p
COLLECTION:
.Clinton Presidential Records
National SecuritY Council
Multilateral and Humanitarian Affairs (Scott Busby)
OA/Box Number: 2251
FOLDER TITLE:
Guam: [2]
Van Zbinden
2006-0193-F
vz523
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a))
Freedom of Information Act -[5 U.S.C. 552(b)]
. Pl
P2
P3
P4
National Security Classified Information [(a)(l) of the PRA]
Relating to the· appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confldenti~l commercial or
fmancial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ofthe PRA)
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b )(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
on [(b)(4) of. the FOIA]
b(6) Release ould constitute a clearly unwarranted invasion of
privacy [(b)(6) of the FOIA]
C O R Y . a ould disclose information compiled for law enforcement
.
purpose [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's dee d
ould disclose information concerning the regulation of
u1
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defmed in accordance with 44 U.S. C.
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
2201(3).
RR. Document will be reviewed upon request.
..
u~
~,
n~•~~o~
�·.Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE.
SUBJECT/TITLE
DATE
RESTRICTION
003d. draft
Duplicate of 003b. (l.page)
04/24/1999
P5
004. demarche
·chinese Migrant Smuggling to Guam. (4 pages)
04/23/1999
Pl!b(l)
005. draft
Memo for John Podesta from Samuel Berger. Subject Deterring
Chinese illegal Migration to Guam. (1 page)
04/23/1999
P5
COLLECTION:.
Clinton Presidential Records National Security Council
Multilateral and Humanitarian Affairs (Scott Busby)
OA/Box Number: 2251 ' .
FOLDER TITLE:
Guam [2]
Van Zbinden
2006-0193-F
vz523
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
N ati~nal Security Classified Information [(a)(I) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
·. P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
Freedom of Information Act - [5 U.S. C. 552(b ))
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would Violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
r-----:"b~(6)~R?e~le~a:;:;se~. ould constitute a clearly unwarranted invasion of
privacy [(b)(6) of the FOIA]
..
el se ould disclose information compiled for law enforcement
. p
se [(b)(7) oftheFOIA]
·
·
hfl!) lhl~·•o• · ould disclose information concerning the regulation of
C. Closed in accordance with restrictions contained in donor's deed
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Pers<irial record misfile defined in accordance with 44 U.S. C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
C01!£
�3101 .
THE WHITE HOUSE·
WASHINGTON
'INFORMATION
MEMORANDUM FOR JOHN PODESTA
FROM:.
SAMUEL R. BERGER
SUBJECT:
Deterring Chinese Illegal Migration to Guam
Coas~
Guard interdicted a boat carrying approximately 175
illegal migrant~ west 6f Guam last night. This is the
third such boat in the p~st we~k. One boat holding 147 Chinese
was tak~n by Coast Guard to the ·Northern Marianas Islands late
last week. Another. with 108 Chinese landed directly in Guam at
the same time. Guam now has close to 600 Chinese illegal
migrants on its soil, roughly 100 more than its detention
'capacity. Coast Guard believes more ~ay be_on the way.
The
Chines~
The root of .the problem is that we have had difficulty in
expeditiously·repatriating Chinese migrants from Guam.a:>or,~~......,;;;..
p&rtly becatl:s9the D<epa~tment of Justice l=laa net invcstQ.d
e~ttensive ·resources ±irto the adjud1cat1on of lrnrhlgrat±on case
o~ Guam.
Justiec is nm: aadre~~-i.ng Llrat detlClehcy. M~
igportat:lt:k:;r,o::b. S. immigration lav1s apply on Guam, and these make
it virtually impossible to proce[~S quickly Chinese migrants who
~ .f.o ~ ~~·(,_ ~M~~
apP.lY, for asylum . .JVJI-I'c.t..t.e.dJ'~t:!lc~~ 1 bw.t~ 11/UJ~fk~a.T~. . . -(}
.
Consequently, we have sought to bring the people ~board the two
ves~els we have interdicted to the Northern Marianas Islahds,
where· our asylum proc~dures do not apply. We believe that
migrants can·be processed there within a two to three-week
period. Thos~ Chinese who_appe~r to have credible asylum claims
--:·-------:"~--wilr- b-e brought to Guam for furt.ti:er--processih'<X;~-tne· ·.re·s-c~ will be·
repatriated. Justice is also seeking to identify for
prosecution those fuigrants involved in the smuggling iin~s .
t-9
Gove~nment
/
·
)"'L~
·
f:''1/;tn ~f ~- -~
of China
. We· also intend to demarche the
p"'Ussibre to see whether it can do mor~ to tar9et alien smuggling
rings in China and deter these mi9rant vessels from depaiting
China. ·
·
�. . .I
Withdrawal/Redaction Sheet·
Clinton Library
DOCUMENT NO.
AND TYPE
001. report
SUBJECT!TITLE
DATE
Guam Commonwealth bill. Section by section analysis (52 pages)
n.d.
RESTRICTION
P5
-G3;t0
COLLECTION:
Clinton Presidential Records
Presidential Personnel
Liz Montoya
OA/Box Number: 9658
FOLDER TITLE:
Guam Coriunonwealth [2)
Jamie Metrailer
2006-0193-F
'm600
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federa.l statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
· personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOrA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
·
b(8)Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�I.
i
i.
,.
l '.
·••1. ·.
'•/I
..
,
..
GUAM COMMONWEALTH.BILL
;
SECTION~BY-SECTION ANALYSIS ..
:
Preamble
Sunlmary . of original Provision.
The preamble describ~s the
motives o! "the p~ople of.the United States" in embracing the
establishment: of the Commonwealth, making refereric·e to the
Treaty of Paris, the :tJN Charter, ahq the principle . of
self-determination.
It also describes the motivQs · of ."the
people of Guam, 11 who seek greater· self-government "in conct:!i:t 11
with the u.s.
·
.
status. UNCERTAIN.·
Th~ preamble has .not been. discussed by ..
' ,Guam 1 s representatives (hereinafter CSD). with· the ·Federal
·rnteragency .Task Force (hereinafter Task Force or Feds); ·but
both the 1989 and 199·3 Task Force Reports have expressed
misgivings about ·some of th~ language.
·
Guam Position. The Preamble articuiat~s the Guamanians'
aspirations
for ·greater · self-:governrnent within : a
continuing. and ·improved. union with· the u·. S. ·Underlying
the right_ of sel;f-determinatiori for the Chamorro people
.is the fundamental principle that governments derive their
just powers only from the. consent of the governed. ·This
principle is echoed in statements in the Treaty of Paris.
and the United Nations Charter that direct·the u.s. to
take into account tlle civil rights, :·politicai status and
aspirations. of the people of Guam.
·
'\
I
•:
Federal Position. .Federal ·misgivings arise because: (1)
the reference to "the right_ of sel~-determination •.• of ·
. the Chamorro. ·people" might· appear.· to endorse the.
C:tiamorro-only vote (about which there· is disagreement in
connection with"se.ction 102 (a)); and (2) the reference to
Guam acting "in.concert 11 with the United States implies
~-.- --···· ·-- ·-· .·. ····-~-_..:.that they are equal parties,_ and that~.the Commonwealth Act .. ,
is akin to a bilat,erai treaty. As an alternative·~ The
1993 Task Force Report suggests language tha:t was used in ·
the ·Northern Mariana Islands Covenant: the· "establishment
of a self-governing commonwealth of· Guam· within the
Amerlcan political. system. 11
··
�~------------·----------·-----
)
'
'' -
'
TITLE I - POLITICAL. RELATIONSHIP
section 101(a) -Creation ofCommonwealth Government
Summary of Original Provision.
Creates the Commonwealth of
Guam and identifies the.supreme laws of the island.
··.Status. AGREEMENT, as modified by l~nguage that clarifies that
Guam will remain "under the sovereignty of the United States"
(See Attachment 1). ·
· ·
·Section 101 {b)··- Self~Government and Guo· Constitution
Summary of Original Provision. Guam shall ha~e "full" selfgovernment and its Constitution shall be consistent with the
sovereignty of . the u.s., . provide for a repUblican . form of
government, provide for 3 branches of government, and contain
~ bill of rights.
·
. .
.·
.
·.
.
.
·.
·'
s·tatus. ·DISAGREEMENT on: (i) th~ adjective "full" to describe
"self-government":.. and (ii) the need to have Congressionalapproval of the Cc:mstitution.
(See Attachment 1) .
. Guam Position.· cso objects to Congressional approyal of
the Guam Constitution essentially because it is perceived
as demeaning. ·Further, Guam· insists that it must have
"full" self-government and its new proposal for subsection
(d) (which refers to Guam's "inherent powers") wouldserve
to ensure that result. During the discussions, the CSD' s
intent - appeared to . focus on carving out a sphere of
federal non-interference over matters purely "internal"
· to Guam. The negotiations were unable to reach mutually
acceptable definitions of "full" or "internal."
Federal, Position •.· Both the 1989 and 1993 Task Force
·Reports make clear~ the need for.Congressional approval
of the Commonwealth Constitution, based on prior precedent
(discussed ·in detail. ih the reports) , and the need to
insure Guam's compliance with the elements required to be
included in the Constitution pursuant to Se6tion 101.(b) .
As to the modifier ".full" for self-government, the Task·
·Force objects because the term. creates ambiguity,
particularly when other. modifiers of. the term elsewhere
in the legislation differ. The Task Force objection is
based#. principally, on the Northern_Mariana experience,
which suggests that th~ term "full" could be used in later
litigation to diminish the authority of theUnited States.
2
�section 101 (C·) commonwealth Power to sue and Be sued
summary of Original Provision.
The · Government of the
Commonwealth shall ·.have the power t9 sue in its own name and
be sued for breach of contract and tort.·
status. AGREEMENT as modified by the addition of legislative
co'nsent to be sued as "evidenced by . enacted law. 11
(See·
. Attachment 1)
·
·
section
~01(d)
Public Education system/Inherent Powers
.
(
.
Summary of Original Provision. Refers t6 theCommonwealth 1 s
power to es~ablish, maintain and operate .a public· educational
system.
.·
.
. Status~ AGREEMENT to delete the orginal subsection dealing with
creation of a public. educational system as unnecessary.
· DISAGREEMENT as to the · CSD 1 s proposed new subsection (d) , .
. dealing with the "non-waiver" .of the "inherent powers of the .
. commonwealth of Guam."
·
I
Guam Position. The CSD 1 s rationale for this new lan(p!age
was to· support its view that ·the . Guam Commonwealth
. Government would be created with "full". self-government~ ·
Although,it has disclaimed it, Guam may als'o desire to
express a concept akin to the Tenth Amendment of the U.S •.
Constitution -- i.e. -powers not expressly delegated to the
Federal Government . are expressly reserved to the.
respective States, or to ·the people.
For Task Force.
criticism of application of lOth Amendment to Guam, see.
1989 Report, pp. 21-24.
·
.
.
.
Federal Position. The CSD s proposed (d) is objectionable
for the same reasons stated in. regard to subsection (b)
above: uncertainty as to its meaning, and its likely use
to assert unintended and expanded authority. of the new
. Commonwealth.
·
·
·
··
·'
·
1
Comment. It is likely that Congress would insist upon approval
of the Guam Constitution, as it always has in similar contexts.
Further,· Justice would probably insist ori deleting both "full" ·
and the new. sub~ection (d) toavoid mischief-making litigation.
.
section 102.
.
Chamorro Self-Determination and u.s. ditizenship.
·subsection 1.02 (a) - Chamorro
Self-Determination~
Summary of Original Provision.
.Congress recognizes the·
inalienable right of self-determination · by indigenous
Chamorros, who· ·are defined as those born on Guam before
3
�August 1, 1950, and their ·descendants. ·.The act of selfdetermination sha·11 b"e provided in Guam 1 s Constitution.
Status.
DISAGREEMENT (See Attachment 2).
Guam Position:
The Chamorros, as. a culturally unique
people, _possess the inalienable moral and human right to
e~ercise self-determination.;
They have been deprived of
this right from the time Spain colonized·Guam in the 16th
century~ Guam and her people have been oppressed and kept ·
in a subservient,·· colonial status · by Spairi, Japan and,
most currently I the United States-.
Under the broad,
plenary power given to Congress to govern the u.s.
territories, . congress h~s authority to provide. a
Chamorro-only vote under the Territorial Clause.
Federal Position. · Both. the 1989 and 1993 Task Force
Reports state unequivocally that . this .restriction on
voting to permit~ a Chamorro-only vote would be
unconstitutional under the Fifteenth Amendment. The 1989
report also states that it would.violate the Fourteenth .
. Amendment. Bee generally the 199,3 report, pp. 12-1.4; the
.1989 repori, pp~ 8-12. _The 1989 report also discusses
alternative processes that would recognize.the Chamorros 1
special status in Gu_am, but it was concluded that· these
alternativ~~ would be constitutionally objectionableas
well. In response to the Territorial Clause arguments,·'
th~ Task Foice res~onded in 1993 (p. 14) by contending
that Congress must exercise its Territories Clause power
in subordination to other.applicable_provisions of the
Constitution and.· that the 14th· and 15th Amel'\dments do
apply to Guam.
From_the Chamorro.perspective, this is· the single
Comment.
most important provision in the entire Commonwealth proposal,
without which the initiative would be meaningless. The Task
Forcers position on ·. this issue was largely dictated by the
. Justice ·oepartment. Although Chamorro self-determination has
riot been ·defined, it is generally understood as a vote to
decide the ultimate political status of Guam in which only the·
Chamorro people participate.
·
section 102(b).
voting to Ratify commonwealth.
Summary of Original Provision.
The subsection provides that
11
notwithstanding the provisions of'' section 102.(a), no
qualified voter will be deprived of the right to participate
in a 16cai referendum to ratify the commonwealth Act.
4
�'··.
Status.
UNCERTAIN, .BUT PROBABLE AGREEMENT.
The Task Force opposed this subsection because-its reference
to section 102(a) implies an endorsement of the Chamorro-only
vote. Although the matter has not been. discussed, the CSD may ·
.no longer require this subsection because· it has advanced a·
·new provision (in Title' XII) which sets forth the procedure for_
ratifying the Commonwealth.
·
Section 102(c)
Federal Programs For·chamorros
summarv of Original Provision.. Requires new Federally-funded .
programs and authorizes the Conimonwealth to promote programs
targeted toward the enhancement of economic, social ·and
educational opportunities for Chamorro.s. and to protect their
language and culture.
- S.tatus. SUBSTANTIAL AGREEMENT as modified (see Attachment 3) ..
DISAGREEMENT by the Task Force on two points.
·
Federal Position.
The Feds believe, first, that the
responsibility imposed upon the United States should not
be mandatory: and secondly, that the 1991 language which
would have the Congress authorizing Guam to adopt Chamorro
programs is of dubious constitutionality based on the
Supreme Court's conclusion in City of Richmond that the
·Fourteenth Amendment confers ·remedial powers on · the
Federal Government that are withheld from the States and
' ·other governmental b-odies. See generally the 1989 report,.
pp. 12~13; the 1993 report, pp. 15-16~
section 102(d) Continued E1ibility Under Existing Programs
Summary of Original Provision. Provides that new programs
under (c) will not affect eligibility of all minorities under
existing programs.
·
status. ·AGREEMENT
. section 102(e)
(Se~
Attachment 3) .
No Impairment of
u.s.
Citizenship Rights·
·summary of original Provision. Confirms that the Act ~nd the
·Constitution of Guam do not impair U.s. citizenship or the
rights of ·legally admitted permanent.· residents.
Status. AGREEMENT that the subsection can be .eliminated as
unnecessary (See-Attachment 4).
Section 102(f)
.
Chamorro Land Trust
.
.
.
:
'
.
su:mritary of original Provision. Requires the Government of Guam
to- ·establi~h a Chamorro Land .Trust . for· the benefit of
5
�indigenous Chamorros ,· comprised of l~mds returned to Guam by
· the u ~ s.
Authorizes return or lease of lands to original
owners.
Status.
DISAGREEMENT.
"reneged" on by the Bush
(This
is
one
Administration)~
of the provisions
. Guam Position. This is a. rehabilitati~e provision for the
· Chamorro people, whose lands were taken from them by the .
sp·anish and later by the United States after World War II.
Federal Position. In its 1989 report, the Feds supported .
this subsection, noting that to pass constitutional -muster '
the· language must be carefully drafted. There followed
CSD-Task Force agreement on language (see Attachment 32
to the 1993 ·report) , which· differs only. slightly from
subsection (f) in the bill. . But following the Metro
Broadcastingdecision of the Supreme·court, the Justice
Department changed its position and the 1993 report
therefore opposes· the· subsection as being race-based .
. . (See 1993 Report, pp. 16-19.)
·TJ:i~
Ch~morro
Comment..
Guam l.egislature passed. a
Land Trust laW'
several · . years ago.
Until recently, the Governor had not·
implemented it due to concerns about whether.the law violated
Guam's Organic Act. · However, in the face of growing criticism
from the indigneous rights commtinity·and in light of a' local
· court de'cision. upholding validity of the law, the Governor
recently implemented the law by appointing a Chamorro Land
Trust Co:mn'lission. · The. early activities of _the Commission have
been controversial locally,.· in part due to "original
.landowners" arguing for the return of their lands and conflict
within the Chamorro community regarding priorities for
homesteading.
.It is not clear if the CSD will elect to
include Section 102 (f)_ .in future d~scussions.
Section 102(q)
Residency Requirements
summary of Original Provision. Provides that the Commc>pwealth
. Constitution .shall establish reasonable. residency requirements·
for votin~ and elective Qffibe~
status.
DISAGREEMENT.
The sUbsection was ·-the subject of
modified language, which. included a dura:tional element (not to
-exceed three years) and also brought eligibility for public
assistance within its scope.. (See Attaclunent 5). ·
Guain Position.· The CSD argued that durational elements
were necessary in order to counteract the adverse effect
of "transient" elements of the population (e.g. military
servicemen) skewing local election results.
6
�• ••
Federal
Position~
The Feds could have agreed with the
subsection (g), but felt constrained to disagree
·with the 1991 revision because it permits a durational
requirement, which is constitutionally unacceptable, and
it refers also· to public assistance· recipients, using
language that is uncertain in its application. The Feds
suggested alternative language in the Second Ta_sk Force
Report which focused on "bona fide" residency rather than·
durational requ~rements. · (See i993 Report, p. ~1)
·
origin~l
,.
section 103.
Mutual Consent
Summary of Originat Provision .. Provides that the Urii ted States
will not modify the Guam Commonwealth·Act unless it has the
consent of the Government of the Commonwealth of Guam. (There
is also a "mut:ual consent" principiein Section 202)~
Status.
DISAGREEMENT...
(See Attachment 5).
Guam Position.
Mutual consent is one of the two
foundations of the· Commwealth Act (Chamorro selfdetermination being the· other) . Mutual consent is crucial ·
.for at least three reasons. First, since the hallmark of
a colonial relationship is .the lack of· consent and lack
of participation by the governed, mutual. ·consent
constitutes .a step towards the "decolonization of Guam"
by the · u. s.
Second, in · the · absence of formal
institutional participation by Guam in tne federal policy-·
making process ·. (it does not have Senators or voting
Representa,tives ·in Congress, i t cannot cast electoral
votes ·for President), the principle of mutual consent
provides Guam with meaningful input in federal decisions
that· affect Guam. Finally, mutual consent is an important
way ·to provide -a sense of permanence to the structure of'
. the Commonwealth relationship that is negotiated between
Guam and the -U ~ s .
..
Federal Position. This is oneof the major subjects of
disagreement between the CSD' and the Feds.
The· Feds
agreed in the 1989 report to require Guam's consent for ·
the amendment of four sections · of · the Commonwealth
Act--sections that go to the foundation of the
Commonwealth--just as was done in 1976 in connection with
the Commonwealth of the Northern Marianas. The Justice
· Department agreed to peri)etuate · this ·. posi tiori . · in .
1991-1992, but only if Guam would agree to it. When .Guam
did·not agree to ~uch a compromise, Justice had the'Feds.
say in the 1993 reportthat no compromise was possible;
that the Northern Marianas were unique (as a former UN
trusteeship) and_thus no precedent: and that. no Congress
can bind a successor. . Ergo, the 1993 report opposed
section 103 and ·offered no compromise.
7
:
I
�,-_
}
'
Comment.
Guam continues,. _apparently, to insist on mutual
consent to all provisions--even though there are some s~jects
(the .courts being an obvious example), where the United States
needs unfett~red legislative authority.· It is possibl~l and
. perhaps even likely, that . the· Justice Department can pe
'prevailed upon to return to its 1989 position. · (The 1989 .
. , report contained cases supporting the propriety of the United
States making a binding commitment to Guam, at PP·. 17-18.) It
is also possible· that sections beyond the four ·to which we
earlier agreed_could be made"the subject of mutual cortsent •.
There is much room for discussion here. aut the United States
cannot ·agree to mutual consent on all provisions- of · the
commonwealth Act.
8
�-
-----7---------------------
.
.
.
TITLE II --APPLICABILITY OF FEDERAL LAW
.
section . 201.
.
Applicability of the united .states constitution.
summary of Original Provision. In addition to particular
provisions-of the u.s. Constitution that already apply to.
·Guam, Section 201.. provides for the application to the.
Commonwealth of additional. Constitituional provisic;ms:
· Article IV,. sect.ion 2, clause 2; Article· IV, section 4;
the Tenth Amendment; and the first sentence of the
Fourteenth Amendment.
(See.1989 Report, pp. 19-24 .for
discussion of provisions).
··
·
Status.
SUBSTANTIAL AGREEMENT on a ·modified · list of
provisions, with' the Feds dissenting on twq points. (See
Attachment 7) • .
·
·
Federal·Position.
As modified.·in Attachment 7,
section 201 contains a bracketed phrase t-o which the~
Feds object--that certain provisions. of the u.s.
Constitution shall apply "except ·as·· otherwise . ·
. provided by Congress. in. this Act. II The Feds say it
creates confusion, because_there are no exceptions
' -~xpressly provided for in the Act; the CSD says it·
needs the language, to give it full authority under ·
various sections of the Act. ·In addition,. after the
Feds had agreed to the remainder of the language of
· Attachment 7, they decided that they wanted also ·to
include· express reference to· the Territorial
Clause--so.as to avoid the controversies over that
point that had arisen in the. Northern Marianas. The
. CSD would not agree to the addition. · ~The ·U.s.
position is elaborated upon at pp. 28.-29 of the 1993
· report..
·
I-•
Section 202.
Effect Of ·Federal Law (Mutual Consent)
Summary of Original Provision. The section provides that
no Federal law; rule, or regulation will apply .to Guam
unless Guain consents. · ·
Status.
DISAGREEMENT. (See Attachment 8).
Guam Position.
This is· the· second form of the
"mutual .consent" principle. The reasons raised by
· . the CSD in support of this section are. siml.iar t·o
those advanced for the Mutual Consent provision of·
Section 103 ~- i.e. step towards. decolonizing Guam
. and giving Guam greater participation in the federal
process.
From . a · practical · perspective, . this
provision is. also intended to protect Guam ·from
Federal
laws,
rules
an~
regulations
whose
application to Guam is perceived to be inappropria_te
•.
�in _ligh~ of the
economic,
~ocial,
conditions.
island's unique geographic,
environmental
and physical
Federal Position.
No. section created such
consternation among Federal agencies . as did this ·
·section--with
do_zens
of
agencies
reporting
nightmares along the lines. of: Congress passes a
law providing benefits; Guam. consents to its
application to· Guam;· Congress amends the. law to
reduce the benefits; Guam refuses to consent. There
were many variations of· this example, leading to the
clear prospect that two sets of laws and· two of
·regulations would exist, with one of each applicable .
. to.Guam and the other applicable to the rest of-the
United states. · The Task Force also mantains that
this.prov1sion is inconsistent with the sovereignty.
of the u.s and would undermine· Congressional
authority und~r the___ Terr~torial Clause of the
·Constitution.
Comment.
As alternatives to Section 202, the Feds
9ffered: (a) a fast-track.review process for Federal laws
that the .Governor recommends should not -apply to Guam
because . of the island' s· · unique circumstances (See
Attachment 9); (b) a 'special appeals process regarding the
application of federal regulation!? to Guam (See Attachment
10), and (c) a general ~egislative pr6posal providing
State-like treatment for Guam, unless Guam is expressly ·
named in the law as a_recipient of different treatment
(See 1993 Report, p. 31).
·On fast-track - Although this al ter:pative was proposed by
the Feds, the 1993 Report stated . that -this program is
still under review by the Administration.
On regulations appeals - DISAGREEMENT~
On State-like treatment - NOT YET DI.SCUSSED WITH CSD
Obviously the United States cannot agree to section 202
.as introduced. The CSD has not shown any willingness to
·compromise on this ·subject. It is not clear that the CSD
understands · how. remarkably generous · · the · . fast-track .
proposal is.
OMB in January 1993 grew nervous about
endorsi~g the process again, as it had done in 1989 (see
p~ 30 of the 1993 report) but there is some hope that.OMB
could be persuaded to do so if again approached. Further, .
·because both · the regulatory • appeal . provision and·· the
State-like. treatment provision confer ben'efits. on Guam·
_(see pp. 30-31), it ought. not to be hard to persuade the
CSD to accept them.
·
··
-z--/0-
�Sf!ction 203. 'Joint commission.
su~ary of original Provision: Four Guam and three federal
officials would form a commission, funded by the U.s. i to
conduct regular consultations and negotiations with u.s. ·
on all matters affecting the relationship between Guam and
the U.S.: to recommend modification of federal, laws: and
(via last sentence of Sec~ 1002) . to declare federal
property excess.
·current Status: NO COMMENT. The 1993 report withheld·
comment on this section, saying it was stili under review •.
First and Second Task Forces disagreed with the bill's
version, and recommended instead a Guam-only commission
to replace the Joint Commission proposal, most of which
was agree~ to by U. s • _and Guam.
·
'.
Guam Position: Originally argued that Guam _would
need a Joint Commission, with delegated federal
powers, to be the ·sole _vehicle for handling
Executive Branch relations with the new Com1nonwealth
and for settling ma)or issues such as excess hmd,
Jones_ . Act, ·_etc. _ Present federal mechanisms are
unable to effectively address Guam's needs.
.
.
'
Federal Position: A Joint Commission, the majority
of whose members the Governor of Guam _· would ·have
appointed,. would have been authorized to make
decisions on matters reserved to federal officers,
inciuding determination of excess federal property
·under sections 1002 and 1003 (c), and .coastwise lawsunder section 901(c). These raised constitutional
problems for Justice. It. would have eliminated DOI •or any successo'r federal entity as the iec;id agency
in the Federal Government on matters affecting Guam.
Additionally, the authority of the Secretary of the
Interior. under the· Guam Organic Act · (Title 48,
u.s.c. 1421a)·would .have been repealed. by section
1203(b).
The, Joint Commission Is aut~ority for access. to.
federal documents ll!as too . broad .and its expenses
were unrestricted, whire the_u.s. would have be>rne
·all of the Comritission' s costs.· Federal powers to be
ass wiled by Joint Commission should re1nairi with
·appropriate federal agencies mandated by law to
carry them out. ·_
·
Comment: The revised version (see Attachment #11), most
pr_ovisions of which had been agreed upon,· creates a Guammembers only commission; with study,
review,
and
re:commendation powers, -· under the authority of · the
--3--.
~II-
�Government of Guam. It eliminates many·of the problems·
federal officials saw._ Areas of minor disagreement in the'
revised version are bracketed.
.
.. /
.
.
section 204. De1eqa.tion of Authority.·
Summary of Original Provision: Congress would authorize'
the President or his designee to·delegate.to Governor of.
Guam tot·al or. partial performance of functions now vested
in administrative agencies·in the Federal Goveriunent.
-status: . AGREEMENT. Both. the Task Force and the .Guam cso .
:have recommended (see Attachment 13) that Section 2 04 be .
amended and the revised version' of the provision; which
gets around federal concerns, ·be adopted . by Congress~
•Guam Position: The enforcement of federal .·statutes
9, 000 mites· away from the . seat of the Federal
Government presents serious problems; especially in
.the case- of federal agencies whose activities on
Guam ·do not warrant the maintenance of· a field
office. there. If Guam is going to have to carry out
some of. these· responsibilities, it· needs specific
authority.
·
Federal Position: Justice argued that · under the
Appointments Clause of the Constitution (Article II,
.Section ·2, Clause 2) Federal statutes may be
enforcecL only by officers of the United .States,
i.e., persons who have been appointed .by the
President, ·with ·the advice and consent· of the
·senate, or ·in the case of inferior officers, if
authorized by Congress,_ the. Pres'ident alone, . the
courts of law, .or the heads of departments ... Buckley
v. Va 1 eo , 4 2 4 U. S • 1 , 119 ~ 14 1 ( 19 7 6) •
· · The Gov~rnor of Guam is not appointed in confopni ty
with the Appointments Clause, arid Congress therefore
cannot,-authorize the President to delegate to the
Governor of Guam the power to execute the Federal
laws. The Appointments Clause, however, can be met;.
if congress authorizes the President or the heads of
Depa.rtments to appoint the Govern9r of Guam or
officers of the Government of Guam as officers of
.the United States ·charged with· the enforcement: of
the pertinent. Federal laws on Guam.
;..4--
._ !d.-
�i
I
I
TITLE III - FOREIGN AFFAIRS AND DEFENSE
I',.
section 301.
u.s. Authority, for Foreign Affairs and Defense.
·.summary of Original Provision. The u.s. would have
responsibility and authorit'y for foreign affairs and
defense that affect the Commonwealth of Guam~
CUrrent Status: GENERAL AGREEMENT. (See .Attachment #14).
u.s. Constitution. grants this authority to the United
States and the bili would-make this clear~ Disagreement
- over precis~ ·extefit of u.s. authority.
Guam Position. Under other provisions of the draft
bill, the u.s. would "share" its authority with Guam,.
allowing the-Commonwealth to enter treaties with
·sovereign states and to join interna~ional
·
organizations. Moreover, u.s. defense powers would
be limited.under Commonwealth, for example /by section
302, and, therefore., not complet~.
·,
Federal Position. ·Federal officials to date have
generally resisted the sharing of' or the
restrictions on,·Federal authority that Guam seeks in
this section.·. The Federal argument is that these are
incompatible with the Federal. government's ·
.
· constitutional authority over foreign affairs.
Moreover, the CNMI Commonwealth Covenant states the
u.s. has "complete authority" for these functions. If
the word is omitted in Guam's provision, which is
otherwise the same as the CNMI's, the implication
could arise that· a lessening or limitation of u.s.
defense and foreign affairs authority was intended .
.This should be avoided by .the addition of the.word
"complete" before "responsibility" in the first line
of the revised provision. This word is bracketed to
indicate Guam's disagreement with its use.
Comment. This is the obverse of the. secticm 101 argument
over "full self-government" (which Guam·wants) versus ·
"maximum amount of self-government consistent with the
laws of the United· States" · (whicl;l federal officials want).
It is a.reflection of the larger undecided question of
where the line will be drawn in a commonwealth
relationshipbetween Guam's powers and authorities and
those of the federal government.
section 302. Consultation with Guam.
Summarv of Original Provision. Subsection (a): The u.s.
will consult with Guam before signing treaties_or
--/3_j
�· . agreements ·which affect Guam; (b) no military security·
zones or foreign military personnel, on the-island without
Guam's approval '(except in case of war) ~nd no new U.S.
bases without consultation.with Guam; (c) no
· increases/decreases in DOD activities without consultation
with Guam.
·
''
-current status. ·.AGREEMENT in principle on (a);
DISAGREEMENT with (b);. AGREEMENT in principle with (c).
The general agreements·on elements of t}lis provision are
·.in the. form of a series of principles- (see Attachment #16).
·that would underlie a revised international affairs and
defense consultation pro:visio~. These are' intended to
guide the drafters of legislative language·~ No specific
legislative language has been .agreed to.
·
Guam Position. u.s. international agreements as weil
as global and regional defense acti~ities often
-affect Guam significantly and'occasionally adversely.
The Commonwealth needs to be consul ted by u.s •.
policy-makers and Guam's opinion seriously considered
in the decision.,;.making process before these pacts and
actions are·made . . On some crucial 'issues- .security
zones, foreign personnel - Gua~ needs to have the
power to disapprove, . if- necessa_ry.
Federal Position. State and Defense maintain they
usually consult with Guam officials, consistent with
national security interests, beforetaking actions
that could impact the island. But some consultations·
and certainly the approval requirements which Guam
·seeks would-seriously hamper.the u.s. ability to
respond to international crises~ The u.s. cannot
agree.to the "security zone" and "foreign personnel"
. provisions requiri~g Guam's approval, but is willing·
to agree to required consultation; consistent with
national security, .with Guam on these issu~s. If the
U.S. is to assume responsibility to defend. Guam as :
.. part of the u.s~ , then it must have the same rights .
and powers that it has elsewhere in the u.s~
Comment. Guam and federal officials attempted to get
around the bill's language by working out a series of
principles that co~ld be agreed on and later fleshed ~ut·
.with legislative language. ·If these principles still meet
Guam and U.S. acceptance, they could. be expanded and form
the basis of a new agreement on principles.
·
Section 303.
u.s.
Consular -and Trade Offices:·
Summarv of Original Provision: (a) (1) The U.S. will help
Guam set upof_fices in u.s~ and abroad; (a) (2) u.s. will
help Guambecome a- member of or participant in regional
- lt.f-
.
','
�l
·\.......
and other international organizations (including South·
Pacific Forum and Asian Development Bank). Guam·shall be
free to accept·· financ;::ial and technical assistance from
these.organizations, enter agreements with members of'
these groups and other sovereign states, relating to trade
and tax questions; (b) u.s. ·will obtain from foreign
countries favorable treatment for exports from Guam.
Current Status. AGREEMENT on (a) (1); DIS.AGREEMENT with
major parts of (a) (2); AGREEMENT with (b).
Guam Position.· (a) (1)·: If Guam controls immigration,
it will need to set up counselor offices abroad to
help visitors obtain visas, alien worker permits,
etc.· To continue the promotion of tourism and
investment inGuam, additional trade ~nd tourism
promotion offi6es ~lso will be needed abroad.
(a) (2): Because of the increasing econ~mic and.
cultural ties between it,and the Asia-Pacific
region, Guam. needs to join regional organizations in
its own name, participate in. their aid programs in
its own right, and negotiate tax·and trade agreements
with sovereign states. The U."S. should share its
authority with Guam in these areas to enable the
island to develop an international identity anci to
benefit {rom these regional associations~
(b): The·u.s. can aiso help Guam's economic
development by urging the int~rnational community to
provide favorable treatment. for Guam exports. ·
Federal Position. (a) (1): Consular offices would not
be needed if the.Federal Government can reach a
compromise agreement on the immigration provision.
U~S. is ready to assist Guam to set up offices abroad
to promote tourism, economic, and cultural interests.
· These,target areas should be specified·in·provision.
u.s. also sought.qual:ifier "as appropriate".because
it will not be able to provide assistance in those
foreign states which the u.s. does not recogriize.and
with which the u.s. does not maintain friendly
relations. Qualifier will also clarify that the U.s.·
will not be expected to provide financial·· assistance
to Guam for the establishment of these offices.
To signify their general agreement (see. Attachinent
#17) Guam and Federai officials signed an agreement
on this section5io3(a) (1). Guam wanted the words .
"shallfl and ~as appropriate" braeketed b~cause.they
had not fully accepted the u.s. position.
· ·
/5-
''
�j
·..
)
\_ ~'
(a) (2): While the u.s. will continue to assist
Guam in joining regional organizations for which Guam
is qualified, the u.s. cannot force organizations
whose rtiles limit-membership to sovereign states to
accept Guam. The rules·of the South Pacific Forum
andAsian Development Bank- of which Guam wishes to
be a·member·-·currently restrict merilbership to·
nations that are responsible for their foreign
affairs·. The u.s. supports Guam's participation. in
appropriate international groups, and will consider·
requests on a case-by-case basis.
.
.
.
.
.
.
.
. Th~ federal 'positio~ recognizes that Guqm can enter
certain types of international· agreements of a nongovernmental, collliilercial, or cultural character. But
a grant of independent authority to Guam to·conclude
tax and.trade treaties with sovereign states is
·
incompatible with·the Constitutional authority of the
. federal government, and could create confusion as.to
the u.s. guaranteeing that itsconstituent part~
comply with u.s. treaty obligations. The u.s. will
· consider- negotiating the tax and trade agr~ements.
Guam seeks with other sovereign states •. Guam would
participate as part of the u.s. delegation.
(b): The U~S •. has agreed to help Guam gain favorable
treatment for its e>Cports from foreigr1 states under
various. trade. preference programs, but Guam preferred
not to sign any agreement . on this issue because o·f
the impasse over the other international activities
issues iri this section.
Conuitent. The State Department has ste_adfastly resisted an
outright grant of authority for international activities
.and offers a case-by-case approachfor Guam's membership
. in international organizations and the negotiation of
treaties.
·
Section 304. Nuciear,· Chemical, and Other Toxic Wastes.
Summary 'of original Provision. ·(a). u.s. shall not use Guam
land or surrounding water for storage or dumping of
nuclear waste; (.b) u.s~ shall make safe for human
habitation all DOD chemical waste dump sites on Guam and
shall not store hazardous.chemicals on Guam or in its
surrounding waters; (c) u.s. shall compensate, as the
District Court of Guam decides,· anyorie injured by nuclear,
.chemical, or other hazardous material stored, used, or
disposed of by·u.s. agencies on Guam . or -.in its . waters.
.
'
.
.
current status. DISAGREEMENT.
Federal arid Guam officials
-It-
�'
'
have drafted separate legislative language to address the
goals of this provision. See Attachment #35, which
contains the limited language federal officials could
support as well as the more expansive language proposed by
the Guam CSD. ·
Guam's Position. Due to the large number of defense
installat.ions on Guam and the historic use of Guam
bases in World War II and the Cold War~ the people of
Guam have more reason to prevent the federal
·
government from dump~ng or improperly using toxic
·waste.than most other u.s. communities~ And Guam has
.more reason to provide legal means for cleaning up
past dUmp sites and compensating those who may have
suffered injuries from u~s. use, storage or dumping
of nuclear and other toxic wastes.
Therefore, Guam
needs language in the bill that would create a
special case, comprehensive legal regime to protect
· .the people and rectify past practices.
·· ·
Federal Position. The u.s. maintains that the
objectives of this section of Guam's bill· are largely
achievable through the application of existing u.s.
statutory and regulatory requirements as well as·
·international agreements the u.s. has concluded.·
Federal officials objected to the· langu~ge of.·
the original. provision because it was ambiguous;
contradictory; unspecific, and generally did not
conform to existing statutory language. The Guam C~D
substantially revised its language and clarified its
_terms. But its second draft, ·according to Federal
'officials, adopted an, approach that was overly
· speci_fic, overly encompassing and confusing. The
multiplicity of references to Federal agencies and
departments,' an"d citations to some but not all
applica:bie Federal laws created further ambiguity and
confusion.
·
· ·
· ·
It has been the Federal view that Guam's attem:i)t to
create a special legal regime to deal with toxic
wastes different fromtl)ose regimes that apply across
the· nation is a major-problem.·· It ·creates, for
example, a different sta.ndard of liability for
injuries arising on Guam from Federal actions than
exists for the rest of the nation.· .Justice argued,
·for example, that there was no· sound justification .
for providing a significantly different tort
liability regime for citizens of Guam than for the
citizens of any state or territory· of the u.s ..
Comment. Despite-the disagreements over-specific
language,.Federal officials agree in substance with
principles underlying all three provisions, but ~isagree
-/7-
�..
\-.
with ·Guam's language and overly specific approach.
/
- ;;;-;_
�f
.
!
'
.
''-.··
I
TITLE IV - COURTS
.
·.
Section 401. Judicial Relationship of Guam to the
U~S.
summ-arv of original Provision. Judiqial relations between
Guam courts and u.s~ courts with respect to appeals,
certiorari,removal of causes, the issuance of writs of
habeas corpus, and other matters and proceedings shall be
goveriJ.ed by U.S. laws establishing the .. relationship
between Federal courts and State courts.
Current Status. AGREEMENT. :(see Attachinent #18 ·for agreed
to language .on the courts.) Section 401 for the most' part
tracks_the language of Guam's Organic Act (48 u.s.c. 14242) on this matter with one majordifference - a
requirement that for the first 15 years following the
establishment, of an appellate court of Guam, the u.s._
Court of Appeals for the Ninth. Circuit shall have
·
jurisdiction to review by writ of certiorari all final
-.decisions of the highe-st court of Guam from which a
decision could be had. The Ninth Circuit review would be
··in lieu of review by the u.s. Supreme Court.
' Guam's Position. Guam maintains a 15-year period is
unnecessa,ry and far too long. It has offered a
mechanism for shortening the period upon
reexamination of the competence of the appellate
court of Guam, but seeks no more than a five-year
peri·od.
Federal Position.· Justice argues that during the
formative years of the new appellate court and while
it established its institutional t~aditions, all
decisions of that court should be reviewable by a
court -of appeals which is famil~ar. with the. local·
conditions rather than on a discretionary ·basis by
the Supr~nie Court •. However, there are mechanisms for
shortening the period. Moreover, Justice officials
were willing to further limit the proviso ~o cases
involving a Federal question and tp provide that
appellate review would.be asof right and not on writ
of certiorari.· · Guam was not willing to -agree, .so
this provision iri the draft language is bracketed.
Section 402. Jurisdictiori of the District court.
Summaryof original Provision. ·Guam's District Court-shall
have the jurisdiction of a district court of_ the 'united
States, including, but not limited to, the diversity ·
jurisdiction provided for in section 1332 of title 28,
United Stqtes Code, and that of a bankruptcy court of the
United states. · ·
-19-
�current status. AGREEMENT with one bracketed clause. The
language of this section generally _tracks the Guam Organic
Act's language and therefore is acceptable to Justice.
The parties agreed to drop subsection (a), which
·
"continued" the District Court, as unnecessary and agreed
to .add the words "and haye such other jurisdiction as may
·be expressly provided by this Act." But DISAGREEMENT
:r:emains over the federal proposal to add the words "and
any additional special. jurisdiction given it [District
Court] by Congress. 11
·
· Guam Position.··_ Guam opposes the addition of this
·special jurisdiction cla1,1se, arguing.that it might. be
construed as.authorizing the enactmerit.of federal
. legislation applicable only to Guam that would · .
detract from the jurisdiction-of the local courts of
. Guam. Guam suggested· modifying the clause with the
words "provided that any additional exclusive .
·jurisdiction· applies generally to all District Courts
of the United States~ unless othe:r:wise agreed."
·
Federal ~osition~ Justice would not accept that ·
qualifier, arguing it would render the Federal ·
:proposal useless,· because it is by· definition·
addressed to problems limited to Guam. The reason
·for the-Federal proposal, Justice_argued, is that it
inight .·become necessary or desirable, -again to confer
on the Guam District Court jurisdiction over claims
against the U-.S. that arise exclusively on Guam, for ·
example, claims·stemming from federal land .
acquisition on Guam after World War II.
section 403~ Applicable District court Rliies.
Suinmary. of Original Provision. Federal· ·:rules of. practice
and procedure are applicable to the Guam District Court.·
. ·· Curr~nt Status. AGREEMENT. The bill language· parallels·
language in the Guam Organic Act and is acceptable to
.·Justice.- See Attachment #18- for agr~ed language.
section 404. District court~·Judge, u.s. Attorney,- Marshal.
summary of original Provision. The President shall appoint
a judge for District. Court of Guam for a 10-year term, as·
well as the U.S. Attorney and U~ S. MarshaL·
.
currentstatus. AGREEMENT. Parallels language in Guam
Organic Act and is acceptable to Justice, .with minor
updating_ of ref~rences. See.Attachment #18 for language.
..
·
�section .405. Judicial Transition. (Formerly Section 1203 (c)).
Summary of Original Provision. Sets the date on which the
Guam Appellate Court. assumes appellate jurisdiction of the
Distr.l.ctcourt of Guam. This would repeal the judicial
provisions- sections22 through 24- of the Guam Organic
Act either· on the effective date of the Constitution of
·Guam,. if· the Appellate court authori.zed by section 2_2A ·is
operating, or 90 days after the operation-of the Appellate
Court is certified by the Governor of Guam to the Chief
Judge of the u.s. Court of Appeals of the Federal. Circuit.
.
.
Current Status. AGREEMENT with bracketed language. By
. mutual. agreement, this provision was moved from Title X
(it was formerly part of section 1203(c) of the draft Act)
· to this section because it deals with the relations of the· ·
Guam courts to Federal courts .. Areas of disagreement deal
·with the process· of cert.i,.fication and are indicated by
brack_ets in the agreed "t;o language. _See Attachments· #18
and 38~ Justice. officials believed the certification .
·should be jointly by the Governor and .the·Chief Judge of
the u.s. Court of Appeals for the Ninth Circuit.
Section 406. Rule~ of Decision Act.. (Formerly Section 1201 (b)) .•
.Summary of Original Provision. Provided that u.s. courts,
when ruling upon·the laws of the Commonwealth, will give
the ·same -·deference to the· laws of the Commonwealth as they
give to the laws of the severc;il states.
Current Status. AGREEMENT with bracketed language. This
section deals with the Rules of Decision Act which .
provides generally that the laws of the several States
shall be regarded as rilles, of decision in civil actions ·in
u.s. courts. There have been differing opinions on the
·issue by Federal courts. (See 1993 Report,·pages 52 and
53.) Agreed language is Attachment #19.
·.Guam's Position. Because of differing rulings on
this issue by u.s. courts, the provision ~eeds to be
specifically set out by law to guide future u.s.
court decisions regarding the choice of law when .
ruling on the laws of"the·commonwealth.
Federal Position. Justice agrees with Guam that this
is_a necessary provl.sl.on, but disagrees with the
bracketed language ("as it has been interpreted
through the'day prior to the effective date of thi~
Act") argU.ing_if the.Rules of Decision Act applies to
Guam, it should apply in the same way in which it
applies to the States and that its applicability ·
should not be frozen as of a specific·time.
�'l'I'l'LE V - 'l'RADB
section 501. Guam-United states Free 'l'rade
Ar~a.
Summary of Original Provision: Guam would.remain outside
the u.s. customs· territory, ·and have unrestricted entry of
products. to the u.s. market under·a ·free. trade ·area
agreement. Products of Guam will be defined as those
having 30 _p~rcent "value added". on Guam, a·s certified by.
the.Governor of Guam.
Current Status: SUBSTANTIAL AGREEMENT on a compromise
version with_some·bracketed language. The previous
Administrations would not accept the bill's version,
arguing, among other points, that.the proposed."free trade
area" could allow Guam t-o become a virtually unrestricted
. "pass through" for foreign products in violation of U.s.·.
quota rules and -regulations.· (1993 Report, pp. 54,55). ·
See Attachment #20 _for agreed to language. ·
·
Guam Position: Guam said its bottomline· interest was
that potential export. investors in Guam have
_·increased "certainty" that u.s. customs treatment of
their products would not change once a company set up
operations to ship.goods.to the u.s.-urider the
GeneralNote 3(a)(iv) program. Guam did not want the
.. rules to change' as they had in the past with watch
and textile assembly plants, thus driving those
companies out of·business.
Federal Position: The Second Task.Force (with USTR)
developed an alternative proposal (Attachment #20)
1;hat would provide for reciprocal free.trade.between
Guam the u.s. customs territory with the certainty
Guam sought. The rules of origin forGuam products
would be the same as the rules of origin contained in
. the North American Free Trade Agreement. This
alternative was generally agreed to by Guam and the
U.S., but some areas of disagreenient'remain.
�i .
TITLE VI - TAXATION
Section 601. Mirror Image Tax •.
Summarv of Original Provision. The bill would permit Guam
t() enact·a local income-tax to replace the income tax
prov1s1ons of the Internal Revenue Code (IRC) of 1986
which serves as a "mirror image" income·-tax ·on Guam.
current status: Agreement with principle; butno mutually
accepted language. Federal officials agree with the major
principle - that Guam should develop its own local income
tax to replace the IRC". The 1986 Tax Reform Act provided
for the deve1.opmerit of local territorial codes to replace
the IRC ."mirror codes". But federal negotiators have
disagreed_ with Guam on the details of impiementing the
f·ederal requirements necessary by law ·for local· codes to
·~eplace IRC "mirror codes" •.
Under the authority of the 1986 Tax Reform Act, the Guam
Tax Code commission has been negotiating with the u.s.
Treasury· Department ·for the past ~everal years. to . develop
· Guam'.s own code. Hence, language for legislation that
would supplant this title is being developed through
separate negotiations among the Guam CSD, Guam Tax ~ode
Commission, .and the u.s. Treasury Department.
Guam Position: Guam Commission agrees in general with
the separate negotiations approach, but also· wanted
.to negotiate under the commonwealth framework several
principles ·to which .. any future tax agreement between
the U.S. ~nd Guam would have to .adhere •. Guam's
interest is in developing a local tax that is better
suited to its n~eds, maximizes revenue to the local
government, avoids double taxation, etc. .Guam's
propose~ principles are contained in Attachment #44.
Guam argues the goal.of commonwealth.discussi~ns is
to change u~s. laws with respect to Guam, and that
the commonwealth negotiation framework, therefore, is
tne mechanism to set out the .principles which should
guide Treasury in working with Guam.
Federal Position: The U.s. has s·upported the intent .
of this titl~, i.e~,.having loca~ codes supplant the
IRC, if the federal requirements detailed in the 1986
Tax Reform. Act were met. In particular, they require·
that the local tax generate the same amount of
revenue as would have been raised under ·the current.
mirror code system, and that no p:rovision in thenew
code may discriminate against any u.s. person or any
resident of any other u.s. jurisdiction. some of
-;; 3-
�-
'-·
these requirements remain at issue between Guam and
· the U.S. tax negotiators.
The second Task Force disagreed_with Guam's proposal.
to negotiate·. several principles in the commonwealth
context-that would guide-the separate negotiations
between Guamarid Federal tax officials. In part the
disagreement stemmed-from the,view.that Treasury has
the statutory authority to conduct these negotiations
·and in part from Federal officials'· belief that some
of Guam's·proposedprinciples·conflict with the
. requirements. for local codes set out in the 19.86 Tax.
Reform-Act. Therefore, the-1993 Report offered no
official recommendation on this section.
·
. comment: This section is. complicated by· the fact that ·
Treasury officials by· law have the lead on tax
. .
negotiations. with the territories, have not welcomed 6th'er
federal o~ficiais' .attempts to "guide" their work, and
·have objected to Federal .ag,reement to "principles" which
_conflict with 1986 Tax Reform Act requirements or with
which Treasury does-not agr~e being imposed on their ongoing discussions with Guam. Note: The following _addit.lonal elements of a new Guam 'tax code, ·
contained iri _the draftAct,· need to be negotiated andworked .
-:out under the terms, condi tipris, and concerns expressed above~
SECTION 602. ENFORCEMENT INSTITUTIONS: Provides for criminal
penalties for_violation of Guain tax code and further-provides
that Guam shall have a lien, like the U.S. has, with respect to
local ·income tax.
·
·
'
SECTIQN 603. REBATE OF .TAXES: Guam can provide for the rebate
or reduction of taxes collected by it as an incentive to
.
bringing new industries_ to the island to stimulate economic
development.
SECTION 604. GUAM INCOME TAX. AUTHORITY: Guam has full- authority
. to set nature and amount of taxes to be collected from persons
_within its jurisdiction, from whatever source derived..
.
SECTION 605. TAx EXEMPTION FOR GUAM BONDS: Guam bonds will be
exempt from taxation by the u.s. or by any state or territory,
· . including the District of ColUmbia.
�·.............
TITLE VII' - IMMIGRATION
Section 701.
Guam Immigration Authority. ..
·summary of Original Provision .. In order to limit the
number of immigrants to Guam, Congress grants the
.Commonwealth of Guam the authority to control entry of all
aliens into· the island. · Federal·· immigratio.n law will
appiy _for.a 2-year transition,period after Commonwealth is
enacted. Thereafter, locally..;.enacted immigration laws
will apply. Among other things, local authority over
immigration shall not .impair the free movement of u.s.
citizens between Guam and the u.s., shall not include
naturalizatioti of aliens for u.s. citizenship, and shall
not· make Guam
port of entry into the.U.S. for permanent
resident aliens (for purposes ~f calc~lating duration of
physiCal presence in u.s~ prior to naturalization).
a
•
'
•
•
I
current status. DISA~REEMENT (this is one of the.
provisions "reneged" on by the Bush Administration in the
Second Task'Force Report).
·
Guam Position. Initially, CSD argued for'sole control
of immigration by the Commonwealth government, Citing
two grievances: (i) .U.S. immigration policies.which
resulted in massive in-migration of permanent
resident aliens to Guam· without' the input or consent
of Guam leaders;; (ii) unduly restrictive u.s.
policies that cpnstrained the availability of
temporary alien workers to satisfy the labor demands
of Guam's burgeoning tourism-based. economy •.
subsequently, the CSD agreed tq the Task Force's
proposals to retain u;s. authority over immigration
.and amend selected immigration laws to address. Guam's
concerns (See Attachments 22 and 23). When the··
·.
Second Task Force Report failed to incorporate these
agreements, Guam accused the u.s. of reneging on theprior negotiations.
·
Federal Position. The Task Force has never·agreed to
giving Guam authority over immigration. Federal.
control· of immigration was particularly important for
Defense, which cited national security concerns~ ·and
for Congress and the· Department of Labor, which cited
problems arising from the CNMI's control of
·
immigration. In particular, Labor's concern focused
primarily on the relaxed temporary·worker
provisions -- it argued that relaxing such standards
would leadto a.situation on Guam similar to that in
the CNMI~ where: (a) there were wide-spread and
egregious violations of health,·safety and minimum
wage laws; and. (b) the.great demand for a cheap ~nd
easily exploitable labor force resulted in the number
of .temporary alien laborers outnumbering the local
�·permanent population. Due to Labor's-objections, OMB
directed the Second Task Force.to omit comment on
this entire.section in it~ re~ort.
,I'
·Comment. There should be more flexibility to deal with
these issues~ Not:only are there new appointees in th~
Department of Labor wh.o might be more sympathetic to
·Guam's needs, but the labor situation in the CNMI has
improved significantly in recent months -- ~ working
and living conditions in textile factories have improved;
workers. are being paid their agreed-upon wages in a timely
manner; and the CNMI Government is in the process of
·enactingminimum wage and labor reform laws. Further,
Congressman George Miller, chilirman of the House Natural
Resources Committee having jurisdiction over insular .
issues and the most vociferous critic of CNMI labor abuses
in Congress, will be leading a congressional delegation on
a tour of Guam, CNMI, American Samoa and Palau in early
January, 1994 •. If the delegation finds that sigriificant
improvements have been made' in the CNMI, this may release
political pressure on the. Department of Labor to . oppose
the relaxation of temporary alien worker provisions-for
Guam Colnm.onweal th.
··
·
If Labor is persuaded t~ change its position, the Clinton _·
Administration could adopt the Second Task. Force's last ·
signed agreement with the CSD (which already-has the
support of Justice via INS) . .. The. es·sence of the agreement
is two-fold:
Breaking the "Chain'' of Permanent Immigration. The
CSD wanted. to stop the ability of permane:Qt alien
residents on Guam to file petitions for their
relatives. The u.s. wanted to make sure that the
rights of u.s. citizens and members -of the u.s. Armed
·Forces to petition for relatives were not diminished.
This was accomplished by retaining the right of u.s.
citizens and members of the U.S. Armed Services to
bring spouses·and children-to Guam. However,
·permanent resident aliens residing on Guam were given
a two-yearperiod fromthe.date the Co:inmonwealth Act
is made effective within which to petition for
spouses and unmarried children.
After this two-year
.grace period,· the "immigration chain would be broken"
and permaneritresident aliens on Guam would no longer.
be perrl!_itted to petition for relatives. Related
provisions of the-Immigration and Naturalization Act
· were conformed similarly tq make Guam less attractive
·to immigrants. -Fo.r example, the U.S. District
·
.court's jurisdiction· to naturalize al.iens was
restricted to aliens who fell within the permitted
categories of Section 701. Also, Guam would no
longer be considered part of the U.S. for purpos-es of
calculating the duration of a permanent resident
-Ol.t-
.
'
�J·
alien'~ physical preserice fo~ n~turalizatiori, thereb~
making Guam less attractive to.prospective
immigrants.
(See Attachments 22_and 23).
.
.
Expanding Temporary Alien Worker Program. As a
result-of Guam's burgeoning economy, the .CSD wanted
the ability to bring tempoJ;ary alien laborers to work .
in Guam's hotel, restaurant and tourism-related
industrie~.
Unfortuh~telyJ current INS laws permit
temporary alien laborers only in temporary positions.
(e.g. agricultural and·construction jobs). They are
not pe-rmitted iq permanent positions (restaurant and
ho~el positions fall within this category).
The Task ·
- Force·· and CS.D had agreed to broaden Section
101(a)(l5)(H) of the INA (8 USC Section 1101(H)) to
eiiminate the distinction between "temporary" and .
'~·permanent" positions by adding a new section which.
aliows alien workers tq be admitted .to Guam "if
unemployed.persons capable of performing such
services or· labor cannot be found in Guam." (See.
Attachments 22 and 23). ·
Section 702 •. Guam-Only Visa.
Summary of original Provision.· Section would authorize
consular officials to issue non-immigrant visas for
tr~vel only to Guam to encourage foreign investment and .
tourism.
·
· ·
u.s.
Status.
UNDER REVIEW by CSD.
_Guam Position. Purpose of this section is to
encourage tourists and ·investors, especially those
from the Asia-Pacific region, to come to Guam. The
tourist-development aspect of this provision has
already_been satisfied, ·in large part, by the
·
separate passage of the "Guam Visa Waiver" program·
(Section 2, P.L. 98-454 codified at 8 u.s.c.
1182(1)). The investor~development aspect, however,
still needs to be strengthened~
Federal Position. · The Guam Vi~a waiver Program
satisfies the entire intent of this proposal. It
:waives the visa requirement for visitors from
selegted cotintrie~ coming solely to Guam for_~ period
. not exceeding 15 days for bU:siriess or pleasure.
Countries th.at. have qualified for this program
include: Australia, Br~nei, Daruss~lm, Burma,
Indohesi'a,. Japan, Malaysia, Nauru,·. New Zealand, Papua
.New Guinea, the Republic of Korea, Singapore, the
Solomon Islands, the United Kingdom, Vanuatu and
Wes.tern Samoa. As of August 1993, Taiwan has been
�added to the list of countrie.s qualifying for visa
. waiver into Guam only.
Nevertheless, in order to accommodate further the
CSD's. request regarding the encouragement-of foreign·
investment in Guam, th.e Task Force has proffered a
new prov1s1on that would.· allow foreign investors to
com~ to ~uam to direct and de~elop businesses in
which they have invested a substantial amount. of
capital. As of the publication of the-Second Task
Force Report, the CSD had not yet responded to the
proposal.
Comment. It. has become apparent that Guam wants more than
. the waiver of tempo_rary visas from selected countries for
15-day visits to Guam. tt-also wants to provide lon~er
_term·non-immigrant visas for foreign investors who come to
Guam·to develop and direct an operation in which they have
. invested a substantial amount of capital and which would
benefit the economy of Guam. Guam appears to want
something that is a cross! between the existing non.:.. .
immigrant ·"treaty-investor E-2" program (B u.s.c. ·
11Q1(a)(15) (-E) (ii)). and 'the newly.:..enacted immigrant
investor provisions (B u.s.c. 1153(b)(5)). Bebau~e the
.Task Force has previously offered a proposal on this
issue, this concept shouldbe'acceptable to the Federal
Government. - Future n'egotiations should focus on the
· content of the provision _.:.. ~ permissible length of the
visa; dollar amount necessary to qualify as "substantial
investment"; number of jobs required to be created by the
venture; and role of.Government.of Guam vis-a-vis the u.s.
Attorney General/iNs in setting the conditions of the \
program.·
·
Section 703.Preservation of Authority
Summary of-Original Provision. None. This is·a new
provision proffered by the CSD during the_negotiations
with the Second Task Force. (See Attachment 23}. The
proffered provision attempts to retain the Government of
Guam's power to enact immigration and nationality laws
should a future Congress modify or repeal Section 101.
Status.
UNDER REVIEW by Task Force.
Guam .Position·. cso ·wants this provision as a fallback provision to ensure ·that. the Guam Commonwe.al th
Government would have authority_to enact 'its own
immigration and nationality laws should a-future
Congress repeal Section 701.
Federal Position. To the extent that this provision
is an attempt to bind the actions of future
Congresses,_ the Federal concerns would be similar to
i
�)
those raised with the "mutual consent" provisions.
See Section 103 (Mutual Consent) and Section 202
(Effect of Federal Law).
comment. There is ··probably room for movement here,
similar to that described for the mutual consent
provisions.
-d-9-
�-
----------
~~-~-------
---------------------------,
(
·. . .
TITLE 8 - lABOR
Section 801. · Federa1
Empl~yment.
Summary of Original Provision. Provides a preference in
Federal employment in Guam to residents of Guam possessing
reguisi te StandardS Of age I health 1 Character 1 edUCation j
·knowledge and experience.
·
status.
AGREEMENT as modified (See Attachment 24)~
!
Guam ·. Position.
The CSD . argued that there was
discrimination against local residents in the
filling of u.s. civil service positions on Guam and
that· a preference for locals was required to provide
a better balance.
·
Federal Position. Notwithstanding al.fegations about
discrmination . against lo.cals, the ·Task Force
maintained that t6~re existed a de facto prefei~nce
for local hires in Guain for ,federal civil service
positions.
Nevertheless; ·the· Task Force believed
that·. a
statutorily
mandated - preference . was
a~propriate for two reasons~
(a} it would·confer a
benefit on u.s. citizens and nationals who· are
residents of. Guam; and (b) it would be conducive to
fiscal economy by saving on relocation cost$ of off-·
island hires .
. Comment .. In relevant part, .the agreement (Attachment. 24)
provides the following refinements:
(a) that the
preference applies only to new Federal employees hired in.·
Guam (not~transfers of existing federal employees fro~
off-island);
(b) that the term "qualifications" was
substituted for "age" and other st.andards because of
- Federal· prohibition on age · discrimination; (.c)_ . that
.. Federal .anti-,.discrimination laws in employment continue·
·to apply in Guam; and (d) that the preference-for veterans
·and spouses of military. personnel continues to apply' and
takes priority over the preference to residents of Guam·
provided for in the section. In addition__ the agreement
adds a ~aragraph providing a remedy in Federal court for
persons claiming to be aggrieved.
Section 802.
Guam Labor Laws.
Summary. of. Original . Provision..
Authorizes· the. Guam
Commonwealth Government to enact ·and enforce ·labor laws
to replace existing Federal labor laws. ·All applicable
Federal laws which regulate employment on Guam will remain
· .'iri effect .until replaced by local laws.
·
Status.
AGREEMENT as modified (See Attachment 26).
-Jq-
�i
I
·~
.I
.
Guam Position. Because of the island's proximity to·
Asian and Pacific labor markets, there is a need for
flexibility in designing competitive yet responsible·
employment laws.
Fede'ral Position. The original language gl ves rise
to great uncertainty-as to what constitutes "U.S.
laws applicable· to· employment ··on Guam". and to what
extent · such laws are replaced or .· superceded by
locally-enacted Guam labor laws.
In ·light of the
-CNMI's .labor abuses, the Task Force was .also
concerned that Guam's control. of labor ~aws. was
intended to provide for ·less. ·stringent employment
standards
in
order
to
make · Gtiani
a
more
attractive/competitive · labor market for· fore~gn
investment .
The Second Task Force and CSD agreed upon
. Comment..
.substitute language (Attachment 26). Attachment 26 allows.·
the Government of Guam to.· assume responsibility for
enacting and enforcing employment:. laws in Guam if they
meet certain conditions. Guam must submit.its proposed
·legislation or regulation to the Secretary of Labor. Upon
consultation with any·other Federal agency that·may be
affected, the Secretary of Labor may approve the
legislation ·or regulation provided that it includes
standards and-enforcement mechanisms as stringent as the
Federal·. laws and regulations which it supplants or .
provided. that the Secretary finds -that the · Guam
legislation or regulation is . required by compe~ling
conditions in Guam. In addition, the Secretary of Labor
must fj,.nd that Guam has provided an agency with sufficient
funds, legal authority and -staff to enforce t:Pe local_.law.
The Secretai::y of Labor is given 180 days to approve or to
disapprove a proposed Guam statute or regulation. Upon
approval, the corresponding Federal law or regulation that.
would otherwise apply is superseded.
�l.
TITLE IX - TRANSPORTATION AND TELECOMMUNICATtONS
Section 901. ··Maritime Shipping (Jones Act).
. '
Summary of Original Provision. This section would
allow (1} the use of certain forE;!ign-built vessels in
Guam's.waters and in the EEZ surround1ng Guam; (2) a
limited exemption forGuam from the Jones Actfor
shipping.fish; (3) a periodic review of Pederal
coastwise laws in order to determine the d~sirability
of . continuing their app;Lication to Guam.
Status. DEFERRED at the CSD's request, pending 'the
resolt1tion of outstanding litigation brought by Guam
against certain shipping co:mpanies.
·
·
.
.
. .
Guam Position. Guam relies almost exclusively on
the shipping industry to provide the bulk of its
food-supplies, equipment, buildingmaterial and
other n~ce~sities. U.S. cabotage or coastwise
shipping laws, such as the Jone·s Act, adversely
impact Guam's ecoriomy ?Tid are largely:responsible
for the high cost of living on Guam. · ·Among other
things, such laws have encouraged a shipping
· monopoly among certain sea carriers and have
allowed them to price-gouge the Guam market.
Containers of materials from the West Coast to
Guam, for example~ a~e priced signifitantly higher
than containers of the same materials from the
West C~ast to Japan or Taiwan. A'j: the same time,
such laws prevent Guam from taking advantage of
much less e'xpensi ve shipments from the closer
Asian· ina-rkets.
Federal Position. ·~he Department of
.
Transportation's Federal Maritime Coiillllissiori h.as
been stringently,opposed any reiaxati6n of u.s.
cabotage laws in regard to Guam. The primary
argument is that exempting Guam would set a
.
slippery precedent which would encourage coastal
States to seek similar exemptions, thereby
undermining u~s. cabotage laws.
Comment. The recent agreement on GATT (General
'
Agreement on Tariffs and Trade), which lowers a brqad
array of trade barriers worldwide, may cause the
independent repeal of the Jones Act and other U.S.
cabotage laws.· ·
'
Section 902(a).
Airlines.~
-3o2-
�summary oforiginal Provision. Authorizes the Governor·
of Guam to sponsor any q~alified air carrier to serve
Guam. Exempts Guam:from all bilateral treaties between
the u.s. and foreign countries with regard to
·
~cheduling~ technical specifications of aircraft and
charter passenger flights to or ·frOm Guam. that
originate in foreigri countries.
Status. DISAGREEMENT." See Attachment _45 (.CSD
'P:roposal); Attachment 45 (Joint Proposal); Attachment
55 (Tas~ Fore~ Proposal).
·Guam Position. Guam has·a growing economy based
laig~ly on ,tourism,· which is enhanced by its
central ''hubrr location in relation to 'Asia-Pacific
Rim countries. Under ~xisting procedures, air
carrier servic~ to and: from Gtiam have been
determined pursuant to biiateral treatie;;s · between .
the U.S. and foreign countries. Guam is .permitted
neither to observe nor participate in negotiations
of such. treaties, which have substantial impact on
. Guam's economy. ·Issues such ·as routes, carriers
and scheduling are often decided without regard to
the unique needs and requirements of· Guam·.
·
Section 902 is g~ner~lly intended to encourage
increased air flights between .Guam and foreign
countries and allow those decisions to be made by
· Guam rather than the u.s.
-I
\.
Federal Positio~. The Task Force generally agrees
with increasing Guam's role in the process of
determif!ing air service that ~irectly impacts the .
island~
The Task Force; however, objects, to·the
proposed elimiriation of DOT's tole regarding the
ap~roval· of foreign carriers on ground~ th~t
questions of safety, economic fairness, . and
consistency with current aviation agreements of
·the United States will be slighted in the absence
·of DOT procedural review. ·. DOT also believes that
Guam should be required to take affirmative steps.
to intervene in proceedings in which it is
interested rather than recedve the status of an
aut6~atic party.
The Task Foice opposes the CSD
request for party status in international
aviation negotiations·on·grounds that·the
Assis~ant Sectetary--Territorial and International
Affairs participates in.the negotiations and·
represents Gov Gua:ri\1 s interests;.
section
902 (b). · Essential Air Service •.
~
-J3-
�------~
· ... J
Summary of Original Provisl.on. Continues Guam as an
"elig~ble ~oint"- for essential air s~rvice.
status. - AGREEMENT as modified (See Attacrunen~ ?,7) .
Section 902(c).
--
DOmestic Air Routes.
Summary. of Original Provision. Requires domestic air
carriers to obtain the concurrence of the Governor of
Guam on application~ for hew~ additional, or cihanged
routes to Guam.
Status.
DISAGREEMENT.
Guam Position~ Guam should have increased input and
participation in _decisions regarding air service to the
islarid.
·
·
Federal Position. _The Federal Task Force opposes this
provision- on grounds that DOT is statutorily
_
responsible for thi~ matter~ · DOT m~intains that
· Federal regUlation is necessary for ass·es~ments of
convenience, public safety~ and national security.
In
addition, the Task Force oppo~es this provision
because, as a practical matter, Guam does exercise a
degree of control .·over the service provided by carriers
through its control of the airport.
section 903.
Telecommunications.
Summary of Original Provision. Defines Guam as a
. "domestic" point for purposes of setting
telecommunication rates by the Federal Communications.
Commission.
Status. - DISAGREEM~NT.
Guam Position. Guam intended the original
language toforce the FCC to treat Guam as a
domestic poi~t.
It was hoped that this would
lower the costs of telecommunications betw.een Guam·
and the U.S.· After the 1989 Task Force Report,
the CSD withdrew the original bill language on
grounds that its ·initial proposal was not in the
best interests of _Guam (see Comment below).
In 1992, the CSD presented a revised ~r6posal (see
Attachment 46) which exempted Guam from FCC
jurisdiction and gave Guam authority over
virtually ail matters pertaining to interstate and
- .
I
. ·.
�·"'---
·~
foreign communicati'ons·services in Guam with the
FCC restricted to.an advisory role. The CSD
argued that Guam's unusual telecommunications
situation, with its historic role as a connecting
point for international communications,· justified
this treatment.
· ·
Federal Position.. The Task Force expressed
.sympathy with ·some of Guam's concerns about
pricing policy ~ut opposed the CSD proposal. The
Task Force suggested deleting section 903 from the
bill entirely on grounds that current law gave the
FCC sufficient flexibility to deal during the.
administrative process withthe special
considerations governing telecommunications issues
.in Guam.· $ince Guam is currently pursuing a
~separate solution to this issue through a:n
administrative process·with the FCC, the Task
Force declined to ~ign the CSD's new·proposed
language.
(See 1993 Report, pp. 70-73)
Comment. · Long distance telephone calls between Guam .
··and the
are treated as international calls. and are·
therefore 90nsidetably more expensive than domestic
long.distance calls. This price differential prompted
the original language of Section 903. In analyzing
t~is provision, however, the 1989 Task Force Report
concluded that the application of domestic rate-making
formulas 'to non-continguous areas would.probably result
·in local intra-island calls becoming more expensive.
'The local telephone company, the Guam Telephone
. Authority ( GTA), discovered a heavy subsi1dization of
'ldcal calls by long distance calls -- althoUgh island
telephone traffic consisted of 90% lo6al calls an~ 10%
long distance. cal~s, 60% o~ its revenue carne from long
distance calls artd only 40% came from local calls.
Guam was prompted to withdraw the original language
whep. it estimated that application of the FCC's
domestic tariff formulas to Guam would resU:lt in
increasing the costs of local. calls. from. $l2 per month
to:$32 per month.
u.s.
'
·~
�TITLE X - LAND, NATURAL RESOURCES AND UTILITIES
Section lOOl(a) · Eminent Domain Power By Guam.
summary of original Provision. commonwealth Government.
shall have power of eminent domain over allproperty·
within Commonwealth consistent with Guam Constitution.
status:
AREEMENT (as modified by Attachment 28).
·Guam Position~ As a duly constitut~d government, the
·Commonwealth of Guam.should have the power of eminent
domain ~it~in the island.
·
Federal Position. Agreed to Guam position, but noted
. that an affirmative statement of thi's power is
. unnecessary in Commonwealth Bill and· may be more
appropriate.in the Guam Constitution. Nevertheless,
for sovereignty reasons, ·the. Task Force argued that
Guam.' s eminent domain power should not extend .to
federal landholdings in Guam. Th~ CSD agreed and
language to this effect was signed by both parties.
(See Attachment 28). _
·section lOOl(b). Control over Exclusive Economic Zone (EEZ).
·Summary of original Provision. confers on commonwealth
Government·jurisdiction over. all resources in the 200-mile
EEZ~ including rights to determine.the· conditions and
terins of pollution control~ marine·scientific research,
management,· exploratiori and exploitation .
. Status.
DISAGREEMENT ..
Guam Position. Because of oil spills, toxic waste
disposal and nuclear waste dumping in the ocean, Guam
seeks to maximize its ability to prevent pollution
with~n the EEZ~
Guam also seeks maximum economic
·benefits that may accrue. from ·whatever marine and
mineral resources exist in the zone. During :
discussions between the.CSD and the Second Task
Force, Guam often cited its historical and cultural
ties to the. surrounding waters, 1ts di$tance from the
United states and its need to develop a diverse .
·
economic base as reasons ~6 assett control over its
EEZ~
Latest Guam Proposal. Guam shall have jurisdiction.
over all .living and nonliving resources.~ithiri the
EE~, including the licensing of exploration and
~
3C-
�.!
''--..;·
exploitation-of such resources and the control of
pollution. Se~arate prdvi~ions transfer the 6urrent
authority of Commerce (over living resources),
Interior (over nonliving resources) and the EPA (over
environmental reg.ulation) to. the Commonwealth. ·
Government. Each transfer of authority includes: (a)
the transfer of-federal fees generated by the
management and licensing of the particular activity;
and (b) .the development of Guain' s own mamigement,
conservation and legal regime for the covered
a·ct:lvi ty so long as such regime is consistent with.
tederal law and international obligations. (See ·
Aftachment 4.8, CSD Proposal, -unsigned).
~ederal Position.
Although the TaskYorce agreed
with the principle that Guam shduld benefit'
economically from the exploitation of the·EEZ, it had
serious concerns about giving Guam the ability to
enact, administer and enforce its own laws within the
EEZ • Citing numerous federal laws·. and regulations.· as
well. as international· treaties and-agreements that
ap~ly on a uniform basis to all domestic EEZ's, the
Task Force argued that the pr6vision ~ould cr~ate
insurmountable problems of coordination, enforcement
and regulation by federal-agencies currently'charged
with management of the EEZ. The Task Force also was
·-concerned .that the confusion stemming from
inconsistencies_between Guam laws and
.
federal/international provisions ~ould·weakeri the
·present regulatory structure. Finally, the Task·
Force.was concerned that there was no mechanism to
ensure that_ Guam' laws-would be at least as string~nt
as existing federal/international laws.
Latest Federal Proposal. The Task Force offered Guam
a.working partners.hip in the fisheries management of
the EEZ and the cover over of all federally collected
revenues derived from the exploitation of fisheries .
.in the EEZ • . Guam· would be allowed_ to develop -its own
EEZ management and conservation regime, consistent ·
with federal law, "in cooperation with, and through
the auspices. and structu-re of, the Western Pacific
Regional Fishery Management Councii."- Federal.
jurisdiction is expressly asserted overthe u.s. EEZ '
surroupding Guam. (See Attachment 56,· Task Force
Propos·al, unsigned).
Comment •. There was no agreement on this· section, with
Guam arguing for comprehensive-authority within the EEZ
and the Task Force willing to give authority only with
respect to fisheries- and the transfer of fisheries fees.
There may be, room for compromise if ·each side can set
aside concepts of "sovereignty" (which seem to underlie
each side's position.and form the basis of conceptual
-3}-
�~
"-._.:
disagreement) and focus instead on each 'side's specific
economic and regulatory interests •.
Sections lOOl(c) and (d)
Federal Eminent Domain Power
sum~ary of Original Provision. Section lOOf(c) states
that ·during times. of peace, the only way the Federal · ..
Government can acquire land on Guam is by vol~ntary means
·through negotiation with-landowners . .Acquisi:tions would
·occur only after authorized by-Congress and if
appropriated funds are. available. Section lOOl(d) states
. . that during times of war, federal eminent. domain power can
be exercised; but only in compliance with .the applicable·
provisions of u.s~- and·Guam Constitutions and laws. ·
Status~
DISAGREEMENT. Although there was a signed
,agreement regarding Section lOOl(c), which deleted
reference to i•voluntary means" (see attachment 29); the
-two sides are at opposite poles regarding thescope of
federal eminent domain power·. Guam argued that such power
should only be exercised in times of war and that'at all
other times only voluntary means can be. used. (See
Attachment 30).
The Task Force tried to accommodate
_Guam's 'sensitivity by proposing that federal land
acquisitions will be done· by Voluntary means unless it
becomes impracticable, in which case the u.s. would use
its eminent domain powers, whether or riot-there is a
d~claration of war.
(See Attachment 31). - ~ '
Guam's Position.
.This is a a very sensitive issue
for Guam~ ' It derives much of its force· from the·
Chamorros' collective memory of massive mil,itary land
takings on Guam_immediately after World War IIand.
the perception .that such takings were, if not
ill_egal, then at least morally unjust -- ~-fair·.
market value- was not offered for the property;·, Navy
officials "took advantage" of the Chamorro people's
patriotism and sense of gratitude af-ter- the war;
Chamorro landowners did not have the benefit of legal
representation; the courts hearing condemnation cases
were staffed by u.s. Naval personnel; the military Is
. unfulfilled promise to give land back to the original
owners once its mission was accomplished (which is an
especially sore point now, given the military's.
diminished need for Guam lands and the unused nature
of federal lands on the island).
:Federal Position. Driven pri~arily·by Defense, the
Task Force stron~ly belie~ed that federal eminent
. domain power on Guam should not be unduly restricted.
First, limiting the use of- federal eminent domain
. powers only to-times of war would severely hamper-the
_military's ability to quickly provide for the·
-38"~
�'·;._·
national de'fense,. especially since the United· states
has not officially declared war since 1941. Second,
the U.S. as a sovereign nation, has the .inherent
right and therefore the ability, to condemn property·
during peace time, albeit.· as a last resort.
.,·
Comment. This will be difficult to resolve .. bn one hand,
the federal interest in ret~inirig eminent domain po~ers in
war or"peace appears directly related to fundamental
interests it·. has. in Guam -- i.e. national S!=curi ty and
continued sovereignty. On the other hand, · Guam's intere·st
in limiting ~uch powers is directly related to one of the
driving forces behind Guam's quest for greater self.determination -- i.e. absolute federal· control and · ·
ownership of large portions of Guam·and lingering
perceptions that military·condemnation of such lands were
unfair at the. outset.
Section 1001 (e), (f) and · 1002.
Return of Excess Federal Land.
sumniary of Original Provision. Section 1001(e) exempts
Guam from the application of any Federal regulations
.
pertaining· to the transfer of ;excess lands and authorizes
the transfer of future excess lands to Guam without
conditions, limitations or reversion clauses. Section
1001(f) lifts all restrict~ons imposed on excess lands
previously transferred to Guam.· Section 1002 mandates
· that all federal lands on Guam "not necessary for direct
and continuous operatiorial, logistical~ or ·~ecurity use"
shall be transferred as exdess real prope~ty to the
Commonwealth Government. Such lands would be transferred
.at:no cost.to Guam, or at the fair market value of such·
lands when originally acquired by the Federal Government.
Final .determination as to what Federal lands are excess
,shall be made by the Joint·commission (a·body_consisting
ofFederal and Guam representatives, the majority of whom
represent Guam interests --see Section 203).
·Status~
DISAGREEMENT.
Guam Position." The .CSD believes that excess federal
lands ought to be returned to Guam as quickly, as
unconditionally and as cost~free as possible. It
also believes that the military unfairly condemned
·one-third of Guam· after World War II and that it
promised that the)land would be returned when no
longer needed. "The CSD argues that much of this .Hmd ·
is underutilized or unused by the military. This is
land that Guam, because of its small size and growing
economy and population, .desperately needs for a
variety of public purposes. Additionally, the Guam
Government is chafing·under conditions and
restrictions imposed on the use of excess lands
previously returned-by the Federal Government. In
-39~
�particu'lar, Guam has problems with restrictio-ns
impo~ed on 927 acres of land returned for port
purposes that required that 70% of the proceeds from
the .sale or lease. of such lands be reimbursed to the
Federal Government.
Guam's last-proposal (see Attachment 47) is
essentially similar to the original S~ction 1002,
except that: -(a) decisions on whether Federal lands
are "excess" shall be made pursu~nt to corisultations
between a Joint: Consultative Group· (composed wholly·.
·of Guam members) and th~ Federal agency holding title
to such lands; and (b) the issue of whether. and to
what·extent·Federal land use restrictions/conditions·
·are lifted will be referred to a Joint consultative
Group for recommendations; and_(c) the Government of
Guam ·is expressly authorized to return·such land!? to
a Cham6rro land trust.andjor the. original Chamorro
land owners.
.
c
Federal Position. The Task-Force's concerns with
these-provisions can'be summarized as follows: (a)
they place -decision-making on what· cons.ti tutes ·lands
-excess to Federai ·need~ in the control of a
Commission·contiolled by Guam interests;· (b) Guam's
proposal makes no allowance for the Department of
Defense's long-term or contingency uses of such lands
for national security purposes;_ (c) vesting·such
authority in a Guam-controlled commission violates
the Appointments-Clause of the Constitution (local·
offici~ls ~aking Federal decisions); arid (d).
elimination of use restrictions undermines legitimate
national security, public safet1 arid economic.
concerns.
The Task Force's last proposal (seeAttachment 57) is
similar to one recommended in the First Task Force.
Report -~ i.e. the u.s. will periodically review its
land needs in Guam and will release property
determined excess. pursuant to existing statutes, with
.the proviso that it'will take into account Guam's
recommendations and strive to eliminate as mar:iy
restrictions as· possible from the conveyance·
documents.
·comment. The return of excess Federal-land remains a major
factor behind Guam's quest for greater self-determination~
The ·long-standing unresolved land issues between Guam and
·the u.s. are sources of .the current tension in Federal- ·
territorial relations. Sever_al events will occur in the
upcoming months which, depending upon their outcome, may
lead to a successful resollition'of land issues c;>r greatly
exacerbate the frustations .of both_ sides. In no
particular order, these are ·as follows: (a) whether
- t/o'-
.
·~
�\._.. •
Congressman Underwood's excess lands bill (H.R. 2144),
whichwill return to Guam 3,200 acres of federal lands
declared excess in 1977, ~ill be passed in the updo~ing
session of Congress; (b) the public perceptions and .
.substantive results of the so-called Guam Land Conference
scheduled for.mid~January .1994.in Guam· and the follow:-up
· me~tings contemplated in Washington and California; (c)
the outcome_of the Fish and Wildlife Service~s final
decision by March 1994 on the designation of Critical
Habit~t verstis a Wildlife Refuge overl~y; (d) the result
of the Department of Defense's "Guam Land Use Plan '94",
which seeks by March 1994 to identify additional .military
lands no longer needed fo~ military purposes; (e) whether
the Governor's office and the Fish and Wildlife S~rvi6e
can agree·on .the creation of-access easements through
and/or .the transfer of title to Ritidian Point; and (f)
the resolution by the National Park Service of private and
public land-inholdings within the boundaries of the 2,000 '
.acre War In the Pa_cific National Historical Park in Guam.
Section 1003.
.'
.
Access to Federal P;roperty.
summary of original Provision. The Joint. Commission is
given authorization· to determine which r"ecreational and
historic sites ori Federal property should be open·to the
public. Also, Commission shall determine wqat roadway
easements over Federal property should be available to the
public in cases where such eas.emehts are the- only
practicaple means· to reach recreational or historic areas.
status~·
AGREEMENT on p:rinciple.of public access to and
use of recreational and historical sites and roadway
·easements ·on Federal property, "so long as the security ·of
military installations and operational military
·
requirements are not compromised." {See Attachment 33).
DISAGREEMENT on Joint Commission's authority to decide
specific instances of public use and access to Federal
property .. ·
Guam Position. CSD argues 'that there are numerous
recreational, historical·and private sites that are
landlocked by Federally-owned property.
Instances
include the private beach properties of the Artero
and Castro families adjacent to Ri tidian Poi.nt on the
northern tip of Guam. CSD also argued against what
it perceives to be unduly.burdensome requirements
imposed by the military on the public to obtain
. access 'to_~uch site--~ armed security guards at
Potts Junction (leading to a roadway through the Air
Force base to Ritidian Point and which has since been
unmanned) and requirements to show identification and
obtain permits from base commanders. Fr-om Guam's
perspective, th~ military has no right to with!'lold
...,.. t/l-
�essentially·unfettered public access to·these areas
so long. as military security requirements are not
-·compromised~
·
Fede~al Position~
The Task Force oppo~ed ~esting
exclusive .authority in a Joint Commission·controlled·
by Guam representatives· to make decisions- r_egarding
access:to Federal property because: (a) there was no·
mechanism to prevent the Commission from ignoring a
base commander's stated needs for military security,
safety and operational r·equirements; and · (b)
determination of public.easements and access on
Federal property can only beexercised by u.s .
. officials appointed pursuant to the Apj::>Ointments
·
. Clause of the Constitution!.
·.Comment. Access to and through Federally-:-owned land
remains one of the most co.ntentious issues on Guam.. Last
year, prompted by actions of.local Chamorro.indigenous·
·rights groups, local protestors marched against the·guard
post at Potts Junction. Furthermore, the issue of
·providing access through Ritidian Point for· adjacent
private property· owners remains one of Governor Ada'.s top
priorities. The Department of the Interior, through the
Fish and Wildlife Service (which received title to
Ritidian Point frbm·the military earlier this year over
the strident objections of. Guam .leaders), is currently
negot1at1ng access w1th Governor Ada's Wash1ngton D.C.
office.
·
·
•
.•
•
Section 10_04.
•
•
•
I
•
I
..
Transfer of Federal Utilities to Guam.
Summary of Original Provision. Within 90 days of'the
passage of the. Cbmmoriwealth Act, all right, title and.
in~erest to Federally-owned utililities'wouldbe
transferred to the CommonwealthGovernment, except.those.
parts of the syste~s use_d solely. for _Federal purposes.
Status. AGREEMENT- (as modified by Attachment. 34).
Essentially, .the transfer of Federal. water, power and
sewer utilities would be made subject to the terms of
-separate agreements being negotiated between the u.s. a;nd
.
Guam. Exceptions from transfer include portions of
utilities which are lcoated within federal property and
systems necessary for missiori-critical_military purposes.
Once the utilities are transferred, the utility rates
charged. by Guam to -the u·. s. must be cost..:.based and applied
on a non-discriminatory basis.
.
.Gua~
Position. ·There have been ~ong.and difficult
negotiations between theU~S. and Guam· over public.
utilities which were-originally the sole
re_sponsibility of the Defense Department after World
War II. Consequently, large parts of the island's
·-tfr;2-
. I
�·....,
:
. \.__ ..
power and water utilities remained under military
control ~espite the development of a parailel ·set of
utilities under civilian management and control. The
pro~ision recognizes ~dvances in Guam's technological
and m~ngeria~ abiliti~s to provide island-wide
.
· utility services and the growing belief that the most
cost-efficient means to operate utilities is to merge
·.the military and civilian systems into a single grid ..
·Furthermore, Guam's growing civilian popt1lation.wou1d
benefit from the excess electrical generation and
transmission cap~city of the. military power.
facilities.
·
. Federal· Position. The· primary Feder~l·· interest in
utility·service.on Guam is providing stable, reliabl~
and cost-efficient services to support the na~al and
air force fnstallatibns on the islarid. ··In light of
advances in the civilicin technological·and managerial
capabilities in utili ti~s, _the military is receptive
.to transferring their utility. systems·to Guam, with
- the exception noted.
· ·
. Comment. Transfer of·thepower utility has already been
accomplished by signing of a Customer Supplier Agreement
·by the u.s. Navy and the Guam Power·Authority in June,
1992. The-Task Force continues to .recommend inclusion of
the revised Section 100.4 to deal with future utility·
transfer issues~
Section 1005.
Hazardous Wa'ste.
·Comment.. Orig.incil bill. ended with Section .1004. The· CSD
and Task Force discussed mo~ing th~. subject matter of the
~riginal Section 304 (Hazardous Waste) td Article XI as a
new Section 1005. For discussion~ see Section 304.
-1/3-·
�TITLE XI- UNITED STATES.FINANCIAL ASSISTANCE
Section 1101
.Return of Taxes and
Fees~
Summary of Original. Provision. Provides for the
contiriuation of .Fede~al income tax transfer or cover-over
policy arid law for Guam uriO.er Commonwealth. Under ~ection
31 of the Organic Act of Guam, as amended (48 USC 1421h),
the Internal Revenue ·Code is use'd on Guam but the revenue
.goes to Guam,.n6f the Federal T:r::easury. Guam recei~es in
· excess of $300 .million. annually under this law. Under
section 30 of that.Act, there are paid into.the Treasury
of Guam ·various .Federal revenues derived from Guani,
principally Federal incrime t~xes derived from •il~tary
personnel and Federal employees in Guam. Section 30 also
covers the proceeds of other taxes and.fees collected on
Guam by the Federal Government, including quarantine,
passport, immigration, and naturalization. fee$. Between
·$35 and $40million has been transferred· annually to Guam
in section 30 funds over the pa'st few year's.
Current Status.'AGREEMENT with minor revisions to original
language. See Attachment #37 for agreed language.
·Federal Position. This prov:ision parallels the
existing secti<?ns 3Q and 31 of :the Organic Act,· with
a few exceptions, and therefore i~ acceptable to the.
Federal Government. The additions to the Guam
.language mutually agreed. to were: - .
.
1) section 30 now provides that all of the taxes
and fees turned over to the Treasury of Guam
under the section shall be·· "held in a9count for
the Government of Guam [and shall be expended
for thebenefit and Government of Guam] in
accordance with.the annual·budgets." Those
bracketed words are now in the agreed language.
2).The last ·two sentences of section 30, as
amended in.1978, provide an advance payment 'for
Guam of the funds. If the two sentences .of .
section. 3 o are omitted Guam would experience·,
upon enactment of the Commonwealth Bill, a
transition year in which none of the specified
Federal revenues wouldbe paid to Guam. Federal
and Guam officials therefore agreed on the
restoration of the two sentences from section 30
to prevent such a revenue loss to Guam.
Section 1102.
Equal Finance for Guam Citizens with._States.
Summary of Origimil Provision. Accords Guam State-like
treatment for purposes of·Federal programs; wOuld extend
- t/1/-
�I
- ·"-..:__.·.:
the Supplemental Security Income (SSI) program to Guam;
.and ~ould ~equire that the formula for allocating program
funds to Guam be the same as the States.
.
Status.
DISAGREEMENT~
Guam·Position. Even though the residents of Guam are
u.s. citizens, the u.s. sometimes neglects to extend
the benefits of certain federal programs to Guam, or,
when it does. provide benefits, it allocates benefits
pursuant to formulas· that· are not as favorable_ as
those applicable to the several States. Although
·. certai~ situations may be inadvertent; these
exemplify -discriminatory treatment of Guam and
demonstrate that the residents of ·.Guam are "second- .·
class" U.S. citizens.
Federal Position. The function of section 1102 is
probably.essentially to extencito Guam the.ssr
program. The .issue · is one that HHS has studied .at · .
some length,· usually concluding that because Puerto·
Rico would inevitably follow Guam, extension would be
prohibitively expensive. HHS has lately softened~ ·
but OMB was not persuaded in January 1993 that
extension was ·appropriate, based on a complex formula
that never has· been made public •. ·
I
.
·The other functions of section 1102 need.not be
performed. . Guam. now· receives Federal programs under_ all Federal laws other than some portions of·the
Social Security Act, and its formula is sometimes not
state-like because it .is not possibl~ to apply -state ·
·_standards to a territory. ·(what is rural and what is
urban, for instance, is difficult in the.territorial
··. context'.)· Whem Guam is subject to a special·· formula,
it is at least as generous as the State formula,·· and
often much more ·so.
(The reference to-section 228 of-the social security
Act is.now moot. All the beneficiaries of it are
now, if alive, ·close to 100 years old.) ,
Comment. The Second Task Force Report stated that this
provision. was ·still. under review by the Administration.
HHS ·should continue to explore· the ssr issue, with . the
hope that extension might be economically feasible.
Otherwise the CSD rieeds to be provided with further
information ·about the extent to· which Guam is nowwell-treated under Federal programs.
Se9tion 1103. Return of Exclusive-Economic Zone Fees.
Summary of Original Provision. Provided that under
-JfS-
�!
l
Commonwealth status, all ·licensing and other fees obtained
l;:>y permitting foreign vessels to fish or other
exploitation of the 200~mile Exclusive Economic Zone would
be paid to the treasury of Guam.
Current Status. AGREEMENT with·a caveat. The Federal
counter..,.proposal to Guam on the EEZ controi and
development issue is dealt with in section.1001(b).
Generally speaking, the Federal proposal-offered to
transfer all EEZ fees to Guam if Guam agrees to set up a
·fishery management regime under the auspices.of the
Western Pacific· Regional Fisheries Management Council.
(Se~ prior discussion, Section 1001(b)).
Section 1104. Federal Payment.
Summary of Original Provision. Provides.for an annual
payment to Guam, based on the pattern of the Federal
payment to the District~of Columbia that is. provided in
the D. c. Home Rule Act of 1973. The.Governor would
develop-annual expenditure and revenue estimates,
identifying elements of.cost and.benefits to.Guam
resulting from u.s. defense presence on the island, and
. formulate with the Guam Legislature Guam's request with
_respect to the level of appropriation for the annual
Federal payment. The request is to be submitted to the
President for submission to the Congress.
·
Current Status. DISAGREEMENT~ No compromise language.
This section received limited consideration and discussion
during previous talks - only two hours of fo~mal
discussion.
.
Guam Position. The large U.s. defense presence on
Guam, comb:Lned with the amount of land held by the.
Federal Government ·(about one-third of the island),
and u.s. ~control of the 2b0-mile Exclusive Econdmic
Zone substantially reduce the available natural
_resource base Guam can use to stimulate economic'
.
development. The island's unusual role as one· of the_
Nation's principal·miltary bastions in the Far East,
therefore, reqtiires special financial assistance to
compensate for-the restrictions, limitations, an~
demands placed on the island~
'
•'.
Federal .Position: Guam and the D.c.' are not
comparable. Guam receives subst~ntial Federal fiscal
benefits not available to States or D.C., and these
would-be continued under the draft Act. These
include the .territorial income ·tax in lieu of a
federaltax, payable to the Government of Guam (for
1991, $311 million), and section 30 taxes ($36
million.in 1991) which are Federal inco~e tax~s paid
by military personnel and Federal employees in Guam,
..
�. '
"'---··
by _military personnel arid Federal-employees in Guam,
and are transferred to the Guam Treas·ury. There are
no comparable provisions for D~c~ It would not be
reasonable -t;.o provide the'additional Federal fiscal·
. assistance to Guam called for in this section.
Comment. The special Federal tax benefits Guam receives,
the island's rapid economic development over the past
several years, which tripled locai government revenues,
·the end of the Cold War and continuing ·reduction·in u.s.
defense presence in_Guam, as well as the increasing
budgetary problems of the Federal Government have combined
to significantly chan·ge the strategic, economic, and U.S.
political context in which this p;roposal was initially
developed in the early 1980s. This has tended to weaken
Guam's case for additional assistance in Federal eyes,
while lessening the Federal Government's.political.and
economid ab~lity to add~ess this proposal.
section-1105. Transition Assistance
summary of Original Provision.; Provides for three forms of
transition assistance froin the u.s.·· to· Guam: ( 1) Federal
financing of the costs of institutional change connected
with GUam's assuming commonwealth status, with such costs
to include· costs of staff, ·contracts, and the· ~eferendum;
.( 2) Assistance in meeting Guam's capital needs by means of
Federal appropriations to implement a long .... term capital
improvement program; ·and (3) ·A federally':...;funded revolving
fund to establish an Economic Development Fund, to "assist
in.the financing of the private sector needsof Guam ..• and
to develop the economic resources ·needed to meet the responsibilities of local self-government 11 •
Current Status. LIMITED AGREEMENT on (1). DISAGREEMENT. on
(2) and (3). See Attachment #59 for langtiage· on limited
agreement. Guam Position. The u.s. has provided assistance to·
the CNMI and Freeely Associated States for ·status
votes, constitutional conventions, and public
education projects related to-status and self-:determination, and therefore the u.s., which has the
responsibility to promote Guam's poli'tical
.
development, should similarly assist Guam's status
process and transition to greater self-government.
Because the u.s. also has the reponsibility to
·encourage the social and economicdevelopment of
Guam, it should assist ·in building an infrastructure .·
base adequate for development of the private sector
and to strengthen the utility.of Guam for u.s.
·
national security ~urposes.· The u.s. transfer of
federal taxes .to Guam is a Congressional choice and
Guam shouid not be penalized for it.
·
~
1/7;_
�"---·
Federal Position. The bill bontains no ceilin~s on
the amounts-to.be appropriated for these programs,
and the Task Force received no· estimates as t·o
a~~unts cohtemplated. U.S. should assume some costs
as~ociat~d with "in~titutional change", as it did in
the case of the ~orthern Marianas and the Freely ·
Associated States. -Federal funds.in an amount
ranging from $150,000 to $500,000 were made available
to each of them to defray referenduinjplebiscite
.costs. ·
'U.S. 01.1ght not to defray-the costs of the Guam CSD or
those with.whom.it has contracted to assist it•. U.S.
·has exercised no oversight with respect to such
matters, ·and it.would be extremely inappropriate for
·.it·· to have done so. Guam should assume the costs
arising froin its decisions as to how that quest
should be conducted,'· by whom, and at. what cost.
The u.s.·shou:I_d support long-term capital improvement
program (CIP) but not by the means provided for in
section i105(1)(B), (2), and (3), and should support
a continued Federal role in promoting Guam's
'infrastructure development. Annual Interior
Appropriations Acts have ~a~ried substantial
appropriations forCIP in Guam, with the amount
varying during the last ten years rrpm $4 million to
over $11 million· annually in ad hoc appropriations.
Also in the 1960's an. island-.wide .plan for capital
improvements was devised in connection with the Guam
·. Rehabili t&tion Act (Public Law 88-170 ( 1963), as
amended by Public Law 90-511 (1968}), for which the
Uni:ted States ultimately provideda total of $75
million (in 1960~s·dollars}~
·
Guam's economy is capable of sustaining its own
infrastructure development, including long-term
financing and repayment from r~venues, 'both earmarked
and general. Guam.has not requested capital
improvement-funds from the Federal Government for the
past tw·o fiscal years, and spokesmen for Guam have
testified to Congress ·that.they believe Guam_can
provide such financing from its local resources and
through private bond issues backed by local
government revenue streams.
Guam's needs can be much better addressed through a
planned program of borrowing on the capital markets.
The Federal Government has assisted in such
· borrowings in the· past, both directly . through Federal ·
loan guarantees, and indirectly through Guam's pledge
of·future cover over of "Section 30" receipts.
Federal Government-support for such infrastructure
finance should 6ontin~e.
�'-.:...·
federal position recommended against legislation that
would re~-.-authorize a Guam EconOIQ.ic- Development Fund,
for reasons already outlined and other
~onsiderations.
(See 1993 ~epori, pp. 91 and 92).
I
Section 1106._ Guam Departure Tax.
•
Sutnrnary of Original Provision.
None.· This is a new
provision which was added to Guam's Commonwealth proposal
at the end of the 1993 discussions. It provides that Guam
would be able to assess a head tax on passengers departing
Guam on ocean and air carriers. 'It would exempt any person
· •travelling on a u.s. passport. Revenues collected would go
to Guam's General Fund for whatever use the Commonwealth
Government ·determines.
·current Status.· DISAGREEMENT. No Compromise language •
Gl?-am' s pr~posed l_anguage is Attachment #50~
.
Guam's Position~ Guam needs the ability to assess
..
. local' tax'es and fees in .order to rationally plan and
develop ·its iri.frastn.icture and economy. Tourism is
the island's largest private sector industry, drawing
-80.0,000 visitors a·year to the island's air and sea
terminals. Guam under Commonwealth ought to have th~
flexibility to use this resource as a way to generate
the necessary revenues to de~elop its infrastructure.
This .tax would . not place . a burden onI u.s. travellers.
.
.
.
.
Feder~l Position. u.s. ~tatutes preverit·u.s.
jurisdictions from imposing a head tax on passengers
using an inte~national airport. Guam also accepted
FAA-a~ministered airport development funds, _pledging
as one of· the requirements not to use its
international airport as a·means f9r imposing any
head tax for general revenue purposes. The u.s. is
bound to this prohibition both py qolllestic policy
considerations and international tre&t.:ieP.- .· Guam,
however, is permi tteci to levy a. p~~a~mJ~r. tac.ili ty
charge at its international airport, PJ:"9V-iciedt;.he
revenue is used for airport capi tat fmpFRY~~~n~
·
�····~ ·~·:-
TITLE XII - TECHNICAL AMENDMENTS AND INTERPRETATION
.The provisions of Title XII of the original Commonwealth.legislation
were su-bstantially revised by the CSD after the First Task Force
report. The CSD's revised version of Title XII is Attachment 51 to
the second Task Force Report~ The Task Force's. version .of Title XII
. is Attachmel')t 60~
As we have s·een with other sections, although
there are-considerable areas of agreement, differences remain. There.
has been no formal ·agreement between the parties ·regarding Title
XII. .
.
.
.
. . .
'
.
.
The Second Task Force Report made. a three-fold cl'assification of ·the.·
issues addressed by Title XII: ( 1) conceptual approaches to defining
·"Commonwealth"; ( 2) proposals on which Federal laws should remain
'in force ·under Commonwealth and wh:ich should be repealed; and ( 3).
the ratification process for the Guam Constitution; ·including
effective dates. In the· following summary of where mptters stand,
we will follow the Second Task Force report by corisidering the
revised language for Title XII proposed by the CSD and included. in
the Second Task Force report as Attachment.· 51. ·
Part A.
Defining Commonwealth - CSD Proposal •.
-
.
Summary of Provisions. sectfon 1201 .states· that neither
the Commonwealth legislation nor Guam's· adoption of. a
Consti tut.:ion shall be interpreted, as a final act of selfdetermination or as an act of incorporation·of Guam into
the United States~
Secti6n 1202 states .that tha
Commonwealth fegislation cannot be altered without Guam's.
consent and that the mutual consent provision shall be
deemed to establish a Fifth Amendment property ·right in
Guam enforceable in the· Federal courts.
s·ection 1203
consists of definitions relating to the boundaries of Guam.
and to the scope of its jur~sdicti6nal authority.
·
Status.
DISAGREEMENT.
Guam.Position.
Commonwealth is. intended to be an
11
interim" status, with Guam's ultimate political
. status to be determined by a Chamorro~only vote as ...
provided in the Guam Constitution. Additionally, if
it is true that one Corigress cannot bind __ a
subsequent Congress in regard to not revising the
Commonwealth Act w:i thout mutual consent, them Guam
has the right to demand. just compensation for the
deprivation of its right to consent to subsequent
revisions.
·
Federal Position.
The CSD language suggests .that
further acts of self-determination rest ex~lusively
with Guam, a proposition that cannot exist pursuant
to a Commonwealth relationship purportedly under
._-so.:...·
I
I
I
�U.S. ·sovereignty.
Further, there can be no Fifth
Amendment property right in the mutual . consent··
provi~ion ba~~d on Bow~n v. Agencies Opposed to So.
Sec; Entrap., 477 U.S~ 41, 55 (1986). Finally, the
the definitional sections are objectionable largelybecause Guam appears to be attempting ·to assert·
title to the Exclusive Economic ione (~EZ). -- the
submerged lands more than three miles off-shore from
Guam -...,.. in direct contravention of. continued u.s.
sovereignty.·
Part B.
,. -
Federal Laws Continued or Repealed.
Summary of Provisions. ·These sectJ..ons provide that Guam's.
internal laws will continue in- effect upon establishment
of the C.ommonwealth and that Federal laws not specifically
r~pealed by the Commonwealth legislation will continu~ to
apply to Guam.
·
·
Status·.
DISAGREEMENT.
Nature of Disagreement.·
-On the whole,
the
disagreements involve the continuing extent of
Federal supervisory authority over Guam with Guam
trying .to eliminate ,this author.i ty. and the Task
Force trying to retain those portions necessary to
protect ·Federal interests.
For example, the Task .
Force, particularly DOI,· wants to.retain the current
statut6ry pro~isions, 48 u.s.c. 1422d ~i~ing the
Inspector General broad aucH t ,authority in Guam. To
give another instance, DOI wants to retain
48 .
u.s.c. '1421a or add equivalent language to provide·
that
DOI
retains
general
administrative
responsibility
for.
the
Federal
government's.
rel~tions with Guam.
Part C. . Ratification of the Constitution and Effective Dates .•
Summary of Provision.·
The· Second Task Force Report
considered a proposal which Guam put forward as ··a
substitute f.or section 1204 in the biil' re~J'arding the
pFoCedures to be. _followed in ·Guam for ratifying ·the
Commonwealth legislation (majority vote in a referendum)
and in adopting a constitution.
Status" SuBSTANTIAL AGREEMENT except that the Task Force
would. require Congressional approval of . the Guam
Constitution before·it becomes becomes effective.
Guam Position; Congressional approval of a locally
drafted Guam Constitution is inherently demeaning to
�··-· - - · · · . - · '
-- '··-
!. :. ••
-
....
..,. ..
~·
} ..
·:...__.
the
principles
·of. ·self-government
and
self-·
determination~
Position.
It h~s hi~toriccilly been the
responsibility of the Federal Government to review
and approve ·local constitutions.
Congressional
approval of the Guam Constitution is necessary in
order to insure that the Guam Constitution w_as
sufficiently protective of Federal cohsti tutional
guarantees of U.S. citizens and that the·. Guam
Constitution complied with the requirem~nts of
S~c~ion lOi(b).
· ·
~Federai
'Effective Dates. There is a major DISAGREEMENT between
the CSD and the Task Force about the effective. date of.
most of the Compact legislation. This disagreement is
' - related to · the . issue discussed above · regarding the
continuing status of the Organic Act arid other legislation
applicable to Guam.
· '
Guam .Position. Guam believes that the Commonwealth
legislation . shouid - become effective · with the
approval of i;:.qe Commonwealth in the Guam. referendum
ahd following· a Presidential _ Proclamation.
Federal Position. The Task Force maintains that the
.legislation ca:imot be implemented until Guam has .
shown its capac~ty for -the enhanced status it. seeks
by adopting ·its'coristitution.
As the Secon~ Task
Force
report
states~
"[f]he
absence
of
a
constitution is inconsistent with .• th~ status of
Commonwealth for United States insular areas."
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. email
· 002. email
. DATE
SUBJECTtriTLE
RESTRICTION
bonsia Stron to Carol Rasco, re: insular territories (i page)
4/1411994
PS
Melissa Green to Jake Siewert, re: latest draft of APEC memo (6
pages)
10/30/1998
PS
(o 3;;l J
COLLECTION:
Clinton Presidential Records
Automated Records Management System [Emaill
OPD (fGuam, Political Status, Reforml)
OA/Box Number: 250000
FOLDER TITLE:
[4/14/1994- 3/5/1999]
Whitney Ross
2006-0193-F.
wi-599.
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) ofthe PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or. confidential commerCial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advice between the President ·
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted inv~sion of
· personal privacy [(a)(6) of the PRA]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI
P2
P3
P4
r----"Fm~r.m~n..
c-. Closed in accordance with restrictions contained in donor's dee,__ _ _........~~~;.~:
of gift.
PRM. Personal record misfile defmed in accordance with 44 U.S.C. ·
2201(3).
RR. Document will be reviewed upon request.
�---------------------------~---------
:
'• ...
:'
Page 1 of 6
ARMS Email System
RECORD TYPE: PRESIDENTIAL
(NOTES_MAIL)
CREATOR: Melissa G. Green ( CN=Meliss·a G. Green/OU=OPD/O=EOP · [ OPD
CREATION DATE/TIME:30-0CT-1998 18:46:13.00
StJBJECT:
latest draft of APEC_memo
-TO: Jake Siewert ( CN=Jake Siewert/OU=OPD/O=EOP
@
EOP [ OPD ] )
READ: UNKNOWN
TEXT:
-------~-~----------~- Forwarded by,Melissa G. Green/OPD/EOP on 10/30/98
06:46 PM ---------------------------
Jake Siewert
10/30/98 01:16:25 PM
·Record
Record Type:_
To:
Jonathan A. Kaplan/OPD/EOP, Melissa G. Green/OPD/EOP
cc:
Subject:
latest draft of APEC memo
ACTION
MEMORANDUM FOR THE PRESIDENT
FROM:
SAMUEL BERGER
GENE SPERLING
STEPHANIE STREET
SUBJECT:
Communications Plan for Your Trip to APEC, Japan and Korea
Purpose
That you approve the main messages and key events for your trip to Asia in
November.
Background
As yo'u travel to Asia"for the APEC Summit and official visits to Japan.and
Korea, the international economic crisis remains front, back and center in
the minds of the media and the concerns of the American public. This trip
is an opportunity to show you continuing to galvanize the international
response to the crisis in the region where it has hit hardest·, following
up on the initiatives you launched at the Council on Foreign Relations and
the IMF/World Bank annual meeting.
Thus, at APEC, we can spotlight your efforts to forge consensus on the
practical steps countries should take to-overcome the financial cr1s1s:
adopt policies that spur domestic and therefore global growth,_ increase
·openness and transparency, strengthen the social safety net, and help
pursue long term fixes to the international financial system (including
mechanisms to tame the cycles of expansion and contraction that have
shaken the world economy.)
At the same time, by winning agreement on a
$1 ~ 5 trillion sec_toral market opening package, you can show that the
�Page 2 of 6
_ARMS Email System
region remains focused on opening rather than protecting its markets,
which is good news for America and a good omen for the future.
From Malaysia, you can take your meisage of economic reform directly to
the leaders and people of Japan and Korea. You will want t-o encourage the
Japanese to ftJ.lly assume the responsibilities of leadership -- going
further, faster in implementing banking,legislation, accelerating and
increasing fiscal stimuli, pursuing market opening and deregulation.
This
will require finding a delicate balance between two approaches to
motivating the Japanese: exerting pressure (which risks provoking
resentment but which the Japanese admit may be required) .and embracing
Japan (which must be done with a deft touch if it is really going to
promote change.) Japan, belatedly; has taken positive steps, but much more
needs to be _done to breath life into its economy.
In Korea, you can show
empathy for the economic pain its people have suffered and the sacrifices
they have made, while praising the steps they are taking to get back on
track.
In both Japan and Korea, we have designed events that will allow
you to speak around the leaders and directly to the people.
This trip also presents you with an important opportunity to remind the
American people that our own future carmcit be secure if AsiaD, s is in
doubt -- and that we must continue to play a central ro:).e in shaping that
future economically, politically and strategically. When markets tremble
iri Hong Kong or Tokyo, they cause tremors all the way to Wall Street and
to Main Street. Nearly 40,000 Americans still guard the Korean DMZ, the
Cold W~rD,s last militarized fault line.
IndonesiaD,s ongoing political
and economic transition reverberates throughout t.he regipn, promising but
uncertatn.
India and Pak{itanD,s nucle~r t~sts have bucked the.tide of
his-tory and threaten to spark a new arms race. And our relationship with
China, home to almost one quarter of the earthD,s people, will help
determine whether the 21st century is one of peace and prosperity for
America -- or one of conflict and instability.
·
In your public events in Japan and Korea, and through your bilateral
meetings at APEC with the leaders of Thailand and the Philippines, you can
reinforce the message that our relationships with o-ur treaty allies remain
the cornerstone of stability in Asia. This is a useful pushback against
the charge that our Asia policy has become-too China-centric. You also
will have an opportunity in Korea to highlight'the progress of democracy
in Asia,.and to make the point that the best way out of· the economic
crisis is not less freedom but more. At the same time; you will meet in
Malaysia with President Jiang, giving you an opportunity to show progress
on our broad agenda with the Chinese.
III.
Key Events
Saturday, November 14 -Sunday, November 15:
Guam
White House C~mmunications, Political Affairs and Speechwriting will
provide you with a separate memo on your stop in Guam.
Monday, November 16: Kuala Lumpur, Malaysia
u
u
u
u
Message
Pool Spray and Bilateral Meeting with Primakov
Pool Sprayand Bilateral Meeting wfth Jiang
Bilateral Meeting with Chuan
Keynote Address to APEC Business Summit
�. Page 3 of 6
ARMS Email System
You will have a full business day in Malaysia before th~ APEC meetings
begin, giving you an opportunity to meet bilaterally withkey counterparts
and to set the scene for the APEC leaders meeting with an evening speech
.to business leaders.
Pool sprays before your meetings with Foreign
Minister Primakov and President Jiang will show you engaged in advancing
our interests with Russia (economic and political reform) and China·
(non-proliferation; regional security) .• In your speech to business
leaders, you can highlight our twin objectives for the Summit: (i) to
build support for the specific steps you have laid out to restore
confidence, revive stalled economies and repair the international
financial system for the long term; and (ii) tocontinue to make trade
more free and fair by taking down tariffs and barriers throughout the Asia
Pacific region.
This.speech also. will be your best opportu,nity to make clear that your
presence' in Kuala Lumpur is an.endorsement of APEC, not the Mahatir
administration.
Indeed, the media is likely to personify in Mahatir and
former Finance Minister Anwar the choice Asia allegedly faces -- the
choice between turning away from the world economy or toward greater
integration. You can point out that this is a false choice; integration is
neither inherently good nor bad, but it is certainly a fact.
Countries
.that try to turn back will find that the road has disappeared behind
them.
The only path to progres~ is forward, toward more openness and
integration.
Tuesday, November 17: Kuala Lumpur, Malaysia
u
u
u
u
Pool Spray and Bilteral Meetings To Be Determined
Remarks to American Embassy Community
APEC Meetings
.
APEC Dinner
Message
. The APEC meetings offer few opportuni tie·s to put you on camera. · To
counter. this problem, we may move your bilateral meeting with Jiang or
i?rimakov to Tuesday, and/or elevate a pull-aside with President Habibie of
Indonesia ihto a bilat., complete with pool spray. Of course Sandy and
Gene, along with Madeleine, Bob Rubin and others will brief .the press on
the sUbs.tance of the 'first day of APEC meetings, and we also can consider
opening your embassy remarks to the press should events warrant.
I
Wednesday, November 18:
u
u
u
Kuala Lumpur, Malaysia
Leaders Retreat at Cyberview Lodge
Reading of Declaration
Depart for Japan
Message
Because the Leaders Retreat is closed to the press and President Mahatir
is the sole speaker at the closing press conference, Sandy and Gene,
together with. Madeleine, Bob and others will brief the press on the Summit
results.
Again, if events warrant, we can put you on camera.on short
notice, prior to our departure for Japan.
Thursday, November 19:
u
Tokyo, Japan
Roundtable wi.th Japanese Business Leaders
�~age
ARMS Email System
.u
u
u
u
Televised Town Hall Meeting
· Call.. on Emperor
. Pool Spray and Bilat
with PM Obuchi
Official Dinner
Message
·oneof your key objectives in Japan will-be to bring your message of
economic·reform directly to the Japanese people-- going above, below and
around the sclerotic bureaucracy. · Your roundtable with Japanese business
leaders and especially a televised town hall meeting offer you the
opportunity to do just that.
The Town Hall would show you interacting
directly with a broad cross section of young Japanese leaders, speaking
easily and openly to any subject (in sharp contrast to-Japanese political
leaders.) In your opening remarks,· and in response to questions, you can
make clear and compelling the steps we believe Japan must take to help
lead Asia out of economic stagnation. But you will want to do so in a
positive, affirming, forward looking way-- appealing to JapanD,s ability
andresponsibility to lead-- without hectoring, lecturing or heavy-handed
.criticism. At the same time, this forum and your pool spray with'Obuchi
will allow you to emphasize the centrality we attach to our relationship
with Japan, which will help assuage feelings of neglect caused by the
success of your trip to China._
:r"riday; November 20 -- Tokyo and Hakone, Japan
u
u
u
Remarks to Embassy Community
Boat ride.and lunch in Hakone with Obuchi
Science/Environment Event (tbd.)
Message
The Japanese were impressed and pleased that y_ou offered to host Prime
Minister Obuchi in Tarrytown during his trip to New York for the UNGA -seeing in that special setting evidence of the importance ~e attach to
Japan and your interest in building a warm personal,relationship with the
Prime Minister. Now, Obuchi wants to reciprocate by hosting you in Hakone
, a picturesque and very popular vacation spot, with breathtaking views of
Mt. Fuji.
.
Japan is our most important partner in global climate change research and
a strong ally in efforts to protect the global environment. The
:U.S. -Japan Common Agenda.-- now entering its fifth year - -_ provides a
strong framework for cooperative efforts to address a broad range of
global problems~ You and Prime Minister Obuchi will each speak'briefly to
these topics against the striking backdrop of Mount Fuji. Coming one week
after the close of the Buenos Aires conference, yOur re~arks offer an
opportunity to address climate change and the joint efforts of the United
States and Japan to .shape a clean energy future in Asia and around the w
orld.
Saturday, November 21
u
u
u
u
Message
-~
Seoul, Korea
Bilat with President Kim
Joint Press Conference with President Kim
Democracy Event (Tbd.)
Official Dinner
4 of 6
�Page 5 of 6 ·
ARMS Email System
Korea is.on the right path out of-its economic crisis-- but there is
still hard road ahead, some resistance to reform from large conglomerates
and the lingering danger of a crisis in confidence.
In your press
conference statement, you will want to praise President KimO,s strong
leadership and encourage Korea to stay the course by continuing to
stabilize and restructure its financial system, while bringing greater
transparency, market discipline and independent oversight of· an_ti-co
mpetitive practices to its economy.
You also will want to show stron'g
·solidarity with :President Kim on North Koreapolicy -- a clear-eyed mix of
diplomacy ·(the· _Four· Party Peace initiative _and KimO, s sunshine policy),
strategic steps on non-proliferation (the Agreed Framework) , and
deterrence. against-North Korean aggression (defense cooperation).
President Kim stands tall as a symbol of democracy and reconciliation in
Korea and throughout_Asia.
We are developing·a democracy event that you
would co-host, possibly announcing the establishment of a Democracy
Training Institute at a major Ko~ean university, organized with the
assistance of American·NGOs. ·This event would underscore
consistent
theme in your discussions of Asia: that democracy and human rights are not
American rights or developed world rights, but-the birthrights of people .
everywhere, including in Asia. At the same time, it will help you advance
the message that the ·best way out of the present economic crisis is not 1
ess freedom but more.
By and large, democratic countries hit by the
crisis like Korea and Thailand have fared better because the difficuit
solutions proposed by responsible, democraticaily-elected leaders have
more legitimacy with their people. Over the·long term, democracy is vital
to economic growth, because in the 21st century the true wealth of nations
will be based on creativity and the free flow of ideas.·
a
Sunday, November 22 --Seoul and-Military Base tbd.; Korea
u
u
u
u
-~
Attend Church
Remarks to Embassy Community
Remarks to U.S. & Korean Military Personnel
Tour Military Base _tbd.; ·view exercises
Lunch with troops
Message
The nearly 40,000 American troops who guard the DMZ are powerful evidence·.
of our commitment-to the security of South Korea-,- and to the defense of
freedom,-45 years after the Armistice was signed. Your remarks to
American ahd Korean troops serving side-by-side will highlight that
commitment, and spotlight our cooperation. As such, they will send a
clear message-to North Korea that our alliance withthe South is
·_unshakable and our resolve to defend -freedom undiminished.· At the same
time, ·you can underscore our determination to cmaintain a high level of
military readiness, especially among our front line and "first-to-fight"
troops.
We are looking at two different·bases for you to tour: (i)
Osan Air Base,
which includes chemical and biological warfare defense units, a combined
air defense center and tactical fighter squadrons; and (ii) the
Multipurpose Training Range, which would feature live-fire field training
exercises with U.. S. Army troops and their ROK counterparts.
RECOMMENDATION
That you approve the main .messages and key events for your trip to APEC,
Japan and Korea:
�Page 6 of 6
ARMS Email System
Approve - - - - - - - ·
Disapprove ------,-~,-----
·.·
�Withdrawal/Redaction ··sheet
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
~TYPE
001. email
Jeffrey Farrow to Fred Duval, re: Guam Compact Impact (1 page)
1/9/1998
. P5
002. email
Jeffrey Farrow to Fred Duval, re: LauseWGuam FEMA match (1
page)
2/6/1998
P5
003. email
Jeffrey Farrow to Fred Duval, re: Gliam lead (1 page)
417/1998
·p5
004.email
Jeffrey Farrow to Mickey Ibarra, re: Guam Stop Cover Note (1 page)
4/8/1998
P5
005. email·
Jeffrey Farrow to Emory Mayfield; re: Weekly- Guam Bullet (1 page)
4/9/1998
P5
Jeffrey Farrow to Fred Duval, re: G11am Rep (2 pages)
4/28/1998
P5
007. email
Jeffrey Farrow to Fred Duval, re: President on_Guam Stop (1 page)
4/30/1998
P5
008. email
Jeffrey Farrow to Fred Duval, re: Guam (1 page)
5/6/1998
P5
009. email
Jeffrey Farrow to Emory Mayfield [partial] (1 page)
5/12/1998
P6/b(6) .·
010. email
Jeffrey Farrow to ~red Duval, re: Guam Proclamation (1 page)
5/12/1998
P5
011. email
Jeffrey Farrow to Janet Murgli.ia, re: Guam Message (1 page)
6/3/1998
P5
Oi2. email
Jeffrey Farrow to Mickey Ibarra, re: Guam Centennial Video (1 page)
6/16/1998
P5'
· 006. email
&3~'1._·
COLLECTION:
Clinton Presidential Records
Automated Records Management System ['Emaill
WHO ([Farrow: Guaml)
· OA/Box Number: 500000
FOLDER TITLE:
[11/17/1997- 10/28/1998]
Whitney Ross
2006-0193-F
wr622
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 R~lease would disclose trade secr.ets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such adVisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
.· personal privacy [(a)(6) of the PRA].
Freedom of Information Act- [5 U.S. C. 552(b )] ·
b(l) National security Classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(i) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
lmorma ion [(b)(4) of the FOIA]
!vould constitUte a clearly unwarranted invasion of
· ·
e na privacy [(b)(6) of the FOIA]
·
Re
e jvould disclose information compiled for' law enforcement
...__ _ __...o'-l:IU.:.~rD~Io~se.., [(b)(7) of the FOIA.]
C. Closed in accordance with restrictions contained in donor's deed ·
b(S) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8). of the FOIA]
.
b(9) Release would disclose geological or geophysical information
. PRM. Personal record mis:fJ.le defmed in accordance with 44 U.S.C.
2201(3).
concerning wells [(b )(9) of the FOIA]
RR nncnment will be reviewed upon request.
·cQ:H!
�Withdrawal/Redaction Sheet
Clinton Library·
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
013. email
· Jeffrey Farrow to Jennifer Palmieri, te: Guam/State DeptNe:xuS (1
page)
6/17/1998
P5
014. email·
Jeffrey Farrow to Simeona Pa5quil, re: Guam Stop Announcement (1
page)
8/4/1998
P5
015. email
Jeffrey Farrow to Mickey Ibarra, re: Guam (1 page)
8/5/1998
P5
016. email
Jeffrey Farrow to Fred Duval, re: Guam (1 page)
8/19/1998
P5
017. email
Jeffrey Farrow to Fred Duval, re: Guam (1 page)
8/20/1998
P5
(p 3;2,3
COLLECTION:
Clinton Presidential Records
Automated Records Management System·rEmaill
WHO ([Farrow: Guaml)
OA/Box Number: 500000
FOLDER TITLE:
[11/17/1997 -10/28/1998]
Whitney Ross
2006-0193-F
wr622
RES'J)UCTION CODES
--Presidential-Records ·Act - -[44-u,s,G.-2204(a))------------------ _ _ _ Freedom. of Information AcJ.:-.[5 U~S.,_<;:,_S_?]()))]___
.
- -----------
. . .
.
-·--:--~----------------·
Pl National Security Classified Information [(a)(l) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
PtRelating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
. P3 Release would Violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate aFederal statute [(b)(3) of the FOIA]
financial information [(a)(4) ofthe PRA]
b(4} Release would disclose trade secrets or confidential or financial
PS Release would .disclose confidential advice ·between the President r-----.....lilmQnfLI,tm;rma.p"on [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(S) of the PRA] ·
b(6) Release ~ould constitute a clearly nnwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
·con~a privacy [(b)(6) ofthe FOIA] .
personal privacy [(a)(6) of the P:RAJ
.
pe!l_se ivould disclose information compiled for law enforcement
purpose [(b)(7) of the FOIA]
C Closed in accordance with. restrictions contained in donor's deed
,,y, ~-- ould disclose information concerning the regulation of·
financial institution_s [(b)(S) of the FOIA]
of gift.
PRM. Personal record misfile deflned haccordance with 44 U.S.C.
b(9YRelease would disclose_ geological or geophysical information
concerning wells [(b )(9) of the FOIA] .
.
2201(3).
RR. Document will be reviewed upon request
�ARMS Email System ·
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( .CN=Jeffrey L. Farrow/OU"=WHO/O=EOP
WHO ] ).
CREATION DATE/TIME:30-APR-1998 18:15:39.00
,SUBJECT:.
President on Guam Stop
.TO: Fred.DuVal ( CN=Fred DuVal/OU=WHO/O=EOP@ EOP [WHO]
READ: UNKNOWN
TO: Mickey Ibarra
.· READ: UNKNOWN
.-.....:
.. ~
CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
·cc: Emory L: Mayfield ( CN=Emory L. Mayfield/OU=WHO/O=EOP@ EOP [WHO]
· READ: UNKNOWN
)
CC: Suzanne Dale ( CN=Suzanne Dale/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
There was a lot of discussion re a Guam visit in connection with the
President's Congressional Asian-Pacific Caucus meeting.
Before the briefing,·John Podesta reiterated it was·likely on the India
trip because of,China trip time constraints and likely to be announceable
before the China trip/Guam Centennial. That was consistent with my
briefing material, which also suggested pledging a Centennial message if
the President couldn't stop durting the China trip.
During the briefing, the President said if time was a problem re going to
China , he wanted to do it on the way back. ("We won't do most of what
they want, the least we can do is show the flag" etc . ) ·He was emphatic
and we also discussed stopping in Samoa on the New Zealand trip next year
and the difficulty of going to Puerto Rico. John ~nded by saying on the
way back from China or on the India trip and "Jeff's happy." The
President also agreed to doing a written or video mesage.
During the meeting, the President responded to Cong. Underwood by saying
we would do something re, the Centennial. When they got up, he told
Underwood that he hoped to visit during one of the two trips.
Cong. Faleomavaega also suggested a Pacific islands (including foreign
countries) summit, citing work ex-Gov. Waihee was doing at the East-West
Center in Hawaii, a Bush summit, and a 40 vote caucus of Pacific and
Caribbean islands at the UN. The President said it was a good idea.
--- ---
~- --~·
--------- ------------------- ---- ------ - - ·----·---- ·---------------------
---------------.,--·---·-·--:-····-·-------------·--------
__ _______________________
.,;
�ARMS Email Systeni
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR:· Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O.=EOP [ WHO ] )
CREATION DATE/TIME:19-AUG-1998 12:09:19.00
SUBJECT:
Re: Guam
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ]
READ: UNKNOWN
TEXT:.
When its convenient, I think we should go over Guam Commonwealth/Berry. It
shouldn't take long.
_Here are my basic points:
Garamendi negotiated. We took positions on almost all issues and submitted
them to Congress. They are solid and served us will. They should not be
renegotiated.
I have developed positions on the outstanding issues -- taXes and trade
with all agencies concerned. They need to be communicated to Guam and then
to·congress.
We need a point person to: communicate on taxes and trade; testify on all
matters; and_work with Congress on
legislating.
This needs to.be approached on an interagency basis. The recommended small
~erritories interagency group would fulfill the need. If it is not
established, an ad hoc group needs to be
.formed.
We probably won't need to do anything public before the election.
(Congress could change this but I don't think it will.)
After the election, we should do what Garamendi ··recommended, I
conceptually supported, and we did not do last Fall in deference to Gov.
Gutierrrez and Cong. Underwood: offer Guam its range of options. (We will
not be able to satisfy Guam on the Commonwealth Bill. Guam has already
called a vote next May on ail options objectionably limiting the franchise
to individuals of Chamorro descent and the UN Decolonization Committee ·
supports a vote. Some of what Guam wants could be gotten ~der free
association. I think the vote would be for the Commonwealth we'd support
instead of free association but the distinction needs to be clear before
Guam would
.settle.)
··· --~-· We- have- to·- keep- the- stop---in mind ... -- -- ... . . ... ---·· ---· _---------------·-··-·------- ---------···-- -----····· ····-·- ----~·--·-·····
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
FOIA 2006-0193-F - Guam
Identifier
An unambiguous reference to the resource within a given context
2006-0193-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 5
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/47eefa3982d89473ffff00cde46f6b98.pdf
968595139d981cbeabafcead21e0df51
PDF Text
Text
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001a. memo
001b. memo
DATE
SUBJECTffiTLE
re: Appointment of a Special Representative for purposes of political
status consultations with Guam (Annotations) (1 page)
To President Clinton from Secretary of the Interior. Subject:
. Appointment of a Special Representative for purposes of political
status consultations with Guam (2 pages)
RESTRICTION
03/16/19,93
P5
03/15/1993
P5
001c. briefmg
paper
re: Guam Commonwealth bill and Special Representative (4 pages)
03/15/1993
P5.
001 d. resume
DOB (Partial) (1 page)
03/15/1993
P6/b(6)
002a: memo
To President Clinton from Secretary of the Interior. Subject:
Appointment of a Special Representative for purposes of political
status consultations with Guam (2 pages)
0311511993 .
P5
002b. briefmg
paper
re: Guam Commonwealth bill and Special Representative (4 pages)
03/15/1993
P5
002c. resume
DOB (Partial) (1 page)
03/15/1993
P6/b(6)
03/15/1993
P5
003a. memo
To President Clinton from Secretary of the Interior. Subject:
Appointment of a Special Representative for purposes of political
. status consultations with Guam (2 pages)
003b. briefmg
paper
re: Guam Commonwealth bill and Special Representative (4 pages)
03/15/1993
P5
003c. resume
DOB (Partial) (1 page)
03/15/1993
.I
P6/b(6)
COLLECTION:
Clinton Presidential Records
WHORM Subject File-General
FGOOl-02
OA/B6x Number: 21801
FOLDER TITLE:
007422SS
CLINTON LIBRARY PHOTOCOPY
Jamie Metrailer
2006-0193- F
"m89
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose.trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�....~·.··.'1•·•
Dooumlnt No~
oo1 422ss
gU'/-~..Z.,
WHITE HOUSE STAFFING MEMORANDUM
DATE:
AcnONICONCURRENCEfC6MMEHT DUE BY: _ _ _ _ __
3/16/93
APPOIHTMBRT OP A SPECIAL REPRESENTATIVE FOR PURPOSES OF'POLITICAL
SU~EC~ __s_T_A_TU_s c_o_NS_ULTA_T_I_O_Ns w_IT_B G_oAM
__
__
__ __ _____________~____________
Aen ON
AenON FYI
FYI
VICE PRESIDENT
0
0
PASTER.
0
~
McLARTY
0
0
RASCO
0
0
GEARAN
0
0
RUBIN
0
0
PANETTA
c
0
SEGAL
0
0
EMANUEL
0
0
STEPHANOPOULOS
0
0
GIBBONS
0
0
VARNEY
0
,0
HALE
0
0
WATKINS
D
0
HERMAN
0
~
WILUAMS
0
0
0
0
0
0
LAKE
X'
~I
CC'~
LINDSEY
MONTOYA
0
0
0
0
NUSSBAUM
0
0
0
0
REMARKS:
RESPONSE:
CLINTON LIBRARY PHOTOCOPY
JOHN D. PODESTA
Aallmnt to the PrNident
end St8ff secretary
Ext.2702
'·
',
·u
.
.
�Withdrawal/Redaction Sheet
-I
Clinton Library
DOCUMENT NO.
AND TYPE
001. note
DATE
SUBJECT/TITLE
n.d.
re: Draft of message (1 page)
;-RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
WHORM SubjeCt File--General·
ME002
ONBox Number: 17774
FOLDER TITLE:
121167
CLINTON LIBRARY PHOTOCOPY
Jamie Metrailer
2006-0193-F
"m566
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose ·confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(bXl) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
· b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA) ·
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal. record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�CORRESPONDENCE SENT TO:
united states Naval Ship Repair Facility
cjo Captain E. ·c. Bermudes, USN .
PSC 455
.
Box 191
FPO, AP
96540 --!1.\.00.
CLINTON LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet·
Clinton Library
DOCUMENT NO .
. ANDTYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. memo
To The Special Representative for Guam Commonwealth from Teresa
Roseborough. Subject: Mutual Consent Provisions in The Guam
Commonwealth Legislation. (12 pages)
07/28/1994
P5
002. report
Draft Guam Commonwealth Bill. Comments on Selected. (7 pages)
10/1997
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
:r;>awn Chirwa
ONBox Number: CF 1674
FOLDER TITLE:
Puerto Rico/Guam Bills: Puerto Rico and Guam Bills [2]
Van Zbinden
2006-0 193.-F
vz1176
Presidential Record~ Act- [44 U.S.C. 2204(a)]
RESTRICTION (:ODES
PI
P2
P3
P4
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRAJ.
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed·
of gift.
. PRM. Personal record misfi.le defined in accordance with 44 ...,.,•. ....,_.._
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
· im agency [(b)(2) ofthe FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or- confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b )(8) of the FOIA]
Dl~ltllllllilfiiiliSia._w,ouJj,<!,Isc.Jose geological or geophysical information
[(b)(9) of the FOIA]
�Ol/30/9i
15:50
OLC
"B"202 514. 0563
[4J 002
L
.:"1.
Oeparrmenr •)f
Ju~tice
Oftice of U£Jl Counsc:l
-------------------·
-----~----------------------------~------~---
July 28. ! 994
\IE..\JO~'ffiC\1
TIIE SPECLU
FOR
REPRESE..~TATIVE
FOR Gt:A1"\1 COMMOI''WEAL TH
From: Teresa Wynn
Roseborough~
Deputy Assisr.anr Aaomey General
Re:
Murual Consem Provisions in
The Guam Commonwealth Legislation
'
.
The Guam CommonV.:·ealrh Bill. H.R. 1521, lOJd Cong_. 1st Sess. (1993) contains
rwo sections requiring the mutual consent of the Government of the United Stares and rhe
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
on!~ with m·urual consent of the rwo govenunents. Section 202 provides that no Federal
lav.;s. rules, and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Represe'nratives of
Guam insist that these rwo sections are crucial for the auronomy and economy of Gu.am. The
fanner views of this Office on the validity or efficacy of murual consent req_uirements .
included in legislation governing the relationship between the federal government and nonsrare
~ areas under the sovereigncy of rhe United States that are not Stares, 1 have
areas.
CLINTON LIBRARY PHOTOCOPY
' Tcrritori~ that have developed from tbe suge of a classical territory to that of a Commonw~t:h with a
constirucioo of their own adoption and an elective governor. resent being called Territories a.nd claim rhac that
legal term and its implications are nor applicable to them. We therefore sh.ail refer to all Territories and
Commonwealths as non-state areas under the sovereignty -of the Uruted. States or briefly as non-sr.ate areas.
�01/30/97
15:50
OLC
'B'202 514 0563
CLINTON LIBRARY PHOTOCOPY
:1l'f rc:~n _.·rH~c::nL · ',\·_, chcrer.orc h.J.\c ..::..trefull~ r-:cumin~d this issue Uur ..:1:'111..!~~~\,n :,
chdl r.he"i~ .:IJu~cs Gisc serious constitutiL'nJ.l issue-s .1nd J.re legally unenr"orcc:abk.-'
. In \~11r 'icw. ir is imporranr -chat the tcx.t of .rhe Guam Commonu:ealth ,.-\.ct not cre:1rc
dlu5ur;.' cxpecrarions that might ro mislead the clccwrare of Guam about thl!"
._·~..)nscqucnces uf rhc legislation_ We must therefore oppose the inclusion in the
C1JI11!l11)nu.cJith Act 1Jf any provisions. such as mutual consent clauses. that are !egallv
uncnforccabk. unless their unenforce.a.biliry (or precatory narure) is clearly st.ated 1n the
documc=m itself.
.m\
L
The Power of Congress to Govern the Non-State
Areas under the Sovereignry of the United States
is Plenary within Constirurional Limitations
AJ! terrircry' under the sovereigmy of rhe United States falls into t~;o groups: rhe
Stares and the areas that are not Sra.tes_ The larrer. whether c~ed rerritories. possessions, or
commonwealths. are governed by and under the authority of Congress. As m those a.rea.s.
Congress ~xercises the combined pbwers of the federal and of a stare government. These
basic considerations were set out in the leading case of National Bank; v. C.Qunty of Yankton,
!01 U.S. 129. 132-33 (1880). There the Court held:
~ To our lcnowledge the first consideration of the validity of murua..l conseot clauses occurr-ed in 1959 i.n
-~on.nccr1oo W1tb
proposals to amend the ?uerto Rico Federal Re!atioruJ Acr. At rhat time the Depa.rtmeor rook
rbc position rbar rb.c answer ro rhis question \lias doubtful but that ruch clause:s should oot be opposed on the
~round rhat thi!y go beyond the c:onstirutiooal power of Congress. l.n 1963 the Department of Justice opined that
;uch :laus<=s U~cre legally t:ffective because Coogre3s could cre.au: vestod rights in the surus of a territory that
:ould not be revoked uc.il.ateni..lly. The Department adhen:d to this position in 1973 in conoo:tioc with then
p~nding Micronesi~s stacu.s negotilltiotl8 i.o a roemonndurn approved by tbeo Assistant Attorney General
Rdwquist. On the basis of this advice. a murual consent clause was iruerted in Section lOS of the Covenant
.,. i th the \f orthern Mariana Isla.r:id.s. The Department continued to support the validity of rnuru.al consect clatlses
tn .:t.mnectlon •• ith the First 1989 Task: Foree Report oc the Guam Com.moowea.ltb Bill. The Department
revisited tb..is issue in the early 1990's in connection \1/ilh the PI.!Grto Rico Status Referendum Bill in light of
Bo'.veo v ...O..geocjg Opposed to Soc. Sec. Eotrapment, 477 U.S. 41. 55 (1986). and concluded t.hal then: could
not be J.D enforceable v~tod right in a political st&!U!!: beoce th.u mutw.l eoal!Cilt cl.wses were ineffective
because they would not bind a sub5equent Congi""CS5. We took: the same position in the Second Guam Ta3k
Force Report i~sucd during the Jut days of lhe Busb Admi.nistmioa in Janlal)' 1993.
-' \1uru.aJ cooseot cla!J.5eS ~ oat a oovel phenomenon: indo:d they ant.eda!c the Coru~tirution. Scx:tion 14 of
the \fortnu:esi Ordinance contained six "articles of compact. between the original StJUes and the people and
States La the said territory_ and [shall] forever recu.in unalterable. unles3 by common eoMenL • These lliticles
"'~re incorporated either e:c.pn:ssly or by reference into many e.tll"ly territnrial orgAnic acts. Clinton v.
Eog!ebreebt. 80 U.S. (13 WaiL) 434. _442 (1872). The copioti.5 litigation UDder tb~ "WlA.lten.ble articles"
focu$SC~ largely on the question whether tbe territories~ obli~atioos under them were superseded by the
Constitution. or .,.,.ben the territory became a StAte. as the result of the equal footing doctrine_ We have,
however. not found any cases dealing wilb the question ;.,hether the Congress bad the power to modify any duty
· imposed on tbe liuitcd States by those a.t1icles.
2
@OOJ
�Oll30/9i
15:51
fi'202 514 0563
OLC
141004
ll t~ -~;-:Jmly n0u. wo lar~ ro Jouhr rhe pou. c:r or' Congress w gc••. :::m
the: Tcmroncs. Thc:re ha'-c been some: differences of opinion as ro rhc
pan:icular claus~ of rhe Constirution from ~·hic.:h rhe power is deri1ied. bur rhar
it c:xists has al'J.rays been conceded.~
·
All rcrri((Jry ~·irhin the jurisdiction of rhe t!n.ired Srares nor included in
3.ny Scare muse necessarily be governed by or under the authorirv of Con!!ress.
The: T.:rriwries are bur political subdi.,.·isions of the outlying do~inion of-rhe
(;nired Sr:.ares. Their relation ro rhe general government is much the same as
that. which counties bear to the respective SrA.res. and Congress-may legislate
f\1r them as a State does for irs municipal organizations.· The organic law of a
T crrirory takes rhe place of a constirurion as the fundarnent.ll law of the local
go\emmenr. It is obligatory on and binds the territorial authorities: but
Congress is supreme, and for the purposes of this department of irs
governmental authority has all the powers of the people of the United SrAtes,
excepr such as have been expressly or by implication reser,.red in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Ma.BhaJl's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (l Pet.) 511. 542-43. 546 (1828). The Chief Justice
explained:
·In the mean time [i.e. the interval between acquisition and statehood],
Florida cominues to be a territory of the United States; governed by virn1e of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations,. respecririg the territory. or other property belonging ro
rhe United SrAtes. ··
Perhaps rhe power of governing a territory belonging to the United
· States. which has not, by becoming a stare, acquired the means of self-
• Socne derived th&t power from the authority of the Ullited S.:.tc3 to acquire territory. others from the men:
fact of sov~reigncy. ochrn from the Territory Clause of the Constitution of the United S~te.s (Art. IV. Sec. 3.
Cl. 2) pursu.mt to which. Congress h.u "Power to dispose of and rna.ke all needful Rule3 and ,R.egula.tions
respecting lhe T~tory OT othe~ Property belonging to the Uniu:d s~·. S= ~ A/'!:l!;riC&l) iosuno= Co. V.
c~ntcr. ::.6 u.s. (I Pet.) 511, 542 (1828): Monnon Church V, United States, 136 u.s. l. d.2-44 (1890):
Do ....·nes '· Bidwell, 182 U.S. 244, 290 (190l).
At pre~nt. the Territory Cla.Wie of the Coillitirutioo is generally-coc.sidercd to be the 50un:e of the
of Congress to. govern the oon·stJUc areas. H.ooveg & AJli¥'1l Co. v_ Eva.tt, 324 U.S. 652. 673~74
tl945): Examining BOard .... Flore:i de Otero. 426 U.S. 572. 5&6 (1976); .fu.ri:i.2 v. Rosario, 446 U.S. 651
( l980): see also Wabol v. Villllcrusjs. 958 F.2d 1450. !459 (9th Cir. 1992). cett. denied sub _m. Ph.iljppioe
Goods_._l.D.c. v. ~. _ _ U.S._. ll3 S.Ct. 675 (1992). (foolllc;;te supplied.)·.
.
pow~r
-3 -
CLINTON LIBRARY PHOTOCOPY
�01/30/9i
15:51
OLC
"5'202 514 0563
@oo5
~·-"· :::-:lmcnt. :<u~. rc~ulr nc(cssaril~ (rom the r"acrs. rhar it is nl~t
Jurisdi(rion of
m:
panicular
5t.J.t~.
and [s
1.1.
·.1.
1th1n rh~
ilhin lhc: pou:cr and jurisliicrion L1r·
rhe Crured Stares.
·rn lcgi5LHing r0r rhern [rhc::: Territories]. Congress exercises rhe combined
po\l.·crs L11. the general. and of a sr.are government.··
tJ.
c:tr
5.1.2--U. 5-+6.
The power of Congress to govern the non-state areas is plenary Uke every other
legislative po'.:~.:er of Congress but it is nevertheless subject ro the applicable provisions of the
Consrirurion. As Chief Justice Marshall sr.ared. in Gibbons v. O~den, 22 U.S. (9 Wheae) l.
196 ( 1824), wirh respect ro rhe Commerce Power:
This power [the Commerce Power], like all others vested in Congress is
complete in itself. may be ex:ercised to its utmost ex:tent, and acknowled.~es no
limitations. mher rhan are prescribed in the constirution. ,(Emphasis added.)
This limitation on rhe plenary legislative power of Congress is self-evident_ It
necessarily follows from rhe.suprernacy of the Constirution. ~ u .. Hooel v. Vir~
Surface Mi.ni.ng and Reclamation Assoc., 452 U.S. 264, 276 (1981). That rhe power of
Congress under the Territory Clause is subject to constitutional limitations has been
recognized in Coumv of Yankton, 101 U.S. at 133; Downes v. Bidwell. 182 U.S. 244. 29091 (!901): Disiricr of Columbia v. ThomQson Co., 346 U,S. 100, 109 (1953).
"
..
Finally. the power of Congress over the non-sr.ate areas persists "so long as they
remain in a rerrirorial condition.'' Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Cg_, v_ Evan, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establistunent o( the Commonwealth of rhe Philippine
· Islands and the fma1 withdrawal of United States sovereignty from those islands "Congress
ret.:ains plenary power over the territorial govenunent").
The plenary Congressional authority over a noa~srare area chus lasts as long as the
area ret.:ains rh.at starus. It temtinates, when the area loses tha.r srarus either by vinue of its
admission as a State, or by the tennination of the sovereigncy of the United Sr.ates over the
area by rhe grant of independence, or by its surrender to the sovereignty of another country.
-4 -
CLINTON LIBRARY PHOTOCOPY
�01/30/97
15:52
fi'202 514 0563
OLC
141006
rr.
The Revocable ~arure of Congressional Legislation
R~lating to rhe Go,:emmem of ~on·S!:ate .
..Ve.1s
1.\-hilc: Congre~~ has rhe power ro govern the non-sr.are areas ir need not exercise rhar
powa itself. Congress can delegate to the inhabir.ams of non-state areas fuU powers of selfgovcmmem and an autonomy similar ro rr:r of Scares and has done so sine\;! the b~ginning of
rh~ Republic. Such delegation. however. .;ust be "consistent with rhe supremacy and
super.·ision of National authority''. (limon v_ Eng.!.ebrecht. 80 U.S. (13 Wall.) -t.J-1-. ~l
11872): Puerto Rico v. Shell Co., 302 U.S. 253. 260. 261-62 (1937)_ The requiremenr rhar
rhe delegation of governmental authority ro the non-state areas be subject ro federal
supremacy and federal supervision means rhar such delegation is necessarily subjec~ to the
rig_hr of Congress to revise. alter. or revoke the authority granted. District of Columbia v.
Thompson Co .. 346 U.S. I 00. 106. 109 ( 1953). 5 ~ ~. United States v, Sharpnack, 355
U.S. 286. 296 (1958). Harris v. Bareham, 233 F.2d 110. 113 (3rd Cir. 1956), Firemen's
Insunnce Co. v_ Washin~on. 483 F.2d l323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state a..reas thus is contingent on the
retention by Congress of irs pawer to revise. alter. and revoke that legislation. 6 Congress
therefore cannm subject the amendment or repeal of such legislation to the consenr of the
non-state area.
This consideration ~llso disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-sr.are area includes rhe power ro make
a partial disposition of that authority, hence that Congress could give up irs power to amend
or repeal sr.arutes relating to the governance of non-state an:as. But. as shown above. the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area. is an i.ntegral element of the delegation power. Congress therefore has no
~ Thompson de.a.lt wilh lhe District of Columbia's
government which i' provided for by A..r'L I. Sec. 8. CL
areas IL'i to wbom tho Congressio~ power is derived from
the T eni r~r;f Clause. The Coun. bow ever. held that in this an:a the roles relating to tbe Congressional po'*'er
to govern rbe District of Columbia and r.he non-state areas an: ideotica.l. lndeed. the Court. relied on QSeS
dealing u:ittl ooo-:<~~ uea.s. u .. Hombudde v. Toombs. 85 U.S. (18 Wall.) 648. 655 {1874). aDd
Chrisria.o.soo v. K.i.Ag Coun.tX. 239 U.S. 365 ( 1915), when:: it held that Congress can delegate its legisllltive
3.Uthoriry under Art. I. Sec. 8. Cl. 17 of tbe Constitution to the Olstrict. subject to the power of Congress :u .;wy
rime to revi~. alter, or revoke. th.a.r authority_
.
I 7 of the Constirution. rar.her than wilh rbe non-state
6
Congress bu e:.::erc:ised tb..is power with regpect to the District of Columbia. The Act of February 21.
187 l. 16 St.at. -1!9 gave the District of Columbia virtual territorial sbl.tW, with a a governor appoi.ot:a:l. by the
Presidc:nr_ a legislative assembly that included a.n elected house of delegates. and a delegate in Congre5s. The
!871 .'\ct was repealed by the Act of June 20. 1874. 18 Sw. 116. wh.icb abrogated &mong otbe1"5 the provisions
for the legislative assembly and a delegate i.o Congress. and established a government by a Commission
appoi.nred by rbe President.
-
-5CLINTON LIBRARY PHOTOCOPY
�01/30/97
15:52
'a'202 514 0563
OLC
141007
.tuth~_,rit\ l1.' cn..t·~~ :~:;i:iLHiun unJcr the T.::rrirory CIJ.u.~~ rha.r ',l,:ould limn the unt'crr~r;;J
·Jr" irs po·.-.·c:r to 1m~nd or repcJl
:\~rcis.::
The same result tlou:s from rhe •.::onsiderarion rhar all non-stare areas are subjecr ro rhc
Juthoriry of Congress. u.·h.ich. ·as shown above. is pl~nary. This basic rule docs not petmir
rhc creation of non-sr.are areas that are only partially subjecr ro Congressional authoriry. The
plena~· power of Congress OYer a non-srare area persists as long as the area remains in that
(\.)ndirion and rcrminarcs C'nly wh~n .rhe area txcomes a Stare or ceases ro be under Cnired
Srarcs so~·ereignry. There is no inrem1ediary sr.arus as far as the Congressional power is
..:L1nccmed. ·
The rwo mutual consenr clauses coma.ined in the proposed Commonwea..lrh Act
rherefore are subject co Congressional modification and repeal.
m.
The rule that legislation delegating governmental wwers to a non-stare area
must be subiect to amendment and repeal is but a manifestation of rhe ~eneral
rule char one Congress cannot bind a subsequent Conmss, ex:cepr wtLeE it
creates vested rights enforceable under the Due Proce..ss Clause of rhe Fifth
Amendment.
The rule that .Congress cannot surrender irs power to amend or repeal legislation
relating w the government of non-stare areas isbut a specific application of the maxim [hat
one Congress cannot bind a subsequent Congress and the case law developed under ir.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
u.:ould be frozen pennanemly and would acquire vinually constirutiona.l srarus_ Justice.
Brennan expressed this thought in his dissenting opinion in United Stares Trust Co_ v _ New
Jersey, 431 U.S_ 1, 45 (1977), a case involving ~e Impairment of r.he Obligation of
Contracts Clause of the Constirution (An. I, Sec 10, Cl. 1):
·One of the fundamental premises of our popular democracy is that each
generation of repn::sentatives can and will n::main responsive to the needs and·
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will no[ automatically be. bound by the policies and
underukings of earlier days_. __ The Framers fully recognized that nothing
woul<1 so jeopatd.ize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to .. clean out the rascals n than rbe possibiliry rhat
those same rascals might perperuate their policies simply by locking them imo
binding contracts.
-6-
CLINTON LIBRARY PHOTOCOPY
�- - - - - - - - - - c - - - - - - - - - c - - - - - - - - - - - - - -
Ol/30/9i
15:53
'a'202 514 0563
OLC
14!008
\". r.:::h-:1:::~~- ctlc ITI...l.\!rTI thJ[ l_mc C·~·n:;:rcss ...:J.nnor btnJ rururc c._,ner-:ss. lth.: ::::·- :::-.
.
lc:::;::tl rule:. has its limm . .--\s early as l~!U. Chief Justice \farshall explained in fic[-:hc:r \.
P::ck. lt) C.S. !6 CranchJ ~7. 135 l 1·810):
- ·The principle asserted is that one legislarure is comperenr ro repe:al any
acr ·o.~.·hich a former legislarure u.·as comperenr ro pass: and rhat on~ legislarure
·.:annL)t J.bridge the pou.·ers of a succeeding legislarure.
The correctness of this principle. so far as respects general legislation.
(an never be conrrovcned_ But. if an act be done under a law. a succeeding
lcgislarure cannot undo it- Tlie past cannot be recalled by the most absolute
power. Conveyances have been made. those conveyances have vested legal
csrares. and if those estates may be seized by rhe sovereign authority_ still. tha£
[hey originally vesre.d is a fact, and cannot cease to be a fact.
When. then. a law is in its narure a contract, when absolute rights have
v~sted
under that contract. a repeal of the law cannot devest (sic) those rights_
The powers of one legislarure to repeal or amend the acts of the preceding one are
limited in the case of Stares by the Obligation of Contracts Clause (An. I, Sec. 10. Cl. 1) of
the Consrirution and the Due Process Clause of the Fourteenth Amendment. and i.n the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinkine-Fund Cases. 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except' for legitimate governmental purposes. They are nor included
within the constirurional prohibition which prevents States from passing taws
impairing the obligation of contracts. but equally with the States they are
grohibited from deprivine ~rsons or corporations of Qroperty without due
process of law. They cannot legislate back to themselves, ·without making
compensation. the lands they have given this corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation ro discharge its obligations in respect to the subsidy bonds
orherwise than according to the tenns of the contract already made in chat
connection. The United States are as much bound by their comn.crs as are
individuals. (emphasis supplied.)
See
also
Bowea v_
A~ncies
Opposed 10 S.oc. Sec. Enrrapmem, 477 U.S. 41. 54-56 (1986).
CLII~TON LIBRARY PHOTOCOPY
-7-
�01/30/97.
16:00
'6'202 514 0563
OLC
141001
rv.
The Due Process Clause doc;!S not Preclude Congress from
Amending or Repealing rhc t"•:o ~furual Consent Clauses
1l1c qucsrion chc:refore is u:hcther rhe Due Process Clause of the Fifth Amendm~m
precludes a
subsequ~nr
Congress from repealing legislation for [he ·governance of non-state
areas enacted by an earlier Congress under the Terrimry Clause. This question must be
answered in rhe negative.
The Due Process Clause of rhe Fifth Amendment provides:
No person shall ... be deprived of life. liberty. or Qropert,y without due
prol:ess of law. (emphasis supplied..)
This Clause is inapplicable ro the repell or amendment of the two mutual consent
clauses here involved for two reasons. First. a non-state area is not a "person" -w·irhin the
.
meaning of the Fifth A.mendmenr. and. second, such repeal or amendment ..,auld no[ deprive
the non-state area of a property right "'-'ithin the meaning of the Fifth Amendment.
·
A.
A non-stare area is not a person in rhe meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v_ Karzenbach, 383 U.S. 301, 323-24 (1966), the Coull held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See~- Alabama v. ~. 871 F.2d 1548, 1554 (11th Cir.), g:rL. denied, 493 U.S. 991
( 1989) ("The State of Alabama is not included among the entities protected by the due
process clause of r.he ftfth amendment"); and State of Oklahoma v. Federal Ene~y
Regulatory Comm., 494 F.Supp. 636. 661 (W.O. Qkl. 1980), ~. 661 F.2d 832 (lOth Cir.
1981). cert. deni~. sub. nrun.. Thill v. Federal Eoe~y Re~latory Comm., 457 U.S. 1105
(1982).
Similarly it bas been held that creatures or instrumentalities of a Sta~e, such as cities
or water improvement districts, are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. City of Sault Ste .. Marie. Micb.. v. Andrus, 532 F. Supp.
157. 167 (D.D.C. 1980); El Pa.so. County Water Improvement District v. ffiWC/US, 701 F.·
Supp. 121. 123-24 (W.D. Tex. 1988).
The non-state areas, concededly, are not States or instrumentalities of States, and ~·e
have not found any case holding directly that they are not persons within rhe meani.Iig of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
-·
.8-
CLINTON LIBR.~RYPHOTOCOPV
�Ol/30/97
16:00
'B'202 514 0563
OLC
@002
,_.[ s,'LJ\h C.Ht_1lina '· Karz-2nba..:h. 383 c S. l( 31)1. lppcJrS [L_I be ~hlt -u,h
l"'l'Jic:~ Jre OL't prorccrc:d by the Due Pro..:=~s Clause of rhe Fifth .-\mc:ndmcnL ~Ll..JrcO'-cr. :r 1
,
'-'ell ::~rJblished rhar the political subdi\ is ions o( a Stare are nor considered P,ersons prorc\:t~d
J.s J.gainsr rhc: Sr.are by the pro\isiuns of lhc Fourteenth --~..m~ndmem. See. e.g, . .\"c:wark '-.
:\~-ll. Jcr~ev. 262 U.S. 192. l96 (1923): Williams v Mavqr of Baltimore. 289 l".S. J6 . .J.I) ' JL..J.Ji: S,_,urh .\facomb Disposal Aurhority v. To\l;·nshiQ of Washington. 790 F.2d 500. 505.
'it)'"' t6rh Cir IQ~6J .Jnd rhe aurhorirics rhere cited. The fdarionship of rhe non-stare areas ro
rhc Federal Gu\ cmmcnt has tx:.en analogized to chat of a city or county ro a State. As stared.
·~upra. rhe Coun held in National Bank v. Counry of Yankton. 101 U.S. l29. 133 (l880):
,_:ic r:HIL 1 11..lk
The territories are but political subdivisions of the outlying dominion of rhe
llnited Stares. Their relaricm ro rhe general government is much the same as
that which counties bear ro the respective States ...
~fore recently. the Coun: explained that a non-state area is entirely the creation of
Congress and compared the relationship berween the Nation and a non-state area to that
berwee·n a Stare and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). Ir. foUows
rhar. si.nce States are nm persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Foun:eenrh
Amendment. the non-state areas are nor persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating ro the governance of non-stare areas does nor create any ril!hts or
srarus protected by the Due Process Clause a~st ~ or amendment by subsequent
lcgislar!on.
As explained earlier, a subsequenc Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment.
i.e., iJ such arnendmg or repealing legislation w<;mld deprive a person of property wirhout
due process of law. It has been shown in the preceding part of this memorandum, that a
non-sta[e area is nm a person with the meaning of the .Due Process Clause. Here it will be
shown th~n mutual consent provisions in legislation. such as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the !fleaning of that Clause.
Legislation concerning the governance of a non-state area, whether called organic acr.
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amend.i:nent or repeal by subsequent legisLation. A non-state area does not
acquire a vested interest.in a particular stage of self govenunent that subsequent legislation
could not diminish or abrogate. 'While such legislation has not been frequent, ir has occurred
in connection with the District of Columbia. ~ Djstrjq of Columbia v. Thompson Co.,
. J+6 U.S. 100, 104-05 (1953); ~ n:6. Hence, in the absence of a mutual consent clause,
-9-
CLII~TON
LIBRARY PHOTOCOPY
�01/J0/9i
16:01
'6'202 514 0563
i:.:~I,IJ[It':i _,:n~-~:'ltn~ ~he
Q'. ~ubscLiucnr
g1..'\ ~mmcnt l_1 r'
OLC
.1 n('n·~(J(c .1r~J
l4l 003
is .;ubjc-.:t tv .J.mcndrncnr
,1r
:-::pc..:.!
lc'gislarion.
Tnis leads ro the question whether the addition of a mutual consent ..:lause. ~ of a
pn)'-ISion lhat rhe legislation shall nor be moditJcd or repealed without the conscm of the
G~..n emmcm or" rhe United Scates and rtie Government of the non-state area. has the dfecr of
c:re;J.t[ng in rhc non-stare areas a specific status amounting to a property right ·J..·irhin the
meaning of the Due Process Clause. It is our conclusion that this question· musr be ans\l.·ered
in the negative because (l) sovereign governmental powers cannm be comracred a'J.·ay. and
1.: l because a specific political relationship does not constitute "property" within the meaning
or'the Fifth Amendment.
I. As a body politic the Government of the United Stares has the general capacity ro
c:mer tnro contracts. United States v_ Tingey. 30 U.S. (5 Pet.) 115. 128 (1831). This
pou:er. hou.-ever. is generally limited to those t)-peS of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers caru1ot be
concracted a~J.·ay." North American Com!. Co. v. United Stares, 171 U.S. 110. 137 (1898).
More recently the Supreme Court held ln connection with legislation arising under the
Contract Clause (Art. I. Sec. 10. Cl. 1) of the Constitution that "the Contract Clause does
nor require a Stare ro adhere to a contract that surrenders an essential attribute of irs
sovereignty.·· United States Trust Co. v. New Jersey, 431 U.S. L 23 (1977).' In a similar
context Mr. Justice Holmes sr.ated:
One whose rights. such as they are, are subject to state restricrion.
cannot remove them from the power of the Stare by making a contract about
. them. Hudson Water Co. v_ McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts ro the t:ffect that the Congress may not amend l-egislation
relating ro the government of a non-state area. without the consent of the lacrer, or rhar federal
kgi:darion shall not apply to Guam unless consented to by the Goverrunent of Guam would
unquestionably purport ro surrender essential po~ers of the federal goverl1ffi.ent. They are
. Cases arising under the Contract Cia~ balding that a s~ c.a.nnat contract away a sovereign power are
also applicable to the contracts made by the federal govern.meoc because the Contra.ct Clause imposes more
rigorou.s rcstnc:tiall3 on the StJUes than the Fiftb Amendment imposes on the fedenl government. pegsion
Benefit Guarapry Corp. v. R~A- G111.y Co., ~7 U.S. 717. 733 (1984): ~11.tional Railroad Passen~er C.9IJ2. v.
-~-T. & S.f. R .. _470 U.S. 451. 472-73 n.25. (l985). Hence. when StAte legislation does not violate the
Contract Clause. analogous fedef"lll legislatioa is all the more permissible under rbe. Due Pro::.e:ss. Clau..se of the
Fi frh Amendrncar.
·
.
'Cited with approval '*'ith rcspo:t to federal legislation i.n Nonnan v. B. & O.R .. 294 U.S. 240. 308
( 1935).
10-
CLINTON LIBRARY PHOTOCOPY
�Ol/.3019i
16:01
::Jc~.:(,_,r::.· :~~..·(
'Zl'202 514 0563
bl;\dtil£
·'Il
:he:
L'nic~d
OLC
Scare:) Jnd ::1nnL1r -.:lJnr.cr
@004
J.
propcn::
imc:rc:~r pn_·c:.:~'~.'~
··,._
the: F i rlh .--\.mcndm~ni.'
~lore
generally. the ?upremc Coun: held in Bo1l.·cn v. Agencies Opposed m Soc. S.:.::.
Entr:wrnc:m . .J. 77 U.S. J l. 55 (! 986). that che comracruaJ property rights protected by rhc
Due Procco;s Clause of the Fifth Amendment are the nadirionaJ privare comracnial rights.
~u(h as rhl)5c Jrismg from bonds or tnsurance contracts. but not arrangements thar are part vr"
a rc.!!ulacory program such as a Sc.ate·s priv[lege m v.:irhdraw its participation in the Social
Security sysrem wich resp~ct ro its ~mployees. Specifically. the Court stared:
But the "contracrual right" at issue in this case bears lirtle. if any.
resemblance co rights held ro constirure "property" wirhi.n the meaning of the
Fifl:h ,-\mendmenc. The rennination provision in the Agreement exactly
cracked rhe language of the sr.arure. conferring no right on the State beyond
rhat contained in § 418 irself_ The provision constituted neither a debt of the
United States. ~ ~ v. United Stares, suQra, nor an obligation of the
United States to provide bendirs under a conrract for which the obLigee paid a
monetary premium. see Lynch v. United Stares. supra. The termination clause
was nor unique to this Agreement: nor was it a renn over which the St.are had
any bargaining pofJ.o·er or for which the State provided independent
consideration. Ra.rher. the provision simply was. pan of a· regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for-the general welfare.
Agreements that the Guam Commonwealth Act may nor be amended without the consent of
the Goverrunem of Guam, or rhar future federal statutes and regulations shall not apply to
Guam without the consent of the Govenunent of Guam clearly do noc· constitute conventional
private contracts: they are elements of a regulatory system.
In the past the Depanment of Justice at times has concluded that a non-Sta(e area may
ha'-'e a vested interest in a specific sta.rus which ~ould be immune from unilaterial
Congressional amendment or repeaL 10 We cannot continue to adhere to that position in
'Cases such as~ v. Uolrod S~. 29"2 U.S. 57! (1934). arid .&m: v. United Stati:S, 294 U.S. 330
a.re QOC COI:Itnl)' lo th.i:i conclusion. Both CJLSe:!l involved COclznei"Cia.l agreements (1yn,ch: lnsuntJJCi::;
Perrv: Govcf1l!Dall lx>oci!) In~ the Court held that Congress could oot a.mend the contra.ct me~ly to save
ruoa~y ·unless. indeed the action flllls 'W"ithin the federal police police power or some other pan.mount power.:92 L!.S. at 579. fEn: involved bonds issued by the Uc.ited Sta.Ie:'! under the: authority of Aft_ I. Sec. 8. Cl. 2
or rhc: Coastirurioa. to borrow !DOney on the credit oftbe Ucited States. The Court held rh.&.r Cocgress did not
ha\·e the pou:er to destroy the cm:iit of the United Sta.tes or to render ic illwory by unilat.erally abrogating one
of the pivotal terms of the bond3 to save woney. Wb..i.le the Court held that the United State aa.d brokeo the
agreement. it uevenhc:h::ss held that pla.i.atiff could not recover beca~. as the: remit of rt:gularioa.s validly issued
by the l.Jclitoo Sllltes. he bad not suffen:d any moneta.ty ~gd. ·
I
[9])).
:o_
Cf. n.2.
- 11 -
CLII~TON
LIBRARY PHOTOCOPY
�OliJ0/97
16:02
'0'202 514 056J
OLC
141005
. :;;·.\. •.'[ ::~:: :\.Jitn~~ ·:·i· rile Supreme: cL~Uf1 rhar l.:g!slariL~n ~l.)llCcming the g'Y<mJ.n·.:~ ,l[ .J 1,'11·
-r:Hc J.r-:a b ncccssanly subject ro Congressional J.mcndrncm and repeal: r-har go' cmmc:nr.11
b,_,Jics ate: nor persons ~ilhin. rhe m~aning of the Due Proc~ss Clause: rha[ govemmc:::nr.al
pew. ~rs -:ann or be o::omracred au.·ay. and especially rhe c.\posirion in the rec::nt Bou.·en -::ase.
rhJ.r tht: property rights protected by rhe Due Process Clause are (hose arising .from pnvare
1:..! v.. ur (L)mmacia1 comracrs and nor those 1rising from guvc:mmt':mal relations.''
Seer ions l UJ .1nd :02 therefore do not create vested propeny righrs protected by rhe
Due Process Clause of the Fifth ."ill1endment. 1: Congress rhus retains the power ro amend
the Guam Commonwealth Act unilaterally or ro provide that irs legislation sh_aU apply to
·Guam without the consent of the government of the Commonwealth. The inclusion o.i such
pro\. isions. therefore. in the Commonwealth Act would be misleading. Honesty and fair·
dealing fornid the inclusion of such illusory and deceptive provisions in the Guam
Commonu.ealth Acr. tJ
Finally. the Department of Justice has indicated that it would honor past commitmenrs
with respect to the murual consent issue, such as Section l 05 of the Covenam with the
~o11hern
Mariana Islands. in spite of its reevaluation of this problem_ The question whether·
lhc 1989 Tas-k force propOsal to amend Section l OJ of the Guam Commonwealth Act so as to
limit the murual consent requirement to Sections lOI. 103. 201, and 301 cons:c.irures such
prior commitment appears to have been renderro moot by the rejection of rhat proposal by
rhe Guam Commission_
It is significanr rhar rbe cirt:UIJ15tanccs in wbicb Congress CJIJl effectively agree not to repeal or amend
discussed l.n rhc ;::ontext of commcrci.al caotrac.tS. ~. 477 U.S, ar 52.
l~gislarion u.·~re
: Bo~co. it is rrue. dealt witb legisl.a.rion r.b.a.r expressly reserved the right of Congy=s to amend. while the
proposed Guam Cornmoawealtb Act would e,t;.pres.sly pr=lude tbe righr of Con~ to amend without the
~on scot of che Goveru.menc of GLalll. The underlying agreement:J. however. are aot of a priva.re coccnu:rua!
narure. ;md. hence. are aot property withiJ:I the ~g of the Due Process Cla.we. We cannot perceive bow
th~y can be ~onvened i.nta ·property· by the addition of a provisiaa t.h.at Congress fon:goc:s the right of
:irrlcadrncor.
~ The conclll3ion that S<:ction 202 of the Guam Commonwealth Act (inapplicabilicy of future federal
lcgisla.rioo ro GUIJD without the consent of Gwun) would nor bind a future Cocgre:s.s obviates the need t.o
~.ulili.nc tbe :otutinuioo&licyof Section 202. (n Currin v. Wall~. 306 U.S. i. 15-!6 (!939), and Un.iti:IC!
Smes v. Rode Roy!.l, Co-9"- 307 U.S. 533. 577-78 (1939). the Court upheld legislation th.ar ma.de t.be
cr"fcctivco.:ss of regulariom dependent on the approval of toba.cco fa.rmer-~ or mille prodtJCcr9 affo:::ced by r.hem ..
The Court held that this a.pprova..l was a legitimate condition for lJl.!lk.i.!lg the legislation applicable. Simila.rly. it
~ould be argued that the approval of federal legislation by the Government of Guam i' & legiti.ma!e condition for
rn.:ik.i.ng that lcgislarioo applicable to GLI.IWl. Since. a.s stated above. a future Congress -..ould not be bOund by
Se;::cion 202. we need aoc decide the: question wbelber the l"eCjUirement of appro.va! by tbe Government of Guam
for ~ furure federal statute and n:gulation is excessive !llld i.ocon:listeo.C wich the fedef31 .soven:igo.cy over
Guam.
- 12 -
CLINTON LIBRARY PHOTOCOPY -
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
To President Clinton through Marcia Hale from John Garamendi.
Subject: Guam Commonwealth (4 pages)
12/30/1996
P5
002. briefmg paper
re: Governor Gutierrez of Guam (3 pages)
n.d.
P5
003a. note
re: Comments on Guam's proposed Commonwealth negotiations
directive (1 page)
n.d.
P5
003b. draft
To All Departments and agencies from President Clinton. Subject:
Negotiations between the USG and the government of Guam (Typed
comments) ( 1 page)
n.d.
P5
004. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/28/1994
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Michael Imbroscio
OA/Box Number:
CLII~TON
LIBRARY PHOTOCOPY
12734
FOLDER TITLE:
Farrow [I]
Jamie Metrailer
2006-0193-F
'm574
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a)]
Freedom oflnformation Actc [5 U.S.C. 552(b)]
Pl
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA]
b(3) Release would violate a Federal statute [(b)(3) of the FOlA]
b(4) Release would disclose trade secrets or confidential or financial
·
information [(b)(4) of the FOlA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA]
b(7) Rdease would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOlA]
b(9} Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOlA)
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA) ·
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
·
C. Closed in accordance with restrictions contained in donor's ·deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�c
C. S. Department of Justice
.··,.··
..
Office of Legal Counsel
c)mutconst. oon
Offi.:e oi the
Washing Ion, D. C. 20510
Deputy Assis<ant Anomey General
July 28, 1994
MEMORANDUM FOR
THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALm
~
From: Teresa Wynn Roseborough
Deputy Assistant Attorney General
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, l03d Cong., 1st Sess. (1993) contains
two sections requiring the mutual consent of the Government of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
on1y with mutual consent of the two governments. Section 202 provides that no Federal
laws, rules, an<:i regulations passed after the enactment of the Commonwealth Act would
apply to G!.~am without the mutual consent of the two governments. The Representatives of
Guam insist that these two sectioQs are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in. legisJation governiDg the relationship between· the federal goveinment and nonunder the sovereignty of the United States that are nor States, I have
state areas, Le.
areas
I Territories tin.~ fu&ve developed from the' stage of a classical territory to that of a Coinmonwealth with a
constitution of their own adoptioti and an elective governor, resent being Called TerritOries and claim· that that
legal term and itS im.Plications are not applicable to them. We therefore shall refer tQ all Territories and
Commonwealths as non-state areas under the sovereignty of the United State3 or briefly a~f nan-state axeas.
CLII~TON
LIBRARY PHOTOCOPY
�"C.:J v ' '
not been consistent.~ \Ve therefore have carefully ree~amined this issue. Our conclusion is
that tht.:sc clauses raise .serious constitutional is.sues and are legally unenforceabl~. J ·.
In our view, it is important that the text of the Guam Commonwealth Act not create
any illusory expect<ltions that might to mislead the electorate of Guam about the
consequences of the legislation. We must therefore oppose the inclusion in the
Commonweal£h Act of any provisions, such as mutual consent clauses, that- are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
·
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations
All tenitory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas
.
'
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129, 132-33 (1880). There the Court held:
" To our knowledge the first consideration of the validity of mutual con.seat clauses occurred in 1959 in ·
CO!lllediou with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that tqey go beyond the constitutional power of Congress. In 1963 the Department of Justice opined that
such clauses were legally effective because. COngress could create v~ted rights m the status of a territory that
could not be revoked unilaterally. The Department adhered to this position in 1973 connection with then
pending Micronesians status cegotiatioos in a memomldum approved by then Assistant Attorney General
Rehnquist. On the basis of this advice, a mutual consent clause was inserted in Section lOS of the Covenant
with tbe Northern Mariana Islands .. The Departm~t continued to support the validity of mutual colisent clauses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in COIUlectioo with the Puerto Rico Status Re{erendum Bill in light of
Bowen v. Ageocies Opposed to Soc. Sec· Eotravqlcnt. 477 U.S. 41, S5 (1986), and concluded~ there caul~
. not be an enforceable vested right in a palitical status; bence that mutual consent clauses we"' ineffecti:ve
because they would QOt biild a ~uent Corigress. We too~ the same position in the Second Guam Task
Force Report issued duriug the last dAys of tqe Bush Administration in Janwuy 1993.
m
3
Mutual consent clauses~ not a novel pbcmomeoon; iDdeed they antedate the Constitution. Section 14 of
tbe Northwest Ord~cc COfttained six •articles of compact, between the original States and tlie people and
. States in the said temtory, and [sball] forever remain tinalterable, unless by common w~t· 1'bese i,rticles
were incorporated either expressly or by reference into many earlY territorial organic aets. ~ v.
Englebrecht, 80 U.S. (13 Wall.) 434, 442 (1872). The copious litigation under theSe "unalterable articles"
focussed largely on the question'whetber the territories' obligations under them were superseded by the
Constitution, or when the territory became a State, as the result of the equal footing doctrine. We ~\ave,
however, not found any cases dealing with tbe question whether tbe Congress bad the power to modify any duty
imposed on the Unitod States by those articles.
- 2, -
CLINTON LIBRARY PHOTOCOPY
·J·
�It is certainly now too late to doubt the power of Congress to govern
the Territories. There have been some differences of opinion as to the
particular clause of the Constitution· from which the power is derived, but that
it exists has always been conceded. 4
*
*"
*
All territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general goverrunent is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Tenitory takes the place of a constitution as the fundamental law of the local
government. It is obligatory on and binds the territorial·authonties; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or'by implication reserved in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self-
4
Some derived that power from the authority of tho United States to acquin: territory, others from the mere
fact of sovereignty, othets from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3,
Cl. 2) pursuant to which Congress bas "Power to dispose of and make all needful Rule"~ and ResuJations
respecting the Territory or other Property belonging to the United Sta.le3". See !W:.:. American Insurance Co. v.
Canter, 26 U.S. (1 Pet.) 511, 542 (1828); Mormon CbutCh v. United State~~, 136 U.S. 1, 42-44 (1890);
Downes v. Bidwe{l, 182 U.S. 244, 290 (1901).
At present, the Territory Clause of the Constitution.is generally-consider-ed to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co, v. Evatt, 324 U.S. 652, 673~74
(1945); Examining Board v. Flo~ de Otero, 426 U.S. 572, 586 (1976); H!!niJ v. Rosario, 446 U.S. 651
(1980); ~also Wabol v. ViUacrusis, 958 F.2d 14.50, 1459 (9th Cir. 1992), cert. ~sub !lQm. Philippine
Goods. Inc. v. Wabol, __ U.S. _ , 113 S.Ct. 675 (1992). (Footnote supplied.)
-3-
CliNTON LIBR~RY PHOTOCOPY
�~
government, may result necessarily from the facts, that it is not within the
jurisdiction of any particular state, and is within the power and jurisdiction of
the United States. ·
"In legislating for them (the Territories], Congress exercises the combined
powers of the general, and of a state government. "
Id. at 542-43, 546. ·
The power of Congress to govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in_ Gibbons v. Qgillm, 22 U.S. (9 Wheat) l ,
196 (1824), with respect to the Commerce Power:
This power [the Commerce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. See ~-, Hodel v. Virginia
Surface Mining and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under .the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
areas
persists "so long as they
Finally, the power of Congress over the non-state
remain in a territorial condition." Shively v. Bowlby, 152 U.S. l, 48 (1894).· See also,
Hooven & Allison Co. v. ~. 324 U.S. 652, 675 (1945) (recognizing that during the
intennediary period between the establishment o~ the Commonwealth of the Philippine
Islands and the ·final withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
,.
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It terminates when the area loses that status either by virtue of its
admission as a State, or by the tennination of the sovereignty of the· United States over the
area by the ~t of independence, ·or by its surrender to ·the sovereignty of another country.
-4CLINTON LIBRARY PHOTOCOPY
"\1·~
�IT.
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
While Congress has the power to govern the non-stare areas it need not exercise that
power itself. Congress can delegate to the inhabitants ofnon-state areas fuU powers of selfgovernment and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation, however, ;,Just be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441
(l872); Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requiiement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise, alter, or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Sharpnack, 355
U.S. 286, 296 (1958), Harris v. Boreharn, 233 F.2d llO, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). Th~ power of
Congress to delegate governmental powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the con~nt of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
. or repeal statutes relating to the governanCe of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
Thompsog deaJt with the District of Columbia's government which is provided for by Art. I. Sec. 8, Cl.
17 of the Constitution, rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court, however, held that in . this area the rules relating to the CoogressionA.I power
to govern the District of Columbia and the non-state areas are identical. l.ndeed·, the Court relied on cases
dealing with non-state areas, ~-,Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative
authority under Art. I, Sec. 8, a. 17 of the Constitution to the District, subject to the power of Congress at any
time to revise, alter, or revoke that authority.
5
6
has
Congress
exercised this power with respect to the District of Columbia. The Act of February 21,
l87l. 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20, 1874, l8 Stat. 116, which abrogated among others the provisions
for the legislative assembly and a delegate in Congress, and established a government by a Commission
appointed by the President.
-5CLINTON LIBRARY PHOTOCOPY
�~\1\.!(
authority to enact legislation under the Territory Clause that would limit the unfet1cred
exercise of its power to amend or repeal.
The same result flows from the consideration that aU non-state areas are subject to the
authority of Congress, which, as shown above, is plenary. This basic rule does not permit
the creation of non-state areas that are only"partiaUy subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and terminates only when the area becomes a State or ceases to be under United
States sovereignty. There is no intermediary status as far as the Congressional power is
concerned.
The two mutual consent_ clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeaL _
ill.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general
rule that one Congress cannot bind a subsequent Congress. excej>t where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen permanently and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Tiust Co. v. New
~. 431 U.S. l, 45 (1977), a case involving the Irnpainnent of the Obligation of
Contracts Clause of the Constirution (Art. I, Sec-10, CL 1):
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully reco~ that nothing
would so jeopa:rdize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rascals might perpetuate their policies simply by locking them into.
binding contracts.
-
-6CLINTON LIBRARY PHOTOCOPY
�Nonethtkss, the maxim that one Congress cannot bind future Congress. like every
legal rule, has its limits. As early as 1810, Chief Justice MarshaU explained in Fletcher v.
Peck, 10 U.S. (6 Cranch) 87, 135 (1810):
The principle asserted is that one legislature is competent to repeal any
act which a former legislature was competent to pass; and that one legislature
cannot abridge the powers of a succeeding legislature.
·
The correctness of this principle, so far as respects general legislation,
can never be controverted. But, if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most absolute
power. Conveyanc~s have heen made, those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking-Fund Cases, 98 U:S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes.· They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from d<a>riving persons or coworations of property without due
process of law. They cannot legislate back to themselves, without making
compensation, the lands they have given ~ corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the terms of the contract already made in that
connection. The United States are as much bound by their contracts as are
individuals. (emphasis supPlied.) .
See also Bowen v. ,Yencies Quposed to Soc. Sec; Entrapment, 477 U.S. 41, 54-56 (1986).
·- 7-
CLINTON LIBRARY PHOTOCOPY
�IV.
The Due Process Clause does not Preclude Congress from
Amending or Repealing the two Mutual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequenr Congress from repealing legislation for the governance of non-state
areas enacted by an earlier Congress under the Territory Clause. This question must be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall . . . be deprived of life, liberty, or property without due
·
process of law. (emphasis supplied.)
This Clause is inapplicable to the repeal
clauses here involved for two reasons. First, a
meaning of the Fifth Amendment, and, second,
the non-state area of a property right within the
or amendment of the two mutual consent
non-state
is not a "person" within the
such repeal or amendment would not deprive
meaning of the Fifth Amendment.
area
A.
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbacb, 383 U.S. 301, 323-24 (1966), the Court held that a ·
State is. not a person within the meaning of the Due Process Clause of the Fifth Amendment.
~ ~. Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), Btlt_ ~. 493 U.S. 991
(1989) (•The State of Alabama is not included among the entities protected by the due
process clause of the fifth amendment"); and State of Oklahoma v. Federal Enerey
'
Regulatory Comm., 494 F.Supp. 636, 661 (W.D. Old. 1980), ~. 661 F.2d 832 (lOth Cir.
1981), cert. denied, mil.. llQ!IL ~ v. FWeral Energy Regulatozy Comm., 457 U.S. 1105
(1982). .
.
.
Similady it has been beld that creatures or instrumentalities of a State, such as cities
or water improvement districts, are not persons within the meaning of the l)ue Process
Clause ofthe Fifth Amendment. City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Iomrovement District v. mwc/Us, 701 F.
Supp. ·121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are not States.or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
- 8-
CLINTON LIBR.~RY PHOTOCOPY
�"'C::..:.J v
tiJe rationale of South Carolina v. Katzcnbach, 383 U.S. ar 301, appears robe that such
bodies are not protected by the Due Process Clause of the Fifth Amendment. Moreover. 1t 15
well established that the political subdivisions of a State are not considered persons protected
as against rhe State by the provisions of the Fourteenth Amendment. See, ~. Newark v.
New Jersey, 262 U.S. 192, 196 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36, 40
(1933); South Macomb DiSj)Osal Authority v. Township of Washington, 790 F.2d 500, 505,
507 (6th Cir. 1986) and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated,
supra, the Court held in National Bank v. County of Yan.kton, 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States ...
More recently, the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It foUows
that, since States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth' Amendment.
B.
Legislation relating to the governance of non-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment,
i.e., if such amending or repealing legislation W<?tJld deprive a person of property without
due process .of law. It has been shown in the preceding part of this memorandum, that a
.non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
Legislation Concerning the governance of a non-state area, whether called organic act,
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to am.~ent or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it bas occurred
in connection with the District of Columbia. See District of Columbia v. Thompson Co.,
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause,·
-9 -
CLII~TON LIBRl~RY
PHOTOCOPY
l
\1
�~Vl
legislation concerning the government of a non"state area is subject to amendment or repeal
by subsequent legislation.
This leads to the question whether the addition of a mutual consent clause, i.e. of a
provision that the legislation shall not be modified or repealed without the consent of the
Government of the United States and the Government of the non-state area, has the effect of
creating in the. non-state areas a specific status amounting to a property rig~t within the
·
meaning of the Due Process Clause .. It is our conclusion that this question must be answered
in the negative because (I) sovereign governmental powers cannot be contracted away, and
(2) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
l. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however, is generally limited to those types of contracts in which private perSons or
corporations can engage. By contrast (sovereign] "governmental powers cannot be
contracted away," North American Cornl. Co. v. United States, 171 U.S. 110, 137 (1898).
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10, Cl. l) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. I, 23 (1977). 7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are, are subject to state restriction,
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 3
Agreements or compacts to the effect that the Congress rna y ·not amend legislation
relating to the goverrunent of a non-state area without the consent of the latter, or that federal
legislation shall not apply to Guam unless· consented to by the Government of Guam would
unquestionably purport to surrender essential po'?fers of the federal government. They are
Cases arisi.D.g under the Contract Clause hol~i.D.g that a State cannot contract away a iloverei~ power are
also applicable to the cootracts made by the federaJ government because the Contract Clause i..mpose3 more
rigorous restrictions on the States than the Fifth Amendment imposes on tlie federal government. Pension
Benefit Guaranty Corp. v. R.A. Gray Co., 467 U.S. 717, 733 (1984); National Railroad Passenger Cotp. "·
A.T. & S.F. R.,_470 U.S. 451, 472-73 n.25 {1985). Hence, when state legislation does not violate the
Contract Clause, analogous foderal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
7
Cited with approval with respect to federal legislation in Norman v. B. & O.R., 294 U.S. 240, 308
( 1935).
1
- lO CLINTON LIBRARY PHOTOCOPY
J
�~
therefore not binding on the United States and cannot confer a property interest protected by
,
the Fifth Amendment.~
More generally, the Supreme Court held in Boweri v. Agencies Opposed to Soc. Sec.
Entrapment, 477 U.S. 41, 55 (1986), that the contractual property rights protected by the
Due Process Clause of the Fifth Amendment are the traditional private contractual rights,
such as those arising from bonds or insurance contracts, but not arrangements that are part of
a regulatory program such as a State's privilege to withdraw its participation in the Social
Security system with respect to its employees. Speeifically, the Court stated:
·
But the "contractual right" at issue in this case bears little, if any,
resemblance to rights held to constitute "property" within the meaning of the
Fifth Amendment. The termination provision in the Agreement exactly
tracked the language of the statute, conferring no right on the State beyond
that 90ntained in § 418 itself. The provision constituted neither a debt of the
United States, ~ ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a. contract for which the obligee paid· a
monetary premium, see~ v. United States, supra. The termination clause
was not unique to this Agreement; nor was it a teffil over which the State had
any bargaining power or for which the State ·provided indq>endent
consideration. Rather, the provision simply was part of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare. ·
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of G~ clearly do not constitute conventional
private contracts; they are elements of a regulatory system.
In the past the Department of Justice at times bas concluded. that a
non~State
area may .
have a vested interest in a specific status which \\'OUid be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
Cases such as~ v. United States, 291 U.S. 571 (1934), and~ v. United States, 294 U.S. 330
(1935), are not contrarY to this conclusion. 8oth cases irivolvcd commercial agreements~: insurance;
~: GovcllliDGDt boods) In Lynch tbe Court held that COngress oould not amend tbe contract merely to save
.money "unless, indeed the action falls within the federal police police power or some other paramount power.•
i92 U.S. at 579. ~involved bonds issued by tbe United States under the authority of Art. I, Sec. 8, CJ. 2
of the Constitution, to borrow money on ttie credit of tbe UD,itcd_ States. The Court held that Congress did not
have the power to destroy the credit of the United States
to reoci« it illusory by unilaterally abrogating one
of the pivotal terms of the bonds to save money. While the Court held that the United StAtes had brolceo the
agreement, it nevertheless held that plaintiff could not recover becaUse, as the result of regulations validly issued
by the United States, he had aot suffered any monetary damages.
9
or
° Cf.
1
n.2.
~
11 -
CLINTON LIBRARY PHOTOCOPY
VV,J
�view of the rulings of rile Supreme Court that legislation concerning the governance of a nonstate area is necessarily subject to Congressional amendment and repeal; that governmental
bodies are not persons within the meaning of the Due Process Clause; that governmental
powers cannot be contracted away,· and especially the exposition in the recent Bowen case
that the property rights protected by the Due Process Clause are those arising from privat~
law or commercial contracts and not those arising from governmental relations.''
Sections 103 and 202 therefore do not create vested property rights protected by the
Due Process Clause of the Fifth Amendment 12 Congress thus retains the power to amend .
the Guam Commonwealth Act unilaterally or w provide that its legislation shall apply to·
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions, therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act 13
Finally, the Department of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 1989 Task force proposal to amend Section l 03 of the Guam Commonwealth Act so as' to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
-
" It is significant that the circumstances in which Congress can effectively agree not to repeal or amend
legislation were discussed in the context of commercial contracts. ~. 477 U.S. at 52.
11
~. it is true, dealt with legi:ilati~o that expressly reservCd the right of Congress to amend, while the
proposed Guam Commonwealth Act would expressly preclude the right of Coogress to amend without the
consont of the .Government of Guam. The underlying agn)ements, however, are not of i. private contractual
nature, and, hence, are not property within the meaning of the Due Process Clause. We cannot perceive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
,amendment.
u 1lJ.e conClusion that Section 202 of the Guam Commonwealth Act (iriapplicability of future federal
le'gisla~on to Guam WithOut the con.seOt of Guam) would not bind a future Congress obviate$ the aced to
examine the colutitutjooality of Section 202. In Q!.!!Y! v. WallaCe, 306 U.s; 1, 15-16 (1939), and United
Statea
Rock<Rcrr&l Cq-op. 3fJ1
533, 577·18 (1939), the Court upbcid i.c;gislatioD that made the
effcctivC!icss of ri;gU!atiom dependent on the approval of tobacco fanners or Diilk producers affected by them.
The Co.iut held.~ dlis ipptOVal was a legitimate condition for making the Iqi.Slation applicable. Similarly, it
could~ arguOd .that the approval of federal legislation by the Government of GUa.ni is alegitimato condition for
UlakiDg that legislation· applicable to Guam. Since, as stated abov~. a futurO Coogress would not be bound by
Section 202, we iloed not decide the question whether the requirement of approval by the Government of Guam
for E£En::· future federal Statute and regulation is excessive and inconsistent with the federal sovaeignty over
Guam.
v:
u.s:
. 12 -
CLINTON LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
To Special Representiative for Guam Commonwealth from Teresa R,
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/28/1994
P5
002. statement
re: Comments on DOJ memorandum regarding mutual consent
provision in the Guam Commonwealth legislation (53 pages)
08/26/1994
P5
003. letter
To I. Michael Heyman from Walter Dellinger. Subjcet: Proposed
language from Department of Justice on Guam Commonwealth
legislation (4 pages)
06/29/1994
P5
.
'
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bruce Lindsey
OA/Box Number: 19518
CLINTON LIBRARY PHOTOCOPY
FOLDER TITLE:
Guam [2]
Jamie Metrailer
2006-0 193-F.
'm581
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a))
Freedom oflnformation Act- (5 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information ((b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute ((b)(3) of the FOIA)
b( 4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA)
Relating to the appointment to Federal office ((a)(2) of the PRA]
Release would violate a Federal statute ((a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
·of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�.'
{ .
:-..
'
1rt llll' 111
ul .Ill' Ill
t·
'
Office of Lc~al Cuun)~.:l
Off~e·<'
Dcp:.H)
,f lhc
.-\'""'""!
-'li<>rn<".\
Gcner•l
July 28, 1994
ME.\10RA.NDtJM FOR·
TilE SPECIAL REPRESENTATIVE
FOR GliA.;,\1 CO:Ml\10NWEALTH
Roseborough~
From: Teresa Wynn
Deputy Assistant Attorney General ·
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains
two sections requiring the mutual consent of the Government of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws, rules. and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam in~ist that these two· sections are crucial for the autonomy and economy of Guam. Titc
fonner views of this Office on the validity or efficacy of mutual consent requirements
inCluded in legislation governing the relationship between the federal government and· nonstate areas. i.e. areas under the sovereignty of the United States that are not States, 1 have
CLINTON LIBRARY PHOTOCOPY
' Territories that have developed from the stage of a classical territory to lhat of a Commonwealth with a
constitution of their own adoption and an elective governor. resent being called Territories and claim that thar
legal term and its implications are not applicable to them. We therefore shall refer to all Territories and
Commonwealths as non-state areas under the sovereignty of the United States or briefly as non-state areas.
�CLII~TON
LIBRARY PHOTOCOPY
nnt been consistent.= We therefore have carefully reexamined this issue. Our cunl'lus1on·i..,
that these clauses raise serious constitutional issues and are legally unenforceable.-'
In our vieV.. it is important that the text of the Guam Commonwealth Act not create
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation. We must therefore oppose the inclusion in the ·
Commonwealth Act of any provisions. such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations ·
All temtory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129, 132-33 (1880). There the Court held:
: To our knowledge the first consideration of the validity of mutual consent clauses occurred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that they go beyond the constitutional power of Congress. In 1963 the Department of Justice opined that
such clauses were legally effective because Congress could create vested rights in the status of territory that
could not be revoked unilaterally. The Department adhered to this position in 1973 in connection with then
pending Micronesians status negotiations in a memorandum approved by then Assistant Attorney General
Rehnquist. On the basis of this advice, a mutual consent Clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent clauses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Pu-.:rto Rico Status Referendum Bill in light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41. 55 (1986), and concluded that there could
not be an enforceable vested right in a political status: hence that mutual consent clauses were ineffective
because-they would not bind a subsequent Congress. We'took the same position in the Second Guam Task
Force Report issued during the-last days of the Bush Administration in January 1993.
a
3
Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordinance contained six • articles of compact, between· the original States and the people and
States in the said territory. and [shall] forever remain unalterable. unless by common consent. • These articles
wer:e incorporated either expressly or by reference into many early territorial organic acts. Clinton v.
Englebrecht, 80 U.S. (13 Wall.) 434. 442 (1872). The copious litigation under these "unalterable articles"
focussed largely on the question whether the territories' obligations under them were superseded by the
Constitution. or when the territory became a State, as the result of the etiual footing doctrine. We have,
however. not found any cases dealing with the question whether the Congress had the power to modify any duty
imposed on tbe United States tiy those articles ..
- 2 -
�CLINTON LIBRARY PHOTOCOPY
It is cenainly now too late to doubt the power of Congress to .!:!ovem
the Territories. There have been some differences of opinion as to the
panicular clause of the Constitution from which the power is derived. but that
it exists has always been conceded.~
All territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Territory takes the place of a constitution as the fundamental law of the local
government. It is obligatory on and binds the territorial authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the ConstitUtion, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self-
• Some derived that power from the authority of the United States to acquire territory, others from the mere
fact of sovereignty. others from the Territory Clause of the Constitution of the United States (Art. IV. Sec: 3.
Cl. 2) pursuant to which Congress has "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". See~ American Insurance Co. '.
Canter, 26 U.S. (I Pet.) 511. 542 (1828): Monnon Church v. United States, 136 U.S. l, 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244, 290 ( 1901).
At present. the Territory Clause of the Constitution is generally considered to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
( 1945): Examining Board v. Flore!; de Otero, 426 U.S. 572, 586 (1976); Harris v: Rosario, 446 U.S. 651
( 1980); ~also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), cert. denied sub !!QID. Philippine
Goods, Inc. v. Wabol. _ _ U.S._. 113 S.Ct. 675 ( 1991). (Footnote supplied.)
-3-
�CLINTON LIBRARY PHOTOCOPY
~twernment. may result necessarily from the facts. that it is not within tilL'
jurisdiction of any panicular state. and is within the power and jurisdiction of
the United States. ·
* "" *
"In legislating for them [the Territories], Congress exercises the combined
powers of the general, and of a state government."
Id. at
54~-·B.
546.
· The power of Congress to govern th~ non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1.
I 96 (1824), with respect to the Commerce Power:
This power [the Commerce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. See u., Hodel v. Virginia
Surface Mining and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause Is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244. 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-state areas persists "so long as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establishment of the Commonwealth of the Philippine
Islands and the fmal withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It terminates when the area loses that status either by vinue of its
admission as a State, or by the termination of the sovereignty of the United States over the
area by the grant of independence. or by its surrender to the sovereignty of another country.
-4-
�.CLINTON LIBRARY PHOTOCOPY
II.
The Revocable Nature of Congressional Legislation
Relating to the Government of Nori~State Areas
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas full powers of selfgovernment and,an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation. however, must be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434. ~I
(1872); Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requirement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise. alter. or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States~- Shamnack, 355
U.S. 286, 296 (1958), Harris v. Bareham, 233 F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir.l973). The power of
Congress to delegate governmental powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal ·legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
' Thompson dealt with the District of Columbia's government which is provided for by Art. I. Sec. 8. Cl.
17 of the Constitution. rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court. however. held that in this area the rules relating to the Congressional power
to govern the District of Columbia and the non-state areas are identical. Indeed. the Court relied on cases
dealing with non-state areas,~-· Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative
authority under Art. I. Sec. 8. Cl. 17 of the Constitution to the District, subject to the power of Congress at any
time to revise, alter. or revoke that authority. ·
~ Congress has exercised this power with respect to the District of Columbia. The Act of February 21 .
1871. 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The
1871 Act was repealed.by the Act of June 20. 1874, 18 Stat. 116. which abrogated among others the provisions
for the legislative assembly and a delegate in Congress, and established a government by a Commission
appointed by the: President.
-5-
�1-
CLINTON LIBRARY PHOTOCOPY
authniitv to enact k2islation under the Territorv Clause that would limit the: unlettaed
..
....
.
exercise. of its power to amend or repeal.
·
~
The same result. flows from the consideration that all non-state areas are subject to the
authority of Congress. which. as shown above, is plenary. This basic rule does not permit
the creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and tern1inates only when the area becomes a State or ceases to be under Un.ited
States sovereignty. There is no intermediary status as far as the Congressional power is
concerned.
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
m.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general
rule that one Congress cannot bind a· subsequent Congress. exce,pt where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
TI)e rationale underlying that principle is· the considerntion that if one Congress could
prevent the subsequent amendment or repeal -of legislation enacted by it, such legislation
would be frozen permanently and would acquire virtually constitutional status.· Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey, 431 U.S. 1, 45 (1977), a case involving the Impainnent of the Obligation of
Contracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
One of the fundamental premises. of our popular democrncy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rnscals might perpetuate their policies simply by locking them into
binding contracts.
.
-6-
�CLINTON LIBRARY PHOTOCOPY
Nllll~theless.
the maxim that ont.· Clllt~ress cannot bind lutur~ Con~m~ss. lik~.: e'er!
legal mle. has its limits. As early as 1810. Chi~f Justice Marshall explained in Fletcher \.
·Peck. JO U.S. (o.Cranch) R7.135 (lglOl:
The principle asserted is that one legislature is competent to repeal any
act which a fanner legislature was competent to pass: and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness of this principle, so far as respects general legislation.
can never be controverted. But. if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most· absolute
power.· Conveyances have been made. those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from depriving persons or comorations of property without due
process of law. They cannot legislate back to themselves, without making
compensation. the lands they have given this corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The United .States are as much bound by their contracts as are
individuals. (emphasis supplied.)
See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 (1986).
-7-
�CLINTON LIBP-AR\' PHOTOCOPY
IV
The Due Process. Clause does not PreClude Congress from
Amending or Repealing the two Mutual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequent Congress from repealing legislation for the governance of non-state
areas enacted by an earlier Congress under the Territory Clause. This question must be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This .Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive
the non-state area of a property right within the meaning of the Fifth Amendment.
A.
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), cert. denied, 493 U.S. 991
( 1989) ("The State of Alabama is not included among the entities protected by the due
·process clause of the flfth amendment"); and· State of Oklahoma v. Federal Energy
· Regulatory Comm., 494 F.Supp. 636, 661 (W.D. Ok1.1980), afrd, 661 F.2d 832 (10th Cir.
1981), cen. denied, sub. nom. Texas v. Federal Energy Regulatory Comm., 457 U.S. 1105
( 1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts. are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water. Improvement District v. IBWC/US, 701 F.
Supp. 121, 123-24 (W.D. Tex 1988):
The non-state areas, concededly, are not States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
-8-
�CLINTON LIBRARY PHOTOCOPY
till: rationale of Sllll!h Cawlina v. Katzenhacll. J~J L.S. at 301. appears tl' b~ that sucl1
bodies are not protected by th~ Due Process Clause of the Fifth. Amendment. !v1oreover. it 1..,
well established that the political subdivisions of a State are not considered persons protected
as against the State by the provisions of the Founeenth Amendment. Sec:.~. Newark v.
New Jersey. 262 U.S. 192. l9b (1923): Williams v. Mayor of Baltimore. 289 U.S. 36.40
(1933): South· Macomb Disposal Authority v. Township of Washington. 790 F.2d 500.505.
507 (6th Cir. J9g6) and the authorities there cited. The relationship of the: non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated.
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to t~e respective States ...
More recently, the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It foUows
that, since States are not persons within the mearung of the Fifth Amendment and since· the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating to the governance of non-state areas does not create any rights or
·status protected by the Due Process Clause against repeal or amendme'nt by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend .or repeal earli~r legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment.
i.e., if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a
non.,.state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act. would not create property rights within ·the meaning of that Clause.
Legislation concerning the governance of a non-state area, whether called organic act.
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does nor
acquire a vested interest in a particular stage of self governmentthat subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
if) connection with the District of Columbia. See District of Columbia v. Thompson Co.,
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause.
-9-
I
�CLINTON LIBRARY PHOTOCOPY
le!=!islation concerning the ~tl\ emment l'l a rHln-stat~ area i-. subject to ;unendrn~..:nt Pr n.:p~..:al
by subsequen( legislation.
This leads to the question whether the addition of a mutual consent clause. i.e. of a
provision that the legislation shall not he modified or repealed without the consent Of the
Government of the United States and the Government of the non-state area. has the effect of
creating in the non-state areas a specific status amounting to a property right within the
meaning of the Due Process Clause. It is.our conclusion that this.question must be. answered
in the negative because (1) sovereign governmental powers cannot be contracted away. and
(2) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
·
I . As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however, is generally lirriited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898) ..
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10, Cl. 1) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977). 7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are, are subject to state restriction.
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the latter ..or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential powers of the federal government. They are
7
Cases arising under the Contracr Clause holding that a-State cannot contract away a sovereign power are
also applicable to 'the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp. v. R.A. Grav Co .• 467 U.S. 717. 733 (1984); National Railroad Passenger Corp. v.
A.T. & S.F. R .. _470 U.S. 451.472-73 n.25(1985). Hence. when state legislation does not violate the
Contract Clause. analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
• Cited with approval with respecr to federal legislation in Norman v. B. & 0. R .. ::!94 L. S. 240. 308
( JQJ5).
- 10 -
j
�I
CLINTON LIBRI.\RY PHOTOCOPY
tllt:rd(lfL' not hindin~ on !l!t•
llnired
StalL'' and (;t!lfl(lf
l·unfc.:r
a prupc.:n~ inlt:J\~sr
proll'l·tc.:d
~~~
tile Fifth Aml.!ndmenl. ''
~lore generally. the Supreme Coun held in Bowen '. Agencies Opposed to Soc. Sec.
Entrapment. 477 U.S. 41.55 (1986). that the contractual property rights protected by the
Due Proct!ss Clause of the Fifth Amendment are rhe traditional privare contractual rights.
such as those arising from bonds or insurance contracts. but not arrangements that are ran of
a regulatory program such as a State's privilege to withdraw its participation in the Social
Security system with respect to its employees. Specifically. the Court stated:
· But the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "property" within the meaning of the
Fifth Amendment. The tennination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 418 itself. The provision constituted neither a debt of the
United States. see~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see Lynch v. United States, supra. The termination clause
was not unique .to this Agreement; nor was it a term over which the State had
any bargaining power or for which the State provided independent
consideration. Rather, the provision simply was part of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional
private contracts: they are elements of a regulatory system.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
~Cases such as Lvnch v. Lnited States. 292 C.S. 571 (1934). and Perrv v. Vnited States. :294 C.S. 330
( 1935 ). are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance:
Perrv: Government bonds) In 1v.n£h. the Court held that Congress could not amend the contract merely to save
money "unless. indeed the action falls within the federal police police power or some other paramount power."
292 U.S. at 579. Perrv involved bonds issued by the United States under the authority of Art. I. Sec. 8, C'l. 2
of the Constitution. to borrow money on the cr~it of the united States. The Court held that Congress did not
have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating on~
of the pivotal terms of the bonds to save money. While the Court held that the United States had broken the
agreement. it nevertheless held that plaintiff could not recover beCause. as the result of regulations validly issued
by the United States. he had not suffered any monetary damages.
''' Cf. n.:2.
- II -
�CLINTON LIBPJl.RY PHOTOCOPY
'it:w of the nilings of the Supreme Ctlltn that legislat.ton concerning the govemance ot a nonstate area is necessarily suhject to Congresstonal amendment·and repeal: that govemme11tal
bodies are not persons within the meaning of the Due Process Clause: that governmental
powers cannot be contracted away. and especially the exposition in the recent Bowen case.
that the property rights protected by the Due Process Clause are those arising from private
Ia \I.· or commercial contr<icts and not those arising from governmental relations. 1'
Sections l 03 and 202 therefore do not create vested property rights protected by the
Due Process Clause ofthe Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shaU apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions. therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. 13
·
Finally, the Department of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem~ The question whether
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
1
' It ·is significant that the circumstances in which Congress can effectively agree not. to repeal or amend
legislation were discussed in the context of commercial contracts. Bowen, 477 U.S. at 52.
:: Bowen. it is true. dealt with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
consent of the Government of Guam. The underlying agreements, however. are not of a private contractual
nature, and. hence. are not property within the meaning of the Due Process Clause. We cannot per-Ceive how
they can be converted into "property" by the addition of a provision that Congress. foregoes the right of
amendment.
1
~ The conclusion that Section 202 of the Guam Commonwealth Act (inapplicability of future federal
legislation to Guam without the c'onsent of Guam) would not bind a future Congress obviates tbe need to
examine the constitutionality of Section 202. In Currin v. Wallace, 306 U.S. I. 15-16 (1939), and United
States v. Rock Royal Co-op. 307 U.S. 533, 577-78 (1939). the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco farmers or milk producers affected by them.
The Court held that this approval was a legitimate condition for making tbe legislation applicable. Similarly, it
could be argued that the ~pproval of federal legislation by the Government of Guam is a legitimate condition for
making that legislation applicable to Guam. Since, as stated above, a future Congress would not be bound by
Section 202. we need not decide the question whether the requirement of approval by the Government of Guam
for every future federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
- 12 -
�CLINTON LIBRARY PHOTOCOPY
August 26, 1994
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION IN THE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to review the July 28, 19.94
memorandum initialed by Deputy Assistant Attorney General
Roseborough and addressed to the Special Representative for Guam
Conunonweal th · (hereinafter the "Memorandunt") .
That M.emorand urn
purports to reverse a thirty-year Justice Department policy
supportirig the constitutionality and enforceability of mutual
consent clauses in legislation providing fo~ internal selfgovernment in the territories. 1
According to the Memorandum,
mutual consent clauses are unenforceable because (1) rulings.of
·the Supreme Court require that the "governance of a non-state
The Department of Justice expre:~s-ly has approved and
gone on record supporting Congressional·passage of mutual consent
clauses in at least two U.S. statutes implemen~~pg. political
status agreements with one u.s. territory, and the Freely
Associated States, and apparently continues to strpport the
constitutionality and enforceability of these provi~ions.
Memorandum at 12 ·("Finally, the Department has indicated that it
would honor past commitments with respect to the mutual consent
issue"). But an Act of Congress either ii constitutional and
enforceable ~r it is not. . If the Department of Justice means
what it has stated in the Memorandum, this will have_profound
legal and politic~! implications with respect to the itate of law
· . and governmental relations. for- the insular jurisdic)-ions to which
the existing f~deral mutual consent statutes apply,.as well as
one new.insular jurisdiction for which yet another mutual consent
law is to take·~ffect within a matter of weeks.
Appendix A is a
description of the legal and political nature of the .existing
mutual consent precedents and some of the possible effects if the
Department of Justice does not reconsider the views recommended
iri the Memorandum of July 28.
�CLINTON LIBR~R\' PHOTOCOPY
area is necessarily subject to Congressional amendment and
repeal"; (2) "governmental bodies a:re not persons within the
meaning of the Due Process Clause"; and (3) "governmental .powers
cannot be contracted away" relying on the recent decision in
Bowen v. Public Agencies Opposed to Social Sec. 477 U.S. 41
(1986) (popularly referred to as the "POSSE" decision)· supposedly
because the Court held that the only "property rights protected
by the Due Process Clause are those arising from private law or
commercial contracts and not those arising from government
relations".
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guam Commonwealth legislation can be justified
relying on the POSSE decision or any other decision discussed in
the Memorandum. 2
inaccurate.
The Memorandum is misleading and disturbingly
It quotes parts of judicial decisions out of
.context, relies on decisions which have nothing whatsoever to do
with whether Congress has the power to bind itself when entering
into a political status arrangement with a territory,
misstates
holdings in cases cited, mistakes dicta for holdings in others
2
Interestingly while the Memorandum asserts that its
position must change as a~result of POSSE, the next most recen't
decision relied upon is United States Tr~st Co. v. New Jersey,·
431 U.S. 1, decided in 1977. Virtually all of the other key
cases were decided· in the. 19th Century and early 20th Century,
none of which would justify the change. If the POSSE decision
has been wrongly. interpreted in the Memorandum, then no
justification exi~ts for the changed position.
·
-2-
�CLINTON LIBRARY PHOTOCOPY
and relies upon a web of circular reasoning which quite simply
does not justify the Department's changed position.
Perhaps o! most concern is that the Memorandum reaches an
absolute conclusion concerning Congress' authority to enter into
a pinding mutual consent arrangement with a territory, even
though this question has never been put directly before the
Supreme Court or any other court.
This is all the more
disturbing because the only court which has ever even ipproached
the question apparently assumed that Congress could indeed bind
itself, notwithstanding its
Clause.
See,
~'.
plenary power under the Territorial
U.S. Ex Rel. ·Richards v. De. Leon Guerrero, 4
F.3d 749, 754 (9th Cir. 1993).
in the Memorandum. 3
This case is not even mentioned
More importantly, both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Congress can limit the ability of future Congresses to change
. laws which grant vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
POSSE, .477
u.s.
at
52; Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982);
3
Our standards for legal advocacy properly allow
attorneys to present the facts and law in the light most
favorable to the proposition being espoused. Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the arguments put forward
are accurate and fairly reflect existing law, even if asserting a
nonfrivolous proposition that the law should change. In our view
the Memorandum was not prepared in a manner consistent standards
of advocacy required in.~roposing such an important change irl
policy, and it should not have been presented for approval by
departmental management·as an official position without further
deliberatiqn between all concerned agencies and even comment by
the insular areas affected.
--3-
�CLINTON LIBRARY PHOTOCOPY
Transohio Savings Bank v. Director, Office of Thrift Supervision,967 F.2d 598, 621 (D.C. Cir. 1992) ("Transohio").
Incredibly,
.this "unmistakable terms" doctrine (which served as the basis for
the holding in POSSE) is also not addressed.
A section-by-section analysis of the Memorandum is attached
as Appendix-B.
This analysis demonstrates that no certain
precedent exists for the· proposed change in policy.
the contents of this analysis:
To summarize
(1) none of the cases cited for
the proposition that Congress must retain the right to alter,
amend or repeal territorial legislation dealt with the question
placed before the Department by the mutual consent proposal; (2)
the issue of the Commonwealth of Guam not being a person for
purposes of the Due Process Clause is a red herring because the
proposal being discussed by Guam and the Administration
contemplates an agreement between the Congress and the people of
Guam based in part on the Commonwealth Of The Northern Mariana
Islands and Freely Associated States political status precedents;
and (3) the holding in the POSSE decision provides utterly no
support for the proposition set forth in the Memorandum.
Perhaps no part of the Memorandum is as disturbing as is the
analysis of the Supreme Court's decision in POSSE which is put
forward as requiring the Department's change of its thirty-year
position on the constitutionality and enforceability of mutual
consent clauses.
The Memorandum cfaims the ch~nge is required
(
because the Supreme Court held in PbSSE "that the [only]
contractual property rights protected by the Due Process Clause
-4-
�CLINTON LIBR~RY PHOTOCOPY
of the Fifth Amendment are the traditional private contractual
rights, such as those arising from bonds or insurance contracts,
but not arrangements that are part of a regulatory program .... "
Memorandum at 11.
The POSSE decision, however,
did not turn on the subject
matter of the contract in question, and the Court's reference to
the bond and insurance cases had no direct bearing on the Court's
holding.
Those cases were cited in POSSE for the limited
purpose of contrasting contracts where Congress clearly evidenced
its intent to bind itself from the facts in the POSSE case where
"Congress expressly reserved to itself '[t]he right. to alter,
amend, or repeal any provision of' the Act which authorized the·
contracts at issue.
477 U.S. at 42.
The Court relied upon this
contrast because its holding in POSSE was that the Congress could
amend the legislation in question, even if that amendment
interfered with contractual rights,
because it had not
unmistakably indicated its intent to bind itself -- the standard
the Court has established for determining whether Congress has
imposed limits on the exercise of its
The actual holding in POSSE
sover~ign
powers.
--that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio.
The Transohio decision
demonstr~tes
conclusively that
the Memorandum's analysis of t~e .~holding in POSSE is so
fundamentally wrong that one wonders how it could be relied upon
by the nation's Department of Justice to justify a proposed
-5-
�CLINTON LIBHAR\' PHOTOCOPY
reversal in such an important area of Administration policy.
that decisiort, the D.C. Circuit makes clear that "[t)he
In
S~preme
Court reached ·[its] conclusion by analyzing the governing
statute, the Social Security Act" and focused on the fact
critical to its decision-- "[t]he Social Security Act contained
an express reservation of Congress' power·to amend-the law ... ",
967 F.2d at 621, not by establishing the per se "private rights"
test asserted in the Memorandum.
According to the D.C. Circuit
The "principles form[ing) the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unrnistakability doctrine--the doctrine
that "'sovereign power,· even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.
Id. at 622 (emphasis added).
The D.C. Circuit also discussed the history. of the
unrnistakability doctrine.
"The 'unrnistakability' doctrine is a special
rule of contract interpretation that applies
.to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of i t~s sovereign
powers.
Id. at ·618.
Both the POSSE arid Transohio cases dealt with the
-6-
�CLINTON LIBRARY PHOTOCOPY
application of the "unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on "traditional private contractual rights"
which the Memorandum would have us. believe is the ·standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the tontracts in POSSE and
Transohio
by adopting the test advocated .in the Memorandum with
a simple finding that alleged contractual rights associated with
. the regulatory programs at issue in the cases are not tr.aditional
private contractual rights.
Supreme
Cou~t
requires an
They did not, of course, because the
applies the "unmistakable terms" test which
a~alys~s
of
Congress~
proposed in the Memorandum.
intent, n6t the per se standard
See,~,
477 U.S. at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is' the holding -- that Congress
can limit the exercise of its regulatory authority if it makes
clear its intent to do so.
4
Instead of dealing accurately with
4
The import of the POSSE decision has been recognized
even by its critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrender of Sovereignty" analyzed the POSSE decision in
great detail. It concluded that "[t]he P?wer to waive
.
sovefeignty.was recognized" in POSSE. 92· Col. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Court relied entirely on Merrion v;
Jicaril.la Apache Tribe for the proposi tioh that the federal
government can surrender sovereign power. Jicarilla in turn
.relied upon cases involving primarily the taxation powers of
state governments ... Ins.tead of endorsing the rule applying to
-7-
�CLINTO~JLIBRARY PHOTOCOPY
the Court's actual analysis, the Memorandum at page 11
reli~s
upon a quote, claimed to set forth the holding,- which is taken
completely out of context and has nothing whatsoever to do with
the holding.
The quote, taken from 477
u.s.
55, fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
!'
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress having stated in unequivocal terms its
intention to limit the exercise of its regulatory a':lthority, it
explicitly retained it.
477
u.s.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
of its power to provide for the general
welfare. Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
at 55 (emphasis added).
the police powe~s
such powers cannot be surrender~d -- it
adopted the·rule applying to taxation powers-- such·powers can
only be surrendered if done so unmistakably. This move should
not be followed· automatically: . if t~e Court wants to enforce
contracts that surrender the federal government's regulatory
authority, it should do so on the basis of policy arguments, not
on the basis of POSSE." Id. at 460.
-8-
�CLINTON LIBR~RY PHOTOCOPY
Congress Can Utilize Its Plenary Authority to Limit Its Future
Power -~ The Greater Includes the Lesser.
In part, the Memorandum goes astray in its interpretation of
Congress' plenary.authority over the territories.
the Memorandum,
According to
Congress' plenary authority is infinite in time
or at least until one of three things happen: (1) Guam becomes a
State; (2) Guam achieves independence; or (3) the United States
transfers its sovereignty over Guam to another country.
Memorandum at 4.
Thus, the Memorandum seems to suggest that Congress is
estopped from exercising its authority
wi~h
respect to Guam if
that exercise of authority results. in some form of· meaning-ful
consent to the form Qf government under which the Guamanian
people live.
But Congress is not the prisoner of its plenary
authority over the territories -- it is the master.
The fact
that Congress has plenary authority does not mean that Congress
cannot exercise this authority to limit its rights in the future
in the context of a political status change.
Plenary authority
means that Congress can take whatever action it decides is in the
best interest of the
U.S~
and the territories, including a
decision that it can limit its own exercise of future authority,
if its intentions are stated in unmistakable .terms.
To assert
otherwise stands the meaning of plenary on its heaq. - Plenary
means full power.
~
It does not mean full power, except when
~
Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
-9-
�CLINTON UBRI.\RV PHOTOCOPY
regulations.
The broad power of Congress under the territorial
clause is grounded in the need for the federal government to be
able to govern and/or dispose of territory which is not part of a
state.
In this context, it is clear that if Congress has the
power to dispose of a territory in its entirety, it also has the
power to dispose of some of its control by exercising-its power
to make all needful rules and regulations.
It is an elementary
principle of statutory interpretation that the "greater includes
the less".
See, Late Corp. of
the Church of Jesus Christ·of
Later-Day Saints v. Romney, 136
The issue
o~:
u.s.
1, 45 (1889).
Congress being able to restrict its authority
over territory of the United States has been long decided.
at first blush it may seem
co~nter-intuitive,
While
Congressional
authority over the people of the territories and their political
rights emanates from Congress' authority
over Guam as property
brought within Congress' control by the -Territorial Clause.
In
Edward v. Carter, the Court clarified Congress' power under the
property clause, stating:
Thus, it appears that in referring to·
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitted) (emphasis
added) .
. Further definition was provided in U.S. v. Gratiot, 39 U.S.
526 (1840) where the Court considered Congress' power to impact a
lease of federal lands through legislation.
-10-
The Court's approach
�CLINTON LIBRARY PHOTOCOPY
to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie within
territory of the United States are, therefore, its property.
Second, it recites the Territorial Clause and concludes that
the term territory refers is a descriptive word referring to one
kind of property.
Third, the Court concludes that "Congress has the same power
over [the mine) as over any other property belonging to the
United States; and this power is vested in Congress without
limitation; and has been considered the foundation upon which the ·
territorial governments rest". Id. at 537.
Fourth, the Court then references cases involving Congress'
authority over the territories, including Florida, including the
right of Congress "to make all needful rules and regulations
respecting the territory or property of the United States". Id.
at 538.
Finally, the Court concludes "[i]f such are the powers of
Congress over the lands belonging to the United States, the words
'dispose of,' cannot
~eceive
the·construction contended for at
the bar; that they vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's .concept which forms the basis of these opinions
is that the greater in'l:ludes the lesser.
The Court reached its
decision building on Congress' authority over the territories.
If Congress has the power to dispose of territories or to make
-11-
�.
'
CLINTON LIBRARY PHOTOCOPY
all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
The Result of the Department's Opinion is to Leaves the People of
Guam with a Hobson's Choice -- Remain in a Perpetual State of
Colonialism or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policy-implications for United States
security interests in Guam and the Pacific Region, not to mention
the United States' moral leadership on the issue of granting
democracy to non-self-governing people around the world.
The
Memorandum begins by defining Guam as a "non-state area, a catchy
pseudonym for what Guam really is -- a territory, and U.S.
citizen population, which the U.N. officially classifies as not
yet having been decolonized, and which has no realistic prospect
_ of achieving statehood -- the tradi-tional path by which U.S.
territories ceased being colonies and became self-governing in
our constitutional system.
Fortunately, the Territorial Clause gives Congress the
constitutional power to address this problem.
In the Insular
Cases the Supreme Court recognized that Congress must have
)
flexibility to adapt federal law and policy for island
J
territories which remain "unincorporated" for an extended period
of time, and which remain subject·to federal power without being.
integrated into
t~e
system of constitutional federalism --12-
�CUNTO~l
l~aving
the
political
u:s.
righ~s
LIBRil.RY PHOTOCOPY
citizens concerned without equal legal and
when compared to citizens resident in the
states.
The moral imperative of ending Guam's neo-colonial
status is fundamental to the Administration's decision to pursue
a mutual consent provision.
Mutual consent brings to the people
of Guam democracy by giving them a direct role in .their own
internal self-government which would not otherwise be
available. 5
By rejecting absolutely any possibility that the
Supreme Court may uphold a mutual consent clause in a political
status arrangement, the Department of Justice is putting this
Administration in the untenable position of saying to the
u.s.
citizens of Guam that they c·annot have meaningful self-government
within the framework of the
u.s.
Constitution.
We do not think
this is a position which this Admihistrationought to be taking,
especially when the Supreme Court has not spoken directly to the
5
The American-citizen residents of·Guam do not have the
same rights to participate in the representative democracy
enjoyed by the citizens of the several States. Without voting
representation in Congress or a vote in national elections, there
is rio means by which they meaningfully can consent to the laws
and form of government under which they live. This colonial
status was awkward even in its first fifty years, but has become
intolerable since the U.N.·Charter was .adopted and.the era of
decolonization began. Guam is not seeking decolonization outside
the u.s. system, .and it would b~ perverse to suggest·that
decolonization is not availabl~ to U.S. citizens within the U.S.
political -system. Thus, the question facing the Administration
is whether a nation founded on the princl.ple of consent of the
gov~rned can adapt its law and policy to end denial of this basic
right and establish an appropriate alternative means of consent
for loyal citizens in the territories.
-13-
�CLINTON UBHARY PHOTOCOPY
question and the most that can be said about the precedent is
that arguments exist on both sides of the question.
The effect of the Department's changed position is to leave
the people in a perpetual state of colonialism or force them into
independence.
The Clinton Administration has been the first to
state with candor and honesty on the record what all those who
have dealt with Guam have known for years -- Statehood is not an
option for Guam.
It is simply too small and remote.
Similarly,
given Guam's strategic importance to the United States, it is
inconceivable that sovereignty would be voluntarily transferred
to another sovereign power, nor do we believe that the people of
Guam would accept it.
The
clear implication of the Department's
position, therefore, is that the American citizen
residents of
Guam, if they desire to possess a truly democratic government,
'
will have no choice but to seek independence from the United
States.
The notion that independence is the only political status
outcome through which the injustice of Guam's colonial past can
be remedied is not only counter to the robu.st common sense with
which Americans have implemented their Constitution, it is a
dangerous, fatalistic and cold-hearted idea that will have a
chilling effect on _the spirits of the Guamanian people.
L.eaving independence as the only alternative also raises
seriods national security policy questions~
Policy coordinati.on
for Guam Commonwealth negotiations is exercised by the National
Security Council because Guam is an important military and
-14-
�CLINTON LIBRJ:I.R\' PHOTOCOPY
strategic location for the United States.
A decision has been
made by the White House that an agreement should be reached with
the people of Guam which achieves two fundamental goals;
First,
the people of Guam should be permitted to achieve meaningful
internal self-government free from unnecessary interference .
. Second, United States long-term security interests must be
protected.
Offering the people. of Guam the ·opportunity to
achieve meaningful participation in
~
democracy only by forcing
them to seek independence is inconsistent with the second of
these goals.
We do not believe that this Hobson's Choice ought
to be forced upon the United States or people of Guam based on
conclusions of anyone other than the Supreme Court.
This is a policy issue which is best left. to the courts, if
a challenge ever arises.
In this regard, the Department's
concerri that no one should be misled concerning the certain
viability of a mutual consent pr6vision is consistent with our
position.
We have consistently taken the position in the
negotiations that no one can be sure how the issue will be
decided.
The best we can do is to meet the. requirements the
Supreme Court has set out as being necessary for Congress to bind
itself (a statement in "unmistakable terms") and state
forthrightly in the political education process that we cannot be
sure of. the outcome until the Supreme Court has acted. ' It is
wel.i established, however, that when the~ intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
-15-
�CLINTON LIBP..AR\' PHOTOCOPY
837, 842-43 (1984).
It is equally clear that the courts give
great deference to Congress when it is. exercising its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d at 460,
citing Torres v. Puerto Rico, 442 U.S.465, 460-70.
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.
Attachments
-16-
�CLINTON LIBRI.\.RY PHOTOCOPY
APPENDIX A
U.S. Practice With Respect to Mutual Consent Arrangements· for
Insular Areas Not Incorporated into the U.S. Constitutional
Process ·for Democratic Self-Government But In Which the U.S.
Retains and Exercises Sovereignty and/or Significant Powers of
Government:
·
BACKGROUND:
Under a succession of treaties with other nations and
international organizations including the U.N., in this century
the U.S. has acquired and exercised actual sovereignty and/or the
full powers and jurisdiction of government over insular areas
(islands) which have not been incorporated as territories or
states to which the U.S. Constitution applies in full. Thus,
these areas are not fully self-governing and have no power to
give consent to U.S. laws made applicable to them.
·
As each of these territories has moved toward greater selfgovernment the U.S. has agreed to various political, legal and
budgetary measures which accommodate u.s. interests in retaining
certain powers of government, .while at the same time redeeming in
some greater degree the principle that free people must be
enabled to give some.meaningful form of consent to the laws and
form of government under which they live.
In the case of U.S. territories· over which the U.S. exercises
full sovereignty, but which have not been incorporated fully into
the system of federalism, measures aimed at enhanced selfgovernment have attempted to address the fact that the U.S.
citizens concerned do not have voting representation in Congress,
enfranchisement in national elections or general legal or
political equality with their fellow citizens in the states.
For example, in the case of the Commonwealth of the Northern
Mariana Islands (CNMI), as discussed below, the Executive Branch
of the federal government and Congress entered a "Covenant," or
agreement with the people of the territory, under which the U.S.
exercises. sovereignty, but which defines a political relationship
the central elements of which are not subject to modification
without mutual consent of t~e people of the territory and the
federal government.
·
This mutual consent arrangement constitutes a substitute set of
political rights intended. to give the people of the CNMI a
greater measure of democratic self-government by granting them a
political power of consent to federal law not granted to u;s.
citizens in the states, who instead are able to give their
consent to federal law through representation in Congress and
voting in national elections. This type of mutual consent
�CLINTON UBR'l.RY PHOTOCOPY
arrangement has been promulgated by Congress pursuant to the
Territorial.Clause of the Constitution (Article IV, Section 3,
Clause 2), which empowers Congress to provide for areas not yet
fully within t_he constitutional system but subject to U.S.
federal law and sovereign powers.
For insular areas over which the U.S. exercised powers of
government but not sovereignty under agreements with the U.N.,
th.e federal government promulgated mutual consent provisions
through a combined statutory and treaty-making process.
Under
these arrangements the U.S. retains plenary authority over broad
areas of government power in the concerned insular areas, i.e.,
full defense authority, while the separate citizenship,
sovereignty and national independence of those insular.areas have
been recogni'zed. This arrangement is known as "free
association."
The compact agreements establishing the free association
relationships between the u.s. and certain insular areas have
been approved by the U.S. Congress in the form of joint
resolutions. passed by both houses and si~ned by the President.
Like the. CNMI covenant and. the proposed Guam Commonwealth Act,
the U.S. federal statute approving the free association compact
was intended to create a unique and mutually agreed political
status for insular areas not incorporated into the U.S., but with
special close political, legal·and security ties to this nation.
The fact that Guam and the CNMI are unincorporated territories,
while the freely·associated states under the compacts are
sovereign, does not change the legal or constitutional analysis.
These acts of Congress which bind the federal government and
limit the exercise of constitutional powers either are
constitutional and enforceable or they are not.
There is no valid constitutional distinction between the mutual
consent provisions in the free association compact and the CNMI
covenant or proposed Guam Commonwealth Act simply because the
power of Congress which is being limited involves foreign policy
and national defense powers arising from Article I or Article II
of the Constitution, or if the subject matter gives rise to
Article IV territorial powers.
The general concept that Congress can alter, amend or repeal the
laws of purely domestic application has its parallel with respect
to laws and treaties which create obligations between the U.S.
and other.nations.
Spec~fically, an element of sovereignty~
the power to abrogate treaties, and in the U.S. constitutional
system the President and Congress have the power to make trea~ies
and terminate treaties. ·Goldwater v. Carter, 617 F_.2d 697 (D.C.
Cir. 1979).
As disc.ussed below~ in addition to formal
rent1;nciation of a treaty by_the President, Congress can terminate
or prevent performance of treaties requiring appropriations
simply decline to appropriate funding to meet international
obligations.
This has the effect of.superseding the prior act
�of the Congress ratifying the treaty.
Thus, the question before us is whether Congress can limit its
power to amend, alter or repeal a prior act so that commitments
intended to be binding are set aside, and that question is
relevant to any act of Congress which purports to make such
binding commitments, including the statute making the free
association compacts u.s. law.
We believe the test under POSSE for answering that question turns
on whether Congress makes its intent to do so unmistakably clear.
If. the position set fo+th in DOJ Memorandum stands and the
Department of Justice reverses prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisions in the CNMI covenant, the free association compacts
and the proposed Guam Commonwealth Act are unenforceable and
unconstitutional, then the effect of that could reach far beyond
the Guam mutual consent proposal.
For example, the mutual consent provisions relating to the
political and legal relationships created by the free association
compacts are linked to unprecedented multi-year funding
authorizations that bind successive Congresses to enact
appropriate laws providing funding for specified grants to the
governments of the free associated insular areas.
These
provisions are enforceable in the federal courts, and give the
free associated state governments concerned access to domestic
u.s. legal remedies that foreign governments do not nave under
conventional u.s. laws and treaties.
To illustrate the point, as a general rule if Congre~s refuses to
fund U.S. performance of a treaty, it is extremely unlikely that
without an explicit statutory basis for jurisdiction the federal
courts would be inclined to reach beyond the political question
doctrine and interfere in the foreign policy domain of the
political branches by entertaining an action by a foreign
government seeking a court order to compel .payment of funding for
U.S .. obligations under a treaty abrogated by the President or
Congress. Yet, under the free association compacts, that is
exactly-what Congress has explicitly authorized and directed the"
federal courts to do. See, Section 236, P.L. 99-239, discussed
below.
Similarly, in Section 10l(d)(2)(B) of P.C. 99-239, the statute
approving the compacts, Congress required that amendments to the
compact and certain related agreeme~ts made pursuant to the
~ applic_ab.le mutual consent provisions would require congressional
approval. Thus, Congress by statute_explicitly agreed to the
mutual consent provisions in the agreements identified in Section
10l(d)(2)(B) and established a role for Congress in the procedure
for u.s. consent to an amendment.
Thus, just as the mutual 'consent prov1s1ons of the CNMI agreement
limi.t the exercise of Article IV territorial clause powers by
CLINTON LIBRARY PHOTOCOPY
�Congress, the mutual consent and related funding provisions of
the free association compacts limit the exercise of Article I and
Article II foreign policy and defense powers by the President and
Congress. These unprecedented arrangements are intended to
enable the u.s. to sustain its authority over areas in which it
has significant national interests, but in which the people do
not enjoy the full rights and benefits of incorporation into the
U.S. federal political and legal system.
To·understand the gravity of the problems that ~ill be created if
the Department of Justice persists in what we believe is a
misinterpretation of the POSSE decision, it is important to
examine the existing mutual consent precedents very closely.
EXISTING MUTUAL CONSENT PRECEDENTS:
The first of the existing mutual consent precedents is found at
Section 105 in the Covenant to Establish the Commonwealth of the
Northern Mariana Islands, U.S. Public Law 94-241, 90 Stat. 263
( 1976), reprinted at 48 U.S. C. 1681, not'e ~
The additional
important insular area mutual consent precedents are given the
force and effect of U.S. law pursuant to the agreements referred
to in Section 101(d)(2)(B) of the U.S. statute approving the
Compact of Free Association between the U.S., the Republic of the
Marshall Islands (RMI) and th~ Federated States of Micronesia
(FSM), U.S. Public Law 99-239, 99 Stat. 1770, 48 U.S.C. 1681,
note. The CNMI, FSM and RMI mutual consent provisions became
effective under Presidential Proclamation No. 5564 of October 3,
1986, Federal Register Vol. 51, Number 216, November 7, 1986.
As already stated, the RMI and FSM compacts also bind successive
Congresses through a pledge of the full faith and credit of the
U.S. for economic assistance grants which are central elemen·ts of
the political relationship defined in the compact as an agreement
between the u.s. and the peoples of the RMI and FSM exercising
their sovereignty by approving the agreement in a plebiscite.
See, Preamble and Section 236, Compact of Free Association, P.L .
.99-239.
These multi-year funding obligations are not "subject to
appropriation by Congress," the typical treaty formulation, but
are enforceable in the U.S. courts, which are expressly granted
jurisdiction to enforce the payment obligations in the compact.
Thus, Congress has restricted its ability to alter, amend or
repeal those statutory obligation~ of its own making.
THE CASE OF PALAU:
A fourth mutual consent precedent is scheduled to enter into
force on October 1, 1994 under the terms of a Compact of Free
Association between the U.S. and Palau.
CLINTON LIBRARY. PHOTOCOPY
�The Palau compact implementation agreement is terminable
unilaterally by Palau or the U.S., but once the Compact enters
into force, under Section 453(a) of U.S. Public Law 99-658, 100
Stat. 3700, 48 u.s.c. 1681., note, the Palau compact mutual
consent provision and all the· related ~ights and obligations
under the agr~ement ~ill be binding upon both Palau and the
United States.
If the DOJ Memorandum of July 28 is applied to
the Palauan compact mutual consent provision there may be reasons
not to go forward with implementation.
The U.S. currently is under no legal obligation to implement the
Palau Compact, and even though the Palauans have approved the
Compact the government of that insular area has no rights under
the agreement until it enters into force by mutual agreement, and
Palau .has no right to an arrangement with the u.s. which is
enforceable or unconstitutional -- even if that arrangement
achieves important U.S. goals such as granting Palau selfgovernment and ending the U.N. trusteeship under which the U.S.
has the ultimate powers of government in Palau.
Thus, implementing the Compact for Palau is not a case of
honoring a previous commitment on mutual consent, but of creating
a new one. If mutual consent clauses binding Congress are
unenforeeable and unconstitutional, the u.s. should unilaterally
terminate the implementation agreement as provided for in Article
I I, Section 4 of that agreemen-t, and ·seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
It would be bad faith to implement the Palau Compact knowing that
a key provision is unenforceable and unconstitutional under u.s.
law. Under the Vienna Convention on the Law of Treaties, to do
so could give rise to international legal issues affecting
enforceability of the compact. For the DOJ Memorandum of July 28
puts Palau on notice that the mutual consent agreement contained
in Section 453(a) is viewed by the U.S. legal authorities as
unenforceable.
Yet, the Section 453(a) mutual consent arrangement with Palau
which gives the U.S. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity -- is the single
most significant provision which justified to Congress the huge
economic grants contained in the funding sections of the Palau
compact.
As in the case of the FSM.and RMI, those funding
grants are backed by the full faith and credit of the u.s. and
enforcea~ble in the· federal cou:J:"ts.
~
If the Palau compact takes effect and the mutual consent
provision in Section 453(a) is unenforceable,· it would appear
that the massive u.s. funding obligations under Title Two of the
compact for Palau would survive under the terms of Section
452(a), even if the U.S. followed the procedure under Section 442
to t'erminate the free association relationship due to loss of the
defense rights which were to extend beyond the initial period of
CLINTON LIBRARY PHOTOCOPY
�--------------------
the compact.
Perpetual strategic denial is what the U.S. would be able to
retain under continuation of the U.N. trusteeship, and so
strategic denial that lasts beyond the agreed period of free
assoc~ation under the compact is what Congress demanded in order
to justify over $450 million in grants to a community of 14,000.
If the Department of.Justice wants the Administration to give
away what Congress approved in P.L. 99-658 just to win a debate
over mutual consent for Guam, shouldn't Congress be informed?
Thus I the decision of the Department of Justice to chc::mge its
position on mutual consent does not impact on Guam alone.
The
most immediate impact may be on Palau. Of course, the Department
of Justice may not have -the authority or·ability simply to choose
to honor what must be viewed under its theory as an
unconstitutional and inchoate mutual consent commitment between
the U.S. and Palau.
Indeed, the notion that individuals in the
federal government have that degree of discretion in fundamental
matters such as this itself raises constitutional issues.
But, again, even if the Department of Justice is as generous with
respect to honoring a mutual consent commitment to Palau as it
appears ready to be, a question may arise as to whether the U.S.
will be able to enforce its rights or meet its obligations under
the Palau mutual consent provision.
On the face of things
Section 453(a} and the related provisions of Section 311 seem to
be a benefit to the U.S. which it simply can enjoy by deciding to
honor it.
That view may be folly.
If the same litigious parties in the
U.S. or Palau who have mounted legal challenges to the military
provisions of the compact tirelessly for the last fifteen years
establish jurisdiction to challenge the validity of the Section
453(a) mutual consent provision in our own courts, and prevail
with the aid of the DOJ Memorandum, it appears that U.S.
taxpayers could end up paying Palau for defense authority tied to
a mutual consent provision in Section 453{a) rendered null and
void.
Having been seized with what Palau and the u.s. prudentially must
view presumptively as a serious substantive legal infirmity in a
provision that is fundamental to the purpose of the agreement
prior to ·its entry into force, will the parties be able to rely
upon and enfqrce the reciprocal and interdependent rights and
oblig~tions set forth in the agreement?
Ifi not, are the U.S.
funding obligations linked to the defense authority .and mutual
consef!.t provisions severable so that the u.s. would be able to
extricate itself from the full faith and credit payment
requirements if the defense rights proved unenforceable?
The answer to both those questions arguably would be in the
negative.
CLINTON UBP../'-'IRY PHOTOCOPY
�We raise these issues not because we believe that the Palau
mutual consent provisions are either unenforceable or
unconstitutional. Rather, we use them to show the basic problem
inherent in the Justice Department's approach. When the CNMI
covenant and the compacts were negotiated, _Justice supported the
mutual consent clauses. Nothing has changed since then. Only
the POSSE case has caused a rethinking of this support and POSSE
merely explains the test that must be employed to determine
_whether Congress bound itself validly to a limitation on the
exercise of its power. It did not establish a per~ rule to
the contrary.
To avoid the perverse result that could come about by applying
the position set forth in the Memorandum to Palau's mutual
consent compact, the DOJ Memorandum of July 28 should be
withdrawn immediately.
That would allow the Palau compact to be
implemented and enable the parties to the Guam commonwealth
negotiations can move forward with the process of defining an
acceptable mutual consent relationship as endorsed by Secretary
Babbitt during his trip to Guam.
_CLINTON UBHARY PHOTOCOPY
�CLINTON LIBRi.\RY PHOTOCOPY
APPENDIX B
SECTION-BY-SECTION ANALYSIS OF THE
MEMORANDUM FOR THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALTH DATED JULY 28, 1994
RE: MUTUAL CONSENT PROVISIONS IN THE
GUAM ·cOMMONWEALTH LEGISLATION
FROM THE DEPUTY ASSISTANT ATTORNEY GENERAL
Introductory Paragraphs - pp 1-2.
The Department's Memorandum correctly recognizes that the
inclusion of mutual consent clauses in the Commonwealth
legislation is crucial to the people of Guam, referencing as the
reasons autonomy and economics.
While economic development is
clearly a consideration, the reference to autonomy is misleading.
It is true Guam seeks control over its internal affairs.
autonomy is less the goal than democracy.
But
The American-citizen
residents of Guam do not have the same rights to participate in
the representative democracy enjoyed by the citizens of the
several States.
If the citizens of the Guam maintain their
residence there, they elect voting members of
nei~her
the House
nor the Senate, nor can they vote in presidential ·elections.
They are effectively excluded from the most fundamental aspect of
our democratic system -- the right of
u.s.
citizens to give some
form of meaningful consent to the laws and form of government
under which they live.
The circumstances of the people of Guam today are the direct
consequence pf almost 100 years of American rule, a period during
·09/15/94, 11:59am
20029980
�CLINTON LIBR~R\' PHOTOCOPY
which the U.S. has exercised sovereignty over Guam without
incorpora~ing it into the U.S.
federalism.
system of constitutional
No level of economic development can sustain
perpetual second-class citizenship.
A process must be created
which will lead to resolution of Guam's status as a non-selfgoverning area under the U.N. Charter.
Until Guam is decolonized
it will be a living contradiction of U.S. moral opposition to
colonialism.
Thus, the fundamental question which the people of Guam and,
indeed, which this Administration must ask today is similar to.
that question asked by the leaders of the American revolution
can a nation, founded on the principle that government acts only
with the consent of its people continue to deny basic rights of
self-government to some of its citizens solely because they live
in a terri tory? 1
The DOJ Memorandum recognizes that for the past thirty
years, the Department has supported the constitutionality and
enforceability of mutual consent clauses. 2
1
Appendix A
In footnote 1, the Memorandum chooses to define Guam as a
"non-state area",
catchy pseudonym for what Guam really i s - - a
colony of the United States. This is why people in the
territories object to their territorial status. As a territory
they are precluded from the democratic system. The Guam
Commission on Self-Determination, however, does not claim that
the legal implications of being a territory do not apply to them.
It is because they recognize that being a territory leaves them
out of the democratic. process that they seek mutual consent.
a
2
Unfortunately, the Department has refused to provide us
with any of the prior opinions supporting mutual consent clauses.
09/15/94, 11:59am
20029980
2
�accompanying this document reviews the legal and political nature
of relevant prior mutual consent precedents, as well as the
pending entry into force of another mutual consent arrangement.
We do not understand how the mutual consent provisions in these
other acts of Congress will be "honored" by the Department while
a similar provision proposed
Memorandum at 12.
fo~
Guam is unenforceable . .
See Appendix A.
Neither the relevant provisions of the Constitution nor
applicable cases support different standards for the kind of
mutual consent arrangements involved in these insular political.
status relationships.
~ongress
Nor can it be argued that an Act of
in connection with the CNMI covenant or Compacts of Free
Association is any different or more binding on Congress than an
Act adopting the Guam Commonwealth would be.
An Act of Congress
is either constitutional and enforceable or it is not. If the
Department intends to support the mutual consent provisions in
these other Acts and does not intend to interfere with
implementation of the Palau Compact, it must apply the same
policy to Guam.
To quote the Memorandum at p . .2 -- "[i]n our
view, it is important that the text of the ... Act not create any
illusory expectations that might to (sic) mislead the
electorate ... about the consequences of the legislation".
In the end, note 2 makes clear that the foundation for the
proposed change in position on mutual consent clauses is the
Supreme Court's decision in Bowen v. Agencies Opposed to Soc.
09/15194; 11:59am
20029980
3
CLINTON LIBR.~RY PHOTOCOPY
�Sec. Entrapment, 477 U.S. 41 (1986)
"POSSE").
(popularly referred to as
As discussed in great detail infra, POSSE does not bar
Congress from limiting its right to exercise sovereign power by
entering into a binding contract, nor does it establish a per se
test that Congress can only bind itself when entering into
contracts dealing with traditional private rights.· In fact,
POSSE dealt with the exercise of a regulatory right, and turned,
not on the nature of the contractual right at issue, but on a
determination of whether Congress had expressed an intention to
bind itself in "unmistakable terms".
The
fo~lowing
section-by-section analysis demonstrates that
none of the cases cited in the
Mem~randum
leads to a certain
conclusion that the Supreme Court would restrict Congress'
ability to enter into a political status arrangement with Guam
based on mutual consent.
Section I. - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty of the United States is Plenary with
Constitutional Limitations -- pp 2-4.
The DOJ Memorandum would lead us to believe that the Supreme
Court has already decided that Congress cannot~limit its exercise
of authority over the territories because its authority is
plenary.
In this regard, the Memorandum seems to argue that this
plenary authority is infinite and must remain unencumbered in
perpetuity-- or at least until the U.S. alters Guam's status ..
09/15/94, 11:59am
20029980
4
CLINTON LIBRil.R\' PHOTOCOPY
�Memorandum at 4.
Thus, the Memorandum argues that Congress actually is
estopped from exerciiing its authority with respect t6 Guam if
that exercise of authority results in some form of meaningful
consent to the form of government under which the Guamanian
people live.
But Congress is the master, not the prisoner of its
plenary authority over the territories.
If Congress has plenary
authority, it follows that Congress can exercise this authority
to limit the types of measures it will take pursuant to that
authority if that is in the best interests of the U.S. and the
territory.
its head.
To assert otherwise stands the meaning of plenary on
Plenary means full power.
It does not mean full
power, except when Congress attempts to exercise it.
Under the Territorial Clause, Congress has
dispose of a
regulations.
terri~ory
th~
power to
or to make all needful rules and
If Congress has the power to dispose of a territory
in its entirety, it also has the power to dispose of ·some of its
control by exercising its power to make all,needful rules and
regulations.
It is an elementary principle of statutory
interpretation that the "g.reater includes the less".
Church
v. U.S, 136
u.s.
1, 45 (1889). 3
See, Morman
Similarly, in Collins
3
While a distinction obviously exists between the
Government's rights to abrogate property rights and the issue of
its authority to exercise political power in the territories, the
Supreme Court's frequent statements that the Government can bind
itself do not appear to be limited to commercial-type contracts.
The Court has, for instance, upheld limitations on federal
political powers in areas ceded to the federal government by the
09/15/94, 11:59am
20029980
5
CLINTON LIBRJ\R\' PHOTOCOPY
�v. Yosemite Park & Curry C6., 304 U.S. 518 (1938), the Court
upheld an agreement between California and the Federal Government
which reserved certain rights to California ·when it ceded
Yosemite Park.
The Court concluded that the Federal Government
and the states could enter into agreements concerning
jurisdiction over property within their borders, and the courts
should "recognize and respect" the agreements.
30.~
304 U.S. at 527-
For instance, the Supreme Court has approved of the
Government's right to lease mineral rights.
Gratiot, 39 U.S.
See United States v.
(14 Pet.) 526, 536 (1840) ("it lies in the
discretion of Congress, acting in the public interest to
determine how much of the property it shall dispose.").
In
Ashwander v. T.V.A., 297 U.S. 288 (1936), the Court approved a
contract for the sale of electricity, rejecting an argument that
the Government lacked constitutional authority to dispose
partially of its property by contract and relying on Congress'
states pursuant to the Territorial Clause.
In Fort Leavenworth
R.R. v. Lowe, 114 u.s. 525 (1885), the Court upheld an agreement
between the Federal Government and Kansas dividing taxing
authority.
4
The Court stated:
Though the jurisdiction and authority of the general
goverrunent are essentially different from those of a
State, they are not those of a different country; and
the two, the State.and the general government, may deal
with each other in any way they may deem best to carry
out the purposes of the Constitution.
Fort Leavenworth, 114 U.S. at 541.
09/15/94, 11:59am
20029980
6
CLINTON UBR.\RY PHOTOCOPY
�authority under the Territorial Clause.
Id, at 330-36.
5
None of the cases cited in the Memorandum are to the
contrary.
Each of them sets forth the general proposi ticm that
in regard to the territories, the Congress is supreme.
In part,
the earlier cases were required to make this point because the
Territorial Clause was included to make clear that it was the
Federal Government and not the States that would exercise control
over the Territories.
See,
~'
A. Leibowitz, Defining Statute
(1989) at 10-11; See also, District of Columbia v. Thompson Co.,
346 U.S. 100, 109 (1953).
But, none of the cases cited in this
5
The Congress also has authority to dispose of property
under the Territorial Clause. This power includes both the
absolute right to dispose of property in its entirety or to
dispose of part of the governments rights in property:
Of course, a significant difference may exist between the
disposition of property and the disposition of sovereign
authority.
Nevertheless, the conclusion that Congress can
partially dispose of matters over which it has the power of
total disposition has considerable logical appeal.
If.
Congress could totally dispose of its power over the
Philippines by granting them independence, it seems logical
that it could also partially dispose of its powers by
granting them something leps than complete independence.
Whether Congress could later change its mind as to the
·partial disposition is not clear, but some kinds of
dispositions are by nature final.
For example, if Congress
disposes of its powers over territory by admitting it as a
state, that would seem a final disposition of its
territoriai powers; Congress cannot change later the status
of a state. Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial·power
over them for all time.
Inventive Statesmanship vs. The Territorial Clause: The
Constitutionality of Agreements Limiting Territorial Powers, 60
Va. L. Rev. 1041, 1060-61 (1974).
09/15/94, 11:59am
20029980
7
CLINTON LIBRARY PHOTOCOPY
�section address directly the question of whether Congress could
exercise its plenary authority by restricting its ability to act
in the future.
The Memorandum bases its assertions about Congress' plenary
u.s.
authority on Gibbons v. Ogden, 22
(9 Wheat) 1 (1824). ·That
case, of course, is the seminal decision
power under the Commerce Clause.
est~blishing
Congress'
It has nothing whatsoever to do
with the Congress' Territorial Clause authority.
It is
apparently cite9 to establish the proposition that in some
express areas Congress' power "acknowledges no limitations, other
than are prescribed in the Constitution".
We think it should be
obvious that the Department's proposed changed opinion on mutual
consent is entirely inconsistent with this principle.
Rather
than recognizing the scope of Congress' powers, the Department is
claiming that a limitation exists on Congress' power -- that
Congress is imprisoned by its plenary power and cannot exercise
it to limit itself.
In fact, several of the other cases cited in
the Memorandum to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County of Yankton, 101
u.s.
129 (1880).
The Memorandum utilizes
a quote to establish that Congress is supreme in the territories.
But this quote has nothing whatsoever to do with whether Congress
can act to limit its authority.
Unfortunately, what has been
left out from the quote are the next two sentences which bear
09/15/94, 11:59am
20029980
8
CLINTON LIBHARY PHOTOCOPY
�directly on the issue presented by the mutual consent clause and
the analysis the Supreme Court adopted in POSSE whether Congress
has limited its right to exercise sovereign power,
The Court.
apparently addressing the issue that Congress had not expressly
reserved the right to amend acts of a territory stated:
In the organic act of Dakota there was not an
express reservation of power in Congress to
amend the acts of the territorial
legislature, nor was it necessary.
Such
power is an incident of sovereignty, and
continues until granted away.
101 U.S. at 133 (emphasis added).
Clearly, the implication of this decision is that while Congress
has full power it has the right to grant it away. 6
While the next case cited, Hodel v. Virginia Surface Mining
and Reclamation Assoc., 452
u.s.
264, 276 (1981), like Gibbons v.
Ogden, does not deal with the Territorial Clause, it does
describe accurately the standard the Court applies when
determining whether Congress has acted within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine whether a particular exercise of
congressional power is valid under the
6
Similarly, American Insurance Co. v. Canter, 26. U.S. 511
(1828) and Downes v. Bidwell, 182 U.S. 244 (1901), cited in the
memorandum to establish the extent of Congress' power, do not
address the issue of whether Congress can act to limit its
authority.
09/15/94, 11:59am
20029980
9
CLINTON LIBR~R\' PHOTOCOP'I
�Commerce Clause is relatively narrow.
The
court must defer to a congressional
finding ... if there is any rational basis for
such a finding ... This ·established, the only
remaining question for judicial inquiry is
whether "the means chosen by (Congress] must
be reasonably adapted to the end permitted by
the Constitution." ... The judicial task i~ at
an end once the court determines that
Congress acted rationally in adopting a
particular regulatory scheme.
452 U.S. at 276 (emphasis added).
This test recognizes the great deference the Court gives to
an exercise of power by Congress.
If Congress were to conclude
that a mutual consent clause is within its power and that such a
clause is necessary to achieve Congress' purpose of granting
greater self-government to Guam, can anyone say with certainty
that the Court will not believe that a sufficient rational basis
exists.
If it does, not even the Memorandum asserts that
anything in the Constitution specifically bars a mutual consent
clause.
It is well established that when the intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
It is equally clear that the courts give
great deference to Congress when it exercises its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The incorporation analysis thus must be
undertaken with an eye toward preserving Congress' ability to
09/15/94, 11:59am
20029980
10
CLINTON UBR~RY PHOTOCOPY
�accormnodate the unique social and cultural conditions and values
.of the particular territory.
More over, we must be cautious in
restricting Congress' power in this area."), citing Torres v.
Puerto Rico, 442 U.S.465, 460-70 (emphasis added).
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
,.
when the Congress has acted pursuant to its Territorial Clause
authority.
None of the rest of the cases cited for the proposition that
Congress' power continues indefinitely address the question of
whether Congress can limit its
~bility
territories without their consent.
to act in regard to the
Shively v. Bowlby, 152 U.S. 1
(1894) can be cited only for the proposition that it is the
Federal Government and not the states which exercises control
over the territory of the United States.
It did not address in
any way whether the Congress can limit its authority to act over
1
this territory.
Similarly, Hooven & Allison Co. vl Evatt., 324
U.S. 652 (1945),
can be cited only for the .self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers would not be exercised during the transition
was not addressed.
Congressional authority over the people of the territories
and their political rights is derived from Congress' authority
09/15/94, 11:59am
20029980
II
.CLINTON LIBR~R\' PHOTOCOPY
�over Guam as property brought within Congress' control by the
Territorial Clause.
In Edward v. Carter, the Court clarified
Congress' power under the property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. · 2 embraces any
·disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitted)
(emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39 U.S.
526 ( 1840) _where the Court considered Congress' power to impact a
lease of federal lands through legislation.
The Court's approach
to the ·question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie with
territory of the United States are, therefore, its property.
Second, ·it recites the Territorial Clause and concludes that the
term territory refers
of property.
i~
a descriptive word referring to one kind
Third, the Court concludes that "Congress has the
same power over (the mine) as over any other property belonging
to the United States; and this power is vested in Congress
without limitation; and has been considered the foundation upon
which the territorial governments rest". Id. at 537.
Fourth, the
Court then references cases involving Congress' authority over
the territories, including Florida, including the right of
Congress· ''to make all needful rules and regulations respecting
09/15/94, 11:59am
20029980
12
CLINTON LIBR'\R't' PHOTOCOPY
�the territory or property of the United States". Id. at 538.
Finally, the Court concludes "[i]f such are the powers of·
Congress over the lands belonging to the United States, the words
"dispose of," cannot receive the construction contended for at
the
bar~
that they vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater includes the lesser.
The Court reached its
decision building on Congress' authority over the territories.
If Congress has the power to dispose of territories or to make
all needful rules and regulations., it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
Section II - "The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp 5-6.
·
This section of the Memorandum offers nothing more than a
restatement of the
"principle~
asserted in Section I -- that
Congress'. plenary authority does not include the right to limit
the exercise of this authority in the future by way of a mutual
consent clause.
As with Section I, the cases relied upon in this
section do not deal with the issue of
C~ngress
exercising its
plenary authority in this way.
Clinton v. Englebrecht, 80
u.s.
(13 Wall) 434 (1872) does
not establish a rule that any delegations of authority to a
09/15/94, !1:59am
20029980
13
CLINTON URR~R\' PHOTOCOPY
�territory "must be 'consistent with the supremacy and supervision
of National authority'" as asserted in the Memorandum at p. 5.
The case did not address whether Congress could irrevocably limit
its right to alter a law because of a mutual consent clause, nor
did it use the word "must".
The quote is dicta and deals with
how Congress had approached local government up to that time.
The actual quote is as follows:
The theory upon which the various governments
for portions of the territory of the United
States have been organized, has ever been
that of leaving to the inhabitants all the
powers of self-government consistent with the
supremacy and supervision of National
authority, and with certain .fundamental
principles established by Congress.
80
u.s.
at 441 (emphasis added).
This quote establishes nothing more than the historical fact that
\
Congress in its approach to self-government for the Territories
had not agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co., 302 U.S. 260 (1937) adds
nothing to the debate.
The Court recites the quote set forth
above from Clinton v. Englebrecht but uses it to affirm a broad
grant of power to territorial legislatures, not to bar Congress
from entering into an agreement not to exercise its authority.
In fact, the holding in Puerto Rico was to affirm the validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346
u.s.
100 (1963)
09/15/94, !1:59am
20029980
14
CU~JTON
L!8R\RY PHOTOCOPY
�provides even less support for the Memorandum's assertions.
As
with the other cases, the Court was merely referring to the same
precedent regarding the general authority of Congress to alter
its legislation relating to a territory, but, here again, this
discussion was not in the context of an expression by Congress of
an intent to limit itself. 7
~ore importantly,
the laws in
question contained specific reservations permitting Congress to
make such am·endments.
346 U.S. at 195.
What·is missing from this section, is a discussion of two
important decisions more closely on point.
The first is Currin
v. Wallace, 396 U.S. 1 (1938) which is mentioned in footnote 13
of the Memorandum but summarily dismissed as being inconsistent
with the Department's new theory that Congress cannot bind
itself.
This is a decision which we suggest is more
appropriately left to the Supreme Court.
Currin is significant
because the Supreme Court approved an Act of Congress
implementation of which required the approval of those affected
by it, the essence of the Guam mutual consent clause.
The Act,
7
The memorandum attempts· to bolster the Department's
theory that Congress must retain the authority to revise, alter
or revoke any authority it grants to the territories by citing
United States v. Sharpnack, 355 U;S. 286 (1958); Harris v.
Bareham, 233 F.2d 110 (3rd Cir. 1956); Firemen's Insurance Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 U.S. 648 (1874) and Christianson v. King County, 239 U.S. 365
(1915).
The cases cited, similar to D.C. v. Thompson, 346 U.S.
100 (1953) do not discuss an express intent by Congress to limit
the exercise of its authority, rather they are limited to
situations whereby Congress clearly reserved the exercise of its
authority to revise, alter or revoke through enacted legislation.
(J<}/15/94, I 1:59am
20029980
15
CLINTON UBRll.RY PHOTOCOPY
�passed pursuant to the Commerce Clause which the Memorandum
asserts gives Congress the same plenary power as the Territorial
Clause,
was challenged as an unconstitutional de'legation of
authority.
The Court disagreed finding that rather than a
delegation of legislative authority, the Congress "has merely
placed a restriction upon its own regulation by withholding its
operation ... 'unless two-thirds of the (voters] voting favor it.
Similar conditions are frequently found in police regulations."
306 U.S. at 15.
The Court went on:
Here it is Congress that exercises its
legislative authority in making the
regulation and in prescribing· the conditions
of its application.
The required favorable
vote upon the referendum is one of these
conditions ... "Congress may feel itself unable
conveniently to determine exactly when its
exercise of the legislative power should
become effective, because dependent on future
conditions ... it may leave the determination
of such time to ... a popular vote of the
residents of a district to be effected by the
legislation. While in a sense one may say
that such residents are exercising
legislative power, it is not an exact
statement, because the power has already been
exercised legislatively by the body vested
with that power under the Constitution, the
condition of its legislation going into ·
effect being made dependent by the
legislature on the expression of the voters
of a certain district."
306 U.S. at 16 (citing Hampton & Co. v. United States, 276 U.S.,
394, 407 (19??).
If the Court agrees Congress has the authority to make
implementation of its legislation subject to ratification by the
affected voters, it is inconceivable that the Court would find
09/15/94, 11:59am
20029980
16
CLINTON LIBR~RY PHOTOCOPY
�that
Congres~
could not agree to limit its ability to change that
same law without the consent of those same voters, if Congress
has expressed its intention unmistakably.
The most troublesome oversight in this section of the
Memorandum, however, is the failure to discuss the Ninth
Circuit's decision in United States v. De Leon Guerrero, 4 F.3d
749 (9th Cir. 19g3), cert. denied, ?? U.S. ?? (199?).
De Leon
Guerrero is the only· decision of which we are aware that deals
with the applicability of a mutual consent provision in
territorial legislation.
The case arose under the Covenant for
the Commonwealth of the Northern Mariana Islands.
was ratified by an Act of the Congress.
48
u.s.c.
The Covenant
§
1681b.
The
case involved an ongoing debate about whether the Commonwealth's
right of local self-government as defined in the Covenant under
Section 103 substantially limits Congress' legislative powers
over the Commonwealth under Section 105".
4 F.3d at 752.
The
specific.issue was whether the audit provisions of the Inspector
General Act of 1978 "conflicts with the self-government
provisions of the Covenant". 4 F.3d at 753.
In order to .reach the question, the court first had to deal
with arguments put forward by the Department of Justice which are
identical to those in the Memorandum.
Arguing on behalf of the
Inspector General, the Department asserted that Congress had the
right to pass the Act under the Territorial Clause arguing "that
because the CNMI is governed through Congress' power under the
09/15/94, 11:59am
20029980
17
CLINTON LIBR.~RY PHOTOCOPY .
�Territorial Clause, Congress has plenary legislative authority
over the CNMI".
4 F. 3d at 7 54. 8
"unpersuasive".
Accoiding to the Ninth Circuit.
The court found this argument
'the authority of the United States towards
the CNMI arises solely under the Covenant.'
The Covenant has created a 'unique'
relationship between the United States and
the CNMI, and its provisions alone define the
boundaries ot those relations ... The
applicability of the Territorial Clause to
the CNMI, however, is not dispositive of this
dispute.
Even if the Territorial Clause
provides the constitutional basis for
Congress' legislatiye authority in the
Commonwealth, it is solely by the Covenant
that we measure the limits of Congress'
legislative authority.
4 F.3d at 754.
Ultimately, the Ninth Circuit approved application of the
law not because.Congress had plenary authority under the
Territorial Clause but because the Covenant specifically gave
Congress the right to enact legislation applicable to the
Commonwealth.
The only limit on this right is a mutual consent
provision stating that a few limited sections of the Commonwealth
Act could not be modified without the mutual consent of the
8
The court referred to Simms v. Simms, 175 U.S. 162, 168
(1899) a case which explained.that under the Territorial Clause,
Congress "has the entire dominion and sovereignty, national and
local, Federal and state, and has full legislative over all
subjects upon which the legislature of a state might legislate
within the state". This is the same principle upon which the
Justice Department again relies.
09/15/94, ll:59am
20029980
18
CU~lTON
U8R.'\R\' PHOTOCOPY
�Commonwealth.
Covenant Section 105. 9
The Court found that this
mutual consent provision as drafted did not bar the Congress from
passing laws affecting the Commonwealth where the
u.s.
had a
sufficiently significant interest to justify it.
The holding in De Leon Guerrero contradicts directly the
conclusion paragraph to this section.
This paragraph reasserts
that the "non-state areas are subject to the authority of
Congress, which, as shown
a~ove,
is plenary ... [and] persists
[until] the area becomes a State or ceases to be under United
States sovereignty".
Memorandum at 6.
Rather, that decision
makes clear that Congress' authority, after a political status
change agreed to between Congress and the people of the
territory, is defined solely by the terms of that agreement.
,_
Section III -- The Rule that Legislation Delegating Gove.rnmental
Powers to a Non-State Area Must Be Subject to Amendment and·.
Repeal Is but A Manifestation of the General Rule That One
Congress Cannot Bind A Subsequent Congress, Except Where It
Creates Vested Rights Enforceable Under the Due Process Clause of
the Fifth Amendment -- pp 6-7.
This entire subsection is premised on a fallacy.
There is
no rule expressed in any decision of any court that governmental
·powers to a non-state area must be subject to amendment and
repeal.
As described above, the most that can be said is that
there is dicta in a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the mutual consent
provisions which the Memorandum states the Department will
continue to support. Memorandum at 12.
09/15/94, !1:59am
20029980
19
CLINTON LIBRJ:i.RY PHOTOCOPY
�whether Congress can bind itself, that Congress' actions in the
territories are subject to later amendment or repeal.
What is
accurate in the section is that these statements are nothing more
than "a specific application of the maxim that one Congress
cannot bind another .... "
Memorandum at 6.
The analysis does not end here, however, because it is
simply not true that one Congress cannot bind another, .as the
Memorandum recognizes but then attempts to explain away.
As
described above, the most that can be said is that there is dicta
in a series of cases, which do not address the issue of whether
Congress can bind itself.
They stand only for the proposition
that when express statutory language exists or when language is
.not provided and it is clear Congress originally had the power,
then in those situations Congress retains its authority and its
actions in the territories may be subject to later amendment or
repeal.
In the end, the section misrepresents as conclusive and
inflexible "the maxim that one Congress cannot bind another."
First, the law must create vested rights as· Justice Marshall
explained in Fletcher v. Peck, 19 U;S.
(6 Cranch) 87, 135 (1810)
("When, then, a law is in its nature a contract, when absolute
rights have vested under that contract, a repeal of the law
cannot devest (sic) those rights. ") 10
This, too, the Memorandum
10
Although the Department in its memorandum focus' on the
dissenting opinion in u.s. Trust Co. v. New Jersey, 431 U.S. 1
(1977) the actual holding was that impairment of contract by the
State was in violation of the Contract clause and neither
necessary nor reasonable in light of _the circumstances. Although
· 09/lS/94, I 1:59am
20029980
20
CLINTON LIBRil.R\' PHOTOCOPY
�recognizes but goes on to utilize a quote from the Sinking Fund
Cases as part of its effort to build a case that only contractual
rights of a private nature are protected from change.
The analysis provided is incomplete.
11
The test actually
established by the Supreme Court to determine whether Congress
has bound itself turns not on the nature of the contract (private
right vs public) but on whether Congress has expressed its
intention to protect the vested right in "unmistakable terms".
The "unmistakable terms" doctrine is not even addressed in the
Memorandum.
Infra at p. 25.
Section IV -- The Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two Mutual Consent Clauses - p. 8.
The Memorandum presents two bases for its conclusion that
~he
Due Process Clause does not bar a repeal of a mutual consent
the Contract clause applies to States and not the federal
government, the "United States are as much bound by their
contracts as are individuals." Sinking-Fund Casess, 98 U.S. 700,
719 (1879).
The Court in Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v. United States, 292 U.S. 571, 579 (1934), stated "the Supreme
Court held that "[r]ights against the United States arising out
of a contract with it" are property rights pro~ected from
deprevation or impairment by the 5th Amendment." See also Madera
Irr. Dist. v. Hancock, 985 F.2d 1397, 1401 (9th Cir. 1993).
Moreover the Court, in U.S. Trust Co. noted that "a statute is
itself treated as a contract when the language and circumstances
evince a legislative intent to create private rights of a
contractual nature enforceable against the State." 431 U.S. at
17, fn 14 (1977).
11
What is not disclosed about the Sinking Fund Cases is ·
that the "statutes in question expressly reserved Congress'
authority to repeal, alter, or amend them, and Congress exercised
that power ... " POSSE, 477 U.S. at 53.
·
09/15/94, 11 :59am
20029980
21
CLINTON LIBR~RY PHOTOCOPY
�clause.
First it points out that· a territory is not a person
within the meaning of the Due Process Clause.
herring.
This is a red
Secondly, it asserts that a repeal would not deprive a
territory of property within the meaning of the Fifth Amendment.
This is not the test the Suprem~ Court has established.
not the nature of the vested right that controls.
~t is
Rather,
the
test involves a combination of a vested right coupled with an
"unmistakable" commitment by the Congress not to interfere with
the right.
Subsection IV, B -- "A Non-State Area Is Not A Person in the
Meaning of the Due Process Clause of the Fifth Amendment." pp. 8-.
9.
We do not need to debate the merits of the legal arguments
presented in this subsection because this is a non-existent
issue.
The mutual consent clause being discussed between the
President's designated
Commission on
and representatives of the Guam
negotiate~
Self~Deterrnination
runs between the Goverriment of·
the United States and the People of Guam, not the politicai
entity of the Commonwealth of Guam as the Memorandum assumes.
The People of Guam ciearly qualify as persons under the Due
Process Clause.
We have attached the current configura~ion of the proposal
for your review.
The reference
~o
the People of Guam is
appropriate because elsewhere in the Act we intend to require
that after adoption by Congress the People
~f
Guam hold a
09/15/94, 11:59am
20029980
22
CLINTON LIBR~RY PHOTOCOPY
�plebiscite to approve what Congress has enacted before it becomes
applicable to Guam.
In this regard, we also intend to change the
nature of the Guam Commonwealth Act.
Rather than an Act of
Congress approved by the people before implementation, .it will
become a Covenant between the United States and the people of
Guam.
This Covenant will create vested and binding rights
protecting both the interests of the United States and of the
People of Guam.
Subsection IV, B -- Legislation Relating to the Government of
Non-State Areas Does Not Create Any Rights Or Status Protected By ·
the Due Process Clause Against Repeal Or Amendment By Subsequent
Legislation. - pp. 9-12.
While recognizing that the
~overnment
may enter into
contracts, the Memorandum asserts that only contracts similar to
those entered into by private individuals are enforceable, and
"governmental powers cannot be contracted away", citing North
American Coml. Co. v. United States, 171 U.S. 110, 137 (1898). 12
To bolster its position, the Memorandum relies on the POSSE
12
The comment by the Court relied upon by the Memorandum
is dicta.
It came in a case involving Congress' right to alter
the terms ·of a lease through regulation.
The decision did not
turn on the rule that sovereign regulatory authority could not be
waived.
It turned on the fact that an express reservation of
authority had been included in the contract. As the Court noted,
this was a lea~e ''expressly subjected from the beginning, to
whatever regulations of the business the United States might
make".
171 U.S. at 137.
09/15/94, 11:59am
20029980
23
CLINTON UBR.~RY PHOTOCOPY
�decision.
13
The POSSE decision, however,
matter of the contract in question.
did not turn on the subject
~he actual foundation of the
·Court's holding was that if Congress was to surrender any of its
sovereign power in a contract, it must do so in "urunistakable
terms".
The· "urunistakable terms" analysis would not be necessary
if the Court did not assume that Congress could indeed surrender
sovereign powers, even in the realm of t~aditional regulatory
authority as·was presented in the POSSE case.
This is exactly
the opposite of what the Memorandum asserts.
Indeed, the Court's reference to the bond and insurance
cases had no direct bearing on the Court's holding.
The cases
were cited for the limited purpose of contrasting circumstances
where Congress clearly evidenced its intent to bind itself from
the facts in the POSSE case where "Congress expressly reserved to
itself "[t]he right to alter, amend, or repeal any provision of"
13
The Memorandum lacks examples that give support to the
Memorandum's theory that Congress does not have the ability to
limit the exercise of its authority under the plenary power of
th~ Territorial Clause.
Rather, the cases cited involve
situations whereby the Congress through legislation, or the lack
of legislation, retained its authority.
For example, the
memorandum indicates Hudson Water Co. v. McCarter, 209 U.S. 349
(1908) has a much broader interpretation than the actual case
decision provides for.
In fact, Hudson concerns.an action
~nvolving a water rights contract between the State and an .
individual where the State did not include provisions limiting
its powers, therefore allowing subsequent legislation by the
State and a resulting ineffective contract.
It is not about the
State's incapability to limit its power by contract, rather it's
about the authority of a State to retain its power when not
granted away.
·
09!15194, 11:59am
20029980
24
CLINTON LIBR~RY PHOTOCOPY
�the Act which lead to the contracts at issue.
477 U.S. at 42.
The Court relied upon this contrast because its holding in POSSE
was that the Congress could amend the legislation in question,
even if that amendment interfered with contractual rights,
because it had not unmistakably indicated its intent to bind
itself -- the standard the Court has established for determining
whether Congress has waived its sovereign power.
The actual holding in POSSE -- that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thrift .Supervision,
967 F.2d 598, 621 (D.C. Dir. 1992).
The Transohio decision
demonstrates conclusively tha·t the Memorandum's analysis of the
holding in POSSE is so flawed that one wonders how it could be
used to justify a proposed reversal in such an important area of
Administration policy.
In that decision, the D.C. Circuit makes
clear that "[t]he Supreme Court reached [its] conclusion by
analyzing the governing statute, the Social Security Act" and
focused
o~
the fact critical to its decision -- "(t)he Social
Security Act contained an express reservation of Congress' power
to amend the law ... ", 967 F.2d at 621, not by establishing the
per se "private rights" test asserted in the Memorandum.
According to the D.C. Circuit
The "principles form[ing] the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
09/15/94, !1:59am
20029980
25
CLINTON LIBRil.R\' PHOTOCOPY
�that " 'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
soveteign's jurisdicti6n, and will remain
· intact unless surrendered in unmistakable
terms.' " l.Q. at 622 (emphasis added). 1'
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The "unmistakability" doctrine is a special
rule of contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court ~n a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently v~luable ·
to induce a partial release" of its sovereign
powers.
Id. at 618.
Both the POSSE and Transohio cases dealt with the
application
of
the "unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
~
If the Court had actually established a per se rule
which depended on the nature of the contract, then why did the
Court continue after stating the unmistakable terms principle and
the general rule that "contractual arrangement, including those
to which a sovereign itself is party, remain subject to
subsequent legislation by the sovereign" state that "(t]hese
principles form the backdrop against we must consider the
District Court's decision effectively to forbid Congress to .amend
a provision of the Social Security Act".
477 U.S. at 52 ..
By
use of the "must consider" terminology, the Court made clear what
the test is.
It would have been much more direct and ultimately
clearer simply to have ruled that the contract between the Social
Security Administration and the' State of California was not a ·
traditional private c6ntract. It did not, of course, because
that is not the test the Supreme Court ever applies.
The test is
wh~ther Congress has stated its intentions in unmistakable terms.
1
09/15/94, 11:59am
20029980
26
CLINTON LIBRARY PHOTOCOPY
�regulatory jurisdiction.
This test has nothing whatsoever to do
·with a standard based on "traditional private contractual rights"
which the Memorandum would have us believe is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by adopting the "traditiOnal private contractual
rights" test advocated in the Memorandum with a.simple finding
that alleged contractual rights associated with the regulatory
programs at issue in the cases are not traditional
contractual rights.
pri~ate
They did not, of course, because the Supreme
Court applies the "unmistakable terms" test which requires an
analysis of Congress' intent, not the per se standard proposed in
the MemorandUm.
See, ~, 477 U.S. at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can contract away sovereign rights to exercise its regulatory
authority when its says so unmistakably. 15
Instead of dealing
15
The POSSE decision has even been criticized because it
appears to open the door wider than some commentators believe
advisable. In an article by David Toscano entitled "Forbearance.
Agreements: Invalid Contracts for the Surrender of Sovereignty
analyzed the POSSE decis~on in great detail.
It concluded that
"(t]he power to waive sovereignty was recognized" in POSSE.
92
Colum. L. Rev. 426, 451.
It goes on "[i)n POSSE, the Court
relied entirely on Merrion v. Jicarilla Apache Tribe for the
proposition that the federal government can surrender sovereign
po~er.
Jicarilla in turn relied upon cases involving primarily
the taxation powers of state governments ... Instead of endorsing
09/15/94, 11:59am
20029980
27
CLINTON LIBRARY PHOTOCOPY
�accurately with the Court's actual analysis, the Memorand~ at
page 1~ relies upon a quote, claimed to set forth the holding,
which is taken completely out of context and has nothing
whatsoever to do with the holding.
The quote, taken from 477 U.S. 55, fails to include the
entirety of the paragraph, the remaining text frotn which puts
back into context the· relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
')
absolutely clear that what the Court focused on was the fact that
instead of Congress have stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
After stating that the contract claimed
by the State of California "bears little resemblance to rights
held to constitute 'property' and citing to the insurance and
bond cases as examples, .the Court went on to explain their
relevance.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
the rule applying to the police powers ~- such powers cannot be
surrendered -- it adopted the rule applying to taxation powers
such powers can only be surrendered if done so unmistakably.
This move should not be follo~ed automatically:
if the Court
wants to enforce contracts that surrender the federal
government's regulatory authority, it should do so on the basis
of policy arguments, not on the basis of POSSE."
Id. at 460.
Obviously the.author did not like the test used by the Court.
Ne~ertheless his criticism makes clear what the test is.
09/15/94, 11:59am
20029980
28
CLINTON LIBRARY PHOTOCOPY
�of its power to provide for the general
welfare.
Under these circumstances, we
conclude that the termination.provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of ·
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
477
U.S~
at 55 ·(emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contracting away its right to adopt
legislation, because the "Court has never held that the United
States cannot surrender regulatory powers through contract ... "
92 Colum. L. Rev at 458.
But the Court has approved Congress
making effectiveness of its legislation subject to approval by
the voters who are impacted by the legislation, see, Currin v.
Wallace, 306 U.S. at 15-16.
·rt defies the rational of the POSSE
decision to argue that the Court would approve Congress adopting
legislation making effected-voters approval a requirement and
then pass subsequent legislation authorizing it to ignore the
vote of approval, if it ha·s stated in unmistakable terms that it
would not take such action.
After spending eleven and one-half pages arguing that mutual
consent clauses are unenforceable and unconstitutional, the
Memorandum comes to an astounding conclusion.
It states that the
"Department of Justice ... would honor past commitments with
respect to the mutual consent issue", including Section 105 of
09/15/94, !1:59am
20029980
29
CLINTON LIBRARY PHOTOCOPY
�the Covenant with the Northern Marianas Islands.
Department cannot have it both ways.
But the
An Act of Congress is
either constitutional and enforceable or it is not.
If a mutual
consent provision for Guam is unenforceable, then the Department
must reach the same conclusion for all other mutual consent
provisions.
This includes the mutual consent provisions in the
Compact of F~ee Association with Palau' scheduled to go into
effect on October 1, 1994.
The Department's Memorandum offers no
solid basis for such a significant reversal in policy.
All of
the cases upon which it relies, except POSSE, were available to
i t when its earlier positions supporting mutual consent were
made.
POSSE does not change any rule with regard to Congress
binding itself.
It merely lays out clearly a test adopted in
1981 in Merrian v. Jecarilla Apache Tribe, 455 U.S. 130, which in
turn carried forward a principle which the D.C. Circuit states
"dates back to the early 19th century."
:~::; ll:s am
9
967 F.2d at 618.
CLINTON LIBRARY PHOTOCOPY .
30
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. report
Draft Guam Commonwealth bill. Comments on selected new policy
woposals (7 pages)
n.d.
P5
002. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborouih. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/2811994
P5
003. report
Draft Guam Commonwealth bill. Comments on selected new policy
proposals (7 pages)
n.d.
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
CLINTON LIBP-.ARY PHOTOCOPY
OA/Box Number: 20350
FOLDER TITLE:
Guam - Background Information [ 1]
Jamie Metrailer
2006-0193-F
'm583
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
-financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice ·between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
·
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) ofthe FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C.. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�~'-VI-
V.J.."1'
UL....V
VVUV
c
.·.
. ·'...,
L. S. Department of Justice
.
\~-)3
.
• ~- ,.1" • . . :'"
:·-:-\.-:.:····
Office of Legal Counsel
:)mutconst. oon
Office oi the
Deputy Assislanl Anomey General
Wa.shingiOn, D. C. 20530
July 28, 1994
MEMORANDUM FOR
THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALTH
Roseborough~
From: Teresa Wynn
· Deputy Assistant Attorney Genern.l
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains
two sections requiriilg the mutual consent of the Government of the United States and the
. Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws, rules, ~regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam insist that these two sections are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in.legis1ation govern.iitg the relationship between· the federal government and nonstate areas, i&. areas under the sovereignty of the United States that are no~ States, 1 have
CLINTON LIBRI1.R\' PHOTOCOPY
Territories tha~ have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoptioli and an elective governor, resent being Called Territories and claim that that
legaJ term and itS- implications arc not applicable to them. We therefore shaU refer to aU Teriitories and
Commonwealths as _non-state areas under the sovereignty of the United States or briefly all' nan-state areas.
1
�.._.~v
....
u1;
vuv...>.
~UUJ
Ul.\....-
not been consistent. 2 We therefore have carefully reexamined this issue. Our conclusion 1s
that th~sc clauses raise serious constitutional issues and are legally unenforceable. J
In our view, it is important that the text of the Guam Commonwealth Act not create
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation. We must therefore oppose the ~elusion in the
Commonwealth Act of any provisions, such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself. ·
L
.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129, 132-33 (1880). There the Court held:
' To our knowledge the first consideration of the validity of mutual consent clauses oa::urred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department tOQk
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that they go beyond the constitutiopa.l power of Congress. In 1963 the Department of Justice opined that
such clauses were legally effective because COngress could create vested rights in the status of a territory that
could not be revoked unilaterally. The Department adhered to this positimi in 1973 in connection with then
pending Micronesians status negotiations in a memorandum approved by then Assi!taut Attorney General ·
Rehnquist. On the basis of this advice, a mutual consent clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent clauses
in connection with the First 1989 Task: Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Puerto Rico Status Re(erendum Bill in light of
Bowen v. Agencies Oooosed to Soc. Sec· Entrapment, 477 U.S. 41, 55 (1986), and concluded that there coul!f
not be an enforceable vested right in a palitical status; hence that mutual consent clauses were ineffecti~e
because they would not bi.ild a subseqwmt Corigress. We took: the same position in the Second Guam Task
Force Report issued duriJJ& the last days of ~e Bush Administration in Janwuy 1993.
3
Mutual consent clauses are not a DO\'el pbenomeoon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordin!Ulte coptained six •articles of compact, between the original States and the people and
States in the said temtory, and [shall] forever reiDai.n uDa.lterable, unless by common co~t. • 1hese ~cles
·were incorporated either expressly or by reference into many early territori.aJ organic acts. ~ v.
Eoglebrecht, 80 U.S. (13 Wall.) 434, 442 (1812). The copious litigation under these •unalterable articles"
focussed largely on the question whether the territories' obligations under them were superseded by the
Constitution, or when the territory became a State, as the result of the equAl footing doctrine. We have,
however, not found any cases dealing with the question whether the Congress had the power to modify any duty
imposed on the United States by those articles.
- 2 -
CLINTON LIBRARY PHOTOCOPY
�U
.:...'v.:..
•.JJ
1
IJt)U,)
VL\..-
lf'J UU4
It is certainly now too late to doubt the power of Congress to govern
the Territories. There have been some differences of opinion as to the
particular clause of the ConstitUtion from which the power is derived, but that
it exists has always been conceded. 4
* * *
All territory within the jurisdiction of the United States not included in
any State must necessarily .be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. Tile organic law of a
Territory takes the place of a constitution as the fundamental law of the local
government. It is obligatory on and binds the territorial ·authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. {1 Pet.) 511, 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful .
rules and regulations, respecting the territory, or other property belonging to
the United States."
to
Perhaps the power of governing a territory belonging
the United
States, which has not, by becoming a·state, acquired the means of self-
4
Some derived that power from the authority of tho United States to acqum territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3,
Cl. 2) pursuant to wb.ich Congre:~s bas "Power to dispose of and tnak:e all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". See ~ American Insurance Co. v.
Canter, 26 U.S. (l Pet.) 511, 542 (1828); Mormon Church v. United State§, 136 U.S. 1,. 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244, 290 (1901).
At present, the Territory Clause of the Constitution is generally -considered to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
(1945); Examining Board v. Flores de Otero, 426 U.S. 572, 586 (1976); .fu.r:ri! v. Rosario, 446 U.S. 651
(1980); see also Wabol v. ViUacrusis, 958 F.2d 1450, 1459 (9th Cir. 1992), cert. ~sub .!lQI!). Pb.ilippine
Goods, Inc. v. Wabol, _ _ U.S. _ . 113 S.Cl 675 (1992). (Footnote supplied.)
-3-
CLINTON LIBRARY PHOTOCOPY
�I
\II.:.,,),
,"J'-t
I
I . \II
u·.:....u~
t1
I -i
~005
U.JU•)
government, may result necessarily from the facts, that it is not witnin the
jurisdiction of any particular state. and is within the power and jurisdiction of
the United States.
>it >I< >I<
"In legislating for them [the Territories], Congress exercises the combined
powers of the general, and of a state government."
Id. at 542-43, 546.
The power of Congress to govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1,
196 (1824), with respect to the Commerce Power:
This power [the Commerce Power], like all otherS vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitutio(l. See ~-, Hodel v. Virginia
Surface Mining and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under .the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of· Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-state areas persists "so long as they.
remain in a territorial condition." Shively v. Bowlby, 152 U.S. l, 48 (1894). See also,
Hooven & Allison Co. v. fu'ill!, 324 U.S. 652, 675 (1945) (recognizing that during the
intennediary period between the establishment o~ the Commonwealth of the Philippine
Islands and the ·final withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the tenitorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It terminates when the area loses that status either by virtue of its
admission as a State, or by the termination of the sovereignty of the United States over the
area by the grant of independence, or by its surrender to the sovereignty of another country.
-4CLINTON LIBRARY PHOTOCOPY
�J
I.
\J•J
~
.:..\J:...
VJ -t
,J,)\J,)
lf!J
n.
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to the inhabitams of non-state areas fuU powers of selfgovernment and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation, however, ;dust be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441
(1872); Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1~7). The requirement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise, alter, or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Sharpnack, 355
U.S. 286, 296 (1958), Harris v. Boreham, 233 F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state areas· thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislatioo. 6 Congress
therefore cannot subject the amendmen£ or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up. its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
5
ThompsOn deaJt with the District of Columbia's government which is provided for by Art. I, Sec. 8, Cl.
17 of the Constitution, rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court, however, held that in this area the rules relating to the Congressional power
to govem the District of Columbia and the non-state areas are identical. Indeed, the Court relied on cases
dealing with non-state areas, ~ .• Hornbuckle v. Toombs, 85 U.S. (18 WalL) 648, 655 (1874), and
Christianson v. Kin& County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative
authority under Art. I, Sec. 8, Cl. 17 of the Constitution to the District, ~ubjcct to the power o{ Congress at any
time to revise, alter, or revoke that authority.'
6
Congress has exercised this power with respect to the District of Columbia. The Act of February 21,
1871, 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President, a legislative assembly that included an elected bouse of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20, 1874, 18 Stat. 116, which abrogated among others the provisions
for the legislative assembly and a delegate in Congress, iu!d established a government by a Commission
appointed by the President.
-5-
CLINTON LIBRil.R\' PHOTOCOPY
l)l)tj
�~.:...\1£.
d
I "'f
tgj lJ lJ I
\loJlJd
authority to enact legislation under the Territory Clause that would limit the unfettered
exercise of its power to amend or repeal.
The same result flows from the consideration that all non-state areas are subject to the
authority of Congress, which, as shown above, is plenary. This basic rule does not permit
the creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and terminates only when the area becomes State or ceases to be under United
States sovereignty. There is no intermediary status as far as the Congressional power is
concerned.
a
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
III.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general
rule that one Congress cannot bind a subsequent Congress. except where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim tbat
one Congress cannot bind a subsequent Congress and the case law developed under it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen permanently and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Ttust Co. v. New
~. 431 U.S. 1, 45 (1977), a case involving the lmpainnent of the Obligation of
Contracts Clause of the ConStitution (Art. I, Sec ·10, Cl. 1):
One of the fundamental premises of our popular democracy is that each
generntion of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies ujJon
the ebbs and flows of politics to "clean out the rascalsn than the possibilitY that
those same rascals might perpetuate their· policies simply by locking them into
binding conuacts.
-6CLINTON LIBRARY PHOTOCOPY
�-
~v-
"•
•
..,._,....,,_,
Nonetht;kss, rhc maxim that one Congress cannot bind future Cungress. !ike every
legal rule, has its limits. As early as 1810, Chief Justice Marshall. explained in.Fietcher v.
Peck, 10 U.S. (6 Cranch) 87, 135 (1810):
·
The principle asserted is that one legislature is competent to repeal any
act which a former legislature was competent to pass; and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness of this principle, so far as respects general legislation,
can never be controverted. But, if an act be done under a law, a succeeding
legislature cannot undo it. The past c;mnot be recalled by the most absolute
power. Conveyances have been made, those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority) still, that
they originally vested is a fact, and tannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal.of the law cannot devest (sic) those rights .
. The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recogniZed in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from de.priving persons or comorations of property without due
process of law. They cannot legislate back to themselves, without making
compensation, the lands they have given this corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The United States are as much bound by their contracts as are.
individuals. (emphasis supPlied.) .
See also Bowen v.
~encies
Qm>osed to Soc.
Sec. Entrapment, 477 U.S. 41, 54-56 (1986).
-7-
CLII~TON
LIBRARY PHOTOCOPY
�~
.... v ...
VJ-r
vvuv
IV.
The Due Process Clause does not Preclude Congress from
Amending or Repealing the two Mutual Consent Clauses
The question. therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequent Congress from repealing legislation for the governance of non-state
areas enacted by an earlier Congress under the Territory Clause. This question must be
, answered in the negative.
The Due Process Clause of the Fifth Amendment provides:..
No person shall ... be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive
the non-state area of a property right within the meaning of the Fifth ~endment.
A.
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbacb, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
~ ~. Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), £m.. ~. 493 U.S. 991
(1989) ("The State of Alabama is not included among the entities protected by the due
process clause of the ftfth amendment"); and S~e of OklabOma v. federal Energy
Regulatozy Comm., 494 F.Supp. 636, 661 (W.D. Okl. 1980), ~. 661 F.2d 832 (lOth Cir.
1981), cert. denied,~ nom. Thill v. Federal Energy Regulatozy Comm., 457 U.S. 1105
(1982) ..
Similarly it has been held that. creatures or instrumentalities of a State, such as cities
or water improvement districts, are not persons within the meaning of the Due Process
Clause ofthe Fifth Amendment. City. of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. ffiWCIUS, 701 F.
Supp. 121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are 1101 States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
-8CLINTON LIBRARY PHOTOCOPY
�Lgj U Ill
tile rationale of South Carolina v. Katzcnbach, 383 U.S. ar 301, appears to be that such
bodies are not protected by the Due Process Clause of the Fifth Amendment. Moreover. 1t 1s
well established that the political subdivisions of a Srate are not considered persons protected
as against the State by the provisions of the Fourteenth Amendment. See, .u.:., Newark v.
New Jersey, 262 U.S. 192, 196 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36, 40
(1933); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 505,
507 (6th Cir. 1986) and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated,
supra, the Court held in National Bank v. County of Yankton; 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is wuch the same as
that which counties bear to the respective States ...
More recently, .the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. ·United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, s~ce States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.·
Legislation relating to the governance of non-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment,
i.e. , if such amending or repealing legislation w<;>uld deprive a person of property without
due process .of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process. Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
Legislation ooncerning the governance of a non-state area, whether called organic act,
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular. stage of self government that subsequent legislation ·
could not diminish or abrogate. While such legislation has not been frequent, it bas occurred
in connection with the District of Columbia. See District of Columbia v. Thompson Co.,
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause,
-9 -
CLINTON LIBRARY PHOTOCOPY
�- -··-
..... ............. ..
legislation concerning the government of a non-state area is subject ro amendment or n:peal
by subsequent legislation.
This leads to the question whether the addition of a mutual consent clause, i.e. of a
provision that the legislation shall not be modified or repealed without the consent of the
Government of the United States and the Government of the non-state area, has the effect of
creating in the non-state areas a specific status amounting to a property right within the
meaning of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because (1) sovereign governmental powers cannot be contracted away, and
(2) because a specific political relationship does not constitute "property" within the meaning
.of the Fifth Amendment.
l. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898).
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10, Cl. ·I) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. 1,23 (1977). 7 In a similar
.. context Mr. Justice Holmes stated:.
One whose rights, such as they are, are subject to state restriction,
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
·relating to the government of a non-state area without the consent of the latter, or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential po'?fers of the federal government. They are
7
Cases arising under the Contract Clause holding that a State cannot contract away a 5overeign power are
also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp. v. R.A. Gray Co., 467 U.S. 717, 733 {1984); National Railroad Passenger Com. v.
A.T. & S.F. R.,_470 U.S. 451, 472-73 n.25 (1985). Hence, when state legislation does not violate the
Contract Clause, analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment .
.R
Cited with approval with respect to federal legislation in Norman v. B. & O.R., 294 U.S. 240,308
( 1935).
- 10 -
CLINTON LIBRARY PHOTOCOPY
�<g) UUJ
therefore not binding on the United States and cannot confer a property interest protected by
the Fifth Amendment.
Q
More generally, the Supreme Court held in Bowen v. Agencies Opposed to Soc. Sec.
Entrapment, 477 U.S. 41, 55 (1986), that the contraccual property rights protected by the ·
Due Process Clause of the Fifth Amendment are the traditional private contractual rights,
such as those arising from bonds or insurance contracts, but not arrangements that are part of
a regulatory program such as a State's privilege to withdraw its participation in the Social
Security system with respect to its employees. Specifically, the Court stated:
But the "contractual right" at issue in this case bears little, if any,
resemblance to rights held to constitute "property" within tbe meaning of the
Fifth Amendment. The termination provision in the Agreement exactly
tracked the language of the statute, conferring no right on the State beyond
that contained in § 418 itself. The provision constituted neither a debt of the
United States, ~ ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see~ v. United States,~- The termination clause
was not unique to this Agreement; nor was it a term over which the State had
any bargaining power or for which the State provided indq>endeot
consideration. Rather, the provision simply was part of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Govemnient of Guam, or that future federal statutes and regulations shaJI not apply to
Guam without the consent of the Govi.munent of G~ clearly do not constitute conventional
private contracts; they are elements of a regulatory system:
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
Cases such as~ v. United States, 292 U.S. 571 (1934), and~ v. United States, 294 U.S. 330
(1935), are not contrary to this conclusion. 8oth cases involved commercial agreements (Lynch: insurance;
~: Government bonds) In Lvnch the Court held that Congress could not amend the contract merely to save
money "unless, indeed the a£tion falls within the federal police police power or some other paramount power. •
292 U.S. at 579. ~involved bonds issUed by the United States under the authority of Art. I, &<:. 8, Cl. 2
of the Constitution, to borrow money on the credit of the United States. The Court held that Congress did not
have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating ooe
of the pivotal .terms of the bonds to save money. While the Court held that the United States had broken the
agreement, it nevertheless held that plaintiff could not recover because, as the result of regulations validly issued
by the United States, he had not suffered any monetary damages .
9
.
° Cf.
1
n.2.
- 11 -
CLINTON LIBPJ\R\' PHOTOCOPY
�.'t!:J
view of the rulings of rile Supreme Court that legislation concerning the governance of a non- .
state area is necessarily subject to Congressional amendment and repeal; that governmental
bodies are not persons within the meaning of the Due Process Clause; that governmental
powers cannot be contracted away, and especially the exposition in the recent Bowen case,
that the property rights protected by the Due Process Clause are those arising from private
law or commercial contracts and not those arising from governmental relations. 11 ·
Sections 103 and 202 therefore do not .create vested property rights protected by the
Due Process Clause of the Fifth Amendment 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shall apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions, therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisi<1ns in the Guam
Commonwealth Act. 13
Finally, the Department of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 ofthe Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act,so as to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
" It is significant that the circulllStances in which Congress can effectively agree not to repeal or amend
legislation were discussed in the context of commercial contracts. ~. 477 U.S. at 52.
~. it is true, dealt with legislati~n that expressly reserved the right of Congress to amend, while the
proposed Guam Commonwealth Act would expresllly preclude the right of Con8ress to amend without the
consent of the .Government of Guam. The underlying agreements, however, are not of a private contractual
nature, and, hence, are not property within the meaning of the Due Process Clause. We cannot perceive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
.
11
The conclusion that Section 202 of the Guam Commonwealth Act (i.Oapplicability of future federal
legislation to Guam withOut the consent of Guam) would not bind a future Congress obviates the need to
examine the constitutiaoality of Section 202. In .9!!!Y! v. Wallace, 306 U.S. 1, 1~-16 (1939), and United
States v. Rock Rgyal Co-op. 307 U.S. 533, 577-78 (1939). the Court upheld legislation that made the
effective~ess of regUlationS dependent on the approval of tobacco farmers or milk producen~ affected by them.
The ~Urt held that this approval was a legitimate condition for Jllllking the legiSlation appticable. Similarly, it
could be argued .that the approval of federal legislation by the Government of G\aam is a legitimate condition for
making that legislation applicable to Gu.am. Since, as stated above, a future Congress would not be bound by
Section 202, we need not decide the question whether the requirement of approval by the Government of Guam
for ~ future federal Statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
·
13
- 12 -
CLINTON LIBRARY PHOTOCOPY
VVt...
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/28/1994
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Bill Marshall
CUI\ITON UBR/~R\' PHOTOCOPY
OA/Box Number: 20350
FOLDER TITLE:
Guam - Department of Justice
Jamie Metrailer
2006-0193-F
·m585
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)l
Freedom of Information Act- [5 U.S.C. 552(b)l
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAI
P3 Release would violate a Federal statute ((a)(3) of the PRAI
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIAI
.b(3) Release would violate a Federal statute ((b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA] ·
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
·
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Utli-:c
---------------------·
I:.:-',,.::
l~f
ug:ll Counsel
-----------------------------~--------------------
: ·:-:~
r:'-::-- .:·. ~n,•'di":t ~~:;.-te-w Gr:::nr:::ral
July 28. 1994
\IE.\IORA.,'Dl"M FOR
THE SPECIAL REPRESE.VfATIVE
FOR GCA.\1 CO~t\10r-.WEAL m
Roseborough~
From: Teresa Wynn
Deputy Assiscant Attorney General
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains
two sections requiring the mutual consent of the Government of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amendea
only with mutual consent of the two governments. Section 202 provides that no Feaeral
laws. rules. and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam insist that these two sections are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in legislation governing the relationship between the federal government and nonstate areas. i.e. areas_ under the sovereignty of the United States that are not States, 1 have
; Territories that have developed from the stage of a classica.l territory to that of a Commonwealth with a·
constitution of their own adoption and an elective governor, resent bei.ng caJled Territories and claim that that
legal term and its implications are not applicable to them. We therefore sb&U refer to all Territories and
Commonwealths as non-state areas under the sovereignty -of the Utlited States or briefly as non-state areas.
CLII~TON
U8R.\R\' PHOTOCOPY
�::. c
th.H
~e;::n
_
!">i~t;:::":t
the~-: ..:1Ju~c5
\\·-: ·,herer"orc hJ.\e ..:J.ret'ull: reeum1ned th1s 1ssue !Jur -l'n..;\'J'l•'n
r;l!Sc serious ~onstiruuonal 1ssues and are legally unenforceable.'
fn our view. it is important that the te.xt of the Guam Commonwealth .-\ct not -:reate
.1n: illusory expectations that might to mislead the electorate of Guam about the
..:L)nsequcn~cs ufJhe legislation. We must therefore oppose the inclusion in the
Common"-eJ.Ith .\(t of :1ny provisions. such as mutual consent clauses. that are legally
unenforceable. unless their unenforceability (or precatory nature) is clearly stated in the
do(ument itself.
I.
The Power of Congress to Govern the Non-State
Areas under the Soverei~nty of the United States
is Plenary within Constitutional Limitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths. are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of Natfonal Bank v. County of Yankton,
'
!Ol. U.S. 129. 132-33 (1880). There the Court held:
·
.
: To our knowledge the first consideration of the validity of mutual consent clauses occurred in 1959 in
with proposals to amend the Puerto Rico Federal Relatioos Act. At that time the Department took
the position that the answer to th.is question was doubtful but that such clauses should not be opposed oo the
ground that they go beyond the coastirutionaJ power of Congress. In 1963 the Department of Justice opined that
such :lauses were legally effective bec.aU.se Congress could create vested righu in the starus of a territory that
~ould not be revoked unilaterally. The Department adhered to this position in 1973 in cotlllection with thea
pending \1icronesia.ns starus oegotiatioos in a memorandum approved by thea Assistant Attorney General
Rehnquist. On the basis of this advice, a mutual consent ·clause was inserted in Section 105 of the Covenant
.... ich rhe \fonhern Mariana Islands. The Department continued to support the validity of mutual coosent clauses
in ~onnectioa with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited th.is issue in the early 1990's in COtlllec:tion with the Puerto Rico Status Referendum BW in light of
Bow eo v. Agencies Opposed to Soc. Sec. Eptraomegt, 477 U.S. 41. 55 ( 1986), and concluded that there could
not be an eoforceable vested right in a political status; bence that mutual cooseot clauses were ineffective
because they would DOt bind a subsequent Congress. We took the same position in the Second Guam Task
Force Report issued during the Jut days of the Bush Administration in January 1993.
conn~tion
-' \1utual consent clauses are not a novel phenomenon; indeed they antedate the Coostitution. Section 14 of
the \fonhw·est Ordinance contained six "articles of compact. between the original States and the people and
States in the said territory. and [shall] forever remain unalterable, uoJeu by common consent. • These articles
w"re incorporated either expressly or by reference into many early territorial orga.o..ic acu. Clintog v.
Englebrecht. 80 U.S. (13 Wall.) 434, 442 (1872). The copious litigation under these "unalterable articles"
focussed largely oo the question whether the territories' obligatioos under them were superseded by the
Constirution, or wben the territory became a State, as the result of the equal footing doctrine. We have,
however. not found any cases dealiog with the question whether the Congress had the power to modify any duty
imposed on the Cnited States by those articles.
- 2 -
CLINTON LIBRARY PHOTOCOPY
�r,
:~
.:::-:JJnl: no•;. roo lat~ to doubt the po~,~,cr of CL1ngress to go\~m
the Tcmtories. There ha' e been some differences of opiruon as to the
pa!1JCular .:lause of the Constitution from which the power is derived. bur that
it exists has always been ~onceded.J
. .. ..
...\II territory within the jurisdiction of the L:n..ited Scates nor included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
Cnired Scates. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
f\)r them as a State does for its municipal organizations. The organic law of a
Tenitory takes the place of a constitution as the fundamental law of the local
government. It is obligatory on and binds the territorial authorities: but
Congress is supreme, ·and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication resei:V'ed in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (l Pet) 511. 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the intei:V'al between acquisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
Perhaps the power of governing a territory belonging to the United
Scates, which has not, by becoming a state, acquired the means of self-
• Some derived that power from the authority of the United States to acquin: territory, others from the men:
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3.
Cl. ~l pu~uant to wbich Congress b.u "Power to dispose of and make all needful Rules and Regulations
respecting the Territoey or other Property belonging to the United States". ~ ~ Americ.a.n I.n.surance Co. v.
Canter. :6 U.S. (1 Pet.) 511, 542 (1828); Mormog Church v. United States, 136 U.S. 1, 42-44 (1890);
Dov.nes ~·. Bidwell, 182 U.S. 244, 290 (1901).
At present. the Territory Clawe of the Constitution is generally·considered to be the source of the
power of Congress to govern the non-state uea.s. Hooven & Allison Co. v. Evatt, 324 U.S. 652. 673-674
( 1945); Examining Board v. Flores de Otero, 426 U.S. 572, 586 (1976); .H!a:i.! v. Rosario, 446 U.S. 651
( 1980); ~also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), ~- denied sub .DQm. Philippine
Goods; [nc. v. Wabol, _ _ U.S._, 113 S.Ct. 675 (1992). (Footnote supplied.)
-3CLINTON LIBRAR\' PHOTOCOPY
�~·-··-
:::-:<mcnt. ;-;;J:. ~e)ulr ne...:cs.s.1nl: rmm the r'a-:rs. that it IS nor '·' 1th1n ~he
JUrisJi...:rion or' my panicular srare. and is ""ithin rhe power .111d junsdi...:rion l)r'
the l'nited States.
...
·rn kgis!Jting for them [the Territories]. Congress exercises the combined
powers ur' the general. and of a state government."
Id. at 5-+2-..U. 5-+6.
The power of Congress to govern the non-state areas is plenary like every other
legislative_ power of Congress but it is nevertheless subject to the applicable provisions of rhe
Constitution. As Chief Justice Marshall stated in Gibbons v. O&den, 22 U.S. (9 Wheao l.
I 96 ( 18 2~). with respect to the Commerce Power:
This power [the Commerce Power], like all others vested in Congress is
complete in itself. may be exercised to its utmost extent, and acknowled~es no
· limitations. other than are prescribed in the constitution. (Emphasis added.) This limitation on the plenary legislative power of Congress is self-evident. It
necessarily foUows from the supremacy of the Constitution. ~ u.,,Hodel v. VirWU-a
Surface Minine and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901): District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally. the power of Congress over the non-state areas persists "so long as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. l, 48 (1894). ~also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establishment of the Commonwealth of the Philippine
Islands and the fmal withdnwal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It tenninates when the area loses that status either by vinue of its
admission as a State, or by the tennination of the sovereignty of the United States over the
area by the grant of independence, or by. its surrender to the sovereignty of another country.
CLINTON LIBP~R\' PHOTOCOPY
-4-
�rr.
The Revocable ~arure of Congressional Legislation
Relatin~ to the Government of ~on-State .
..Veas
Wh1k Ct.1ng:ress has the power to govern the non-state areas it need not exercise that
power itself. Congress -:an. delegate to the inhabitants of non-state areas fuU powers of selfgo\ crnment and an autonomy similar to tl"11t of States and has done so since the beginning of
the Republic. Such delegation. however. ..ust be "consistent with the supremacy and
supervision of ~ational authority''. Clinton v. En~lebrecht. 80 U.S. (13 Wall.) 434. ~~
( 1872 l: Puerto Rico v. Shell Co., 302 U.S. 253. 260. 261-62 (1937). ·The requirement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal· supervision means that such delegation is necessarily subject to the
right of Congress to revise. alter. or revoke the authority granted. District of Columbia v.
Thompson Co .. 346 U:S. 100. 106. 109 (1953). 5 ~also, United States v. ShiiJllnack, 355
U.S. 286.296 (1958). Harris v. Boreham, 233 F.2d 110, 113 (3rd Cir. 1956). Firemen's
Insurance Co. v. Washineton, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
~ Thompson dealt with the District of Columbia's government which is provided for by Art. [, Sec. 8, Cl.
l 7 of the Constirution. rather than with the non-state ueas as to w.hom the Congressional power is derived from
the Territory Clause. The Court, however. held that in this area the Nles relating to the Congressional power
to govern the District of Columbia and the non-state areas are identical. l.odeed. the Court relied on cases
d<!aling with non-stale areas, y., Hornbuckle v. Toombs. 8.5 U.S. (18 Wall.) 648. 6.S.S (1874), and
Christianson v. Kjgs Cougtv, 239 U.S. 36.5(191.5), where it held that Congress can delegate its legislative
authori ry under ~ I, Sec. 8, Cl. 17 of the Constitution to the District, subject to the power of Congress at any
. time to revise, alter, or revoke that authority.
6
Congress hu ex.ercised this power with respect to the District of Columbia. The Act of February 21.
18 71. 16 Stat. ~ 19 gave the District of Columbia viituaJ territorial status, with a a governor appointed by the
elected bouse of delegates, and a delegate in Congress. The
President. a legislative assembly that included
1871 Act was repealed by the Act of June 20. 1874, 18 Stat. 116, wbicb abrogated among othen the provisions
for the legislati'{e assembly and a delegate in Congress, and established a government by a Commission
appointed by the President.
an
-
-5CLINTON LIBRARY PHOTOCOPY
�.!LHhl'nt: k' ~nJ_: k~bl.:Hton
under the Tcrriror;. CiJ.usc thJ.t would limit the unfcrr::r:::J
:x::rcise of its power to amend or repc:JI.
"
The same result tlows from the consideration that aU non-stare areas are subject to the
Juthority of Congress. which. as shown above. is plenary. This basic rule does not permit
the ...:rca(lon of lJOn-sr.are areas that are only partially subject to Congressional authority. The
plenary po~,~,ct of Congress over a non-state area persists as long as the area remains in that
,:l1ndition J.nd tci'TTlrnJ.tes llnly when the area becomes a State or ceases to be under Cnited
States sovereignty. There is no intermediary status as far as the Congressional power is
. concc:med.
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
III.
The rule that legislation delegatin~ ~ovemmental wwers to a non-state area ·
must be subje(t to amendment and repeal is but a manifestation of the ~eneral
rule that one Con~ress cannot bind a subseguent Conmss. except where it
creates vested ri~hts enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that .Congress cannot surre!lder its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case Law developed under it. .
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen permanently and would acquire vinually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey, 431 U.S. 1, 45 (1977), a case involving the Impairment of the Obligation of
Contracts Clause of the Constitution (Art. I, Sec.lO, Cl. 1): ·
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will riot automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rascals might perpetuate their policies simply by locking them into
binding contracts.
-
-6-
CLII\ITON LIBRI\RY PHOTOCOPY
�\. r.::~.~i~~'. :~1~ lnJ\lffi th:H une cL~ngrcss ..:Jnnot binJ future C . 'n~r~~). ill-.~:::·.~;'.
kg:ll rule. has tts limns . .-\s early ::1s l S lu. Chief Justice \farshall explai~cd iri Fletcher·,
Peck. li) L·.s. 16 (ranch) 87. 135 I 1810\:
The principle asserted is that one legislature is competent to repeal any
.let which.a fanner legislature ~·as competent to pass: and that one legislature
..:annot J.bridge the powers of a succeeding legislature. ·
-
The correctness of this principle. so far as respects ~eneral le~islation.
.
can never be controverted. But, if an act be done under a law. a succeeding
legislature cannm undo it. The past cannot be recalled by the most absolute
power. Conveyances have been made. those conveyances have vested legal
estates. and if those estates may be seized by the sovereign authority. still. that
they originally vested is a fact, and cannot cease to be a fact.
-
When. then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts.Clause (Art. I, Sec. 10. Cl. l) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinkin~·Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights. except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
Drohibited from deprivin~ ~rsons or coJWrntions of property without due
Drocess of law. They cannot legislate back to themselves, without making
compensation, the lands they have given ~his corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The United States are as much bound by their contracts as are.
individuals. (emphasis supplied.)
See also Bowen v. AJencies Qwosed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 ( 1986).
-7-
CLINTON UBHAR\' PHOTOCOPY
�rv
The Due Process Clause docs nor Preclude Congress from
.-\mending or Repealing the two ~furual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth . ~mendmenr
precludes a subsequent Congress from repealing legislation for the governance of non-stare
areas enacted by an earlier Congress under the Territory Clause. This question must be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This Clause is inapplicable to the repeal
clauses here involved for two reasons. First, a
meaning of the Fifth Amendment. and, second,
the non-state area of a property right within the
or amendment of the two mutual consent
non-state area is not a "person" within the
such repeal or amendment would not deprive
meaning of the Fifth Amendment.
A.
A non-state area is nm a person in the meanin& of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See also, .AJabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), WI..~. 493 U.S. 991
(1989) ("The State of Alabama is not included among the entities protected by the due
process clause of the ftfth amendment"); and State of Oklahoma v. Federal Enemy
Regulatory Comm., 494 F.Supp. 636, 661 (W.D. Old. 1980), jffJI, 661 F.2d 832 (lOth Cir.
1981). cert. denied,~ nom.~ v. Federal Enemy Reeulatozy Comm., 457 U.S. 1105
0
•
(1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts, are not persons within the meaning of the Due Process
Clause of the F"tftb Amendment. City of Sault Ste. Marie. Mich. v. AndruS, 532 F. Supp.
157. 167 (D.D.C. 1980); El Paso. County Water Improvement District v. IBWC/US, 701 F.
Supp. 121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are not States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
-8CLINTON LIBR/\RY PHOTOCOPY
�--~~ rJt!l.'I~:.J.i;: ·.'f
s,'IJ[h ClWIJna '.. KJ.tZcnQ.:h.:h. 383 l".S . .it 301. appc.:lfS tl1 be :hat 'u-..:1
bl'Jic~ 1re not prote..::ted b;. the Due Proc.:ss Clause of the Fifth Amendment. \1\.lrcO\cr :r :'
··'ell cstJbtished that the political subdi' is ions of a Stare are noc ...:onsidered persons protc-.:rcd.
as Jgainst the Stare by the pro' isions of the Fourteenth ..~mendmenr. See. e.g .. ~ewark ,
\"c" Jcrsev. ~62 U.S: 192. 196 tl923): Williams v. \fayor of Baltimore. 289 l".S. 36 ...HJ
I ll.iJJI: sl1Uth \Iacomb Disposal Authority v. Township of Washington. 790 F.2d 500. 505.
50-:' 16th Cir. I ~.~6 1 J.nd the authorities there cited. The relationship of the non-stare areas ro
rhe Federal .Go,cmmenr has been analogized to that of a city or county to a Stare. As stated.
~upra. the Court held in ~arional Bank v. County of Yankton, 101 U.S. 129. lJJ 118801:
The territories are but political subdivisions of the outlying domi.nlon of the
C'nited States. Their relation to the general government is much the same as
that which counties bear to the respective States ...
\fore recently. the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It foUows
that. since States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment. the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relatin~ to the ~:overnance of non-state areas does not create any ri~hrs or
starus protected by the Due Process Clause a&ainst repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment,
i.e .. if such amending or repealing legislation w<;>uld deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation. such as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause,
Legislation concerning the governance of a non-state area, whether called organic act,
federal relatiom act, or commonwealth act, that does not contain a mutual consent clause is
dearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
in connection with the District of Columbia. ~ District of Columbia v. Thompson Co .•
346 U.S. 100, 104-05 (1953); iYl2.Ii n.6. Hence, in the absence of a mutual consent clause,
. 9CLINTON LIBR~RY PHOTOCOPY
�;:-,:>:,w,_ ~
r-.
_,_·n;.:;:-:::tn~ ~he
~ubscLJucnt
go\crnmcnt L1 r' .1
nL)n-~tJ.tc
.1r=J. ts
~ubjc-.::t
to .1mcnJrncnt
·H
::pc...:.:
kgtslauon.
This kads to the question whether the addition of a murual consent clause. ~ of a
pro\ iston that the legislation shall not be moditie-d or repealed without the consent of the
· GL)\ ernmenr of..{he Cnited States and the Government of the non-state area. has the effect of
..:reJ.ting in the non-state areas a specific starus amounting to a property right within the
meJning \Jf the Due Process Clause. It is our conclusion that this question must be answered
in the negative because ( 1) sovereign governmental powers cannor be contracted away. and·
· 12 l because a specific political relationship does not constitute "property" within the meaning
·of the Fifth Amendment.
I. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tin~ey, 30 U.S. (5 Pet.) 115, 128 (1831). ·This
power. however. is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away." North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898).
~fore recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10. Cl. 1) of the Constitution that "the Contract Clause does
nor require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty."· United States Trust Co. v. New Jersey, 431 U.S. l, 23 (1977). 7 In a similar
context Mr. Justice Holmes stated:
One whose rights. ~uch as they are, are subject to state restriction,
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the latter, or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential po~ers of the federal government. They are
· c~ arisiD1 UDder the <Antrac:t Clause holding that a S~te cannot contract away a sovereign power are
also applicable to tbl contnclt made by the federal government ·because the Contract Clause imposes more
rigorous restrictioaa oo the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp, v. R.A. Gray Co., 467 U.S. 717,733 (1984): NatjonaJ Railroad Passenger Corp. v.
A.T. & S.F. R .. _470 U.S. 451, 472-73 n.25 (1985). Hence, when s~te legislation does not violate. the
·
Contract Clause. analogous federal legislation is all the more permissible under the Due Process Clause of the
Fi ftb Amendment.
'Cited with approval with respect to federal legislation i.e NomwJ v. B. & O.R., 294 U.S. 240, 308
( 1935).
- 10 CLINTON LIBRARY PHOTOCOPY
�· :r~-:~:r•.'r: .-:\..,~ o::1\.1ln::?
·'n <he L"nitcd StJt::~ J.nJ .:JnnL~t .:onfc:r
the Fifth Amendment.'
J.
propert;. tnrerc:~r pr·:r:_::J ~ ..
\fore generally. the Supreme Court held in Bowen v. Agencies Opposed to Soc. Sec.·
Entr::1gmenr. ~77 U.S. ~l. 55 t 1986). that the conrracruil property rights protected by the
Due Process Cla.use of the Fifth Amendment are the traditional private contractual rights.
~uch Js those: J.rising from bonds or tnsurance contracts. but not arrangements that are part of
J regulatory program such as a State's privilege to withdraw its participation in the Social·
Security system with respect to its employees. Specifically, the Court stated:
But the "contractual right" at issue in this case bears linle. if any.
resemblance to rights held to constitute "property" within the meaning of the
Fifth Amendment. · The termination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond.
that contained in § 4-18 itself. The provision constituted neither ·a debt of the
United States. ~ ~ v. United States. supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium. see Lynch v. United States, supra. The tennination clause
was not unique to this Agreement; nor was it a term over which the State had
any bargaining power or for which the State provided independent
·consideration. Rather. the provision simply was part of a· regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for-the general welfare. ·
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional
private contracts; they aie elements of a regulatory system.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which \YOuld be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that pOSition in
u
'Cases sucb
~ v. United States, 292 U.S. 57! (19:34), and fm:z: v. United States, 294 U.S. JJO
are not coatnry to this conclusion. Both cases involved commercial agreements ~: insurance;
Perrv: Governmeat boadl) In~ the Court beld that Congress could not amend the contract merely to save
money ·unless, indeed the action falls within the fedenJ police police power or some other paramount power. •
:92 L'. S. at 579. f!!:o: involved bonds issued by the United States under the authority of Art. I, Sec. 8. Cl. 2
of the Constirution. to borrow money on the credit of the United States. The Court beld that Corigress did not
bave tbe power to destroy the credit of the United S~tes or to render it illusory by unilaterally abrogating one
of the pivotal terms of tbe bonds to save money. Whlle the Court beld that the United States bad broken the
agreement. it nevertheless beld tbat plaintiff could oot recover because, u the result of regulations validly issued
by tbe United S~tes, be bad oot suffered any mooeW'y damages.
1 1935).
'°
Cf. n.2.
. 11 .
. CLINTON LIBR~RY PHOTOCOPY
�. ;;:., .•r ::-:~ :-'J:1n~~ _,r :nc Supreme CL'Urt that legislation -.::c,nccmtng the go>.:mJn,;: r 1 1 ,
't:Hc ,.H;:a IS neccssanly SUbjeCt to Congressional J.mendmenr and repeal: that go\cmmentJ.l
bc,di.es are nor persons within the meaning of the Due Process Clause: that governmental
pew. crs ...:annor be contracted away. and especially the e.'<position in the recent Bowen case.
that the property rights protected by the Due Process Clause are those arising from private
IJu. Llr -.::ommcrci.l-1 contracts and not those arising from governmental relations.''
:1·
Sections li)J and 202 therefore do not create vested property rights prorected by the
Due Process Clause of the Fifth Amendment.': Congress thus retains the power to amend
the Guam Commonwealth Act. unilaterally or to provide that its legislation shall apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions. therefore. in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. tJ
Finally. the Department of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue. such as Section 105 of the Covenant with the
;'IJ'orthern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections l 01, l 03, 201, and 301 constitutes such .
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
It is significant that the circumstances in wb..ich Congress can effectively agree oot to repeal or amend
were discussed in the conte~t of commercial contracts. Boweg, 477 U.S. at 52.
l~gislation
: Bowen. it is true. dealt with legislation that expressly reserVed the right of Congress to &mend, wb..ile the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
~onsent of the Government of Guam. The underlying agreements. however. are oot of a private contractual
narure. and. hence. are aot property within the meaning of the Due Process Clause. We cannot perceive bow
they can be converted into ·property • by the addition of a provision that Congress foregoes the right of
amendment.
) The conclusioo that Section 202 of the Guam Commonwealth Act (inapplic.tbility of future federal
l~gislatioa to GU&IIl witbcut the cao,ent of Guam) would aot bind a future Congress obviates the_ oeed to
the coo.stieutioaalltyof Section 202. !.o .Qm:Yl v. Wallace, 306 U.S. l. 15-16 (1939), and United
States v. Rock Roval Co-gz. 307 U.S. 533, 577-78 (1939), the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco farmen or tDilk produan affected by them.
The Court held that this approval wu a legitimate condition for making the legislation applie&ble. Similarly, it
~auld be argued that the approval of federal legislation by the Government of Guam is a legitimate condition for
making that legislation applicable to Guam. Since, as stated above. a future Congress would not be bound by
S~tioa 202. we oeed oot decide the question whether the requirement of approval by the Govem.ment of Guam
for ~ furure federal s~rute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
~"<amine
-
- 12 CLII~TON
LIBR!l.R\' PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/28/1994
P5
002. statement
re: Comments on DOJ memorandum regarding mutual consent
provision in the Guam Commonwealth legislation (53 pages)
08/26/1994
P5
·. To I. Michael Heyman from Walter Dellinger. Subject: Proposed
language from Department of Justice on Guam Commonwealth
legislation (4 pages)
06/2911994
P5
003. letter
COLLECTION:
· Clinton Presidential Records
Counsel's Office
Bill Mai:shall .
.
ONBox Number: · 20350
CLINTON UBR./\R\' PHOTOCOPY
FOLDER TITLE:
· Guam - Commonwealth Act 1996 [2]
Jamie Metrailer
2006-0193-F
'm587
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)J.
PI National Security Classified Information l(a)(I) of the PRAJ
P2 Relating to the appointment to Federal office l(a)(2) of the PRAI
P3 Release would violate a Federal statute l(a)(3) of the PRAJ
, P4 Release would disclose. trade secrets or confidential commercial or
financial information l(a)(4) of the PRAJ
PS Release would disclose confidential advice between the President
. and his advisors, or between such advisors ja)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAJ
C. Closed in accordance with restrictions contained in donor's deed
of'girt.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- IS U.S.C. 552(b)J
b(l)
b(2)
·
b(3)
b(4)
b(6)
b(7)
b(8)
b(9)
National security classified information l(b)(l) of the FOIAJ
Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAJ
Release would violate a Federal statute ((b)(3) of the FOIA]
Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAJ
Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIAJ
Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIA]
Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAJ
�'
'
CLII~TON
LIBRARY PHOTOCOPY
I . :-- . .
rrlllll"lll.ol .111,11\t·
Office of Legal CL?ull~cl
Ofri,·~
••flhc
Oc:p:Jl.\ ..~.!'>!'11~1":1: ~llt,rll~~ General
July 28. 1994
.ME.\fORA."NDUM FOR
THE SPECIAL REPRESTh'"TATIVE ..
FOR Gt;.~\1 CO:Ml\10NWEALm
Roseborough~
From: Teresa Wynn
Deputy Assistant Attorney General
Re:
Mutual Consent Provisions in
The Guam· Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., lst Sess. (1993) contains
two sections requiring the mutual consent of the Govertunent of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws, rules. and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam in~ist that these two sections are crucial for the autonomy and economy of Guam. 1l1c
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in legislation governing the relationship between the federal government and nonstate areas. i.e. areas under the sovereignty of the United States that are not States, 1 have
' Territories char have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective govem~r. resent being called Territories and claim that thar
!~gal term and its implications are not applicable to them. We therefore shall refer to all Territories and
. Commonwealths as non-sute areas under the sovereignty of the United SUtes or briefly as non-state areas.
�CLINTON UBRil.RY PHOTOCOPY
not heen consistenl. Wr;: tllerdore have carefully reexamined rhis issue. (Jur cunclus1on
rhat these clauses raise serious constili.Jtional issues and are legally unenforceahle.'
,
1
In our vieV.. it is imponanr that the text of the Guam Commonwealth Act not create
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation. We must therefore oppose the inclusion in the
Commonwealth Act of any provisions. such as mutual consent clauses. that are legally
unenforceable. unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations
All teiTitory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and· of a state government These
basic ~onsiderations were set out in the leading case of National Bank· v. County of Yankton, ·
101 U.S. 129, 132-33 (1880). There the Court held:
:To our knowledge th_e first consideration of the validity of mutual consent clauses occurred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that they go beyond the constitutional power of Congress. In 1963 the Department of Justice opined tbat
such clauses were legally effective because Congress could create vested rights in the status of a territory that
could not be revoked unilaterally. The Department adhered to
position in 1973 in connection with then
pending Micronesians status negotiations in a .memorandum approved by then Assistant Attorney General
Rehnquist. On the basis of this advice. a mutual consent Clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent clauses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Pu;..rto Rico Status. Referendum Bill in light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapment. 477 U.S. 41. SS (1986), and concluded that there could
not be ari enforceable vested right in a political status: hence that mutual consent clauses were ineffective
because they would not bind a subsequent Congress. We took the same position in the Second Guam Task
Force Report issued during the last days of the Bush Administration in January 1993.
this
1
Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constieution. Section 14 of
the Northwest Ordinance contained six "articles of compact, between the original States and the people and
States in the said territory. and [shall] forever remain unalterable. unless by common consent. • These artic.les
were incorporated either expressly or by reference into many early territorial organic acts. Clinton v.
· Englebrecht. 80 U.S. (13 Wall.) 434. 442 (1872). The copious litigation under these "unalterable articles"
focussed largely on the question whether the territories· obligations under them were superseded by the
Constitution. or when the territory became a State. as the result of the equal footing doctrine. We have,
however. not found any cases dealing with the question whether the Congress had the power to modify any duty
imposed on tbe United States by those articles.
- 2 -
�CLINTON LIBR.~RY PHOTOCOPY
It is cenainly now too late 10 doubt the power of Congress to _eovem
the Tt!rrirories. There! have been some differences of opinion as to the
particular clause of the Constitution from which the power is derived. but that
it exists has always been conceded.J
"' * "'
AU territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Territory takes the place of a constitution as the fundamental law of the "local
government. It is obligatory on and binds the temtorial authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self-
J Some derived that power from the authority of the United States to acquire territory, others from the men:fact of sovereignty. others from the Territory Clause of the Constitution of the United States (Art. IV. Sec: 3.
Cl. 2) pursuant to which Congress bas "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". See~ American Insurance Co. , ..
Canter, 26 U.S. (I Pet.) 5 II. 542 (1828): Mormon Church v. United States, 136 U.S. I, 42-44·(1890):
Downes v. Bidwell. 182 U.S. 244, 290 ( 1901) ..
At present. the Territory Clause of the Constitution is generally considered to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
(1945): Examining Board v. Flores de Otero, 426 U.S. 571,586 (1976); Harris v. Rosario, 446 U.S. 651
(1980): ~also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992),, cert. denied sub !!QID. Philippine
Goods, Inc. v. Wabol. _ _ U.S._. 113 S.Ct. 675 ( 199:!). (Footnote supplied.)
-3 -
�em111ent. 111ay result necessarily trom the !acts. that 11 1\ not witil111 tile
jurisdiction of any particular state. and is within the power and jurisdiction of
the United States.
~(,,
*
M
*
"ln legislating for them [the Territories], Congress exercises the combined
powers of the general, and of a state government.,
Id. at 542-43. 546.
The power of Congress to govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1.
196 ( 1824), with respect to the Commerce Power:
This power [the Comm.erce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. ~ u., Hodel v. Vir~inia
Surface Minin~ and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-'state areas persists "so long .as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the
intennedia.ry period between the establishment of the Commonwealth of the Philippine
Islands and the ftnal withdrawal of United States sovereignty from those islands "Congress
retains plenary· power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. 1t tenninates when the area loses that status either by vinue of its
admission as a State, or by the tennination of the sovereignty of the United States over the
area by the grant of independence. or by its surrender to the sovereignty of another country.
- 4 -
CLINTON LIBR~RY PHOTOCOPV
�II.
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas fuU powers of selfgovernment and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation. however, must be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434. ~I
(1872): Pueno Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requifement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise, alter. or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Shaamack, 355
U.S. 286,296 (1958), Harris v. Boreham,·233.F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of.
Congress to delegate governmental powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
~ Thompson dealt with the District of Columbia's government which is provided for by Art. I. Sec. 8. Cl.
17 of the Constitution. rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Cs>Urt. however. held that in this area the rules relating to the Congressional power
to govern the District of Columbia and the non-state areas are identical. lndeed. the Court relied on cases
dealing with non-state areas. u .. Hornbuckle v. Toombs; 85 U.S. (18 Wall.) 648. 655 (1874), and
Christianson v. King County, 239 U.S. 36.5 (1915), where it held that Congress can delegate its legislative
authority under Art. I. Sec. 8. Cl. 17 of the Constitution to the District, subject to the power of Congress at any
time to revise. alter. or revoke that authority.
~ Congress has exercised this power with respect to the District of Columbia. The Act of February 21.
1871. 16 Stat. 419 gave the District of Columbia virtual territorial slatus, with a a governor appointed by the
President, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20. 1874. 18 Stat. 116. which abrogated among others the provisions
for the legislative assembly and a delegate in Congress. and.established a government by a Commission
appointed by the President.
-5CLINTON UBR./\RY PHOTOCOPY
�authoritv Hl enact keistation under the Territorv Clause that would limit rhc.: unlet!L-red
..,
.
.
exercise of its powa lO amend or repeal.
'
'-
The same result flows from the consideration that all non-state areas are subject to rhe
authority of Congress. which. as shown above, is plenary. This basic rule does not permit
the creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and terminates only when the area becomes a State or ceases to be under United
States sovereignty. There is no intennediary status as far as the Congressional power is
concerned.
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
ill.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general .
rule that one Congress cannot bind a subsequent Congress. exccmt where it
. creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen pennanently and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey, 431 U.S. I, 45.(1977), a case involving the Impairment ofthe Obligation of
~ontracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
One of th~ fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
rhose same rascals might perpetuate their policies simply by locking them into
binding contracts.
·
-6-
CLINTON LIBR~R\' PHOTOCOPY
�Nllllethek~s.
the ·tlla\itn that one CPII~re\\ L'illlntlt hind fu!lm.: Congn:s'" lil\c nen
legal nile. has its limits. As early as I cIU. Chid Justice Marshall explained in Fletcher·,.
Peck. JOU.S. (o.Cranch) R7. 135 (lclOl:
The principle assened is that one legislature is competent to repeal any
act which a fanner legislature was competent to pass: and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness of this principle. so far as respects general legislation.
can never be contravened. But. if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most· absolute
power. Conveyances have been made. those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. l) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with priv~te
rights, except for legitimate govenunental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from depriving persons or corporations of property without due
process of law. They cannot legislate back to themselves, without making
compensation. the lands they have given this corporation to aid in the
construction of its railroad. Neither can they by legislation compel the ·
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The.United States are as much bound by their contracts as are
individuals. (emphasis supplied.)
See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 (1986).
CLINTON LIBRARY PHOTOCOPY
-7-
�IV
The Due Process Clause does not Preclude Congress fro111
Amending or Repealing the two Mutual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequent Congress from repealing fegislation for the governance of non-state
. areas enacted by an earlier Congress under the Territory Clause. This question must be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of life, liberty, or property without due
process of Ia w. (emphasis suppljed.)
This Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive
the non-state area of a property right within the meaning of the Fifth Amendment.
A.
A nori-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person w.ithin the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), cert. denied, 493 U.S. 991
( 1989) ("The State of Alabama is not included among the entities protected by the due
process clause of the flfth amendment"); and State of Oklahoma v. Federal Energy
Regulatory Comm., 494 F.Supp. 636. 661 (W.D. Okl. 1980), affd, 661 F.2d 832 (lOth Cir.
1981), cert. denied, sub. nom. Texas v. Federal Energy Regulatory Comm., 457 U.S. 1105
(1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts. are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. Comity Water Improvement District v. IBWC/US, 701 F.
Supp. 121, l23-24(W.D. Tex 1988).
The non-state areas, concededly. are not States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are. however, governmental bodies. and
-8- .
CLINTON LIBR~RY PHOTOCOPY
�tilt: ratlunak of Slllllh Cawlin~l '. Katzenh;ICIL J~J L'.S. at 301. appear~ It' he tllat '>IlLII
bodies are not protected hy til~ Due Process Claus~ or the Fifth Amendment. J\·1ureo\'er. I!·,\
well established that the political subdi,;isions of a State are not considered persons prntecteJ
as against the State by the pmvisions of the Founeenth Amendment. See.~· Newarh ,..
New Jersey. 262 U.S. 192. l9b (1923): Williams v. Mayor of Baltimore. 289 U.S. 36. 4U
(I Q33 ): South Macomb Disposal Authority v. Township of Washington. 790 F. 2d 500. 505.
507 (6th Cir. J9g6J and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated.
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States ...
More recently. the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and since· the
political subdivisions of States ~ not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating to the governance of. non-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend .or repeal earli~r legislation
if such repeal or amendment would violate the Due Process Clause ·Of the Fifth Amendment.
i.e., if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a .
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act. would not create property rights within the meaning of that Clause.
Legislation concerning the governance of a non-state area, whether called organic act.
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subs~uent legislation. A non-state area does not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent. it has occurred
in connection with the District of Columbia. See District of Columbia v. Thompson Co.,
346 U.S. 100, 104-05. (1953): supra n.6. Hence, in the absence of a mutual consent clause.
-9-
CLINTON LIBR~RY PHOTOCOPY
I
�k_!2islation cunceming the
hy subsc:quent kgislation.
~tl\ cmmerll
t'l
a nun-sure an.:a i-. \trbject IP ;unl.'rldrncnl Pr rcrcal
Thi~
leads t<? the question whethc:r the addition of a murual consent clau~e. i.e. of a
provision that the legislation shall not he modified or repealed without the consent of the
Government of the United States and the Government of the non-state area. ha~ the effect of
creating in ·the non-state areas a specific status amounting to a property right within the
meaning of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because (1) sovereign governmental powers cannot be contracted away. and
(1) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
1. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898) ..
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10, Cl. I) of the Constitution that "the Contract Clause does·
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. I, 23 (1977).~ In a similar
context Mr. Justice Holmes stated:
One whose rights. such as they are; are subject to state restriction.
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the Ianer. or that federaJ
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purpon to surrender essential powers of the federal government. They are
Cases arising under the Contract Clause holding that a State cannot contract away a sover~ign power are
also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp. v. R.A. Grav Co., 467 U.S. 717. 733 (1984): National Railroad Passenger Corp. v.
A.T. &S.F. R .. _470 U.S. 451.472-73 n:25 (1985). Hence. when state legislation does nor violate the
Contract Clause. analogous federal legislation is all the more permissibl~ under the Due Process Clause of the
Fifth Amendment.
7
• Cited v.-ith approval with respect to federal legislation in Norman v. B. & O.R .. 2Q4 L.S. 240. 308
( JQ15).
- I0 -
CLINTON LIBRARY PHOTOCOPY
j
�tilcr~(llrL· llll! hindin~ on tilt· lltlited Stalt'' and t';tllJlllt t'lllllcr ;t prupcr1\ illlt'lc~t prlllt'ttcd "'
tilt:'
Fifth
Am~ndment.''
r..Iore generally. the Supreme Coun held in Bowen '. Agenctes Opposed to Snc. Sec.
Entrapment. 477 U.S. 41. 55 (1986). that the contractual property rights protected by the
Due Process Clause of the Fifth Amendment are the traditional private contractual rights.
such as those ~rising from bonds or insurance contracts. bur not arrangements tltat ar~ ran of
a regulatory program such as a State's privilege to withdraw its participation in the Social
St!curity system· with respect to its employees. Specifically. the! Coun stated:
Btlt the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "property" within the meaning of the
Fifth Amendment. The tennination proyision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 418 itself. The provision. constituted neither a debt of the
United States. see ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see Lynch v. United States, supra. The termination clause
was not unique to this Agreement; nor was it a term over which the State had
any bargaining i>ower or for which the State provided independent
'
consideration. Rather, the ·provision simply was part of a regulatory program
over which Con.gress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Governmem of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional
private contracts: they are elements of a regulatory system.
In the past the Depanment of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
• Cases such as Lvnch v. Lnited States. 292 t.:.S. 571 (1934). and Perrv v. l:nited States. :!94 L:.S. 330
(1935 l. are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance:
Pt!rrv: Government bonds) In Lynch the Court held that Congress could not amend the contract merely to save
money "unless. ind~ the action falls within the federal. police police power or some other paramount power.·
292 l!.S. at 579. Perrv involved bonds issued by the United States under the authority of Art. I. Sec. 8, C'l. 2
of the Constitution. to borrow money on the crt!dit of the united States. The Court held that Congress did not
havt! the power to destroy the credit of the lJ nited States or to render it illusory by unilaterally abrogating on~
of the pivotal tenns of the bonds to save money. While tht! Court held that the United States had broken the:
agrt!ement. it nevertheless held that plaintiff could not recover because. as the result of regulations validly issued
by .the Unitt!d States. he had not suffered any monetary damages.
'Cf.
n.:.
- II -
CLINTON UBRCI.R\' PHOTOCOPV
�'1ev. ut tile rul111p ol tile Suprclllc CPun tllat le~tslallon concerning the govemance ot a nonstate area is necessarily subject to Congress1onal amendment and repeal: that govemmc:ntal
. bodies are not persons within the meaning of the Due Process Clause: that governmental
powers cannot be contracted away. and espec1ally the exposition in the recent Bowen case.
that the property rights protected hy the Due Process Clause are those arising from private
lav.· or commercial contra.cts and not those arising from governmental relations. 1 '
Sections l 03 and 202 therefore do not create vested property rights protected by the
Due Process Clause of the Fifth Amendment. 12 Congress th,us retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shaU apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such·
provisions. therefore. in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. 13
Finally, the Depanment of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act so as .to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
" It is significant that the circumstances in which Congress can effectively agree not. to repeal or amend
legislation were discussed in the context of commercial contracts. Bowen, 477 U.S. at 52.
:: Bowen. it is true. dealt with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
consent of the Government of Guam. The underlying agreement.;. however. are not of a private contractual
nature. and. hence, are not property within the ineaning of the Due Process Clause. We cannot per-Ceive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
'~ The conclusion that Section 202 of the Guam Commonwealth Act (inapplicability of future federal
legislation to Guam without the c·onsent of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 202. In Currin v. Wallace, 306 U.S. I. 15-16 (1939). and United
St.ates v. Rock Royal Co-op. 307 U.S. 533. 577-78 (1939). the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco farmers or milk producers affected by them.
The Court held that this approval was a legitimate condition for making the legislation applicable. Similarly, il
could be argued that .the approval of federal legislation by the Government of Guam is .a legitimate condition for
making that legislation applicable to Guam. Since, as stated above. a future Congress would not be bound by
Section 202. we need no! decide the question whether the requirement of approval by the Government of Guam
for every future federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
- 12 -
CLINTm.J LIBR!l.RY PHOTOCOPY
�CLINTON LIBR{I.R\' PHOTOCOPY
August 26, 1994.
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION I.N THE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to review the July 28, 1994
memorandum initialed by Deputy Assistp.nt Attorney General
Roseborough and addressed to the Special Representative for Guam
Conunonwealth (hereinafter the ''Memorandu.'ll").
That Memorandum
purports to reverse a thirty-year Justice Department policy
supporting the constitutionality and enforceability of mutual
consent cl~uses in legislation providing for internal ~elf
government in the territories. 1
According to the Memorandum,
mutual cons~nt clauses are unenforceable bec~use (1) rulings of
the Supreme Court require that the "governance of a non-state
The Department of Justice expressly has approved and
gone on record supporting Congressional passage of mutual consent
clauses in at least two U.S. statutes implementing political
status agreements with one u.s. territor¥, and the·Freely
Associated States, and apparently continues to support the
constitutionality and enforceability of these provisions.
Memorandum at 12 {"Finally, the Department has indicated that.it
would honor past commitments with respect to the mutual consent
issue"). But an Act of Congress either is constitutional and
enforceable or it is not.
If the Department of· Justice means
what it has·stated in the Memorandum, this will haveprofound
legal and political implications with respect to the state of law
and governmental relations for· the insular jurisdic):ions to which
the existing f~eral mutual consent statutes apply,.as well as
one new.insular jurisdiction for which yet another mutual consent
law is to take·effect within a matter of weeks.
Appendix A is a
description of the legal and political nature of the existing
mutual consent.precedents and some of the possible effects if the
Department of Justice does·not reconsider the views recommended
in the Memorandum of July 28.
�area is necessarily subject to Congressional amendment and
repeal"; (2) "governmental bodies are not persons within the
meaning of the Due Process Clause"; ·and ( 3) "governmental powers
cannot be contracted away" relying on the recent decision in
Bowen v. Public Agencies Opposed to Social Sec. 477 U.S. 41.
(1986) (popularly referred to as the "POSSE" decision) supposedly
because the Court held that the only "property rights protected
by the Due Process Clause are those arising from private law or
commercial contracts and not those arising from government
relations".
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guam Commonwealth legislation can be justified
relying on the POSSE decision or any other decision discussed in
the Memorandum. 2
The Memorandum is misleading and disturbingly
)
inaccurate.
It quotes parts of judicial decisions out of
context, relies on decisions which have nothing whatsoever to do
.with whether Congress has the power to bind itself when ent~ring
into a political status arrangement with a territory,
misstates
holdings in cases cited, mistakes dicta for holdings in others
2
Interestingly while the.Memorandum' asserts that its
position must change as a~result of 1 POSSE, the next most recent
decision relied upon is United States Trust Co. v. New Jersey,·
431 U.S. 1, decided in 1977. Virtually all of the other key
cases were decided in the.· 19th Century and early 20th Century,
none of which would justify the change.
If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
justification exists for the changed position.
-2CLINTON UBR4.R\' PHOTOCOPY
�and relies upon a web of circular reasoning which quite simply
does not justify the Department's changed position.
Perhaps_o~
most concern is that the Memorandum reaches an
absolute conclusion concerning Congress' authority to enter into
a binding mutual consent arrangement with a territory, even.
though this question has never been put directly before the
Supreme Court or any other court.
This is all the more
disturbing because the only court which has ever even approached
the question apparently
assurn~d
itself, notwithstanding its
Clause.
F.3d 749,
See,
754
~,
plenary power under the Territorial
u.s: Ex Rel. Richards v. De Leon Guerrero, 4
(9th Cir. 1993).
in the Memorandum. 3
that Congress could indeed bind
This case is not even mentioned
More importantly, both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Cbngress can limit the ability of future Congresses to change
laws which grant vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
POSSE, .477 U.S. at
5·2; Merri6n v. Jicarilla Apache Tribe, 455 u.s. 130, 148 (1982);
3
Our standards for legal advocacy properly allow
attorneys to present the facts and law in the light most
favorable to ;he proposition being espoused.
Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the argumel)ts put forward
are accurate and fairly reflect existing law, even if asserting a
nonfrivolous proposition that the law should change.
In our view
the Memorandum was not prepared in a manner consistent standards
of advo~~cy required in~roposing such ari important change irl
policy, and it should not have been presented for approval by·
departmental management·as an official position without further
deliberation between all concerned agencies and even comment by
the insular areas affected.
-3-
CLINTON LIBR.~RY PHOTOCOPV
�Transohio Savings Bank v. Director, Office of Thrift Supervision
.
.
967 F.2d 598, 621 (D.C. Cir. 1992) ("Transohio").
I
Incredibly,
this "unmistakable terms" doctrine (which served as the basis for
the holding in POSSE) is also not addressed.
A section-by-section analysis of. the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
precedent exists for the proposed change in policy.
the contents of this analysis:
To summarize
(1) none of the cases cited for
the proposition that Congress must retain the right to alter,
amend or repeal territorial legislation dealt with the question
placed before the 'Department by the mutual consent proposal; (2)
the issue of the Commonwealth of Guam not being a person for
purposes of the Due Process Clause is a red herring because the
proposal being discussed by Guam and the Administration
contemplates an agreement between the Congress and the pe6ple of
Guam based in part on the Commonwealth Of The Northern Mariana
Islands and Freely Associated States political status precedents;
and (3) the holding in the POSSE decision provides utterly no
support for the proposition set forth in the Memorandum.
Perhaps no part of the Memorandum is as disturbing as is the
analysis of the Supreme Court's decision in POSSE which is put
forward as requiring the Department's change of its thirty-year
position on the conititutionality and enforceability of mutual
consent clauses.
The Memorandum cfaims the change is required
because the Supreme Court held in POSSE "that the (only)
contractual property rights protected by the Due Process tlause
-4-
CLINTON LIBR.~R\' PHOTOCOPY
�of the Fifth Amendment are the traditional private contractual
rights, such as those arising from bonds or insurance contracts,
but not arrangements that are part of a regulatory program .. ·.. "
Memorandum at 11.
The POSSE decision, however,
did not turn on the subject
matter of the Contract. in question, and the Court's reference to
the bond and insurance cases had no direct bearing on the Court's
holding.
Those cases were cited in POSSE for the limited
purpose of contrasting contracts where Congress clearly evidenced
its intent to bind itself from the facts in the POSSE case where
"Congress expressly reserved to itself '(t)he right to alter,
amend, or repeal any provision of' the Act which authorized the·
contracts at issue.
477 U.S. at 42.
The Court relied upon this
contrast because its holding in POSSE was that the Congress could
amend the legislation in question, even if that amendment.
interfered with contractual rights,
because ·it had not
unmistakably indicated i t.s intent to bind itself -- the standard
the Court has established for determining whether Congress has
imposed limits on the exercise of its sovereign powers.
The actual holding in POSSE
--that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly
Transohio~
~nalyzed
by the D.C. Court of Appeals in
. The Transohio decision demonstrates conclusively that
the Memorandum's analysis of the .Jholding in POSSE is so
fundamentally wrong that one wonders how it could be relied upon
by the nation's
Departm~nt
of Justice to justify a proposed
-5CLINTON LIBRARY PHOTOCOPY
�reversal in such an important area of Administration policy.
In
that decision, the D.C. Circuit makes clear that "[t]he Supreme
Court reached .[its] conclusion by analyzing the governing
statute, the Social Security Act" and fbcused on the fact
critical to its decision -- "(t]he Social Security Act contained
an express reservation of Congress' power to amend the law ... ",
967 F.2d at 621; not by establishing the per se "private rights"
test asserted in the Memorandum.
According to the D.C. Circuit
,.)
The "principles form(ing] the backdrop" of
the Supreme Court's analysis of the Social
Security Act. in POSSE were tho~e comprising
the unrnistakability doctrine--the doctrine
that "'sovereign power; even when
.
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.
Id. at 622 (emphasis added).
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The 'unrnistakability' doctrine is a special
rule of contract interpretation that applies
to contracts with the government.
The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
c:ase concerning the government, s taxin'g
power, may enter binding contracts when it
finds "a consideration sufficiently v·aluable
to induce a partial release" of i t~s sovereign
powers.
Id. at ·618.
Both the POSSE and Transohio cases dealt with the
-6-
CLINTON LIBRI.\R\' PHOTOCOPY
�application of the "unmistakable t'erms" test to a determination
6f whether tongress has limited its right to exercise its
regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on "traditional private contractual rights"
which the Memorandum would have us·believe is the standard.
If
it were the test, .the Supreme Court and D.C. Court of Appeals
could easily have disposed of the. contracts in POSSE and
Transohio
by adopting the test advocat~d in the MemorandUm with
a simple finding that alleged contractual rights associated with
the regulatory programs at issue in the cases are not traditional
private
con~ractual
rights.
They did not, of course, because the
Supreme Court applies the "unmistakable terms" test· which
requires an analysis of Congress' intent, not the per
See,~'
proposed in the Memorandum.
se standard
477 U.S. at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can limit the exercise of its regulatory authority if it makes
clear its intent to do so.
4
Instead of dealing accurately with
'
The import of the POSSE decision has been recognized
even by its· critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrender of Sovereignty" analyzed the POSSE decision in
greatdetail.
It concluded that "(t]he PS'wer to waive
.
soveteignty was recognized" in POSSE.
92. Col. L. Rev . .426, 451.
It goes on "[i]n POSSE, the Court relied entirely on Merrion v.
Jicarilla Apache Tribe for the proposition that the federal
government can surrender sovereign power. Jicarilla in turn
relied upon cases involving primarily the taxation p6wers of
state governments ... Instead of endorsing the rule applying to
-7-
CLINTON UBRf.l.RY PHOTOCOPY
�the Court's actual analysis, the Memorandum at page 11 relies
upon a quote, claimed to. set forth the holding 1 which is taken
completely out of context and has nothing whatsoever to do with
the holding.
The quote,
t~ken
from 477 U.S. 55, fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the_relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress having stated in unequivocal _terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
477
u.s.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
of its power to prdvide for the general
welfare.
Under these circumstances, we
conclude that the termination provision ...
did not rise to the level of "property." The
provision simply_cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
at 55
(emphasis added).
the police powe~s -- such powers cannot be surrender~d -- it
adopted the rule applying to taxation powers --'such·powers can
only be surrendered if done so unmistakably.
This m9ve should
not be followed'automatically:
if the Court wants to enforce
contracts that surrender the federal ,government's regulatory
authority, it should do so o.n the· basis of policy arguments 1 not
on the basis of POSSE."
Id. at 460.
-8CLINTON UBR'\RY PHOTOCOf'V
�Congress Can Utilize Its Plenary Authority to Limit Its Future
Power -- The Greater Includes the Lesser.
In part, the Memorandum goes astray in its interpretation of
Congress' plenary authority overthe territories.
the Memorandum,
According to
Congress' plenary authority is infinite in time
·or at least until one of three things happen: (1) Guam becomes a
State~
(2) Guam achieves independence; or (3) the United States
transfers its sovereignty over Guam to another country.
Memorandum at 4.
Thus, the Memorandum seems to suggeSt that-Congress is
estopped from exercising its authority with respect to Guam if
that exercise of authority. results in some form of meaning.ful
consent to the form of government under which the Guamanian
But Congress is not the prisoner of its plenary
people live.
authority over the territories -- it is the master.
The fact
that Congress has plenary authority does not mean that Congress
cannot exercise this authority to limit its tights in.the fUture
in the context of a political status change.
Pletiary authority
means that Congress can take whatever action it decides is in the
best interest of the U.S. and the territories, including a
decision that it can limit its own exercise of future authority,
if its inte.ntions are stated in unmistakable terms.
To assert
otherwise stands the meaning of plenary on its head.
Plenary
means full power.
I
It does not mean full power, except·when
I
Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
-9CLINTON LIBR.~RY PHOTOCOPY
�regulations.
The broad power of Congress under the territorial
clause is grounded in the need for the federal government to be
able to govern and/or dispose of terri tory which is n-ot part of a
state.
In this context,
~t
is clear that if Congress has the
power to dispose of a territory in its- entirety, it also_ has the
power to dispose of some of its control by exercising its power
to make all needful rules and regulations.
It is an elementary
principle of statutory interpretation that the "greater includes
the less".
See, Late Corp. of
the Church of Jesus Christ·of
Later-Day Saints v. Romney, 136
u.s.
1, 45 (1889).
The issue of Congress being able to restrict its authority
over territory of the United States has been long decided.
While
at first blush it may seem counter-intuitive, Congressional
authority over the people of the territories and their political
rights emanates from Congress' authority
brought within Congress'
contro~
over Guam as property
by the Territorial_Clause.
In
Edward v. Carter, the Court clarified Congress' power under the
property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court_ was holding that Congress' al).thority
under Article IV §3 cl. · 2 embraces any
disposition of property of the United States
chosen by~Congress.
580 F.2d 1055, 1061 n. 18 (i978)
(citations omitted) (emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39
u.s.
526 (1840) where the Court considered Congress' power to impact a
lease of federal lands thr6ugh legislation.
The_ Court's approach
-10-
CLINTON LIBR'\RY PHOTOCOPY
�to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie within
territory of the United States are, therefore, its property.
Second, it recites the Territorial Clause and concludes that
'
the term territory refers is a descriptive word referring to one
kind of property.
Third, the Court concludes that "Congress has the same power
over [the mine] as over any other property belonging to the
United States; and this power is vested in Congress without
limit~tion;
·and has been considered the fo~ndation upon which the
territorial governments rest". Id. at 537.
Fourth, the Court then references Gases involving Congress'
authority over the
territorie~,
including Florida, including the
right of Congress "to make all needful rules and regulations
respecting the territory or property of the United States". lQ.
at 538.
Finally, the Court concludes "[i]f such are the . powers of
Congress over the lands belonging to the Un.i ted States, the words
'dispose of,' cannot receive the construction contended for at
the bar; that they vest in c;ongress the power only'to sell, and
.
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater intludes the lesser.
The Court reached its
decision building on COngress' authority over the territories.
If Congress has the power to dispose of territories or to make
-11-
CLINTON UBRi.\P.Y PHOTOCOPY
�all needful rules and regulations; it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
The Result of the Department's Opinion is to Leaves the People of
Guam with a Hobson's Choice-- Remain.in a Perpetual State of
Colonialism or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policy implications for United States
security interests in Guam and the Pacific Region, not to mention
the United States' moral leadership on the issue of granting
democracy to non-self-governing people around the world.
The
Memorandum begins by defining Guam as a "non-state area, a catchy
pseudonym for what Guam really is -- a territory, and U.S.
c!
citizen population, which the U.N. officially classifies as not
yet having been decolonized, and which has no realistic prospect
of achieving statehood -- the traditional path by which U.S.
territories ceased being colonies and
be~ame
self-governing in
our constitutional system.
Fortunately, the· Territorial Clause gives Congress the.
.
constitutional power to address this problem .
In the Insular
Cases the Supreme Court recognized that Congress must have
flexibility to adapt
fede~al
law and policy for island
.
'
territories which remain "unincor~orated" for an extended period
of time, and which remain subject·to federal power without being
integrated into the system of constitutional federalism
-~
-12-
CLINTO~J LIBR~R\' PHOTOCOPY
�leaving the U.S. citizens concerned without equal legal and
political rights when compared to citizens resident in the
states.
The moral imperative of ending Guamis neo-colonial_
status is fundamental to the Administration's decision to pursue
a mutual consent provision.
Mutual consent brings to the people
of Guam democracy by giving them a direct role in their own
internal self-government.which would not otherwise be
available. 5
By rejecting absolutely any possib{lity that the
Supreme Court may uphold a mutual consent clause in_ a political
status arrangement, the Department of Justice is pUtting
thi~
Administration in the unte,nable position of saying to the u.s.
citizens of Guam that they cannot have meaningful self-government·
within the framework of the U.S. Constitution.
We do not think
this is a position which this Administration ought to be taking,
especially when the Supreme Court has not spoken directly to the
The American-citizen residents of·Guarn do not have the
same rights to participate in the representative democracy
enjoyed by the citizens of the several States. Without voting
representatibn in Congress or a vote in national elections, there
is no means by whicn they meaningfully can consent to the laws
and form of· government under which they live. This colonial
status was awkward even in its first ·fifty years,-·hut has become
intolerable since the U.N. Charter was adopted and the era of
decolonization began. Guam is not seeking decolonization outside
the U.S. system, and it would b~ perverse to suggest that
decolonization is not available· to u.s. citizens within the U.S.
political system. Thus, the. question facing the Administration
~s whether a nation founded on the principle of consent of the
gov~rned can adapt its law and policy to end denial of this basic
right and establish an appropriate alternative means of consent
for loyal citizens in the territories.
-13.CLINTON UBR.\R.Y PHOTOCOP'I
�question and the most that can be said about the precedent is
that arguments.exist on both sides of the question.
The effect of the Department's changed position is to leave
the people in a perpetual state of colonialism or force
independence.
the~
into
The Clinton Administration has been the first to
state with candor and honesty on the record what all those who
have dealt with Guam have known for years -- Statehood is not an
option for Guam.
It is simply too small and remote.
given Guam's strategic importance to
th~
Similarly,
United States, it is
inconceivable that sovereignty would be voluntarily transferred
to another sovereign power, nor do we believe that the people of
Guam would accept it.
The
clear implication of the
position, therefore, is that the American citizen
Department'~
residents of
Guam, if they desire to possess a truly democratic government,
will have no choice but to seek independence from the United
States.
The notion that independence is the only political status
outcome through which the injustice of Guam's colonial past can
be remedied is not only counter to the robu.st common sense with
which Americans have implemented their Constitution, it is a
dangerous,
fat~listic
and cold-hearted idea that will have a
chilling effect on the spirits of the Guaman~an ·.people.
Leaving independence as the only alternative also raises
seriods national ~ecu~ity policy que~tions~
Policy coordination
for.Guam Commonwealth negotiations is exercised by the National
Security Council because Guam is an important military and
-14CLINTON UBR.'.\RY PHOTOCOPY
�strategic location for the United States.
A
decision has been
made by the White House that an agreement .should be reached with
the people of Guam which achieves two fundamental goals.
First,
the people of Guam should be permitted to achieve meaningful
internal self-government free from unnecessary interference.
Second, United States long-term security interests must be
protected.
Offering the people of Guam the opportunity to
achieve meaningful-participation in a
d~mocracy
only by forcing
them to seek independence is inconsistent with the sec.ond of
these goals.
We do not believe that this Hobson's Choice ought
to be forced upon the United States or people of Guam based on
,
conclusions of anyone other than the Supreme Court.
This is a policy issue which is best left to the courts, if
a challenge ever arises.
In this regard, the Department's
cohcern that no one should be misled concerning the certain
viability of a mutual consent provision is consistent with our
position.
We have consistently taken the position in the
negotiations that no one can be sure how the issue will be
decided.
The best we can do is to meet the requirements the.
Supreme Court has set out as being necessary for Congress to bind
itself (a statement in "unmistakable terms") and state
forthrightly in the political education process that we cannot be
sure of the outcome until the Supreme Court has acted.
It is
· wel.i established, however, that when the~ intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
See,
Chevronc U.S.A. v. NRDC, 467
v.s .
.:..1s- ·
CliNTON LIBR.~R\' PHOTOCOPY
�837, 842-43 (1984).
It is equally clear that the courts
great deference to Congress
Clause authori_ty.
wh~n
giv~
it is exercising its Territorial
See, Wabol v. Villacrusis, 958 F.2d at 460,
citing Torres v. Puerto Rico, 442 U.S.465, 460-70.
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.
Attachments
-16-
CLINTON UBR/-\RY PHOTOCOPY
�APPENDIX A
U.S. Practice With Respect to Mutual Consent Arrangements for
Insular Areas Not Incorporated into the.U.S. Constitutional
Process for Democratic Self-Government But In Which the U.S.
Retains and Exercises Sovereignty and/or Sigriificant Powers of
Gove'rnment:
BACKGROUND:
Under a succession of treaties with other nations and
international organizations including the U.N., in this century
the u.s. has acquired and exercised actual sove~eignty and/or the
full powers and jurisdiction.of government over insular areas
(islands) which have not been incorporated as territories or
states to which the U.S. Constitution applies in full . . Thus,
these areas are not fully self-governing and have no power to
give consent to U.S. laws made applicable to them.
As each. of these territories has moved toward greater selfgovernment the u.s. has agreed to various political, legal and
budgetary measures which accommodate U.S. i~terests in retaining
certain powers of government, .while at the same time redeeming in
some greater degree the principle th~t free people must be
enabled to give some meaningful form of consent to the laws and
form of government under which they -live.
In the case of u.s. territories over which the u.s. exercises
full sovereignty, but which have not been incorporated fully into
the system of federalism, measures aimed at enhanced selfgovernment have attempted to address the fact that the U.S.
citizens concerned do not have voting representation in Congress,
enfranchisement in national elections or ~eneral legal or
political equality with their fellow citizens in the states.
For example, in the case of the Commonwealth of the Northern
Mariana Islands (CNMI), as discussed below, the Executive Branch
of the federal government and Congress entered a "Covenant," or
agreement with the people of the terri tory,. under which the U.S.
exercises sovereignty, ·but which defines a political relationship
the central.elements of which are not subject to modification
without mutual consent of t~e people of the territory and the
federal government.
·
.
This mutual consent arrangement constitutes a substitute set of
political. rights intended to give the people of the CNMI a
greater measure of democratic self-government by granting them a
political power of consent to federal law not granted to U.S.
citizens in the states, who instead are able to give their
consent to federal law through representation in Congress and
voting in national elections. This type of mutual consent
CLINTON UBR/\RY PHOTOCOPY
�arrangement has been promulgated by Congress pursuant to the
Territorial Clause of the Constitution (Article IV, Section 3,
Clause 2), which empowers Congress to_provide for areas not yet
fully within the ·constitutional system but subject to .U.S.
federal law and sovereign powers~
For insular areas over which the U.S. exercised powers of
government· but not sovereignty under agreements with the U.N.~
the federal government promulgated mutual consent provisions
through a combined statutory and treaty-making process.
Under.
these arrangements the U.S. retains.plenary.authority over broad
areas of government power in the concerned insular areas, i.e.,
full defense authority, while the separate citizenship,
sovereignty and national independence of those insular-areas have
been recognfzed. This arrangement is known as "free
association."
The compact agreements est~blishing the free associ~tion
relationships between the u.s. and certain insular areas have
been a·pproved by the U.S. Congress in the form of joint
resolutions-pa~sed by both houses and si~ned by the President.
Like the CNMI covenant and the proposed Guam Commonwealth Act,
the U.S. federal statute approving the free association compact
was intended to create a unique and mutually agreed political
status for insular areas not incorporated into the u.s., but with
special close political, legal-and security ties to this nation.
The fact that Guam and the CNMI are unincorporated territories,
while the freely associated states under the compacts are
sovereign, does not change the legal or constitutional analysis.
These acts of Congress which bind the federal government and
limit the exercise of constitutional powers either are
constitutional and enforceable or they are not.
There is no valid constitutional distinction between the. mutual
consent provisions in the free associatidn compact and the CNMI
covenant or proposed Guam Commonwealth Act simply because the
power of Congress which is being limited involves foreign policy
and national defense powers arising from Article I or Article II
of the Constitution, or if the subject matter gi~es rise to
Article IV territorial powers.
·
,.. ·
The general concept that Congress can alter, amehd 6r:iepeal the
laws of purel~ domestic application has its parallel with respect
to laws and treaties which create obligations between.t~e U.S.
and other.nations.
Spec).fically, an element of sovereignty ip
the power to abrogate treaties, and in the U.S. constj,.tut.i,.onal
system the President and Congress have the power to make trea~ies
and terminate treaties. ·Goldwater v. Carter, 617 F. 2d 6 9 7 (D.C.
Cir. 1979).
As discussed below, in addition to formal
renll:nciation of a treaty by. the President, Congress .can terminate
or prevent performance of treaties requiring appropriations
·
simply decline to appropriate funding to meet international
obligations.
This has the effect of superseding the prior act
CLI!~TON LIBR~R\' PHOTOCOPV;
�of the Congress ratifying the treaty.
Thus, the question before us is whether Congress can limit its
power to amend, alter or repeal a prior act so that conunitments
intended to be binding are set aside, and that question is
·
relevant to any act of Congress which purports to make ~uch
binding commitments, including the statute making the free
association compacts U.S. law.
We believe the test under POSSE for answering that question turns
on whether Congress makes its intent t,o do so unmistakably clear.
If the position set fo+th in DOJ Memorandum stands and the
Department of Justice reverses prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisions in the CNMI covenant, the free associa~ion compacts
and the proposed Guam Commonwealth Act are unenforceable and
unconstitutional, then the effect of that could reach far beyond
the Guam mutual consent proposal.
ror example, the mutual consent provisions relating to the
political and legal relationships created by th~ free association
compacts are linked to Unprecedented multi-year fundingauthorizations that bind successive Congresses to enact
appropriate laws providing funding for specified grants to the
governments of the free associated insular areas.
Theseprovisions are enforceable in the federal courts, and give the
free associated state governments concerned access to domestic
u.s. legal remedies that foreign governments do not nave under
conventional U.S. laws and treaties.
To illustrate the point, as a general rule if Congress refuses to
fund U.S. performance of a treaty, it is extremely unlikely that
without an explicit statutory basis. for jurisdiction the federal
courts would be inclined to reach beyond the political question
doctrine and interfere in the foreign policy domain of the
political branches by entertaining an action by a foreign
government seeking a court order to compel .payment of funding for
u.s. obligations under a treaty abrogated by the President or
Congress. Yet, under the free association compacts, that is
exactly what Congress has explicitly authorized and directed the
federal courts to do. See, Section 236, P.L. 99~239, discussed
below.
,,
Similarly, in Section 10l(d)(2)(B) of P.C. 99-239, the statute
approving the compacts, Congress· required that arnendrn.ents to th,e
compact and certain related agreeme~ts made pursuant to the
.
~ applicabie mutual consent provisions would require congressional
approval. Thus, Congress by statute_explicitly agreed to the
mutual consent provisions in the agreements identified in Section
10l(d){2){B) and established a rol~ for Congress in the procedure
for U.S: consent-to an amendment.
Thus, just·as the mutual consent.provisions of the CNMI agreement
limi.t the exercise of Article IV territorial clause powers by
CLII~TON
UBR/\RY PHOTOCOPY
�Congre~s, the mutual consent and related funding provisions of
the free association compacts limit the exercise of Article I and
Article II foreign policy and defense powers by the President and
Congress. These unprecedented arrangements are intended to
enable the u.s. to sustain its authority over areas in which it
has significant national interests, but in which the people do
not enjoy the full rights and benefits of incorporation into the
U.S. federal political and legal system.
To understand the gravity of the problems that will be created if
the Department of Justice persists in what we believe is a·
misinterpretation of the POSSE decision, it is important t6
examine the existing mutual consent precedents very closely.
EXISTING MUTUAL CONSENT PRECEDENTS:
The first of the existing mutual consent precedents is found at
Section 105 in the Covenant to Establish the Commonwealth of the
Northern Mariana Islands, u.s. Public Law 94-241, 90 Stat. 263
(1976), reprinted at 48 u.s.c. 1681, note.
The additional
important insular area mutual consent precedents are given the
force and effect of U.S. law pursuant to the agreements referred
to in Section 101(d)(2)(B) of the u.s~ statute approving the
Compact of Free Association between the u.s., the Republic of the
Marshall Islands (~I) and the Federated States of Micronesia
(FSM); U.S. Ppblic Law 99-239, 99 Stat. 1770, 48 U.S.C. 1681,
note. The CNMI, FSM and RMI mutual consent provisions became
effective under Presidential Pioclamation No. 5564 of October 3,
1986, Federal Register Vol. 51, Number 216, November 7, 1986.
As already stated, the RMI and FSM compacts also bind successive
Congresses through a pledge of the full faith and,credit of the
U.S. for economic assistance grants which are central elemen·ts of
the political relationship defined in the compact as an agreement
between the u.s. and the peoples of the RMI and FSM exercising
their sovereignty by approving the agree~ent in a plebiscite.
See, Preamble and Section 236, Compact of Free Association, P.L.
99-239.
These multi-year funding obligations are not "subject to
appropriation by Congress," the typical treaty formulation, but
are enforceable in the U.S. courts, which are expressly granted
jurisdiction to enforce the payment obligations ·,in the ~ompact.
Thus, Cong~ess has restricted its ability to alter, amend or
repeal those ~tatutory obligation~ of its own making.
THE CASE OF PALAU:
A fourth mutual consent precedent is scheduled to enter·into
force an· October 1, 1994 under the terms of a Compact of Free
Association between the U.S. and Palau.
CLINTON LIBR~RY PHOTOCOPY
�_The Palau compact implementation agreement is terminable .
unilaterally by Palau or the U.S., but once the Compact enters
into force, under Section 453(a) of U.S. Public Law 99-6~8, 100
Stat. 3700, 48 U.S.C. 1681, note, the Palau compact mutual
consent provision and all the related rights and obligations
under the agreement will· be binding upon both Palau.and the
United States.
If the DOJ Memorandum of July 28 is applied tothe Palauan compact mutual consent provision there may be reasons
not to go forward with implementation.
The U.S. currently is under no legal obligation to implement the
Palau Compact, and even though the Palauans have approyed the
Compact the government of. that insular area has no rights under
the agreement until it enters into force by mutual agre~ment, and
Palau has no right to an arrang~m~nt with the U.S. which is
enforceable or unconstitutional ~- even if that arrangement
achieves important U.S. goals such as granting Palau selfgovernment and ending the U.N. trusteeship under which the u.s.
has the ultimate powers of.governrnent in Palau.
Thus, implementing the Compact for Palau is not a case of
honoring a previous commitment on mutual consent, but of creating
a new one. If mutual ~onsent clauses binding Congress are
unenforceable and unconstitutional, the U.S. should unilaterally.
terminate the implementation agreement as provided for in Article
I I, Section 4 of that agreemen-t, and seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
It would be bad faith to implement the Pala·u Compact knowing that
a key provision is unenforceable and unconstitutional under U.S.
law. Under the Vienna Convention on the Law of Treaties, to do
so could give rise to international legal issues affecting
enforceability of the compact. For the DOJ Memorandum of July 28
puts Palau on notice that the mutual consent agreement contained
in Section 453(a) is viewed by the u.s. legal authorities as_
unenforceable.
·
·Yet, the Section 453(a) mutual consent arrangement with Palau-which gives the U.S. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity ~- is the single
most significant provision which justified to Congress the huge
economic grants cont~ined in the funding sections of the Palau
compact.
As in the case of the FSM and RMI, those funding
grants are b~cked by the full faith- and credit of the U.S. and
enforceable in the federal courts.
I
.
If the Palau compact takes effect and,the mutual consent
provision in Section 453(a) is unenforceable,· it would appear
that the massive U.S. funding obligations .under Title Two of the
compact for Palau would survive under the terms of Section
452(a), even if the U.S. followed the procedure under Section 442
to terminate the free association relationship due to loss-of the
defense rights which w~re to extend beyond the initial period of
CLINTON LIBRARY PHOTOCOPY
�the compact.
Perpetual strategic denial is what .the U.S. would be able to
retain under continuation of the U.N. trusteeship, and so
strategic denial that lasts beyond the agreed period of free
association under the compact is what Congress demanded in order
to justify over $450 million in grants to a community of 14,000. ·
If the Department of Justice wants the Administration to give
away what Congress approved in P.L. 99-658 just to win a debate
over mutual consent for Guam, shouldn't Congress be informed?
Thul5, the decision of the Department of Justice to ch.:mge its
position on mutual consent does not impact on Guam alone.
The
most immediate impact may be on Palau. Of course, the Department
of Justice .may not have the authority or·ability simply to choose
to honor what must be viewed under its theory as an
unconstitutional and inchoate mutual consent commitment between
the U.S. and Palau.
Indeed, the notion that individuals in the
federal government have that degree of discretion in fundamental
matters such as this itself raises constitutional issues.
But, again, even if the Department of Justice is as generous with
respect to honoring a mutual consent commitment to Palau as it
appears ready to be, a question may arise as to whether the u.s.
will be able to enforce its rights or meet its obligations under
the Palau mutual consent provision.
On the face of things
Section 453(a) and the related provisions of Section 311 seem to
be a benefit to the u~s. which it simply can enjoy by deciding to
honor it.
That view may be folly.
If the same litigious parties in the
u.s. or Palau who have mounted legal challenges to the military
provisions of the compact tirelessly for the last fifteen years
establish jurisdiciion to challenge the v~lidity of the Section
453(a) mutual consent provision in our own courts, and prevail
with the aid of the DOJ Memorandum, it appears that U.S.
taxpayers co~ld end up paying Palau for defense ~uthority tied to
a mutual consent provision in Section 453(a} rendered null and
void.
Having been.~eized \fith what Palau.and the U.S. prudentially must
view preswnpti vely as a serious substant.i ve legal·· iijfirnii ty in a
provision that is fundamental to the purpose of the agreement
prior to its entry into. force, will the parties be able to rely
upon and enforce the reciprocal and interdependent rights and
oblig~tions set forth in the agreement?
Ifi not, are the U.S.
funding obligations linked to the defense ~uthority and mutual
conseJ?,t provisions severable so that the U,S. wouldbe able to
extricate itself from the full faith and credit payment
requirements if the defense rights proved unenforceable?
The answer to both those questions arguably would be in the
negative.
C!Jl~TON LIBRARY PHOTOCOPY
�We raise these issues not because we believe that the Palau
mutual consent provisions are either ~nenforceable or
unconstitutional.
Rather, we use them to show the basic problem
inherent in the Justice Department's approach. When the CNMI
covenant and the compacts were negotiated, Justice supported .the.
mutual consent clauses. Nothing has changed since then~
Only
the POSSE case has caused a rethinking of this support and POSSE
merely explains the test that must be employed to determine
whether Congress bound itself validly to a limitation on the
exercise of its power.
It diQ. not·. establish a per se rule to
the contrary.
To avoid the perverse result that could come about by applying
the position set forth in the Memorandum to Palau's mutual
consent compact, the DOJ Memorandum of July 28 should be
withdrawn immediately.
That would allow the Palau compact to be
implemented and enable the parties to the Guam commonwealth
negotiations can move forward with the process of defining an
acceptable mutual consent relationship as endorsed by Secretary
Babbitt during his trip to Guam.
CLII~TON UBR~R\' PHOTOCOPY
�APPENDIX B
SECTION-BY-SECTION ANALYSIS OF THE
MEMORANDUM FOR THE SPECIAL REPRESENTATIVE
. FOR GUAM COMMONWEALTH DATED JULY 28, 1994
RE: MUTUAL CONSENT PROVISIONS IN THE
GUAM COMMO~TH LEGISLATION
FROM THE DEPUTY ASSISTANT ATTORNEY GENERAL
Introductory Paragraphs - pp 1-2.
)
The Department's Memorandum correctly recognizes that the
inclusion of mutual consent clauses in the Commonwealth
.legislation is crucial to the people of Guam, referencing as the·
reasons autonomy and economics.
While economic development is
clearly a consideration, the reference to autonomy is misleading.
It is true Guam seeks control over its internal affairs.
autonomy is less the goal than democracy.
resid~nts
But
The American-citizen
of Guam do not have the same rights to participate in
the representative democracy enjoyed by the citizens of the
several States.
If the citizens of the Guam maintain their
residence there, they elect voting members of neither the House
nor the Senate, nor can they vote in presidential elections.
They are effectively excluded
fro~
the most fundamental aspect of
our democratic system-- the right of u.s. citizens to give some
form of meaningful consent to the laws and form of government
under which they live.
The circumstances of the people of Guam today are the direct
consequence of almost·lOO years of American rule, a period during
09/15/94, 11 :59am
20029980
CLII•HON LI8RJ},RY PHOTOCOPY
�which the U.S. has exercised sovereignty over Guam without
con~titutional
incorporating it into the U.S. system of
federalism.
No level of economic development can sustain
perpetual second-class citizenship.
A process must be created
which will lead to resolution of Guam's status as a non-selfgoverning area under the U;N. Charter.
Until Guam is decolonized
it will be a living contradiction of U.S. moral opposition to
colonialism.
Thus, the fundamental question which the people of Guam and,
indeed, which this Administration must ask today is similar to
that question asked by the leaders of the American revolution
can a nation, founded on the principle that government
.;:~.cts
only
with the consent of its people continue to deny basic rights of
self-government to some of its citizens solely because they live
in a territory? 1
The DOJ Memorandum recognizes that for the past thirty
years, the Department
ha~
supported the constitutionality and
enforceability of mutual consent clauses.
2
Appendix A
In footnote .1, the· Memorandum chooses to. define Guam as a
"non-state.area", a catchy pseudonym for what Guam really is
a
colony of the United States. This is why people in the
territories object to their territorial status. As a territory
they are_precluded from the democratic system. The Guam
Commission on Self-Determination, however, does not claim that
the legal implications of being a territory do not apply to them.
It is because they recognize that being a territory leaves them
out of the democratic process that they seek mutual consent.
2
Unfortunately, the Department has refused to provide us
with any of the.prior opinions supporting mutual consent clauses.
09/15/94, 11:59am
20029980
CLINTON LIBR~RY PHOTOCOPY
�I
I
accompanying this document reviews the legal and political nature
of relevant prior mutual consent precedents, as well as the
pending entry ipto force of another mutual consent arrangement.
We do not understand how the mutual consent provisions in these
other acts of Congress will be "honored" by the Department while
a similar provision proposed for Guam is unenforceable.
Memorandum at 12.
See Appendix A.
Neither the relevant provisions of the Constitution ndr
applicable cases support different standards for the kind of
mutual consent arrangements involved in these insular political
status relationships.
~ongress
Nor can .it be argued that an Act of
in connection with the CNMI covenant or Compacts of Free
Association is any different or more binding on
Act adopting the Guam Commonwealth would be.
Co~gress
than an
An Act of Congress
(
is either constitutional and enforceable or it is not. If the
Department intends to ·support ihe
~utual
consent provisions in
these other Acts and does not intend to interfere with
implemeritation of the Palau Compact, it must apply the same
policy to Guam.
v~ew,
To quote the Memorandum at p . .2 -- "[i)n our
it is important that the text of the ... Act not create any
illusory expectati?ns that might to (sic) mislead the
electorat-e ... about the consequences of the legislation".
In the end, note 2 makes
cl~ar
that the foundation for the
proposed change in position on mutual consent clauses is the
Supreme Court's decision in Bowen v. Agencies Opposed to Soc.
_,
09/15194, 11:59am
20029980
3
- CLINTON UBRAR!' PHOTOCOPY
�Sec. Entrapment, 477 U.S. 41 (1986)
"POSSE").
referred to as
(popu~arly
As discussed in great detail infra, POSSE does not bar
Congress from limiting its right to exercise sbvereign power by
entering into a binding c6ntract, nor does it establish a per se
test that Congress can only bind itself when entering into
contracts dealing with traditional private rights.
In fact,
POSSE dealt with the exercise of a regulatory right, and turned,
not on the nature of the contractual tight at issue, but on a
determination of whether Congress had expressed an intention to
bind itself in "unmistakable terms".
The. following section-by-section analysis demonstrates that
none of the cases cited in the Memorandum leads to a. certain
conclusion that the Supreme Court would restrict Congress'
ability to enter into a political status arrangement with Guam
based on mutual consent.
Section I~ - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty of the United States is-Plenary with
Constitutional Limitations -- pp· 2-4.
The DOJ Memorandum would lead us to believe that the Supreme
Court has already decided that Congress cannot· limit its exercise
'
.
of authority over the territories because its authority is
plenary.
plenary
In this regard, the Memorandum seems to argue that this
author~ty
is infinite and must remain unencumbered in
perpetuity-- or at least until the U.S. alters. Guam's status ..
09/15/94, II :59 am
20029980
4
CLINTON
LIBR.'~RY
PHOTOCOPY
�Memorandum at 4.
Thus, the Memorandum argues tha.t ·Congress actually is
estopped from exercising its authority with respect to Guam if
that exercise of authority results. in some form of meaningful
consent to the form or£ government under which the Guamanian
people live.
But Congress is the master, not
plenary authority over the·territories.
th~
prisoner of its
If Congress has plenary
authority, it follows that Congress can exercise this authority
to limit the types of measures it will take pursuant.to that
authority if that is in the best interests of the U.S. and the
territory.
its head.
To assert otherwise stands the meaning of plenary on
·Plenary means full power.
It does not mean full
power, except when Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
regulations.
If Congress has the power to dispose of a territory
in its entirety, it also has the power to dispose of some of its
control by exercising its power to make
regulations.
~11
needful rules and
It is an elementary principle of statutory
interpretation that the "greater includes the less:·.
Church
v. U.S, 136 U.S. 1, 45 (1889). 3
See, Morman
Similarly, in Collins
3
While a distinction obviously exists between the
Government's rights to'abrogate property rights and the issue of
.its authority to exercise political power in the territories, the
Supreme Court·'s frequent statements that the Government can bind
itself do not appear to be limited to commercial~type contracts.
The Court has, for instance, upheld limitations on federal
political .powers in areas ceded to the federal government by the
09n5/94, I 1:59am
20029980
5
CLINTON liBR'~RY PHOTOCOPY
�v. Yosemite Park & Curry Co., 304 u.s. 518 (1938), the Court
upheld an agreement between California and the Federal Government
which reserved certain rights to California when it ceded
Yosemite Park.
The Court concluded that the Federal Government
and the states could enter into
agreem~nts
concerning
jurisdiction over property within their borders, and the courts
should "recognize and respect" the agreements.
30.'
304 U.S. at 527-
For instance, the Supreme Court has approved of the
Government's right to lease mineral rights.
Gratiot, 39 U.S.
See United States v.
(14 Pet.) 526, 536 (1840)("it lies in the
. discretion of Congress, acting in
th~
public interest to
determine how much o'f the property it shall dispose.").
Ashwander v. T.V.A., 297
b.s.
In
288 (1936), the Court approv~d a
contract for the sale of electricity, rejecting an argument that
the Government lacked constitutional authority to dispose
partially of its property by contract and relying on Congress'
states pursuant to the Territorial Clause.
In Fort Leavenworth
R.R. v. Lowe, 114 U.S. 525 (1885), the Court upheld an agreement
between the Federal Government and Kansas dividing taxing
authority.
The Court stated:
.
Thougb the jurisdiction and authority of the general
government are essentially different from those of a
State, they are not those of a different country; and
the two, the State and the.general government, may deal
with each other in any way they may deem best to carry
out the purposes of the Constitution.
Fort Leavenworth, 114 U.S. at 541.
09/15/94, I 1:59am
20029980
6
. CUNTON LIBR(\R\' PHOTOCOPY
�authority under the Territorial Clause.
l.Q, at 330-36.
5
None of the cases cited in the Memorandi.un are to the
contrary.
Each of them sets forth the general proposition that
in regard to the territories, the Congress is supreme.
earli~r
the
In part,
cases were required to make this point because the
Territorial.Clause was included to make clear that it was the
Federal Government and not the States that would exercise control
over the Territories.
See, ~, A. Leibowitz, Defining Statute
(1989) at 10-11; See also, District 6f Coluinbia v. Thompson Co.,
346 U.S. 100, 109 (1953).
But, none of the cases cited in this
5
The Congress also has authority to dispose of property
under the Territorial. Clause.
This power includes both the
absolute right to dispose of property in its entirety or to
dispose .of part of the governments rights in property:.
Of course, a significant differerice may exist between the
disposition of property and the disposition of sovereign
authority.
Nevertheless, the conclusion that Congress can
partially dispose of matters over which it has the power of
total disposition has considerable logical appeal.
If.
Congress could totally dispose of its power over the
Philippines by granting them independence, it seems logical
that it could also partially dispose of its powers by
granting them som~thing le~s than ciom~lete independence.
Whether Congress could later chang~ its mind as to the
partial disposition is not clear, but some kinds of
dispositions are by nature final.
For example, if Congress
. disposes of its powers over territory by admitting it as a
state, that would seem a final disposition of its
territorial pdwers; Congress cannot change,later the status
of a ·state. Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial power
over them for all time.
·
Inventive Statesmanship vs. The Territorial Clause: The
Constitutionality of Agreements Limiting Territorial Powers, 60
Va. L. Rev. 10 41, 10 6 0-61 ( 19 7 4 ) .
09/15/94, 11:59am
20029980
7
CLIN_TON LIBRARY PHOTOCOPY
�section address directly the question of whether Congress could
exercise its plenary authority by restricting its ability to act
in the future.
The Memorandum bases its assertions about Congress' plenary
authority on Gibbons v. Ogden, 22 U.S.
(9 Wheat) 1 (1824).
That
case, of course, is the seminal decision establishing Congress'
power under the Commerce Clause.
It has nothing whatsoever to do
with the Congress' Territorial Clause authority.· It is
apparently cited to establish the proposition that in some
express areas Congress' power "acknowledges no limitations, other
than are prescribed ·in the Constitution".
We think it should be
obvious that the Department's proposed changed opinion on
consent is entirely inconsistent with this principle.
mutu~l
Rather
than recognizing the scope of Congress' powers, the Department is
claiming that a limitation exists on Congress' power -- that
Congress is imprisoned by its plenary power a·nd cannot exercise
it to limit itself.
In fact, several of the other cases cited in
the Memorandum to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County of Yankton, 101 U.S. 129 (1880).
The Memorandum utilizes
a quote to·establish that Congress is supreme in the territories.
But this quote has nothing whatsoever to do wiih whether Congress
can act to limit its authority.
Unfortunately, what has been
left out from the quote are the next two sentences which bear
09/15194, 11:59am
20029980
8
CLINTON LIBR.tJ.RY PHOTOCOPY
�directly on the issue
pr~sented
by the
mut~al
consent
clau~e
and
the anaf_ysis the Supreme Court adopted iri.POSSE whether Congress
has limited its right to exercise sovereign power.
The Court
apparently addressing the issue that Congress had not expressly
reserved the right to amend acts of a territory stated:
In the organic act of Dakota there was not an
express reservation of power in Congress to
amend the acts of the territorial
legislature, nor was it necessary.
Such
power -is an incident of sovereignty, and
continues until granted away.
101 U.S. at 133 ' (emphasis added).
.
Clearly, the implication of this decision is that while Congress
has full power it has the right to grant it away. 6
While the next case cited,.'Hodel v. Virginia Surface Mining
and Reclamation Assoc., 452 u.s. 264, 276 (1981), like Gibbons v.
Ogden, does not deal with the Territorial Clause, it_does
describe accurately the standard the Court applies when
determining whether Congress has acted within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine·whether a particular exercis.e of
congressional power is valid under the
6
Similarly, American Insurance Co. v. Canter, 26 U.S. 511
(1828) and·oownes v. Bidwell, 182 U.S. 244 (1901), cited in the
memorandum to establish the extent of Congress' power, do not
address the issue of whether Congress can act to limit its
authority.
09/15194. 11:59am
20029980
9
CLINTON LIBR/l.R\' PHOTOCOPY
�Commerce Clause is relatively narrow.
The
court .must defer to a congressional
finding ... if there is any rational basis for
such a finding ... This ·established, the only
remaining question for judicial inquiry is
whether "the means chosen by (Congress) must
be reasonably adapted to the end permitted by
the Constitution." ... The judicial task is at
an end once the court determines that
Congres~ acted rationally in adopti~g a
particular regulatory scheme.
452 U.S. at 276 (emphasis added).
This test recognizes the great deference the Court gives to
.an exercise of power by Congress.
If Congress were to conclude
that a mutual consent clause is within its power and that such a
clause is necessary to achieve Congress' purpose of granting
greater self-government to Guam, can anyone say with certainty
that the Court will not believe that a sufficient rational basis
exists.
If it does, not even the Memorandum asserts that
.anything in.the Constitution specifically bars a mutual consent
clause.
It is well established that when the intent of Congress with
resp~ct
to the precise questibn at issue is clear, the courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
It is equally clear that the courts give
'
great deference. to Congress when it exercises its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The incorporation analysis thus must be
undertaken with an eye toward preserving Congress' ability to
09/15/94. !1:59am
20029980
!0
CLINTON UBR.~R\' PHOTQ_COPY
�accommodate the unique social and cultural conditions.and values
of the particular territory.
More over, we must be cautious in
restricting Congress' power in this atea."), citing Torres v.
Puerto Rico, 442·U.S.465, 460-70 (emphasis added).
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.·
None of the rest of the cases cited for the proposition that
Congress' power continues indefinitely address the question of
whether Congress can limit its p.bility to act in regard to the
territories without their consent.
Shively v. Bowlby, 152 U.S.
1
(1894) can be cited only for the proposition that _it is the
Federal Government and not the states which exercises control
over the territory of the United States.
It did not address in
any way whether the Congress can limit its authority to act over
this territory.
Similarly, Hooven & Allison Co. vl Evatt., 324
U.S. 652 (1945),
can be cited only for the self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers would not be exercised during the transition'
was not addressed.
Congressional authority over the people of the territories
and their political rights is derived from Congress' authority
09!15/94, !1:59am
20029980
11
CLINTON LIBRI\R\' PHOTOCOPY
�over Guam as property brought within Congress' control by the
Territorial Clause.
Congres~·
In Edward v. ·carter, the Court clarified
power under the property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978)
(citations omiited)
(emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39 U.S.
526 ( 1840). _where the Court considered Congress' power to impact a
lease of federal lands through legislation.
The Court's approach
to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie with
terri tory of the United st·a tes are, therefore, its property.
Second, i t recites the. Territorial Clause and concludes that the
term territory refers-is a descriptive word referring to one kind
.
.
of property.
Third, the Court concludes that "Congress has the
same power over [the mine] as over any other property belonging
to the United States; and this power is vested in Congress
without li~itation;• and has been considered the 'foundation upon
which the territorial governments rest". Id. at 537.
Fourth, the
Court then references cases involVing Congress' authority over
the territories, including Florida, including the right of
Congress "to make all needful rules and regulations respecting·
09/15194, 11:59am
20029980
12
CUf,ITO~~ UBR.~RY PHOTOCOPY
�the territory or property of the United States". Id. at 538.
Finally, the Court concludes "[i]f such are·the powers of·
Congress
o~er
the lands belonging to the
Unit~d
States, the words
"dispose of," cannot receive the construction contended for at
the bar; that they yest in Congress the power only to sell, and
not to lease such lands" .
The Court's concept
Id'.
~hich
forms the basis of these opinions
is that the greater includes the lesser.
decision
bu~lding
on Congress'
~uthority
The Court reached its
over the territories.
If Congress has the power to dispose of territories or to make
all needful rule~ and regulatibns, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
Section II - "The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp S-6.
·
This section of the Memorandum offers nothing more than a
restatement of the "principle'' asserted in Section I -- that
Congress'. plenary authority does not include the right to limit
.
the exercise 6f this authority iri the future by way 6f a mutual
consent claus~.
'
As with Section I, the cases relied upon in this
section do not deal with the issue of Congress exercising its
plenary authority in this way.
Clinton v. Englebrecht, 80 u.s.
(13 Wall) 434 (1872) does
not establish a rule that any delegations of authority to a
09/15/94. !1:59am
20029980
13
CUNTON LIBR~R\' PHOTOCOPY
�territory "must be 'consistent with the supremacy and supervision
of National authority'" as asserted in the Memorandum .at p. 5.
The case did not address whether Congress could irrevocably limit
its right to alter a law because of a mutual consent clause, nor
did it use the word "must''.
The quote is dicta and deals with
how Congress had approached local government up to that time.
The actual quote is as follows:
The theory upon which the various governments
for portions of the territory of the United
States have been organized, has ever been
that of leaving to the inhabitants all the
powers of self-government consistent with the
supremacy and supervision of National
authority, and with certain fundamental
principles established by Congress.
80
u.s.
at 441 (emphasis added).
This quote
establishe~
nothing more than the historical fact that·
Congress in its approach to self-government for the Territories
had not agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co., 302 U.S. 260 (1937) adds
nothing to the debate.
The Court recites the quote set forth
above from Clinton v. Englebrecht but uses it to affirm a broad
grant of power to territorial legislatures, not to bar Congress
from entering into an agreement not to exercise'its authority.
In fact, the holding in Puerto Rico was to affirm the validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346 U.S. 100 (1963)
09/15!94. !1:59am
20029980
14
CLINTO~J LIBR.'~R\' PHOTOCOPY
�provides even less support for the Memorandum's assertions.
As
with the other cases, the Court was merely referring to the same
preced~nt rega~ding
the general authority of tongress to alter
its legislation relating to a territory, but, here again, this·
discussion was not in the context of an expression by Congress of
an intent tb limit itself.
7
More importantly, the laws in
question contained specific reservations permitting Congress to
make such amendments.
346 U.S. at 195.
What is missing from this section, is a discussion of two
important decisions more closely on point.
The first is Currin
v. Wallace, 396 U.S. 1 (1938) which is mentioned in footnote 13
of the Memorandum but summarily dismissed as being inconsistent
with the Department's new theory that Congress cannot bind
itself.
This is a decision which we
sugge~t
appropriately left to the Supreme Court.
i~
more
Currin is significant
because the Supreme Court approved an Act of Congress
implementation of which required the approval of those affected
by it, the
e~sence
of the Guam mutual consent clause.
The Act,
The memorandum attempts to bolster the Department's
theory that Congress must retain the authority to revise, alter
or revoke any authoFity it grants to the territories by citing
United States v. Sharpnack, 355 U.S. 2B6 (1958); Harris v.
Bareham; 233 F.2d 110 (3rd Cir. 1956); Firemen's Insurance Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 U.S. 648 (1874) and Christi~nson v~ King County, 2.39 U.S. 365
(1915).
The cases cited, similar.to D.C. v. Thompson, 346 u.s.
100 (1953) do not discuss an express intent by Congress to lim~t
the exercise of its authority, rather· the~ are limited to
situations whereby Congress clearly reserved the exercise of its
authority to revise, alter or revoke through enacted legislation.
09115!M, 11:59am
20029980
15
.CL!~JTON UBR~RY PHOTOCOPY
�passed pursuant to the Commerce Clause which the Memorandum
asserts gives Congress the same plenary power as the Territorial
Clause,
was challenged as an u~constitutional. delegation bf
authority.
The Court disagreed finding that rather than a
delegation of legislative authority, the Congress "has merely
placed a·restriction upon its own regulation by withholding its
. operation ... ·unless
two~thirds
bf the [voters) voting favor it.
Similar conditions are frequently found .in police regulations."
306 U.S. at 15.
The Court' went on:
Here it is Congress that exercises its
legislative authority in making the
regulation and in prescribing the conditions
of its application.
The required favorable
vote upon the referendum is one of these
conditions ... "Congressmay feel itself unable·
conveniently to deterrnine·exactly when its
e·xercise of the legislative power should
become effective~ because dependent on future
conditions ... it may leave the determination
of such time to ... a popular vote of the
residents of a district to be effected by the
legislation. While in a sense one may say
that such residents are exercising
legislative power, it is not an exact
statement, because the power has already been
exercised legislatively by the .body vested
with that power ~nder the Constitution, the
condition of its legislation going into
effect being made dependent bi the
legislature on the expression of the voters
of a certain district.".
306 U.S. at 16 (citing Hampton & Co. v. United States, 276
u.s:,
394, 407 (19??).
If the Court agrees Congress has the authority to make
implementation of its legislation subject to ratification by the
affected voters, it is inconceivable that the Court woulq find
09/15/94, !1:59am
20029980
16
·CLINTON LIBR~RY PHOTOCOPY
�that Congress could not agree to limit its ability to change that
same law without the consent of those same voters, if Congress
has expressed its intention unmistakably.
The most troublesome oversight in this section of the
Memorandum, however, is the failure to discuss the Ninth
Circuit's decision in United
Stat~s
v. De Leon Guerrero, 4 F.3d
749 (9th Cir. 1993), cert. denied, ?? U.S. ?? (199?).
De Leon
Guerrero is the only decision of which we are aware that deals
with the applicability of a mutual consent provision in
territorial legislation.
The case arose under the Covenant for
the Commonwealth of the Northern Mariana Islands.
The Covenant
was ratified by an Act of the Congress .. 48 U.S.C. § 1681b.
The
case involved an ongoing debate about whether the c·ommonweal th' s
right of local self-government as defined in the Covenant under
.Section 103 substantially limits Congress' legislative powers
over the Common we a 1 th under Section 1 OS" .,
4 F. 3d at 7 52.
The .
specific issue was whether the audit provisions of the Inspector
General Act of 1978 "conflicts with the ,self-government
provisions of the Covenant". 4 F.-3d at 7 53.
In order to reach the question, the court first had to deel
with arguments put .forward by the Department of Justice which are
identical to those in the Memorandum.
Arguing on behalf of the
Inspector General, the Department asserted that Congress had the
right to pass the Act under the Territorial Clause arguing "that
because the CNMI is governed through Congress' P?wer under the
09/15/94, 11:59am
20029980
17
CLINTON LIBR'WJ.Y PHOTOCOPY
�le~islative
Territorial Clause, Congress has plenary
over the CNMI".
4 F.3d at 754. 8
"unpersuasiVe".
authority
According to the Ninth Circuit
The court found this argument
\
'the authority of the United States towards
the.CNMI arises solely under the Covenant~'
The £ovenant has created a 'unique'
relationship,between the United States and
the CNMI, and its provisions alone define the
boundaries of those relations ... The
applicability of ~he Territorial Clause to
the CNMI,. however, is not dispositive of this
dispute.
Even if the Territorial Clause
pro~ides the constitutional basis for
Congress' legislative authority in the
Conunonwealth, it is solely by the Covenant
that we measure the limits of Congress'
legislative authority.
4 F.3d at 754.
Ultimately, the Ninth Cir~uit approved .application of the
law not because Congress had plenary authority under the
Territorial Clause but because the Covenant specifically gave
Congress the right to enact legislation applicable to the
Commonwealth.
The only limit on this right is a mutual consent
provision stating that a few limited sections of the Conunonwealth
Act could not be modified without the mutual consent of the
8
The court referred to Sinuns v. Sinuns, 175 U.S. 162, 168
(1899) a case which explained that under the Territorial Clause,
Congress "has the entire dominion and sovereignty, national and
local, Federal and state, and has full legislative over all
subjects upon which the legislature of a state might legislate
within the state''. This is the same principle upon which the
Justice Department again relies.
09/15/94, 11:.59am
20029980
18
CLINTON UBR.'\RY PHOTOCOPY
�Commonwealth.
Covenant Section 105. 9
The Court found that this
mutual consent provision as drafted did not bar the Congress from
passing ;Laws affe.cting the Corrunonweal th where the U.S. had· a
sufficiently significant interest to justify .it.
The holdirig in De Leon Guerrero contradicts directly the
conclusion paragraph to this section.
This paragraph reasserts
that the. "non-state areas are subject to the authority of
Congress, which, as .shown above, is plenary ... (and) persists
(until] the area becomes a State or ceases to be under United
States sovereignty".
Memorandum at 6.
Rather, that decision
makes clear that Congress' authority, after a political status
change agreed to between Congress and the people of the
territory, is defined· solely by the terms of that agreement.
Section III -- The Rule that Legislation Delegating Governmental
Powers to a Non-State Area Must Be Subject to Amendment and·
Repeal Is but A Manifestation of the General Rule That One
Congress Cannot Bind A Subsequent Congress, Except Where It
Creates Vested Rights Enforceable Under the Due Process Clause of
the Fifth Amendment -- pp 6-7.
This entire subsection is premised un a
f~llacy.
There is
no rule expressed in any decision of any court that governmental
·powers to a non-s.tate area must be subject to amendme.nt and
repeal.
As described above, the most that can be said is that
there is dicta in a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the mutual consent
provisions which the Memorandum states the Department will
continue to support. Memorandum at 12.
09/15194, !1:59am
20029980
19
CLINTON LIBR'),RY PHOTOCOPY
�whether Congress can bind itself, that Congress' actions in the
territories are subject to later amendment or repeal.
What is
accurate in the section is that these statements are nothing_more
than "a specific application of the maxim that one Congress
cannot bind another .... "
Memorandum at 6.
The analysis does not end h~re, however, because it -is
simply not true that one Congress cannot bind another, as the
Memorandum recognizes but then attempts to explain away.-· As
described above, the most that can be said is that there is dicta
in a series of cases, which do not address the issue of whether
Congress can bind itself.
They stand only for the pr6position
that when express statutory language exists or when language is
not provided and it is clear Congress originally had th~ power,
then in those situations Congress retains its authority and its
actions in the territories may be subject to later amendment or
repeal.
In the end, the section misrepresents as conclusive and
inflexible "the maxim that one Congress cannot bind another."
First, the law must create vested rights as Justice Marshall
explained in Fletcher v. Peck, 19 u.s.
(6 Cranch) 87, 135 (1810)
("When, then, a law is in its nature a contract, when absolute
rights have vested under that contract, a repeal_ of the law
cannot devest (sic) those rights. ") 10
This, too, the Memorandum
Although the Department in itS memorandum focus' on th~
dissenting opinion in U.S. Trust Co. v. New Jersey, 431 u;s. 1
(1977) the actual holding was that impairment of contract by the
State was in violation of- the Contract clause and neither
necessary nor reasonable in ligh-t of the circumstances.
Although
10
09115194, !1:59am
20029980
20
CUi~TON
LIBRt-\RY PHOTOCOPY
�recognizes but goes on to utilize a quote from the· Sinking Furid
~ontractual
Cases as part of its effort to build a case that only
rights of a private natu~e are protected from change.
The analysis provided ·is incomplete.
11
The test actually
established by the Supreme Court to determine whether Congress
has bound itself turns not on the nature of the contract (private
right vs public) but on whether Congress has expressed its
intention to protect the vested right in "unmistakable terms".
The "unmistakable terms" doctrine is not even addressed in the
Memorandum.
Infra at p. 25.
Section IV-- The·Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two Mutual Consent Clauses - p. 8.
The Memorandum presents two ·bases for its conclusion that
the Due Process Clause does not bar a repeal of a mutual consent
the Contract clause applies to States and not the.federal
government, the "United States are as much bound by their
contracts as are individuals." Sinking-Fund Casess, 98 U.S. 700,
719 (1879).
The Court in Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v; United States, 292 U.S. 571, 579 (1934), stated "the Supreme
Court held that ''[r)ights against the United States arising otit
of a contract with it" are property rights protected from
deprevation or impairment by the 5th Amendment." See also Madera
Irr. Dist~ v. Hancock, 985 F.2d 1397, 1401 (9th Cir. 1993).
Moreover the Court,.in U.S. Trust Co. noted that "a statut.e is
itself treated as a contract when the language and circumstances
evince a l~gislative intent to cre~te private rights of a
contractu~! riature enforceable against the State.''
431 U.S. at
17, fn 14 (1977).
11
What is not disclosed about the Sinking Fund Cases is
that the ''statutes in question ex~ressly reserved Congress'
authority to repeal, alter, or amend them, and Congress exercised
that power ... " -POSSE, 477 U.S. ·at 53.
09!15194, 11 :59am
20029980
21
CLINTON UBR'~R.\' PHOTOCOPY
�clause.
First it points out that a territory is not a person
within the meaning of the Due Process Clause.
herring.
This is a red
Secondly, it asserts that a repeal would not deprive a
territory of property within the meaning of the Fifth Amendment.
Thi~ is not the test the Supreme Court has established.
not the nature of the vested right that-controls.
It is
Rather,
the
test involves a combination of a vested right'coupled with an
"unmistakable" commitment by.the Congress not to interfere with
the' right.
Subsection IV, B -- "A Non-State Area Is Not A Person in the
Meaning of the Due Process Clause of the Fifth Amendment." pp.B9.
.
We do not need to debate the merits of the legal arguments
presented in this subsection because this is a non-existent
issue.
The mutual consent clause being discussed between the
President's designated negotiator and representatives of the Guam
Commission on Self-Determination runs between the Government of
the United States and the People of Guam, _not the politicai
entity of the Commonwealth of Guam as the Memorandum assumes.
The People of Guam clearly qualify as persons under the Due
Process Clause.
We have attached the ·current configuration of the proposal
for your review.
The reference to the People of Guam is
appropriate because elsewhere in the Act we intend to require
that after adoption by Congress the People of Guam hold a
09/15194, 11:59am
20029980
22
CLINTON LIBRIJ.R\' PHOTOCOPY
�plebiscite to approve what Congress has enacted before it becomes
applicable to Guam.
In this regard, we also intend to change the
nature of the Guam Commonwealth Act.
Rather than an Act of
Congress approved by ~he people before implementation, it will
become a Covenant between the United States and the people of
Guam.
This Covenant will create vested and binding rights
protecting both the interests of the United States and of the
People of Guam.
Subsection IV, B -- Legislation Relating to the Government of
Non-State Areas Does Not Create Any Rights Or Status Protected By .
the Due Process Clause Against Repeal Or Amendment By Subsequent
Legislation. - pp. 9-12.
While recognizing that the Government may enter into
contracts, the Memorandum asserts that only contracts similar to
those entered ·into by private individuals are enforceable, and
"governmental powers cannot be contracted away", citing North
American Coml. Co. v. United States, 171 U.S. 110, 137 (1898). 12
To bolster its position, the Memorandum ·relies on the POSSE
12
The comment by the Court relied upon by the Memorandum
is dicta.
It came in a case involving Congress' right to alter
the terms of a lease through regulation.
The decision did not
turn on the rule that sovereign regulatory authority could not be
waived.
It turned on the fact that an express reservation of
authority had been included in the contract.
As the Court noted,
this was a lease "expressly subjected from the beginning, to
whatever regulations of the business the United States might
make" .
1 7 1 U . S . at 1 3 7 .
09/15~.
!1:59am
20029980
23
CLif~TON LIBR1.RY PHOTOCOPY
�decision ..13
The POSSE decision, however,
matter of the contract in quest·ion.
did not turn on the subjett
The actual foundation of the
Court's holding was that if Congress was to surrender any of its
sovereign power in a contract, it must do so in "unmistakable
terms".
The "unmistakable terms" analysis would not be necessa-ry
if the Court did not assume that Congress could. indeed surrende'r
sovereign powers, even in the. realm of traditibnal regulatory
authority as was presented in the POSSE case.
This is exactly
the opposite of what the Memorandum asserts.
Indeed, the Court's reference to the bond and insurance
cases had no direct
bear~ng
on the Court's holding.
The cases
were cited for the limited purpose of contrasting circumstances
where Congress clearly evidenced its intent to bind itself from
the facts in the POSSE case where "Congress expressly reserved to.
itself "(t]he right to alter, amend, or repeal any provision of"
13
The Memorandum lacks examples that givesupport to the
Memorandum's theory that Congress does not have the ability to
limit the exercise of its authority under the plenary power of
th~ Territorial Clau~e.
Rather, the cases cited involve
situations whereby the Congress through legislation, or the lack
of legislation, retained its authority.
For example, the
memorandum indicates Hudson Water Co. v. McCarter, 209 U.S. 349
(1908) h~s a much b~oader interpretation than the actual case
decision piovides for.
In fact, Hudson concerns. an action
involving a water rights contract between the State and an
individual where the State did not include provisions limiting
its powers, therefore allowing subsequent legislation by the
State and a resulting ineffective contract.
It is rtot about the
State's incapability to limit its power by contract, rather it's
about the authority of a State to retain its power when not
granted away.
09/15194, 11:59am
20029980
CLINTON LIBRARY PHOTOCOPY
�the Act which lead to the contracts at issue.
The Court relied upon this
~ontrast
becaus~
477 U.S. at 42.
its holdirtg in POSSE
was that the Congress could amend the legislation in question,
even if that amendment interfered with contractual rights,
because it had not unmistakably indicated its intent to bind
itself -- the standard the Court has established for determining
whether Congress has waived its sover'eign power.
The actual holding in POSSE -- that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thrift Supervision,
967 F.2d 598, 621 (D.C. Dir. 1992).
The Transohio decision
demonstrates conclusively that the Memorandum's analysis of t&e
holding in POSSE is so flawed that one wonders how it could be
used to justify a proposed reversal in such an important area.of
Administration policy.
In that decision, the D.C. Circuit makes
clear that "'[t]he Supreme Court reached [its] conclusion by
analyzing the governing statute, the Social Security Act" and
focused on the fact critical to its decision -- "'[t]he Social
Security Act contained an express reservation of Congress' power
to amend the law ...•", 967 F. 2d at 621, not by establishing the
per se "private rights" testasserted in the Memorandum.
According to the D.C. Circuit
The "principles form[ ing] the backdrop·· of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
09/15/94, 11:59 am
20029980
25
CLINTON LIBF!~~~RY PHOTOCOPY·
�that " 'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
tenns.'"
Id. at 622 (emphasis added). 1 ~,
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The "unmistakability" doctrine is a special
rule of contract interpretation that applies
to contracts with the government.
The
· doctrine dates back to the early 19th
century, when Chlef Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts ~hen it
finds "a consideration sufficiently valuable
:to induce a partial release" of its· sovereign
powers.
~?·
at 618.
Both the POSSE and Transohio cases dealt with the
application of the "unmistakable tenns" test to a determination
of whether Congress has limited its right to exercise its
1
~.
If the Court had actually established a per se rule
which depended on the nature of the contract, then why did the
Court continue after stating the unmistakabie terms principle and
the general rule that "contractual arrangement, including those
to which a sovereign itself is party, remain subject to
subsequent legislation by the sovereign" state that "(t]hese,
principies form the• backdrop against we must COT).sider the
District Court's decision effectively to forbid Congress to amend
a provision of the Social Security Act".
477 U.S. at 52.
Byuse of the "must consider" terminology, the Court made clear what
the test is.
It would have been much more direct and ultimately
clearer simply to have ruled that the contract between the Social
Security Administration and the State of California was not a
traditional private contract.
It did not, of course, because
that is not the test the Supreme Court ever applies. The test is
whether Congress has stated its intentions in unmistakable terms.
09/15!94. 11:59am
20029980
26
CLINTON U8R'\RY PHOTOCOPY
�regulatory jurisdiction . . This test has nothing whatsoever to do
with a standard based on "traditional private contractual rights"
which the Memorandum woulq have us believe is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have
Transohio
di~posed
of the contracts in POSSE and
by adopting the "traditional private contractual
rights" test advocated in the Memorandum with a simple finding
that alleged contractual rights associate~ with the regulatory
programs at issue
~n
contractual rights.
the cases are not traditional private
They did not, of course, because the Supreme
Court applies the "unmistakable terms" test which requires an
analysis of Congress' intent, not the per se .standard proposed in
the Memorandum.
See,
~,
477 U.S. at 54.
We find it inconceivable that the Department wouid decide to
reverse a thirty-year old policy·based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can contract away sovereign rights to exercise its regulatory
authority wheri its say~ so unmistakably . 15
Instead of dealing
15
The POSSE decision has even been criticized because it
appears to .open .the door wider than some commentators· believe
· advi.sable; In an article by David Toscano ent.i tled "Forbearance
Agreements: .Invalid Contracts for the' Surrender of Sovereignty
analyzed the POSSE decision in great detail.
It contlud~d that
"(tjhe power to waive sover~ignty was r~cognized" in POSSE.
92
Colum. L. Rev. 426,. 4Sl.
It goes on "[i)n POSSE, the Court
relied entirely on Merrion v. Jicarilla Apache Tribe ~or the
proposition thatthe federal government can surrender sovereign
power.
Jicarilla in turn relied upon cases involving primarily
the taxation·powers of state governments ... Instead of endorsing
09/15/94, !1:59am
20029980
27
CLINT0\\1 LIBR.~RY PHOTOCOPY
�accurately with the Court's actual analysis, the Memorandum gt,
page 11 relies
~pon
a
quot~,
claimed to set forth the holding,
which is taken completely out of context and has nothing
whatsoever to do with the holding.
The
quote~
taken from 477 U.S. 55, fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court foc~sed ~n was the fact that
instead of Congress have stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
After stating that the contract claimed
by the State of California "bears lit,tle resemblance to rights
held to constitute 'property' and citing to the insurance and
bond cases as examples, the Court went on to explain their
relevance.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
the rule. applying to the police powers -- such powers cannot _be
surrendered-- it adopted.the rule applying to taxation powers
such powers can only be surrendered if done so unmistakably.
This move should not be follo~ed automatically: if ih~ Court
wants to enforce contracts that surrender the federal
government's regulatory authority, it should _do so on the basis
of policy arguments, not on the basis of POSSE."
Id. at 460.
Obviously the author did not like the test used by the Court.
Nevertheless his criticism makes clear what the test is.
09/15194. 11:59am
20029980
28
CLINTON LIBRI1.RY PHOTOCOPY
�of its power to.provide for the general
welfare.
Under these circumstances,· we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a stathte containing the
language of reservation.
477
u.s.
at 55· (emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contracting away its right to adopt
legislation, because the "Court has never held that the United
St9-tes cannot surrender regulatory powers th_.r;-ough contract ... "
92 Colum. L. Rev at 458.
But the Court has approved Congress
making effectiveness of its legislation subject to approval by
the voters who are impacted by the legislation, see, Currin- v.
Wallace, 306 U.S. at 15-16.
It defies the rational of the POSSE
decision to argue that the Court would approve Congress adopting
legislation making effected-voters approval a requirement and
then pass subsequent legislation authorizing it to ignore the
vote of approval, if it has stated in unmistakable terms that it
would riot take such action.
After spending.eleven and one-half pages arguing .that mutual.
consent c,lauses ,,az:e unenforceable. and unconstitutional, the
Memorandum comes to an astounding conclusion.
It states that the
"Department of Justice ... would honor past commitments with
respect to the mutual consent issue", including Section 105 of
09/15/94, !1:59am
20029980
29
CLINTON LIBR:~RY PHOTOCOPY
�the Covenant with the Northern Marianas Islands.
Department cannot have it both ways.
B~t
An Act of Congress is
either constitutional and enforceable or it is not.
consent provision
fo~
the
If a mutual
Guam is unenforceable, then the Department
must reach the same conclusion for all other mutual consent
provisions.
This includes the mutual consent provisions in the
Compact of Free Association with
effect on October 1, 1994.
~olid
Pala~·
scheduled to go into
The Department's Memorandum offers no
basis for such a significant reversal in policy.
All of
the cases upon which it relies, except POSSE, were available to
-
i t when its earlier positions supporting mutual consent were
made.
.POSSE does not thange any rule with regard to Congress
binding itself.
It.rnerely lays out clearly a test adopted in
1981 in Merrian v. Jecarilla Apache Tribe, 455
u.s.
130, which in
turn carried forward a principle which the D.C. Circuit states
"dates back to the early 19th century."
967 F.2d at 618.
CLINTON LIBR~R.Y PHOTOCOPY
09/15/94, !1:59am
20029980
30
�Withdrawal/Redaction Sheet
Clinton Library.
DOCUMENT NO.
AND TYPE
· 001. memo
SUBJECTffiTLE
DATE
To Special Representati~e for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions iri the Guam
Commonwealth legislation (12 pages)
RESTRICTION
07/28/1994
P5
002. statement
re: Comments on DOJ memorandum regarding mutual consent
·provision in the Guam Commonwealth legislation (53 pages)
08/26/1994
P5
003. letter
·To I. Michael Heyman from Walter Dellinger. Subject: Proposed
language from Department of Justice on Guam Commonwealth .
legislation (4 pages)
06/29/1994
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
ONBox Number: 24092
13'0LDER TITLE:
[Binder- Guam Commonwealth Issues & Process]
Jamie Metrailer
· 2006-0193-F
'm592
RESTRICTION CODES
Presidential Records Act.- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or ·
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice betWeen the President
·and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ofthe PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(J) Release would violate a Federal statute [(b)(J) of the FOIA)
b(4) :Release would disclose trade secrets or confidential or financial·
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
wou disclose geological or geophysical information
ells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
· PRM. Personal record misfile defined in accordance with 44 U.S.
2201(3).
RR. Document will be reviewed up.on request.
�I . ~- .
(
1rt llll'lll
111
.It •'1 ll , ·.
.Office of Lt:~al Coun~L'I
OfJi,·c .,f rhc
D~p.Jf\
~,~~~1":1: ""fl(lrllC'\
Uc.uend
July 28. 1994
MR"10RA.:"'DUM FOR
mE SPECIAL REPRESENTATIVE
FOR GL"A.\1 COMM:ONWEALTH
Roseborough~
I
From: Teresa Wynn
Deputy Assistant Attorney General
.•
\
Re;
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong .. 1st Sess. (1993) contains
two sections requiring the mutual consent of thecGovernment of the Urtited States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws. rules. and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Repre~entatives of
Guam in~ist that these two sections are crucial for the autonomy and economy of Guam. The
fonner views of this Office on the validity or efficacy of mutual consent requirements
included in legislation governing the relationship between the federal government and nonstate areas. i.e. areas under the sovereignty of the United States that are not States, 1 have
CLINTON LIBRARY PHOTOCOPY .
(
__ _
' Territories that have developed from the stage of a claSsical territory to that of a Commonwealth with a
constitution of their own adoption and an elective governor. resent being called Territories and claim that that
legal term and its implications are not applicable to them. We therefore shall refer to all Territories and
Commonwealths as non-state areas under the sovereignty of the United States or briefly as non-state areas.
�--- -~~--~----
CLINTON LIBR~R\' PHOTOCOPY
/
(
been consistclll.: We tllcrdore have ~arefully reexamined this issue. Our cun,chtsl(lll
that these clauses raise serious constirutional issues and are legally unenforceahle.'
t]()l
1,
In our view. it is imponanr that the text of the Guam Commonwealth Act not create
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislat!on. We must therefore oppose the inclusion in the
. Commonwealth Act of any provisions. such as mutual consent clauses. that are legally
unenforceable. unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations.
All territory under the sovereignty of the United States falls into two groups: the
States and the. areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129, 132-33 (1880). There the Court held:
: To our knowledge the first consideration of the validity of mutual consent clauses occurred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such claUses should .not be opposed on the
ground that they go beyond the constitutional power of Congress. In 1963 the Departmeot of Justice opined that
such clauses were legally effective because Congress could create vested rights in the status of a territory that
c~uld not be revoked unilaterally. The Department adhered to this position in 1973 in connection-with then ·
pending Micronesians status negotiations in a memorandum approved by then Assistant Attorney General
Rehnquist. On the basis of this advice, a mutual consent clause was inserted in Section lOS of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent claUses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill.· The Depanment
revisited this issue in the early 1990's in connection with the Pu;..rto Rico Status Referendum Bill in light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapment. 477 U.S. 41. SS (1986), and concluded that there could
not be an enforceable vested right in a political status: hence that mutual consent clauses were ineffective
because they would not bind a subsequent Congress. .We took the same position in the Second Guam Task
Force Report issued during the last days of the Bush Administration in January 1993.
3
(
··-.
Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordinance contained six "articles of compact, berween the original States and the people and
States in the said territory. and [shall] forever remain unalterable. unless by common consent." These articles
were incorporated either expressly or by reference into many early territorial organic acts. Clinton v.
Englebrecht, 80 U.S. (13 Wall.) 434.442 (1872). The copious litigation under these "unalterable articles"
focussed largely on the question whether the territories' obligations under them were superseded by the
Constitution. or when the territory became a State. as the result of the equal footing doctrine. We have,
however. not found any cases dealing with the question whether the Congress had the power to modify any dut)'
imposed on the United States by those articles.
- 2 -
�CLINTON UBRI\RY PHOTOCOPY
(
Ir i~ cenainly now too late to doubt the power of Conaress to .
!?Ovem
.
the Territories. There· have been some differences of opinion as to the
particular clause of the Constitution from which the power is derived. but that
it exists has always been conceded.~
~
. ..
All territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion 'of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a ~tate does for its municipal organizations. The organic law of a
Territory takes the place of a constitution as the fundamental law of the .local
government. It is obligatory on and binds the territorial authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the peOple of the United States,
except such as ha.ve been expressly or by implication reserved in the
prohibitions of the Constitution.
(
Yankton was anticipated.in Chief Justice Marshall's seminal opinion in American
·Insurance Co. v: Canter, 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to ·
the United States."
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self-
• Some derived that power from the authority of the United States to acquire territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3.
Cl. 2) pursuant to which Congress bas "Power to dispose of and make all needful Rules and Regulations .
respecting the Territory or other Property belonging to the United States" .. See ~ American Insurance Co. '.
Canter, 26 U.S. (I Pet.) 511. 542 (1828): Monnon Church v. United States, 136 U.S. I. 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244, 290 (1901). ·
c~,_.-
At present. the Territory Clause of the Constitution is generally considered to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652; 673-674
( 1945): Examining Board v. Flores de Otero, 426 U.S. 572, 586 (1976); Harris v. Rosario, 446 U.S. 651
(1980): ~also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), cert. denied sub .D.QID. Philippine
Goods. Inc. v. Wabol. __ U.S._. 113 S.Ct. 675 ( 1991). (Footnote supplied.)
-3-
�CLINTON LIBRARY PHOTOCOPY
(
~ll'
t!rnment. may rt!sult necessarily from tile facts. that 1t 1s not. witl11n till'
jurisdicti~n of any panicular state. and is within the power and jurisdiction ot
the United States.
* "' *
"In legislating for them [the Territories], Congress exercises the combined
powers of the general, and of a state· government."
Id. at
54~-·H.
546.
The power of Congress to govern the non-state areas is plenary ·like every other
legislative power of Congress but it is· nevenheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1.
196 (1824), with respect to the Commerce Power:
.
This power [the Commerce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
(
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. ~ y., Hodel v. Vir~inia
Surface Minin~ and Reelamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-state areas persists "so long as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Co. v. Evan, 324 U.S. 652, 675 (1945) (recognizing that during the
intennediary period between the establishment of the Commonwealth of the Philippine
Islands· and the flnal withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It tenninates when the area loses that status either by vinue of its
admission as a State, or by the tennination of the sovereignty of the United States over the
area by the grant of independence. or by its surrender to the sovereignty_ of another country.
-4-
�CtiNTON UBP..AR\' PHOTOCOPY
II.
The Re\'CKahle Nature of Congressional Legislation
Relating to the Government of Non-State Areas
(
While Congress has the power to govern the non-state areas it· need not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas full powers of selfgovernment and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation. however., must be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434. ~1
(1872); Pueno Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requirement that
the delegation of governmental authori~y to the non-state areas _be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise, alter. or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Shawnack, 355
U.S. 286, 296 (1958), Harris v. Bareham, 233 F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of
.Congress to delegate governmental powers to non-state areas thus is contingent on the · retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, ·as shown above, the
retention of the power to amend or repeal. legislation delegating governmental powers to a
non-state area is an integral' element of the delegation power. Congress therefore has no
~ Thompson dealt with the District of Columbia's government which is provided for by Art. I. Sec. 8. Cl.
17 of the Constitution. rather than with the non-state areas as to whom the Congressional power is derived from_
the Territory Clause. The Court. however. held that in this area the rules relating to the Congressional power
to govern the District of Columbia and the non-state areas are identical. Indeed, the Court relied on cases
dealing with non-state areas,~ .. Hornbuckle v. Toombs; 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative
authority under Art. I. Sec. 8. Cl. 17 of the Constitution to the District, subject to the power of Congress at any
·
time to revise, ·alter. or revoke that authority.
• Congress has exercised this power with respect to the District of Columbia. The Act of February 21 ..
1871. 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President, a legislative ~sembly that included an elected house of delegates, and a delegate .in Congress. The
1871 Act was repealed by the Act of June 20. 1874, 18 Stat. 116. which abrogated among others the provisions
for the legislative assembly and a delegate in Congress, and established a government by a Commission
appointed by the President.
-5 -
�.
CLINTON LIBRt:~,RY PHOTOCOPY
(
authoritv to enact k2islation under tht! Tt!rritnrv Clause that would limn tht:
t:xercise of its power to amend or repeal.
~
unt~:tt~.:red
The same resu It flows from the consideration that all non-state areas are subject to tht!
authority of Congress. which. as shown above, is plenary. This basic rule does not pennit
tht! creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and temtin~tes only when the area becomes a State or ceases to be under United
States sovereignty. There is no intennediary status as far as the Congressional power is
concerned.
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
m.
(
The rule that legislation delegatine governmental powers to a non-state area
must be subject to amendment and re.peal is but a manifestation of the general
rule that one Coneress cannot bind a subseQuent Congress. exc<a>t where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
· relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would .be frozen permanently and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey. 431 U.S. 1, 45 (1977), case involving the Impainnent of the Obligation of
Contracts Clause of the Constitution (An. I, Sec 10, Cl. 1):
a
(
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days .... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that.
those same rascals might perpetuate their policies simply by .locking them into
binding contracts.
-6-
�.-----------------,---------------------~-~--
CLINTON LIBRARY PHOTOCOPY
(
Nl11lethdt!'IS. tht: niaxim that
lHlt: Cl'll~res~
cannnt hind tuture Con~rt:ss. likl: e\c:r:-
legal mle. has ifs limits. As early as 1810. Chief Justice Marshall explained in Fletcher,.
Peck. 10 U.S. (o Crahch) 87. 135 (1810):
The principle asserted is that one legislature is competent to repeal any
aci which a fonner legislature was competent to pass: and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness of this principle, so far as respects general legislation.
can never be controverted. But.· if an act· be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most absolute .
power. Conveyances have been made. those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority. still, that
they originally vested is a fact, and cannot cease to be a fact.
When, then. a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
c
The powers of one legislature to repeal or amend the acts of the preceding one ire
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are ·
prohibited from de.priving persons or comorations of property without due
process of law. They cannot legislate back to themselves,· without makil1g
compensation. the lands they have given this corporation to aid in the
construction of its railroad .. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The United States are as much bound by their contracts as are
individuals. (emphasis supplied.)
See
~_so Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 (1986).
-7-
�(
CLINTON UBR(I.R\' PHOTOCOPY
IV
The Due Prnces~ Clause does nnt Preclude Congress from
Amending or Repealing the two Mutual Consent Clauses
The question .therefore is whether the Due Process Clause! of the Fifth Amendment
precludes a subsequent Congress from repealing legislat-ion for the governance of non-state
areas enacted by an earlier Congress under the Territory Clause. This question must be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall ... be deprived of life, liberty, or property without due
process oflaw. (emphasis supplied.)
·c
This Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive
the non~state area of a property right within the meaning of the Fifth Amendment.
A.
A non-state area is not a person in the
Fifth Amendment.
meanin~
of the Due Process Clause of the
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir~). cert. denied, 493 U.S. 991
( 1989) ("The .State of Alabama is not included among the entities protected by the due
process clause of the flfth.amendment"); and State of Oklahoma v. Federal Energy
Regulatory Comm., 494 F.Supp. 636, 661 (W.D .. Okl. 1980), aff'd, 661 F.2d 832 (lOth Cir.
1981), ~denied, sub . .!l.QID.... Texas v. Federal Eneri:Y Rei:ulatozy Comm., 457 U.S. 1105
(1982).
.
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement distrjcts. are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. IBWC/US; 701 F:
Supp. 121, 123:-24 (W.D. Tex 1988) ..
·The non-state areas, concededly, are ·not States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and·
-8-
�(
CLINTON LIBRIJ.R\' PHOTOCOPY
tile rattonak of Sl)llth Camlina \. Katzenhadl. 3oJ C.S. at 301. appears I\' be that sticlt
bodies are not protected by the Due Process Clause of the Fifth Amendment. !\loreover. it h
we.ll established that the politi12al subdivisions of a State are not considered persons protected
as against the State by the provisions of the Founeenth Amendment. See. ~. Newark v.
New Jersey. 262 U.S. 192. I9o (1923): Williams v. Mayor of Baltimore. 289 U.S. 36. 40
(I q33): South Macomb Disposal Authority v. Township of Washington. 7q0 F.2d 500. 505.
507 (6th Cir. 19!56) and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated.
supra. the Coun held in National Bank Y. County of Yankton, 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States ...
More recently,· the Coun explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating to the governance of non-state areas does not create any rights or
status protected by the Due Process Clause a~ainst repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment.
i.e., if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a
non~state area is not a person with the meaning of the Due Process Clause. Here it will be
. shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act. would not create property rights within the meaning of that Clause.
. __ ..
. .
(
.,
__
·Legislation concerning the governance of a non.;.state area, whether called organic act.
federal relations act, or commonwealth act, that does not contain a mutual consent cla~se is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested .interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
in connection with the DJstrict of Columbia. ~District of Columbia v. Thompson Co.,
./·
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause.
-9-
�CLINTON LIBR.1.RY PHOTOCOPY
(
le~islatinn
..:unceming the
!1y subsequent kgisla_tion.
~ll\ emment (11
a
IHll.l-stat~
area i-. subject tll an1eml!nent
l'r
rq:x:al
leads to the question whether the addition of a mutual consent clause . .i.L of a
provision that the legislation shall not he modified or repealed without the consent of the
Government of the United States and the Government of the non-state area. has the effect of·
creating in the non-state areas a specific status amounting to a property right within the
meaning of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because (1) sovereign governmental powers cannot be contracted away. and
(2) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
Thi~
1. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power. however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898).
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I. Sec. 10, Cl. ·l) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977).7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are, are subject to state restriction.
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the latter. or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential· powers of the federal government. They are
: Cases arising under the Contract Clause holding that a State cannot contract away a sovereign power are
also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guarantv Corp. v. R.A. Gray Co., 467 U.S. 717. 733 (1984); National Railroad Passenger Corp. v.
A. T. & S. F. R .. _470 U.S. 45 I, 472-73 n.25 ( 1985). Hence. when state legislation does not violate the
·Contract Clause. analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
• Cited with approval with respect to federal legislation in Norman
I I'H5l.
- 10-
v. B. & O.R .. 294 L.S. 240. 308
j
�CUI~TON LIBR/~R\' PHOTOCOPY
(
thc:re1url· nut hind1111-! nn the.· l;nited StalL'' ;uld l';lllnllt l'lli11L:r a prupL:n: inten:~t pr(ltl'lt-.:d h\
the Fifth
A.nkndmer11.~
~lore gt!nerally. the Supreme Court held in Bowen \. Agencres Opposed to Snl'. St!l'.
Entrapment. 477 U.S. 41. 55 (1986). that the contractual property rights protected by the
Dut! Proces~ Clause of the Fifth Amt!ndment are the traditional private conmictual rights.
such a.\ those arising from bonds or insurance contracts. but not arrangements that ar:: rart of
a regulatory program such as a State's privilege to withdraw its participation in the Social
Security system with respect to its employees. Specifically. the Court stated:
But the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "property" within the meaning of the
Fifth Amendment. The termination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 418 itself. The provision c~nstituted neither a debt of the
United States. see~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, ~ Lynch v. United States, ~· The termination clause
was not unique to this Agreement; nor was it a term over which the State had
any bargaining i>ower or for which the State provided independent
consideration. Rather, the provision simply was pan of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional
private contracts: they are elements of a regulatory system.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from unilaterial .
Congressional amendment or repeal. 10 We .cannot continue to adhere to that position i.n
~Cases such as Lvnch v. Lnited States. 292 C.S. 571 (1934). and Perrv v. cnited States. :94 C.S. 330
( 1935 ). are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance:
Perrv: Government bonds) In Lynch the Court held that Congress could not amend the contract me·rely to save
money "unless. indeed the action falls within the federal police police power or some other paramount power."
292 U.S. at 579. Perrv involved bonds issued ·by the United States under the authority of Art. I. Sec. 8, C'l. :
of the Constitution. to borrow money on the crtldit of the l.inited States. The Court held that Congress did nor
have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating on~
of the pivotal terms of the bonds to save money. While the Court held that the United States had broken the
agreement. it nevertheless held that plaintiff could not recover because. as the result of regulations validly issued
by the Unittld States. he had not suffered any monetary damages.
''' Cf.
n.:.
- II -
�(
CLINTON LIBR/~R\' PHOTOCOPY
'it:\1. uf tilt: ri.Jiings Lit the Supren11.: Ct,un that legislation concerning the govemance ot a nonstalt: area is nece~sarily subject to Congress1onal amendment and re-peal: that govemmental
bodies are. not persons within the meaning of the Due Process Clause: that governmental
powers cannot be contracted away. and especially the t:xposition in the recent Bowen case.
that the property rights protected by the Due Process Clause are those arising: from private
law or commercial contrJcts and not those arising from governmental relations. 11 ·
Sections l 03 and 202 therefore do not create vested property rights protected by the
Due Process Clause of the Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shaU apply to
Guam ·without the consent of the government of the Commonwealth. The inclusion of such
provisions. therefore. in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
·
Commonwealth Act. 13
(
· Finally, the Depanment of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluati()n of this problem. The question whether
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
11
It is significant that the circumstances in which Congress can effectively agree not to repeal or amend
legislation were discussed in the context of commercial contracts. Bowen, 477 U.S. at 52.
:: Bowen. it is true. dealt with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
consent of the Government of Guam. The underlying agreements, however. are not of a private contractual
nature, and. hence. are not property within the meaning of the Due Process Clause. We cannot perceive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
'~
c-·-
""-··
The conclusion that Section 202 of the Guam Commonwealth Act (inapplicability of future federal
legislation to Guam without the consent of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 20::!. In Currin v. Wallace, 306 U.S. l. 15-16 (1939), and United
States v. Rock Royal Co-op. 307 U.S. 533, 577-78 (1939), the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco fanriers or milk producers affected by them.
The Court held that this approval was a legitimate condition for making the legislation applic::able. Similarly, it
could be argued that the approval of federal legislation by the Government of Guam is a legitimate condition for
making that legislation applicable to Guam. Since, as stated above, a future Congress would not be bound by
Section 20::!. we need not decide the question whether the requirement of approval by the Government of Guam
for ~ future federal statute and regulation is excessive and inconsistent with the federaJ sovereignty over
Guam.
.
. - 12 -
�(
CLINTON LIBRARY PHOTOCOPY
August 26, 1994.
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION IN THE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to review the July 28, 1994
memorandum initialed by Deputy Assistant Attorney General
Roseborough and addressed to the Special Representative for Guam
Commonwealth (hereinafter the "Memoranduln").
That Memorandum
purports to reverse a thirty-year Justice Department policy
supporting the constitutionality and enforceability of mutual
consent clauses in legislation providing for internal self- ·
(
government in the territories. 1
According to the Memorandum,
mutual consent clauses are unenforceable because (1) rulings of
the Supreme Court require that the "governance of a non-state
The Department of ~ustice expressly has approved and
gone on record supporting Congressional passage of mutual consent
clauses in at least two U.S. statutes implementin~ po~itic~l
status agreements with one U.S. territory, and the Freely
Associated States, and apparently continues to support the
constitutionality and enforceability of these provisions.
Memorandum at 12 ("Finally, the Department has indicated that it
wouid honor past commitments with respect to the mutual consent
issue"). But an Act of Congress either is constitutional and
enforceable or it is not.
If the Department of Justice means
what it has stated in the Memorandum, this will have profound
legal arid political implications with respect to the state of law
. and governmental relations for the insula·r jurisdic1j-ions to which
the existing f~eral mutual consent statutes apply,.as well as.
one new insular jurisdiction for which yet another mutual consent
law is to take·effect within :a matter of weeks.
Appendix A is a
description of the legal and political nature of the existing
mutual consent precedents and some of the p6ssible effects if the
Department of Justice does not reconsider the views recommended
in the Memorandum of July 28.
�CLINTON LIBRI\R\' PHOTOCOPY
(
area is necessarily subject to Congressional amendment and
repeal"; (2)- "governmental bodies are not persons within the
meaning of the Due Process Clause"; and (3) "governmental powers
cannot be co_ntracted away" relying on the recent decision in
Bowen v. Public Agencies-Opposed to Social Sec. 477
u.s.
41
(1986) (popularly referred to as the "POSSE" decision) supposedly
because
th~
Court held that the only "property rights
~rotected
by the Due Process Clause are those arising from private law or
commercial contracts and not ·those arising from government
relations".
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guam Commonwealth legisla-tion can be justified
relying on the POSSE decision or any other decision discussed in
the Memorandwn. 2
inaccurate.
The Memorandum is misleading and disturbingly
It quotes parts of judicial decisions out of
context, relies on decisions which have nothing whatsoever to do
with whether Congress has the power to bind itself when entering
into a political status arrangement with a territory,
misstates
holdings in cases cited, mistakes dicta for holdings in others
2
'---- . .
-
(
"--.
Interestingly while the Memorandum asserts that its
position must change as a~result of POSSE, the next most recent
decision relied upon is United States Trust Co. v. New Jersey,·
431 U.S. 1~ decided in 1977. Virtually all of the other key
cases were decided in the· 19th Century and early 20th Century,
none of which would justify the change. If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
justification exists for the changed position.
-2-
�CLINTON LIBRARY PHOTOCOPY
(
J
and relies upon a web of circular reasoning which quite simply
does not justify the Department's Changed position.
Perhaps of most cmncern is that the Memorandum reaches an
absolute conclusion
con~erning
Congress' authority to enter into
a binding mutual consent arrangement with a territory, even
though this question has never been put directly before the
Supreme Court or any other court.
This is all the more
disturbing because the only court which has ever even approached
the question apparently assumed that Congress could indeed bind
itself, notwithstanding its
Clause.
See,
~,
u.s.
plenary power under the Territorial
Ex Rel. Richards v. De Leort Guerrero, 4
F.3d 749, 754 (9th Cir. 1993).
fn the Memorandum. 3
This case is not even mentioned,
More importantly, both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Congress can limit the ability of future Congresses to change
laws which grant vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
POSSE, 477
u.s.
at
52; Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982);
3
Our standards for legal advocacy properly allow
attorneys to present the facts and law in the light most
favorable to the proposition being espoused. Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the arguments put forward
are accurate and fairly reflect existing 1aw, .even i f asserting a
nonfrivolous proposition that the law should change. In our view
the MemorandUm was not prepared in a manner consistent standards
of.advocacy required in.l>roposing such an important change id
policy, and i t should no~ have been presented for approval by
deparimental management-as an official position without furth•r
deliberation between all concerned agencies and even comment by
the insular areas affected.
·
-3-
�CLINTON LIBRARY PHOTOCOPY
(
Transohio Savings Bank v. Director, Office of Thrift Supervision,
967 ·F. 2d 598, 621 (D.C. Cir. 1992) ( "Transohio").
Incredibly,
this "unmistakable terms" doctrine (which served as the basis for
the holding in POSSE) is also not addressed.
A section-by-section analysis of the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
precedent exists for the proposed change in policy.
the contents of this analysis:
To summarize
(1) none of the cases cited for
the proposition that Congress must retain the right to alter,
amend or repeal territorial legislation dealt with the question
placed before the Department by the mutual consent
proposal~
(2)
the issue of the Commonwealth of Guam not being a person for
(.
purposes of the Due Process Clause is a red herring because the
·,
proposal being discussed by Guam and the Administration
contemplates an agreement between .the Congress and the people of
Guam based in part on the Commonwealth Of The Northern Mariana
Islands and Freely Associated States political status precedents;
and (3) the holding in the POSSE decision provides utterly no
support for the proposition. set forth in the Memorandum.
Perhaps no part of the Memorandum is as disturbing as is the
analysis of the Supreme Court's decision in POSSE which is put
forward as requiring the Department's change of its thirty-year
position on the constitutionality and enforceability of mutual
consent clauses.
T.he Memorandum ctaims the change is required
because the Supieme Court held in PbSSE "that the (only]
contractual property rights protected by the Due Process Clause
-4-
�CLINTON LIBR.ARY PHOTOCOPY
(
of the Fifth Amendment are the traditional private contractual
rights, such as those arising from bonds or insurance contracts,
but not arrangements that are part of a regulatory program .... "
. Memorandum at 11.
The POSSE decision, however,
did not turn on the subject
matter of the contract in question, and the Court's reference to
the bond and insurance cases had no direct bearing on the Court's
holding.
Those cases were cited in POSSE for the limited
purpose of contrasting contracts where Congress clearly evidenced
its intent to bind itself from the facts in the POSSE case where
"Congress expressly reserved to itself '(t]he right to alter,
amend, or repeal any provision of' the Act which authorized the
(
contracts at issue.
477 U.S. at 42.
The Court relied upon this
contrast because its holding in POSSE was that _the Congress could
amend the legislation in question, even if· t.hat amendment
interfered with contractual rights,
because it had not
unmistakably indicated its intent to bind itself -- the standard
the Court has established for determining whether Congress has
imposed limits on the exercise of its sover~ign powers.
The actual holding in POSSE
--that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals irt
Transohio.
,t·
.............
The Transohio decision demonstrates conclusively that
-the Memorandum's ·analysis of the .~holding in POSSE is so
.
7.=·.
fundamentally wrong that one wonders how it could be relied upon
by the nation's Department of Justice to justify a pro~osed
-5-
�CLINTON LIBRI),R.Y PHOTOCOPY
(
reversal in such an important area of Administration policy.
In
that decision, the D.C. Circuit makes clear that "[t]he Supreme
-
Court reached [its] conclusion by analyzing the governing
statute, the Social Security Act" and focused on the fact
critical to its decision -- "[t]he Social Security Act contained
an express reservation of Congress' power to amend the law ... ",
967 F.2d at 621, not by establishing the per se "private rights"
test asserted in the Memorandum.
According to the D.C. Circuit
The "principles form[ing] the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
that "'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.
(
Id. at 622 (emphasis added).
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The 'urunistakability' doctrine is a special·
rule of contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
.its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valbable
to induce a partial release" of i t~s sovereign
powers.
-<..._)
/
Id. at ·618.
Both the POSSE and Transohio. cases dealt with the
-6-
�C~INTON LIBRARY PHOTOCOPY
(
application of the "unmistakable terms" test to
a: determination
of whether Congress has limited its right to exercise its
regulatory jurisdiction.
with a
stand~rd
This test has nothing whatsoever to db
based on "traditional private contractual rights"
which the Memorandum would have us believe is the standard.
it were the
test~
If
the Supreme _Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by. adopting the test advocated in the Memorandum with
a simple finding that alleged contractual rights associated with
the regulatory programs at issue in the cases are not traditional
private contractual rights.
(
They did not, of course, because the
Supreme Court applies the "unmistakable terms" test which
requires an analysis of Congress' intent, not the per se standard
proposed in the Memorandum.
See,
~'
477 U.S. at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interp-reted as suggesting exactly the opposite
of what the Memorandum asserts is the holdin9 -- that Congress
can limit the exercise of its regulatory authority if it makes
clear its intent to do so.
4
In~tead
4
of dealing accurately with
The import of the POSSE decision has been recognized
even by its critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrender of Sovereignty" analyzed the POSSE decision in
great detail. It concluded that "(t]he PS'wer to waivf!:! _
sovefeignty was reco'gnized" in POSSE. 92· Col. L. Rev. 426, 451.
It goes on ''[i]n POSSE, the Court relied entirely on Merrion v.
Jicarilla Apache Tribe for the propositio-n that the federal
government can surrender sovereign power. · Jicarilla in turn
relied upon cases involving primarily the taxation powers of
state governments ... Instead of endorsing the rule applying to
-7-
�CLINTON LIBR~RY PHOTOCOPY
(
the Court's actual analysis, the Memorandum at page 11 relies
·upon a quote, claimed to set forth the holding, which is taken
completely out bf context and has nothing whatsoever to do with
the holding.
The quote, taken from 477 U.S. 55, fsils to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last senterice of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress having stated in unequivocal terms its
(
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
477
u.s.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
of its power to provide for the general
welfare. Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision·simply cannot·be viewed as
conferring.any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
at 55 (emphasis added).
·the police powe~s -- such powers cannot be surrender~d -- it
the rule applying to taxation powers -- such·powers can
only be surrendered if done so unmistakably. This m9ve should
not be followed.automatically: if the Court wants to enforce
contracts that surrender the federal government's regulatory
authority, it should do so on the basis of policy arguments, not
on the basis of POSSE." Id. at 460.
.adopt~d
-8-
�CLINTON LIBRARY PHOTOCOPY
Congress Can Utilize Its Plenary Authority to Limit Its Future
Power -- The Greater Includes the Lesser.
-
In part, the Memorandum goes astray in its interpretation of
Congress' plenary authority over the territories.
the- Memorandum;
According to
Congress' plenary authority is infinite in time
or at least until one of three things happen: (1) Guam becomes a
State; (2) Guam achieves
indep~ndence;
or (3) the United States
transfers its sovereignty over Guam to another country.
Memorandum at 4.
Thus, the Memorandum seems to suggest that Congress is
estopped from exercising its authority with
resp~ct
to Guam if
that exercise of authority results in some form of meaningful
·(
consent to the form of government under which the Guamanian
people live.
But Congress is .not the prisoner of its plenary
authority over the territories -- it is the master.
The fact
that Congress has plenary authority does not mean that Congress
cannot exercise this authority to limit its rights in the future
in the context of a political status change.
Plenary authority
means that Congress can take whatever action it decides is in the
best interest of the U.S. and the territories, including a
decision that it can limit its own exercise of future authority,
if its intentions are stated in unmistakable terms.
otherwise stands the meaning of plenary on its head.
means full power.
. -~
To assert
Plenary
It does not mean full power, except when
~
Congress attempts to exercise it.
Under the_ Territorial Clause, Congress'has the power to
dispose of a territory or to make all needful rules and
-9-
�CLINTON LIBRARY PHOTOCOPY
(
regulations.
The broad power of Congress under the territorial
clause is grounded in the need for the federal government to be
able to govern-and/or dispose of territory
state.
wh~ch
is not part of a
In this context, it is clear that if Congress has the
power to dispose of a territory in its entirety, it also has the
power to dispose of some of its control by exercising its power
to make all needful rules and regulations.
It is an elementary
principle of. statutory interpretation that the "greater includes
the less".
See, Late Corp. of
the Church of Jesus Christ of
Later-Day Saints v. Romney, 136 U:S. 1, 45 (1889).
The issue of Congress being able to restrict its authority
c·
over territory of the United States has been long decided.
Whil~
at first blush it may seem counter-intuitive, Congressional
authority over the people of the territories_and their political
rights emanates from Congress' authority
brought within Congress' control by the
over Guam as property
T~rritorial
Clause:
In
Edward v. Carter, ·the Court clarified Congress' power under the
property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitte~) (emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39 U.S.
( ---~
---
526 (1840) .where the Court considered Congress' power to impact a
lease of federal lands through legislation.
-10-
The Court's approach
�CLINTON LIBHARY PHOTOCOPY
(
to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie within
territory of the United States are, therefore, its property.
Second, it recites the Territorial Clause and concludes that
the term territory refers is a descriptive word referring to one
kind of property.
Third, the Court concludes that "Congress has the same power
over [the mine] as over any.other property belonging,to the
United
State~;
and this power is vested in Congress without
limitation; and has been considered the foundation upon which the
territorial governments rest". Id. at 537.
Fourth, the Court then references cases involving Congress'
authority over the territories, including Florida, including the
right of Congress "to make all needful rules and regulations
respecting the territory or property of the United States". Id.
at 538.
Finally, the Court concludes "[i]f such are the powers of
Congress over the lands belonging t6 the
·'dispose. of I
I
Un~ted
States; the words
cannot receive the construction contended for at
the bar; that they vest in Congress the power only to sell, and
not to lease such
lands"~
Id.
The Court's concept which forms the basis of these opinions
is that the.greater ip,tludes the lesser.
The Court reached its.
decision building on COngress' authority over the territories.
·If Congress has the power to dispose of territories or to make
-11-
�·,
..-
CLINTON LIBR~l.RY PHOTOCOPY
(
all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
terri tory by le.asing it.
The Result of the Department's Opinion is to Leaves the People of
Guam with a Hobson's Choice --·Remain in a Perpetual State of
Colonialism or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policy implications for unlted States
security interests in Guam and the Pacific Region, not to mention
the United States' moral leadership on the issue of granting
democracy to non-self-governing people around the world.
(
The
Memorandum begins by defining Guam as a "non-state area, a catchy
\
pseudonym for what Guam really is -- a territory, and u.s.
citizen population, which the U.N. officially classifies as not
yet having been decolonized, and which has no realistic prospect
of achieving statehood -- the traditional path by which U.S.
territories ceased being colonies and became self-governing in
our constitutional system.
Fortunately, the Territorial Clause gives Congress the
constitutional power to address this problem.
In the· Insular
Cases the Supreme Court recognized that Congress must have
flexibility to adapt federal law and policy for island
J
c-~·
territories which remain "unincorporated" for an extend.ed period
Of time 1 and Which remain SUbjeCt. to federal power WithOUt being
iritegrated into the system of constitutional federalism
-12-
~-
�. CU~TON LIBR~RY PHOTOCOPY
(
leaving the U.S. citizens concerned without equal legal and
political rights when compared to citizens resident in the
states.
The moral imperative of ending Guam's neo-colonial
status is fundamental to the Administration's decision to pursue
a mutual consent provision.
Mutual consent brings to the people
of Guam democracy by giving them a direct role in their own
internal self-government which would not otherwise be
available. 5
By rejecting absolutely any possibility that the
Supreme Court may uphold a mutual consent clause in a political
(
status arrangement, the Department of Justice is putting this
Administration in the untenable position of saying to the
u.s.
citizens of Guam that they cannot have meaningful self-government
within the framework of the U.S. Constitution.
We do not think
this is a position which this Administration ought to be taking,
especially when the Supreme Court has not spoken directly to the
5
.•
The American-citizen residents of-Guam do not have the
same rights to participate in the representative democracy
enjoyed by the citizens of the several States. Without voting
representation in Congress or a vote in national elections, there
is no means by which they meaningfully can consent to the laws
and form of government under which they live. This colonial
status was awkward even in its first fifty years, but has become
intolerable since the U.N. Charter was adopted and the era of ·
decolonization began. Guam is. not seeking decolonization outside
the u.s. system, and it would b~ perverse to suggest that
decolonization is not availabl~ to U.S. citizens within the U.S .
political system. Thus, the question facing the Administration
is whether a nation founded on the principle of consent of the
governed can adap~ its law and policy to end denial of this basic
right·and establish an appropriate alternative means of consent
for loyal citizens in the territories.
-13-
�CLINTON LIBR(\RY PHOTOCOPY
(
question and the most that can be said about the precedent is
that argument_s exist on both sides of the question.
The effect of the Department's changed position is to leave
the people in a perpetual state of colonialism or force them into
independence.
The Clinton Administration has ·been the first to
state with candor and honesty on the record what all those who
have dealt with Guam have known for years -- Statehood is not an
option for Guam.
It is simply too small and remote.
Similarly,
given Guam's strategic importance to the United States 1 it is
~nconceivable
that sovereignty_would be voluntarily transferred
to another sovereign power, nor do we believe that the people of
Guam would accept it.
(
The
clear implication of the Department's
position, therefore, is·that the American citizen
residents of
Guam, i f they desire to possess a truly democratic government,
will have no choice but to seek independence from the United
States.
The notion that independence is the only political status
outcome through which the injustice of Guam's colonial past can
be remedied is not only counter to the robu.st common sense with
which Americans have implemented their Constitution, it is a
dangerous, fatalistic and cold-hearted idea that will have a
chilling effect on the spirits of the Guamanian people.
Leaving independence as the only alternative also raises
seriods national security policy questions~
Policy coordination
for Guam Conunonweal th negotiations is exerc.ised by the National
Security Council because Guam is an important military and
-14-
�CLINTON LIBR~RY PHOTOCOPY
(
strategic location for the United States.
A decision has been
made by the White House that an agreement should be reached with
the people of Guam which achieves two fundamental goals.
First,
the people of Guam should be permitted to achieve meaningful
internal self-government free from unnecessary interference.
Second, United States long-term security interests must be
protected.
Offering the people of Guam the opportunity to
achieve meaningful participation in a democracy only by forcing
them to seek independence is inconsistent with the second of
these goals.
We do not believe that this Hobson's Choice ought
to be forced upon the United States or people of Guam based on
conclusions of anyone other than the Supreme Court.
(
This is a policy issue which is best left to the courts, if
a challenge ever
aris~s.
In this regard, the Department's
concern that no one should be misled concerning the certain
viability of a mutual consent provision is consistent with our
position.
We have consistently taken the position in the
negotiations that no one can be sure how the issue will be
decided.
The best we can do is to meet the. requirements the
Supreme Court has set out as being necessary for Congress to bind
itself (a statement in "unmistakable terms") and state
forthrightly in the political education process that we cannot be
sure of the outcome until the Supreme Court has acted.
It is
wel.i established, however, that when the~ intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
-15-
�CLINTO~l LIBH.'~R\' PHOTOCOPY
(
837, 842-43 (1984).
It is equally clear that the courts give
great deference to Congress when it is exercising its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d at 460,
citing Torres v. Puerto Rico, 442 U.S.465, 460-70.
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pu:rsuant to its Territorial Clause
authority.
Attachments
-16-
�(
CLINTON LIBR4.RY PHOTOCOPY
APPENDIX A
U.S. Practice With Respect to Mutual Consent Arrangements for
Insular Areas Not Incorporated into the U.S. Constitutional
Process for Democratic Self-Government But In Which the U.S.
Retains and Exercises Sovereignty and/or Significant Powers of
Government:
BACKGROUND:
Under a succession of treaties with other nations and
international organizations including the U.N., in this century
the U.S. has acquired and exercised actual sovereignty and/or th~
full powers and jurisdiction of government over insular areas
(islands) which have not been incorporated as territories or
states to which the U.S. Constitution applies in full. Thus,
these areas are not fully self-governing and have no power to
give consent to u.s. laws made applicable to them.
'
(
As each of these territories has moved toward greater selfgovernment the u.s. has agreed to various political, legal and
budgetary measures which accommodate U.S. interests in retaining
certain powers of government, .while at the same time redeeming in
some greater degree the principle that free people must be
enabled to give· some meaningful form of consent to the laws and
form of government under which they live.
In the case of u.s. territories over which the U.S. exercises
full sovereignty, but which have not been incorporated fully into
the system of ·federalism, measures aimed at enhanced selfgovernment have attempted to address the fact that the U.S.·
citizens concerned do not have voting representation in Congress,
enfranchisement in national elections or general legal or
political equality with their fellow citizens in the states.
For example, in the case of the Commonwealth of the Northern
Mariana Islands (CNMI), as discussed below, the Executive Branch
of the federal government and Congress entered a "Covenant," or
agreement with the people of th~ territory, under which the u.s.
exercises sovereignty, but which defines a political relationship
the central elements of which are not subject to modification
without mutual consent of t~e people of the territory and the
federal government.
This mutual consent arrangement constitutes a substitute set of
political rights i:ntended to give the people of the CNMI a
greater measure of democratic self-government by granting them a
political power of consent to federal law not granted to u.s.
citizens in the states, who instead are able to give their
consent to federal law through representation in Congress and
voting in national elections. This type of mutual consent
�CLINTON LIBR.'\R\' PHOTOCOPY
(
arrangement has been promulgated by Congress pursuant to the
Territorial Clause of the Constitution (Article IV, Section 3,
Clause 2), wnich empowers Congress to provide for areas not yet
fully within the constitutional system but subject to U.S.
federal law and sovereign powers.
For insular areas over which the U.S. exercised powers of
government but not sovereignty under agreements with the U.N.,
the federal government promulgated mutual consent provisions ·
through a combined statutory and treaty-making process.
Under
these arrangements the u.s. retains plenary authority over broad
areas of government power in the concerned insular areas, i.e.,
full defense authority, while the separate citizenship,
sove~eignty and nati6nal independence of those insular areas have
been recognized. This arrangement is known as "free
association."
(
The compact agreements establishing the free association
relationships oetween the u.s. and certain insular areas have
been approved by the U.S. Congress in the form of joint
.
resol~tions passed by both houses and signed by the President.
Like the CNMI covenant and the proposed Guam Commonwealth Act,
the U.S. federal statute approving the free association compact
was intended to create a unique and mutually agreed political
status for insular areas not incorporated into the u.s., but with
special close political, legal and security ties to this nation.
The fact that Guam and the CNMI are unincorporated territories,
while the freely associated states under the compacts are
sovereign, does not change the legal or constitutional analysis.
These acts of Congress which bind the federal government and
limit the exercise of constitutional powers either are
constitutional and enforceable or they are not.
There is no valid constitutional distinction between the mutual
·consent provisions in the free association compact and the CNMI
covenant or proposed Guam Commonwealth Act simply because the
power of Congress which is being limited involves foreign policy
and national defense powers arising from Article I or Article II
o£ the Constitution, or if the subject matter gives rise to
Article IV territorial powers.
The general concept that Congress can alter, amend or repeal the
laws of purely domestic application has its parallel with respect
to laws.and treaties which create obligations between the u.s.
and other.nations.
Spec~fically, an element of sovereignty ip
the power to abrogate treaties, and in the u.s. constitutional
system the President and Congress have the power to make trea~ies
and terminate treaties. ·Goldwater v. Carter, 617 F. 2d 6 9 7 (D.C.
Cir. 1979).
Asdiscussed below, in addition to formal
renunciation of a treaty by the President, Congress can terminate
or prevent performance of treaties requiring appropriations
simply decline to appropriate funding to meet international
obligations.
This has the effect of superseding the prior act
�CLINTON LIBRll.R\' PHOTOCOPY
(
of the Congress ratifying the treaty.
'Thus, the question before us is whether Congress can limit its
power to amend, alter or repeal a prior act so that commitments
intended to be binding are set aside, and that question is
relevant to any.act of Congress which purports to make such
binding commitments, including the statute making the free
association compacts u.s. law.
We believe the test under POSSE for answering that question turns
on whether Congress makes its intent to do so unmistakably clear.
If the position set forth in DOJ Memorandum stands and the
Department of Justice reverses prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisions in the CNMI covenant, the free association compacts
and the proposed Guam Commonwealth Act are unenforceable and
unconstitutional, then the effect of that could reach far beyond
the Guam mutual consent proposal.
c
For example, the mutual consent· provisions relating to the
political and legal relationships created by the free association
compacts are linked to unprecedented multi-year funding
authorizations that bind successive Congresses to enact
appropriate laws providing funding for specified grants to the
governments of t~e free associated insular areas.
These
provisions are enforceable in the federal courts, and give the
free associated state governments concerned access to domestic
u.s~ legal remedies that foreign governments do not nave under
conventional u.s. laws and treaties.
To illustrate the point, as a general rule if Congress ·refuses to
fund u.s. performance of a treaty, it is extremely unlikely that
without an explicit statutory basis for jurisdiction the federal
courts would be inclined to reach beyond the political question
doctrine and interfere in the foreign policy domain of the
political branches by entertaining an action by a foreign
government seeking a court order to compel .payment of funding for
u.s. obligations under a treaty abrogated by the President or
Congress. Yet, under the free as~ociation compacts, that is
exactly what Congress has explicitly authorized arid directed the
federal courts to do. See, Section 236, P.L. 99-239, discussed
below.
Similarly, in Section 10l(d)(2)(B) of P.C. 99-239, the statute
approving the compacts; Congress required that amendments to the
compact and certain related agreeme~ts made pursuant to the
~ applicable mutual consent provisions would require congressional
approval. Thus, Congress by statute.explicitly agreed to the
mutual consent provisions in the agreements identified in Section
10l(d)(2)(B) and established a role for Congress in the procedure
for U.S. consent to an amendment.
Thus,, just as the mutual consent prov~s~ons of the CNMI agreement
limit the exercise of Article IV territorial clause powers by
�Congress, the mutual consent and related funding provisions of
the free association compacts limit the exercise of Article I and
Article II foreign policy and defense powers by the President and
Congress. These unprecedented arrangements.are intended to
enable the U.S. to sustain its authority over areas in which it
has significant national interests, but in which the people do not enjoy the full rights and benefits of incorporation into the
u.s. federal political and legal system.
To understand the gravity of the problems that will be created if
the Department of Justice persists in what we believe is a
misinterpretation of the POSSE decision, it is important to
examine the existing mutual consent precedents·very closely.
EXISTING MUTUAL CONSENT PRECEDENTS:
(
\.
The first of the existing mutual consent precedents is found at ·
Section 105 in the Covenant to Establish the Commonwealth of the
Northern Mariana Islands, U.S. Public Law 94-241, 90 Stat. 263
(1976), reprinted at 48 u.s.c. 1681, note.
The additional
important insular area mutual consent precedents are given the
force and effect of U.S. law pursuant to the agreements referred
to in Section 10l(d)(2)(B) of the u.s. statute approving the
Compact of· Free Association between the u.s., the Republic of the
Marshall Islands (RMI) and the Federated States of Micronesia
(FSM), U.S. Public Law 99-239, 99 Stat. 1770, 48 U.S.C. 1681,
note. The CNMI, FSM and RMI mutual consent provisions became
effective under Presidential Proclamation No. 5564 of October 3,
1986, Federal Register Vol. 51, Number 216, November 7, 1986.
As already stated, the RMI and FSM compacts also bind successive
Congresses through a pledge of the full faith and credit of the
U.S .. for economic assistance grants which are central. elements of
the political relationship defined in the compact as an agreement
between the u.s. and the peoples of the RMI and FSMexercising
their sovereignty by approving the agreement in a plebiscite.
See, Preamble and Section 236, Compact of Free Association, P.L.
99-239.
These multi-year funding obligations are not "subject to
appropriation by Congress," the typical treaty formulation, but
are enforceable in the U.S. courts, which are expressly granted
jurisdiction to enforce the payment obligations in the compact.
Thus, Congress has restricted its ability to alter, amend or
repeal those statutory obligation~ of its own making.
THE CASE OF PALAU:
A fourth mutual consent precedent is scheduled to enter into
force on October 1, 1994 under the terms of a Compact of Free
Association between the U.S. and Palau.
CLINTON LIBR~R\' PHOTOCOPY
------·---· ----'------------------
�/
(
The Palau compact implementation agreement is terminable
unilaterally by Palau or the U.S., but once the Compact enters
into force, under Section 453(a) of u.s. Public Law 99-658, 100
Stat. 3700, ~8 U.S.C. 1681, note, the Palau compact mutual
consent provision and all the related rights and obligations
under the agreement will be binding upon. both Palau and the
United States.
If the DOJ Memorandum of July 28 is applied to
the Palauan compact mutual consent provision there ·may be reasons
not to go forward with implementation .
. The u.s. currently is, under no legal obligation to im~lement th~
Palau Compact, and even though the Palauans have approved the
Compact the government of tha~ insular area has no rights under
the agreement until it enters into force by mutual agreement, and
Palau has no right to an arrangement with the U.S. which is
enfbrceable· or unconstitutional -- even if that arrangement
achieves important U~S. goals such as granting Palau selfgovernment and ending the U.N. trusteeship under which the U.S.
has the ultimate powers of government in Palau.
(
Thus, implementing the Compact for Palau is not a case of
honoring·a previous commitment on mutual consent, but of creating
a new one. If mutual consent clauses binding Congress are
:
unenforceable and unconstitutional, the U.S. should unilater~lly
terminate the implementation agreement as provided for in Article
II, Section 4 of that agreemen-t, and seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
It would be bad faith to implement the Palau Compact knowing that
a key provision is unenforceable and unconstitutional under U.S.
law. Under the Vienna Convention on the Law of Treaties, to do
so could give rise to international legal issues affecting
enforceability of the compact. For the DOJ Memorandum of July 28 ·
puts Palau on notice that the mutual consent ag~eement contained
in Section 453(a) is viewed by the u.s. legal authorities as
unenforceable.
Yet, the Section 453(a) mutual consent arrangement with Palau -gives the u.s. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity -- is the single
most. significant provision which justified to Congress the huge
economic grants contained in the funding sections of the Palau
compact.
As in the case of the FSM and RMI, those funding
grants are backed by th~ full faith and credit of the U.S. and
enforceable in the federal courts.
~
~hich
If the Palau compact takes effect and the mutual consent
provisiori in Section 453(a) is unenforceable; it would appear
that .the massive U.S. funding obligations under Title Two of the
compact for Palau would survive under the terms of Section
452(a), even if the u.s. followed the procedure under Section 442·
to terminate the free association relationship due to loss of the
defense rights which were to extend beyond the initial period of
CLINTON LIBR. '\R.Y PHOTOCOPV
�(
the compact.
Perpetual strategic·denial is what the u.s. would be able to
retain und~r continuation of the U.N. trusteeship, and so
strategic denial that lasts beyond the agreed p~riod of free
association under the compact is what Congress demanded in order
to justify over $450 million in grants to a community of 14,000.
If the Department of Justice wants the Administration to give
away what Congress approved in P.L. 99-658 just to win a debate
over mutual consent for Guam, shouldn't Congress be informed?
Thus, the decision of the Department of Justice to ch~nge its
position on mutual consent does not impact on Guam alone.
The
most immediate impact may be on Palau. Of course, the Department
of Justice may not have the authority or ability simply to choose
to honor what must be viewed under its theory as an
unconstitutional and inchoate mutual consent commitment between
the u.s. and Palau.
Indeed, the notion that individuals in the
federal government have that degree of discretion in fundamental
matters such as this itself raises constitutional issues.
But, again, even if the Department of Justice is as generous with
respect to honoring a mutual consent commitment to Palau as it
appears ready to be, a question Il1ay arise as to whether the u.s.
will be able to enforce its rights or meet its obligations under
the Palau mutual consent provision.
On the fa~e of things
Section 453(a) and the related provisions of Section 311 seem to
be a benefit to the U.S. which it simply can enjoy by deciding to
.honor it.
That view may be folly.
If the same litigious parties in the
U.S. or Palau who have mounted legal challenges to the military
provisions of the compact tirelessly for the last fifteen years
establish jurisdiction to challenge the validity of the Section
453(a) mutual consent provision in our own courts, and prevail
with the aid of the DOJ Memorandum, it appears that u.s.
taxpayers could end up paying Palau for defense authority tied to
a mutual consent provision in Section 453(a) rendered null and
void.
Having been seized with what Palau and the U.S. prudentially must
view presumptively as a serious substantive legal infirmity in a
provision that is fundamental to the purpose of the agreement
prior to its entry into force, will the parties be able to rely
upon and enforce the reciprocal and interdependent rights and
oblig~tions set forth in the agreement?
Ifi not, are the U.S.
funding obligations linked to the defense authority and mutual
consent provisions severable so that the U,S. would be able to
extricate itself from the full .faith and credit payment
requirements if the defense rights proved unenforceable?
The answer to both those questions arguably would be in the
negative.
CLINTON UBRI\RY PHOTOCOPY
�(
We raise these issues not because we believe tha~ the Palau
mutual consent provisions are either unenforceable or
unconstitutional. Rather, we use them to show the basic problem
inherent in the·Justice Department's approach. When the CNMI
covenant and the compacts were negotiated, Justice supported the
mutual consent clauses. Nothing has changed since then. Only
the POSSE case has caused a rethinking of this support and POSSE
merely explains the test that must be employed to determine ·
whether Congress bound itself validly to a limitation on the
exercise of its power.
It did not establish a per~ rule to
the contrary.
To avoid the perverse result ~hat could come about by applying
the position set forth in the Memorandum to Palau's mutual
consent compact, the DOJ Memorandum of July 28 should be
withdrawn immediately.
That would allow the Palau compact to be
implemented and enable the parties to the Guam commonwealth
negotiations can move forward with the process of defining an
acceptable mutual· consent relationship as endorsed by Secretary
Babbitt during his trip to Guam.
(
CLINTON LIBRARY PHOTOCOPY
�(
CLINTON UBR. '\RX PHOTOCOPY
APPENDIX B
SECTION~BY~SECTION ANALYSIS OF THE
MEMORANDUM FOR THE SPECIAL REPRESENTATIVE
FOR GUAM COMMO~TH DATED JULY 28, 1994
RE: MUTUAL CONSENT PROVISIONS IN THE
GUAM COMMONWEALTH LEGISLATION
FROM THE DEPUTY ASSISTANT ATTORNEY GENERAL
Introductory Paragraphs - pp
1~2.
The Department's Memorandum correctly recognizes that the
inclusion of mutual consent clauses in the Commonwealth
legislation is crucial to the people of Guam, referencing as the
reasons autonomy and economics.
While economic development is
clearly a consideration, the reference to autonomy is
(
misleading~
It is true Guam seeks control over its internal affairs.
But
'·
autonomy is less the goal than democracy.
The American-citizen
residents of Guam do not have the same rights to participate in
the representative democracy enjoyed by the citizens of the
-several States ..
If the citizens of the Guam
m~intain
their
residence there, they elect voting members of neither the House
nor the Senate, nor can they vote in presidential elections.
They are effectively excluded from the most fundamehtal aspect of
our democratic system-- .the right of U.S. citizens to give some
form of meaningful consent to the laws and form of government
under which they live.
The circumstances of the people of Guam today are the direct
consequence of almost 100 years of American rule, a period during
09/15/94, 11:59am
20029980
�(
which the U.S. has exercised sovereignty over Guam without
incorporating_it into the U.S. system of constitutional
federalism.
No level of economic development can sustain
perpetual second-class citizenship.
A process must be created
which will lead to resolution of Guam's status as a non-selfgoverning area under the U.N. Charter;
it will be a living contradiction of
Until Guam is decolonized
u.s.
moral opposition to
colonialism.·
Thus, the fundamental question which the people of Guam and,
indeed, which this Administration must ask today is similar to
that question asked by the leaders of the American revolution
(
can a nation, founded on the principle that government· acts only
with the consent of its people continue to deny basic rights of
self-government to some of its citizens solely because they live.
in a territory? 1
The DOJ Memorandum recognizes that for the past thirty
years, the Department has supported the constitutionality and
enforceability of mutual consent clauses. 2
Appendix A
1
In footnote 1, the Memorandum chooses to define Guam as a
"non-state area", a catchy pseudonym for what Guam really i s - - a
colony of the United States. This is why people in the
territories object to their territorial status. As a territory
they are precluded from the democratic system. The Guam
Commission on Self-Determination, however~ does not claim that
the legal implications of being a territory do not apply to them.
It is because they recognize that being a territory leaves them
out of the democratic process that they seek mutual consent.
2
Unfortunately, the Department has refused to provide us
with any of the prior opinions supporting mutual consent clauses.
09/15/94, 11:59am
20029980
2
CLINTON LIBR'~RY PHOTOCOPY
�CLINTOI\~
LIBRARY PHOTOCOPY
c·
accompanying this document reviews the legal and political nature
of relevant prior mutual consent precedents, as well as the
pending entry into force of another mutual consent arrangement.
We do not understand
ho~
the .mutual consent provisions in these
other acts of Congress· will be "honored" by the Department while
a similar provision proposed for Guam is unenforceable.
Memorandum at 12.
See Appendix A.
Neither the relevant provisions of the Constitution nor
applicable cases support different standards for the kind of
mutual consent arrangements involved in these insular political
status relationships.
Congr~ss
(
Nor can it be
argue~
that an Act of
in connection with the CNMI covenant or Compacts of Free
Associatio~
is any different or more binding on Congress than an
Act adopting the Guam Commonwealth would be.
An Act of Congress
is either constitutional and enforceable or it is not. If the
Department intends to support the mutual consent provisions in
these other Acts and does not intend to interfere with
implementation of the Palau Compact, it must apply the same
policy to Guam.
To quote the Memorandum at p . . 2 -- "[i]n our
view, it is important that the text of the ... Act not create any
illusory expectations'that might to (sic) mislead the
·electorate ... about the consequences of the legislation".
.
I
In the end, note 2 makes clear that the foundation for the
proposed change in position on mutual consent clauses is the
Supreme Court's decision in Bowen v. Agencies Opposed to Soc.
09!15/94, 11:59am
20029980
3
�CLINTON UBR~RY PHOTOCOPY
(
. Sec. Entrapment, 477 U.S. 41 (1986)
"POSSE").
(popularly referred to as
As "discussed in great detail infra, POSSE does not bar
Congress from limiting its right to exercise sovereign power by
~~,""'···,entering
into a binding contract, nor does i t"e'stablish a per se
test that Congress can only bind itself when entering into·
contracts dealing with traditional private rights.
In fact,
POSSE dealt with the exercise of a regulatory right, and turned,
not on the nature of the contractual right at issue, but on a
determination of whether Congress had expressed an intention to
bind itself in "unmistakable terms".
The following section-by-section analysis demonstrates that
none of the cases cited in the Memorandum leads to a certain
conclusion that the Supreme Court would restrict Congress'
ability to enter into a political status arrangement with Guam
based on mutual consent.
Section I. - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty of the United States is Plenary with.
Constitutional Limitations -- pp 2-4.
The DOJ Memorandum would lead us to believe that the Supreme
Court has already decided that Congress cannot limit its exercise
of authority over the territories because its authority is
plenary.
In this regard, the Memorandum seems to argue that this
plenary authority is infinite and must remain unencumbered in
perpetuity-- or at least until the U.S. alters Guam's status ..
09/15/94, 11:59am
20029980
4
�CLINTON LIBRARY PHOTOCOPY
(
Memorandum at 4.
Thus, the Memorandum argues that Congress actually is
r
estopped from exercising its authority with respect to Guam if
that exercise of authority results in some form of meaningful
consent to the form of government under which the Guamanian
people live.
But Congress is the master, not the prisoner of its
plenary authority over the territories.
If Congress has plenary
authority, it follows that Congress can exercise this authority
to limit the types of measures it will take pursuant to that
authority if that i·s in the best interests of the U.S. and the
territory.
(
its head.
To assert otherwise stands the meaning of plenary on
Plenary means full power.
It does not mean full
power, except when Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
regulations.
If Congress has the power to dispose of a territory
'in its entirety, it also has the power to dispose of some of its
control by exercising its power to make all needful rules and
regulations.
It is an elementary· principle of statutory
interpretation that the "greater includes the less".
Church
v. U.S, 136 U.S. 1, 45 (1889). 3
3
See, Morman
Similarly, in Collins
.While a distinction obviously exists between the
Government's rights to abrogate property rights and the issue of
its authority to exercise political power in the territories, the
Supreme Court's frequent statements that the Government can ·bind
itself do not appear to be limited to commercial-type contracts.
The Court has, fot instance, upheld limitations on federal
political powers in areas ceded to the federal government by the
09/15/94, !1:59am
20029980
5
�(
CLINTON LIBRARY PHOTOCOPY
v. Yosemite Park
&
Curry Co., 304 U.S. 518 '(1938), the Court
upheld an agreement between California and the Federal Government
which reserved.certain rights to California when it ceded
Yosemite Park.
The Court concluded that the Federal Government
and the states could enter into agreements concerning
jurisdiction over property
wit~in
their borders, and the courts
should "recognize and respect" the agreements.
30.~
304 U.S. at 527-
For instance, the Supreme Court has approved of the
Government's right to lease mineral rights.
Gratiot, 39 U.S.
See United States v.
(14 Pet.·) 526, 536 (1840)("it lies in the
discretion of Congress, acting in the public interest to
(
determine how much of the property it shall dispose.").
In
,_
Ashwander v. T.V.A., 297
u~s.
288 (1936), the Court approved a
contract for the sale of electricity, rejecting an argument that
the Government lacked constitutional authority to dispose
partially·of its property by contract and relying on Congress'
states pursuant to the Territorial Clause.
In Fort Leavenworth
R.R. v. Lowe, 114 U.S. 525 (1885), the Court upheld an agreement
between the Federal Government and Kansas dividing taxing
authority.
~
The Court stated:
Though the jurisdiction and authority of the general
government are essentially different from those of a
State, they are not those of a different country; and
the two, the State and the general government, may deal
with each other in any way they may deem best to carry
out the purposes of the Constitution.
Fort Leavenworth, 114 U.S. at 541.
09/15fJ4, 11:59am
20029980
6
�CLINTON LIBRARY PHOTOCOPY
(
authority under the Territorial Clause.
Id, at 330-36.
5
None of the cases cited in the Memorandum are to the
contrary.
Each of them sets forth the general proposition that
in regard to the territories, the Congress is supreme.
In part,
the earlier cases were required to make this point because the_
Territorial Clause was include9 to make clear that it was the
Federal Government and not the States that would exercise control
over the Territories.
See,
~,
A. Leibowitz, Defining Statute
(1989) at 10-11; See also, District of Columbia v. Thompson Co.,
346 U.S. 100, 109 (1953).
(
'·.
But, none of the cases cited in this
5
The Congress also has authority to dispose of property
under the Territorial Clause. This power incltides both the
absolute right to dispose of property in its entirety or to
dispose of part of the governments rights· in property:
Of course; a significant difference may ~xist between the
disposition of property and the disposition of sovereign
authority.
Nevertheless, the conclusion that Congress can
partially dispose of matters over which it has the power of
total disposition has considerable logical appeal.
If
Congress could totally dispose of its power over the
Philippines by granting them independence, it seems logical
that it could also partially dispose of its powers by
granting them something le.ss than complete independence. ·
Whether Congress could later change its mind as to the
partial disposition is not clear, but some kinds of
dispositions are by nature final.
For example, if Congress
disposes of-its powers over territory by admitting it as a
state, that would seem a final disposition of its
territorial powers; Congress cannot change later the status
of a state.
Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial power
over them for all time.
Inventive Statesmanship vs. The Territorial Clause: The
Constitutionality of Agreements Limiting Territorial Powers, 60
Va. L. Rev. 1041, 1060-61 (1974).
09/15/94, 11:59am
20029980
7
�-CLINTON LISR'\R.Y PHOTOCOPY
(
\
section address directly the question of whether Congress could
exercise its plenary authority by restricting its ability to act
in the future.
The Memorandum bases its assertions about Congress' plenary
authority on Gibbons v. Ogden, 22 U.S.
(9 Wheat) 1 (1824).
That
case, of course, is the seminal decision establishing Congress'
power under the Commerce Clause.
It has nothing whatsoever to do
with the Congress' Territorial Clause authority.
It is
apparently cited to establish the proposition that in some
express areas Congress' power "acknowledges no limitations, other
than are prescribed in the Constitution".
(
We think it should be
obvious that the Department's proposed changed opinion on mutual:
consent is entirely inconsistent with this principle.
Rather
than recognizing the scope of Congress' powers, the Depaitment is
claiming that a
lirnit~tion
exists on Congress' power -- that
Congress is imprisoned by its plenary power and cannot exercise
it to limit itself.
In fact, several of the other cases cited in
the Memorandum to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County of Yankton, 101 ·u.s. 129 (1880).
The Memorandum utilizes
a quote to establish that Congress is supreme in the territories.
But this quote has nothing whatsoever to do with whether Congress
can act to limit its authority.
(·=
Unfortunately, what has been
left out from the quote are the next two sentences which bear
\, __
09/15/94, 11:59am
20029980
8
�CLINTON LIBRARY PHOTOCOPY
(
\
directly on the issue presented by the mutual consent clause and
the analysis the Supreme Court adopted in POSSE whether Congress
has limited its right to exercise sovereign power.
The Court
apparently addressing the issue that Congress had not expressly
reserved the right to amend acts of a territory stated:
In the organic act of Dakota there was not an
express reservation ?f power in Congress to
amend the acts of the territorial
legislature, nor was it necessary.
Such
power is an incident of sovereignty, and
continues until granted aw~y.
101 U.S. at 133 (emphasis added).
Clearly, the·implication of this decision is that while Congress
has full power it has the right to grant it away. 6
(
While the next case cited, Hodel v. Virginia Surface Mining
and Reclamation Assoc., 452 U.S. 264, 276 (1981), like Gibbons v.
Ogden, does not deal with the Territorial Clause, it does
describe accurately the standard the Court applies when
determining whether Congress has acted within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine whether a particular exercise of
congressional power is valid under the
Similarly, American Insurance Co. v. Canter, 26 u.s. 511
(1828) and Downes v. Bidwell, 182 U.S. 244 (1901), cited in the
memorandum to establish the extent of Congress~ power, do not
address the issue of whether Congress can act to limit its
authority.
6
09/15/94, 11:59am
20029980
9
�c·
CLINTON LIBR'~RY PHOTOCOPY
Commerce Clause is relatively narrow.
The
court must defer to a congressional
finding ... if there is any rational basis for
such a finding ... This established, the only
remaining question for judicial inquiry is
whether "the means chosen by [Congress] must
be reasonably adapted to the end permitted by
the Constitution." ... The judicial task is at
an end once the court determines that
Congress acted rationally in adopting a
particular regulatory scheme.
452 U.S. at 276 (emphasis added).
This test recognizes the great deference the Court gives to
an exercise of power by Congress.
If Congress were to conclude
that a mutual consent clause is within its power and that such a
(
clause is necessary to achieve Congress' purpose of granting
greater self-government to Guam, can anyone say with certainty
that the Court will not believe that a sufficient rational basis
exis-ts.
If it does, not even the Memorandum asserts that
anything in the Constitution specifically bars a mutual consent
clause.
It is well established that when the intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A. v. NRDC, 467
u.s.
It is equally clear that the courts give
great deference to Congress when it exercises its Territorial
Clause_authority.
See, Wabol·v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The incorporation analysis thus must be
(_
undertaken with an eye toward preserving Congress' ability to
09/15/94, 11:59am
20029980
10
�CLINTON LIBR.~RY PHOTOCOPY
(
accommodate the unique social and cultural conditions and values
of the
partic~lar
territory.
More over, we must be cautious in
restricting Congress' power in this area.,;), citing Torres v.
Puerto Rico, 442 U.S.465, 460-70 (emphasis added).
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.
None of the rest
~f
the cases cited for the proposition that
Congress' power continues indefinitely address the question of
whether Congress can limit its ability to act in regard to the
territories without their consent.
(
Shively v. Bowlby, 152 U.S.
·~
( 1894) can be cited only for t·he proposition that it is the
Federal Government and not the states which exercises control
over the territory of the United States.
It did not address in
any way whether the Congress can limit its authority to act over
this territory.
u.s.
Similarly, Hooven & Allison Co. vl Evatt., 324
652 (1945),
can be cited only for the self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers wouldnot be exercised during the transition
was not addressed.
Congressional authority over .the people of the territories
and their political rights is derived from
09/15/94, I 1:59am
20029980
11
Congre~s'
authority
�··· ...
(
over·Guam as property brought within Congress' control by the
Territorial Clause.
In Edward v. Carter, the Court clarified
Congress' power under the property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of .property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978)
(citations omitted)
(emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39 U.S.
526 ( 184 0) _where the Court considered Congress' power to impact a
lease
ot
federal lands through legislation.
The Court's approach
to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie with
terri tory of the United States are,. the·refore, its property.
Second, it recites the Territorial Clause and concludes that the
term territory refers is a descriptive word referring to one kind
of property.
Third, the Court concludes that "Congress has the
same power over [the mine] as over any other property belonging
to the United States; and this power is vested in Congress
without limitation; and has been considered the foundation upon
which the territorial governments rest". Id. at 537.
Court then
reference~
Fourth, the
cases involving Congress' authority over
the territories, including Florida, including the right of
("=~
Congress ''to make all needful rules
~nd
regulations respecting
''---
09/15/94, 11:59am
20029980
12
CL!~FO~.~ UBR.~R\' PHOTOCOPY
�--------
the territory or-property of the United States". Id. at 538.
Finally, the Gourt concludes "[i]f such are the powers of
Congress over the lands belonging to the United States, the words
"dispose of," cannot receive the construction contended for at
the bar; that they vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater includes the lesser.
The Court reached its
decision building on Congress' authority over the territories.
If Congress has the power to
dispos~
of territories or to make
all needful rules and regulations, it must then also have the
(
'-·
power to limit its political control over the people of the
territory just like it has the right to limit ·its authority over
territory by leasing it.
S_ection II - "The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp 5-6.
This section of the Memorandum offers nothing more than a
restatement of the "principle" asserted in Section I -- that
Congress'. plenary authority does not include the right to limit
the exercise of this authority in the future by way of a mutual
consent clause.
As with Section I, the cases relied upon in this
section do not deal with.the issue of Congress exercising its
plenary authority in this way.
Clinton v. Englebrecht, 80 U.S.
not
establi~h
(13 Wall) 434 (1872) does
a rule that any delegations of authority to a
09/15/94, 11:59am
20029980
13
CLINTON LIBRARY. PHOTOCOPY
�(
terri tory "must be '.consistent with the. supremacy and supervision
of National authority'" as asserted in the Memorandum at p. 5.
The case did not address whether Congress could irrevocably limit
its right to alter a law because of a mutual consent clause, nor
did it use the word "must".
The quote is dicta and deals with
how Congress had approached local government up to that time.
The actual quote is as follows~
The theory upon which the various governments
for portions of the territory of the United
States have been organized, has ever been
that of leaving to the inhabitants all the
powers of self-government consistent with the
supremacy and supervision of National
authority, and with ~ertain fundamental
principles established by Congress.
80
u.s.
at 441 (emphasis added).
This quote establishes nothing more than the historical fact that
Congress in its approach to self-government for the Territories
had not agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co., 302
nothing to the debate.
u.s.
260 (1937) adds
The Court recites the quote set forth
above from Clinton v. Englebrecht but uses it to affirm a broad
grant of power to territorial legislatures, not to bar Congress-.
from entering into an agreement not to exercise its authority.
In fact, the ho1ding in Puerto Rico was to affirm the validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346
u.s.
100 (1963)
I.
·"''
09/15/94, 11:59am
20029980
14
CLINTON LIBR'~RY PHOTOCOPY
�~~~--------------------------------
(
with the other cases, the Court was merely referring to the same
precedent regarding the general authority of Congress to alter
its legislation relating to a territory, but, here
aga~n,
this
discussion was not in the context of an expresiion by Congress of
an intent to limit itself.
7
More importantly, the laws in
question contained specific reservations permitting Congress to
make such amendments.
346
u.s.
at 195.
What is missing from this section, is a discussion of two
important decisions more closely on point.
v. Wallace, 396
u.s.
The first is Currin
1 (1938) which is mentioned in footnote 13
of the Memorandum but summarily dismissed as being inconsistent
(
with the Department's new theory that Congress cannot bind
itself.
This is a decision which we suggest is more
appropriately left to the Supreme Court.
Currin is significant
because the Supreme Court approved an Act of Congress
implementation of which required the approval of those affected
by it, the essence of the Guam mutual consent clause.
The Act,
7
c~=-=
"... .__.
The memorandum attempts to bolster the Department's
theory that Congress must retain the authority to revise, alter
or revoke any authority it grants to the territories by citing
United States v. Sharpnack, 355 U.S. 286 (1958); Harris v.
Bareham, 233 F.2d 110 (3rd Cir. 1956); Firemen's Insurance Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 u.s. 648 (1874) and Christianson v. King County, 239 u.s. 365
(1915).
The cases cited, similar to D.C. v. Thompson, 346 u.s.
100 (1953) do not discuss an express intent by Congress to limit
the exercise of its authorityi rather they are limited to
situations whereby Congress clearly reserved the exercise of its
authority to revi~e, alter or revoke through enacted legislation.
09/15fJ4, 11:59arn
20029980
.
15
CLINTON I.:IBR\R\' PHOTOCOPY
�passed pursuant to the Commerce Clause which the Memorandum·
asserts gives Congress the same plenary power as the Territorial
Clatise,
was challenged as an unconstitutional delegation of
authority.
The Court disagreed finding that rather than a
delegation of legislative authority, the Congress "has merely
placed a restriction upon its own regulation by withholding its
operation ... 'unless two-thirds of the [voters] voting favor it.
Similar conditions are frequently found in police regulations."
306 U.S. at 15.
The Court went on:
Here it is Congress that exercises its
legislative authority in making the
regulation and in prescribing the conditions
of its application. The required favorable
vote upon the referendum is one of these
conditions ... "Congress may feel itself unable
conveniently to determine exactly when its
exercise of the legislative power should
become effective, because dependent on future
conditions ... it may leave the determination
of such time to ... a popular vote of the
residents of a district to be effected by the
legislation. While in a sense one may say
that such residents are exercising
legislative power, it is not an ex~ct
statement, becau~e the power has already beeri
exercised legislatively by the body vested
with that power under the Constitution, the
condition of its legislation going into
effect being made dependent by the
legislature on the expression of the voters
of a certain district."
(
306 U.S. at 16 (citing Hampton & Co. v. United States, 276 U.S.,
394, 407 (19??).
If the Court agrees Congress has the authority to make
implementation of its legislation subject to ratification by the
affected voters, it is inconceivable that the Court would find
09/15/94, 11:59am
20029980
16
CLINTON LIBRARY PHOTOCOPY
�(
that Congress could not agree to limit its ability to change that
same law without the consent of those same voters, if Congress·
has expressed its intention unmistakably.·
The most troublesome oversight in this sectiori of the
Memorandum, however, is the failureto·discuss the Ninth
Circuit's decision in United States v. De Leon Guerrero, 4 F.3d
749 (9th Cir. 1993), cert. denied,?? U.S.?? (199?).
De Leon
. Guerrero is the only decision of which we are aware that deals
·with. the applicability of a mutual consent provision in
territorial legislation.
The case arose under the Covenant for
the Commonwealth of the Northern Mariana Islands.
was ratified by an Act of the Congress.
48
u.s.c.
The Covenant
§
1681b.
The
case involved an ongoing debate about whether the Commonwealth's
right o{ local self-government as defined in the Covenant under
Section 103 substantially limits Congress' legislative powers
over the Commonwealth under Section 105".
4 F.3d at 752.
The
specific issue was whether the audit provisions of the Inspector
General Act of 1978 "conflicts with the self-government
provisions of the Covenant". 4 F.3d ai 753.
In order to reach the question, the court first had to deal
with arguments put forward by the Department of Justice which are
identical to those in the Memorandum.
Arguing on behalf of the
Inspector General, the Department asserted that Corigress'had the
right to pass the Act under the Territorial Clause·arguing "that
( '~"
because the CNMI is governed through Congress' power under the
'-~
09!15ri4, 11:59am
20029980
17
CLINTON LIBR~RY PHOTOCOPY
�(
'·
Territorial Clause, Congress has plenary legislative authority
over the CNMI ,; . . 4 F. 3d at 7 54. 8
"unpersuasive".
The court found this argument
According to the Ninth Circuit
'the authority of the United States towards
the CNMI arises solely under the Covenant.'
The Covenant has created a 'unique'
relationship between the United States and
the CNMI, and its provisions alone define the
boundaries of those relations ... The
applicability of the'Territorial Clause to
the CNMI, however, is not dispositive of this
dispute.
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 authority.
4 F.3d at 754.
(
Ultimately, the Ninth Circuit approved
~pplication
of the
law not because Congress had plenary authority under the
Territorial Clause but because the Covenant specifically gave
Congress the right to enact legislation applicable to the
Commonwealth.
The only limit on this right is a mutual consent
provision stating that a few limited sections of the Commonwealth
Act could not be modified without the mutual consent of the
8
The court referred to Simms v. Simms, 175 U.S. 162, 168
(1899) a case which explained that under the Territorial Clause,
Congress "has the entire dominion and sovereignty, national and
loc~l, Federal and state, and has full legislative over all
subjects upon which the legislature of a state might legislate
within the state". This is the same principle upon which the
Justice Department again relies.
09/15/94, 11:59am
20029980
18
CLINTON LIBRARY PHOTOCOPY
�(
Commonwealth.
consen~
mutual
Covenant Section 105. 9
The Court found that this
provision as drafted did not bar the Congress from
passing laws affecting the Commonwealth where the u.s. had a
sufficiently significant interest to justify it.
The holding in De Leon Guerrero contradicts directly the
conclusion paragraph to this section.
This paragraph reasserts
that the "non-state areas are subject to the authority of
Congress, which, as shown above, is plenary ... [and] persists
(until] the area becomes a State or ceases to be under United
States sovereignty".
cle~r
makes
(
Memorandum at 6.
Rather, that decision
that Congress' authority, after a political status
change agreed t6 between Congress and the people of the
territory, is defined solely by the terms of that agreement.
Section III -- The Rule that Legislation Delegating Governmental
Powers to a Non-State Area Must Be Subject to Amendment and
Repeal Is but A Manifestation of the General Rule That One
Congress Cannot Bind A SUbsequent Congress, Except Where It
Creates Vest~d Rights Enforceable Under the Due Process Clause of
the Fifth Amendment -- pp 6-7.
This entire subsection is premised on a fallacy.
There is
no rule expressed in any decision of any court that governmental
powers to a non-state area must be subject to amendment and
repeal.
As described· above, the most that can be said is that
there is dicta in a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the mutual consent
provisions which the Memorandum states the Department will
continue to support. Memorandum at 12.
09/15/94, 11:59am
20029980
CLINTON UBR'l.R.\' PHOTOCOPY
�(
whether Congress can bind itself, that Congress' actions in the
territories are subject to later amendment or repeal.
What is
accurate in the section is that these statements are nothing more
than "a specific application of the maxim that one Congress
cannot bind another .... "
Memorandum at 6.
The analysis does not end-here, however, because it is
simply not true that one Congress cannot bind another, as the
Memorandum recognizes but then attempts to explain away.
As
described above, the most that can be said is that there is dicta
in a series of cases, which do not address the issue of whether
~ongress
(
c~n
bind itself.
They stand only for the proposition
that when express statutory language exists or when language is
not provided and it is clear Congress originally had the power,
then in those situations Congress retains its authority and its
actions in the territories may be subject to later amendment or
repeal.
In the end, the section misrepresents as conclusive and·
inflexible "the maxim that one Congress cannot bind another."
First, the law must create vested rights as Justice Marshall
explained in Fletcher v. Peck, 19 U.S.
( 6 Cranch) 87, 135 ( 1'810)
("When, then, a law is in its nature a contract, when absolute
rights have vested under that contract, a repeal of the law
cannot devest (sic) those rights.")
10
This, too, the Memorandum
10
Although the Department in its memorandum focus' on the
dissenting opinion in u.s. Trust Co. v. New Jersey, 431 u.s. 1
(1977) the actual holding was that impairment of contract by the
State was in violation of the Contract clause and neither
necessary nor reasonable in light of the circumstances. Although
09/15/94, 11:59am
20029980
20
CLINTO~l LIBR.~RY PHOTOCOPY
�(
recognizes but goes on to.utilize a quote from the Sinking Fund
Cases as part of its effort to build a case that only contractual
rights of a private nature are protected from change.
The analysis provided is incomplete.
11
The test actually
established by the Supreme Court to determine whether Congress
has bound itself turns not on the nature of the contraci (private
right vs public) but on whether Congress has expressed its
intention to protect the vested right in "unmistakable terms".
The "unmistakable terms" doctrine is not even addressed in the
Memorandum.
(
Infra at p. 25.
Section IV -- The Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two.Mutual Consent Clauses- p. 8.
The Memorandum presents two bases for its conclusion that
the Due Process Clause does not bar a repeal of a mutual consent
the Contract clause applies to States and not th~ federal
government, the "United States are as much bound by their
contracts as are individuals." .Sinking-Fund Casess, 98 u.s. 700,
719 (1879).
The Court in Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v. United States, 292 U.S. 571, 579 (1934), stated "the Supreme
Court held that "(r]ights against the United States arising out
of a contract with it" are property rights protected from
deprevation or impairment by the 5th Amendment." See also Madera
Irr. Dist. v. Hancock, 985 F.2d 1397, 1401 (9th Cir. 1993).
Moreover the Court, in U.S. Trust Co. noted that "a statute is
itself treated as a contract when the language and circumstances
evince a legislative intent to create private rights of a
contractual nature enforceable against the State." 431 u.s. at
17, fn 14 (1977).
11
What is not disclosed about the Sinking Fund Cases is
that the "statutes in question expressly reserved Congress'
authority to repeal, alter, or amend them, and Congress exercised
. tha·t power ... ". POSSE, 477 u.s. at 53.
09!15/94, 11 :59am
20029980
21
CLINTON LIBR.~R\' PHOTOCOPY
�clause.
First it points out that a territory is not a person
within the meaning of the Due Process Clause.
herring.
This is a red
Secondly, it asserts that a repeal would not deprive a
territory of property within the meaning of the Fifth Amendment.
This is not t~e test the Supreme Court has established.
not the nature of the vested right that controls.
It is
Rather,
the
test involves a combination of a vested right coupled with an
"unmistakable" commitment by the Congress not to interfere with
the right.
Subsection IV, B -- "A Non-State Area Is Not A Person in the
Meaning of the Due Process Clause of the Fifth Amendment." pp.a-·
9.
We do not need to debate the merits of the legal arguments
presented in this subsection because this is a non-existent
issue.
The mutual consent clause being discussed between the
President's designated negotiator and representatives of the Guam
Commission on Self-Determination runs between the Government of
the United States
~nd
the People of Guam, not the political
entity of the Commonwealth of Guam as the Memorandum assumes.
The People of Guam clearly qualify as persons under the Due
Process Clause.
We have attached the current configuration of the proposal
for your review.
The reference to the People of Guam is
appropriate because elsewhere in the Act we intend to require
(· --
. that after adoption by Congress the People of Guam hold a
,_
09/15/94, 11:59am
2002998o
22
CLINTON LIBR~RY PHOTOCOPY
�(
plebiscite to approve what Congress has enacted before it becomes
applicable_to Guam.
In this regard, we also intend to change the
nature of the Guam Commonwealth Act.
Rather·than an Act of
Congress approved by the people before implementation, it will
become a Covenant between the United States and the peo~le of
Guam.
This Covenant will create vested and binding rights
protecting both the interests ~f the United States and of the
People of Guam.
Subsection IV, B -- Legislation Relating to the Government of
Non-State Areas Does Not Create Any Rights Or Status Protected By
the Due Process Clause Against Repeal Or Amendment By Subseque~t
Legislation. - pp. 9-12.
(
While recognizing that the Government may enter into
contracts, the Memorandum asserts that only contracts similar to
those entered into by private individuals are enforceable, and
"governmental powers cannot be contracted away", citing North
American Coml. Co. v. United States, 171
u.s. 110, 137 (1898). 12
To bolster its position, the Memorandum relies on the POSSE
12
The comment by the Court relied upon by the Memorandum
is dicta.
It came in a case involving Congress' right to alter
the terms of a lease through regulation.
The decision did not
turn on the rule that sovereign regulatory authority could not be
waived.· It turned on the fact that an express reservation of
authority had been included in the contract. As the Court noted,
this was a lease. "expressly subjected from the peginning, to
whatever regulations of the business the United States might
make".
171 U.S. at 137.
09/15/94, 11:59am
. 20029980
23
CLINTON LIBR'},RY PHOTOCOPY
�decision.
13
The POSSE decision, however,
matter of the contract in question.
did not turn on the subject
The actual foundation of the
Court's holding was that if Congress was to surrender any of its
sovereign power in a contract, it must do ·so in "unmistakable
terms".
The "unmistakable terms" analysis would not be necessary
if the Court did not assume that Congress could indeed surrender
sovereign powers, even in the realm of traditional regulatory.
authority as was presented in the POSSE case.
This is exactly
the opposite of what the Memorandum asserts.
Indeed, the Court's reference to the bond and insurance
cases had no direct bearing on the Court's.holding.
The cases
were cited for the limited purpose of contrasting circumstances
where Congress clearly evidenced its intent to bind itself from
the facts in the POSSE case where "Congress·expressly reserved to
itself "[t]he right to alter, amend, or repeal any provision of"
13
(·
"'
=~:
....__
The Memorandum lacks examples that give support to the
Memorandum's theory that Congress does not have the ability. to
limit the exercise of its authority under the plenary power of
th~ Territorial Clause.
Rather, the cases cited involve
situations whereby the Congress through legislation, or the lack
of legislation, retained its authority. For example, the
memorandum indicates Hudson Water Co. v. McCarter, 209 U.S. 349
(1908) has a much broader interpretation than the actual case
decision provides for.
In fact, Hudson concerns an action
involving a water rights contract between the State and an
individual where the State _did not include provisions limiting
its powers, therefore allowing subsequent legislation by the
State and a resulting ineffective contract.
It is not about the
State's incapability to limit its power by contract, rather it's
about the authority of a State to retain its power when. not
granted· away.
09115194, 11:59am
20029980
CLINTON LIBR.\RY PHOTOCOPV
24
�(
the Act which lead to the contracts at issue.
The Court
re~ied
477 U.S. at 42.
upon this contrast because its holding in POSSE
was that the Congress could amend the legi~lation in question,
even if that amendment interfered with contractual rights,
because it had not unmistakably indicated its intent to bind
itself
-~
the standard the Court has established. for determining
whether Congress has waived its sovereign power.
The actual holding in POSSE -- that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thrift Supervision,
~67
(,
..
F.2d 598, 621 (D.C. Dir. 1992).
The Transohio decision
demonstrates conclusively that the Memorandum's analysis of the
holding in POSSE is so flawed that one wonders how it could be
used to justify a proposed reversal in such an important area of
Administration policy.
In that decision, the D.C. Circuit makes
clear that "(t]he Supreme Court reached [its] conclusion by
analyzing the governing statute, the Social Security Act" ·and
focused on the fact critical to its decis.ion -- " ( t] he Social
Security Act contained an express reservation of Congress' power
to amend the law ... ", 967 F.2d at 621, not by establishing the
per se "private rights" test asserted in the Memorandum.
According to the D.C. Circuit
The "principles form(ing] the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the urunistakability doctrine--the doctrine
09/15/94, 11:59am
20029980
25
CLINTON UBRI.\RY PHOTOCOPY
�(
_that " 'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain.
intact unless surrendered in unmistakable
terms.' " 1.f!. at 622 (emphasis added). 14
The D.C. Circuit also discussed the history of the
unrnistakability doctrine.
"The "unmistakability" doctrine is a special
rule of contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in_a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of its sovereign
powers.
Id. at 618.
Both the POSSE and Transohio cases dealt with the
application of the "unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
....
':1.~.
-
1
~-
If the Court had actually established a per se rule
which depended on the nature of the contract, then why did the
Court continue after stating the unmistakable terms principlE;! and
the general rule that "contractual arrangement, including those
to which a sovereign itself is party, remain subject to
subsequent legislation by the sovereign" state that "(t]hese
principles form the backdrop against we must consider the
District Court's decision effectively to forbid Congress to amend
a provision of the Social Security Act".
477 U.S. at 52.
By
use of the "must consider" terminology, the Court made clear what
the test is.
It would have been much more direct and ultimately
clearer simply to have ruled that the contract between the Social
Security Administration and the State of California was not a
traditional private contract.
It did not, of course, because
that is not the test the Supreme Court ever applies.
The test is
whether Congress has stated its intentions in unmistakable terms.
09/15/94, 11:59am
20029980
26
CLINTON LIBR~RY PHOTOCOPY
�.-----------~~-----;-------------------------~-,
(
regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on "traditional private contractual rights"
which the Memorandum would have us believe is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by adopting the "traditional private contractual
rights" test advocated in the Memorandum with
a·
simple ·finding
that alleged contractual rights associated with the regulatory
programs at issue in the cases are not traditional private
contractual rights.
They did not, of course; because the Supreme
Court applies the "unmistakable terms" test which requires an
(
analysis of Congress' intent, not the per se standard proposed in
the Memorandum.
See,
~'
477 U.S. at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding-- that·congress
can contract away sovereign rights to exercise its regulatory
authority when its says so unmistakably.
15
Instead of dealing
15
The POSSE decision has even been criticized because it
appears to open the door wider than some commentators believe
advisable .. In an article by Da~id Toscano entitled ''Forbeaiance
Agreements: Invalid Contracts for the Surrender of Sovereignty
analyzed the POSSE decision in great d~tail.
It concluded.that
"[t]he power to waive sovereignty was recognized" in POSSE.
92
Col urn. L. Rev. 426, 451.
It goes on " [ i ]n POSSE, the Court
relied entirely on Merrion v. Jicarilla Apache Tribe for the
proposition that the federal government can surrender sovereign
power.
Jicarilla in turn relied upon cases involving primarily
th~ taxation powers of state governments ... Instead of endorsing
09/15/94, I 1:59am
20029980
27
CLINTON LIBR..lJ.R.\' PHOTOCOPY
�(
accurately with the Court's actual analysis, the Memorandum at
page 11 relies upon a quote, claimed to set forth the holding,
which is taken completely out of context and has nothing
whatsoever to do with.the holding.
The quote, taken from 477 U.S. 55, fails to include the
entirety of the paragraph, the remaining text from which puts
back int6 context the relat~onship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress have stated in unequivocal terms its
(
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
After stating that the contract claimed
by the State of California "bears little resemblance to rights
held to constitute 'property' and citing to the insurance.and
bond cases as examples, the Court went on to explain their
relevance.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
-t
-
:::-
-"~
the rule applying to the police powers -- such .powers cannot be
surrendered -- it adopted the r~le applying to taxation powers
such powers can only be surrendered if done so unmistakably.
This move should not be followed·automatically: .if the Court
wants to enforce contracts that surrender the federal
government's regulatory authority, it. should do so on the basis·
of policy arguments, not on the basis of POSSE."
rd. at 460.
.Obviously the author did riot like the test used by the Court.
Nevertheless his criticism makes clear what the test is.
09/15/94, 11:59am
20029980
28
CLINTON LIBRARY PHOTOCOPY .
�(
of its power to provide for the general
welfare.
Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
477 U.S. at 55
(emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contracting away its right to adopt
legislation, because the "Court has never held that the United
States cannot surrender regulatory powers through contract ... "
(
92 Colum. L. Rev at 458.
makin~
But the Court has approved Congress
effectiveness of its legislation subject to approval by
the voters who are impacted
Wallace, 306 U.S. at 15-16.
9Y
the legislation, see, Currin v.
It defies the rational of the POSSE
decision to argue that the Court would approve Congress adopting
legislation making effected-voters approval a requirement and
then pass subsequent legislation authorizing it to ignore the
vote of approval, if it has stated in unmistakable terms that it
would not take such action.
After spending eleven and one-half pages arguing that mutual
consent clauses are unenforceable and unconstitutional, the
Memorandum comes to an astounding conclusion.
c- -.
---.
It states that the
"Department of Justice ... would honor past commitments with
'respect to the mutual consent issue", including Section 105 of
09!15/94, 11:59am
20029980
29
CLINTON LIBR.~RY PHOTOCOPY
�(
the Covenant with the Northern Marianas Islands.
But the
Department cannot have it both ways.· An .Act of Congress is
either constitutional and enforceable or it is not.
If a mutual
consent provision for Guam is unenforceable, then the Department
must reach·the same conclusion for all other mutual consent
provisions.
This includes the mutual consent provisions in the
Compact of Free Association with Palau' scheduled to go into
effect on October 1, 1994.
The Department's Memorandum offers no
solid basis for such a significant reversal in policy.
All of
the cases upon which it relies, except POSSE, were available to
it when its earlier positions supporting mutual consent were
made.
POSSE does not change any rule with regard to Congress
binding itself.
It merely lays out clearly a test adopted in
1981 in Merrian v. Jecarilla Apache Tribe,
4~5
U.S. 130, which in
turn carried forward a principle which the D:c. Circuit states
"dates back to the early 19th century."
09/15/94, 11:59am
20029980
30
967 F.2d at 618.
CLINTON UBR.'~RV PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
Phone No. (Partial) (1 page)
02/18/1997
P6/b( 6)
002. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/28/1994 ·
P5
003. statement
re: Comments onDOJ memorandum regarding mutual consent
provision in the Guam Commonwealth legislation (53 pages)
08/26/1994
P5
·COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
OA/Box Number: 24087
FOLDER TITLE:
CLINTON UBR./\R\' PHOTOCOPY
Governors - Guam [2]
Jamie Metrailer
2006-0193-F
'mlOl
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
~~~
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Office of
Otfrc~
,,f
th~
U:~al
W<.L<IIingron. D. C
Cuunsd
::o53r'
o~p:.H) .•\s>i'l~!ll All<lrll~) Gcn~rHl
. July 28, 1994
MEMORANDUM: FOR
THE SPECIAL REPRESENTATIVE
FOR GGA."\1 COMMONWEALTH
From: Teresa Wynn
Roseborough~
Deputy Assistant Attorney General
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains
two sections requiring the mutual consent of the Government of the United States and the
Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal.
laws, rules. and regulations passed after the enactment of the Commonwealth Act would
· apply to Guam without the mutual consent of the two governments .. The Representatives of
Guam insist that these two sections are crucial for the autonomy and economy of Guam. The
fanner views of this Office on the validity or efficacy of mutual consent requirements
included in legislation governing the relationship between the federal government and nonstate areas. i.e. areas under the sovereignty of the United States that are not States, 1 have·
CLINTON LIBRARY PHOTOCOPY
, ' Territories that have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective governor. resent being called Territories and claim that that
legal term and its implications are not applicable to them. We therefore shall refer to all Territories and
under the sovereignty ofthe United Stat~s or briefly as non-state areas.
Commonwealths as non-state
areas
�CLINTON LIBRi1.RY PHOTOCOPY
nor been consistent.: We therefore have ~arefully reexamined this issue. Our cundusion
that these clauses raise .serious constitutional issues and are legally unenforceable ..i
1-.
In our vie\l.·. it is important that the text of the Guam Commonwealth Act nor create
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation. We must then!fore oppose the inclusion in the
Commonwealth Act of any provisions, such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
·
~
·
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129·, 132-33 (1880). There the Court held:
:To our knowledge the first consideration of the validity .of mutual consent clauses occurred in. 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such clawes should not be opposed on the
ground that they go beyond the constitutional power of Congress. In 1963 the Department of Justice opined that
such clauses were legally effective because Congress could create vested rights in the status of a territory that
could not be revoked unilaterally. The Department adhered to this position in 1973 in connection with then
pending Micronesians status negotiations in a memorandum approved by then Assistant Attorney General .
Rebnquist. On the basis of this advice, a mutual consent Clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent clawes
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Pu:.;rto Rico Status Referendum Bill
light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapment,-477 U.S. 41, .55 (1986), and concluded that there could
not be an enforceable vested right in a political status; hence that mutual consent clauses were ineffective
because they would not bind a subsequent Congress. We took the same position in the Second Guam Task
. Force Report issued during the last days of the Bush Administration in January 1993.
m
3
Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordinance contained six "articles of compact, between the original States and the people and
States in the said territory, and [shall] forever remain unalterable, unless by common consent." These articles
were incorporated either expressly or by reference into many early territorial organic acts. Clinton v. ·
Englebrecht, 80 U.S. (13 Wall.) 434. 442 (1872). The copious lit~gation under these "unalterable articles"
focussed largely on the question whether the territories: obligationS under them were superseded by the
Constitution. or when the territory became a State, as the result of the equal footing doctrine. We have,
however. not found any Ca.ses dealing with the question' whether the Congress had the power to modify any duty
imposed on the United States by those articles.
- 2
�I
.
CLINTON LIBR~RY PHOTOCOPY
It is certainly now too late to doubt the power of Congress to goven'l
the Territories. There have been some differences of opinion as to ·rhe
particular clause of the Constitution from which the power is derived. but that
it exists has always been conceded.~
* "' ...
All territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the. general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Territory takes the place of constitution as the fundamental law of the local
government. It is obligatory on and binds the territorial authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
a
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v: Canter, 26 U.S. (1 Pet.) 511,542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood], ·
Florida continues to be a territory of the United States; governed by virtue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
r:
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self-
• Some derived that power from the authority of the United States to acquire territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec: 3.
Cl. 2) pursuant to which Congress has "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". See~ American Insurance Co. ' .
Canter, 26 U.S. (I Pet.) 51 I. 542 (1828): Mannon Church v. United States, 136 U.S. l. 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244, 290 (1901).
At present. the Territory Clause of the Constitution is generally considered to be_ the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
(1945): Examining Board v. Flores de Otero, 426 U.S. 572, 586 (1976); Harris v~ Rosario, 446 U.S. 651
{1980): ~also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), cert. denied sub.!lQID. Philippine
Goods, Inc. v. Wabol. __ U.S._. 113 S.Ct. 675 ( 1991). (Footnote supplied.)
-3-
�'~(wernment. may result necessarily from the facts. that it is not within the
· .iurisdiction of any panicular state. and is within the power and jurisdiction of
the United States.
"In legislating for them [the Territories], Congress exercises the combined
powers of the general, and of a state government."
Id. at 542-43. 546.
· The power of Congress to govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1.
196 (1824), with respect to the Commerce Power:
This power [the Commerce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent; and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. See y., Hodel v. Virginia
Surface Mining and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause is subject to constitutional limitations has been ,
recognized in County of Yankton, 101 U.S. at 13~; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-state areas persists "so long as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establishment of the Commonwealth of the Philippine
Islands and the fmal withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retairis that status. It terminates when the area loses that status either by vinue of its
admission as a State, or by the termination of the sovereignty of the United States over the
area by the grant of independence. or by its surrender to the sovereignty of another country .
."'UNTON LIBRARY PHOTOCOPY
-4-
�II.
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas full powers of selfgovernment and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation. 'however, must be "consistent with the supremacy and
supervision of National authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434. ~1
(1872): Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261-62 (1937): The requirement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise, alter. or revoke the authority granted. District of Columbia v.'
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Shamnack, 355
U.S. 286, 296 (1958), Harris v. Bareham, 233 F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state areas thus ·is contingent on the
retention by Congress of its power to revise, alter, and revoke that 1egislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the ·power of Congress under the
Territory Clause to give up its sovereignty·over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power. Congress therefore has no
.
Thompson dealt with the District of Columbia's government which is provided for by Art. I. Sec. 8. Cl.
17 of the Constitution. rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court. however. held that in this area the rules relating to the Congressional power
to govern the District of Columbia and the non-state areas are identical. Indeed. the Court relied on cases
dealing with non-state areas, y .. Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative
authority under Art. I. Sec. 8. Cl. 17 of the Constitution to the District, subject to the power of Congress at any
time to revise, alter. or revoke that authority. ·
~
~ Congress ,has exercised ~his power with respect to the District of Columbia. The Act of February 21.
1871. 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a go.vemor appointed by the
President, a legislative a.Ssembly that included an elec'ted house of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20. 1874, 18 Stat. 116. which abrogated among others the provisions
for the legislative assembly and a delegate in Congress, and established a government by a Commission
appointed by. the Presid1ent.
-5 -
':LINTON LIBR'\R.Y PHOTOCOPY
�authority to enact legislation under the Territory Clause that would limit the unklll.!reu
exercise.of its power to amend or repeal.
The same result flows from the consideration that all non-state areas are subject to the
authority of Congress. which, as shown above, is plenary. This basic rule does not penn it
the creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and terntinates only when the area becomes a State or ceases to be under United
States sovereignty. There is no intennediary status as far as the Congressional power is
concerned.
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
ill.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and repeal is but a manifestation of the general
rule that one Congress cannot bind a subsequent Congress. exce.pt where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but· a specific application of the maxim that
,
one Congress cannot bind a subsequent Congress and the case law developed un,der it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen pennanently and would acquire virtually constitutional status .. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey, 431 U.S. 1, 45 ( 1977), a case involving the Impairment of the Obligation of
Contracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days .... The Framers fully recognized that nothing
wpuld so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rascals might perpetuate their policies simply by locking them into
binding contracts.
CLINTON UBR'1.R.\' PHOTOCOPY
-6-
�Nt)n~theless. til~
maxim that one Cungress cannu1 hind future Con~ress. likt: e\ er;.
legal mit!. has its limits. As early as 1810. Chief Justice Marshall explained in Fletcher , .
Peck. 10 U.S. (6.Cranch) R7. 135 (1810):
The principle asserted is that one legislature is competent to repeal any
act which a fanner legislature was competent to pass: and that one legislature
cannot abridge the powers of a succeeding legislature.
The correctness of this principle, so far as respects general legislation.
can never be controverted. But. if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most- absolute
power.· Conveyances have been made. those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority' still' that
they originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
-of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from depriving persons or cmporations of property without due
process of law. They cannot legislate back to themselves; without making
compensation. the lands they have given this corporation to aid in the .
construct1on of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The United States are as much bound by their contracts as are
individuals. (emphasis supplied.)
·
See also Bowenv. Agencies Opposedto Soc. Sec. Entrapment, 477 U.S. 41, 54-5.6 (1986).
'I
\NTON LIBR..~RY PHOTOCOPY .
-7-
�IV
The Due Process Clause does not Preclude Congress from
Amending or Repealing the -two Mutual Consent Clauses
_The question therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequent Congress from repealing legislation for the gove'mance of non-state
areas enacted by an earlier Congress under the Territory Clause. This question must be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall . . . be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This .Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive .
the non-state area of a property right within. the meaning of the Fifth Amendment.
A.
A non-state area is not
Fifth Amendment.
a person
in the meaning of the Due Process Clause of the
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held' that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment. See also, Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), cert. denied, 493 U.S. 991.
(1989) _("The State of Alabama is not included among the entities protected by the due
process clause of the flfth amendment"); and State of Oklahoma v. Federal Energy
Regulatory Comm., 494 F.Supp. 636, 661 (W.D. Okl. 1980), aff'd, 661 F.2d 832 (lOth Cir.
1981), cen. denied, sub. nom. Texas v. Federal Energy Regulatory Comm., 457 U.S. 1105
(1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts. are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. IBWC/US, 701 F.
Supp. 121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are not States or instrumentalities of States, and we
not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
~ave
-8-
CLINTON LIBR'\R.YPHOTOCOPY
�the rationale of South Carolina , .. Katzenhach. 3~3 lJ.S. at 301. appears 1\l be that sucll
bodies are not protected by th~ Due Process Clause of the Fifth Amendment. Moreover. it ~~
well established th~t the political subdivisions of a State are not considered persons pnitectt:d
as against the State by the provisions of the Founeenth Amendment. See. ~, Newark v.
New Jersey. 262 U.S. 192, 19o (1923): Williams v. Mayor of Baltimore. 289 U.S. 36.40
( 1933): South Macomb Disposal Authority v. Township of Washington. 790 F.2d 500. 505.
soi (6th Cir. 1986) and the authorities there cited. The relationship of the non-state areas to
the Federal. Government has been analogized to that of a city or county to a State. As stated.
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is rriuch the same as
that which counties bear to the respective States ...
More recently, the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States V. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating to the governance of non-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend .. or repeal earli~r legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment.
i.e., if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
Legislation concerning the governance of a non-state area, whether called organic act.
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
ir connection with the District of Columbia. See District of Columbia v. Thompson Co.,
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause.
CLINTON LIBR'\RY PHOTOCOPY
-9-
/
�kf!islation concerning the
hy subsequent h!gislation.
~llvernment t11
a
non-stat~
area
i~
subject ttl amendlllent
(lr
n.:pl.!al
This leads to the question whether the addition of a mutual consent clause. i.e. of a
provision that the legislation shall not be modified or repealed without the consent of the
Government of the United States and the Government of the .non-state area. has the effect of
creating in the non-state areas a specific status amounting to a property right within the
meaning of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because (1) sovereign governmental powers cannot be contracted away. and
(2) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
1.. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898) ..
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause· (Art. I, Sec. 10, Cl. 1) of t.he Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v .. New Jersey, 431 U.S. 1, 23 (1977). 7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are, are subject to state restriction.
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the laner ..or that federal
legislation shall not apply to Guam unless consented to by the Governmeiu of Guam would
unquestionably purport to surrender essential powers of the federal government. They are
~ Cases arising under the Contract Clause holding that a State cannot contract away a sover-:ign power are
also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fiftli Amendment imposes on the federal government. Pension ·
Benefit Guaranty Corp. v. R.A. Gray Co., 467 U.S. 717. 733 (1984); National Railroad Passenger Corp. v.
A.T. & S.F. R .. ~470 U.S. 451. 472-73 n.25 (1985). Hence. when state legislation does nor violate the
Contract Clause; analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
• Cited with approval with respect to federal legislation in Norman v. B. & 0. R .. 294 L. S. 240. 308
( 1935).
- 10 -
CLINTON LIBR'\RY PHOTOCOPY
j
�J
tllc:ref1lrl' llllt hindin~ on tilt' United Stall'' and
the Fifth Am!.!ndment. ~
(lllllllll
l'llllk:r a pn>JK~rt~ inter~st prur~l·t~d ~~~
More generally. the Supreme Court held in Bmven \'. Agencies Opposed to Soc. Sec.
Entrapment. 477 U.S. 41. 55 ( 1986). that the contractual property rights protected by the
Due Process Clause of the Fifth Amendment are the traditional private contractual rights.
such as those arising from bonds or insurance contracts. but not arrangements that are part of
a regulatory program such as a State's privilege to withdraw its participation in the Social
Security system with respect to its employees. SpecificalJy. the Court srated:
But the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "property'' within the meaning of the
Fifth Amendment. The· tennination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 418 itself. The provision constituted neither a debt of the
United States. see ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see Lynch V. United States, supra. The tennination clause
was not unique to this Agreement; nor was it a tenn over which the State had
any bargaining lmwer or for which the State provided independent
consideration. Rather, the provision simply was part of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to .
Guam without the consent of the Government of Guam clearly do not constitute conventional
private contracts: they are elements of a regulatory system.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from unilaterial.
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
~Cases such as Lvnch v. Cnited States, 292 L'.S. 571 (1934). and Perrv v. United States. 294 L'.S. 330
(1935 ). are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance:
. P~rrv: Government bonds) In Lynch the Court held that Congress could not amend the contract merely to save
money "unless. indeed the action falls within the federal police police power or some other paramount power."
:!92 U.S. at 579. Perrv involved bonds issued by the United States under the authority of Art. I, Sec. 8, C'l. 2
of the Constitution. to. borrow money on the credit of the united States. The Court held that Congress did not
hav~ the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating one
of the pivotal terms of the bonds to save money. While the Court held that the United States had broken the
agreement. it nevertheless held that plaintiff could not recover because. as the result of regulations validly issued
by the United States. he had not suffered an); monetary damages._
;:. Cf.
n.:.
- 11 -
CLINTON LIBRi!.R\' PHOTOCOPY
�t'.
'iew of tht: mlings of the Supreme ClHirt that legislation concerning the governance of a nonstate area is necessarily suh_iect to Congress1onal amendment and repeal: that govemmt:ntal
bodies are not persons within the meaning of the Due Process' Clause: that governmental
powers cannot be contracted away. and espec1ally the, exposition in the recent Bowen case.
that the property rights protected by the Due Process Clause are those arising from private
Ia\\· or commercial contr<lcts and not those arising from governmental relations. 1.1
Sections 103 and 202. therefore do nm create vested property rights protected by the
Due Process Clause of the Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shall apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions, therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. 13
Finally, the Depanment of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 1989 Task force proposal to amend Sectiori 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101 , 103, 201, and 301 _constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
11
It is significant that the circumstances in which Congress can effectively agree not. to repeal or amend
legislation were discussed in the context of commercial contracts. Bowen, 477 U.S. at 52.
:: Bowen. it is true. dealt with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
consent of the Government of Guam. The underlying agreements, however." are not of a private contractual
nature,. and. hence, are not property within the meaning of the Due Process Clause. We cannot pereeive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
1
:> The conclusion that Section 202 of the Guam Commonwealth Act (inapplicability of future federal
legislation to Guam without the c·onsent of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 202. In Currin v. Wallace, 306 U.S. l, 15-16 (1939), and United
States v. Rock Royal Co-op. 307 U.S. 533, 577-78 (1939), the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco farmers or milk producers affected by them.
The Court held that this approval was a legitimate condition for making tbe legislation applicable. Similarly, it
. could be argued that the approval of federal legislation by- the Government of Guam is a legitimate condition for
making that legislation applicable to Guam. Since, as stated above, a future Congress would not be bound by
Section 20:!. we need not decide the question whether the requirement of approval by the Government of Guam
for every future federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
- 12 CLII~TON LIBRARY PHOTOCOPY
�August
26~
1994
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION IN THE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to review the July 28, 1994
memorandum initialed by Deputy Assistant Attorney General
Roseborough and addressed to the Special Representative for Guam
Commonwealth· (hereinafter the "Memorandum").
That Memorandum
purports to reverse a thirty-year Justice Department policy
supporting the constitutionality and enforceability of mutual
consent clauses in legislation providing for internal selfgovernment in the territories . 1
Accordin~
to the Memorandum,.
mutual consent claus~s are unenforceable be~ause (1) rulings of
the Supreme Court require that the "governance of a non-state
The Department of Justice expressly has approved and
gone on record supporting Congressional passage of mutual ·consent
clauses in at least two U.S. statutes implementing political
status agreements with one u.s. territory, and the Freely
Associated States, and apparently continues to support the
constitutionality and enforceability of these provisions.
Memorandum at 12 ("Finally, the Department has indicated that it
would honor past commitments with respect to the mutual consent
issue"). But an Act of Congress either is constitutional and
enfoiceable or it is not.
If th~ Department of Justice means
what it has stated in the Memorandum, this will have profound
legal and political implications with respect to the state of law
. and governmental relations for· the insular jurisdic~ions to which
the existing f~deral mutual consent statutes apply,. as well as
one new. insular jurisdiction for which yet· another·mutual consent
law is to take·effect within a matter of weeks.
Appendix A is a
description of the legal and political nature of the existing
mutual consent precedents and some of the possible effects if the
Department of Justice does not reconsider the views recommended
in the Memorandum of July 28.
CUI~TON
LIBRARY PHOTOCOPY
�CLII~TON
LIBRARY PHOTOCOPY
area is necefsarily subject to Congressional amendment and
repeal"; (2)("governmental bodies are not persons within the
meaning of the Due Process Clause"; and (3) "governmental powers
cannot be contracted away" relying on the recent decision in
Bowen v. Public Agencies Opposed to Social Sec. 477
u.s.
41
(1986) (popularly referred to as the "POSSE" decision) supposedly
because the Court held that the only "property rights protected
by the Due Process Clause are those ari~ing from private law or
commercial contracts and not those arising from government
relations" .
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Ter.ms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guai:n Conunonwealth legislation can be justified
relying on the POSSE decision or any other decision discussed in
the Memorandum. 2
inaccurate.
The Memorandum is misleading and disturbingly
It quotes parts of judicial decisions out of
context, relies on decisions which have nothing whatsoever to do
·with whether Congress has the power to bind itself when entering
into a political status arrangement with a territory,
misstates
holdings iri cases cited, mistakes dicta for holdings in others
2
Interestingly while the Memorandum asserts that its
position must.change as a~result of POSSE, the next most recent
decision relied upon is United States Trust Co. v. New Jersey,·
431 u.s. 1, .decided in 1977. Virtually all of the other key
cases were de<:ided in .the· 19th Centu~y and early 20th Century,
none of which would justify the change. If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
justification exists for the changed position.
-2-
�and relies upon a web of circular reasoning which quite simply
does not justify the Department's changed position.
Perhaps
o~
most concern is that the Memorandum reaches an
absolute conclusion concerning Congress' authority to enter into
a binding mutual consent arrangement with a territorY, even
though this question has never been put directly before the
Supreme Court or any other co~rt. ·This is all the more
disturbing because the only court which has ever even approached
the question apparently assumed that Congress could indeed bind
itself, notwithstanding its
Clause.
See,
~'
plenary power under the Territorial
U.S. Ex Rel. Richards v. De Leon Guerrero, 4
F.3d 749, 754 (9th Cir. 1993).
in the Memorandum. 3
This case is not even mentioned
More importantly, both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Congress can limit the ability. of future Congresses to change
laws which grant vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
52; Merrion v. Jicarilla Apache Tribe, 455
u.s.
POSSE,-.477 U.S. at
130, 148 (1982);
3
Our standards for legal advocacy properly allow
attorneys to present the facts and law in the light most
favorable to the prop6sition being espoused. Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the arguments put forward
are accurate and fairly reflect'existing law, even if asserting a
nonfrivolous proposition that the law should change. In our view
the Memorandum was not prepared in a manner consistent standards
of advocacy required in~roposing such an important change irl
policy, and it- should not have been presented for approval by
departmental managernent·as an official position without further
deliberation between all concerned agencies and even comment by
the insular areas·affected.
·
-3CLINTON UBRil.R\' PHOTOCOPY
�Transohio
Sav~ngs
Bank v. Director, Office of Thrift Supervision,
967 F.2d 598, 621 (D.C. Cir. 1992) ("Transohio").
Incredibly,
this "unmistakable terms" doctrine (which served as the basis-for
the holding in POSSE) is also not addressed.
A section-by-section analysis of the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
precedent' exists for the proposed change in policy.
the contents of this analysis:
To summarize
(1) none of the cases cited for
the proposition that Congress must retain the right to alter,
amend or repeal territorial legislation dealt with the question
placed before the Department by the mutual consent proposal; (2)
the issue of the Commonwealth of Guam not being a person for
purposes of the Due Process Clause is a red herring because the
proposal being discussed by Guam and the Administration
contemplates an agreement between the Congress and the people of
·Guam based in part on the commonwealth Of The Northern Mariana
Islands and Freely Associated States political status precedents;
and (3) the holding in the POSSE decision provides utterly no
support for the proposition set forth in the Memorandum.
Perhaps no part of the Memorandum is as disturbing as is the
analysis of the Supreme Court's decision in POSSE which is put .
forward as
re~uiring
the Department's change of its thirty-year
position on the constitutionality and enforceability of mutual
consent clauses.
The Memorandum cfaims the change is required
because the Supreme Court held in PbSSE "that the (only]
contractual property rights protected by the Due Process Clause
-4CLINTON LIBRARY PHOTOCOf'V
�of the Fifth Amendment are the traditional private contractual
rights, such as those arising from bonds or insurance contracts,
but not arrangements that are part of a regulatory program .... "
Memorandum at 11.
The POSSE decision, however,
did not turn on the subject
matter of the contract in question, and the Court's reference to
the bond and insurance cases had no direct bearing on the Court's
holding.
Those cases were cited in POSSE for the limited
purpose of contrasting contracts where Congress clearly evidenced
its intent to bind itself from the facts in the POSSE case where
"Congress expressly
reser~ed
to itself i[t]he right to alter,
amend, or repeal any provision of' the Act which authorized the·
contracts at issue.
477
u.s.
at 42.
The Court relied upon this
contrast because its holding in POSSE was that the Congress could
·amend the legislation in question, even if that amendment
interfered with contractual rights,
because it had not
unmistakably indicated its intent to bind itself -- the standard
the Court has established for determining whether Congress has
imposed limits on the exercise of its
The actual holding in POSSE
sover~ign
powers.
--that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio.
The Transohio decision demonstrates conclusively that
the Memorandum's analysis of the .1 holding in POSSE is so
fundamentally wrong that one wonders how it could be relied upon
by the nation's Department of Justice to justify a proposed
-5CLINTON LIBR~RY PHOTOCOPY
·~
�reversal in suc.h an important area of
Adm~nistration
policy.
In
that decision, the D.C. Circuit makes clear that "[t]he Supreme
Court reached [its] conclusion by analyzing the governing
statute, the Social Security Act" and focused on the.fact
critical to its
deci~ion ~-
Social Security Act contained
"[t]h~
an express reservation of Congress' power to amend the law .. ·. ",
· 967 F.2d at 621, not by establishing the per se "private rights"
test asserted in the Memorandum.
According to the D.C. Circuit
The "principles form[ing] the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine-~the doctrine
that "'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.
Id. at 622 (emphasis added).
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The 'unmistakability' doctrine is a special
rule of contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it·
finds "a consideration sufficiently valuable
to induce a partial release" of i t~s sovereign
powers.
Id. at ·618.
Both the POSSE and Transohio
ca~es
dealt with the
-6-
CLINTON UBR./l.RY PHOTOCOPY
�application of the "unmistakable terms" test to a determination
of whether Congress has limited_ its right to exercise its
regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on "traditional private contractual rights"
which the Memorandum would have us believe is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts iri POSSE and
Transohio
by adopting the test
advocat~d
in the Memorandum with
a simple finding that alleged contractual rights associated with
the regulatory programs at issue in the cases are not traditional
private contractual rights.
They did not, of course, because the
Supreme Court applies the "unmistakable terms" test which
requires an analysis of Congress' intent, not the per se standard
proposed in the Memorandum.
See,~,
477
u.s.
at 54.
We find it inconceivable that the Department would decide to
reverse a
thirty~year
old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can limit the exercise of its regulatory authority if it makes
clear its intent to do so.
4
In~tead o{
dealing accurately with
4
The import of the POSSE decision has been recognized
even by its critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrend~r of Sovereignty" analyzed the POSSE decision in
great detail. It concluded that "(t]he P5'wer to waive
.
sovefeignty.was recognized" in POSSE. 92. Col. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Court relied entirely on Merrion v. ·
Jicarilla·Apache Tribe for the proposition that the federal
government can surrender sovereign power. Jicarilla in turn
relied upon cases involving primarily the taxation powers of
state governments ... Instead of endorsing the rule applying to
-7-
CLii\ITON URR..'\RY PHOTOCOPY
�the Court's actual analysis, the Memorandum at page 11 relies
upon a quote, claimed to set forth the holding, which is taken
completely out of context and has nothing whatsoever to do with
the holding.
Tbe quote, taken from 477
u.s.
55, fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last
the quote from page 11 of the Memorandum.
senteri~e
of
This language makes
absolutely clear that what the Court focused
on
was the fact that
instead of Congress naving stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
Rather, the provision simply was part of a.
regulatory program 6ver which Congress
retained authority to amend in the exer~ise
of its power to prdvide for the general
welfare. Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested ~ight" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
477 U.S. at 55 (emphasis added).
the police powe~s -- such powers cannot be surrender~d -- it
adopted the rule applying to taxation powers -- such·powers can
only be surrendered if done so unmistakably. This m9ve should
not be followed'automatically: if the Court wants to enforce
contracts that surrender the federal government's regulatory
authority, it should do so on the basis of policy arguments, not
on the basis of POSSE." Id. at 460.
-8CLii~TON
LIBRARY PHOTOCOPY
�Congress Can Utilize Its Plenary Authority to Limit Its Future
Power -- The Greater Includes the Lesser.
In part, the Memorandum goes astray in its interpretation of
Congress' plenary authority over the
the Memorandum,
According to
territori~s.
Congress' plenary authority is infinite in time
or at least until one of three things happen: (1) Guam becomes a
State; (2) Guam achieves independence; or (3) the United States
transfers its sovereignty over Guam to another country.
Memorandum at 4.
Thus, the Memorandum seems to suggest that Congress is
estopped .from exercising its authority with respect to. Guam if
that exercise of ·authority results in some form of meaning.ful
consent to the form of government under which the Guamanian
people live.
But Congress is .not the prisoner of its plenary
authority over the territories
-~
it is the master.
The fact
that Congress has plenary authority does not mean that Congress
cannot exercise.this authority to limit
~ts
in the context of a political status change.
rights in the future
Plenary authority
means that Cpngress can take whatever action it decides is in the
best interest of the U.S. and the territories, including a
decision that it can limit its own exercise of future authority,
if its intentions are stated in unmistakable terms.
To assert
otherwise stands the meaning of plenary on its head.
Plenary
means full power.· .It does not mean full power, except when
.
~
~
.
Congress attempts to exercise.it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
-9-
CLINTON LIBRARY PHOTOCOPY
�regulations.
The broad power of Congress under the territorial
clause is grounded in the need for the federal government to be
able to. govern and/or dispose of territory which is not part of a
state.
In this context, it is clear that if Congress has the
power to dispose of a territory in its entirety, it also has the
power to dispose of some of its control by exercising its power
to make all needful rules and regulations.
It is an elementary
principle of statutory interpretation that the ·"greater includes
the less".
See, Late Corp. of
Later-Day Saints v. Romney, 136
the Church of Jesus Christ·of
u.s.
1, 45 (1889).
The issue of Congress being able to restrict its authority
over territory of the United States has been long decided.
While
at first blush it may seem counter-intuitive, Congressional
authority over the people of the territories and their political
rights emanates from Congress' atithority
over Guam as property
brought within Congress' control by the Territorial Clause.
In
Edward v. Carter, the Court clarified Congress' power under the
property clause, stating:
Thus, it appears that in referring to ·
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Con~ress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitted) (emphasis
added).
Further definition was provided in
u.s.
v. Gratiot, 39
u.s .
•
526 ( 1840) where the Court considered Congress' p·ower to impact a
lease of federal lands thrbugh legislation.
The Court's approach
�to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie within
territory of the United States are, therefore, its property.
Second, it-recites the Territorial Clause and concludes that
the term territory refers is a descriptive word referring to one
kind of property.
Third, the ·cour.t concludes that "Congress has· the same power
over [the mine] as over any other property belonging to the
United States; and this power .is vested in Congress without
limitation; and has been considered the foundation upon which the ·
territorial governments rest". Id. at 537.
Fourth, the Court then references cases involving Congress'
authority over the territories, including Florida,
in~luding
the
right of Congress "to make all needful rules and regulations
respecting the territory or property of the United States". Id.
at 538.
Finally, the. Court concludes "[i]f such are the powers of
Congress over the lands belonging to the Un.ited States, the words
'dispose of,' cannot receive the construction contended for at
the bar; that they vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the g;z;eater intludes the lesser.
The Court reachecf its
decision building on COngress' authority over the territor.i:es.
If Congress has the power to dispose of territories or to make
-11-
CLINTON UBR1.R.Y PHOTOCOPY
�..
all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
The Result of the Department's Opinion is to Leaves the People of
Guam with'a Hobson's Choice-- Remain in a Perpetual State of
Colonialism or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policy implications for United States
I
.
.
I
I
,
.
security interests in Guam and the Pacific Region, not to mention
!
the
I
.
.
Uni~ed States' moral leadership on
I
democra~y to non-self-governing people
the issue of granting
around the world.
The
I
1
Memorand pm begins by defining Guam as a "non..:.state area, a catchy
I
.
pseudon~ for what Guam really is -- a territory, and U.S.
I
citizen population, .which the U.N. officially classifies as not
I
yet havibg been decolonized, and which has no realistic .prospect
'
'
i
of achieving statehood -- the traditional path by which U;S.
.
'
\
i
territories ceased being colonies and became self-governing in
'i.
.
our cons~~tut~ona 1 system.
I
1Fortunately, the Territorial Clause gives Congress the
1
i
consti tuti~onal power to address this problem.
In the Insular
'
I
Cases the' Supreme Court recognized that Congress must have
I
J
flexibility to adapt . federal law and policy for island
'
territori~s .which remain "unincorporated" for an extended period
of time, and which remain subject·to federal power without being
I
.
integrated into the system of constitutional federalism -.
i
-:-12-
CLINTON LIBRARY PHOTOCOPY
�leaving! the U.S. citizens cpncerned without equal legal and
political rights when compared to citizens resident in the
I
•.
I
states.·
I
I
The moral imperative of ending Guam's neo-colonial
I
iI
status is fundamental to the Administration's decision to pursue
I
a mutua~ consent provision.
Mutual tonsent brings to the people
'i
of
Guam~democracy
by giving them a direct role in their own
interna] self-government which would not otherwise be
.
I
availab.JJ,e. 5
I
By rejecting absolutely any possibility that the
i
Supreme
status
i
~curt
may uphold a mutual consent clause in a political
a~rangement,
the Department of Justice is putting this
Administration in the untenable position of saying to the
I
u.s.
.
citizens!pf Guam that they cannot have meaningful self-government
I
I
within the framework of the U.S.. Constitution.
I
We do not think
I
this is
a
position which this Administration ought to be taking,
'
especially when the Supreme Court has not spoken directly to the
I
5
\The American-citizen residents of·Guam do not have.the
same rig~ts to participate in the representative democracy
enjoyed .Oy the citizens of the several States. Without voting
represent:ation in Congress or a vote in national elections, there
is no meaps by which they meaningfully can consent to the laws
and form of government under which they live. This colonial
status wa'~s· awkward even in its first fifty years, but has become
intolerab!le since the U.N. ·Charter was adopted and the era of
decoloniz~tion began.
Guam is not seeking decolonization outside
the u.s. system, and it would b~ perverse to suggest·that
decolonization is not available· to u.s. citizens within the u.s.
politicalisystem. Thus, the question facing the Administration
. is whether a nation founded on the principle of consent of the
gov~rned ~an adapt its law and policy to end denial of this basic
right and'establish an appropriate alternative means of consent
for loyal citizens in the territories.
1
-13CLINTON LIBR'\RY PHOTOCOPY
�question and the most that can be said about the precedent is
.
I
that arguments exist on both sides of the question.
i
THe effect of the Department's changed position-i~ to leave
I.
!
the pedple in a perpetual state of colonialism or force them into
independence.
I
The Clinton Administration has been the first to
state with candor and honesty on the record what all those who
I
I
have deblt with Guam have known for years -- Statehood is not an
I
option Tor Guam. ·rt is simply too small.and remote.
Similarly,
given GJam's strategic importance to the United States, it is
i
inconceivable that sovereignty would be voluntarily transferred
I
to another sovereign power, nor do we believe that the people of
Guam would accept it.
The
clear implication of the Department's
I
position;, therefore, is that the American citizen
I
residents of
Guam, if\ they desire to possess a truly democratic government,
:
will havr no choice but to seek independence from the United
I
States.
!
The notion that independence is the only political status
I
outcome through which the injustice of Guam's colonial past can
I
i
be remedied is not only counter to the robu.st common sense with
I
which Am~ricans have implemented their Constitution, it is a
I
.
.
I
dangerous, fatalistic and cold-hearted idea that will have a
I
I
•I
chilling ,effect on the spirits of the Guamanian people.
1
I
.
Leav:fng independence as the only alternative also raises
seriods n~tional security ~olicy que~tions~
Policy
coordinat~on
for Guam fonunonwealth negotiations is exe~c·ised by the National
·,
Security touncil because
I
Gua~
is ari important military and
-14CLINTON LIBRARY PHOTOCOPY
�,I
strategic location for the United States.
A decision has.been
I
made bylthe White House that an agreement should be reached with
the
of Guam which achieves two fundamental goals.
peo~le
First,
I
the people of Guam should be permitted to achieve meaningful
I
I
internal1 self-government free from unnecessary interference.
1
I
I
Second, pnited States long-term security interests must be
I
protected.
I
Offering the people of Guam the opportunity to
I
achieve
~eaningful
participation in a _democracy only by forcing
I
them to seek independence is inconsistent with the second of
I
I
.
these goals.
We do not believe that this .Hobson's Choice ought
I
to be forced· upon the United States or people of Guam based on
I
conclusidns of anyone other than the Supreme Court.
I
This\ is a policy issue which is best left to the courts, if
I
I
a challenge ever arises.
conc~rn
In this regard, the Department's
I
t6at no one should be misled concerning the certain
I
I
viability:of a
rnutu~l
I
consent provision is consistent with our
position.\ We have consistently taken the position in the
negotiati~ns
that no one can be sure how the issue will be
I
I
I
decided.
The best we can do is to meet the. requirements the
1
I
Supreme Court has set out as being necessary for Congress to bind
I
itself (a
I
~tatement
in "unmistakable terms") and state
I
forthrightly in the political education process that we cannot be
I
sure of
wel.i
I
I
outcome until the Supreme Court has acted.
th~
estab~ished,
however, that when
the~
It is
intent of Congress with
I
I
respect to [the precise question at issue is clear, the courts
must give
I
i~
effect.
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
-15CLII~TON LIBRARY PHOTOCOPY
i
I
I
�837, 84Q-43 (1984).
It is equally clear that the courts give
I
great d¢ference to Congress when it is exercising its Territorial
I
I
.
Clause authority. See, Wabol v. Villacrusis, 958 F.2d at 460,
I
citing Torres v. Puerto Rico, 442 U.S.465, 460-70. In fact, we
I
;
I
know of\no decision of the Supreme Court reversing any action by
the
when
Con~ress
I
th~
.
taken with regard to the governance of a territory
Congress has acted pursuant to its Territorial Clause
I
aut h or~ty.
I
I
(
-16-
CLINTON UBP..:I),RY PHOTOCOPY
�CLINTON LISR'-IR.Y PHOTOCOPY
. '
I
I
i
I
I
<
APPENDIX A
\
•
U.S. Practice With Respect to Mutual Consent Arrangements for
Insular: Areas Not Incorporated.into·the U.S. Constitutional
Processl for Democratic Self-Government But In Which the u.s.
Retains~ and Exercises Sovereignty and/or.Siqnificant Powers of
Government:
I
I
I
BACKGROUND:
Under a\succession of treaties with other nations.and
interna~ional organizations including the U.N., in this century
the u.s~ has acquired and exercised actual sovereignty and/or the
full powers and ·jurisdiction of government over insular areas
(isl~nds) which have not been incorporated as territories or
states to which the u.s. Constitution applies in full. Thus,
these areas are not fully self-governing and have no power to
give con!sent to u.s. laws made applicable to them.
I
As each, of these territories has moved toward greater selfgovernmeht the U.S. has agreed to various political, legal and
budgetar¥ measures which accommodate u.s. interests in retaining
certain powers of government, .while at the same time redeeming in
some gre~ter degree the principle that free people must be
enabled to give some meaningful form of consent to the laws and
form of government under which they live.
I
In the else of U.S. territories over which the U.S. exercises
full sov~reignty, but which have not been incorporated fully into
the system of federalism, measures aimed at enhanced selfgovernrne~t have attempted to address the fact that the U.S.
citizens \concerned do not have voting representation in Congress,
enfranchi!sement in national elections or general legal or
politica~ equality with thei~ fellow citizens in the states ..
I
:for examp11le, in the case of the Commonwealth of the Northern
Mariana I ~lands ( CNMI), as discussed below, the Executive Branch
of the federal government and Congress entered a "Covenant," or
agreement! with the people of the territory, under which the u.s.
exercises sovereignty, but which defines a political relationship
the central elements.of which are not subject to modification
without m~tual consent of t~e people of the territory and the
federal g~vernment.
·
1
1
.
I
I
•
.
consent arrangement constitutes a substitute set of
politicalirights intended to give the people of the.CNMI a
greater measure of democratic self~government by granting them a
political \power of consent to federal law not granted to u.s.
citizens 1n the states, who instead are able to give their
consent tq federal law through representation in Congress and
voting in \national elections. This type of mutual consent
This.mutu~l
�I
I
I
I.
.
.
\
arrangement has been promulgated by Congress pursuant to the
Territqrial Clause of the Constitution (Article IV, Section 3,
Clause ;2), which empowers Congress to provide for areas not yet
fully ~ithin t.he constitutional system but subject to U.S.
federalt law and sovereign powers.
i
I
I
For ins'ular areas over which the U.S. exercised powers of
goverrun ent but not sovereignty under agreements with the U.N. ,
the fed~ral government promulgated mutual consent provisions
through\ a combined statutory and treaty-making process..
Under
these afrangements the U.S. retains plenary authority over broad
areas of government power in the concerned insular areas, i.e.,
full defense authority, while the separate citizenship,
sovereignty and national independence of those insular.areas have
been. recogni'zed. This .arrangement is known as "free
•
I •
.
1
1
assoc~at~on."
.
'
I
The com~act agreements establishing the free association
relationlships between the U.S. and certain insular areas have
been app roved by the U.S. Congress in the form of ·joint
resolutibns passed by both houses and si~ned by the President.
Like the 1 CNMI covenant and the proposed Guam Commonwealth Act,
the u.s.lfederal statute approving the free association compact
was intended to create a unique and mutually agreed political
~tatus fbr insular areas not incorporated into the u.s., but with
special tlose political, legal·and security ties to this nation.
1
The fact \that Guam and the CNMI are uninc~rporated territories,
while th~ freely associated states under the compacts are
sovereign, does not change the legal or constitutional analysis.
These act!s of Congress which bind the federal government and
limit thd exeicise of constitutional powers either are
constitut~onal and enforceable or they are not.
·
There is ho valid constitutional distinction between the mutual
consent pkovisions in the free association compact and the CNMI
covenant br proposed Guam Commonwealth Act simply because the
power of ri:ongress which'is being limited involves foreign policy
and natioryal defense powers arising from Article I or Article II
of the Co~stitution, or if the subject matter gives rise to
Article IV territorial powers.
I
r
The gener~l concept that Congress can alter, amend or repeal the
laws of pdreli domestic application has its p~rallel with respect
to laws an p treaties which create obligations between the U.s.
and other.· nations.
Spec,ifically, an element of sovereignty ip
the power to abrogate treaties, and in the U.S. constitutional
system the\ President and .congress have the power to make trea~ies
and terminate treaties. Goldwater v. Carter, 617 F.2d 697 (D.C.
Cir. 1979)~
As discussed below, in addition to formal
.
renqnciati6n of a treaty by the President, Congress can terminate
or prevent ' performance of treaties requiring appropriations ·
simply decline to appropriate funding to meet international
obligation~..
This has the·effect of superseding the prior act
1
1
I
\
CLINTON UBR'\R.Y PHOTOCOPY
�of the ;congress ratifying the treaty.
I
·Thus, the question before us is whether Congress can limit its.
power ~o amend, alter or repeal a prior act so that commitments
intend~1d to be binding are. set aside, and that question is
relevant to any act of Congress which purports to make such
binding\ commitments, including the statute making the free
associa~ion compacts U.S. law.
i
I
We believe the test under POSSE for answering that question turns
on whether Congress makes its intent to do so unmistakably clear.
If the position set fo~th in DOJ Memorandum stands and the
Department of Justice reverses prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisi6ns in the CNMI covenant, the free association compacts
and the\proposed Guam Commonwealth Act are.unenforceable and
unconstitutional, then the effect of that could reach far beyond
the Gua1 mutual consent proposal.
.
I
For example, the mutual consent provisions relating to the
politicdl and legal relationships created by the fr~e association
compacts are linked to unprecedented multi-year funding
authori~ations that bind successive Congresses to enact
appropri ate laws providing f'l:lnding for specified grants to the
goverrunebts of the free associated insular areas.
These
provisiorts are enforceable in the federal courts, and give the·
free associated state governments concerned access to domestic
u.s. leg~l. remedies that foreign governments do not nave under
conventional u.s. laws and treaties.
1
'!
To illustrate the point, as a general rule if Congress refuses to
fund u.s~ performance of a treaty, it is extremely unlikely that
without an explicit statutory basis for jurisdiction the federal
courts w~uld be inclined to reach beyond the political question
doctrine1and interfere in the foreign policy domain of the
political branches by entertaining an action by a foreign
governmertt seeking a court order to compel .payment of funding for
U.S. obligations under a treaty abrogated by the President or
Congress~ Yet, under.the free association compacts, that is
exactly ~hat Congress has explicitly authorized and directed the
federal c1ourts to do. See, Section 236, P.L. 99-239, discussed
below.
i
i
Similarlil' in Section 101(d)(2)(B) of P.C. 99-239, the statute
approving th~ compacts, Congress required that amendments to the
compact ahd certain related agreemel)tS made pursuant to the
.~ applicabl~ mutual consent provisions would require congressional
approval.\ Thus, Congress by statute_explicitly agreed to the
mutual cohsent provisions in the agieements identified in Section
101(d)(2)~B) and established a role for Congress in the procedu~e
for u.s. ~onsent to an amendment.
II
Thus, just as the mutual consent provisions of the CNMI agreement
limLt the\exercise of Article IV territorial clause powers by
CLINTON UBR..\R.Y PHOTOCOPY
I
·~
�Cong~e~s, the mutual consent and related funding provisions of
the fr~e association compacts limit the exercise of Article I and
Articl~ II foreign policy and defense powers by the President and
Congre~s.
These unprecedented arrangemen~s are intended to
enable lthe U.S. to sustain its authority over areas in which it
has significant national interests, but in which the people do ·
not enjoy the full rights and benefits of incorporation into the
U.S. f~deral political and legal system.
I
To undJrstand the gravity of the problems that will be created if
the Department of Justice.persists in what we believe is a
misinte rpretation of the POSSE decision, it is important to
examine\I the existing mutual consent precedents very closely.
1
.
I
EXISTING MUTUAL CONSENT PRECEDENTS:
.I
The first of the existing mutual consent precedents is found at
Section) 105 in the Covenant to Establish the Commonwealth of the
Northern Mariana Islands, U.S. Public Law 94-241, 90 Stat. 263
(1916),\repripted at 48 u.s.c. 1681, note.
The additional
important insular area mutual consent precedents are given the
I
force and effect of u.s. law pursuant to the agreements referred
to in S~ction 101(d)(2)(B) of the U.S. statute approving the
Compact!of Free .Association -between the U.S., the Republic of the
Marshal+ Islands (RMI) and the Federated States of Micronesia
(FSM), ~.S. Public Law 99-239, 99 Stat. 1770, 48 U.S.C. 1681,
·no.te. The CNMI, FSM and RMI mutual consent provisions became
effecti~e under Presidential Proclamation No. 5564 of October 3,
1986, F~deral Register Vol. 51, Number 216, November 7, 1986.
I
.
i
As already stated, the RMI and FSM compacts also bind successive
Congresses through a pledge of the full faith and credit of the
U.S. fo.r economic assistance grants which are central elemen·ts of
the pol.iJtical relationship defined· in the compact as an agreement
between !the u.s. and the peoples of the RMI and FSM exercising
their sovereignty by approving the agreement in a plebiscite.
See, Pre amble and Section 23 6, ·Compact of Free Association, P. L.
99-239. I
1
!
These mullti-year funding obligations are not "subject to
appropri ation by Congress," the typical treaty formulation, but
are enfo~ceable in the U.S. courts, which are expressly granted
jurisdic~ion to enforce the payment obligations in the compact.
Thus, Copgress has restricted its ability to alter, amend or
repeal trose statutory obligationi of its own making.
1
THE CASEI OF PALAU:
I
A fourth!rnutual consent precedent is scheduled to enter into
force on!October 1, 1994 under the terms of a Compact of Free
Association between the u.s. and Palau.
I
.
CUI,ITQN LIBRARY PHOTOCOPY
�The P~lau compact implementation agreement is terminabl_e
unila~erally by Palau or the u.s., but once the Compact enters
into force, under Section 453(a) of U.S. Public Law 99-658, 1~0
Stat. 3700, 48 u.s.c. 1681, note, the Palau compact mutual
consent provision and all the related rights and obligations
under the agreement will be binding upon both Palau and the
United States.
If the DOJ Memorandum of July 28 is applied to
the Palauan compact mutual consent provision there may be reasons
not to go forward with implementation.
The U.S. currently is under no legal obligation to implement the
Palau Compact, and even though the Palauans have approved the
Compact the government of that insular area has no rights under
the agreement until it enters into force by mutual agreement, and
Palau .has no right to an arrangement with the U.S. which is
enforceable or unconstitutional -- even i f that arrangement
achieves important U.S. goals such as granting Palau selfgovernment and ending the U.N. trusteeship under which the U.S.
has the ultimate powers of government in Palau.
Thus, implementing the Compact for Palau is not a case of
honoring a previous commitment on mutual consent, but of creating
a new one. If mutual consent clauses binding Congress are
unenforceable and unconstitutional, the U.S. should unilaterally
terminate the implementation agreement as provided for in Article
II, Section 4 of that agreemen-t, and· seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
It would be bad faith to implement the Palau Compact knowing that
a key provision is unenforceable and unconstitutional under U.S.
law. Under the Vienna Convention on the Law of Treaties, to do
so could give rise tb international legal issues affecting
enforceability of the compact. For the DOJ Memorandum of July 28
puts Palau on notice that the mutual consent agreement contained
in Section 453(a) is view~d by the U.S. legal authorities as
unenforceable.
Yet, the Section 453(a) mutual consent arrangement with Palau -which gives the U.S. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity -- is the single
most significant provision which justified to Congress the huge
economic grants contained in the funding sections of the Palau
compact.
As in the case of the FSM and RMI, those funding
grants are backed by the full faith and credit of the u.s. and
enforcea1ble in the federal. cou~ts.
1
If the Palau compact takes effect and the mutual consent
in Section 453(a) is unenforceable; it would appear.
that the massive u.s. funding obligations under Title Two of the
compact for Palau would survive under the terms of Section
452(a}, even if the U.S. followed the procedure under Section 442
to t'errninate ·the. free association relationship due to loss of the
defense rights which were to extend beyond the initial period of
provi~iori
CUI~TON
U13RARY PHOTOCOPY
�the compact.
Perpetual strategic denial is what the U.S. would be able to
retain under continuation of the U.N. trusteeship, and so
strategic denial that lasts beyond the agreed period of free
association under the compact is what Congress demanded in order
to justify over $450 million in grants to a community of 14,000.
If the Department of Justice wants the· Administration to give
away what Congress approved in P.L~ 99-658 just to win a debate
over mutual consent for Guam, ·shou.ldn' t Congress be informed?
Thus, the decision of the Department of Justice to chc;mge its
position on mutual consent does not impact on Guam alone. ·The
most immediate impact may be on Palau. Of course, the Department
of Justice may not have the authority or ability simply to choose
to honor what must be viewed under its theory as an
unconstitutional and inchoate mutual consent commitment between
the u.s. and Palau.
Indeed, the notion that individuals in the
federal government have that degree of discretion in fundamental
matters such ~s this itself raises constitutional issues.
But, again, even if the Department of Justice is as generous with
respect to honoring a mutual consent commitment to Palau as it
appears ready to be, a question may arise as to whether the u.s.
will be able to enforce its rights or meet its obligations under
the Palau mutual consent provision.
On.the face of things
Section 453(a) and the related provisions of Section 311 seem to
be a benefit to the U.S. which it simply can enjoy by deciding to
honor it.
That view may be folly.
If the same litigious parties in the
U.S. or Palau who have mounted legal challenges to the military
provisions of the compact tirelessly for .the last fifteen years
establish jurisdiction to challenge the validity of the Section
453(a) mutual consent provision in our own courts, and -prevail
with the aid of the DOJ Memorandum, it appears that U.S.
taxpayers could end. up paying Palau for defense authority tied to
a mutual consent provision in Section 453(a) rendered null and
void.
·
Having been seized with what Palau and the U.S. prudentially must
view presumptively as a serious substantive legal infirmity in a
provision that is fundamental to the purpose of the agreement
prior to its entry into force, will the parties be able to rely
upon and enforce the reciprocal and interdependent rights and
oblig~tions·set forth in ~he agreement?
Ifi not, are the U.S.
funding obligations linked to the defense ~uthority and mutual
conse~t provisions severable so that the u.s. would be able to
extricate itself from the full faith and credit payment
requirements if the defense rights proved unenforceable?
The answer to both those questions arguably would be in the
negative.
CUI'-ITON USRt~RY PHOTOCOPY
�---------
We raise these issues not because we believe that the Palau
mutual consent provisions are either unenforceable or
unconstitutional. Rather, we use them to show_the basic problem
inherent in the Justice Department's appro.ach. When the CNMI
co~enant and the compacts were negotiated, Justice supported the
mutual consent clauses. Nothing has changed since then. Only
the POSSE case has caused a rethinking of this support and POSSE
merely explains the test that must be employed to determine
whether Congress bound itself validly to a limitation on the
exercise of its ·power. It did not establish a per g
rule to
the contrary.
To avoid the perverse result that could come about by applying
the position set·forth in the Memorandum to Palau's mutual
consent compact, the DOJ Memorandum of July_28 should be
withdrawn immediately.
That would allow the Palau compact to be
implemented and enable the parties to the Guam commonwealth
negotiations can move forward with the process of defining an
acceptable mutual consent relationship as endorsed by Secretary
Babbitt during his trip to Guam.
CLif~TON
LIBRARY PHOTOCOPY
�APPENDIX B
SECTION-BY-SECTION ANALYSIS OF THE
MEMORANDUM FOR THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALTH DATED JULY. 28, 1994
RE: MUTUAL CONSENT PROVISIONS IN THE
GUAM ·cOMMONWEALTH LEGISLATION
FROM-THE DEPUTY ASSISTANT ATTORNEY GENERAL
Introductory Paragraphs - pp
1-2~
The Department's Memorandum correctly recognizes that the
inclusion of mutual consent clauses in the Commonwealth
legislation is crucial to the people of Guam, referencing as the
reasons autonomy and economics.
While economic development is
clearly a consideration, the reference to autonomy is misleading.
It is true Guam seeks control over its internal affairs.
autonomy is less the goal than democracy.
But
The American-citizen
residents of Guam do not have the same rights to participate in
the representative democracy enjoyed by the citizens of the
several States.
If the citizens of the Guam maintain their
residence there, they elect voting members of neither the House
nor the Senate, nor can they vote in presidential.elections.
They are effectively excluded from the most fundamental aspect of
our democratic system -- the right of U.S. citizens to give some
form of meaningful consent to the laws and form of government
under which they live.
The circumstances of the people of Guam today are the direct
consequence of almost 100 years of American rule, a period during
09/15/94, 11:59am
20029980
CLII'lTON LIBRARY PHOTOCOPY
�which the U.S. has exercised sovereignty over Guam without
incorporating it into the U.S. system of constitutional
federalism.
No level of economic development can sustain
perpetual second-class citizenship.
A process must be created
which will lead to resolution of Guam's status as a non-selfgoverning.area under the U.N. Charter.
Until Guam is decolonized
it will be a living contradiction of U.S. moral opposition to
colonialism.
Thus, the fundamental question which the people of Guam and,
indeed, which this Administration must.ask today is similar to
that question asked by the leaders of the American revolution
. can a nation, founded on the principle that governm.ent acts only
with the consent of its people continue to deny basic rights of
self-government to some of its citizens solely because they live
in a terri tory? 1
The DOJ Memorandum recognizes that for the past thirty ·
years, the Department has supported the constitutionality and
enforceability of mutual consent clauses. 2
Appendix A
1
In footnote 1, the Memorandum chooses to define Guam as a
"non-state area", a catchy pseudonym for what Guam really is
a
colony of the United States. This is why people in the .
territories object to their,territo~ial status. As a territory
they are precluded from the democratic system. The Guam
Commission on Self-Determination, however, does not claim that
the legal implications of being a territory do not apply to them.
It is because they recognize that being a territory leaves them
out of the democratic process that they seek mutual consent.
2
Unfortunately, the Department has refused to provide us
with any of the prior opinions supporting mutual consent clauses.
09/15/94, 11:59am
' 20029980
2
CLINTON LIBP..AR\' PHOTOCOPY
�accompanying this document reviews the legal and political nature
of relevant prior mutual consent precedents, as well as the
pending entry into force of another mutual consent arrangement.
We do not understand how the mutual consent provisions in these
other acts of Congress will be "honored" by the.Department while
a similar provision proposed for Guam is unenforceable.
Memorandum at 12.
See Appendix A.
Neither the relevant provisions of the Constitution nor
·applicable cases support different standards for the kind of
mutual consent arrangements involved in these insular political
status relationships.
~ongress
Nor can it be argued that an Act of
in connection with the CNMI covenant or Compacts of Free
Association is any different or more binding on Congress than an
Act adopting the Guam Commonwealth would be.
An Act of Congress
is either constitutional and enforceable or it is not. If the
Department intends to support the mutual consent provisions in
these other Acts and does not intend to interfere with
implementation of the Palau Compact, it must apply the same
policy to Guam.
To
quote the Memorandum at p . .2 -- "[i]n our
view, it is important that the text of the ... Act not create any
illusory expectations that might to (sic) .mislead the
electorat~ ... about the consequences of the legislation".
In the end, note 2 makes clear that the foundation for the
proposed change in position on mutual consent clauses is the
Supreme Court's deci.sion in Bowen v. Agencies Opposed to Soc.
09/15/94, 11:59am
20029980
3
CLINTON LIBRARY PHOTOCOPY
�Sec. Entrapment, 477 U.S. 41 (1986) (popularly referred to as
"POSSE").
As discussed in great detail infra, POSSE does not bar
Congress from limiting its right to exercise sovereign power by
entering into a binding contract, nor does it establish a per se
test that Congress can only bind itself when entering into
contracts dealing with traditional private rights.
In fact,
POSSE dealt with the exercise of a regulatory right, and turned,
not on the nature of the contractual right at issue, but on a
determination of whether Congress had expressed an intention to
bind itself in "unmistakable terms".
The following section-by-section analysis demonstrates that
none of the cases cited in the Memorandum leads to a certain
conclusion that the Supreme Court would restrict Congress'
ability to enter irito a political status arrangement with Guam
based on mutual consent.
Section I. - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty.of the United States is Plenary with
Constitutional Limitations -- pp 2-4.
The DOJ Memorandum would lead us to believe that the Supreme
Court has already decided that Congress cannot limit its exercise
of authority over·the territories because its authority is
plenary.
In this regard, the Memorandum seems to argue that this
plenary authority is infinite and must remain unencumbered in
perpetuity-- or at least until the
u.s.
alters Guam's status ..
09/15/94, 11:59am
20029980
4
CLINTON LIBRARY PHOTOCOPY
�- I
I
Memorandum at 4.
Thus, the Memorandum argues that Congress actually is
estopped from exercising its authority with respect to Guam if
that exercise of authority results in some form of meaningful
consent to the form of government under which the Guamanian
people live.
But Congress is the master, not the prisoner of its
plenary authority over the territories.
If Congress has plenary
authority, it follows that Congress can exercise this authority
to limit the types of measures it will take pursuant to that
authority if that is in the best interests of the U.S. and the
territory.
its head.
To assert otherwise stands the meaning of plenary on
Plenary means full power.
It does not mean full
power, except when Congress attempts to exercise it.
Under the. Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
regulations.
If Congress has the power to dispose of a territory
in its entirety, it also has the power to dispose of ·some of its
control by exercising its power to make all needful rules and
regulations.
It is an elementary principle of statutory
interpretation that the "greater includes the less".
Church
v. U.S, 136 U.S. 1, 45 (1889). 3
.
See, MOrman
Similarly, in Collins
.
3
While a distinction obviously exists between the
Government's rights to abrogate property rights and the issue of
its authority to exercise political power in the territories, the
Supreme Court's frequent statements that the Government can bind
itself do not appear to be limited to commercial-type contracts ..
The Court has, for instance, upheld limitations on federal
political powers in areas ceded to the federal government by the
09/15/94, 11:59am ·
20029980
5
CLINTON LIBRARY PHOTOCOPY
�v. Yosemite Park & Curry Co., 304
u.s.
518
(1938)~
the Court
upheld an agreement between California and the Federal Government
which reserved certain rights to California when it ceded
Yosemite Park.
The Court concluded that the Federal Government
and the states could enter into agreements concerning
. jurisdiction over property within their borders, and the courts
should "recognize and respect" the agreements.
30.~
304 U.S. at 527-
For instance, the Supreme Court has approved of the
See United States v.
Government's right to lease mineral rights.
Gratiot, 39
u.s.
(14 Pet.) 526, 536 (1840) ("it lies in the
discretion of Congress, acting in the public interest to
determine how much of the property it shall dispose.").
Ashwander v. T.V.A., 297 U.S. 288 (1936), the
Co~rt
In
approved a
contract for the sale of electricity, rejecting an argument that
the Government lacked constitutional authority to dispose
partially of its property by contract and relying on Congress'
states pursuant to the Territorial Clause.
In Fort Leavenworth
v. Lowe, 114 U.S. 525 (1885), the Court upheld an agreement
between the Federal Government and Kansas dividing taxing
authority.
R~R.
4
The Court stated:
Though the jurisdiction and authority of the general
government are essentially different from those of a
State, they are not those of a different country; and
the two, the State and the general government, may deal
with each other in any way they may deem best to carry
out the purposes of the Constitution.
Fort Leavenworth, 114 U.S·. at 541.
09/15/94, 11:59am
20029980
6
. CLINTON LIBR~R\' PHOTOCOPY
�authority under the Territorial Clause.
Id, at 330-36.
5
None of the cases cited in. the Memorandum are to the
contrary.
Each of them sets forth the general proposition that
in regard to the territories, the Congress is supreme.
In part,
the earlier·cases were required to make this point because the
Territorial Clause was included to make clear that it was the
Federal Government and not the States that would exercise control
over the Territories.
See,
~'
A. Leibowitz, Defining Statute
(1989) at 10-11; See also, District of Columbia v. Thompson Co.,
346 U.S. 100, 109 (1953).
But, none of the cases cited in this
5
The Congress also has authority to dispose of property
under the Territorial Clause. This power includes both the
absolute right to dispose of property in its entirety or to
dispose of part of the governments rights in property:
Of course, a significant difference may exist between the
disposition of property and the disposition of sovereign
authority. Nevertheless~ the conclusion that Congress can
partially dispose of matters over which it has the power of
total disposition has considerable logical appeal.
If.
Congress could totally dispose of its power over the
Philippines by granting them independence, it seems logi~al
that it could also partially dispose of its powers by
granting them something leps than complete independence.
Whether Congress could later change its mind as to the
p~rtial disposition· is not clear, but some kinds of
dispositions are by nature final.
For example, if Congress
disposes of its powers over territory by admitting it as a
state, that would seem a final disposition of fts
territorial powers; Congress cannot change later the status
of a state. Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial power
over them for all time.
Inventive Statesmanship vs. The Territorial Clause: The
Constitutionality of Agreements Limiting Territorial Powers, 60
Va. L. Rev. 1041, 1060-61 (1974).
09/15/94, 11:59am
20029980
7
CLINTON UBR~RY PHOTOCOPY
�section address directly the question of whether Congress could
exercise its plenary authority by restricting_ its ability to act
. in the future.
The Memorandum bases its assertions about Congress' plenary
u.s.
authority on Gibbons v. Ogden, 22
(9 Wheat) 1 (1824).
That
case, of course, is the. seminal·decisi6n establishing Congress'
power under the Commerce Clause.
It has nothing whatsoever to do
with the Congress' Territorial Clause authority.
It is
apparently cited to establish the proposition that in some
express areas Congress' power "acknowledges no limitations, other
than are prescribed in the Constitution".
We think it should be
obvious that the Department's proposed changed opinion on mutual
consent is entirely inconsistent with this principle.
Rather
than recognizing the scope of Congress' powers, the Department is
claiming that a limitation exists on Congress' power -- that
. Congress is imprisoned by its plenary power and cannot exercise
it to limit itself.
In fact, several of the other cases cited in
the MemorandUm to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County of Yankton, 101
u.s.
129 (1880).
The Memorandum utilizes
a quote to establish that Congress is supreme in the territories.
But this quote has nothing whatsoever to do with whether Congress
can act to limit its authority.
Unfortunately, what has been
left out from the quote are the next two sentences which bear
09/15/94, 11:59am
20029980
8
CLINTON LIBR~RY PHOTOCOPY
�directly on the issue presented by the mutual consent clause and
the analysis the Supreme Court adopted in POSSE whether Congress
has limited its right to exercise sovereign power.
apparently addressing the
is·s~e
The Court
that Congress had not expressly
reserved the right to amend acts of a territory stated:
In ~he organic act of Dakota there was not an
express reservation of power in Congress to
amend the acts of the territorial
legislature, nor was it necessary.
Such
power is an incident .of sovereignty, and
continues until granted away.
101 U.S. at 133 (emphasis added).
Clearly, the implication of this decision is that while Congress
has full power it has the right to grant it away. 6
While the next case cited, Hodel v. Virginia Surface Mining ·
and Reclamation Assoc., 452 U.S. 264, 276 (1981), like Gibbons v.
Ogden, does not deal with the Territorial Clause, it does
describe accurately the standard the Court applies when
determining whether Co'ngress has acted within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine whether a particular exercise of
congressional power is valid under the
6
Similarly, American Insurance Co. v. Canter, 26 U.S. 511
(1828) and Downes v. Bidwell, 182 U.S. 244 (1901), cited in the
memorandum to establish the extent of Congress' power, do not
address the issue of whether Congress can act to limit its
authority.
09/15/94, 11:59am
20029980
9
CLINTON LIBRARY PHOTOCOPY
�Commerce Clause is relatively narrow. The
court must defer to a congressional
finding ... if there is any rational basis for
such a finding ... This ·established, the only
remaining question for judicial inquiry is
whether "the means chosen by [Congress] must
be reasonably adapted to the end permitted by
the Constitution." ... The judicial task is at
an end once the court determines that
Congress acted rationally in adopting a
. particular regulato~y scheme.
452 U.S. at 276 (emphasis added).
This test recognizes the great deference the Court gives to
an exercise of power by Congress.
If Congress were to conclude
that a mutual consent clause is within its power and that such a
clause is necessary to achieve Congress' purpose of granting
greater self-government to Guam, can anyone say with certainty
that the Court will not believe that a sufficient rational basis
.exists.
If it does, not even the Memorandum asserts that
anything in the Constitution specifically bars a mutual consent
clause.
It is well established that when the intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A. v. NRDC, 467
u.s.
It is equally ~lear that the courts give
great deference to Congress when it exercises its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The incorporation analysis thus must be
undertaken with an eye toward preserving Congress' ability to
09/15/94, 11:59am
20029980
10
CLINTON UBR!\R\' PHOTOCOPY .
�~-------------------------------------------------------------------
accommodate the unique social and cultural conditions and values
of the particular territory.
More over, we must be cautious in
restricting.Congress' power in this area."), citing Torres v.
Puerto Rico, 442 U.S.465, 460-70 (emphasis added).
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted· pursuant to its Territorial Clause
authority.
None of the rest of the cases cited for the proposition that
Congress' power continues indefinitely address the question of
wnether Congress can limit its
~bility
territories without their consent.
to act in regard to the
Shively v. Bowlby, 152 U.S. 1
(1894} can be cited only for the proposition that it is the
Federal Government and not the states which exercises control
over the territory of the United States.
It did not address in
any way whether the Congress can limit its authority to act over
this territory.
Similarly, Hooven & Allison Co. vl Evatt., 324
U.S. 652 (1945},
can be cited only for the self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers would not be exercised during the transition
was not addressed.
Congressional authority over the people of the territories
and their political rights is derived from Congress' authority
09/15/94, I 1:59am
20029980
11
CUi~TON
LIBR\RY PHOTOCOPY
�,---------------------~·------
over Guam as property brought within Congress' control by the
Territorial Clause.
In Edward v. Carter, the Court clarified
Congress' power under the property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitted) (emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39
u.s.
526 ( 1840) _where the Court· considered Congress' power to impact a
leas~
of federal lands through legislation.
The Court'S approach
to the question is quite interestihg and seems to analogize
th~
power over land with the power over territorial governments.
First, it finds that the mines in question lie with
territory of the United States. are, therefore, its property.
Second, i t recites the Territorial Clause and concludes that the
term territory refers is a descriptive word referring to one kind
of property.
-
Third, the Court concludes that "Congress has the
same power over (the mine] as over any other property belonging
to the United States; and this power is vested in Congress
without limitation; and has been considered the foundation upon
which the territorial governments rest". Id. at 537.
Fourth, the
Court then references cases involving Congress' authority over
the territories, including Florida, including the right of
Congress "to make all needful rules and regulations respecting
09/15/94, 11:59am
20029980
12
CUf~TON
LIBRARY PHOTOCOPY
�the territory or property of the United States". Id. at 538.
Finally, the Court concludes "[i]f such are the powers of
Congress over the lands belonging to the United States, the words
"dispose of," cannot receive the cons~ruction contended for at
the bar; that th~y vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater includes the lesser.
The Court reached its
decision building on Congress' authority over the territories.
If Congress has the power to dispose of territories or to make
all needful rules and regulations, it must then also have the
power to limit its poli~ical control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
Section II - "The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp S-6.
·
This section of the Memorandum offers nothing more than a
restatement· of the "principle" asserted in Section I -- that
Congress'. plenary authority does not include the right to limit
the exercise of this authority in the future by way of a mutual
consent clause.
As with Section I, the cases relied upon in this
section do not deal with the issue of Congress exercising its
plenary authority in this way.
Clinton v. Englebrecht, 80 U.S.
(13 Wall) 434 (1872) does
not establish a rule that any delegations of authbrity to a
09/15/94, 11:59am
20029980
13
CLINTON LIBRARY PHOTOCOPY
�territory "must be 'consistent with the supremacy and supervision
of National authority'" as asserted in the Memorandum at p. 5.
The case did not address whether Congress could irrevocably limit
its right to alter a law because of a mutual consent clause, nor
did it use the word "must".
The quote is dicta and deals with
how Congress had approached local government up to that time.
The actual quote is as follows:
The theory upon which the various governments
for portions of the territory of the United
States have been organized, has ever been
that of leaving to the inhabitants all the
powers of self-government consistent with the
supremacy and supervision of National
authority, and with certain fundamental
principles established by Congress.
80
u.s.
at 441 (emphasis added).
This quote establishes nothing more than the historical fact that
(
Congress in its approach to self-government for the Territories
had not agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co., 302 U.S. 260 (1937) adds
nothing to the debate.
The Court recites the quote set forth
above from Clinton v. Englebrecht but usesit to affirm a broad
grant of power to territorial legislatures, not to bar Congress
from entering into an agreement not to exercise its authority.
In fact, the holding in Puerto Rico was to affirm the validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346 U.S. 100 (1963)
09/15/94, 11:59am
20029980
14
CLINTON LIBRARY PHOTOCOPY
�provides even less support for the Memorandum's assertions.
As
with the other cases, the Court was merely referring to the same.
precedent regarding the general authority of Congress to alter
its_'legislation relating to a territory, but, here again, this
discussion was not in the context of an expression by Congress of
an intent to limit itself. 7
More importantly, the laws in.
question contained specific reservations permitting Congress to
make . such am·endrnents.
34 6 · U.S. at 19 5.
What ·is missing from this section, is a discussipn of two
important decisions more closely on point.
The first is Currin
v. Wallace, 396 U.S. 1 (1938) which is mentioned in foot!lote 13
of the Memorandum but summarily dismissed as being inconsistent
with the Department's new theory that Congress cannot bind
itself.
This is a decision which we suggest is more
appr6priately left to the Supreme Court.
Currin is significant
because the Supreme Court approved an Act of Congress
implementation of which required the approval of those affected
by it, the essence of the Guam mutual consent clause.
The Act,
7
The memqrandurn attempts to bolster the Department's
theory that Congress must retain the authority to revise, alter
or revoke any authority it grants to the territories by citing
United States v. Sharpnack, 355 U.S. 286 (1958); Harris v.
Bareham, 233 F.2d 110 (3rd Cir. 1956); Firemen's Insurance Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 U.S. 648 (1874) and Christianson v. King County, 239 U.S. 365
(1915).
The cases cited, similar to D.C. v. Thompson, 346 U.S.
100 (1953) do not discuss an express intent by Congress to limit
the exercise of its authority,. rather they are limited to
situations whereby Congress clearly reserved the exercise of its
authority to revise, alter or revoke thrOugh enacted legi~lation.
09/15194, 11:59am
20029980
15
CLII~TON
LIBR'\RY PHOTOCOPY
�passed pursuant to the Commerce Clause which the Memorandum
asserts gives .Congress the same plenary power as the Territorial
Clause,
was challenged as an unconstitutional delegation of
authority.
The Court disagreed finding that rather than a
delegation of legislative authority, the Congress "has merely
placed a restriction upon its
own
regulation by withholding its
operation .•. 'unless two-thirds of the [voters] voting favor it.
Similar conditions are frequently found .in police regulations."
306 U.S. at 15.
The Court went on:
Here it is Congress that exercises its
legislative authority in making the
regulation and in prescribin~ the conditions
of its application. The required favorable
vote upon the referendum is one of these
·conditions ... "Congress m~y feel itself unable
conveniently to determine exactly when its
exercise of the legislative power should
become effective, because dependent on future
conditions ... it may leave the determination
of such time to ... a popular vo~e of the
residents.of a district to be effected by the
legislation. While in a sense one may say
.that such residents are exercising
legislative power, it is not an exact
statement, because the power has already been
exercised legislatively by the body vested .
with that power under the Constitution, the
condition of its legislation going into
effect being made dependent bi the
legislature on the expression of the voters
of a certain district."
306 u.s. at 16 (citing Hampton & Co. v. United States, 276 U.S.,
394, 407 (19??).
If the Court agrees Congress has the authority to make
implementation of its legislation subject to ratificati6n by the
affected voters, it is inconceivable that the Court would find
09/15/94, 11:59am
20029980
16
CLINTON LISR.ij,RY PHOTOCOPY
�~~~~~~~~~~--------------------
that Congress could not agree to limit its ability to change that
same law without the consent of those same voters, if Congress
has expressed its intention unmistakably.
The most troublesome oversight in this section of the
Memorandum, however, is the failure to discuss the Ninth
Circuit's decision in-United States v. De Leon Guerrero, 4 F.3d
749 (9th Cir. 1993), cert. denied, ??
U.S~
?? (199?).
De Leon
Guerrero is the only decision of which we are aware that deals
with the applicability of a mutual consent provision in
territorial legislation.
The case arose under the Covenant for
the Commonwealth of the Northern Mariana Islands.
48 u.s.c.
was ratified by an Act of the Congress.
The Covenant
§
1681b.
The
case involved an ongOing debate about whether the Commonwealth's
.
.
right of local self-government as defined in the Covenant under
Section 103 substantially limits Congress' legislative powers
over the Commonwealth under Section 105".
4 F.3d at 752.
The
specific issue was whether the audit provisions of the Inspe.ctor
General Act of 1978 "conflicts with the self-government
provisions of the Covenant". 4 F.3d at 753.
In order to reach the
question~
the court first had to deal
wi.th arguments put forward by the Department of Justice which are
identical to those in the Memorandum.
Inspector General, the Department
Arguing on behalf of the
ass~rted
that Congress had the
right to pass the Act under the Territorial Clause arguing "that
because the CNMI is governed through Congress' power under the·
09/15/94, 11:59am
20029980
17
CUf~TON LIBRARY PHOTOCOPY
�Territorial Clause, Congress has .plenary legislative authority
over the C:NMI".
4 F. 3d at 7 54. 8
"unpersuasive".
According to the Ninth Circuit
The court found this argument
'the authority of the United States towards
the CNMI arises solely under the Covenant.'
The Covenant has created a 'unique'
relationship between the United States and
the CNMI, and its provisions alone define the
boundaries of those relations ... The
applicability of the Territorial Clause to
the CNMI, however, is not dispositive of this
dispute.
Even if the Territbrial 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 authority.
4 F.3d at 754.
Ultimately, the Ninth Circuit approved application of the
law not because Corigress had plenary authority under the
Territorial Clause· but because the Covenant specifically gave
Congress the right to enact legislation applicable to the
Commonwealth.
The only limit on this right is a mutual consent
. provision stating that a few limited sections of the Commonwealth
Act could not be modified without the mutual consent of the
The court referred to Simms v. Simms, 175 u.s. 162, 168
(1899) a case which explained.that under the Territorial Clause,
Congress "has the entire dominion and sovereignty, national and
local, Federal and state, and has full legislative over all
subjects upon which the legislature of a state might legislate
within the state". This is the same principle upon which the
Justice Department again relies.
8
09/15/94, 11:59am
20029980
18
CLINTON LIBRI.I.RY PHOTOCOPY
�Commonwealth.
Covenant Section 105. 9
The Court found that this
mutual consent provision as drafted did not bar the Congress from
passing laws affecting the Commonwealth where the
u.s.
had a
sufficiently significant interest to justify.it.
The.holding in De Leon Guerrero contradicts directly the
conclusion paragraph to this section.
This paragraph reasserts
that the "non-state areas are subject to the authority of
Congress, which, as shown above, is plenary ... [and] persists
[until] the area becomes a State or ceases to be under United
States sovereignty".
Memorandum at 6.
Rather, .that decision
makes clear that Congress' authority, after a political status
change agreed to between Congress and the pe6ple of the
territory, is defined solely by the terms of that agreement.
Section III -- The Rule that Legislation D~legating Governmental
Powers to a Non-State Area Must Be Subject to Amendment and·
Repeal Is but A Manifestation of the General Rule That One
Congress Cannot Bind A Subsequent Congress, Except Where It
Creates Vested Rights Enforceable Under the Due Process Clause of
the Fifth Amendment-- pp 6-7.
This entire subsection is premised on a fallacy.
There is
no rule express·ed in any decision of any court that governmental
·powers to a non-state area must be subject to amendme.nt and
repeal.
A$ described above, the most that can be said is that
there is dicta in a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the .mutual consent
provisions which the Memorandum states the Department will
continue to support. Memorandum at 12.
09/15/94, !1:59am
20029980
19
CLH\JTON LIBRARY PHOTOCOPY
�-I
whether Congress can bind itself, that Congress' actions in the
territories are subject to later amendment or repeal.
What is
accurate in the section is that these statements are nothing more
than "a specific application of the maxim that one Congress
cannot bind another .... "
Memorandum at 6.
The analysis does not end here, however, because it is
simply not true that one Congress cannot bind another, .as the
Memorandum recognizes but then attempts to explain away.
As
described above, the most that can be said is that there is dicta
in a series of cases, which do not address the issue of whether
Congress can bind itself.
They stand only for the proposition
that when express statutory language exists or when language is
not provided and it is clear Congress originally had the power,
then in those situations Congress retains its authority and its
actions in the territories may be subject to later amendment or
repeal.
In the end, the section misrepresents as conclusive and
inflexible "the maxim that one Congress cannot bind another."
First, the law must create vested rights as Justice Marshall
explained in Fletcher v. Peck, 19
u~s.
(6 Crarich) 87, 135 (1810)
("When, then, a law is in its nature_ a contract, when absolute
rights have vested under that contract, a repeal of the law
canp.ot devest (sic) those rights.") 10
.
This, too, the Memorandum
10
,
Although the Oepartment in its memorandum focus' on the
dissenting opinion in u.s. Trust Co. v. New Jersey, 431 U.S. 1
(1977) the actual holding was that impairment of contract by the
State was_in violation of the Contract clause and neither
necessary nor reasonable in light of the circumstances . . Although
09/IS/94, 11:59am
20029980
20
CLINTON LIBP.AR\' PHOTOCOPY
�recognizes but goes on to utilize a quote from the Sinking Fund
Cases as part of its effort to build a case that only contractual
rights of a private nature are protected from change.
'
The analysis provided is incomplete.
11
The test actually
established by the Supreme Court to determine whether Congress
has bound itself turns not on the nature of the contract (private
right vs public) but on whether Congress has expressed its
intention to protect the vested right in "unmistakable terms".
The "unmistakable terms" doctrine is not even addressed in the
Memorandum.
Infra at p. 25.
Section IV -- The Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two Mutual Consent Clauses - p. 8.
The Memorandum presents two bases for its conclusion that
the Due Process Clause does not bar a repeal of a mutual consent
the Contract clause applies to States and·not the federal
government, the "United States are as much bound by their
contracts as .are individuals." Sinking-FundCasess, 98 U.S. 700,
719 (1879).
The Court in Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v. United States, 292 U.S. 571, 579 (1934), stated "the Supreme
Court held that "[r)ights against the United States arising out
of a contract with it" are property rights protected from
deprevation or impairment by the 5th Amendment." See also Madera
Irr. Dist. v. Hancock, 985 F.2d 1397, 1401 (9th Cir~ 1993).
Moreover the Court, in U.S. Trust Co. noted that "a statute is
itself treated as a contract when the language and circumstances
evince a legislative intent to create private rights of a
contractual nature enforceable against the State." 431 U.S. at
17, fn 14-(1977).
11
What is not disclosed about the Sinking Fund Cases is ·
that the "statutes in question expressly reserved Congress'
authority to repeal, alter, or amend them, and Congress exercised
that power ... " POSSE, 477 U.S. at 53.
09/15/94, 11 :59am
20029980 ·.
21
CLINTON UBRAR\' PHOTOCOPY
�clause.
First it points out that a territory is not a person
within the meaning of the Due Process Clause.
herring.
This is a red
Secondly, it asserts that a repeal would not deprive a
territory of property within. the meaning of the Fifth Amendment.
This is not the test the Supreme Court has established.
not the nature of the vested right that controls.
It is
Rather,
the
test involves a combination of·a vested right coupled with an
"unmistakable" .commitment by the Congress not to interfere with
the right.
Subsection·Iv, B --"A Non-State Area Is Not A Person in the
Meaning of the Due Process Clause of the Fifth Amendment." pp.B-
9.
We do ,riot need to debate the merits of the legal arguments
presented in this subsection because this is a non-existent
issue.
.The mutual bonsent clause being discussed between the
President's designated negotiator and representatives of the Guam
Commission on Self-Determination runs between the Government of
the United States and the People of Guam, not the politicai
entity of the Commonwealth of Guam as the Memorandum assumes.
The People of Guam clearly qualify as persons under the Due
Process Clause.
We have attached the current configuration of the proposal
for your review.
The reference to the People of Guam is
appropriate because elsewhere in the Act we intend to require
that after adoption by Congress the People of Guam hold a
09/15/94, 11:59am
20029980
22
CUf~TON LIBRARY PHOTOCOPY
�plebiscite to approve what Congress has enacted before it becomes
applicable to Guam.
In this regard, we also intend to change the
nature of the Guam Commonwealth Act.
Rather than an Act of
Congress approved by the people before implementation, it will
become a Covenant between the United States and the people of
Guam.
This· Covenant will create vested and binding rights
protecting both the interests of the United States and of the
People of Guam.
Subsection Iy, B -- Legislation Relating to the Government of
Non-State Areas Does Not Create Any Rights Or Status Protected By .
the Due Process Clause Against.Repeal Or Amendment By Subsequent
Legislation~ - pp. 9-12.
While recognizing that the Government may enter into
contracts, the Memorandum asserts that only contracts similar to
those entered into by private individuals are enforceable, and
"governmental powers cannot be contracted away", citing North
American Coml. Co. v. United States, 171 U.S. 110, 137 (1898) . 12
To bolster its position, .the Memorandum relies on the POSSE
12
The comment by the Court relied upon by the Memorandum
is dicta.
It came in a case involving Congress' right to alter
the terms of a lease through regulation.
The decision did not
turn on the rule that soverei~n regulatory authority could riot be
waiv~d.
It turned on the fact that an express reservation of
authority had been included in the cbntract. As the Court noted,
this was a lea~e ''expresSly subjected from the beginning, to
whatever regulation? of the business the United States might
make".
171 u.s. at 137.
09/15/94, 11:59am
20029980
23
CUI~TON LIBRARY PHOTOCOPY .
�·decision. 13
The POSSE decision, however,
matter of the contract in question.
did not turn on
~he
subject
The actual foundation of the·
Court's holding was that if Congress was to surrender any of its
sovereign power in a contract, it·must do so in "unmistakable
terms".
The "unmistakable terms" analysis would not be necessary
if the Court did not assume that Congress could indeed surrender
sovereign powers, even in the realm of traditional regulatory
authority as·was presented in the POSSE case.
This is exactly
the opposite of what the Memorandum asserts.
-
Indeed, the Court's reference to the bond and insurance
cases had no direct bearing on the Court's holding.
The cases
were cited for the limited purpose of contrasting circumstances
where Congress clearly evidenced its intent to bind itself from
the facts in the POSSE case where "Congress expressly reserved to
itself "[t]he right to alter, amend, or repeal any provision of"
13
The Memorandum lacks examples that give support to the
Memorandum's theory that Congress does not have the ability to
limit the exercise of its authority under the plenary power of
the Territorial Clause. Rather, the cases cited involve
situations whereby the Congress through legislation, or the lack
of legislation, retained its authority~ For example, the
memorandum indicates Hudson Water Co.
McCarter, 209 u.s. 349
(1908) has a much broader interpretation than the actual case
decision provides for.
In faqt, Hudson conc~rns an action
involving a water rights contract between the State and an
individual where the State did not include provisions limiting
its powers, therefore allowing subsequent legislation by the
State and a· resulting ineffective contract.
It is not about the
State's incapability to limit its power by contract, rather it's
about the authority of a State to retain its power when not
granted away.
v.
09/15/94, 11:59am
20029980
24
CLINTON UBR'\R\' PHOTOCOPY
�the Act which lead to the contracts at issue.
477 U.S. at 42.
The Court relied upon this contrast because its holding in POSSE
was that the.Congress could amend the legislation in question,
even if that amendment interfered with contractual rights,
because it had not unmistakably indicated its intent to bind
itself -- the standard the Court has established for determinin·g
whether Congress has waived its sovereign power.
The actual holding in POSSE -- that Congress had not
surrendered its sovereign powei to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thrift.Supervision,
967 F.2d 598, 621 (D.C. Dir. 1992).
The Transohio decision
demonstrates conclusively that the Memorandum's analysis of the
holding in POSSE is so flawed that one wonders. how it could be
used to justify a proposed reversal in such an important area of
Administration policy.
In that decision, the D.C. Circuit makes
clear that "[t]he Supreme Court reached [its] conclusion by
analyzing the governing st.atute, the Social Security Act" and
focused on the fact critical to its decision -- "(t)he Social
Security Act contained an express-reservation of Congress' power
to amend the law ... ", 967 F.2d at 621, not by establishing the
.per se '"private rights" test asserted in the Memorandum.
According to the D.C. Circuit
The "principles form(ing) the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
09/~5/94,
11:59am
20029980
25
....... -..:..
CLII~TON UBR~R\'
PHOTOCOPY
�that " 'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.' " Id. at 622 (emphasis added). 14
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The "unmistakability" doctrine is a. special
rule of contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief.
Justice Marshall wrote for the Court ~n a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of its sovereign
powers.
Id. at 618.
Both the POSSE and Transohio cases dealt with the
application of the."unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
14
If the Court had actually established a per se rule
which depended on the nature of the contract, then why did the
Court continue after stating the unmistakable terms principle and
the general rule that ''contractual arrangement~ including those
to which a sovereign itself is party, .remain subject to
subsequent legislation by the sovereign" state that "[t]hese
principles form the backdrop against we must consider the
District Court~s decision effectively to forbid Congress to amend
a provision of the Social Security Act''.
477 U.S. at 52.
By
use of the "must consider" terminology, the Court made clear what
the test is.
It would have been much more direct and ultimately
clearer simply to have ruled that the contract between the Social
Security Administration and the State of California was not a ·
traditional private contract.
It did not, of course, because
that is not the test the Supreme Court ever applies. The test is
wh~ther Congress has stated its intentions in unmistakable terms .
.09/15/94, !1:59am
20029980
26
CLH~TON LIBR/\RY PHOTOCOPY
�regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on ''traditional private contractual
rights~·
which the Memorandum would have us believe is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by adopting.the "traditional private contractual
rights" test advocated in the Memorandum with a simple finding
that alleged contractual rights associated with the regulatory
programs at issue in the cases are not traditional private
contractual rights.
They did not, of course, because the Supreme
Court applies the "unmistakable terms" test which requires an
analysis of Congress' intent, not the per se standard proposed in
the Memorandum.
See,
~'
477
u.s.
at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holdirig -- that Congress
can contract away sovereign rights to exercise· its regulatory
authority when its says so urunistakably.
15
Instead of dealing
15
The POSSE decision has even been criticized because it
appears to open the doo.r wider than some commentators believe
advisable. In an article by David Toscano entitled "Forbearance
Agreements: Invalid Contracts for the Surrender of Sovereignty
analyzed the POSSE decision in great detail.
It concluded that
"(t]he power to waive sovereignty was recognized" in POSSE.
92
Colum. L. Rev. 426; 451. It goes on "[i]n POSSE, the Court
relied entirely on Merrion v. Jicarilla Apache Tribe for the
proposition that the federal government can surrender sovereign
power. Jicarilla in turn relied upon· cases involving primarily
the taxation powers of state governments ... Instead of endorsing
09/15/94, 11:59am
20029980
27
CLii~TON LIBRARY PHOTOCOPY
�.--------------------~----------
accurately with the Court's actual analysis, the
Memorand~
at
page 11 relies upon a quote, claimed to set forth the holding,
which is taken completely out of context and has nothing
whatsoever to do with the holding.
The quote, taken from 477 U.S. 55, fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress have stated in unequivocal terms itsintention to limit the exercise of its regulatory authority, it
explicitly retained it.· After stating that the contract claimed
by the State of California "bears little resemblance to rights
held to constitute 'property' and citing to the insurance and
bond cases as examples, the Court went_ on to explain the_ir
relevance.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
the rule applying to the police powers -- such powers cannot be
surrendered -- i t adopted the rule applying to taxation powers
such powers can only be surrendered if done so unmistakably.
This move should not be followed automatically: if the Court
wants to enforce contracts that surrender the federal
government's regulatory authority, it should do so on the basis
of policy arguments, not on the basis of POSSE."
Id. at 460.
Obviously the author did not like the test used by the Court.
Nev:ertheless his criticism_ makes clear what the test is.
09/15/94, 11:59am
20029980
28
CUI~TON UBR/\RY PHOTOCOPY
·'
�of its power to provide for the general
welfare.
Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be.viewed as
conferring any sort of "vested right" in the
face· of precedent concerning the effect of
Congress' reserved power on agreements.
entered into under a statute containing the
language of reservation.
477
u.s.
at 55
(emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contracting away its right to adopt
legislation, because the "Court has never held that the United
States cannot surrender regulatory powers through contract ... "
92 Colurn. L. Rev at 458.
making
~ffectiveness
But the Court has approved Congress
of its legislation subject to approval by
the voters who are impacted by the legislation, see, Currin v.
Wallace, 306
u.s.
at 15-16.
It defies the rational of the POSSE
decision to argue that·the Court would approve Congress adopting
legislation making effected-voters approval a requirement and
then pass _subsequent legislation authorizing it to ignore the
vote of approval, if it has stated in unmistakable terms that it
would not take such action.
After spending el~ven and one-half pages arguing that mutual
consent clauses are unenforceable and unconstitUtional, the
Memorandum comes to an astounding conclusion.
It states that the
"Department of Justice ... would honor past commitments with
respect to the mutual consent issue", including Section 105 of
09/15/94, 11:59am
20029980
29
CLINTON LIBR(),R\' PHOTOCOPY
�the Covenant with the Northern Marianas Islands.
Department cannot have it both ways.
But the
An Act of Congress is
either constitutional .and enforceable or it is not.
If a mutual
consent provision for Guam is unenforceable, then the Department
must reach the same conclusion for all other mutual consent
provisions.
This includes the mutual consent provisions in the
Compact of F~ee Associati9n with Palau' scheduled to go into
effect on October 1, 1994.
The Department's Memorandum offers no
solid basis for such a significant reversal irt policy.
All of
the cases upon which it relies, except POSSE, were available to
it when its earlier positions supporting mutual consent were
made.
POSSE does not change any rule with regard to Congress
binding itself.
It merely lays out clearly a test adopted in
1981 in ·Merrian v. Jecarilla Apache Tribe, 455 U.S. 130, which in
turn carried. forward a principle which the D.C. Circuit states
"dates back to the early 19th century."
967 F.2d at 618.
CLINTON LIBRARY PHOTOCOPY
09/15/94, 11:59am
. 20029980
30
�---------------
-------
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
DATE
SUBJECTffiTLE
RESTRICTION
11/1111998
· Phone No. (Partial) (1 page)
P6/b(6)
002. note
Phone No. (Partial) (1 page)
n.d.
P6/b(6)
003. schedule
Phone No.'s (Partial) (4 pages)
11/00/1998
P6/b(6)
004. briefmg paper
re: Deliverable issues for Guam (4 pages)
n.d.
P5
005. briefmg paper
re: Deliverable issues for Guam (2 pages)
n.d.
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
CUI~TON
USR!l.RY PHOTOCOPY
OAJBox Number: 24088
FOLDER TITLE:
[Guam- Gutierrez, Governor Carl T.C.] [1]
Jamie Metrailer
2006-0193-F
·m103
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute clearly unwarranted invasion of
personal privacy [(a)(6) of th~ PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
.
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA] ·
b(8) Release would disclose information concerning the regullition of
. financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
a
C. Closed in accordance with restrictions contained in donor's deed
of gift.
· PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3) .
. RR. Document will be reviewed upon request.
�i.
Deliverable Issues for Guam
Micronesian Compact Impact Aid
Background:
The U.S. 'free association' compacts with Micronesia, the Marshall Islands, and Palau have
enabled thousands of citizens of those states to move to Guam, Hawaii, and the Northern Mariana
Islands. The Compact law authorizes reimbursement of the costs to the U.S. islands' social
programs.
$4.6 million is being provided by Interior annually to Guam through FYOl. Almost no funds are
provided to Hawaii and the Northern Marianas. GovernorGutierrez says that $10 million is the
minimum amount Guam needs. Governor Caeytano has recently said that Hawaii should be
reimbursed. The Northeren Marianas is not being provided funding in light of the other assistance
that it gets.
Proposal:
;
Announce a FYOO budget proposal to increase the reimbursement to Guam to $10 million
annually. The funds would be made available by decreasing the $11 million a year subsidy to the
Northern Marianas, which is resisting the Administration's efforts to enact Federal immigration
and minimum wage laws for the Commonwealth as authorized in the covenant by which they
came under U.S. sovereignty. The other $5.5 million could be made available for Hawaii.
End Interior Auditing of Guam
Background:
The Interior IG audits spending of local funds by the smaller territorial jurisdictions as well as
theituse of Federal funds. There is no similar auditing in ourlargest territorial jurisdiction, Puerto
Rico. The smaller jurisdictions consider the auditing colonial.·
Proposal:
Announce a bill to end the auditing of local funds as Guam and other islands are certified to have
independent local auditing agencies.
CLINTON LISR.~RY PHOTOCOPY
J
�Liberalize Trade Restrictions
Background:
Guam and the other smaller territorial jurisdictions are outside the customs territory of the U.S.
but can import products into the U.S. market free of duties and quotas if the products meet
specific tests ('substantial transformation' of foreign components into a new product and 'value
added' locally to the components). Guam has sought the elimination of most of these restrictions.
Proposal:
We have cleared -- but not yet announced -- legislation to eliminate redundant value added
requirements. It would not apply to garments in light of the abusive-Northern Marianas garment
industry.
Excess Military Property Conveyances
Background:
The military owns 44,800 acres in Guam. Most of the land does not appear to be used and is held
for contingency purposes. Guamanians contend the extent and location of this land limits their
economic development. They also feel some of the land was unfairly acquired in the wake of the
liberation of the island from enemy hands in World War Two. Some former owners feel they have
missed out on fortunes others made by selling their land to Japanese investors.
,
P~oposal:
The President would announce -•The intent to transfer 4,678 acres of Air Force including 360 housing units,
•The intent to transfer 3,821 acres ofNavy land.
•The transfer of 44 acres of former navy land worth $4.5 million for a waste treatment plant.
•Plans to ask Congress to complete action on umbrella Guam excess land transfers legislation,
which W01Jld eliminate some of the usual restrictio~s on land transfers. (The bill passed the Senate
this Congress. Guam's desire to have land go free to former owners who were already
compensated for it has been the sticking point on the legislation. Cong. Underwood has just
suggested a compromise that would have the former owners pay back what they were paid for the
property plus interest.)
2
CUI'-!TON UBRJ\RY PHOTOCOPY
�There are also some excess military facilities that would be the basis. of announcements.
•The Naw will expedite the transfer of the Naval Air Station Agana (1,939 acres). Added to the
·basic property will be the NAS Agana officers family housing parcel (92 acres). Further, EDA
will seriously consider a $1 million plus grant for infrastructure improvements onthe site to
enhance its commercial viability.
•The Navy will expedite the transfer ofthe Guam Ship Repair Facility (100 acres).
Finally, a senior DoD official ensure that Guam land transfers are expedited.
Ship Repair Facility Assistance
Background:
The Navy closed the ship repair facility and the territory is trying to keep it in open as a private
commercial operation. The Maritime Administration's (MarAd) decision to repair a ship which is
based in Gl..Iam in Japan November 2 was a blow requiring 100 plus layoffs at the already scaleddown facility.
Proposal:
Announce-• A Navy commitment to continue to sole-source work at the yard.
•That MarAd will work with the yard to finance a major moderriization of the facility on a lowcost basis and provide marketing assistance.
DOD Ombudsman·
Background:
Guam has a number of military issues and tensions between the community and field officers have
increased.
Proposal:·
DOD has agreed with out request to designate a senior DOD appointee in Washington to morutor
and address major complaints of the Governor or Delegate.
3
CUI~ TON
LIBRARY PHOTOCOPY·
�Economic Development Plan
Background:
The Asian economic downturn has depressed Guam's major industry: tourism.
Proposal:
The Interior Department will fund a major study of Guam's economic options.
Coral Reef Initiative
~ackground:
The President announced a major initiative to protect coral reefs this year.
Proposal:
·The President would announce that the FYOO budget will propose $2 Million for reef protection
near Guam and other territorial jurisdictions and include the governors of the areas on the
initiative task force.
Micronesia/Marshall Islands Aid Package
Background:
The Presidents of Micronesia and the Marshall Islands will be present on Guam. Our $2.5 billion,
15 year assistance commitment to these freely associated states expires in 2001. The compact
with them requires negotiations on the expiring provisions beginning in 1999.
Proposal:
The President would announce the intent to begin talks with the areas on a post 2001 assistance
package ..
Palau Road
Background:
. The U.S. committed in the free association compact with Palau to build a road through much of
4
CLII~TON LIBRARY PHOTOCOPY
�~~~~~~~~~~~~~~~~~~~~------
Deliverable Issues for Guam
Micronesian Compact Impacts- The U.S. Free Association Compact$ with Micronesia, the
Marshall Islands, and Palau have enabled I 0,000 citizens of those states to move to Guam. The
Compact law authorizes reimbursement of costs to Guam and other U.S. islands. $4.6 Million is
being provided annually through FYO I. If we support it, Interior will increase this to 10 Million(the minimumthegovemor says is needed) by subtracting from the allotment to the CNMI
discretionary.
·
End Interior Auditing of Guam- The Interior IG audits both local spending by the smaller
territorial areas as well as the use of federal funds. There is no similar auditing in our largest
territorial area, Puerto Rico. The other territories consider this auditing colonial. We would
Pl(;Opose a b~ll to end the auditing as Guam and other islands were certified to have independent
lo'Gal auditing agencies.
.
Gu~anian
U.S. Attorney- The nomination of a U.S. Attorney for Guam- as requested by the
'·'
.
Governor and the Delegate to Congress - is not ready for announcement.
Liberalize Trade Restrictions- Guam and the other small territorial areas are outside the Customs
territory of the U.S. market if they meet specific tests. Guam has sought the 'elimination of most
free trade restrictions. We have cleared but not yet announced proposed legislation to eliminate
redundant value added requirements. It would not apply to gai:ments in light of the abusive
Northern Marianas garment industry.
Excess Military Property Conveyances- 30% of Guam is federally-owned, most of this is under
military control. Much of the military holdings are seldom or not used. (It is being held for
contingencies.) Guamanians feel the extent and location of this land limits their economic
development. Additionally, some of the land was unfairly acquired. Former owners feel they
have missed out on fortunes others made by selling to Japanese investors. The President may be
able to announce plan to convey:
- 2, 136 acres Air Force acres;
- 360 Air Force housing units on another 519 acres; and
-some Navy property
We may also want to announce plans to:
- ask Congress to enact umbrella land transfer~ legislation without all the usual
restrictions on such transfers. (The bill passed the Senate this Congress. Guam's desire to
have land go free to former owners who were already compensated for it may be the
sticking point that discourages such an announcement.) We may also want to announce
the designation of a senior DOD official to expedite Guam and transfers.
There are also. some excess military facilities that may be the basis of some announcements.
-The Navy will expedite the transfer of 1,900 acres of land and facilities at the former
Naval Air Station Agana (the name of the capital) which is adjacent to the commercial
airport. EDA will seriously consider a $1 Million plus grant for infrastructure
improvements on the site to 'enhance its commercial viability.
-The Air Force will tum over its water systems to the insular system.
CLINTON LIBRARY PHOTOCOPY
�'
.,
Ship Repair Facility Assistance- The Navy closed it ship repair facility on Guam and the territory
is trying to keep it in open as a private commercial operation. Maritime Administration's
(MarAd) decision to repair a ship which is based in Guam in Japan November 2 was a blow
requiring 100 plus layoffs at the already scaled-down facility. A plan to enhance the viability of
the yard may include:
-A Navy commitment to continue to sole-source 25,000 man days of work a year at the
yard.
·
--A MarAd yard modernization low-cost loans.
- Repairs to a small vessel to prevent some of the immediate layoffs
-The transfer ofNavy facilities including a dry dock 2.5 times the size of the existing
one at the yard.
DOD Ombudsman-Guam has a number of military issues and tensions between the community
art~ field officers have increased. DOD has agreed with out request to designate a senior DOD
apP[>intee in y;ashington to monitor and address major complaints of the Governor or Delegate.
\
.
.
Ecortomic Development Plan- Thr Asian economic downturn has depressed Guam's major
industry: tourism. The Interior Department will fund a major economics study in Guam.
Coral Reef Initiative- The President will propose $2 Million for Guam and other territorial areas
in his Coral Reeflnitiative and include the governor's of the areas on the initiative task force.
Relations/Status- The President would reiterate that the Administration has addressed Guam's
'Commonwealth' proposals for autonomy and economic benefits and it is now up to Congress to
act. He would also recognize Guam's inherent right to full self-government and his intent to try
to have the Executive Branch place a greater focus on the island's situation, needs, and proposals
under the current status through a senior level interagency group co-chaired by the White House
and Interior.
~
Micronesia/Marshall Islands Aid Package- The Presidents of Micronesia and the Marshall
Islands will be present. Our $2.5 Billion, 15 year assistance commitment to these freely
associated states expires in 200 1. The President should be able to announce the intent to begin
talks with the areas on a post 2001 assistance package. (State has the lead because these are
diplomatic relations. Interior has a big stake because it currently coordinates the assistance.
DOD has an interest because military rights is one of our major objectives.) ·
Palau Road- The U.S. committed in the free association compact with Palau to build a road
through much of its largest but largely undeveloped island. The President of P~lau will be in
Guam. ·The President should be able to announce a $150 Million plan for this road.
CLINTON LISR)~RY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. fax
FBI Individual Name [partial] (1 page)
08/05/1997
P6/b(6); b(7)(C), b(7)(F)
002. memo
To Fred DuVal from Jeff Farrow. Subject: Navy Guam privitization
study (1 page)
07/21/1997
P5
003. note
Phone No.'s (Partial) (1 page)
n.d.
P6/b(6)
.004. memo
To MiCkey Ibarra through Fred DuVal from Jeffrey Farrow. Subject:
Guam Commonwealth bill plan (4 pages)
06/19/1997
P5
005. memo
To Sylvia Matthews through Mickey Ibarra from Fred Dti Val.
Subject: Guam (3 pages)
07/22/1997
P5
(:OLLECTION:
Clinton Presidential Records
. · Intergovernmental Affairs •
JeffreYFarrow ·
· .
CLINTON LIBRARY PHOTOCOPY
· OA/Box Number: · 24087 ·
FOLDER TITLE:
Guam- Various I
Jamie Metrailer
2006-0193-F
.. 'ml06
RESTRICTION CODES
. Presidential Records Act- 144 U.S;C. 2204(a)l
Freedom of Information Act -IS U.S.C. 552(b)]
_PI National Security Classified Information l(a)(l) of the PRAI
P2 Relating to the appointment to Federal office l(a)(2) of the PRA]
P3 Release would violate a Federalstatute l(a)(3) of the PRAI
· P4 Release would disclose trade secrets or. confidential commercial or
. financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRA]
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violatea Federal statute l(b)(3) ofthd<'OIAI
b(4) Release would disclose trade secrets or confidential or financial
·
informationl(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of·
financial institutions l(b)(8) of the FOIA]
·
b(9) Release would disclose geological or geophysical infm'mation
concerning wells l(b)(9) of the FOIA]
.
.
· · C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
·RR. Document will be reviewed upon request.
�~-----------:-------------------------------:------~------
-
'·
I
..-
July 21, 1997
To:
Fred DuVal
Fr:
JeffFarrow
Re:
Nayy Guam Privatization Stu~
\,
.-
.
This is an immediate reaction to the Navy's plan to expand its study ofwhetherit would be more
efficient to contract for services now performed by personnel on Guam from some 1200 to 1800
jobs.
L 'Outsourcing' of this magnitude might have a significant impact on Guam in view of its small
p_opulation but it also would seem to be consistent with our Reinventing Government efforts and
might create some opportunities for the Government and people of Guam (in terms of services
which they could provide).
2. I've put in a call to Asst. Sec. Pirie's Deputy (who's on our Puerto Rico IG).
3. Interior was unaware of the proposal, not having heard about it from either Guam or Navy.
(While Interior doesn't have authority over matters within the jurisdiction of other agencies, it has
responsibilities that could be impacted and it might be able to help Guam.) At least Guam should
find out ifinterior can help. (I've sent a copy of the letter to AI Stayman.)
.....
Finally, I .don't want to read too much into this but A) Guam seems to be losing some of its
militcuy role. (and the leverage that it hoped to gain on other issues from that role) and B) Guam's
complaints about military domination of resources and facilities may have encouraged more of a
·
military pullback than its officials are happy to see materialize.
,......
CLINTO.N LIBRARY PHOTOCOPY
....
�June 19, 1997
Memorandum To: Mickey.rbarra
Through:
Fred DuVal
From:
Jeffrey Farrow
Subject:
Guam Commonwealth Bill Plan
This is to prepare you for a decision on how to proceed on the Guam Commonwealth Bill, which
will probably, ultimately, need to be made by Erskine. There is a lot of background-- including
statements by the President-- that needs to be considered. We have also outlined some options.
Background
Guam, the southernmost island of the Marianas chain of the Micronesian islands, bec~me U.S.
territory through the Spanish-American War. In the mid~'70s, the U.S. entered into a 'Covenant'
with the chain's northern islands that also made them U.S. territory. The Covenant provided the
new Commonwealth of the Northern Mariana Islands with several of Guam's unmet Federal
policy objectives: exemption from having to use American vessels for U.S. shipping; SSI; and a.
commitment not to unilaterally change key provisions of the arrangement for the islands' status.
Consequently, Guamanians decided that they, too, wanted 'Commonwealth' in 1982. In spite of·
Federal cautions, the then governor drafted a Federal bill that covered almost all conceivable
policies from Guam's perspective and went far beyond the Covenant. He then obtained voter
approval of the draft in referenda in 1987 in spite qf congressional concerns that doing so would
make it difficult for Guam to accept necessary changes to the bill.
Federal officials objected to almost every section in a 1989 House Subcommittee hearing. The
underlying problem was that the bill combined autonomy that would be appropriate for an area
that would be separate from but in 'free association' with the U.S. (as the three other areas of
Micronesia were becoming) with many FederaL benefits commensurate with U.S. state or territory
status. The Subcommittee then asked the Bush Administration to try work out a compromise bill
with Guam's leaders and consult Congress as it did so.
An Interior-led interagency group worked out a compromise in 1992, but some of its provisions
were unilateraily changed in the Bush Administration's final review ofthe compromise. Among
the reasons were the precedents that would be set for Puerto Rico Commonwealth proposals.
The President, as a candidate in 1992, pledged to work for a mutually-acceptabl~ law.
Interior began new talks with Guam during the President's first term, although without consulting
Congress. In 1994, it agreed to language that suggested that the·Federal Government would not
be able to unilaterally change any provision of the law once it was enacted -- language that went
CLINTON LIBRARY PHOTOCOPY
�beyond the Marianas Covenant Mutual Consent commitment. By last August, Interior Dep. Sec.
Garamendi had negotiated the rest of a substitute bill that contained much of what Guam wanted
... in many areas without agreement of the agencies with jurisdiction over the policies concerned.
Governor Gutierrez and Delegate Underwood tried to get this substitute endorsed in the
Democratic Platform but Harold, IGA, and NSC staff had the Platform, instead, simply commit to
work for an agreement. Garamendi then brought Gutierrez and Underwood in to see Leon and
ask for presidential support. Because supporting the substitute required policy changes on issues
such as Mutual Consent and the application ofFederallaws and regulations that have also been
sought by Puerto Rico's Commonwealthers and would be of concern to Puerto Rico
statehooders, Leon decided that the matter should be deferred until after the Election.
In November, Garamendi suggested an urgent need to proceed to ensure access to vital U.S.
military bases. Harold then asked the NSC for an assessment.
While the NSC was reviewing the matter, Gutierrez met with the President and, afterwards,
publicly suggested progress. (The President merely pledged that the substitute would be seriously
and expeditiously considered.) Reports that the substitute was being approved, however, caused
House Committee Chairman Don Young to write the President 1) expressing concern about two
provisions that Guam says are essential -- Mutual Consent and limiting an insular vote on the
status question to.descendants of residents as of 1898 --and 2) complaining about the lack of
consultation. Ranking Democrat George Miller also privately expressed concern about Mutual
Consent and proposals on labor, immigration, and environmental laws.
The NSC then reported: 1) concern about the substitute on the part of all of the agencies
contacted; 2) agency feelings that they were being end-run or ignored in developing the substitute
and consternation that they did not know its specific contents; 3)-the NSC's own concern about
many elements of the substitute; 4) its lesser concern about base access; and 5) a need for a White
House-led rewrite effort involving the agencies concerned and congressional consultation.
Noting the issues of concern listed in the first attachment to this memo, Marcia recommended
such an effort. Sylvia said that Erskine approved of it and the President wrote Young that: 1) he
agreed with some ofYoung's views~ 2) Federal policy concerns had to be satisfied; 3) there
would be expeditious action; and 4) Congress and the agencies would be consulted.
As the effort got underway, however, The Washington Post reported that the Administration had
changed longstanding positions on key issues such as jQlmigration and labor control after
Gutierrez raised $1 million for the bNC and Clinton-Gore. It quoted unnamed agency officials as
suggesting that the funds influenced the policy changes and Gutierrez. as saying that they got him
access. The article, which spawned stories in other national media, linked the proposals to the
Northern Marianas' problematic immigration and minimum wage exemptions.
.
.
In denying the allegations,.we told the Post et. al. that we had already begun a rewrite effort.
2
CLINTON LIBRARY PHOTOCOPY
�- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-
-
--- - - - - - - - - - - - - - - - - - - - - ,
The effort was delayed, however, by 1) Garamendi objections to the agenda and 2) the departure
of John Emerson. It was put it on hold pending Fred's arrival, as I explained to Underwood when
he raised it in a meeting with the President and, separately, to Sylvia. The President made it clear
to me prior to the meeting that he wanted to respond to Guam's petition.
The delay led Guam's leaders to try to force us to respond by getting Young to hold a hearing this
Summer (even though he told them that 1) he would not pass the bill and 2) they should become a
Commonwealth the way that Puerto Rico had-- by writing an insular constitution). Young
additionally, however, began an investigation ofthe·campaign contributions allegations. His staff
says that Government Operations Committee Chairman Burton will do the same.
OMB and agencies, concerned about a hearing on the bill, are now pressing for the rewrite effort
to proceed. Garamendi, however, wants to wait until after the hearing, expecting expressions by
Guamanians and Members of Congress to encourage greater acceptance ofthe substitute.
Options
!._Proceed Immediately with a White House-led Effort to Rewrite the Substitute.
This is what we have publicly committed to do. It would, however, necessitate 1) a great deal of
· effort and2) policy decisions that would require Garamendi or agencies to compromise on issues.
2._Postpone Until After the Hearing and, maybe, Contributions Influence Investigations.
Garamendi believes that this approach would help create the right climate for compromise by the
agencies. It would, however, 1) seem to substantiate speculation that the Administration had
intended to go along with the substitute and just stopped when attention was focused on the
contributions; 2) contradict what has been said publicly; and 3) only postpone the real problem.
3._·Give Garamendi Parameters for Negotiation with the Agencies on the Substitute.
This would have the advantages of 1) not requiring as much involvement here after some ·basic
policy decisions are made and 2) suggesting policies that would be more likely to be approved but
it would probably still require us to mediate disputes and answer questions on details.
4._Ask for Agency and
Cong~essional
Comments on the Substitute.
These are the first steps in the first option but the expectation here is that they will expose the
extent of the problems with the substitute-- and the clear need for revision before White House
action -- to Guam without us being directly involved. This could create a situation in which
Garamandi could justify compromise to Guam as well as produce a more reasonable substitute.
It should be recognized that Guam's leaders may initially be unhappy with any of the options.
3
ClJI~TON UBRl\RY PHOTOCOPY
�{) :;;;,~6 .
,,f,
(f} {:f t( d M IJ ·
.
---~~...
CLii~TON LI8R!~RY
I
- Ae-t--
w~
PHOTOCOPY ·
"~' ~rr- · -7
cA, ?(/... ,) ..-/
�'i"A_, ··,. : -~· ~/
THE WHITE HOUSE
CLINTON L\BR~RY PHOTOCOPY
WASHINGTON
July 22, 1997
MEMORANDUM TO SYLVIA ~yrnws
THROUGH: Mickey Ibarra
0 FROM:
-1\r~
Fred DuVal.
SUBJECT:
Guam
This memo seeks to enlist your help iii clarifying White House strategy regarding Guam. Our
objective is to honor the President's commitment to Governor Carl Gutierrez (D-Guam) that the
White House will seriously consider 1) Guam commonwealth legislation and 2) the
· recommendations made by Special Representative to Guam and Deputy Interior Secretary John
Garamendi regarding this legislation. (See Attachment A).
.
)
Last January, Erskine Bowles approved an IGA-lead staff effort to work out differences of
opiruon among the agencies on the proposed draft Guam commonwealth legislation. (See
Attachment B). Over the past six months, this effort has stalled and the issue is whether to now
reinvigorate it at the White House and, if so, how?
I.
Background
In 1987, Guamanians passed a commonwealth ballot proposition which significantly redefined
Guam's relationship to the United States. The proposition called for the U.S. government to .
transfer jurisdiction and change U.S. policy in ways considered tintenable and unimplementable.
The passage of this proposition was in many ways unprecedented for a territory, and in many
instances contradicting the existing federal law.
Since 1989, every Administration has attempted to respond to this unimplementable proposition
by negotiating alternative commonwealth proposals that would adequately satisfy both the
Guamanians and the federal agencies with responsibilities and roles in Guam. These efforts
have, thus far, been unsuccessful.
The most vigorous effort was led by our third Special Representative to Guam, John Garamen~i.
His work has resulted in a draft commonwealth proposal which the Guamanians support but
which many of our agencies oppose. The most contentious issues facing the future of Guam are
the following: (1) Mutual consent-'- no provision oflaw may be changed without Guam's
approval, (2) Immigration-- ceding INS responsibilities to Guam, (3) Right to vote limitations-limiting the right to vote on status to native-born Chamorrans (residents of Guam), (4) U.S.Guam Commission-- creating a joint U.S.-Guam Commission empowered to (a) modify the
�CLINTON LIBRARY PHOTOCOPY
application of any agency's regulations on Guam and (b) make recommendations on modifying
laws on which Congress would have to vote. About a dozen less controversia1 issues also remain
unresolved. (See Attachment C).
II.
Current Situation
•
•
House Resources Committee Chairman Don Young (R-Alaska) has indicated a
commitment to hold house hearings on Guam in August (after he concludes
Puerto Rico hearings in July), which may include testimony on both Guam
commonwealth issues and alleged campaign fund raising improprieties.
•
Federal agencies with a stake in Guam are anxious about upcoming, Young-led
hearings without a unified Administration position on the key issues.
•
The Garamendi-led effort has stalled due to agency opposition and his own view
that further work on Guam should be postponed until after the Young hearings.
•
Our work on Guam was the subject of some unfavorable media attention. (See
Attachment E).
•
III.
The Government of Guam has become very upset about the delay in
Administration action, and Deputy Secretary Garamendi recently wrote Defense
Secretary Cohen and others about the threat of demonstrations on the island. (See
Attachment D). In addition, Guam is beginning to threaten withdrawal of
cooperation on national security issues unless the U.S. government makes
considerable progress on its self-determination status.
Counsel's Office (Bill Marshall) is involved and comfortable with moving
forward on the Guam issue.
Options For Consideration
1. Take no position on Guam Commonwealth.
2. Wait for Congressional Hearing on Status of Guam to conclude before directing
White House staff to coordinate an Administration position on Commonwealth.
3. Immediately circulate the Garamendi draft Commonwealth proposal through the
OMB referral process and collect written reaction and input from the affected agencies to
clarify areas of agreement and disagreement, and to give Garamendi some direction on
the areas in dispute.
4. Begin an immediate sequence of White House-hosted meetings to address disputed
issues as quickly as possible and attempt to harmonize the Administration's position
before August hearings.
�,,
' -,,
-
CLINTON LIBR!J.RY PHOTOCOPY
· IV.·
Recommendation
IGA recommends we choose option three (OMB referral) to flesh out the issues in a nonconfrontational and low-key way, demonstrating for\vard movement to Congress and
Guam but not prematurely raising Guamanians' expectations for an immediate resolution.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
To Erskine Bowles and Sylvia Mathews from Mickey Ibarra, Fred Du
Val, and Jeffrey Farrow. Subject: Request for Guam (2 pages)
10/27/1997
P5
002. fax
Phone No.'s (Partial) (1 page)
10/25/1997
P6/b(6)
003. memo
To President Clinton through Mickey Ibarra ahd Fred DuVal from
John Garamendi. Subject: Administration position on Guam
Commonwealth (5 pages)
10/2511997
P5
004. draft
re: Jeff Farrow suggestions concerning Administration comments on
Guam Commonwealth Draft Act, H.R. 100 (23'pages)
10/29/1997 ·
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
OA/Box Number: 24087
CLINTON LIBRil.RY PHOTOCOPY
FOLDER TITLE:
Guam- Various II [1] .
Jamie Metrailer
2006-0193-F
·ml07
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) ofthe PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4)·of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 R!!lease would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA) ·
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological 'or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with re~trictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�CLINTON LIBRARY PHOTOCOPY
THE WHITE HOUSE
WASHINGTON
October 27, 1997
MEMORANDUM FOR ERSKINE BOWLES
SYLVIA ~HEWS
VU 3
FROM:
Mickey Ibarra
Fred DuVal
Jeffrey Farrow
Subject:
Request for Funds for Guam
Cc:
Frank Raines
T. J. Glauthier
Janet Murguia
Lucia Wyman
This memo is intended to: 1) outline the measures that we recommend be taken to "soften the
blow" of the Administration's testimony on the Guam Commonwealth Bill, ·and 2) seek your
assistance.
As indicated in the attached memo to the President, these measures would need to be made
public ASAP in order to have the most impact.
The measures -- in order of their anticipated positive impaCt -- are:
1)
deciding to stop at Guam during next year's China or APEC (Thailand) trips;
2)
committing to $5.5 million a year from Fiscal Years 1999 to 2002 to reimburse Guam for
costs i_mposed upon it by migration resulting from Free Association agreements that the
Federal Government has entered into With three other. Micronesian island groups; and
3)
inviting Gutierrez to the China State Dinner Wednesday.
Requests regarding the first and. third measures above have been sent to the appropriate staff.
We would very much appreciate your asking.OMB to agree to the second measure. Our rationale
is outlined below.
Compact Impact Funds
The Compacts of Free Association with Micronesia, the Marshall Islands, and Palau executed in
1986 and 1993 enabled citizens of those non-u.s·. islands to migrate freely into the U.S. and its
territories. The laws authorizing the Compacts' implementation authorized the funds necessary to
reimburse Guam and other U.S. islands for the costs imposed on the U.S. islands' social services
�and infrastructure by this migration.
The bulk of the impact has been on Guam. Thousands of the estimated 175,000 Micronesians
have moved to Guam, the largest Micronesian island, imposing costly burdens on its health,
education, and other systems. However, relatively few Federal dollars have been appropriated for
reimbursement, exacerbatitig discontent in Guam with its current Federal relationship and fueling
its Commonwealth Bill request to control immigration (which the Administration will essentially
oppose Wednesday).
Questions about the net cost have been used to explain not providing more funding, but the
budget deficit has probably been a greater reason. Increasing funding has been a priority
unrealized objective of Guam's Governor and Delegate to the U.S. House. Governor Gutierrez
claims that as much as $15 million a year is needed now.
In response to our inquiry, the Interior Department's Insular Affairs Office said that $1 0 niillion
a year is about the minimum that would be required to fulfill Guam's expectation under the law.
The office is now providing $4.5 million a year and has identified $10 million a year that it can
provide effective FY '03. Our request is for OMB to work out a means of filling the shortfall for
Interior-- $5.5 million a year through FY '02 --or, at least, corinnitto a significantproposal for
increased funding that can be publicly announced even if a specific amount is not released yet.
While it may, at first, seem to be a very substantial monetary commitment to make on such short
notice, we believe that: 1) this matter has been considered enough at OMB and Interior to enable
a quick decision to be made, and 2) the commitment would be helpful enough in terms of
additional goodwill to warrant the focus necessary for such a decision. '
Please contact us if we can provide any information that would facilitate approval of this request.
2
�.J..
u ·" ,;..
1 ..
.:J
J
J..
~
• a,;.
u
.L n~
4:!:J uu.:.
CLINTON UBR!\R.Y PHOTOCOPY
Exhibit A
Swi~Administration Comments On
Guam
onrmonwealth Draft Act, H.R. 100
October 29, 1997
PREAMBLE
Summey ofProyision. The preamble describes the motives of "the people of the United States"
in embracing the establishment of the. Commonwealth, making reference to U.S. "obligations"
under the Treaty of Paris, the UN Charter, and the principle of self-determination. It also
describes the motives of "the people <)f Guam." who seek greater self-goveroment "in concert"
with the,
u.s. .
~ 1k Pr~~~,~v~~·"' ~\)~~ s~~~r"'"~'o;. ~~.· \c::.\~'"'
&~osition. F
self
· ·
.g.',-\-~ ~;.~\:c ~~
·. · ·
·
.
"
· "
·
f
·
Ch.~~~~~~~~~~~~~~~~~~~~~~
G
·
· the word "obligations" with the
phrase "pmposes and principles" of the UN Charter and Treaty of Pari;, We would~
qualify the tenn ''self-determination" to mean as provided in the Guam Commonwealth
Act1 Cl.l'l'-~~ ~~~ ~ ~ ~..-c-.~"-wu.J...~ ~'b~ 1:-L
w~~ ..... ~ ~~ ~ p'b\ ;.\.\ ~ S.'\~~ .
TITLE I~ POLITICAL RELATIONSHIP
Section lOl{a) - Creation of Commonwealth Government ·
Summary of Provision. Creates the Commonwealth of Guam and identifies the supreme laws of
the island.
·
\k p..~.,._.:..~,~-\.(""~""" ~j._~
!>~~-\*'~ ~~~: !..i~ .....
.g.
,Cnrr~sition. There was general a:grcerixent
on T1tts section, as modified hylB:B:guags ~
thau;-~a~~~w~eHJ--ta~- clarify that the Commonwealth of Guam will remam "under the sovereignty of
the United States".
·
Section lOl(b) -Self-Government and Guam Constitution
\-...
0...~~\-~,fll..~~Jl
~'b\J...,.....
tt'-'~~ .
be
·
Summary ofProyjsjon. Guam shall have "full'' self-government an 1 Constitution
arm of government, provide
consistent with the sovereignty of the U.S.,.provide for a republican
for 3 branches of government, and contain a bill of rights.
1
�....
~
. -.
46j UU.)
.
~Position.
.
'b'
E Xh I It A
I ..1. \'\
\-~- \
v:)'lf""- ~ ~'
~~\.h~" -,"r "~ . ' ;:- \ ~
~~~s~r-r~,<i. ~
.
-
D. \
~
. ~ \"-~--'
The Administration~
the liicd for Congressional approval
of the Commonwealth Consti1ution, b&sea on prior ;presed~ and tB~ need. to inswc ~
GuaJ.ri's compliance Yfith the dements required to be included in the Gell'3t:ittltion
~
pw-osu~mt te Section 101(0). As to the modifier "fulJOot il_el£ g~vemment, we object
because the t~rm creates ambiguity, particularly when other modifiers ofthe termelsewhere in tl1e lggisla.tion differ. Our concent is based, pzincipally, on the NOithexn
Mariana experieZJ.Ce 5 whieh :suggests that omission of the term ''full'' could be used ia later
litig ·
·
n
de eting reference to fue Commonwealth Act, since it would be covered by the reference
to "laws of the I hilled gtatgs" and deleting reference to the Guam Constitution, as jt
s~ms more appropriate for the Guam Constitution (when adopted) to define its place in
relation to other Cammo:o.wealth laws.
·
Section 101© Commonwealth Power to Sue and Be Sued
Summary of Provision. The Government of the Commonwealth shall have the power to sue in
its own name and be sued for breach of contract and tort..
. . . . .~ _ .
.
.
\).)~~~
~.k+-~
Cm,: Position. The Administrati~pportl'Wt\.-a&modified ~dditig!lw --tfJ...&.. ...:;,~~
le~t5la1:i~e
consent to be sued as ''evidenced by enacted law."
Section lOl(d) Public Education System/Inherent Powers
2
CLINTON LIBRARY PHOTOCOPY
�.l. U :'·..,;.I : ::J I
J..); ,.;
U
J: rt...lo.
___:_-----.,.....-------,---- - - - · - · - - - - - - - - - - -
4:!:J
UU'i,
Exhibit A
Section 102. Cha'morro Self-Detennination and U.S. Citizenship.
Subsection 102(a) - Chamorro Self-Determination.
Summary of Provision. Congress recognizes the inalienable right of self-determination by
indigenous Chamorros, who are defined as those bam on Guam before August 1, 1950, and their
descendants. The act of self-detennination shall be provided in Guam's Constitution.
Qrr~Position. The Special Representative haspreliminarily proposed to revise this
provision to state that "Congress hereby requests the Chamorros provide an expression of
their desire for the Commonwealth of Guam's future political status." This language
s \:I~*.~ to clarify that the "expres~ion of desire" to be taken by Ch~orros waul~ be non\
bmding and non-governmental m nature. Nevertheless,_ there remam conc·ems m the
Administration that the provision may be implemented in a manner that violates the
·protection of voting rights under the Fifteenth. Amendment and the doctrine of equal
protection pursuant to the Due Process Clause of the Fifth Amendment and the Equal
Protection Clause of the FoUiteenth Amendment Any expression of political desire by
the Chamorro people must be without any sponsorship by either the Federal government
or the. Commonwealth govem.rnent and not.under auspices of either government.
Section 102(b}. Voting to Ratify Commonwealth.
Summary of Provision. The subsection provides that "notwithstanding the provisions of'
section 102(a), no qualified voter will be deprived of the right to participate in a local referendum
to ratify the Commonwealth Act.
GmiSPt Position. There are cgneea;i.S because this subsection references section 102(a)
and implies an endorsement of the Chamorro-only vote. An antendment to section
102(a) Chamorro Self-Determination, as recommended above, would remove Federal
concerns regarding section 102(b).
Section 102(c) Federal Programs For Chamorros
Summary of Provision. Requires new Federally-funded programs and authorjzes the
· Coiillll.onwealtb. to promote programs targeted toward the enhancement of economic, social and
educational opportunities for Chamorros and to protect their language and cUlture.
C~ Position. The responsibility imposed upon the United States should not be
~
I
CLINTON LIBRf.\R\' PHOTOCOPY
�.J..•.J,, _...._
J,. .."lo. ..l.
~VV...J
Exhibit A
mandatory. Furthermore, under Adarand Construction v. Pen!!, 515 U.S. 200 (1995), any
benefit provided exclusively t<) the Chamorro people would likely be subject to strict
scrutiny under the Equal Protection Clause of the Fourteenth Amendment and the Do.e
Process Clause of the Fifth Amendment, and thus would need to be narrowly tailored to
serve a compelling government iilterest Finally, any new training programs should be
coordinated with existing workforce development programs.
Section 102(d) Continued Eligibility Under Existing Programs
Summruy of Provision. Provides that new programs under l02(c) will not affect eligibility of all
mjnorities under existing programs.
Section 102(e) No Impairment of U.S. Citizenship Rights
Summary of Provision. ·Confirms that the Act and the Constitution of Guam do not impair U.S.
citizenship or the rights of legally admitted permanent residents.
Current Position. Agreement wi-;ro}arn
unnecessary.
th~ subsection can be eliminated as
Section 102(f) Chamorro Land Trust
Summary of Proyisjon. Requires the Government of Guam to establish a Chamorro Land Trust
for the benefit of indigenous Cbamo:rros, comprised oflands returned to Guam by the U.S.
Authorizes return or lease oflands to original owners.
~Position. There are strong concerns that this subsection may be race-ba.Sed and
subject to constitutional infirmity based on the Metro Broadcasting decision of the
Supreme Court. Section 102(£) is also inconsistent with the Administration position on
Section 4, of S.210, the proposed
Excess Lands Act.
Guam
Section 102(g) Residency Requir~;:ments
Summary of Provision. Provides that the Commonwealth Constitution shall establish reasonable
residency requirements for voting and elective office.
4
CLINTON LIBRARY PHOTOCOPY
�---------
~uuu
·
~ 0 ~,~ w"
;Exbibi
\"C:-~~ . . ,-..;\S~~""''=-
.
.
«
,'
-
.
Qy.rrent Positi _ pport
amended to specify bona fide_ residency and not
.
permit dura:tion:f'requirements which could be longer than the Supreme Court has found
to be the rnaximum permitted by the. Constitution.·
Section l03. Mutnal Consent
Summary of Provision_ Provides that the United States will not modifY the Guatn
Commonwealth Act unless.it has the consent of the Goverrunent of the Commonwealth of Guam.
(There is also a "mutual consent" principle in Section 202).
Current Position. The first Special Representative attempted to s1rike a compromise by
proposing that Guan:J. and Congress agree to mutual consent "to the extent constitutionally
permissible." The Administration, however, has strong reservations regarding this
proposal because of the firm legal conviction that a mutual consent statute cannot
preclude the plenary constitutional authority of Congress to enact laws regarding a United
States te:i::ritory. Therefore, it is our considered view that the proposed mutual consent
language cannot preclude a future Congress from unilaterally rnodifying or repealing the
Guam Commonwealth Act. Hence, we are concerned that inclusion of the recommended
provision - even 'Mth the "to the e>.."ient constitutionally permissible" proviso -- risks
misleading the people of Guam and others regarding the legal force of the Federal
commitment not to modify the Guam Commonwealth Act without the consent of the
people of Guam. For this reason, if the proposal is to be used, it is essential that it be
made clear to all concerned that the provision is not enforceable. In any event,. the
Administration is supportive of a statement that the Federal government is committed, as
a matter of sound policy and principle, not to alter Guam's Commonwealth status 'Without
the consent ofthe people of Guam. Finally, any mutual consent policy should not go
beyond provisions that establish the basic political relationship between Guam and the
United States and should not reach ancillary matters (e.g. tax) that the Federal
government should be free to alter.
TITLE IT - AF'PLICABILITY OF FEDERAL LAW
Section 201. Applicability of the United States ConstitO.tion.
Summary of Provision. In addition to particular provisions of the U.S. Constitution that already
apply to Guam, Section 201 provides for the application to the Commonwealth of additional
Constitutional provisions: Article fV, section 2, clause 2; Article IV, section 4; the Tenth
Amendment; and the ftrst sentence of the Fourteenth Amendment.
5
CLINTON UBR.~R\' PHOTOCOPY
�J_U,·..;/,'~/
J.j.,;;,.l.
rA~
···--· ~--------· - - -
.
.
--------~----
~X #,~~r:>~<~-""
~uu
.
1
..
·QH~t-PosrtJon.,...-8'lll'port 1h amendmen to specifically set forth. all proviSions of the
Constitution that will apply in Guam after enactment of the Commonwealth Act,
·
including reference to the terr:itorial clause, but deletion of references to the Tenth
Amendment and to the first sentence of the i 4th Amendment. As a non-state area l.Ulder
the sovereignty of the United States, Guam, even as a Commonwealth, wouldremain
subject to the Territory Clause ofthe Constitution (Article IV, Section 3, Clause 2) and
thus subject to the plenary legislative power of Congress. Any attempt to extent the
Tenth Amendment to Guam would thus not be consistent with the Territory Clause.
Section 202. Effect of Federal Law (MutUal Consent)
Summary of Provision: The section provides that no Federal law, rule, or regulation will apply
~
o ~ ~ NJ'' ~ .-...
to Guam unless Guam consents.
')b~~, ... ,~¥ ~~ ~,
f"{_'\~~ Position.~ecornmen~eletion because ~n is inconsistent with United
s~ sovereign~ over Guam and also contrary to Congress's plenary flO~>,'Qr
territories ~der the Territorial Clause. There are also a number of administrative and
jurisdictional concerns regarding the possibility that two sets of potentially conflicting
federal standards would need to be enforced: one for Guam and one for the rest of the
United States if Guam objected to policies uniformly applied elsewhere.
I'""-\ I
Section 203. Joint Comnrlssion.
Summary of Provision. Four Guam and three federal officials would form a commission, funded
by the U.S., to conduct regular consultations and negotiations with U.S. on all matters affecting
the relationship between Guam and the U.S.; to recommend modification of federal laws; and
(via last sentence of Sec. 1002) to d~;;clare federal property excess.
Gttrf§tPosition: The Special Representative had proposed a Joint Commission under
Federal control comprised of 3 federal officials and 2 Guam officials which would have
three functions: (i) be a forum for regular consultations between the U.S. and Guam; (ii)
. -be an advisory body to recommend modifications in the application of selected federal
laws to Guam; and (iii) be a decision-making body in determirllng the application of
selected federal regulations to Guam.
~~.l. ~"1:l \ ·, \
While the Administration supports the concept of providing Guam ian officials with a
formal mechanism to advise and consider Federal laws and policie regarding Guam, the
structure and function of the Joint Commission raises constitutional concerns. Under the
Appointrrients Clause of the Constitution (Article II, Section 2, Clause 2) Federal statutes
may be enforced only by officers ofthe United States, i.e., persons who have been
6
CLINTON LIBRARY PHOTOCOPY
-1
\C -
�..1..'-'
·-.
,'
v.
Exhibit A
appointed by the President, with the advice and consent of the Senate, or in the case of
inferior officers, if authorized by Congress, the President alone, the courts of law, or the
heads of departments. Buckl.e)C v. Valeo, 424 U.S. 1, 119-141 (1976). In addition, the
Administration objects, as a matter of policy, to granting the Commission ultimate
decision-making authority to suspend or modify federal policies, whether by statute or
regulation, to GUam. Furthermore, a grant of authority to suspend any or all federal
regulations is not a technical or trivial matter. The proposal provides the Joint
Commission with review power over all manner of federal rules and regulations, even
where the subject matter of such regulations is not within the substantive expertise of the
members of the Joint Commission. This provision would effectively allow the Jojnt
Commission-- made up of only a handful of U.S. officials and Guamanian officials-- to
supplant the knowledge and expertise.ofentire agencies on particular issue~ The
Ad~istration believe~that various agencies with knowledge and expertise on
particular subject, after proper consultation and advisement by the Joint Commission,
should continue to be vested with ultimate authority to enact and apply Federal ·
·
regulations to Guam. The Administration does not object to a consultative forum .--»
between Guam and the Federal government and is Pfe:parea tc"Siipport the creation of an
a.:h'is'9 Commission in whi~;h Guam would have input and representation and which
could provide rec';l.l;nmendations to Federal agencies regarding the application of Federal
policies to Gu~m. such a Commis~ion were created with Guam members and U.S.
M:f
.
members, we re mmend that each government bear the expense of the Commission's
work through mutually agn~eable cost-share agreement.
~ C""t
a
.Jl.
s~~ '"- <->:...-..'">"'~ -~~~\,7~
. .
Section204.DelegationofAuthority.
.
'
~\ ~~- '·c..~~~ (_ ,,,
~·,o...lX-:'~~~~sl~bL
.;>~
VJJ~
'
\
t
~~,..u..,.t._
c..::!
Summary of Provision: Congress would authorize the President or his designee to delegate to \ ~r "'
Governor of Guam total or partial performance of functions now vested in administrative
~~~
agencies in the Federal Government.
,_ ~l. ':)
Cuu~nt Position:
tha~
~- ,r
~\ ~
We recommend that the proposed provision clarify
if the
J
Pr.es1dent elects to delegate authority to the Governor of Guam, fue Governor of Guam
0
would not thereby become a federal official. Rather, he would remain a Guamanian
~~ official and thus need not be appointed in conformity with the Appointments In ~ ~~
implementing such a designation. there are concerns regarding the application of Federal~
conflict of interest statutes to Guamanian officials.
, \, ~
n
(,~,
.
'
TITLE ill,- F'OREIGN AFFAIRS AND DEFENSE
Section 301. U;S. Authority for F'oreign Affairs and Defense.
7
CLINTON LIBR~RY PHOTOCOPY
~~~)
~-
�J..
u/,;..
I I
.:J I
·----------------
~
CLINTON UBRAR\' PHOTOCOPY
uuv
··,
Exhibit A
SYmmary of Provision. The U.S. would have responsibility andauthority for foreign affairs and
defense that affect the Commonwealth of~~S
~-\- . \. ~~
\S.
.
~ ( ' \~ ~ <""
Gmrijlt Posjtion. The word "c:omplete"
..;::A
~-J!--_,:__--:-----
mserted before "responsibility." The
Administration beliefe"s that defense and foreign affairs authority is constitutionally
lodged in the Federal government and that in the international arena a country must speak
with one voice.
e CNlv1I Comma ealth Covenants
that the U.S.
"co.rnplete
se functionS. Ifth ord is omitted ·
tra~m's
responsibility
authority" for
. provision,
'chis otherwise:
same as the C
s, the implicatio ould arise
ta
lessening o limitation of U _ ·. defense and forei affairs autb.oritx as intende
·s
should b avoided by th adition of the war complete" before responsibili "in the
first line of the revis proviston.
Section 302. Consultation with Gunm.
Smary ofProvisjon. Subsection (a): The U.S. will consult with Guam before signing treaties
or agreements which affect Guam; (b) no military security zones or foreign military personnel on
the island without Guam's approval Cexcept in case of war) and no new U.S. bases without
consultation with Guam; (c) no increases/decreases in DOD ac~pes without con:wta.~o_n ~tf l
Pt~~'('\'s~ ...... ~
Guam.
~~'-i~"-\-"~~
approJJriate Federal agencies, primarily State and Defense, usually
'als, consistent with national security interests,. efore taking
actions that could impact e island. But some consultations and c
y the approval
requirements which Guam s ks would seriously hamper the _ . ability to respond t
international crises. As drafte . subsection (a) is overly b d and not consistent · the
constitutional scheme for Feder esponsibility over eign affairs. In regard foreign
of
affairs consultations, several'conce
were raise · a) in view of the hundr
international agreements that the Exec tive B ch concludes each ye , a requirement
for "prior consultations" with Guam wo
ripple the ability of
.S. to negotiate ·
timely and effective international agre- e ; (b) since the
stitution gives the
President the sole authority to nego · te trean and so - ower to make Executive
Agreements, it follows that Con ess lacks the a ority to compel the Executive Branch
to consult with. Guam. Cons uently, in · of a' ·or consultation" requirement,
language is recomm.ende
at wo
provide sympa tic U.S. consideration of Guam's
views on international a
irectly affecting Guam
provide opportunities for
effective presentati
such views to an extent comparao to opportunities provided to
any other Co
· wealth, territory or possession. (Similar to ection 904(a) of the
CNMJ_.Q ven .) In regard to defense consultations, the U.S. annat agree to the
" ;et"Urity zo "and "foreign personnel" provisions requiring Gu 's approval, but is
+o~\~~r-
(
V..J
U;) ....
,~~~- ~J~~ ~'~
\~w-.....k,...,J. .~W> ._oL b) u:.~~"' ~\
~ s~~ .. ~ _J ~~~"' ~\,4..r'\ ~~~-'~
a<'-
c..~\-6.):,\\~r--.~
.
8. -~ ~ . ~'\ \b~~J ~": ~. )~~"_
~ ·---~ ~. :R-~~ c...._~~j .. W
I
~i"'~,,
f
1
~
ex
-t
1
.
�J,.U/,;;. I I
01 I
'i!:J
~.--.--------:---------
U..L.U
CL!f~TOf\1 LISRARY PHOTOCOPY
Exhibit A
Section 303. U.S. Consular and Trade Offices:
Summarv of Provision: 303(a)(l) The US. will help Guam set up offices in U.S. and abroad;
303(a)(2) U.S. will help Guam become a member of or participant in regional and other
mtemational organizations (including South ;pacific Forum and Asian Development Bank).
Guam shall be free to accept financial and technical assistance from these organizations, enter
agreements with members of these groups and other sovereign states, relating to trade and tax
questions; 303(b) U.S. will obtain frClm foreign countries favorable treatment for exports fro~~
G~.
.
\ k ~~<';,.~-\-<'~ ..... ~.>-\.~ s.'--f~~
'
C~ Position. Section 303 (a)(!):
~.tJ~..,~ ~~ ~"''
R,.'ll
~\-v~
nsular ffices r o t be nee d If the Fe raJ ~
Government can reach a compro · e agre ent on the ·
·gration p vision that eave~~
control and authority with the . .. The .S. was re
to assist
to set up ffices ~
abroad to promote to uris
conomic, d cultural · terests. Th e target areas hould be~
specified in provision.
e Admini ation posi · n recognize that Guam c enter o-s~,!:.~~
certain types of a ements of~ n-gove~ ntal or co
rcial chara.cte r which do ~ .
not entail the c tion of bind· g rights or obli'gations but erely set forth agreed ccl-'~
.
tmderstand' s or E!_ocedure~;.
f\.
\~
0 \ ,
1
~P.b\c',<::,~- ~~ l~~p~:~~t'~~~\<:._~- ,~ \'\- \~
4 ·
&
.
~,.L,~ ... J..
\i.~
~...-=.~,,~~
Section 303(a)(2. While the U.S. will contmue to assist "Guam injomin
·anal ~b.s~~
organizations for w · Guam is qualified, the U.S. cannot force
anizations whose rV\:J ~,
rules limit membership sovereign states to accept G
.
e rules of the South ~'"'f o;- '·~ ~
Pacific Forum and Asian :velopment Blink- of
ch Guam wishes to be a member~ 'S:.~-..
currently restrict membership nations
e responsible for their foreign affairs. The ~ ~ \.
U.S. supports Guam•s participatio · ppropriate international groups, and will consider~~
requests on a case-by-case b· · . e deral position recognizes that Guam can enter ·
~
certain types of intema · ali agreements a non.. govemmental, commercial. o~ cultur~
character. But a
of independent authority Guam to conclude tax and trade ~ N ,.;.... ~
treaties with s ereign states: is incompatible with e Constitutional authority of the.\-~~~\ l
federalg
rnroent, and could create confusion as to
U.S. guaranteeing that its ~,..
~
const1 nt parts comply with U.:SJ:aty obligr¢qns.
.
~
~v-\ii.\c...... ~tlJ..~
i."W~~ .L
Section 303(b): The tl;a ..;i.s..suppo · .fhelp~ Guam gain favorable treatment for its~
exports from foreign states under v ous trade preference programs on a case-by-case
w; . . . .w
()
.
�j_u,·.:.J_t:;, J
.i.J . .;...;
J. .."lro...:lr..
CUf~TON L!SRARY PHOTOCOPY
Exhibit A
basis.
Section 304. Nuclear, Chemical, and Other To:x:ic Wastes.
Summary of Provision. (a) U.S. shall not use Guam land or surrounding water for storage or
dumping of nuclear waste; (b) U.S. shall make safe for human habitation all DOD chemical
·waste durnp sites on Guam and shall not store hazardous chemicals on Guam or its
.surrounding waters; (c) U.S. shall compensate, as the District Court of Guam decides, anyone
injured by nuclear, chemical, or other hazardous material stored, used, or disposed of by U.S.
agencies on Guam or in its waters.
·
·
m
commencfdeletion of this section The objectives of this section are
ou
e app ·cation o e:x1s g .S. statutory and regulatory
as well as international agreements the U.S. has concluded. There are
requirem
objections to
anguage of the original provision because it is ambiguous,
contradictory, unsp 'fie, and generally does not conform to existing environmental
standards constrained in ws. such as CERCLA and RCRA. The term '"clean up," for
example, is undefined and s
d refer to the authority under which the cleanup will take
place. There are also particular ncems regarding the uncertain effect of this broad
the
language.on the management of ra ·oactive material on naval vessels and
temporary storage of routinely gene ted radioactive wastes at hospitals from medical
procedures using radi~hannaceutic s. ;,Finally, the Federal Tort Claims Act provides
adequate protection, \ ~)~- ·
.
.
(\
on
TITLE IV- COURTS
Note: The Administration is presenting a position on HR. 23 70, the "Guam Judicial
Empowet-ment Act of 1997." Among other things, HR. 2370 would amend the Organic Act of
Guam by establishing the local court system of Guam, including the local appellate court known
as the Supreme Court of Guam, as (1 co-equal branch of the Government of Guam and permitting
the election or appointment of the Attorney General of Guam. The Administration has no
objection to HR. 2370, if it is modijied as proposed by the Administration's testimony.
Section 401. Judicial Relationship of Guam to the U.S.
Summary of Provision. JudiCiaJ.relations between
Guam courts and U:S. courts with respect to
appeals, certiorari, removal of causes, the issuance of writs of habeas corpus, and other matters·
and proceedings shall be governed by U.S. laws establishing tl1e relationship between Federal
10
�.,LU/,;:. f : i::JI
.LO. ,;;,...J
J.·.""l.~
.
courts and State courts.
•
.
\·
-.~
.
(\\
~
~...,.~
~'A~,...,~~-
~ c;. ~ ("'... ") ~
~';>.J) ~
am~ed
w-\
l,~ ... ~- ~ h~\,..._~
0
...J'~
.
~ ~
ofthe.-1~
~j;, ~
.Curr)ibPositionKSuppo ·
as &commended in Attaclnnent 18
Task,..J:.e;ce Report The Adnti:nistration 1S o~en to reducing the prevtoriSly proposed . P ~ JL
Nin~t re 9"iew peried frtt~m 15 years td a shorter periOd.
_\ -.1.
..'~
I .
.
\'~~~~ ~
0\ (;.
4:>~ ~~
Section 402. Jurisdiction of the District Court.
·
.
~_;~ ~ ~ d \~ 1
·.
;;f~,,'~:"\h.
Smnmazy of Provi§i on. Guam's District Court shall. have the jurisdiction of a district couri
United States, including) but not limited to, the divdrsity jurisdiction provided for in section 133~~ __ L..
oftitle 28, United States Code, and that of~ banlcruptcy court of the United States.
. ~'~~~ .
...-~~--~,~\<~,..
II
~~~),.
.
Q~n:~osi o j..
, c~ended to delete subsecti~~ (a), whic~ ··~o~~ue_d'' th~
~~~ ~
DistriCt Court, and further modified to add •:rod any addittonal spec1al Junsdictton _gJ.ven ~ · )
it by Congress." The reason for
is that it might become necessary or ~~
desirable, to confer on the Guam District Co . jurisdiction over claims against the U.S. u.,..J~~~to!
that arise exclusively on Guam - e.g. claim§ erruning from federal land acquisition on ~ v-~
Guam after World War II.
I
.
\ ~ '-\
~'~
~~
s~c\.-.
\
Sedion 403. Applicable District Court Rules.
Suwmary of Provision. Federal rules of practi~;e and J?r~cedure are applicable to the Guam
District Court.
~
A~:.. I ' I s
:::n-r::_, ~.
~
'Cu~Posino . upport · · · 1s clarified , at there are provisions of the Federal Rules
where designati~ of the U.S. Attorney mat need to be retained, even if the action
concerns local Guam law-- e.g. Rule 4(1) regarding service on the U.S. Attorney in cases
where the United States is a defendant.
J__u
"\\_,.a,
, ()
f (') .
Section 404. District Court Judge, U.S. Attorney, Marshal.
appo~~
Summary of Provision. The President shall
a judge for District Court of Guam for a 10year term, as well as the U.S. Attorn.ey and U.S. Marshal.
.
Current PositiQJl. Support, with minor uplting of referenc7S,._'"'1>tov i<led Ul AttaC!iiiD'mt
18
.
:
.·
I
I
uf
CLII~TON LISRARYPHOTOCOPV
!
!
I
I
:
•
u
.
�.l.Ut•,;.. I r 0 I
J .. ' V , -
oJ
.L ."lr......lo.
-----
Exhibit A
TITLE V- TRADE
Section 501. Guam-United States Free Trade Area
Sum·mary of Provision. Guam remains outside U.S. customs territory and proposes the creation
of a free trade area with the United States in which all 11 products of Guam would enter the U.S.
customs territory duty and quota :free. The bill define "product of Guam" as articles containing at.
]east 30 percent value added in Guam. The U.S. would not impose any duties or quotas or other
rest;rictions on products of Guam or treat them as originating in any other country. The Governor
of Guam only would certify what constituted a product of Guam for purposes of export to U.S.
customs territory.
~Position: With the subsequent passage of North American Free Trade Agreement,
Gu
informally proposed amendments to Section 501 which sought to update the
provision and achieve the following objectives: (a) Guam wants to control
imports/exports :restrictions vis-:a-vis foreign countries; (b) Guam wants to be treated as
if it is a state and part of the U.S. customs territory through a reciprocal free trade
· arrangeroent; (c) Guam wanted trade laws that would encourage the development and
diversification of its economy, which would be also beneficial for the U.S. by reducing
the amount of federal subsidies Guam; and (d) Guam wanted certainty in the
application of trade laws, due to past experiences with sudden amendments to Headnote
· 3(a) that undermined Guatn's watch and sweater industrieMThe Administration supports
the continuance of Guam remaining outside the U.S. customs territo!)l iHld remr:Has. ~
to
~:::~:~~=d~r;~~d~e~~eJ'r~al~~e~:~¥\~ll- ~~\~
~~
~\ tl ....~ ,c1. ~ '~~ ';i l:> \,cL_ \' ~,-\-~
"0...
~ ~ ,
c.,.\\~S..~-- t ~~~
.l
t
\ ""' .CJU
\\
•
' ' ~\- , -...Di::l'ir(....
~
...,
\
'fiTLE VI- T
TION
w,..... '
,.......,-h
o.-....
? !c:
~""-'-~ .
s
(
r~~ +~ ~~- <-.Jo..~
•
ad
Section 601. Mirror Image Tax.
Suriunary of Provision. The bill would permit Guam to enact a local income tax to replace the
income tax provisions of the Internal Revenue Code (IRC) of 1986 which serves as a ''mirror
image" income tax on Guam.
l _
, · '\> .J....f) - P r
, ~s {A..,£ U:.l..
--
~~~~~ ~ "'~
()1" nr-&-
~~~'
~
G
P itio :Under the authority of the 1986 Ta."'': Reform Act, an implementation
agreemen was negotiated and signed in 1989, but its effective date was postponed. The
principal r~son for the postponement was to coordinate the agreement with the larger
Commonwealth Act legislation. Representatives of Guam have met with Treasury
Depar1ment representatives to develop acceptable tax delirikage provisions and a revised
12
CLINTON LIBRARY PHOTOCOPY
�_l.U/;;.//t1/
l.;>;;;.-.
r,~.l.
--------
implementation agree
At the present time, the result of those negotiations, a set
dr
· e provisions thai: would supersede all of Title VI, is under review at the
Treasury Department.
TTILEVll-ThDITGRATION
Section 701. Guam Immigration Authority .
...-:--\. : ~
Summary of Provision~tion states ~t the recent influx of substantial numbers of
immigrants from Asia ~d the Pacific has severely strained Guam's infrastructure. In order to
limit the number of immigrants to Guam, Congress grants the Commonwealth of Guam the
authority to control entry of all aliens into the island. Federal immigration law will apply for a 2year transition period after Commonwealth is enacted. Thereafter, locally-enacted immigration
laws will apply. Among other things, local authority over immigration shall not impair the free
movement of U.S. citizens between Guam and the U.S., shall not include naturalization of aliens
for U.S. citizenship, and shall not make Guam a port of entry into the U.S. for pennanent resident
aliens for purposes of calculating duration of physical presence in U.S. prior to naturalization.
.
~Position. Tile Ac:hninistration is sensitive to Guam's legitimate concerns
regarding the impact of nncontrolled immigration to Guam on the island's infrastructure
and the necessity to attract adequate numbers of workers to fill vacancies in Guam's
growing economy. In trying to balance Guam's desire for local immigration control with
Federal concerns regarding the possible duplication oflabor and immigration problems
occUrring in the CNMI, the Special Representative made a preliminary proposal as
follows:
The United States would transfer control to the local government after an
appropriate transition period during which adequate safeguards are developed and
instituted to protect immigrants and to enforce applicable labor and immigration
laws. Before any transition frpm federal to local control can be considered, the
U.S. Attomey General must review and approve: (a) a draft Guam immigration
code passed by the local legislature and approved by the Governor of Guam; (b) a
detailed program for ensuring effective enforcement of iinmigration and related
labor laws; and (c) a reasonable time frame for implementing such plan.
Furthermore, the Guam immigration plan would need to be consistent with all
existlng international obligations of the United States. There would also be
specific content requirements for the draft Guam iminigration code and a process
by which the Attorney General approves, ·disapproves, modifies or revokes local
immigration authority.
CL.II~TON
LIBRARY PHOTOCOPY
�4:!J
U..Lo.J
E~hibitA
Although it recognizes Guam's unique geographic, econo ·c, cultural and historical
situation, the Administration does not support either the o ·ginal provision or the Special
Representative's proposal for the following re~ons: (a)
the basic
infrastructure and intelligence information to ensure adequate enforcement of
immigration laws consistent with the interests of the United States; (b) granting Gu.am
control over immigration could have serious security implications, gi¥e:a Gl.latn' s
stJ:ategjc locatio.tl~Uld pr-ex:irniey to some ofthe poerest ami mo::ot heavily populatCd
countries in fue '*VeFld; (c) ceding control could create potential conflicts with the United
State's international obligations regarding, among other things, trea1ment of refugees,
·nonrefoulement, and migration of professionals under the General Agreement on Trade
and Services and the North American Free Trade Agreement; (d) Guam's stated intention
to use temporary unskilled workers to fill permanent jobs runs contrary to longstanding
U.S. immigration policies and national values regarding the use of permanent and
. .,~
enfranchised workers for permanent positions; and (e) granting Guam immigration/ '"'"' ~
control runs would set an umvise precedent for other U.S. territories md pgi:Sessiehs and
runs contrary to the current Administration policy of establishing a Federal immigration
framework for the CNMI.
,
\\
() c- ~
~..)..,...~
0 .
~~rc-J
~~~,1)'
f" )"..
---
Nevertheless, the
mistration is sensitive to Gu 's legitimate concerns regarding the
impact of uncontr lied immigration and the shorta e of labor on the island. The
Adrnrnristrationispr·~~~uli·~~~-~~~~~nr.~~~~~~~rnr~~
the conte}.."t ofthi existing Federil immigration fimm:wozk. Spec.i£caHy;=the
Administration is wmiog to discus£ with Guam aprepesal under which the United States
would limit the number of pe(sons who may be admitted initially as lawful permanent
residents on the basis of an approved family-sponsored immigrant visa preference
petition at any Port of Entry in Guam. Under this proposal, the INS, upon the request of
the Governor of Guam and aiter consUltation with the appropriate Federal agencies, could
adjust this number annually. With respect to the issue oflabor shortages, the
Administration is \<\filling to co ·
al under which the United States
Government would set as de a limited numb r of unused employment-based immigrant
visa numbers which caul be. used to fill pe anent positions in Guam requiring
unskilled workers. The dministration a eres to the position, however, that temporary
workers should not be owed to fill pas· ·ans that are permanent in nature.
Section 702. Guam-Only Visa.
Summary of Provision. Section would authorize U.S. consular officials to issue non-immigrant
visas for travel only to Guam to encourage foreign investment and tourism.
'
Current Position. The existing Guam Visa Waiver Program addresses the tourist
14
CLINTON LIBRI\R\' PHOTOCOPY
�'I
I
Exhibit A
promotion-aspect of this provision. It waives the visa requirement for visitors from
selected countries coming soleiy to Guam for a period not exceeding 15 days for business
or pleasure. Countries that have qualified for this program include: Australi~. Brunei,
Darussalm, Burma, Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New
Guine~ the Republic of Korea, Singapore, the Solomon Islands, the United Kingdom,
Vanuatu, Western Samoa and Taiwan. With respect to the foreign investment aspect of
Section 702, the Administration is willing to develop a provision that would allow
foreign investors to carne to Guam direct and develop businesses in vffiich they have
invested a substantial amount of capital.
TITLE VIll- LABOR
· Section 801. Federal Employment.
SJ,rmmary ofProvisioo. Provides a preference in Federal employment in Guam to residents of
Guam possessing requisite standards of age, health, character, education, knowledge and
experience.
, C"'-'~~(""oo.
~~~ ~'b·~
~ Posi · on.
o
1 modified as follows: (a) that the preference applies only
to new Federal ehlployees hired in Guam (not transfers of existing federal employees
from off-island); (b) that the term '1quali:fications" is substituted for "age" and other
standards because of Federal prohibition on age discrimination; (c) that Federal antidiscrimination laws in employment continue to apply in Guam; (d) that the preference
for veterans and spouses of military personnel continues to apply and takes priority over
the pr:eference to residents of Guam provided for in the section; and (e) a subsection is
added providing a remedy in Federal court for persons claiming to be aggrieved.
Section 802. Guam Labor Laws.
Sum.mary of Provision. Authorizes the Guam Commonwealth Govemment to enact and enforce
labor laws to replace existing Federal labor laws: All applicable Federal laws which regulate
·
employment on Guarn will remain in effect until replaced by local laws.
~ Position. The ori ·
language gives rise to great and unacceptable uncertainty
as to what constitutes" .S. la s applicable to em
ent
Guam 11 and to what e~"tent
such laws are repl ed or super ded by local -enacted Guam labor la . .n light of the
labor abuses oc rring in th<! C
, the T c Force was also c nc ed that Guam's
control of l
r laws was intend d to
vide for less stringent employment standards in
15
CLINTON L\BRf~R\' PHOTOCOF'Y
�..LU/ _.; ,
J
I
tl J
l.::J, .:,,;)
C .n,._a
.----------.,....--
Exhibit A
order to make Guam a more attractive/
"tive labor market for foreign investment.
The Task Force and Guam reache
prelimin
agreement on this issue (1993 Task
Force Report, Attachment26). As set forth-in ttachment 26, the prior agreement allows
the Government of Guam t assume responsib · ·ty for enacting and enforcing
employment laws in G
if they meet certai conditions. Guam must submit its
of Labor. Upon consul ·on with any
proposed legislation regulation to the Seer
other Federal age
that may be affected_ th Secretary of Labor rna
prov the
legislatioll or re ation provided that it incl des standards and e rcemen.t ech ·
as stringent the Federallaws and regulati
which it suppl s or provide
the
Secretary ds that the Guam legislation or g'ulation is re · ed by compelling
of Labo ust find that Guam has
conditio in Guam. In addition, the Secre
provid a an agency with sufficient funds, leg~ au ority and staff to enforce the local
law. he Secretary of Labor is given 180 days to approve or to disapprove a proposed
Guam statute or regulation. Upon approval, the corresponding Federal law or regulation
that would othel'\Vlse apply is superseded.
introduces
standards
not affect
CLINTON LIBRAR\' PHOTOCOPY
16
�).ui ~I 1
:1 I
J.iJ. ,;;.v
J. .·). ...._
4{d U.J.O
. ;l
Exhib~~~ ~
~w
~~~\
ne~Jjbele~ftcxna:ins willing to conside~e
application or enforcement of particular
Federal laws specifically iden1ified by Guam on a statute-by-statute bas~ 1 ~N~~ ·
.
~~~
~ ~o..--.""::ll-\7'
.
L
.
~~
'
TITLE IX- TRANSPORTATION AND TELECOMMUNICATIONS
.::p
~
.;J
Section 901. Maritime Shipping (Jones Act).
Summary of Provision. This section would allow (1) the use of certain foreign-built vessels in
Guam.'s waters and in the EEZ surrounding Guam; (2) a limited exemption for Guam from the
Jones Act for shipping fish; (3) a periodic review ofF:ederal coastwise laws in order to dc:.terroine
the desirability of continuing their application to
based solely on whether they are in
Guam's ecdnornic interests and a requirement that ilit? Federal government ensure adequate
service to Guam as long as these laws apply. ·
:
Gu.im
O~nt Position. The Administration ·s opposed to any relaxation of U.S. cabotage laws
in egard to Guam. Exempting Guam auld set a precedent which would encourage
coastal States to seek similar exemptio s, thereby undermining U.S. cabotage laws.
Furthermore, if Guam were exempt fr m the ~ones Act, it is unlikely that foreign flag
operators would provide more relia e or cheaper shipping services to the island.
Moreover, any attempt to exempt
from the Jones Act will endanger the reliable
shipping services to both. U.S. ilitary installations and the civilian populations located in
the strategic non-contiguous eas of the ~_.s.
-t--(4_ ~ ~':::..-\- ~~
~· \ \ ~
(-\-~~ i) ,-.. -t......_.,<:--- _,..~ ~*'c;. ~ r, ,,~ '~
~~ . . ~~- ~ ~
Section 902(a). Airlines.
J.
\
'.J--1'-.
~~N!{'
Sununary of Provision. Authorizes the Governor of Guam to sponsor any qualified air carrier to
serve Guam. Exempts Guam from all bilatetal'treaties between the U.S. and foreign couO.tries
with regard to scheduling, technical specifications of aircraft and charter passenger flights to or
. t\ ~
from Guam that originate in foreign countries. :
.
A~MC:,. \-C'~ r-. .~~~
~Position. upport a provision to increase Guam's role in the process of
dete~ng air sb'rvice that directly im~acts ~e i~sland Ot5ject to the originall.mguage-qf
Sectlon 902(a).
.
·.
1.__ d\ ~ ~ ~~
\
.
J,...,r- ~
r\),..,....
_\.._~I _._A\.-!.~ ~.--'
,
~'-A
- ~&
CLJI~TON LIBRARY PHOTOCOPY
~ 17
~-'
.
.
~
�.l U i ~ I I ll
I
.1. ;) • ,;
o r
11.A
I
;
; l
I
'
I'
Exihibit A!
I
Section 902(b). Essential Air Servkc.
Summary ofProyision. Continues Guam ~;m "eligibEleoint" for es5ential air service. .
_: \s.f~'~.
·
sitio ) Suppo~With reconlm.endati 'ns to conform the language to a recent
reco lfication ofll'tle 49, United State~ C~de: (~)the term "eligible point'' should
changed to read "eligible place''; and (b) the pUblic law citation should changed to 49
.
...<"\...t-~~~,._,,c;,¥-~ . . . '
,I
!
I
U.S.C.41731.
I
Section 902(c). Domestk Air Routes.
I
,
Suinmazy ofProvisiQJJ. Requires domestic air earner·. to obtain the concurrence of the Governor
of Gu:nn on applications for new, additional,; or ~han~ routes to Guam, in addition to .
complying with any other Federal r~quire~~~t.
~l ~
.
1
;:::-.. \)
~~'""'"~~-
~C:::!!U!i::If!::Se!!!n~t.~P~o~siu.ti!!:own.
,.!:'upport if amended to
~.
.
.
reqj prior notice, rather than concurrence,
Section 903. Teleconununica.tions.
·I
Summazy ofProvi~ion. Defines Guam as a ''doP1esti~'' point for purposes of setting
telecotnmunication rates by the Federal Comnn~nica,ons Commission. ·
Qm:ent-Position. Section 903 has been;supet~eded. Through administrative procedures
before the FCC, Guam has been incorpdrated!fto the North American. Numbering Plan
. effective July 1997 and into domestic dte integration effective Auan,st 1997.
.
I
I
.
.
]
c-
;I
. I .!
mLE X- LAND, NATURAL RElOURCES AND UTILITIES
1
Section 1001(a) Eminent Domain Power Byi Gua . .
·
SlliD.mary of Provision. Commonwealth GovetnmJt shall have powe:r of. eminent domain over
II
all property within Commonwealth consistent With <Jiuam. Constitution.
I
:
I
1
'1
118;
J
I
CLINTON LIBRARY PHOTOCOPY
:i
I
':
I
.
, i
I
:1
i
!
i
, I
'!
�10i27/97
15:26 FAX
141020
i
I
'!
'.
'
Exhibit~
Current Posjtion. Support if amended to Clarif)r that Guam's eminent domain power
should not extend to federallandholcti:b.g in Guam.
'
Section lOOl(b) Control over Exclusive Economic'Zone (EEZ).
I
Summary of Provision. Confers on Commonwealth Government jurisdiction over all resources
in the 200-roile EEZ, including rights to determine th~ condit~ons and terms of pollution control,
marine scientific research, management, exploration apd exploi~t~~ ~I?\)~ ~G) ru..J' ~ ~ '"""
.
.
:~~v.)lS
-
-'" ~ ~U-)..
~Position. Although the Administratio~\ag~ vith the ~iplil that Guam ~
.
benefit economically from the exploitation of the EEZ,
senous concernS
about giving Guam the ability to enact; administer and enforce its own laws within the
EEZ. There are nUmerous federal laws and regulations as well as international treaties
and agreements that apply on a uniform basis:i.o all domestic EEZ's. Section 1001(b)
would create insurmountable problems of coordination, enforcement and regulation by
.
I
federal agencies currently charged with management of the EEZ. There is also concem
that the confusion stemming from inconsistenCies between Guam laws .and
federal/international provisions would weake~ the present regulatory structure. Finally,
there is concern that the provision has no mechanism to ensure that Guam laws would be
as least as stringent as existing federal/international laws. Nevertheless, Guam and the
.
Federal gove:rnment have had a successful woba.ng partnership in the fisheries
management of fue EEZ in cooperation with .kd under the auspices and structure of the
Western Pacific Regional Fishery Manageme~t Council. Guam already has the authority
to develop its own EEZ management 'and con~ervation regime with respect to its vessels,
consistent with federal law. In .addition, the ~drninistration sought and, on October 11,
1996, obtained amend1Il.ents to the Magnuson-Stevens Fishery Conservation Act. This
'
. I
granted authorization to cover over revenues .collected for foreign fishing under Pacific
Insular Area fishery agreements. Federal jurisdiction is expressly asserted over the S _
.
'
EEZ surrounding Guam.
:
U:
'
!
Sections lOOl(c) and (d) Federal Eminent Dom~n Power
I
1uring
.Surnmazy of Provision. Section 1001 (c) states that
times of peace, the only way the
federal government can acquire land on Guam is by yoluntary means through negotiation with
landowners. Acquisjtions would occ.ur only, after authorized by Congress and if appropriated
funds (Ire available. Section 1001 (d) states tl1at durii!tg times of war, federal eminent domain
power can be exercised, but only in compliance with the applicable provisions of U.S. and Guam.
Constitutions and laws.
!
''
Q I<!! I ent Position. The Adm.inistrati~n suppers federal land acquisitions by voiuntary
i
19 :i
,'
I
CLINTON LIBRARY PHOTOCOPY
�means unless it becomes impracticable, i which case the U.S. would use its eminent .
domain powe(
whet;:.e~e~~tion of war.
Section lOOl(e), (f) and
1002~
Retur·n of Excess Fedel"al Land.
Summary of Provision. Section IOOl(e) exempts Guam from the application of any Federal
regulations pertaining to the transfer of excess lands and authorizes the transfer offuture excess
lands to Guam without conditions, limitations or reversion clauses. Section lOOI(f) lifts all
restrictions imposed on excess lands previously transferred to Guam. Section 1002 mandates
that all federal lands on Guam "not necessary for direct and continuous operational, logistical, or
security use" shall be transferred as excess real property to the Commonwealth Government.
Such lands would be transferred at no cost to :Guam, or at the fair mm:ket value of such lands
when originally acquired by the federal government. Final determination as to what federal.
lands are excess shall be made by the Joint Commission (a body consisting of federal and Guaro
representatives, the majority of whom represent Guam interests-- see Section 203).
w. The Administration is presenting a position on the disposition of federal
exc s lands in Guam in regard to section 4 ofS.210: The Administration is supportive
of giving the Government of Guam a "right of first refusal" to obtain Federal lands
declared excess in Guam, subject to certain conditions that are outlined in the
Administration's position on section 4 ofS.210. To the eh"tentthat the Administration's
proposal is adopted and enacted by Congress, it has been understood by the Federal
government and acknowledged by Guam that such excess land proposal would substitute
for any provision in the Guam Commonwealth Draft Act, H.R- 100, which covers the
same, similar or overlapping subject matter.
~m~..rP:Qo~si!,1t~·
Section 1003. Access to Federal Property.
Surnmazy of Provision. (a) Recreational, historical and archaeoiogical sites on federal property
shall be open to public use so long as military security is not compromised. (b)· Except as
prevented by military security requirements, easements for public access through federal
property shall be granted to Guam when such easements conStitute the only practicable means
access. (c)The Joint Commission shall determine which recreational facilities and what
easements over Federal property should be available to the public.
...4.....
·
. . _l.~~ wiQ; ~"\-- ~~~ I
~Position.<@i5p~esting exclusive authority in a Joint Commission controlled
by Guam representatives to make decisions regarding access to federal property because:
(a) there is no mechanism to prevent the Commission from ignoring a base commander's
stated needs for military security, safety and operational requirements; and (b)
detennination of public easements and access on federal property can only be exercised
20
CUNTO."l LIBR~RY PHOTOCOPY
�.r.>' I
Exhibit A
by U.S. officials appointed pursuant to the Appointments Clause of the Constitution.
Section 1003 generally presents an unworkable and undue interference on military
operations, base seCurity, and military obligations under historic and archaeological
preservation laws. Furthermore, subject matter of Section 1003(b) 1 granting the
Government of Guam public access through property military or Federal civil authority,
is the subject of current litigation between the United States and the Government of
Guam. The parties are attempting to reach a mutually satisfactory resolution to this
litigation.
Section 1004. Transfer of Federal Utilities to Guam.
I
SUIIliil.aiy ofProvision. Within 90 days of the passage of the Commonwealtb.Ac~ all right, title
and interest to federally-owned utilities would be transferred to the Commonwealth Go,.emment,
~·
N~,'- ~ ....._ " ~
exc:ept those part of the systems used solely for federal,.p\UJ'oses.
,.....-:"'-\. ~
• r) ...: (\ - ,... ~~
c;. D
I
·
'
1'\.1
~~~'~"1"'~
.
.
\
.
\~~-·
G~Posif .
·
oVJ. e that the transfer of federal water, power ~
and sewer utilitiefwould be made subject to the terms of separate agreements being
negotiated between the U.S. and Guam. Exceptions from transfer include portions of
utilities which are located within federal property and systems necessary for mission-:critical military purposes. Onc:e the utilities are transferred, the utility rate·s charged by
Guam to the U.S. must be cost-based and applied on a non-discriminatory basis.
TITLE XI-- UNITED STATES FINANCIAL ASSISTANCE
Section 1101. Transfer of Taxes and Fees.
Sununazy ofProvision. There will be paid into the Treasury of Guam various Federal revenues
derived from Gu.am., including Federal income taxes derived from Guam, the proceeds of taxes
collected on Guam products shipped to the United States or the U.S. insular areas, the proceeds
of any other taxes levied by Congress on the inhabitants of Guam, and quarantine passport,
inmiigration and naturalization fe~s collected on Gl\i3l;ll.
~ -\-. ~ _ 0
""\~~~""'~ ~~._.hJ...
·
~
&NJ..c,.~
' .
'~
~Position. Suppor}11 ameri&d to provide that all taxes and fees transferred to
Gumn shall be "txpended for the benefit and government of Guam" and to provide for an
advance payment based on an estimate provided by Guam, which would then be followed
by an adjustment, upward or downward as appropriate, the following year, if the actual
revenues did not match the estimate.
21 .
CLII\lTON LIBRARY PHOTOCOPY
I
�.l ll'/ "L. 7 Ill
I
l. :l ; "L.l
!<'A.A.
CLINTON LIBR.'".RY PHOTOCOPY
•\
~~~.~~
\~.~
Section 1105. Transition Assistance.
'
r .. .J,~ ...:..~
~') .,..,
Sum mazy of Provision. Tbis would provide three rms of "transition assistance" from the U.
to the Commonwealth of Guam: (a) Federal financing ofthe costs of.''institutional change"
�lU'/~7/'IJ/
lti:;O .FAA'
·---------~--------------
CLINTON LIBR.ARY PHOTOCOPY
a
1
ExhiJA
:1
'I
connected with Gualn'S assumption o~Cornm.onw~alth sta.tusi (b) Federal appropriations "to
iJitplement a long-term capital improvement progr¥u"; and (c) Federally funded revolving fund
to establish an Economic Development Fund to ..a.Ssist the financmg the private· sector needs of
Guam ... and to develop the eccinom1c resources ~eeded to meet the responsibilities of local
~
self-government."
.
\
~
\h.::_c;.~-r-..f~~.......:;l.~
Current Position.· The
:1
\\ \"
.I
';;'L
• t\
I
I .
~
A..~n recobmend'Si:teletion eftbis sedj~
!!
.
\!
:1
,:
•
l
-
TITLE XII ..- TECHNICAL AMENDMENTS AND INTERPRETATIONS
~ . l "2()~ (.o-. ")
~r'\:) y, ..:~ .-..
~.
\L.C)::,C\,)
.
-cs~ c;...s \2..9'--.}
il
~-. 1'-~~(.t..) \ k IA-l~"'~kJ...v-.
·~
�Withdrawal/Redaction· Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. letter
To Carl T.C. Gutierrez from David W. Ogden. Subject: Position of the
Office of the Legal Counsel ofthe Justice Department (2 pages)
10/24/1997
P5
002. letter
To Franklin D. Raines from Andrew Fois. Subject: Views of the
Department ofJustice regarding H.R. 100 (13 pages)
10/24/1997
P5
003. letter
To Guam Delegation from Bill Clinton. Subject: Campaign (2 pages)
07/15/1992
Personal Misfile
004. memo
To Mickey Ibarra through Fred DuVall from Jeffrey Farrow. Subject:
Guam Commonwealth bill plan (4 pages)
06/19/1997
P5
005a. letter
To Carl T.C. Gutierrez from David W. Ogden. Subject: Position of the
Office of the Legal Counsel of the Justice Department (2 pages)
10/24/1997
P5
005b. letter
To Franklin D. Raines from Andrew Fois. Subject: Views of the
Department of Justice regarding H.R. 100 (13 pages)
10/27/1997
P5
006a. letter
To President Clinton from Phil Caplan. Subject: Administration stance
toward Guam (Annotations) (1 page)
10/27/1997
P5
006b. memo
To President Clinton from Mickey Ibarra and Fred DuVal. Subject:
Response to Guam's 1987 Federal policy package (Annotations) (4
pages)
10/27/1997
P5
007. report
Draft Guam Commonwealth Bill. Comments on selected (7 pages)
n.d.
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
OA/Box Number: 24087
CLII~TON
LIBRARY PHOTOCOPY
FOLDER TITLE:
Guam- Various II [2]
Jamie Metrailer
2006-0193-F
'ml08
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)l
Freedom of Information Act- [5 U.S.C. SS2(b)l
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAl
PJ Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRAl
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIAl
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�10/24/97
FRI 16:12 FAX
---·---·---
-
~002
®ffict of fqt J\ttarneg <iRntral
~as~ingtnn. JB.<U. 20'530'
CLINTON LIBRARYPHOT090PY
DRAFT
October 24, 1997
The Honorable Carl T.C. Gutierrez
Governor of Guam
Agana, GU 96910
Dear Governor Gutierrez:
.
5~
?
.
MaryEva Candon has
ovided me ~ith a copy of your letter,
dated October 23, to D uty Secretary Garamendi regarding my
meeting yesterday wi
your representatives, Ms. Candon, Leland ·
Bettis, and Joh
I
Ms. Candon also asked me to advise you if
your letter inac
ately represents our discussion in any way.
This letter res~onds to that invitation.
While correct in many respects, your letter doe~ not
completely or accurately reflect the positions of the Justice
Department as Randy Moss of the Office of Legal Counsel and I
attempted to communicate them yesterday. ln order to avoid any
further confusion regarding the Department's position on these
important issues, I have received permissionto provide you with
the enclosure -- a copy of the Department's comment letter to
Office of Management and Budget Director Frank Raines on certain
preliminary recommendations from the Special Representative for
the Guam Common.wealth Negotiations.
The enclosed letter reflects the views of the Justice
Department and is consistent with the views that Mr. Moss and I
. explained to your representatives yesterday. I hope that the
enclosure is helpful to you, and that it ~ill make clear the
areas in which the characterizations in your letter do not
correspond to the Department's views.
the
Justice.
ping the
each of the
a
Finally, with respect to the immigration issue, the
enclosure does not identify -- nor did we discuss in our meeting
yesterday -- the specific ways in which the Department of Justice
may be prepared to address Guam's concerns about immigration on
the island within the framework of the Immigration and
Nationality Act. We look forward to discussing these ideas with
you. It is important that you should understand, however, that
�141003
The Honorable Carl T.C~ Gutierrez
Page 2
although the Department is prepared to discuss ways to address
potential labor shortages on the island, among other issues, the
Department adheres to the position that temporary workers should
not be allowed·to fill positions that are permanent in nature.
I appreciated the opportunity to meet with your
representatives yesterday. I also look forward to continued
dialogue about outstanding issues.
Sincerely,
David w. Ogden
Counselor to the Attorney General
Enclosure
cc:
MaryEva Candon
CUNTON LIBR,\R\'. p·Ho-oCOPY
. .
I
�.::·
CLINTON LIBRARY PHOTOCOPY
..
�--------
1,.
-------------------------------------------------
"
June 19, 1997
Memorandum To: Mickey Ibarra
Through:
Fred DuVal
From:
Jeffrey Farrow
Subject:
CLINTON LIBRA~' PHOTOCOPY
Guam Commonwealth Bill Plan
This is to prepare you for a decision on how to proceed on the Guam Commonwealth Bill, .Which
will probably, ultimately, need to be made by Erskine. There is a lot of background-- including
statements by the President~- that needs to be considered. We have also. outlined some options.
Background
Guam, the southernmost island of the Marianas chain of the Micronesian islands, became U.S.
territpry through the Spanish-Affierican War. In the mid-'70s, the U.S. entered into a 'Covenant'
with the chain's northern islands that also made them U.S. territory. The Covenant provided the
new Commonwealth of the Northern Mariana Islands with several of Guam's unmet Federal
policy objectives: exemption from having to use American vessels for U.S. shipping; SSI; and a
commitment not to unilaterally change key provisions of the arrangement for the islands' status.·
Consequently, Guamanians decided that they, too, wanted 'Commonwealth' in 1982. In spite of
Federal cautions, the then governor drafted a Federal bill that covered almost all conceivable
policies from Guam's perspective and went far beyond the Covenant. He then obtained voter
approval of the draft in referenda in 1987 in spite of congressional concerns that doing so would
make it difficult for Guam to accept necessary changes to the bill.
Federal officials objected to almost every section in a 1989 House Subcommittee hearing. The
underlying problem was that the bill combined autonomy that would be appropriate for an area
that would be separate from but in 'free association' with the U.S. (as the three other areas of
Micronesia were becoming) with many Federal benefits commensurate with U.S. state or territory
status. The Subcommittee then asked the Bush Administration to try work out a compromise bill
with Guam's leaders and consult Congress as it did so.
An Interior-led interagency group worked out a compromise in 1992, but some of its provisions
were unilaterally changed in the Bush Administration's final review of the compromise. Among
the reasons were the precedents that would be set for Puerto Rico Commonwealth proposals.
The President, as a candidate in 1992, pledged to work for a mutually-acceptable law.
Interior began new talks with Guam during the President's first term, although without consulting
Congress. In 1994, it agreed to language that suggested that the Federal Government would not
be able to unilaterally change any provision of the law once it was enacted -- language that went
�CLINTON LIBRARY PHOTOCOPY
beyond the Marianas Covenant Mutual Consent commitment. By last August, Interior Dep. Sec.
Garamendi had negotiated the rest of a substitute bill that contained much of what Guam wanted
... in many areas without agreement ofthe agencies with jurisdiction over the policies concerned.
Governor Gutierrez and Delegate Underwood tried to get this substitute endorsed in the
Democratic Platform but Harold, IGA, and NSC staff had the Platform, instead, simply commit to
work for an agreement. Garamendi then brought Gutierrez and Underwood in to see Leon and
ask for presidential support. Because supporting the substitute required policy changes on issues
such as Mutual Consent and the application ofFederallaws and regulations that have also been
sought by Puerto Rico's Commonwealthers and would be of concern to Puerto Rico
statehooders, Leon decided that the matter should be deferred until after the Election.
In November, Garamendi suggested an urgent need to proceed to ensure access to vital U.S.
military bases. Harold then asked the NSCfor an assessment.
·
While the NSC was reviewing the matter, Gutierrez met with the President and, afterwards,
publicly suggested progress. (The President merely pledged that the substitute would be seriously
and expeditiously con~idered.) Reports that the substitute was being approved, however, caused
House Committee Chairman Don Young to write the President 1) expressing concern about two
provisions that Guam says are essential -- Mutual Consent and limiting an insular vote on the
status question to descendants of residents as of 1898 -- and 2) complaining about the lack of
consultation. Ranking Democrat George Miller also privately expressed concern about Mutual
Consent and proposals on labor, immigration, and environmental laws.
The NSC then reported: 1) concern about the substitute on the part of all ofthe agencies
contacted; 2) agency feelings that they were being end-run or ignored in developing the substitute
and consternation that they did not know its specific contents; 3) the NSC's own concern about
many elements of the substitute; 4) its lesser concern about base access; and 5) a need for a White
House-led rewrite effort involving the agencies concerned and congressional consultation.
Noting the issues of concern listed irphe first attachment to this memo, Marcia recommended
such an effort. Sylvia said that Erskine approved of it and the President wrote Young that: 1) he
agreed with some ofYoung's views; 2) Federal policy concerns had to be satisfied; 3) there
would be expeditious action; and 4) Congress and the agencies would be consulted.
As the effort got underway, however, The Washington Post reported that the Administration had
changed longstanding positions on key issues such as immigration and labor control after
Gutierrez raised $1 million for the DNC and Clinton-Gore. It quoted unnamed agency officials as
suggesting that the funds influenced the policy changes and Gutierrez as. saying that they got him
access. The article, which spawned stories in other national media, linked the proposals to the
Northern Marianas' problematic immigration and minimum wage exemptions.
In denying the allegations, we told the Post et. al. that we had already begun a rewrite effort.
2
�CLINTON UBR~RY PHOTOCOPY
The effort was delayed, however, by 1) Garamendi objections to the agenda and 2) the departure
of John Emerson. It was put it on hold pending Fred's arrival, as I explained to Underwood when
he raised it in a meeting with the President and, separately, to Sylvia. The President made it clear
to me prior to the meeting that he wanted to respond to Guam's petition.
The delay led Guam's leaders to try to force us to respond by getting Young to hold a hearing this
Summer (even though he told them that 1) he would not pass the bill and 2) they should become a
Commonwealth the way that Puerto Rico had-:-- by writing an insular constitution). Young
additionally, however, began an investigation of the campaign contributions allegations. Hi.s staff
says that Government Operations Committee Chairman Burton will do the same.
OMB and agencies, concerned about a hearing on the bill, are now pressing for the rewrite effort
to proceed. Garamendi, however, wants to wait until after the hearing, expecting expressions by
Guamanians and Members of Congress to encourage greater acceptance of the substitute.
Options
a
!._Proceed Immediately with White House-led Effort to Rewrite the Substitute.
This is what we have publicly committed to do. It would, however, necessitate 1) a great deal of
effort and 2) policy decisions that would require Garamendi or agencies to compromise on issues.
2._Postpone Until After the Hearing and, maybe, Contributions Influence Investigations.
Garamendi believes that this approach would help create the right climate for compromise by the
.agencies. It would, however, 1) seem to substantiate speculation that the Administration had
intended to go along with the substitute and just stopped when attention was focused on the
contributions; 2) contradict what has been said publicly; and 3) only postpone the real problem.
3 ._Give Garamendi Parameters for Negotiation with the Agencies on the Substitute.
This would have the advantages of 1) not requiring as much involvement here after some basic
policy decisions are made and 2) suggesting policies that would be more likely to be approved but ·
it would probably still require us to mediate disputes and answer questions on details.
'
4._Ask for Agency and Congressional Comments on the Substitute.
These are the first steps in the first option but the expectation here is that they will expose the
·extent of the problems with the substitute-- and the clear need for revision before White House
action -- to Guam without us being directly involved. This could create a situation in which
Gaiamandi could justify compromise to Guam as well as produce a more reasonable substitute.
It should be recognized that Guam's leaders may initially be unhappy with any ofthe options.
J
�(
GUAM COMMONWEALTH BILL- SELECTED CONTROVERSIAL PROVISIONS
•
Agreement that no provision of the law may be changed without Guam's approval.
•
Invitation for individuals descended from residents as of the date of acquisition only to
vote on the island's future status, excluding other citizens.
·
•
Commission empowered to 1) modify the application of any agency's regulations to Guam·
and 2) make recommendations on modifying laws which Congress would have to vote on
composed of Interior as chair, Defense, Justice, the Governor, and the Delegate.
•
Authorization for the waiver any law.or regulation to benefit Guam-U.S. trade by Interior
or Commerce.
•
Authorization for Guam to enter into agreements with international organizations.
•
·Guam control of immigration.
•
Making Guam a priority for hazardous waste site clean-ups.
•
Authority for Guam to adopt "reasonable" voting requirements.
•
Authorization for delegating Federal agency functions to Guam.
•
Guam taxation ofU.S. income of residents (in lieu of federal taxation) and authority to
rebate collections.
•
Relinquishing the Federal power to govern in territories.
•
Authorization for Guam to receive aid from foreign governments.
•
Joint recommendations on the application of the requirement to use U.S. flag vessels using.
the sole criteria of the island's economic interest.
•
SSI and any other Federal programs not now extended.
•
Authorization for ariy funds needed for infrastructure, etc.
•
Guam replacement ofFederallabor laws.
CLINTON LIBRARY PHOTOCOPY
�10/27/97
MON 10:21 FAX
®ffin~ of f4e J\ttnrmlZ <iene:nd ·
~a~qingtan 1 ~-a.L 21J53(J
October 24, 1997
The Honorable Carl T.C. Gutierrez
Governor of Guam
Agana, GU 96910
Dear Governor Gutierrez:
MaryEva Candon has provided me with a copy of your letter,
dated October 23, to Deputy Secretary Garamendi regarding my
meeting yesterday with your .representatives, Ms. Candon, Leland
Bettis, and John Whitt.
Ms. Candon also asked me to advise you
if your letter inaccurately represents our discussion in any way.
This letter responds to that invitation.
While correct in many respects, you~ letter does not
completely or accurately reflect the positions of the Justice
Department as Randy Moss of the Office of Legal Counsel and I
attempted to communicate them yesterday.
In order to avoid any
further confusion regarding the Department's position on these
important issues, I have received permission to provide you with
the enclosure -- a copy of the Department's comment letter to
Office of Management and Budget Director Frank Raines on certain
preliminary recommendations from the Special Representative for
the Guam Commonwealth Negotiations.
,
The enclosed letter reflects the views of the Justice
Department and is consistent with the views that Mr .. Moss and !
explained to your representatives yeste.rday.
I hope that the
enclosure is helpful to you, and that it will make clear the
areas in which the characterizations in your letter do not
correspond to the Department's views.
Finally, with respect to the immigration issue, the
enclosure does not identify -- nor did we discuss in our meeting
yesterday -- the specific ways in which the Department of Justice
may be prepared to address Guam's concerns about immigration on
the island within the framework of the !mmigration and
Nationality Act. We look forward to discussing these ideas with
you.
It. is important that you should understand, however, chat
although the Department is prepared to discuss ways to address
potenti.al labor shortages on the island, among other issues, the
Department adheres to the position that temporary workers should
not be allowed to fill positions that are permanent in nature.
CLINTON LIBR.'\RY PHOTOCOPY
�'i:!:J vuu
lUI<!'IIIU -M.UN .LU:;:;: t'l\A
The Honorable Carl T.C. Gutierrez
Page 2
_ I appreciated the opportunity to meet with your
representatives yesterday.
I also look forward to continued
dialogue about outstanding issues.
Sincerely,
David W. Ogden
Counselor to the Attorney General
Enclosure
cc:
M~ryEva
Candon
CLINTON LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clintop Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
Personal Misfile
001. list
Personal (1 page)
002. notes
re: Guam (Personal file) (3 pages)
003. memo
To President Clinton. Subject: Puerto Rico (1 page)
12/27/1997
P5
004. memo
Phone No. (Partial) (1 page)
12/31/1996
P6/b(6)
n.d.
· n.d.
PS
COLLECTION:
·Clinton Presidential Records
Intergovernmental Affairs
_ Jeffrey Farrow
OA/Box Number: 24088
CLINTON UBR/.\RY PHOTOCOPY
FOLDER TITLE:
Guam- Various IV
Jamie Metrailer
2006-0193-F
'm109
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]·
Freedom of Information Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(J) Release would violate a Federal statute [(b)(J) of the FOIA] ·
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly un'\Yarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�CLINTON LIBR.'\RY PHOTOCOPY
~¢~ ___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~--·
~-!111!_-- - - - - - - - - - - -
-----'-'_11~~~4.;1~~
I~
{k
---!·
---~.1.1!
7 ,7...~.,/ dve_ ___:_·_ _ _ _ _ __
~~~~/- A/o...-?~ ~~w.J/'-" ~/~,__,.- 1-------~
------liH .
~u.-..L ~ ,. cfv • ..,
~~, ~ ~" ~ o;..., 1- o-v~"""- ..v;v/~
--~HI
____.lll____ ~""''J,~,..;...
c~_z;
- _fl_
~~ ~,rll_.,l
-
~~~
. .,. .,. ;)
~I'Aft- ~--t.._ ~ t::fi,- .Li_ ~t- ~7-----~g)~f- ~"'r'~ a-- ... ,u;,_$~·1_. _ _ _ _ __
111
--llii___------,--------~_ _ _ _ IT!
k{ ....._.
Lf!!/h~
M
~/-'
,.........
f'..-
~
f'-"";;l-----
------c----~---w o:;v t 6V~ - .A/,JI ~~"',.A" ,,~-/fl::__$_(J~_·-"'_<. _ _ __
_
_ _ ll!-1
-------~~~~~~
s;Vf.v,~ ~~·;:_'I
.
---l~~-[-!-11,___,_iPor.:..__r.J.:..__9- fp;~~ ~ ~
4"'t
vw-1
Cll~ ~~"""
_ _ _riL-1_
~1/wAA/1._...._
~
- - - l
Ill .t:J.,.~,<:-<- .n. ~ ,7!.-"-
---.,--m .
m
I'l
--~Ill
HI
---
~7-------
h
___L_~_(A,_'M---=-l"-=--<h~·~- _ _ _ _ _ _ _ _ _ __
.. -~--
_ _m
m
---
AAA A.-
a;
w-
,
"''
~ ~:___:_/-=-=~:..:.__:_·fr~.t::.__'_ _ _ __
~ s ~ ~ ~ ~ ~ ~~~:.:_·___:::~_:___-h-r__:) _ _ _ __
_
~-=
~ ~~-· /~~-' ~~/'~~~
/-
>
/-<-•/-•'-
tl'h1'..t.41~A..._AL ~-~-·-...
~~;{~~, r- 4;,/~~~~
I
- __l l_ ___:z.~~-----~~---m
---~~~
_ _ _ ll.:-1_
____Ill
Ill
#~ ~M4;c. 'Vftd,~fi-6{ . ~.,t_,~ C-CI~ ~ rW
~ /{.;/J'Uk1A~7...._....., ;'~f.,-. M
~av.,:--1- ·
(Pz
J~~~~_:__r-=-;&.~Qr__;_·_ _ _ _ _ __
,...
j,_"-" ''z__
~J ~ 5
~-rr-
';;:
a"';
----m!ill~- - - - - - - - - - __~------------------__
___Hli--l!!l.
�'-'
CLINTON LIBR/~RY PHOTOCOPY
'
Ill
I
t~
ft,.,, ,s. ,.71
rJ .
~ .....~~.
1-
c/4 ".s<-
~#,s~
'I'
Ill
Ill
II
II
.I
·"
~~~/-- ~~.. ~,.~
-
~ c::JV~-
tJ~.~q.
1-
#
/1v . h• ~ ~ 1-~ fi.-._
.n~,
. Ci~~l·
'
'
o~ ~~~.:
c:f"'v~ . . . ,
V-'i,:,,
~__L
""-:r-"" Vt' ;_ ,r.. ~ ,-. ~ 'J 'j
~
lJ
a 14.-4 ,.~ "N" ~-/-- /z_. ~ ~"' ~
4
Ill
Ill
~ ~
hT ~J
r{ .~~ A-;.. . tb
7
WQVk ~ t1V~~ .
~
I
~.$,/
~~cAfi>-
{_!
'I
( tAJnt'
~ ~7-
o ce~
I.I.I
A.4eA r- . ~H
~.
_/?o7VJ~..
l
@·~u.t ~~
~ ,f /(Mcai!C
$.
-~
.I
Ill
_ _ _,·j·
{!2
*¥
,.< ·
1-<4<-'
-
?4'-'k~"~ ~
~/)/]
·n
1~4,
w~~
'
W>n ,4'-' r.
j
~~
-
~~~/f_v~~ ·
'fo
b-J.,~ 4-""'9~~ t;_~~----.
~.n/q ~~
J
~¢"
II
-~
,.yr-
~£~-h.,.
IJ
I.
~P~ ,S ~r/
t../uvt,l
'vi
s:"s:?·
r< /~
~;?-A~ /M ~ J't_f~)·
~.,.,. J-'T t:f'/_/H ,.r~
t..A/-..;L,
-"'~«--~~~' 41/~,r<--
£7"'
~.#4(1-
-
~. ~y
d''-" -.y-
>~
tfvl- ,#'# ~~ o;-e
-
~ ,<~~&._
~1/7- w-41 ~II'/ ht~/
,{; 1/t:--f- av...r
/ss V'-C-1
1-
a.J
11~,--'1-
t:L
P-~~ trv~
•
·1----~--~-H1-~-~ ~.~v- ~-JM.~_tc._-- - ' - -
---1.1J_________________
�II
CLINTON LIBR~RY PHOTOCOPY
I
I_ _ _ _ _ _ _ _ _ __:____
_ _,II.
IJI
- - - ! 1 ; - 1--------~-
- - - - ; 11...__ _
~_#_;1£~(..~e.i.-i,1.A:;-:
~;.._~ ~~~~
----Hil
_ £/.,-<,
.~--~ . - ~?,/r~J~.~ _,
_ _lJI_ _ _ _ _ _ _ _
~_:___jp~,..;
- ~t.;
A/.fe,/,-vec /P~c
---///
.
t.t/ ---7
Ill
Ill
ll!
il v- R:Jt)h~~
III__
,<
~d~
AII-V·z
A-ft'
I""W$4 Q """~"
~
L
II
Ill
~llI
~
7h_ a-?-1 , ~-' ~s
rn
c:::~~~ ·
~~'/-:;
il
kv< ., e~ ~~~~--~~~~----------~
-~Lt?-~
-·
-
'
--·---
··-
ii
~1-~'~t~ -~~
fl1
}')t~~~. ([6'\.~
!I!
Ill
_
/~~
(
~c~Y 1--v_J_·________________
t6u(ut4,~ .M-., .Fv"..,..··r .:T~ ~'1,£ _a 1 -(. ·u)
CI'Vt"'~~
(;,
OA.o-•
Ill
~·te .fF?-s:
~II
{!) ~~~w~O~IIM"',(
!l_l_~-~ V~'t.vi'Ah d'r'rt-·
HI
~ t_~;,( ..-(. Nd N2
!ll
Ill
m
r-
,'
/
~
I
"'•'
m
m
m
m
m
i
.
I
:I
--
(
•
__________________
dr~_r
H!
m
:•t•
.
.
~11/:'
vt-, . . /"""'
~t?-r /~·/
I
�~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~---~~
-
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE'"
DATE
SUBJECTffiTLE
RESTRICTION
OOla. inemo
To Andrew Fois from Randolph D. Moss. Subject: Department of
Interior report on S.210 (2 pages)
08/12/1997
P5
OOlb. note
re: ENRD comments to Interior letter to Don Young on S. 210 (2
pages) .
08/14/1997
·P5
002. memo
To Sylvia Mathews through Mickey Ibarra from Fred DuVal. Subject:
Guam (3 pages)
07/22/1997
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
CLINTON LIBR~RY PHOTOCOPY
OA/Box Number: 24088
FOLDER TITLE:
Guam- Various V
Jamie Metrailer
2006-0193-F
'm593
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4). Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
·
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
220i(3).
RR. Document will be reviewed upon request.
.
.
·:.)<lf':·w
�CLINTON LIBRI),RY PHOTOCOPY
July 22, 1997
MEMORANDUM TO SYLVIA MATHEWS
THROUGH: Mickey Ibarra
FROM:
Fred DuVal
SUBJECT:
Guam
This memo seeks to enlist your help in clarifying White House strategy regarding Guam. Our
objective is to honor the President's commitment to Governor Carl Gutierrez (D-Guam) that the
White House will seriously consider 1) Guam commonwealth legislation and 2) the
recommendations made by Special Representative to Guam and Deputy Interior Secretary John
Garamendi regarding this legislation. (See Attachment A).
Last January, Erskine Bowles approved an IGA-lead staff effort to work out differences of
opinion among the agencies on the Guam commonwealth legislation. (See Attachment B). Over
the past six months, this effort has stalled and the issue is whether to now reinvigorate it at the
White House.
L
. Background
In 1987, Guamanians passed a Commonwealth ballot proposition which significantly redefined
Guam's relationship to the United States. The proposition called for the U.S. government to
transfer jurisdiction and change U.S. policy in ways considered untenable and unimplementable.
The passage of this proposition was in inany ways unprecedented for a territory, [clarify what or
how it was illegal· or remove end of sentence] and illegal in others.
Since 1989, every Administration has attempted to respond to this unimplementable proposition
by negotiating alternative commonwealth proposals that would adequately satisfy both the
Guamanians and the federal agencies with responsibilities and roles in Guam. These efforts have,
thus far, been unsuccessful.
The most vigorous effort was led by our third Special Representative to Guam, John Garamendi.
His work has resulted in a draft commonwealth proposal which the Guamanians support but
which many of our agencies oppose. The most contentious issues [? of Garamendi' s proposal, ·
the commonwealth ballot proposition, or both] are the following: (1) Mutual consent-- no
�CLINTON LIBR~RY PHOTOCOPY
provision of law may be changed without Guam's approval, (2) Immigration -- ceding INS
responsibilities to Guam, (3) Right to vote limitations --limiting the right to vote on status [? on
status] to native-born Chamorrans, (4)U.S.-Guam Commission-:-- creating a joint U.S.-Guam
Commission empowered to (a) modify the application of any agency's regulations on Guam and
(b) make recommendations on modifying laws on which Congress would have to vote [?.clarify
what this means]. About a dozen l.ess controversial issues also remain unresolved. (See
·
Attachment C).
II.
Current Situation
•
•
House Resources Committee Chairman Don Young (R-Alaska) has indicated a
commitment to hold house hearings on Guam in August (after he concludes Puerto
Rico hearings in July), which may include testimony on both Guam
commonwealth issues and alleged campaign fundraising improprieties.
•
Federal agencies with a stake in Guam are anxious about upcoming, Young~led
hearings without a unified Administration position on the key issues.
•
The Garamendi-led effort has stalled due to agency opposition and his own view
that further work on Guam should be postponed until after the Young hearings.
•
Our work on Guam was the subject of some unfavorable media att~ntion. (See
Attachment E).·
•
lli.
The Government of Guam has become very upset about the delay in
Administration action, and Deputy Secretary Garamendi recently wrote Defense
Secretary Cohen and others about the threat of demonstrations on the island. (See
Attachment D). In addition, Guam is beginning to threaten withdrawal of
cooperation on national security issues unless the U.S. government makes
considerable progress on its self-determination status.
Counsel's Office (Bill Marshall) is involved and comfortable with moving forward
on the Guam issue.
Options For Consideration
1. Take no position on GuantCommonwealth.
2. Wait for Congressional Hearing to concludebefore directing White House staff to
coordinate an Administration position on Commonwealth.
3. Immediately circulate the Garamendi draft Commonwealth proposal thrm~gh the
OJ\..ffi referral process and collect written reaction and input from the affected agencies to
clarify areas of agreement and disagreement, and to give Garamendi some .direction on
the areas in dispute.
�_
4. Begin an immediate sequence of· White House-hosted meetings to address disputed
issues as qui~kly as possible and attempt to harmonize the Administration's position.
before August hearings.
IV.
Recommendation
IGA recommends we choose option three (O:MB referral) to flesh out the issues in a nonconfrontational and low-key way, demonstrating f01ward movement to Congress and
Guam but not prematurely raising Guamanians' expectations for'an immediate resolution.
CLINTON LIBR~RY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!fiTLE
DATE
001. briefmg paper
re: Deliverable issues for Guam (5 pages)
n.d.
002. schedule
Phone No.'s (Partial); Manifest (Partial). (8 pages)
11/18/1998
RESTRICTION
P5
. P6/b(6), b(7)(E)
COLLECTION:
Clinton Presidential Records
liltergovernmental Affairs
Jeffrey Farrow
OA/Box Number:
CLII~TON LIBR'\RY PHOTOCOPY
24088
FOLDER TITLE:
Guam- Various VI [1]
Jamie Metrailer
2006-0193-F
'milO
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- (5 U.S.C. 552(b)]
Pl
P2
PJ
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
· b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(J) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy[(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C;
2201(3).
RR. Document will be reviewed upon request.
�Guam Deliverables
Micronesian Compact Impact Aid
Background:
The U.S. 'free association' compacts with Micronesia, the Marshall Islands, and Palau have
. enabled thousands of citizens of those states to move to Guam, Hawaii, and the Northern Mariana
Islands. The Compact law authorizes reimbursement of the costs to their social programs.
$4.6 million is being provided by Interior annually to Guam through FY01. Almost no funds are
provided to Hawaii and the Northern Marianas. Gov. Gutierrez says that $10 million is the
minimum amount Guam needs. Gov. Cayetano says Hawaii should be reimbursed. The Northern
Marianas is not being provided funding in light of a special $11 million a year subsidy.
Proposal:
Announce a FYOO budget proposal to increase the reimbursement to Guam to $10 million
annually.
The additional $5.4 million would come from the $11 million a year general subsidy to the
Northern Marianas, which is resisting the Administration's efforts to apply Federal immigration
and minimum wage laws. If the Marianas continues to resist, the other $5.6 million could be
allocated to Hawaii. ·
Liberalize Trade Restrictions
Background:
Guam and the other smaller territorial jurisdictions are outside the customs territory of the U.S.
but can import products into the US. market free of duties and quotas if the products meet
specific tests-- 'substantial transformation' of foreign components into a new product and 'value
added' locally to the components. Guamhas soughtthe elimination of most of these restrictions.
Proposal:
Legislation to eliminate the value added requirements for products other than garments (in light of
the abusive Northern Marianas garment industry).
CLINTON LIBRARY PHOTOCOPY
�I
Excess Military Property Conveyances
Background:
The military owns 44,800 acres in Guam. Most of the hind does not appear to be used and is held
for contingency purposes. Up to 25% is excess to military needs. Guamanians feel land was
unfairly acquired in the wake of the liberation of the island from enemy hands in World War Two.
They also contend the military holdings limit the island's development. Some former owners feel
they have missed out on fortunes others made by selling their land to Japanese investors.
A 1994 law providing for the transfer of3,213 acres has not been fully implemented. Transfers
have been complicated by Guamanian demands for the land to be given to former owners.
Base closings have made other land and facilities available.
Proposal:
· The President would announce (in summary fashion) the following -•
The intent to transfer the 3,213 acres provided for by the 1994law in 1999.
o
The availability of 561 acres of Air Force land on which 360 housing units are located.
•
The availability of 1,805 other AF acres.
•
An effort to expedite the transfer of2,031 acres at the former Naval Air Station adjacent
to the commercial airport, including a 92 acre officer's family housing parcel. EDA
consideration of$1 million for infrastructure and marketing ofthis property.
o
·
An effort to expedite the transfer of the former Navy Ship Repair Facility. Consideration
ofMarAd low-cost financing ofthe yard as a commercial operation. Military Sealift
Command commitment for contracting the yard(?). Navy donation of a larger drydock.
•
The availability of another 2, 779 acres of Navy land.
•
The actual transfer of 44 acres of former Navy land worth $4.5 million for a waste
treatment plant.
o
o
Plans to ask Congress to complete action on umbrella Guam excess land transfers·
legislation. (Passed the Senate this year.)
A White House-led task force to ensure follow-up on the above.
2
CLINTON LIBRARY PHOTOCOPY
�CLII'lTON LIBRARY PHOTOCOPY
U.S./Guam Relations
Backgr~mnd:
Guam has been disappointed with the Federal response to its "Commonwealth" proposals. for
national powers while under the U.S. flag and greater economic benefits. While it continues to
pursue them, it has undertaken a second status initiative. This calls for a referendum next year on
the internationally-recognized non-colonial statuses: free association; independence; and
statehood. A problem with the new initiative is that the referendum would be limited to the
plurality of the population who are descended from long-term residents. Many Guamanians do not
seem to want a change in status as much as greater Federal attention and changed policies on
economic matters.
Proposal:
The President would reiterate that the Administration has addressed Guam's Commonwealth
proposals and Congress should now act. He would also recognize non-voting Guam's inherent
right to full self-government if Guamanians want it. He would announce his intent to have the
Executive Branch place a greater focus on the island's situation, needs, ·and proposals under the
current status through a senior level interagency group co-chaired by the White House and
Interior.
DOD Ombudsman
Background:
Guam has a number ofmilitaryissues and tensions between the community and field officers have
increased.
Proposal:
_DOD has agreed with our request to designate a member ofthe Secretary's staff to monitor and
address issues raised by Guam.
Micronesia/Marshall Islands Aid Package
Background:
The Presidents of Micronesia and the Marshall Islands will be present on Guam. Our $2.5 billion,
15 year assistance commitment to these freely associated states expires in 2001. The compact
with them requires negotiations on the· expiring provisions beginning in 1999.
3
�. CLII~TON UBR.:'\RY PHOT.OCOPV
Proposal:
The President would announce the intent to begin talks with the areas on a post 2001 assistance
package.
Palau Road
Background:
The U.S. committed in the free association compact with Palau to build a road through much of
its largest-- but largely undeveloped-- island. The President ofPalau will also be present in
Guam.
Proposal:
The President would announce a $150 million plan for the road.
4
�----
------------------------------------------------
THE FOLLOWING MORE MINOR INITIATIVES COULD ALSO BE ANNOUNCED.
Economic Development PlanBackground:
The Asian economic downturn has depressed Guam's major industry: tourism. Military activity
has also been a major component of Guam's economy. The military has downsized operations.
Proposal:
The Interior Department will fund a major study of Guam's economic options. This would be part
of a $1 million increase in funds for technical assistance to the small territories.
Coral Reeflnitiative
Background:
The President announced a major initiative to protect coral reefs this year.
Proposal:
The President would announce that the FYOO budget will propose $.5 million for reef protection
near Guam and other territorial jurisdictions and the governors of the areas will be members of the initiative task force.
Water/Sewage Grant
Background:
EPA has been providing Guam $2 million a year to construct water and sewage facilities.
Proposal:
The President would announce an increase in the grant to $3 million this year.
CLif~TON UBR.~R\' PHOTOCOPY
-s
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. email
Phone No. (Partial) (1 page)
11/09/1998
P6/b(6)
002. memo
Phone No. (Partial) (1 page)
11112/1998
P6/b(6)
003. draft
re: Guam deliverables (4 pages)
n.d.
P5
004. memo·
Phone No. (Partial) (1 page)
1.1/1211998
P6/b(6)
005. schedule
Phone No.'s (Partial); Manifest (Partial) (11 pages)
11/14/1998
P6/b(6), b(7)(E)
006. memo
To Erskine Bowles and Sylvia Mathews through Mickey Ibarra from
Fred DuVal and Jeffrey Farrow. Subject: Guam Commonwealth bill
plan (1 page)
06/24/1997
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
CLINTON LIBR!l.RY PHOTOCOPY
OA/Box Number: 24088
FOLDER TITLE:
Guam- Various VI [2]
Jamie Metrailer
2006-0193-F
'mlll
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
~
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ofthe PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or· geophysical information
. concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
. of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�CLINTON UBRI\R.Y PHOTOCOPY
DRAFT.
Guam Deliyerables
Micronesian Compact Impact Aid
Background:
The U.S. 'free asS.o.ciation' compacts with Micronesia, the Marshall Islands, and Palau have
enabled thousands of citizens of those states to move to Guam, Hawaii, and the Northern Mariana
Islands. The Compact law authorizes reimbursement of the costs to their social programs.
$4.6 million is being provided by Interior annually to Guam through FYOl. Almost no funds are
provided to Hawaii and the Northern Marianas. Gov. Gutierrez says that $10 million is the
minimum amount Guam needs. Gov. Cayetano says Hawaii should be reimbursed. The Northern
Marianas is not being provided funding in light of the other assistance that it gets.
Proposal:
Announce a FYOO budget proposal to increase the reimbursement to Guam to $10 million
annually.
There are two options for funding ~his. One would take the $5.4 'ffiillion from the $11 million a
year general subsidy to the Northern Marianas, which is resisting the Administration's efforts to
apply Federal immigration and minimum wage laws. Under this option, the other $5.6 million
could be allocated to Hawaii. The second option would require OMB to find the funding
elsewhere.
·
Liberalize Trade Restrictions
Background:
Guam and the other smaller territorial jurisdictions are outside the customs territory of the U.S.
but can import products into the U.S. market free of duties and quotas if the products meet
specific tests-- 'substantial transformation' of foreign components into a new product and 'value
added' locally to the components. Guam has sought the elimination of most of these restrictions.
Proposal:
We have cleared-- but not yet announced --legislation to eliminate the value added requirements.
It would not apply to garments in light of the abusive Northern Marianas garment industry.
Excess Military Property Con·veyances
Background:
.
The military owns 44,800 acres in Guam. Most of the land does not appear to be used and is held
for contingency purposes~ Up to 25% is excess to military needs. Guamanians feel land was
�CLINTON LIBR'\RY PHOTOCOPY
unfairly acquired in the wake of the liberation of the island from enemy hands in World War Two .
.They also contend the-military holdings limit the island's development. Some forme_r owners feel
· they have missed out on fortunes others made by selling their land to Japanese investors ..
A 1994law providing for the transfer of3,21J acres has not been fully implemented. Transfers
have been complicated by Guamanian demands for the land to be given to former owners.
Base closings have made other land and facilities available.
Proposal:
The President would announce the following -•
The intent to transfer the 3,213 acres provided for by the 1994 law in 1999.
•
The availability of 561 acres of Air Force land on which 360 housing units are located.
•
The availability of 1,805 other AF acres.
•
An effort to expedite the transfer of2,031 acres at the former Naval Air Station adjacent
to the commercial airport, including a 92 acre officer's_family housing parcel. EDA
consideration of $1 million for infrastructure and marb~ilng of this property.
•
. An effort to expedite the iransfer of the former Navy Ship Repair Facility. Consideration
ofMarAd low-cost financing of the yard as a commercial operation. Military Sealift
Command commitment fqr contracting the yard(?). Navy donation of a larger di"ydock.
•
The availability of another 2, 779 acres of Navy land.
•
The actual transfer of 44 acres of former Navy land worth $4.5 million for a waste
treatment plant.
•
Plans to ask Congress to complete action on umbrella Guam excess land transfers
legislation. (Passed the Semate this year.)
•
A White House-led task force to ensure follow-up on the above.
. .
I
DOD Ombudsman
Background:
Guam has a number of military issues and tensions between the community and field officers have
increased.
�CLINTON LIBRARY PHOTOCOPY
Proposal:
DOD has agreed with our request to designate a member of the Secretary's staff to monitor and
address issues raised by Guam.
U.S./Guam Relations
Background:
Guam has been disappointed with the Federal response to its "Commonwealth" proposals for
national powers while under the U.S. flag and greater economic benefits. While it continues to
pursue them, it has undertaken a second status initiative. This calls for a referendum next year on
the internationally-recognized non-colonial statuses: free association; independence; and
statehood. A problem with the new initiative is that the referendum would be limited to the
plurality of the population who are descended from long-term residents. Many Guamanians do not
seem to want a change in status as much as greater Federal attention and changed policies on
economic matters.
Proposal:
The President would reiterate that the Administration has addressed Guam's Commonwealth
proposals and Congress should now act. He would also recognize non-voting Guam's inherent
right to full self-government if Guamarlians want it. He would· announce his intent to have-the
Executive Branch place a greater focus on the island's situation, needs, and proposals under the
current status through a senior level interagency group co-chaired by the White House and
Interior.
Coral Reef In itiatiye
Background:
The Pre.sident announced a major initiative to protect coral reefs this year.
('
Proposal:
The President would announce that the FYOO budget will propose $2 Million for reef protection
near Guam and other territorial jurisdictions and the governors of the areas will be members of
the initiative task force.
Micronesia/Marshall Islands Aid Package
Background:
The Presidents ofMicronesia and the _Marshall Islands will be present on Guam. Our $2.5 billion,
15 year assistance commitment to these freely associated states expires in 2001. The compact
with them requires negotiations on the expiring provisions beginning in 1999.
3
�Proposal:
The President would announce the intent to begin talks with the areas on a post 2001 assistance
package.
Palau Road
Background:
The U.S. committed in the free association compact With Palau to build a road through much of
its largest-- but largely undeveloped-- island, The President of Palau will also be present in
Guam.
Proposal:
The President would announce a $150 million plan for the road.
THE FOLLOWING MORE MINOR INITIATIVES COULD ALSO BE ANNOUNCED.
Water/Sewage Grant
Background:
EPA has been providing Guam $2 million a year to construct water and sewage facilities.
Proposal:
The President would announce an increase in the grant to $3 million this year.
Economic Development Plan
Background:
The Asian economic downturn has depressed Guam's major industry: tourism. Military activity
has also been a major component of Guam's economy. The military has downsized operations.
Proposal: The Interior Department will fund a major study of Guam's economic options. This
would be part of a $1 million increase in funds for technical assistance to the small territories.
CL.IN~ON UBR~RY PHOTOCOPY
4
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE •
RESTRICTION
001. briefmg paper
re: Deliverable issues for Guam (2 pages)
n.d.
P5
002. briefmg paper
re: Deliverable issues for Guam (2 pages)
n.d.
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
CLINTON LIBRARY PHOTOCOPY
· OA/Box Number: 24088
FOLDER TITLE:·
Presidential Visit to Guam ~ November 1998 [ 1]
Jamie Metrailer
2006-0193-F'
·m594
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- (5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of ·the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA] '
PS Release. would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Fedenil statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document" will be reviewed upon request.
�- - - - - - - - - - - - - - - - - - - - - - - - -
--
CLINTON LIBRARY PHOTOCOPY
Deliverable Issues for Guam
Micronesian Compact Impacts- The U.S, Free Association Compacts with Micronesia, the
Marshall Islands, and Palau have enabled 10,000 citizens of those states to move to Guam. The
Compact law authorizes reimbursement of costs to Guam and other U.S. islands. $4.6 Million is
being provided annually through FYO 1. If we support it, Interior will increase this to 10 Million(the minimum the governor says is needed) by subtracting from the allotment to the CNMI
discretionary.
End Interior Auditing of Guam- The Interior IG audits both local spending by the smaller
territorial areas as well as the use of federal funds. There is no similar auditing in our largest
territofial area, Puerto Rico. The other territories consider this auditing colonial. We would
propose a bill to end the auditing as Guam and other islands were certified to have independent
local auditing agencies.
\
Gua'manian U.S. Attorney- The nomination of a U.S. Attorney for Guam- as requested by the
Gove~or and the Delegate to Congress - is not ready for announcement.
.·
._1,
\
Liberalize Trade Restrictions- Guam and the other small territorial areas are outside the Customs
territory of the U.S. market if they meet specific tests. Guam has sought the elimination of most
free trade restrictions. We have cleared but not yet announced proposed legislation to eliminate
· redundant value added requirements. It would not apply to garments in light of the abusive ·Northern Marianas garment industry.
Excess Military Property Conveyances- 30% of Guam is federally-owned, most of this is under
military control. Much of the military holdings are seldom or not used. (It is being held for
contingencies.) Guamanians feel the extent and location of this land limits their economic
development. Additionally, some ofthe land was unfairly acquired. Former owners feel they
have missed out on fortunes others made by selling to Japanese investors. The President may be
able to announce plan to convey:
- 2, 136 acres Air Force acres;
- 360 Air Force housing units on another 519 acres; and
- some Navy property
We may also want to announce plans to:
- ask Congress to enact umbrella lcmd transfers legislation without all the usual
restrictions on such transfers. (The bill passed the Senate this Congress. Guam's desire to
have land go free to former owners who were already compensated for it may be the
sticking point that discourages such an announcement.) We may also want to announce
the designation of a senior DOD official to expedite Guam and transfers.
There are also some excess military facilities that may be the basis of some announcements. .
-The Navy will expedite the transfer of 1,900 acres of land and facilities at the former
NavaJ Air Station Agana (the name of the capital) which is adjacent to the commercial
airport. EDA will seriously consider a $1 Million plus grant for infrastructure
improvements on the site to enhance its commercial viability.
-The Air Force will tum over its water systems to the insular system.
�Ship Repair Facility Assistance- The Navy closed it ship repair facility on Guam and the territory
is trying to keep it in open as a private commercial operation. Maritime Administration's
(MarAd) decision to repair a ship which is based in Guam in Japan November 2 was a blow
requiring 100 plus layoffs at the already scaled-down facility. A plan to enhance the viability of
the yard may include:
-A Navy commitment to continue to sole-source 25,000 man days of work a year at the
yard.
- A MarAd yard modernization low-cost loans.
- Repairs to a small vessel to prevent some of the immediate layoffs
-The transfer ofNavy facilities including a dry dock 2.5 times the size of the existing
one at the yard.
DOD Ombudsman-Guam has a number of military issues and tensions between the community
field officers have increased. DOD has agreed with out request to designate a senior DOD
appointee in Washington to monitor and address major complaints ofthe Governor or Delegate.
\
.
.
and
'
Eco~bmic Development Plan- The Asian economic downturn has depressed Guam's major
industry: tourism. The Interior Department will fund a major economics study in Guam.
Coral Reef Initiative- The President will propose $2 Million for Guam and other territorial areas
in his Coral Reeflnitiative and include the governor's of the areas on the initiative task force.
·Relations/Status- The President would reiterate that the Administration has addressed Guam's
'Commonwealth' proposals for autonomy and economic benefits and it is now up to Congress to
act. He would also recognize Guam's inherent right to full self-government and his intent to tiy
to have the Executive Branch place a greater focus on the island's situation, needs, and proposals
under the current status through a senior level interagency group co-chaired by the White House
and Interior.
Micronesia/Marshall Islands Aid Package- The Presidents of Micronesia and the Marshall
Islands will be present. Our $2.5 Billion, 15 year assistance commitment to these freely
associated states expires in 200 1. The President should be able to announce the intent to begin
talks with the areas on a post 2001 assistance package. (State has the lead because these are
diplomatic relations. Interior has a big stake because it currently coordinates the assistance.
DOD has an interest because military rights is one of our major objectives.)
Palau Road- The U.S. committed in the free association compact with Palau to build a road
through much of its largest but largely undeveloped island. The President of Palau will be in
Guain. The President should be able to announce a $150 Million plan for this road.
CLINTON LIBR~RY PHOTOCOPY
�- - - - - - -
Deliverable Issues for Guam
Micronesian Compact Impacts- The U.S. Ftee Association Compacts with Micronesia, the
Marshall Islands, and Palau have enabled 10,000 citizens of those states to move to Guam. The
Compact law authorizes reimbursement of costs to Guam and other U.S. islands. $4.6 Million is
being provided annually through FYO 1. If we support it, Interior will increase this to 10 Million(the minimum the governor says is needed) by subtracting from the allotment to the CNMI
discretionary.
End Interior Auditing of Guam- The Interior IG audits both local spending by the smaller
territorial areas as well as the use of federal funds. There is no similar auditing in our largest
territorial area, Puerto Rico. The other territories consider this auditing colonial. We would
propose a bill to end the auditing as Guam and other islands were certified to have independent
lotal auditing agencies.
·
\
Guamanian U.S. Attorney- The nomination of a U.S. Attorney for Guam- as requested by the
.,
Governor and the Delegat~ to Congress - is not ready for announcement.
Liberalize Trade Restrictions- Guam and the other small territorial areas are outside the Customs
territory of the U.S. market if they meet specific tests. Guam has sought the ·elimination of most
free trade. restrictions. We have cleared but not yet announced proposed legislation to eliminate
redundant value added requirements. It would not apply to garments in light of the abusive
Northern Marianas garment industry.
Excess Military Property Conveyances- 30% of Guam is federally-owned, most of this is under
military control. Much of the military holdings are seldom or not used. (It is being held for
contingencies.) Guamanians feel the extent and location of this land limits their economic
development. Additionally, some of the land was unfairly acquired. Former owners feel they
ha:'e missed out on fortunes others made by selling to Japanese investors.· The President may be
able to announce plan to convey:
- 2, 136 acres Air Force acres;
- 360 Air Force housing units on another 519 acres; and
-some Navy property
We may also want to announce plans to:
- ask Congress to enact umbrella.land transfers legislation without all the usual
restrictions on such transfers. (The bill passed the Senate this Congress. Guam's desire to
have land go free to former owners who were already compensated for it may be the
·sticking pointthat discourages such an announcement.) We may also want to announce
the designation of a seriior DOD official to expedite Guam and transfers.
There are also some excess military facilities that may be the basis of some announcements.
-The Navy will expedite the transfer of 1,900 acres of land and facilities at the former.
Naval Air Station Agana (the name of the capital) which is adjacent to the commercial
airport. EDA will seriously consider a $1 Million plus grant for infrastructure
improvements on the site to enhance its commercial viability.
-The Air Force will tum over its water systems to the insular system.
CLII~TON LIBRARY PHOTOCOPY
�Ship Repair Facility Assistance- The Navy closed it ship repair facility on Guam and the territory
is trying to keep it in open as a private commercial operation. Maritime Administration's
(MarAd) decision to repair a ship which is based in Guam in Japan November 2 was a blow
requiring 100 plus layoffs at the already scaled-down facility. A plan to enhance the viability of
the yard may include:
·
-A Navy commitment to continue to sole-source 25,000 man days of work a year at the
yard.·
- A MarAd yaid modernization low-cost loans.
.
~ Repairs to a small vessel to prevent some of the immediate layoffs
-The transfer ofNavy facilities including a dry dock 2.5 times the size of the existing
one at the yard.
·
DOD Ombudsman-Guam has a number of military issues and tensions between the community
and field officers have increased. DOD has agreed with out request to designate a senior DOD
app~intee in Washington to monitor and address major complaints of the Governor or Delegate.
'
Eco~bmic Development Plan- The Asian economic downturn has depressed Guam's major
industry: tourism. The Interior Department will fund a major economics study in Guam.
Coral Reef Initiative- The President will propose $2 Million for Guam and other territorial areas
in his Coral Reeflnitiative and include the governor's of the areas on the initiative task force.
Relations/Status., The President would reiterate that the Administration has addressed Guam's
'Commonwealth' proposals for autonomy and economic benefits and it is now up to Congress to
act. He would also recognize Guam's inherent right to full self-goven:unent and his intent to try
to have the Executive Branch place a greater focus on the island's situation, needs, and proposals
under the current status through a senior level interagency group co-chaired by the White House
·
and Interior.
.i
Micronesia/Marshall Islands Aid Package- The Presidents of Micronesia and the Marshall ·
Islands will be present. Our $2.5 Billion, 15 year assistance commitment to these freely
associated states expires in 2001. The President should be able to announce the intent to begin
·talks with the areas on a post 2001 assistance package. (State has the lead because these are
diplomatic relations. Interior has a big stake beca]Jse it currently coordinates the assistance.
DOD has an interest because military rights is one of our major objectives.)
Palau Road- The U.S. committed in the free association compact with Palau to build a road
through much of its largest but largely undeveloped island. The President of Palau will be in
Guam. The President should be able to announce a $150 Million plan for this road.
CLINTON UBR.AR\' PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
To Sylvia Mathews, Gene Sperling, and Frank Raines through Mickey
Ibarra from Fred DuVal and Jeffrey Farrow. Subject: President's
Puerto Rico investment proposal (2 pages)
12/17/1997
P5
002. memo
Phone No. (Partial) (1 page)
1111111998
P6/b(6)
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Jeffrey Farrow
CLINTON LIBRARY PHOTOCOPY
OA!Box Number: 24088
FOLDER TITLE:
Presidential Visit to Guam- November 1998 [3]
Jamie Metrailer
2006-0 193-F
'mll3
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pl
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA]
b(3) Release would violate a Federal statute [(b)(3) of the FOlA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOlA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOlA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOlA)
National Security Classified Information [(a)(l) of the PRA)
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice betWeen the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
'
'
' ...,..J
�THE WHITE HOUSE
WASHINGTON
December 17, 1997
MEMORANDUM FOR SYLVIA MATHEWS
GENE SPERLING
FRANK RAINES
CLINTON LIBR'\RY PHOTOCOPY
THROUGH: Mickey Ibarra~~~
FROM:
Fred DuValand Jeffrey Farrow~
· Co-Chairs, Interagency Group on Puerto Rico
SUBJECT:
The President's Puerto Rico Investment Proposal
CC:
John Hilley
Maria Echaveste
Janet Murguia
Joe Minarik
The President has committed to advocating for the repeal of the termination ofiRC Sec. 30A -the tax credit based on wages and other corporate spending in Puerto Rico. We urge that this
commitment be reaffirmed in the FY 1999 budget. The cost was estimated in the FY '98 budget
at $417 million over five years.
Failure to do all that the Administration can to win the repeal in Congress would have major
ramifications for Puerto Rico and cause a significant backlash among Puerto Ricans in the States
as well as in the islands. It would also probably result in criticism from the Congressional
Hisp~c Caucus, Sen. Moynihan, and Rep. Rangel.
Background
Tax benefits for investment by companies from the States in Puerto Rico date to 1921 and are a
key factor in its economy, relating to approximately 30% of the jobs. The islands have a 13%
jobless rate even with them and with a workforce participation rate 50% lower than the States.
The incentives are also a primary argument in the islands for their Cominonwealth arrangement.
The President was elected with Puerto Ricans understanding that he would.support what was
then effectively an exemption for all income from the islands. The 1993 Economic Plan,
however, proposed replacing the exemption under IRC Sec. 936 with a credit for wages -- which
caused an outcry from Puerto Ricans. In response, the exemption was continued on a scaleddown basis and an alternative credit based on wages, capital investments, and local taxes (what is
now Sec: 30A) was created.
�The President objected when the Congress' 1995 budget bill proposed phasing-out both
incentives over ten years. His veto message said that "any legislation must contain effective
mechanisms to promote job creation in the islands."
The Administration subsequently proposed phasing-out the income exemption in its balanced
budget plan. To reconcile this with the President's assurance to Puerto Ricans that "Puerto Rico
was cut enough in 1993" and to address concerns of Reps. Serrano, Gutierrez, and Velazquez,
and others, our plan proposed using the revenue from the partial phase-out for Puerto Rico needs ..
When the Congress added its total phase-out plan to the 1996 Minimum Wage bill, the President
called for the current Congress to restore the Sec. 30A credit in his signing st~tement. A similar
commitment was added to the Democratic National Platform by our campaign.
The President pledged to work to open Sec. 30A to new investments and to continue the
incentive for as long as Puerto Rico needs it in his message to Rossello's inauguration this year.
The FY '98 budget proposed this although Treasury had not recommended it. The budget said
that the proposal would provide "a more efficient incentive."
When the proposal was not included in the balanced budget tax bill, the President's signing
statement said that the omission by Congress was "a mistake."
Cost
Joint Tax Committee estimates of the cost of our proposal were 50% higher than the $417
million over five years in our FY '98 budget and might have been more accurate. But all of the
estimates may need to be revised downward since companies that have used the current benefits
are rechartering themselves as foreign to defer the taxes that would be due under the 1996 law.
Recommendation
We understand that Treasury officials again do not plan to recommend further action. They do
not consider such incentives to be efficient or good tax policy.
However, we strongly recommend that the budget reflect the President's commitment to his
initiative for a tax credit based on wages paid in this unrepresented area of the U.S. where 59~{
of the citizens still live below the poverty level. We look forward to working with you and others
to ensure this.
2
CLINTON LIBR!~RY PHOTOCOPY·
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.·.·
AND TYPE
001. note
002a. memo
DATE
SUBJECTffiTLE
RESTRICTION
n.d.
Phone No. (Partial) (1 page)
To Harold Ickes and Marcia Hale from Jeff Farrow. Subject: Guam
. and Puerto Rico (1 page)
P6/b(6)
08/16/1996
P5
002b. memo
To Marcia Hale from John Garamendi. Subject: Guam Issues (I page)
08/15/1996
P5
003. memo
To Marcia Hale from John Garamendi. Subject: Guam Issues (I page)
08/15/1996
P5
004. briefmg paper
re: Guam mutual consent provision agreement and Puerto Rico (4
pages)
11/03/1994
P5
005a. memo
To Marcia Hale from Jeff Farrow. Subject: Points regarding the Guam
Commonwealth bill proposal (1 page)
08/19/1994
P5
005b. briefmg
paper
re: Points regarding the Guam Corrimonwealth bill proposal (2 pages)
08/19/1994
P5
006. list
Phone No. (Partial) (1 page)
12/16/1996
P6/b(6)
COLLECTION:
Clinton Presidential Records .
Intergovernmental Affairs
Marcia Hale
CLINTON UBRI:\~1Y PHOTOCOPY
OA/Box Number: 9712
FOLDER TITLE:
Guam
Jamie Metrailer
2006-0193-F
·mll4
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA) .
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ·[(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOlA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA)
.
b(J) Release would violate a Federal statute [(b)(J) of the FOlA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOlA)
b(6) R~iease would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA)
b(7) Release w·ould disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA)
b(8) Release .would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOlA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the.FOlA)
C. Closed in accordance with restrictions contained in donor's deed
~~~
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�-·('
United States Department of the Interior
OFFICE OF THE DEPUTY SECRETARY
Washington, D.C. 20240
August 15, 1996 · MEMORANDUM
·TO:
Marcia Hale, Director
White House Intergovernmental Affi :
FROM:
SUBJECT:
Guam Issues
I have just met with Jeff Farrow, who I understand to be a co-chair with you on the Interagency
Working Group on Puerto Rico. I called the meeting because I had heard indirectly from White
House sources that Jeff has voiced concerns that my efforts in the Guam Commonwealth
negotiations may have adverse impacts on your work regarding Puerto Rico political status
questions.
~Ii deta~l.today, I~ conv~ced
co~eetion be~een
C) 11After discussing his concerns
that any
Guam
t~
Commonwealth and Puerto Rico poht1cal status 1ssues1s, at best, tangential and certainly not
direct or adverse. To the contrary, I believe that my work on Guam Commonwealth will be
beneficial to the Administration's efforts to keep a neutral and even-handed position vis-a-vis the
commonwealth and the statehood groups in Puerto Rico. Specifically, Jeff indicated that the
Puerto Rican "commonwealthers" may feel that they are being treated unfairly by the President's
commitment to sign the minimum wage bill, which has a provision eliminating Section 936 tax
credits. My work in the Guam Commonwealth negotiations, which is supportive of a
commonwealth status grounded on mutual consent, may help offset any perception of possible
Administration bias against Puerto Rican "conimonwealthers" because of Section 936.
As I discussed with Jeff today, the President has designated me the Administration's Special
Representative in the Guam Commonwealth negotiations. All issues, concerns or questions
regarding Guam issues at the White House should be referred directly to me so that I can provide
timely input based on the current status of these negotiations. My discussions with Guam
representatives and with numerous line agencies are currently at a critical period. These
negotiations are ill-served by information to the White House regarding Guam that is not
reviewed by me first.
Accordingly, I have asked Jeff to respect this situation and requested that he refer any issues,
concerns . or questions regarding Guam to me through my·assistant in these matters, Danny
.
Aranza. Should you have any questions, please do not hesitate to contact me.
cc:
~ce
Babbitt
vHarold Ickes
John Emerson
Jeff Farrow
CLINTON UBR/~R\' PHOTOCOPY
�United States Department of the Interior
OFFICE OF THE DEPUTY SECRETARY
Washington, D.C. 20240
August 15, 1996
MEMORANDUM
TO:
Marcia Hale, Director
White House Intergovernmental Affair
.
/
/ ~----.,.:;~
FROM:
SUBJECT:
I have just met with Jeff Farrow, who I understand to be a co-chair with you on the Interagency
Working Group on Puerto Rico. I called the meeting because I had heard indirectly from White
House sources that Jeff has voiced concerns that my efforts in the Guam Commonwealth
negotiations may have adverse impacts on your work regarding Puerto Rico political status
questions.
After discussing his concerns in detail today, I am convinced that any connection. between Guam
Commonwealth and Puerto Rico political status issues is, at best, tangential and certainly not
direct or adverse. To the contrary, I believe that my work on Guam Commonwealth will be
beneficial to the Administration's efforts to keep a neutral and even-handed position vis-a-vis the
commonwealth and the statehood groups in Puerto Rico. Specifically, Jeff indicated that the · ·
Puerto Rican "commonwealthers" may feel that they are being treated unfairly by the President's
commitment to sign the minimum wage bill, which has a provision eliminating Section 936 tax
credits. My work in the Guam Commonwealth negotiations, which is supportive of a
commonwealth status grounded on mutual consent, may help offset any perception of possible
Administration bias against Puerto Rican "commonwealthers" because of Section 936.
As I discussed with Jeff today, the President has designated me the Administration's Special
Representative in the Guam Commonwealth negotiations. All issues, concerns or questions
regarding Guam issues at the White House should be referred directly to me so that I can pr:ovide
timely input based on the current status of these negotiations. My discussions with Guam
representatives and with numerous line agencies are currently at a critical period. These
negotiations are ill-served by information to the White House regarding Guam that is not
reviewed by me first.
Accordingly, I have asked Jeff to respect this situation and requested that he refer any issues,
concerns or questions regarding Guam to me through my assistant.in these matters, Danny
Aranza. Should·you have any questions, please do not hesitate to contactme.
cc:
Bruce Babbitt
Harold Ickes
John Emerson
Jeff Farrow
CL.INTON LIBR/\R\' PHOTOCOPY
�..
DETERMINED TO BE AN
ADMINISTRATIVE MARKING
INITIALS: JAJIII
DATE:
2oa6- 0/'73-F-Confidential
"/!5 /2"10
;
November 3, 1994
/~
The Guam Mutual consent Agreement and Puerto Rico
The Interior Department's Representative on Guam's
'Commonwealth' agenda (Michael Heyman) has reached an agreement
with the territory's representatives that may force the
Administration to take a position that could be·decis'ive in
Puerto Rico's continuing statehood vs. commonwealth contest.
The "mutual consent" agreement would ostensibly say that no
provision of the entire "covenant" on the new Federal-insular
relationship could be changed·without the consent of the
Commonwealth as well as the Congress. It is being promoted as a
guarantee that will insulate,policies of importance to the island
embodied in a law covering a wide range of subjects (e.g., trade
preferences) against unilateral Federal policy changes.
Although the agreement would only apply to Guam, it would
positively address the fundamental and-controversial question
about 'commonwealth' in other insular areas as well: Can it
reliably limit the broad powers that the Federal government has
in territories, providing permanence in agreed-upon matters as
well as local government autonomy?
The question is so much a part of Puerto Rico's debate that
the first premise of the commonwealth.petition that confronts the
Administration from last year's status plebiscite claims the same
local power that the Guam agreement is now generally understood
to offer. And since both Puerto Rico and Guam have raised the
same question, the .Guam agreement will box the Administration
into taking a position on it in Puerto Rico.
A positive answer would make commonwealth much more
acceptable in Puerto Rico, since the commonwealth option has lost
credibility due in part to Federal resistance to mutual c6nsent
ideas. It-would mean that commonwealth is really different from
.
territorial (colonial) status and offers both sovereignty as well
as some benefits of the U.S. political family.
.
CLINTON UBRAR\' PHOTOCOPY
�2
By the same token, a negative answer would tip the balance
towards statehood and probably lead to a controversial statehood
petition from Puerto Rico in the next few years.
Among the policy reasons for agreeing to such an arrangement
is that not having one leaves territories in which statehood may
not be possible nor desired (and in which independence is not
desired) with no dignified and certain status option.
Among the policy reasons against agreeing to such an
arrangement, however, is that it simply may not be
constitutional.
I
In fact, the Justice Department, reflecting the predominant
legal opinion, contends that Federal powers cannot be given up
unless statehood or independence is granted.
The Guam agreement circumvented Justice's objections by
including a clause to the effect that the mutual consent
requirement is provided to the extent that it is constitutional.
This clause is likely to undermine the initial perception
that the guarantee validates the commonwealth concept. But this,
too, would create a special problem in Puerto Rico since the
issue there goes beyond the question of whether a power-sharing
agreement can be obtained to whether it already exists under the
islands' current commonwealth arrangement. (Puerto Rico's
commonwealth party leadership claims that it does even though
there is no agreement similar to that signed with Guam.)
While. the Guam-related consequences of agreeing to mutual
consent would be relatively minor (because of the island's small
population, distant location, etc.) the implications will be much
greater in the case of much larger and closer Puerto R~co. They
include the ramifications of practically endorsing the basic
platform of the commonwealth party over the statehood party when
both are led by Democrats (and the President has had the support
of both.)
CLINTON LIBRI.\1~\' PHOTOCOPY
�3
Factors involved in effectively taking sides include: the
statehooders' current control of most public offices; the
commonwealthers' greater participation in Democratic primaries;
and the divisions among Puerto Ricans in the U.S. on status
issues (which seem to favor commonwealth.)
Additionally, indicating a willingness to agree to mutual
consent'with Puerto Rico will raise questions in Congress
(although, perhaps, not as many as would be raised by a petition
for statehood.) Sen. simon and Rep. Toricelli, among others, have
already objected to the commonwealthers' mutual_consent ~laims.
Senate Chairman Johnston and House Members stimulated by Puerto
Rico's Carlos Romero-Barcelo can be expected to at least
seriously question it.
Recognizing that Puerto Rico's involvement could jeopardize
any prospective mutual consent policy, Guam negotiators suggest
that the arrangement does not have to be made available to Puerto
Rico because it has the option of statehood (whereas Guam does
not.)
The argument, however, assumes a consensus that Puerto Rico
can become a state, which, of course, does not exist and which
also involves significant political and econ~mic factors!
The Guam agreement was reached without coordination with all
interested elements of the Administration, in part because an
effort to obtain greater authorization for the talks was not
pursued (after questions.about the approach were raised.)
Heyman (who has retained the Guam responsibility in spite of
resigning other Interior posts) intends to try to reach other
agreements with Guam's representatives by the end of the year on
some of the subjects which would ultimately be "protected" by the
mutual consent .agreement. The subjects range in nature from the
application of existing shipping laws to military activities
rights. There is talk of having a bill ready before next Summer.
CLii~TON LIBRARY PHOTOCOPY
�4
The agreement has left the Administration with a number of
difficult options. They must be faced soon since the agreement
may become an issue any day in Puerto Rico. The options include
those .which follow.
• Fail to endorse the Guam agreement.
This would tarnish the Administration's image .in Guam
as well as among some interested international
observers, would undermine the commonwealth party in
Puerto Rico, and would leave no good future status
options for at least some of the insular areas.
• Admit that the guarantee probably won't be effective.
This would result in problems similar to those
identified under the option above but, possibly, not as
seriously.
• Make a similar offer to Puerto Rico.
This would encounter substantial opposition from
supporters of statehood for Puerto Rico, in the islands
and Congress.
e Say that the option is not available to Puerto Rico.
This would devastate the commonwealth party in Puerto
Rico and probably guarantee a statehood petition.
While the Guam agreement will create great difficulties for
the Administration, at least in relation to Puerto Rico, the
underlying -- and, really, more serious -- problem is caused by
the lack of clear status options for insular areas and the lack
of even an orderly process for developing options.
A better choice than those above might be to work with the
interested Members of Congress on a process that enables the real
status courses to be fairly pursued and negotiated by all area~.
CLINTON LIBR/~R\' PHOTOCOPY
�Oj/19/94
-+-+-+
15:05
August 19
DETERMINED TO BE AN
ADMINISTRATIVE MARKING
Qgnfiaetttial
INITIALS: J AI"'\
WHITE HOUSE
;Jc(l?-
DATE: <'fIfi';/Ofo;o
~1'73
-1=-
Note for -Marcia
From Jeff Farrow
Please note the following memo re the NSC proposal on Guam's
commonwealth petition when you get a chance. (The key points are
highlighted. )
..
·.:
·-·
sent it to Keith for his use but this matter is so critical to
our Puerto Rico effort and so related to.the overall question of
the handling of insular matters that I'm also sending it to you.
I
Working out Guam commonwealth is important, but the proposal is
either naive or would slip one by. In any case, it would probably
ultimately fail and/or create problems.
·
It again demonstrates the need to set up an adequate way of
handling all insular matters ... and sho~ld provide a focus on
that.
Also, the discussions on the proposal should really be kept
internal.
In this connection, Guam Delegate Underwood suggested today.that
a hearing be planned on the Administration's handling of the
subject -- which could create some further pressure.
Let's continue to try to get this done right.
CLINTON LIBRARY PHOTOCOPY
-141001
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE·
SUBJECTffiTLE
RESTRICTION
001. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough (12 pages)
07/28/1994
P5
002. statement
re: Comments on. DOJ memorandum regarding mutual consent
provisions in the Guam Commonwealth legislation (53 pages)
08/26/1994
P5
003a. letter
To I. Michael Heyman from Walter Dellinger. Subject: Proposed
language from Department of Justice on Guam Commonwealth
legislation (2 pages)
06/29/1994
P5
003b. note
re: Proposed alternatives for mutual consent provison (2 pages)
06/29/1994
P5
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Mickey Ibarra
OA/Box Number:
CLINTON LIBR/~RY PHOTOCOPY
12618
FOLDER TITLE:
File: Guam
Jamie Metrailer
2006-0193-F
'm596
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)]
Freedom of Information Act- ]5 U.S.C. 552(b)]
Pl National Security Classified Information ](a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office ](a)(2) of the PRAl
PJ Release would violate a Federal statute [(a)(J) of the PRA] .
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute ](b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
~~~
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�I .
~-.
Office of
Offll·..- .,{the
rrlllll'lll
U:~al
ll'u.<lringrr"'. D. C
ul .lrt,lllt·
Coumd
:t.'53t ~
Dcp~t_l A""th:ll ""'"""~ Gener81
J uIy 28, 1994
ME.\10RANDUM FOR
TilE SPECIAL REPRESENTATIVE
FOR GliA.;.'\1 CO:MMONWEALTH
Roseborough~
From: Teresa Wynn
Deputy Assistant Attorney General
Re:
Mutual Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., lst Sess. (1993) contains
two sections requiring the mutual consent of the Government of the United States and the
- Government of Guam. Section 103 provides that the Commonwealth Act could be amended
only with mutUal consent of the two governments. Section 202 provides that no Federal
laws, rules. and regulations passed after the enactment of the Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam insist that these two sections are crucial for the autonomy and economy of Guam. The
fonner vi.ews of this Office on the validity or efficacy of mutual consent requirements
included in legislation governing the relationship between the federal government and nonstate areas. i.e. areas under the sovereignty of the United States that are not States, 1 have
CLINTON LIBRARY PHOTOCOPY
' Territ.ories that have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective governor. resent being Called Territories and claim that that
legal term and its implications are not applicable to them. We therefore shall refer to all Territories and
Commonwealths as non-state areas under the sovereignty of the United States or briefly as non-state areas.
�CLINTON LIBR'~RY PHOTOCOPY
not been consistent.= We therefore have (arefully reexamined rhis issue. Our curll.:lusion ~~
that these clauses raise serious constitutional ~ssues and are legally unenforceahle.-'
In our vie\\. it is important that the text of the Guam Commonwealth Act not create
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation. We must therefore oppose the inclusion in the
Commonwealth Act of any provisions. such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself.
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129, 132-33 (1880). There the Court held:
.
.
: To our knowledge the first consideration of the validity of mutual consent clauses occurred in 1959 in
connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took
the position that the answer to this question was doubtful but that such clauses should not be opposed on the
ground that they go beyond the constitutional power of Congress. In 1963 the Department of Justice opined that
such clauses were legally effective because Congress could create vested rights in the status of a territory that
could not be revoked unilaterally. The Department adhered to this position in t'973 in connection with then
pending Micronesians status negotiations in a memorandum approved by then Assistant Attorney General
Rehnquist. On the basis of this advice, a mutual consent Clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent clauses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Department
revisited this issue in the early 1990's in connection with the Pu;.;rto Rico Status Referendum Bill in light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapment. 477 U.S. 41. 55 (1986), and concluded that there could
not be an enforceable vested right in a political status: hence that mutual consent clauses were ineffective
because they would not bind a subsequent Congress. We took the same position in the Second Guam Task
Force Report issued during the last days of the Bush Administration in January 1993.
3
, Mutual consent clauses are· not a novel phenomenon; indeed they antedate the Constitution. Section 14 of
the Northwest Ordinance contained six "articles of compact, between the original Siates and the people and
States in the said territory. and [shall] forever remain unalterable. unless by common consent." These articles
were incorporated either expressly or by reference into many early territorial organic acts. Clinton v.
Englebrecht. 80 U.S. (13 Wall.) 434. 442 (1872). The copious litigation under these "unalterable articles"
focussed largely on the question whether the territories' obligations under them were superseded by the
Constitution. or when-the territory beeame a State, as the result of the equal footing doctrine. ·We have,
however. not found any cases dealing with the question whether the Congress had the power to modify any dut)'
imposed on tbe United States by those articles.
2
�~--------------------------------------------------
CLINTON LIBR~l.R\' PHOTOCOPY
ll is cenainly now too late to doubt the power of Congress to .govem
the Territories. There have been some differences of opinion as to the
panicular clause of the Constitution from which the power is derived. but that
it exists has always been conceded.J
.
* * •
AIJ territory within the jurisdiction of the United States not included in·
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Territory takes the place of a constitution as the fundamental law of the local
government. It is obligatory· on and binds the territorial authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been expressly or by implication reserved in the
prohibitions of the Constitution.
·
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co: v. Canter, 26 U.S. (1 Pet.).511, 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],
Florida continues to be a territory of the United States; governed by vinue of
that clause in the Constitution, which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self-
~ Some derived that power from the authority of the United States to acquire territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV; Sec: 3.
Cl. 2) pursuant to which Congress has "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". See~ American Insurance Co. ".
Canter, 26 U.S. (I Pet.) 511. 542 (1828): Monnon Church v. United States, 136 U.S. I, 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244,290 (1901).
At present. the Territory Clause of the Constitution is generally considered to be the source of the.
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
(1945): Examining Board v. Flores de Otero, 426 U.S. 572, 586 (1976); Harris v. Rosario, 446 U.S. 651
(1980): ~also Wabol v. Yillacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), cert. denied sub .!!QID. Philippine
Goods, Inc. v. Wabol. _ _ U.S._. 113 S.Ct. 675 ( 1991). (Footnote supplied.)
-3 -
�~(lVt!rnment.
may result necessarily from the facts. that it is not withlll tilt:
jurisdiction of any particular state. and is within the power and jurisdiction of
the United States.
"In legislating for them [the Territories], Congress exercises the combint!d
powers of the general, and of a state government."
Id. at 54::!-·B. 546.
The power of Congress to govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1.
196 (1824), with respect to the Commerce Power:
This power [the Commerce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. ~ u., Hodel v. Vir!Mia
Surface Minin~: and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
C~ngress under the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-state areas persists "so long as ·they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing ·that during the
intermediary period between the establishment of the Commonwealth of the Philippine
Islands and the ftnal withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territoricll government").
The plenary Congressional authority over a non-:-state area thus lasts as long as the
area retains that status. It terminates when the area loses that status either by vinue of its
admission as a State, or by the termination of the sovereignty of the United States over t~e
area by the grant of independence. or by its surrender to the sovereignty of another country.
CLINTON LIBR'~R.\' PHOTOCOPY
-4-
�II.
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
While Congress has the power to govern the non-state areas it need. not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas full powers of selfgovernment and an autonomy similar to that of States and has done so since the beginning of
the Republic. Such delegation. however, must be "consistent with the supremacy and
supervision ofNational authority". Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434. 441
(1872); Puerto Rico v .. Shell Co., 302 U.S. 253, 260, 261-62 (1937). ~e requirement that
the delegation. of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise. alter. or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Sharpnack, 355
U.S. 286,296 (1958), Harris v. Bareham, 233 F.2d 110, 113 (3rdCir. 1956), Firemen's
Insurance Co. v. Washington, 483 F.2d 1323, 1327 (D.C. Cir. 1973). The power of
Congress to delegate governmental powers to non-state areas thus is contingent on the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty· over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. But, as shown abOve, the
retention of the power to amend or repeal legislation delegating governmental powers to a
n<?n-state a:rea is an integral element of the delegation power. Congress therefore has no
' Thompson dealt with the District of Columbia's government which is provided for by Art. I. Sec: 8. Cl.
· 17 of the Constitution. rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The .Court. however. held that in this area the rules relating to the Congressional power
··
to govern the District of Columbia and the non"state areas are identical. Indeed, the Court relied on cases
dealing with non-state areas, y .. Hornbuckle v. Toombs. 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915). where it held that Congress can delegate its legislative
authority under Art. I. Sec. 8. Cl. 17 of the Constitution to the District, subject to the power of Congress at any
· time to revise, alter. or revoke that authority. ·
~ Congress has exercised this power with respect to the District of Columbia. The Act of February 21.
1871. 16 Stat. ·419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President, a legislative assembly that included an elec.ted house of delegates, and a delegate in Congress. The
1871 Act was repealed by the Act of June 20. 1874. 18 Stat. 116. which abrogated among others the provisions
for the legislative ·assembly and a delegate in Congress, and established a government by a Commission
appointed by the President.
'.
CLINTON LIBRI\R\' PHOTOCOPY
-5-
�authoritY to enact le~islatlon under the Territorv Clause that would limit the unfettaed
.
.....
..
exercise of its power 10 amend or repeal.
.
The same result .flows from the consideration that all non-state areas are subject to the
authority of Congress. which. as shown above, is plenary. This basic rule does not permit
the creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
. condition and terminates. only when the area becomes a State or ceases to be under United
States sovereignty. There is no intermediary status as far as the Congressional power is.
concerned.
The two mu~al consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
m.
The rule that legislation delegating governmental powers to a non-state area
must be subject to amendment and rmeaJ is but a manifestation of the general
rule that one Congress cannot bind a subsequent Congress. exce.pt where it
creates vested rights enforceable under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen permanently and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey, 431 U.S. I, 45 (1977), a case involving the Impainnent of the Obligation of
Contracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the ·legitimacy of a system of government that relies· upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that
those same rascals might perpetuate their policies simply by locking them into
binding contracts.
CLINTON UBR~RY PHOTOCOPY
-6-
�Nllllethdess. the maxim that one Congress carmot hind future Congress. Iikt: e\ er:legal nrle. has its limits. As early as I 810. Chief Justice Marshall explained in Fletcher \.
Peck. 10 U.S. (6.Cranch) R7.l35 (1810):
The principle asserted is that one legislature is competent to repeal any
act which a fonner legislature was competent to pass: and that one legislature
cannot abridge the powers of a succeeding legislature.
·The correctness of this principle, so far as respects general legislation.
· can never be controverted. But. if an act be done under a law., a succeeding
legislature cannot undo it .. The past cannot be recalled by the most· absolute
power.· Conveyances have been made. those conveyances have vested legal
estates, and if those estates may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of
the Constitution an<;t the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking~Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They are not included .
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally with the States they are
prohibited from dtmriving persons or corporations of property without due
process of law. They cannot legislate back to themselves, without making
compensation. the lands they have given this. corporation to aid in the
construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respeet to the subsidy bonds
otherwise than according to the tenns of the contract already made in that
connection. The United States are as much bound by their contracts as are
individuals. (emphasis supplied.)
See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 (1986).
CLINTON LIBR.f.\R\' PHOTOCOPY
- 7-
�CLINTON LIBRARY PHOTOCOPY
IV
The Due Process Clause does n0t Preclude Congress from
Amending or Repealing the two Mutual Consent Clauses ·
The question therefore is whether the Due Process Clause of the Fifth Amendinent
precludes a subsequent Congress from repealing legislation for the .governance of non-state
areas enacted by an earlier Congress under the Territory Clause. This question must be
answered in the negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall . . . be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This .Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive
the non-state area of a property right within the meaning of the Fifth Amendment.
A.
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. EPA, 871 F.2d 1548, 1554 (lith Cir.), cert. denied, 493 U.S. 991
( 1989) ("The State of Alabama is not included among the entities protected by the due
process clau~e of the fifth amendment"); and State of Oklahoma v. Federal Energy
Regulatory Comm., 494 F.Supp. 636, 661 (W.D. Okl. 1980), affd, 661 F.2d 832 (lOth Cir.
1981), cert. denied, sub. nom. Texas v. Federal Energy Regulatory Comm., 457 U.S. 1105
(1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts. are not persons within the meaning of the Due Process
Clause of the Fifth Amendment. City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. ffiWC/US, 701 F.
Supp. 121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are not States or instrumentalities of States, and we
have not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. . They are, however, governmental bodies, and
- 8-
�CLINTON LIBR~RY PHOTOCOPY
tit~:
rationale of Sllttth Cawlina v. Katzenhach. 3~3 Li.S. at 301. appears ll' bt:that such
bodies are not protected by the! Due Process Claus~ of the Fifth Amendmc!nt. .tv1ureover. it I~
well established that the political subdivisi,,ns of a State are not considered persons protected
as against the State by the provisions of the Founeenth Amendment. See. ~. Newark v.
New Jersey. 262 U.S. 192. 19o (1923): Williams v. Mayor of Baltimore. 289 U.S. 36. 40
(I 933): South Macomb Disposal Authority v. Township of Washington. 790 F.2d 500. 505.
507 (6th Cir. J986) and the authorities there cited. The relationship of the non-state areas to
the Federal Government has been analogized to that of a city or county to a State. As stated.
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as
that which counties bear to the respective States ...
More recently, the Court explained that a non-state area is entirely the creation of
Congress and compared the relationship between the Nation and a non-state area to that
between a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and since· the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons within the meaning of the Due Process
Clause of the Fifth Amendment.
B.
Legislation relating to the governance "of non-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amendment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend or repeal earli~r legislation
if such repeal or amendment would violate the Due Process Clause of the Fifth Amendment.
i.e., if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process Clause. Here it will be·
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
Legislation concerning the governance of a non-state area, whether called organic act.
federal relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate .. While such legislation has not been frequent, it has occurred
in connection with the District of Columbia. See District of Columbia v. Thompson Co.,
346 U.S. 100,.104-05 (1953); supra n.6. Hence, in the absence of a mutual conserit clause.
-9 -
I
�CLINTON LIBRARY PHOTOCOPY
.lef!islation concerning the
hy subsequent legislation.
~p,·emmem l'l
a non-stall' area
i~
subject
Ill
amendlllent Pr repeal
This leads to the question whether the addition of a mutual consent clause. i.e. of a
provision that the legislation shall not he modified or repealed without the consent of the
Government of the United States and the Government of the non-state area. has the t!ffect of
creating in the non-state areas a specific status amounting to a property right within the
meaning of the Due Process Clause. It is our conclusion that this question must be answered
in the negative because (1) sovereign governmental powers cannot be contracted away. and
(2) because a specific political relationship does nor' constitute "property" within the meaning
of the Fifth Amendment.
.
1. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be
contracted away," North American Coml. Co. v. United States, 171 U.S. 110, 137 (1898).
·More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I, Sec. 10, Cl. 1) of the Constitution that "the Contract Clause does
not require .a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977).7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are, are subject to state restriction.
cannot remove them from the power of the State by. making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
relating to the government of a non-state area without the consent of the latter ..or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam. would
unquestionably purport to surrender essential powers of the federal government. They are
~
Cases arising under the Contract Clause holding that a State cannot contract away a 5overeign power are
also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp. v. R.A. Grav Co .• 467 U.S. 717. 733 (1984); National Railroad Passenger Corp. v.
A.T. &·S.F. R .. _470 U.S. 45 I. 472-73 n.25 ( 1985). Hence. when state legislation does not violate the
_Contract Clause. analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
• Cited with approval with respect to federal legislation in Norman v. B. & O.R .. 294 L'.S. 240, 308
I IQJ5).
- 10 -
j
�I
th~rdllfl' riot hindin!! on tht' llnited Stall'' and c;ullhll Ulllf.:r a prup~n: inter~'il prut~l·h.:d h:
the Fifth Amt!ndment."
~lore
generally. the Supreme Coun held in Bowen'. Agencres Opposed to Soc. Sel:.
EntiClprnent. 477 U.S. 41. 55 (1986). that the contractual propeny rights protected by the
Due Process Clause of the Fifth Amendment are the traditional private contractual rights.
such as those arising from bonds or insurance contracts. but not arrangemt!nts that are ran of
a regulatory prograin such as a State's privilege to withdraw its participation in the Social
Security system with respect to its employees. Specifically. the Coun stated:
But the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "property" within the meaning of the
Fifth Amendment. The termination provision ·in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 418 itself. The provision constituted neither a debt of the
United States. see~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see Lynch v. United States, supra. The termination clause
was not unique to this Agreemen~; nor was it a term over which the State had
any bargaining power or for which the State provided independent
consideration. Rather, the provision simply was pan of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional .
private contracts: they are elements of a regulatory system.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from .unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
• Cases such as Lvnch v. Lnited States. 292 L.S. 571 (1934). and Perrv v. t.:niied States. ::!94 L:.S. 330
(193~). are not contrary to.this conclusion. 'Both cases involved commercial agreements (Lynch: insurance: ·
P~rrv: Government bonds) In Lynch the Court. held that Congress could not amend the contract merely to save
money "unless. indeed the action falls within the federal police police power or some other paramount power."
:92 U.S. at 579. Perrv involved bonds issued by the United States under the authority of Art. 1.. Sec. 8, C'l. ::!
of the Constitution. to borrow money on the credit of the united States. The Court held that Congress did not
hav~ the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating one
of the pivotal terms of the bonds to save money. While the Court held that the United States had broken the
agreement. it nevertheless held that plaintiff could not recover because. as the.result of regulations validly issued
by the United.· States. he had not suffered any monetary damages.
''' Cf. n.::!.
CLINTON LIBR~R\' PHOTOCOPY
- II -
�.-----------------------------~--------------------------
CLINTON LIBR!.I.RY PHOTOCOPY
view of tht: mlings ot the Supreme CtHrn that legislatron concerning the govemance of a nonstate area isnecessarily suh_iect to Congressrnnal amendment and repeal: that govem.mental
bodies are not persons within the meaning of the Due Process Clause: that govt:rnmental
pmvers cannot be contracted away. and especially the exposition in the recent Bowen case.
that the propeny rights protected by the Due Process Clause are those arising from private
lau· or commercial contracts and not those arising from governmental relations. 11
Sections 103 and 202 therefore do not create .vested propeny rights protected by the
Due Process Clause of the Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shall apply to
Guam without the consent of the government of the Commonwealth. The inclusion of such
provisions, therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory and deceptive provisions in the Guam
Commonwealth Act. 13
Finally, the Depanment of Justice has indicated that it would honor past commitments
with respect to the. mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. The question whether
the 198? Task force proposal to amend Section 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
" It is significant that the circumstances in which Congress can effectively agree not. to repeal or amend
legislation were discussed in the context of commercial contracts. Bowen, 477 U.S. at 52.
:: Bowen. it is true. dealt with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
consent of the Government of Guam. The underlying agreements. however. are not of a private contractual
nature, and. hence, are not property within the meaning of the Due Process Clause. We cannot pereeive how
·
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
1
~ The conciusion that Section 202 of the Guam Commonwealth Act (inapplicability of future federal
legislation to Guam without the c·onsent of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 202. In Currin v. Wallace, 306 U.S. l. 15-16 (1939), and United
States v. Rock Royal Co-op. 307 U.S. 533. 577-78 (1939), the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco fanners or milk producers affected by them.
The Court held that this approval was a legitimate condition for making the legislation applicable. Similarly, it
could be argued that the approval of federal legislation by the Government of Guam is a legitimate condition for
making thar legislation applicable to Guam.. Since, as stated above, a future Congress would not be bound by
Section 202. we need not decide the question whether the requirement of approval by the Government of Guam
for every future federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
- 12 -
�August 26,· 1994
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION IN THE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to
re~i~w
the July 28, 1994
memorandum initialed by Deputy Assistant Attorney General
Roseborough and addressed to the, Special Representative for Guam
Commonwealth· (hereinafter the "Memorandum").
That Memorandum
purports to reverse a thirty-year Justice Department. policy
supporting the constitutionality and enforceability of mutual
consent clauses in legislation providing for internal selfgovernment in the territories. I
According to the Memorandum,
mutual consent clauses are unenforceable because (1) rulings of
the Supreme Court require that the "governance of a non-state
The Department of Justice expressly has approved and
gone on record supporting Congressional passage of mutual consent
clauses in at least two U.S. statutes implementing political
status agreements with one U.S. territory, and the Freely
Associated States, and apparently continues to support the
constitutionality and enforceability of these provisions.
Memorandum at 12 ("Finally, the Department has indicated that it
would honor past commitments with respect to the mutual consent
issue"). But an Act of Congress either is constitutional and
enforceable or it is not.
If the Department of Justice means
what it has stated in the Memorandum, this will have profound
legal and political implications with respect to the state of law
. and governmen-tal relatibns for· the insular jurisdic~ions to which
the existing f~deral mutual consent statutes apply,.as well as
one new.insular jurisdiction for which yet another mutual consent
law is to take·effect within a matter of weeks.
Appendix A is a
description of the legal and political nature of the existing
mutual consent precedents and some of the possible effects if the
Department of Justice does not·reconsider the views recommended
in the Memorandum of July 28.
CUI~TON UBR~RY PHOTOCOPY
�area is necessarily subject to Congressional amendment and ·
repeal"; ( 2) "governmental bodi_es are not persons within the
meaning of the Due Process Clause"; and (3) "governmental powers
cannot.be tontracted away" relying on the recent detision in
Bowen v. Public Agencies Opposed to Social Sec. 477 U.S. 41
"
(1986) (popularly referred to as the "POSSE" decision) supposedly
because the Court held that the. only "property rights protected
by the Due Process Clause are those
aris~ng
from private law·or
commercial contracts and not those arising from government
relations".
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guam Commonwealth legislation can be justified
relying on the POSSE decision or any other decision discussed in
the Memorandum. 2
inaccurate.
The Memorandum is misleading and disturbingly
It quotes parts of judicial decisions out of
context, relies on decisions which. have nothing whatsoever to do
with whether Congress has the power to bind itself when entering
into a political status arrangement with a territory,
misstates
holdings in cases cited, mistakes dicta for holdings in others
2
Interestingly while the Memorandum asserts that its
position must change as a~result of POSSE, the ·next most recent
decision relied upon is United States Trust Co. v. New Jersey,·
.431 U.S. 1, decided in 1977. Virtually all of the other key ..
cases were decided in the· 19th Century and early 20th Century,
none of which would justify the change. If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
justification exists for the changed position.
-2-
CLINTON LIBRARY PHOTOCOPY
�and relies upon a web of circular reasoning which quite simply
does not justify the Department's changed position.
Perhaps o! most concern is that the Memorandum reaches an
absolute conclusion concerning Congress' authority to enter into
a binding mutual consent arrangement with a territory, even
though this question has never been put directly before the
Supreme Court or any other court.
This is all the more
disturbing because the only court which has ever even a·pproached
the question apparently assumed that Congress could indeed ·bind
itself, notwithstanding its
Clause.
See,
~'
plenary power under the Territorial
U.S. Ex Rel. Richards v. De Leon Guerrero, 4
F.3d 749, 754 (9th Cir. 1993).
in the Memorandum. 3
This case is not even mentioned
More importantly, both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Congress can limit the ability of future Congresses to change
laws which grant vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
52; Merrion v. Jicarilla Apache Tribe, 455
u.s.
POSSE, .477
u.s.
at
130, 148 (1982);
3
Our standards for legal advocacy properly allow
attorneys to present the facts and law in the light most
favorable to the proposition being espoused. Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the arguments put forward
are atcurate and fairly reflect existing law, even if asserting a
nonfrivolous prbposition that the law should change. In our view
the Memorandum was not prepared in a manner consistent standards
of advoc~cy required in~roposing such an important change irl
policy, and it should not have been presented for approval by
departmental management·as an official position without further
deliberation between all .concerned agencies and even comment by
the insular areas affected.
-3CUf~TON
LIBRARY PHOTOCOPY
L____________________________________________ _
�Transohio Savings Bank v. Director, Office of Thrift Supervision,
967 F.2d 598, 621 (D.C. Cir. 1992) ("Transohio").
Incredibly,
this "unmistakable terms" doctrine (which served as the basis for
the holding in POSSE) is also not addressed.
A section-by-section analysis of the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
precedent exists for the proposed change in policy.
the contents.of this analysis:
the
p~oposition
To .summarize
(1) none of the cases cited for
that Congress must retain the right .to alter,
amend or repeal territorial legislation dealt with the question
placed before the Department by the mutual consent proposal; (2)
the issue of the Commonwealth of Guam not being a person for
purposes of the Due Process Clause is a red herring because the
proposal being discussed by Guam and the Administration
contemplates an agreement between the Congress and the people of
Guam based in part on ·the commonwealth Of The Northern Mariana
Islands and Freely Associated States political status precedents;
and (3) t~e holding in the POSSE decision provides utterly no
support for the proposition set forth in the Memorandum.
Perhaps no part of the Memorandum is as disturbing as is the
analysis of the Supreme Court's decision in POSSE which is put
forward as requiring the Department's change of its thirty-year
position on the constitutionality and enforceability of mutual
consent clauses.
The Memorandum ctaims the change is required
because the Supreme Court held in PbSSE "that the (only]
contractual property rights protected by the Due Process Clause
CLINTON LIBR/\R\' PHOTOCOPY
-4-
�of the Fifth Amendment are the traditional private contractual
rights, such as those arising from bonds or insurance contracts,
but not arrangements that are part of a regulatory program .... "
Memorandum at 11.
The POSSE decision, however,
did not turn on .the subject
matter of the contract in question, and the Court's reference to
the bond and insurance cases had no direct bearing on the Court's
holding.
purpose of
Those ca.ses were. cited in POSSE for the limited
c~ntrasting
contracts where Congress clearly evidenced
its intent to bind itself from the facts_in the POSSE case where
"Congress expressly reserved to itself '(t)he right to alter,
amend, or repeal any provision of' the Act which authorized the·
contracts at issue.
477 U.S. at 42.
The Court relied upon this
contrast because its holding in POSSE was that the Congress could
amend the legislation in question, even if that amendment
interfered with contractual rights,
because it had not
unmistakably indicated its intent to bind itself-- the standard·
the Court has established for determining whether Congress has
imposed limits on the exercise of its
The actual holding in POSSE
sover~ign
powers.
--that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals in
Transohio.
~
The Transohio decision demonstrates conclusively that
the Memorandum's analysis of the!holding in POSSE is so
fundamentally wrong that one wonders how it could be relied upon
by the nation's Department of Justice to justify a proposed
-5CLif~TON
LIBRARY PHOTOCOPY
�reversal in such an important area of Administration policy.
In
that decision, the D.C. Circuit makes clear that "[t]he Supreme
Court reached [its] conclusion by analyzing the governing
statute, the Social Security Act" and focused on the fact
critical to its decision -- "(t]he Social Security Act contained
an express reservation of Congress' power to amend the law ... ",
967 F.2d at 621, not by establishing the per se "private rights"
test asserted in the Memorandum.
According to the D.C. Circuit
The "principles forrn[ing] the backdrop" of
the Supreme·court'~ ~nalysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
that "'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.
Id. at 622 (emphasis added).
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
_"The 'unmistakabili ty' doctrine is. a special
rule of contract interpretation that applies
to contracts with the government. The ·
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of i t~s sovereign
powers.
Id. at ·618.
Both the POSSE and Transohio cases dealt with the
-6CLII~TON
LIBRARY PHOTOCOPY
�application of the· ·"unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on "traditional private contractual rights"
which the Memorandum would have us believe is the standard.
I!
it were the test, the Supreme Court and D.C; Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
a simple
by adopting the test
findi~g
advocat~d
in the Memorandum with
that.alleged contractual rights associated with
the regulatory programs at issue in the cases are not traditional
private contractual rights.
They did not, of course, because the
·'
Supr.eme Court applies the "unmistakable terms" test which
requires an analysis of Congress' intent, not the per se standard
proposed in the Memorandum.
See,
~'
477
u.s.
at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can limit the exercise of its regulatory authority if it makes
clear its intent to do so.
~
Instead of dealing accurately with
~
The import of the POSSE decision has been recognized
even by its critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrender of Sovereignty"· analyzed the POSSE decision in
great detail. It concluded that "[t]he P?wer to waive
.
sovefeignty.was recognized" in POSSE. 92. Col. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Court relied entirely on Merrion v.
Jicaiilla Apache Tribe for the propositioh that the federal
government can surrender sovereign power. Jicarilla in turn
relied upon cases involving primarily the taxation powers of
state governments ... Instead of endorsing the. rule applying to
-7CLINTON LIBR/\R\' PHOTOCOPY
�the Court's actual analysis·, the Memorandum at page 11 relies
upon a quote, claimed to set forth the holding, which is taken
completely out of context.and has nothing whatsoever to do with
the holding.
Tbe quote, taken from 477
u.s.
55, fails to include the
entirety of the paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language. beginning with the last sentence of
the quote from page 11 of the Memorandum•
This languagemakes
absolutely clear that what the Court focused on was the fact that
instead of Congress having stated .in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
477
u.s.
Rather, the provision simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
of its power to provide for the general
welfare. Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of p~ecedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of· reservation.
at 55 (emphasis added).
the police powe~s
such powers cannot be surrender~d --it.
adopted the rule applying to taxation powers --:- such·powers can
only be surrendered if done so unmistakably. This m9ve should
not .be followed'automatically: if the Court .wants to enforce
contracts that surrender the federal government's regulatory
authority, it should do so on the basis of policy arguments, not
on the basis of POSSE." Id. at 460. ·
-8-:CLii~TON
U8RARY PHOTOCOPY
�Congress Can Utilize Its Plenary Authority to Limit Its Future
Power -- The Greater Includes the Lesser.
In part( the Memorandum goes astray in its interpretation of
Congress' plenary authority over the territories.
the
Memorand~,
According to
Congress' plenary authority is infinite in time
or at least until one of three things happen: (1) Guam becomes a
St~te;
(2) Gtiam achieves independence; or (3) the United States
transfers its sovereignty over Guam to another country.
Memorandum at 4.
Thus, the Memorandum seems to suggest that Congress is
estopped from exercising its authority with respect to Guam if
that exercise of authority results in some form of meaning.ful
consent to the form of government under which the Guamanian
people live.
But Congress is not the prisoner of its plenary
authority over the territories -- it is the master.
The fact
that Congress has plenary authority does not mean that Congress
cannot exercise this authority to limit its rights in the future
in the context of a political status change.
Plenary authority
means that Congress can take whatever action it decides is in the
best interest of the U.S. and the territories, including a
decision that it can limit its own exercise of future authority,
if its intentions are stated in unmistakable terms.
To assert
otherwise stands the meaning-of plenary on its head.
Plenary
means full power.
~
It does not mean full power, except when
~
.•
Congress attempts to exercise.it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
-9CLINTON LIBR.I\RY PHOTOCOPY
�-regulations.
The broad power of Congress under the territorial
clause is grounded in the need for the federal government to be
able to govern and/or dispose of territory which is not part of a
In this context, it is
state.
cle~r
that if Congress has the
power to dispose of a territory in its entirety, it also has the
power to dispose of some of its control by exercising its power
to make all needful rules and regulations.
It is an elementary
principle of statutory interpretation that the "g'reater includes
the less".
See, Late Corp. of
the Church of Jesus Christ of
Later-Day Saints v. Romney, 136 U.S. 1, 45 (1889).
The issue of Congress being able to restrict its authority
over territory of the United States has been long decided.
While·
at first blush it may seem counter-intuitive, Congressional
authority over the people 6f the territories and their political
rights emanates from Congress' authority
over Guam as property
brought within Congress' control by the Territorial Clause.
In
Edward v. Carter, the Court clarified Congress' power under the
property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitted) (emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39 U.S.
526 (1840) where the Court considered Congress' power to impact a
tease of federal lands thr6ugh legislation .. The Court's approach
-10-
CLII'-lTON LIBRARY PHOTOCOPY
�to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie within
territory of the United States are, therefore, its property.
Second, it recites the Territorial Clause and concludes that
the term territory refers is a descriptive word referring to one
kind of property.
Third, the Court concludes that "Congress has the same power
over (the mine) as over any other property belonging to the
United States; and this power is vested in Congress without
limitation; and has been considered the foundation upon which the ·
territorial governments rest". Id. at 537.
Fourth, the Court then references cases involving Congress'
authority over the territories, including Florida, including the
right of Congress "to make all needful rules and regulations
respecting the territory or property of the United States". Id.
at 538.
Finally, the Court concludes "[i]f such are the powers of
Congress over the lands belonging to the United States, the words
'dispose of,' cannot receive the construction contended for at
the bar; that they vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater intludes the lesser.
The Court reached its
·decision building on COngress' authority over the territories.
If Congress has the power to dispose of territories or to make
-11-.
CUI~ TON
LIBRARY PHOTOCOPY
�all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit· its authority over
territory by leasing it.
The Result of the Department's Opinion is to Leaves the People of
Guam with a Hobson's Choice -- Remain in a Perpetual State of
Colonialism or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policy implications for United States.
security interests in Guam and the Pacific Region, not to mention
the United States' moral leadership on the issue of granting
democracy to non-self-governlng people around the world.
The
Memorandum begins by defining Guam as a "non-state area, a catchy
pseudonym for what Guam really is -- a territory, and U.S.
citizen population, which the U.N. officially classifies as not
yet having been decolonized, and which has no realistic prospect
of achieving statehood -- the traditional path by which U.S.
territories ceased being colonies and became self-governing in
our constitutional·system.
Fortunately, the Territorial Clause gives Congress the
constitutional power to address this problem.
In the Insular
Cases the Supreme Court recognized that Congress must have
flexibility to adapt federal law and policy for island
J
territories which remain "unincorporated" for an extend.ed period
of time, and which remain subject·to federal power without being
integrated into the system of constitutional federalism
-12CLif~TON LIBR.~RY PHOTOCOPY
�leaving the U.S. citizens concerned without equal legal and
political righ:ts when compared to citizens resident in the
states.
The moral imperative of ending Guam's neo-colonial
status is fundamental to the Administration's decision to pursue
a mutual consent proVisi6n.
Mutual consent brings to the people
of Guam demo:cracy by giving them a direct role in their own
internal self-government which would not otherwise be
available. 5
By rejecting absolutely any possibility that the
Supreme Court may uphold a mutual consent clause in a political
status arrangement, the Department of Justice is putting this
Administration in the untenable position of saying to the
u.s·.
citizens of Guam that they cannot have meaningful self-government
.within the framework of the U.S. Constitution.
We do not think
this is a position which this Administration ought to be taking,
especially when the Supreme Court has not spoken directly to the
5
The American-citizen residents of·Guam do not have the
same rights to participate in the representative democracy
enjoyed by the citizens of the several States. Without voting
,
representation in Congress or a vote in national elections, there
is no means by which they meaningfully can consent to the laws
and form of government under which they live. This colonial
status was awkward even in its first fifty years, but has become
intolerable since the U.N. Charter was adopted and the era· of
decolonization began. Guam is not seeking decolonization outside
the U.S. system, and it would b~ perverse to suggest·that
decolonization is not available· to U.S. citizens within the u.s.
political system. Thus, the question facing the Administration
is whether a .nation founded on the principle of consent of the
gov~rned can adapt its law and policy to end denial of this basic
right and establish an appropriate alternative means of consent
for loyal citizens in the territories.
-13CLif~TON LIBR.~RY PHOTOCOPY
�.
question and the most that can be said about the precedent is
that arguments exist on both sides of the question.
The effect of the Department's changed position is to leave ·
the people in a perpetual state of colonialism or force them into
independence.
The Clinton Administration has been the first to
state with candor and honesty on the record what all those who
have dealt with Guam have known for years -- Statehood is not an
option for Guam.
It is simply too small and remote.
Similarly,
given Guam's strategic importance to the United States, it is
inconceivable that sovereignty would be voluntarily transferred
to another sovereign power, nor do we believe that the people of
Guam would accept it.
The
clear implication of the Department's
position, therefore, is that the American citizen
residents of
Guam, i f they desire to possess a truly democratic government,
will have no choice but to seek independence from the United
States.
The notion that independence is the only political status
outcome through which the injustice of Guam's colonial past can
be remedied is not only counter to the robu.st common sense with
which Americans have implemented their Constitution, it is
a
dangerous, fatalistic and cold-hearted idea that will have a
chilling effect on the spirits of the Guamanian people.
Leaving independence as the only alternative also raises
seriods national security policy questions!
Policy coordina ti_on
for Guam Commonwealth negotiations is exerc"ised by the National.
Security Council because Guam is an important military and
. -14-
CLINTON LIBR.'\R't' PHOTOCOPY
�strategic location for the United States.
A decision has been
made by the White House that an agreement should be reached with
the people of Guam which achieves two fundamental goals.· First,
the people of Guam should be permitted to achieve meaningful
internal self-government free from unnecessary interference.
Second, United States long-term security interests must be
protected.
Offering the people of Guam the opportunity to
achieve meaningful participation in a .democracy only by forcing
them to seek independence is inconsistent with the second of
these goals.
We do not believe that this Hobson's .Choice ought
to be forced upon the United States or people of Guam based on
conclusions of anyone other than the Supreme Court.
This is a policy issue which is best left to the courts, if
a challenge ever arises.
In this regard, the
De~artment's
concern that no one should be misled concerning the certain
viability of a mutual consent provision is consistent with our
position.
we have consistently taken the position in the
negotiations that no one can be sure how the issue will be
decided.
The best we can do is to meet the. requirements the
Supreme Court has set out as being necessary for Congress to bind
itself (a statement in "unmistakable terms") and state
forthrightly in the political education
p~ocess
that we cannot be
sure of the outcome until the Supreme Court has acted.
It is
wel.i established, however, that when the~ intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
-15-
CLII~TON
LIBR.I\R\' PHOTOCOPY
�837, 842-43 (1984).
It is equal~y clear t~at the courts give
great deference to Congress when it is exercising its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d at 460,
citing Torres v. Puerto Rico, 442 U.S.465, 460-70.
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.
Attachments
CLINTON LIBRARY PHOTOCOPY
-16-
�APPENDIX A
U.S. Practice With Respect.to Mutual Consent Arrangements for
Insular Areas Not Incorporated into the U.S. Constitutional ·
Process for Democratic Self-Government But In Which the U.S.
Retains and Exercises Sovereignty and/or Significant Powers of
Government:
BACKGROUND:
Under a succession of treaties with.other nations and
international organizations including the U.N., in this century
the U.S. has acquired and exercised actual sovereignty and/or the
full powers and jurisdiction of government over insular areas
(islands) which have not been incorporated as territories or
states to which the u.s. Constitution applies in full. Thus,
these areas are not fully self-governing and have no power to
give consent to u.s. laws made applicable to them.
As each of these territories has moved toward greater selfgovernment the U.S. has agreed to various political, legal and
budgetary measures which accommodate u.s. interests in retaining
certain powers of government, .while at the same time redeeming in
some greater degree the principle that free people must be
enabled to give some meaningful form of consent to the laws and
form of government under which they live.
In the case of U.S. territories over which the U.S. exercises
full sovereignty, but which have not been incorporated fully into
the system of federalism, measures aimed at enhanced selfgovernment have attempted.to address the fact.that the U.S.
citizens concerned do not have voting representation in Congress,
enfranchisement in national elections or general legal or
political equality with their fellow citizens in the states.
For example, in the case of the Commonwealth of the Northern
Mariana Islands (CNMI)., as discussed. below, the Executive Branch
of the federal government and Congress entered a "Covenant," or
agreement with the people of the territory, under which the u.s.
exercises sovereignty, but which defines a political relationship
the central elements of which are not subject to modification
without mutu~l consent of t~e people of the. territory and the
feqeral government.
This mutual consent arrangement constitutes a substitute set of
political rights intended to give the people of the CNMI a
greater measure of democratic self-government by granting them a
political power of consent to federal law not granted.to U.S.
citizens in the states, who instead are able to give their
consent to federal law through representation in Congress and
voting in national elections. This t~e of mutual consent
CLINTON UBR'\RY PHOTOCOPY
�CLINTON LIBR!l.RY PHOTOCOPY
arrangement has been promulgated by Congress pursuant to the
Territorial Clause of·the Constitution (Article IV, Section 3,
Clause 2), which empowers Congress to provide for areas not yet
fully within t~e constitutional system but subject to U.S.
federal law and sovereign powers.
For insular areas' over which the u.s. exercised powers of
government but not sovereignty under a'greements with the U.N. ,
th.e federal government promulgated mutual consent provisions
·through a combined statutory and treaty-making process.
Under
these arrangements the u.s. retains plenary authority over broad
areas of government power in the concerned insular areas, i.e.,
full defense authority, while the separate citizenship,
sover~ignty and national independence of those insular-areas have
been recogni.zed. This arrangement is known as "free
association."
The compact agreements establishing the free association
relationships between the u.s. and certain insular areas have
been approved by the U.S. Congress in the form of joint
resolutions passed by both houses and signed by the President.
Like the CNMI covenant and the proposed Guam Commonwealth Act,
the U.S. federal statute approving the free association compact.
was intended to create a unique and mutually agreed political
status for insular areas not incorporated into the U.S., but·with
special close political, legal·and security ties to thie nation.
The fact that Guam and the CNMI are unincorporated territories,
while the freely associated states under the compacts are
sovereign, does not change the legal or constitutional analysis.
These acts of Congress which bind the federal government and
limit the exercise of constitutional powers either are
constitutional and enforceable or they are not.
There is no valid constitutional distinction between the mutual
consent provisions in the free association compact and the CNMI
covenant or proposed Guam Commonwealth Act simply because the
power of Congress which is being limited involves foreign policy
and national defense powers arising from Article I or Article II
of the Constitution, or if the subject matter gives rise to
Article IV territorial powers.
The general concept that Congress can alter, amend or repeal the
laws of purely domestic application has its parallel .with respect
to laws and treaties which create obligations between the U.S.
and other.nations.
Spec~fically, an element of sovereignty~
the power to abrogate treaties, and in the U.S. constitutional
system the President and Congress have the power to make trea~ies
and terminate treaties. 'Goldwater v. Carter, 617 F.2d 697 (D.C.
Cir. 1979).
As discussed below, in addition to formal
renqnciation of a treaty by the President, Congress can terminate
or prevent performance of treaties requiring appropriations
simply decline to appropriate funding to meet international
obligations.
This has the effect of superseding the prior act
�of the Congress ratifying the treaty.
Thus, the question before us is whether Congress can limit its
power to amend, alter or repeal a prior act so that commitments
intended to be binding are set aside, and that question is
relevant to any act of Congress which purports to make such
binding commitments, including the statute making the free
association compacts U.S. law.
We believe the test under POSSE for answering that question turns
on whether Congress makes its intent to do so unmistakably clear.
If the position set forth in DOJ Memorandum stands and the
Department of Justice reverses prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisions in the CNMI covenant, the free association compacts
and the proposed Guam Commonwealth Act are unenforceable and
unc,onstitutional, then the effect of that could reach far beyond
the Guam mutual 6onsent proposal.
For example, the mutual consent provisions relating to the
political and legal relationships created by the free association
compacts are linked to unprecedented multi-year funding
authorizations that bind successive Congresses to enact
appropriate laws providing funding for specified grants to the
governments of the free associated insular areas.
These
provisions are enforceable in the federal courts, and give the
free associated state governments concerned access to domestic
u.s. legal remedies that foreign governments do not nave under
conventional u.s. laws and treaties.
To illu~trate t~~ point, as a general rule if Congress refuses to
fund u.s. performance of. a treaty, it is extremely unlikely that
without an explicit statutory basis for jurisdiction the federal
courts would be inclined to reach beyond the political question
doctrine and interfere in the foreign policy domain of the
political branches by entertaining an action by a foreign
government seeking a court order to compel .payment of funding for
u.s~ obligations under a treaty abrogated by the President or
Congress. Yet, under the free association compacts, that is
exactly what Congress has explicitly authorized and directed the
federal courts to do. See, Section 236, P.L. 99-239, discussed
below.
Similarly, in Section 10l(d}(2}(B) of P.C. 99-239, the statute
approving the compacts, Congress required that amendments to the
compact and certain related agreeme~ts made pursuant to the
! applicable mutual consent provisions would require congressional
approval. Thus, Congress by statute.explicitly agreed to the
mutual consent provisions in the agreements identified in Section
101(d)(2)(B) and established a role for Congress in the procedtiie
for u.s. consent to an amendment.
J
Thus, just as the mutual consent provisions of the CNMI agreement
limi.t the exercise of Article IV terri to rial clause powers by
CLINTON LIBRI.\RY PHOTOCOPY
�Congress, the mutual consent and related funding provisions of
the free association compacts limit the exercise of Article I and
Article II foreign policy and defense powers by the President and
Congress. These unprecedented arrangements are intended to
enable the U.S. to sustain its authority over areas in which it
has significant national interests, but in which the people do
not enjoy the full rights and benefits of incorporation ~nto the
u.s. federal political and legal system~
To understand the gravity of the problems that will be created if
the Department of Justice persists in what we believe is a
misinterpretation of the POSSE decision, it is important to
examine the existing mutual consent precedents very closely.
EXISTING MUTUAL CONSENT PRECEDENTS:
The first of the existing mutual consent precedents is found at
Section 105 in the Covenant to Establish the Commonwealth of the
Northern Mariana Islands, U.S. Public Law 94-241, 90 Stat. 263
(1976), reprinted at 48 u.s.c. 1681, note.
The additional
important insular area mutual consent precedents are given the
force and effect of u.s. law pursuant to the agreements referred
to in Section 10l(d)(2)(B) of the u.s. statute approving the
Compact of Free Association between the U.S., the Republic of the
Marshall Islands (RMI) and the Federated States of Micronesia
(FSM), U.S. Public Law 99-239, 99 Stat. 1770, 48 U.S.C. 1681,
note. The CNMI, FSM and RMI mutual consent provisions became
effective under Presidential Proclamation No. 5564 of October 3,
1986, Federal Register Vol. 51, Number 216, November 7, 1986.
As already stated, the RMI and FSM compacts also bind successive
Congresses through a pledge of the full faith and credit of the
U.S. for economic assistance grants which are central elements of
the political relationship defined in the compact as an agreement
between the U.S. and the peoples of the RMI and FSM .exercising .
their sovereignty by approving the agreement in a plebiscite.
See, Preamble and Section 236, Compact of Free Association, P.L.
99-239.
These multi-year funding obligations are not "subject to
appropriation by Congress," the typical treaty formulation, but
are enforceable in the U.S. courts, which are expressly granted
jurisdiction to enforce the payment obligations in the ·compact~
Thus, Congress has restricted its ability to alter, amend or
repeal those statutory obligation~ of its own making.
THE CASE OF PALAU:
A fourth mutual consent precedent is scheduled to enter into
force on October 1, 1994 under the terms of a Compact of Free
Association between the U.S. and Palau.
CLII~TON LIBR/~RY PHOTOCOPY
�The Palau compact implementation agreement is terminable
unilaterally by Palau or the U.S., but once the Compact enters
into force, under Section 453(a) of u.s. Public Law 99-658, .100
Stat. 3700, 48 u.s.c. 1681, note, the Palau compact mutual
consent provision and all the related righis and obligations
under the agreement will be binding upon both Palau and the
United States .. · If the DOJ Memorandum of July 28 is applied to
the Palauan compact mutual consent provision there may be reasons
not to go forward with implementation.
The U.S. currently is under no legal obligation to implement the
Palau Compact, and even though the Palauans· have approved the
Compact the government of that insular area has no rights under
.the agreement until it enters into force by mutual agreement, and
Palau .has no right to an arrangement with the U.S. which is
enforceable or unconstitutional -- even if that arrangement
achieves important U.S. goals such as granting Palau selfgovernment and ending the U.N. trusteeship under which the U.S.
has the ultimate powers of government in Palau.
Thus, implementing the Compact for Palau is not a case of
honoring a previous commitment on mutual consent, but of creating
a new one. If mutual consent clauses binding Congress are
unenforceable and unconstitutional, the u.s. should unilaterally
terminate the implementation agreement as provided for in Article
II, Section 4 of that agreemen-t, and·seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
·
(
.
It would be bad faith to implement the Palau Compact knowing that
a key provision is unenforceable and unconstitutional under u.s.
law. ~nder the Vienna Convention on the Law of Treaties, to do
so could give rise to international legal issues affecting
.enforceability of the compact. For the DOJ Memorandum of July 28
puts Palau on notice that the mutual consent agreement contained
in Section 453(a) is viewed by the u.s. legal authorities as
unenforceable.
Yet, the Section 453(a) mutual consent arrangement with Palau.-which gives the U.S. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity -- is the single
most significant provision which justified to Congress the huge
economic grants contained in the funding sections of the Palau
compact.
As in the case of the FSM and RMI, those funding
grants are backed by the full faith and credit of the u.s.· and
enforcea~ble in the federal cou1='ts.
·~·
if the Palau compact takes eff~ct and the mut~al consent
provision in Section 453(a) is unenforceable; it would appear
that the massive u.s. funding obligations under Title Two of thecompact for Palau would survive under the terms of Section
452(a), even'if. the U.S. followed the procedure under Section 442
to t'errniriate the free association relationship due to loss of the
defense rights which were to extend beyond the initial period of
CLII~TON
UBRAR\' PHOTOCOPY
�the compact.
Perpetual strategic denial is what the U.S. would be able to
retain under continuation of the U.N. trusteeship, and so
strategic denial that lasts beyond the agreed period of free
association under the compact is what Congress demanded in order
to justify over $450 million in grants to a community of 14,000.
If the Department of Justice wants the Administration to give
away what Congress approved in P.L. 99-658 just to win a debate
over mutual consent for Guam, shouldn't Congress be informed?
Thus, th~ decision of the Department of Justice to ch~nge its
position on mutual consent does not impact on Guam alone.
The
most immediate impact may be on Palau. Of course, the Department
of Justice may not have the authority or ability simply to choose
to honor what must be viewed under its theory as an
.
unconstitutional and inchoate mutual consent commitment between
the u.s. and Palau.
Indeed, the notion that individuals in the
federal government have that degree of discretion in fundamental
matters such as this itself raises constitutional issues.
But, again, even if the Department of. Justice is as generous with
respect to honoring a mutual consent commitment to Palau as it
appears ready to be, a question may arise as to whether the u.s.
will be able to enforce its rights or meet its obligations under
the Palau mutual consent provision.
On the face of things
Section 453(a) and the related provisions of Section 311 seem to
be a benefit to the U.S. which it simply can enjoy by deciding to
honor it.
That view may be folly.
If the same litigious parties in the
U.S. or Palau who have mounted legal ch_allenges to the military
provisions of the compact tirelessly for the last fifteen years
establish jurisdiction to challenge the validity of the Section
453(a) mutual consent provision in our own courts, and prevail
with the aid of the DOJ Memorandum, it appears that U.S.
taxpayers could-end up paying Palau for defense authority tied to
a mutual consent provision in Section 453(a) rendered null and
void.
Having been seized with what Palau and the U.S. prudentially must
view presumptively as a serious substantive legal infirmity in a
provision that is fundamental to the purpose of the agreement
prior to its entry into force, will the parties be able to rely
upon and enforce the reciprocal and interdependent rights .and
oblig~tions set forth in the agreement?
Ifi not, are the u.s.
funding obligations linked to the defense ~uthority and mutual
conse~t provisions severable so that the u.s. would be able to
extricate itself from the full faith and credit payment
requirements if the defense rights proved unenforceable?
The answer to both those questions arguably would be in the
negative.
cur~TON
LIBRARY PHOTOCOPY
�We raise these issues not because we believe that the Palau
mutual consent provisions are either unenforceable or
unconstitutional. Rather, we use them to show the basic problem
inherent in the Justice Department's approach. When the CNMI
·
covenant and the compacts were negotiated, Justice supported the
mutual consent clauses. Nothing has changed since then. Only
the ·~oSSE case has caused a rethinking of this support and 'possE
merely explains the test that.must be employed to determine
whether Congress bound itself validly to a limitation on the
exercise of its power. It did not establish a per~ rule to
the contrary.
To avoid the perverse result that could come about by applying.
the position set forth in the Memorandum to Palau's mutual
consent compact, the DOJ Memorandum of July 28 should be
withdrawn immediately.
That would allow.the Palau cotnpac;t to be
implemented and.enable the parties to the Guam commonwealth
negotiations can move forward with the process of defining an
acceptable mutual consent relationship as endorsed by Secretary
Babbitt·during his trip to Guam.
CLII~TON USR'\RY PHOTOCOPY
�APPENDIX B·
SECTION-BY-SECTION ANALYSIS OF -THE
MEMORANDUM FOR THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALTH DATED JULY 28, 1994
RE: MUTUAL CONSENT PROVISIONS IN THE
GUAM ·cOMMONWEALTH LEGISLATION
FROM THE DEPUTY ASSISTANT ATTORNEY GENERAL
Introductory Paragraphs - pp 1-2.
The Department's Memorandum correctly recognizes that the
inclusion of mutual consent clauses in the Commonwealth
legislation is crucial to the people of Guam, referencing as the
reasons autonomy and economics.
While economic development is
clearly a consideration, the reference to autonomy is misleading.
It is true Guam seeks control over its internal affairs.
autonomy is less the goal than democracy.
But
The American-citizen
residents of Guam do not have the same rights to participate in
the representative democracy enjoyed by the citizens of the
several States.
If the citizens of the Guam maintain their
residence there, they elect voting members of neither the House
nor the Senate, rior can they ~ote in presidential ~lections.
They are effectively excluded from the most fundamental aspect of
our democratic system -- the right of
u.s.
citizens to give some
form of meaningful consent to the laws and form of government .
under which they live.
· ·The circumstances of the people of Guam today are the direct
consequence of almost 100 years of American rule, a period during
09/15/94, 11:59am
20029980
CLII~TON LISR~RY PHOTOCOPY
�which the U.S. has exercised sovereignty over Guam without
incorporating it into the U.S. system of constitutional
federalism.
No level of economic development can sustain
perpetual second-class citizenship.
A process must be created
which will lead to resolution of Guam's status as a non-selfgoverning area under the U.N. Charter.
Until Guam is decolonized
it will be a living contradiction of U.S. moral opposition to
colonialism.
Thus, the fundamental question which the people of Guam and,
indeed, which this Administration must ask today is similar to
that question asked by the leaders of the American revolution
can a nation, founded on the principle that government acts only
with the consent of its people continue to deny basic rights of
self-government to some of its citizens solely because they live
in a terri tory? 1
The ·DOJ Memorandum recognizes that for the past thirty
years, the Department has supported the constitutionality and
enforceability of mutual consent clauses. 2
Appendix A
1
In footnote 1, the Memorandum chooses to define Guam as a
"non-state area", a catchy pseudonym for what Guam really i s - - a
colony of the United States. This is why p_eople in the
territories object to their territorial status. As a territory
they are precluded from the democratic system. The Guam.
Commission on Self-Determination, however, does not claim that
the legal implications of being a territory do hot apply to them.
It is because they recognize that being a territory leaves them
out of the democratic process that they seek mutual consent.
2
Unfortunately, the Department has refused to provide us
with any of the prior opinions supporting mutual consent clauses.
09/15/94, 11:59am
20029980
2
CUf~TON LIBR.il.RY PHOTOCOPY
�accompanying this document reviews the legal and political nature
of relevant prior mutual consent precedents, as well as the
pendin~
entry into force of another mutual
co~sent
arrangement.
We do not understand how the mutual consent provisions in these
other acts of Congress will be "honored" by the Department while
a similar provision proposed for Guam is unenforceable.
Memorandum at 12.
See Appendix A.
Neither the relevant provisions of the Constitution nor
applicable cases support different standards for the kind of
mutual consent arrangements involved in these insular political
status relationships.
~ongress
Nor can it be argued that an Act of
in connection.with the CNMI covenant or Compacts of Free
Association is any different or more binding on Congress than an
Act adopting the Guam Cornmonwealthwould be.
An Act of Congress
is either constitutional and enforceable or it is not. If the
Department intends to support the mutual consent provisions in
these other Acts and does not intend to interfere with
implementation of the Palau Compact, it must apply the same
policy to Guam.
To quote the Memorandum at p . .2 -- " [ i] n our
view, it is important that the text of
the~
.. Act not create any
illusory expectations that might to (sic) mislead the
electorate ... about the consequences of the legislation".
In the end, note 2 makes clear that the foundation for the
proposed change in position on mutual consent clauses is the
Supreme Court's decision in Bowen v. Agencies Opposed to Soc.
09/15194, !1:59am
20029980
3
CLINTON LIBR1~RY PHOTOCOPY
�Sec. Entrapment, 477 U.S. 41 (1986) (popul~rly referred to as
"POSSE").
As discussed in great detail infra, POSSE does not bar
Congress from limiting. its right to exercise sovereign power by
entering into a binding contract, nor does it establish a per se
test that Congress can only bind itself when entering into
contracts dealing with traditional private rights.
In fact,
POSSE dealt with the exercise of a regulatory right, and turned,
not on the nature of the contractual right at issue, but on a
determination of whether Congress had expressed an intention to
bind itself in "unmistakable terms".
The following section-by-section analysis demonstrates that
none of the cases cited in the Memorandum leads to a certain
conclusion that the Supreme Court would restrict Congress'
ability to enter into a political status arrangement. with Guam
based on mut'ual consent.
Section I. - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty of the United States is Plenary with
Constitutional Limitations.-- pp 2-4.
The DOJ Memorandum would lead us to believe that the S.upreme
Court has already decided that Congress cannot limit its exercise
of authority over the territories because its authority is
plenary.
In this regard, the Memorandum seems to argue that this
ple::p.ary authority is infinite and must remain unencumbered in
perpetuity-- or at least until the U.S. alters Guam's status ..
09/15/94, 11:59am
20029980
CLINTON LIBRARY PHOTOCOPY
4
�Memorandum at 4.
Thus., the Memorandum argues that.Congress actually is
estopped from exercising its authority with respect to Guam if
that exercise of authority results in some form of meaningful
consent to the form of government under which the Guamanian
people live.
But Congress is the master, not the prisoner of its
plenary authority over the territories.
If Congress· has plenary
authority, it follows that Congress can exercise this authority
to limit the types of measures it will take pursuant to that
authority if that is in the best interests of the U.S. and the
territory.
its head.
To assert otherwise stands the meaning of plenary on
Plenary means full power.
It does not mean full
power, except when Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
I
dispose of a territory or to make all needful rules and
regulations.
If Congress
h~s
the power to dispose of a territory
in its entirety, it also has the power to dispose of :some of its
control by exercising its power to make all needful rules and
regulations~
It is an elementary principle of statutory
interpretation that the "greater includes the less".
·~c=h=u=r=c~h--~v~·-=u~·=s,
.
136 u.s. 1, 45 (1889).
3
See, Morman
Similarly, in Collins
3
While a distinction obviously exists between the
Government's rights to abrogate property rights and the issue of
its authority to exercise political power in the territories, the
Supreme Court's frequent statements that the Government can bind
itself do not appear to be limited to commercial-type contracts.
The Court has, for instance, upheld limitations on federal
political powers in areas ceded to the federal government by the
00/15/94, 11:59am
20029980
5
f'l lf\IT()[\l
UBR'\RY PHOTOCOP'!
�v. Yosemite Park & Curry Co., 304
u.s.
518 (1938), the Court
upheld an agreement between California and the Federal Government
which reserved certain rights to California when it ceded
Yosemite Park.
The Court concluded that the Federal Government
and the states could enter into agreements concerning
jurisdiction over property within their borders, and the courts
should "recognize and respect'' the agreements.
30.~
304
u.s.
at 527-
For instance, the Supreme Court has approved of the
Government's right to lease mineral rights.
Gratiot, 39 U.S.
See United States v.
(14 Pet.) 526, 536 (1840)("it lies in the
discretion of Congress, acting in the public interest to
determine how much of the property it shall dispose.").
In
Ashwander v. T.V.A., 297 U.S. 288 (1936), the Court approved a
contract for the sale of electricity, .rejecting an argument that
the Government lacked constitutional authority to dispose
partially of its property by contract and relying on Congress'
states pursuant to the Territorial Clause.
In Fort Leavenworth
R.R. v. Lowe, 114 U.S. 525 (1885), the Court upheld an agreement·
between the Federal Government and Kansas dividing taxing
authori.ty.
4
The Court stated:
Though the jurisdiction and authority of the general
government are essentially different from those of a
State, they are not those of a different country; and
the two, the State and the general government, may deal
with each other in any way they may deem best to carry
out the purposes of the Constitution.
Fort Leavenworth, . 114
u.s.
at 541.
09/15/94, 11:59am
20029980
CUNTON LIBRARY PHOTOCOPY
6
�authority under the Territorial Clause.
Id, at 330-36.
5
None of the cases cited in the Memorandum are to the
contrary.
Each of them sets forth the general proposition that
in regard to the territories, the Congress is supreme.
In part,
the earlier cases were required to make this point because the
Territorial Clause was included to make clear that it was the
Federal Government and not the States that would exercise control
over the Territories.
See,
~~
A. Leibowitz, Defining Statute
(1989) at 10-11; See also, District of Columbia v. Thompson Co.,
346 U.S. 100, 109 (1953).
But, none of the cases cited in this
5
The Congress also has authority to dispose of property
under the Territorial Clause. This power includes both the
absolute right to dispose of property in its entirety or to
dispose of part of the governments rights in property:.
Of .course, a significant difference may exist between the
disposition of property and the disposition of sovereign
authority.
Nevertheless, the conclusion that Congress can
partially dispose of matters over whi.ch it has the power of
total disposition has considerable logical appeal.
If.
Congress could totally dispose of its power over the
Philippines by granting them independence, it seems logical
that it could also partially dispose of its powers by
granting them something leps than complete ·independence.
Whether Congress could later change its mind as to the
partial disposition is not clear, but some kinds of
dispositions are by nature final.
For example, if Congress
disposes of its powers over territory by admitting it as a
state, that would seem a final disposition of its
territorial powers; Congress cannot change later the status
of a state. Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial power
over them for all time.
Inventive Statesmanship vs. The Territorial Clause: The
Constitutionality of Agreements Limiting Territorial Powers, 60
Va. L. Rev. 1041, 1060-61 (1974).
09/15/94, 11:59am
20029980
7
CLII'>ITON USR'\RY PHOTOCOPY
�section address directly the question of whether Congress could
.. exercise its plenary authority by restricting its ability to act
in the future.
The Memorandum bases its assertions about Congress' plenary
u.s.
authority on Gibbons v. Ogden, 22
(9 Wheat) 1 (1824).
case, of course, is the seminal decision establishing
power under the Commerce Clause.
That
Congr~ss'
It has nothing whatsoever to do
with the Congress' Territorial Clause authority.
It is
apparently cited to establish the proposition that in some
expre~s
areas Congress' power ''acknowledges no limitations, other
than are prescribed in the Constitution".
We think it should be.
obvious that the Department's proposed changed opinion on mutual
consent is entirely inconsistent with this principle.
Rather
than recognizing the scope of Congress' powers, the Department is
claiming that a limitation exists on Congress' power -- that
Congress is imprisoned by its plenary power and cannot exercise
it to limit itself.
In fact, several of the other cases cited in
the Memorandum to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County of Yankton, 101 U.S. 129 (1880).
The Memorandum utilizes
a quote to establish that Congress is supreme in the territories.
But this quote has nothing whatsoever to do with whether Congress
can act to limit its authority.
Unfortunately, what has been
left out from the quote are the next two sentences which bear
09/15/94, 11:59am
20029980
8
CUI~TON LIBRARY PHOTOCOPY
�directly on the issue presented by the mutual consent clause and
the analysis the Supreme Court adopted in POSSE whether Congress
has limited its ri~ht to exercise sovereign power.
Th~ Court
apparently addressing the issue that Congress had not expressly
reserved the right to amend acts of a territory stated:
In the organic act of Dakota there was not an
express reservation of power in Congress to
amend the acts of the territorial
legislature, nor was it necessary. . Such
power is an incident of sovereignty, and
continues until granted away.
101 U.S. at 133 (emphasis added).
Clearly, the implication of this decision is that while Congress
has full power it has the right to grant it away. 6
While the next case cited, Hodel v. Virginia Surface Mining
and Reclamation Assoc., 452 U.S. 264, 276 (1981), like Gibbons v.
Ogden, does not deal with the Territorial Clause, it does
describe accurately the standard the Court applies when
determining whether Congress has acted within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine whether a particular exercise of
congressional power is valid under the
6
Similarly, American Insurance Co. v. Canter, 26 U.S. 511
(1828) and Downes v. Bidwell, 182 U.S. 244 (1901), cited in the
memorandum to establish the extent of Congress' power, do not
address the issue of whether Congress can act to limit. its
authority.
09/15/94, I 1:59am
20029980
9
CUI~TON LISR.'\R't' PHOTOCOPY
�Commerce Clause is relatively narrow.
The~
court must defer to a congressional
finding ... if ther~ is any rational basis for
such a finding ... ~his ·established, the only
remaining question for judicial inquiry is
whether "the means chosen by [Congress) must
be .reasonably adapted to the end permitted by
the Constitution." ... The judicial task is at
an end once the court determines that
Congress acted rationally in adopting a
particular regulatory scheme.
·
452 U.S. at 276 (emphasis added).
This test recognizes the great deference the Court gives to
an exercise of power by Congress.
If Congress were to conclude
that a mutual consent clause is within its power and that such a
clause is necessar¥ to achieve Congress'
purpos~
of granting
greater self-government to Guam, can anyone say with certainty
that the Court will not believe that a sufficient rational basis
exists.
If it does, not even the Memorandum asserts that
anything in the Constitution specifically bars a mutual consent
clause.
It is well established that when the intent of Congress with
respect to the precise question at issue is clear, the courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
It is equally clear· that the courts give
great deference to Congress when it exercises its Territorial
Clause authority.
See, Wabol v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The inco~poration analysis thus must be
undertaken with an eye toward preserving Congress' ability to
09/15/94, 11:59am
20029980
10
CLINTON LISRt-\RY PHOTOCOPY
�accommodate the unique social ·and cultural conditions and values
of the particular territory.
More over, we must be cautious in
restricting Congress' power in this area."), citing Torres v.
Puerto Rico, 442 U.S.465, 460-70 (emphasis added).
In
fact,~
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
·authority.
None of the rest of the cases cited for the proposition that
Congress' power continues indefinitely address the question of
whether Congress can limit its
~bility
territories without their consent.
to act in regard to the
Shively v. Bowlby, 152 U.S. 1
(1894) cari be cited only for the proposition that it is the
Federal Government and not the states which exercises control
over the territory of the United States.
It did not address in
any way whether the Congress can limit its authority to act over
this territory.
u.s.
Similarly, Hooven & Allison Co. vl Evatt., 324
652 (1945},
can be cited only for the self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers would not be exercised during the transition
was not addressed.
Congres~ional
author~ty
over the people of the territories
and their political rights is derived from Congress' authority.
09/15/94, I 1:59am
20029980
· CLINTON LIBR.Q,RY PHOTOCOPY
11
�.
.
over Guam as property brought within Congress' control by the
Territorial Clause.
In Edward v. Carter, the Court ·clarified
Congress' power under the property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978) (citations omitted)
(emphasis
added).
Further definition was provided in
u.s.
v. Gratiot, 39
u.s.
526 (1840) _where the Court considered Congress' power to impact a
lease of federal lands through legislation.
The Court's approach
to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question lie with
territory of the United States are, therefore, its property.
Second, i t recites the Territorial Clause and concludes that the
term territory refers is a descriptive word referring to one kind
.
of property. Third, the Court concludes that "Congress has the
same power over [the mine] as over any other property belonging
to the United States; and this power is vested in Congress
without limitation; and has been considered the foundation upon
which the territorial governments rest". Id. at 537.
Fourth, the
Court then references cases involving Congress' authority over
the territories, including Florida, including the right of
Congress •ito make .all needful rules and regulations respectirig
09/15/94, ll:59am
20029980
12
CLINT()fl.,! LIBRARY PHOTOCOPY
�the territory or property of the United States". Id. at 538.
Finally, the Court concludes "[i]f such are the powers of
Congress over the lands belonging to the United States, the words
"dispose of," cannot re6eive the construction contended for at
the bar; that they vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater includes the lesser.
The Court reached its
decision building on Congress' authority over the territories.
If Congress has the power to dispose of territories or to make
all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
territory by leasing it.
Section II - "The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp 5-6.
·
This section of the Memorandum offers nothing more than a
restatement of the "principle" asserted in Section I -- that
Congress'. plenary authority does not include the right to limit
the exercise of this authority in the future by way of a mutual
consent clause.
As with Section I, the cases relied upon in this
section do not de~l with. the issue of Congress exercising its
plenary authority in this way.
Cliriton v. Englebrecht, 80 U.S.
(13 Wall) 434 (1872) does
not establish a rule that any delegations of authority to a
09/15/94, 11:59am
CLINTON LIBR.'~RY PHOTOCOPY
20029980
13
�territory "must be 'consistent with the supremacy and supervision
of National authority'" as asserted in the Memorandum at p. 5.
The case did not address whether Congress could irrevocably limit
its right to alter a law because of a mutual consent clause, nor
did i.t use the word "must".
The quote is dicta· and deals with
how Congress had approached local government up to that time.
The actual quote is as follows:
The theory upon which the various governments
for portions of th~ terr~tory of the United
States have been organized, has ever been
that of leaving to the inhabitants all the
powers of sel.f-governrnent consistent with the
supremacy and supervision of .National
authority, and with certain fundametital
principles established by Congress.
80
u.s.
at 441 (emphasis added).
This quote establishes nothing more than the historical fact that
Congress in its approach to self-government for the Territories
had not agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co., 302 U.S. 260 (1937) adds
nothing to the debate.
The Court recites the quote set forth
above from Clinton v. Englebrecht but uses it to affirm a broad
grant of power to territorial legislatures, not to bar Congress
from entering into an agreement not to exercise its authority.
In fact, the holding in Puerto Rico was to affirm the validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346 U.S. 100 (1963)
09!15/94, 11:59am
20029980
14
CUf~TON UBR.'\RY PHOTOCOPY
�provides even less support for the Memorandum's assertions.
As
with the other cases, the Court was merely referring to the same
precedent regaiding the general authority of Congress to alter
its legislation relating to a territory, but, here again, this
discussion was not in the context of an expression by Congress of
an intent to limit itself. 7 - More importantly, the laws iri
question contained specific reservations permitting Congress to
make such am·endments.
346
u.s.
at 195.
What is missing from this section, is a discussion of two
important decisions more closely on point.
The first is Currin
v. Wallace, 396 U.S. 1 (1938) which is mentioned in footnote 13
of the Memorandum but summarily dismissed as being inconsistent
with the Department's new theory that Congress cannot bind ·
itself.
This is a decision which we suggest is more
appropriately left to the Supreme Court.
Currin is significant
because the Supreme Court approved an Act of Congress
implementation of which required the approval of those affected
by it, the essence of the Guam mutual consent clause.
The Act,
7
The memorandum attempts to bolster the Department's
theory that Congress must retain the authority to revise, alter
or revoke any authority it grants to the territories by citing
Unfted States v. Sharpnack, 355 U.S. 286 (1958); Harris v.
Boreham, 233 F.2d 110 (3rd Cir. 1956); Firemen's Insurance Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 U.S. 648 (1874) and Christianson v. King County, 239 U.S. 365
(1915).
The cases cited, similar to D.C. v. Thompson, 346 u.s.
100 (1953) do not discuss an express intent by Congress to limit
the exercise of its authority, rather they are limited to
situations whereby Congress -clearly reserved the exercise of its
authority'to revise, alter or revoke through enacted legislation.
09/15194, I 1:59am
20029980
15
CUI~TON LI8RJ\RY PHOTOCOPY
�passed pursuant to the Commerce Clause which the Memorandum
asserts gives Congress the same plenary power as the Territorial
Clause,
was challenged as an unconstitutional delegation of
authority.
The Court disagreed finding that rather than a
delegation of legislative authority, the Congress "has merely
placed a restriction upon its own regulation by withholding its
operation ... 'unless two-third!? of the [voters] voting favor it.
Simila~
conditions are frequently found in police regulations."
306 U.S. at 15.
The Court went on:
Here it is Congress that exercises its
legislative authority in making the
regulation and in prescribing· the conditions
of its application. The required favorable
vote upon the referendum is one of these
conditions ... "Congress may feel itself unable
conveniently to determine exactly when its
exercise of the legislative power should
become effective, because dependent on future
conditions ... it may leave the determina.tion
of such time to ... a popular vote of the
residents of a district to be effected by the
legislation. While in a sense one may say
that such residents are exercising
legislative power, i~ is not an exact
statement, because the power has already been
exercised legislatively by the body vested
with that power under the Constitution, the
condition of its legislation going into
effect being made dependent by the
legislature on the expression of the voters
of a certain district."
·
306 U.S. at 16 (citing
394, 407 (19??).
H~mpton
& Co. v. United States, 276
u.s.,
If the Court agrees Congress has the authority to make.
implementation of its legislation subject to ratification by the
affected voters, i t is inconceivable that the Court would find
09/15!94, 11:59am
20029980
16
CLII~TON
LIBRARY PHOTOCOPY
�that Congress· could not agree to limit its ability to change that
same law without the consent of those same voters, if Congress
has expressed its intention unmistakably.
The most troublesome oversight in this section of the
Memorandum, however, is the failure to discuss the Ninth
Circuit's decision ·in United States v. De Leon Guerrero, 4 F.3d
749 {9th Cir. 1993), cert. denied, ??
u.s.
?? (199?).
De Leon
Guerrero is the only decision of which we are aware that deals
with the applicability of a mutual consent provision in
territorial legislation.
The case arose
~nder
the Covenant for
the Commonwealth of the Northern Mariana Islands.
was ratified by an Act of the Congress.
48
u.s.c.
The Covenant
§
1681b.
The
case involved an ongoing debate about whether the Commonwealth's
right of local self-government as defined in the Covenant under
Section 103 substantially limits Congress' legislative powers
over the Commonwealth under Section 105".
4 F.3d at 752.
The
specific issue was whether the audit provisions of the Inspe.ctor
General Act of 1978 "conflicts with the self-government
provisions of the Covenant". 4 F.3d at 753.
In order to reach the question, the court first had to deal
with arguments put forward by the Department of Justice which are
identical to those in the Memorandum.
Arguing on behalf of the
Inspector General, the Department asserted .that Congress.had the
right to pass the Act under the Territorial Clause arguing "that ·
because the CNMI is governed through Congress' power under the
09/15/94, 11:59am
20029980
17
. CUI~TON UBR.~RY PHOTOCOPY
�Territorial Clause, Congress has plenary legislative authority
over the CNMI".
4 F; 3d at 7 54. 8
"tinpersuas_ive".
According to the Ninth Circuit
The court found this argument
'the authority of the United States towards
the CNMI arises solely under the Covenant.'
The Covenant has created a 'unique'
relationship· between the United·States and
the CNMI, and its provisions alone define the
boundaries of those relations ... The
applicability of the Territorial Clause to
the CNMI, however, is not dispositive of this
dispute.
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 authority.
4 F.3d at 754.
Ultimately, the Ninth Circuit approved application of the
law not because Congress had plenary authority.under the
Territorial Clause but because the Covenant specifically gave
Congress the right to enact legislation applicable to the
Conunonwealth.
The only limit on this right is a mutual consent
provision stating that a few limited sections of the Commonwealth
Act could not be modified without the mutual consent of the
8
The court referred to Simms v. Simms, 175 U.S. 162, 168
(1899) a case which explained.that under the Territorial Clause,
Congress "has the entire dominion and sovereignty, national and
local, Federal and state, and has full legislative over all
subjec~s upon··which the legislature of a state might legislate
within the state". This is the same principle upon which the
Justice Department again relies.
09/15/94, 11:59am
20029980
18
CLINTON LIBR1~RY PHOTOCOPY
�Commonwealth.
Covenant Section 105. 9
The Court found that this
mutual consent provision as drafted did not bar the Congress from
passing laws affecting the Commonwealth where the U.S. had a
sufficiently significant interest to justify it.
The holding in De- Leon Guerrero contradicts directly the
conclusion paragraph to this section.
This paragraph reasserts
that the "non-state areas are subject to the authority of
Congress, which, as shown above, is plenary ... (and] persists
[until]. the area becomes a State or ceases to be under United
States sovereignty".
Memorandum at 6.
Rather, that decision
makes clear that Congress' authority, after a political status
change agreed to between Congress and the people of the
territory, is defined solely by the terms of that agreement.
Section III -- The Rule that Legislation Delegating Gove.rnmental
Powers to a Non-State Area Must Be Subject to Amendment and·
Repeal Is but A Manifestation of the General Rule That One
Congress Cannot Bind A Subsequent Congress, Except Where It
Creates Vested Rights Enforceable Under the Due Process Clause of
the Fifth Amendment -- pp 6-7.
This entire subsection is premised on a
falla~y.
'
There is
no rule expressed in any decision of any court that governmental
·powers to a non-state area must be subject to amendme.nt and
repeal.
As described above, the most that can be said is that
there is dicta in a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the mutual consent
provisions which the Memorandum states the Department will
continue to support. Memorandum at 12.
09/15194, !1:59am
20029980
19.
CLINTON LIBR'l.RY PHOTOCOPY
�whether Congress can bind itself, that Congress' actions in the
territories are subject to.later amendment or repeal.
accurate in the section
i~
What is
that these statements are nothing more
than "a specific application of the maxim that orie Congress
· cannot bind another .... "
Memorandum at 6.
The analysis does not end here, however, because it is
simply not true that one Congress cannot bind another, .as the
Memorandum recognizes but then attempts to explain away.
As
described above, the most that can be said is that there is dicta
in a series of cases, which do not address the issue of whether
Congress can bind itself.
They stand only
fo~
the proposition
that when express statutory language exists or when language is
not provided and it is clear Congress originally had the power,
then in those situations Congress retains its authority and its
actions in the territories may be subject to later amendment or
repeal.
In the end, the section misrepresents as cbnclusive and
inflexible "the maxim that onE7 Congress cannot bind another."
First, .the law must·create vested rights as Justice Marshall
explained in Fletcher v. Peck, 19 U.S.
(6 Cranch) 87, 135 (1810)
("When, then, a law is in its nature a contract, when absolute
rights have vested under that contract, a repeal of the law .
.cannot devest (sic) those rights. ") 10
·
This, too, the Memorandum
10
Although the Department in its memorandum focus' on the
dissenting opinion in u.s. Trust Co. v. New Jersey, 431 U.S. 1
(1977) the actual holding was that impairment of contract by the
State was in violation of the Contract clause and neither
necessary nor reasonable in light of the circumstances. Although
09/15/94, 11:59am
20029980 .
20
CLINTON LIBR~R\' PHOTOCOPY
�recognizes but goes on to utilize a quote from the Sinking Fund
Cases as part of its effort to build a case that only contractual
rights of a private n~ture a~e protected from change.
The analysis provided is incomplete.
11
The test actually
established· by the Supreme Court to determine whether Congress
has bound itself turns not on the nature of the contract (private
right ys public) but on whether Congress has expressed its
. intention to protect the vested right in "unmistakable terms" ..
The "unmistakable terms" doctrine is not even addressed in the
Memorandum.
Infra at p. 25.
Section IV -- The Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two Mutual Consent Clauses - p. 8.
The Memorandum presents two bases for its conclusion that
~he
Due Process Clause does not bar a
repe~l
of a mutual consent
the Contract clause applies to States and not the federal
government, the "United States are as much bound by their
contracts as are individuals." Sinking-Fund Casess, 98 U.S. 700,
719 (1879).
The Court in Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v. United States, 292 U.S! 571, 579 (1934), stated "the Supreme
Court held that "[r]ights against the United States arising out
of a contract with it".are property rights protected from
deprevation or-impairment by the 5th Amendment." See also Madera
Irr. Dist. v. Hancock, 985 F.2d 1397, 1401 (9th Cir. 1993).
Moreover the Court, in U.S. Trust Co. noted that "a statute is.
itself treated as a contract when the language and circumstances
evince a legislative intent to create private rights of a
contractual nature enforceable against the State."
431 U.S. at
17, fn 14 (1977).
11
What is not disclosed about the Sinking Fund Cases is ·
that the "statutes in question expressly reserved Congress'
authority to repeal, alter, ot amend them, and Cong~ess exercised
that power ... " POSSE, 477 U.S. at 53.
·
09/15/94, 11:59am
20029980
21
CLINTON LIBRARY PHOTOCOPY
�clause.
First it points out that a territory is not .a .person
within the meaning of the Due Process Clause.
herring.
This is a red
Secondly, it asserts that a repeal would not deprive a
te:r:ritory of property within the meaning of the Fifth Amendment.
Tfis is not the test the Supreme Court has established.
not the nature of the vested right that controls.
It is
Rather,
the
test involves a combination of a vested right coupled with an
"unmistakable" commitment by the Congress not to interfere with
the right.
Subsection TV, B -- "A Non-State Area Is Not A Person in the
Meaning of the Due Process Clause of the Fifth Amendment." pp.S-
9.
We do not need to debate the merits of the legal arguments
presented in this subsection because this is a non-existent
issue.
The mutual consent clause being discussed between the
President's design~ted negotiator and representatives of the Guam
Commission on Self-Determination runs between the Government of
the United States and the People of Guam, not the political
entity of the Commonwealth of Guam as the Memorandum assumes.
The People of Guam clearly qualify as persons uhder the Due
Process Clause.
We have attached the current configuration of the proposal
for your review.
The reference to the People of Guam is
appropriate because elsewhere in the Act we intend to require
that after adoption by Congress the People of Guam hold a
09/15/94, 11:59am
20029980
22
CLINTON LIBRARY PHOTOCOPY
�plebisci t,e to approve what Congress has enacted before it becomes
applicable to Guam.
In this regard, we also intend to change the
nature of the Guam Commonwealth Act.
Rather than an Act of
Congress approved by the people before implementation, it will
become a Covenant between the United States and the people of
Guam.
This Covenant will create vested and binding rights
protecting both the interests of the United States and of the
People of Guam.
Subsection IV, B -- Legislation Relating to the Government of
Non-State Areas Does Not Create Any Rights Or Status Protected By .
the Due Process Clause Against Repeal Or Amendment By Subsequent
Legislation. - pp. 9-12.
While recognizing that the Government may enter into
contracts; the Memorandum asserts that only contracts similar to
those entered into by private individuals are enforceable, and
"governmental powers cannot be contracted away", citing North
American Coml. Co. v. United States, 171
u.s.
110, 137 (1898). 12
To bolster its position, the Memorandum relies on the POSSE
12
The comment by the Court relied upon by the Memorandum
is dicta.
It came in a case involving Congress' right to alter
the terms of a lease through regulation.
The decision did not
turn on the rule that sovereign regulatory authority could not be
waived.· It turned on the fact that an express reservation of
authority had been included in the contract. As the Court noted,
this was a lease "expressly subjected from the beginning, to
whatever regulations of the business the United States might
make" .
171 U.S. at 13 7. ·
09/15/94, 11:59am
20029980
23
CLINTON LIBRARYPHOTOCOPY
�decision. 13
The POSSE decision, however,
matter of the contract in question.
did not turn on the subject
The actual foundation of the
Court's holding was that if Congress was to surrender any of its
sovereign power in a contract, it must do so in "unmistakable
terms".
The "unmistakable terms" analysis would not be necessary
if the Co.urt did not assume that Congress could indeed surrender ·
sovereign powers, even in the realm of traditional regulatory
autho~ity as was presented in the POSSE case.
This is exactly
the opposite of what the Memorandum asserts.
Indeed, the Court's reference to the bond and insurance
cases had no direct bearing on the Court's holding.
The cases
were cited for the limited purpose of contrasting circumstances
where Congress clearly evidenced its intent ·to bind itself from
/
the facts in the POSSE case where "Congress expressly reserved to
itself "[t)h~ right to alter, amend, or repeal any provision of"
13
The Memorandum lacks examples that give support to the
Memorandum's theory that Congress does not have the ability to
limit the exercise of its authority under the plenary power of
th~.Territorial Claus~.
Rather, the cases cited involve
situatiori~ whe~eby the Congress through legislation, or the lack
of legislation, retained its authority.
For example, the
memorandum indicates Hudson Water Co. v. McCarter, 209 U.S. 349
(1908) has a much broader interpretation than the actual case
decision provides for.
In fact, Hudson concerns an action
involving a water rights contract between the State and an
individual where the State did not include provisions limiting
its powers, therefore allowing subsequent legislation by the
State and a· resulting ineffective contract.
It is not about the
State's incapability to limit its power by coniract, rath~r it's
about the authority of a State to retain its power when not
granted away.
·
09!15194, 11:59am
20029980
24
CLINTON LIBR~RY PHOTOCOPY
�the Act which lead to the contracts at issue.
477 U.S. at 42.
The Court relied upon this contrast because its holding in POSSE
was that the Congress could amend the legislation in question,
even if that amendment interfered with contractual rights,
because it had not unmistakably indicated its intent to bind
itself -- the standard the Court has established for determining
whether Congress has waived its sovereign power.
The actual holding in POSSE -- tha~ Congress had not
surrendered its sovereign·power to alter Social Security
law~
has be~n thoro~ghly analyzed by the D.C .. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thrift.Supervision,
967 F.2d 598, 621 (D.C. Dir. 1992).
The Transohio decision
demonstrates conclusively that the Memorandum's analysis of the
holding in POSSE is so flawed that one wonders how it could be
used to justify a proposed reversal in such an important area of
Administration policy.
In that decision, the D.C. Circuit makes
clear that "[t]he Supreme Court reached [its) conclusion by
analyzing the governing statute, the Social Security Act" and
focused on the fact ciitical to its decision~- "[t]he Social
Security Act contained an express reservation of Congress' power
to amend the law ... ", 967 F.2d at 621, not by establishing the
per se "private rights" test asserted in.the Memorandum.
According to the D.C. Circuit
The "principles form[ing) the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
09/15/94, 11:59am
10029980
25
CLINTON LIBR~R\' PHOTOCOPY
�that " 'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdiction, and will remain
intact unless surrendered in unmistakable
terms.' " l.Q. at 622 (emphasis added), 1 ~
The D.C. Circuit also discussed the history of the
unmistakability doctrine.
"The "unmistakability" doctrine is a special
rule of contract interpretation that applies
to contracts with the government.
The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of its sovereign
powers.
Id. at· 618.
Both the POSSE and Transohio cases dealt with the
application of the "unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
se
1
~
If the Court had actually established a per
rule
which depended on the nature of the contract, then why did the
Court continue after stating the unmistakable terms principle and
the general rule that "contractual arrangement, including those
to which a sovereign itself is party, remain subject to
subsequent legislation by the sovereign" state that ''[t]hese
principles form the backdrop against we must consider the
District Court's decision effectively to forbid Congress to amend
a provision of the Social Security Act".
477 U.S. at 52.
By
use of the "must consider" terminology, the Court made clear what
the test is.
It would have been much more direct and ultimately
clearer simply to have ruled that the contract between.the Social
Security Administration and the State of California was not a ·
traditional private contract.
It did not, of course, because
that is not the test the Supreme Court ever applies.
The test is
wh~ther Congress has stated its intentions in unmistakable terms.
09/15194, 11:59am
20029980
26
CLINTON LIBRARY PHOTOCOPY
�regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on ''traditional
priv~te
contractual rights"
which the Memorandum would have us believe· is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have dispdsed of the contracts in POSSE and
Transohio
by adopting the "traditional private contractual
rights" test advocated in the Memorandum with a simple finding
that alleged contractual rights associated with the regulatory
program& at issue in the cases are not traditional private
contractual rights.
They did not, of course, because the Supreme
Court applies the "unmistakable terms" test which requires an
analysis of Congress' intent, not the per se standard proposed in
the Memorandum.
See,
~,
477
u.s.
at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can contract away sovereign rights to exercise its regulatory
authority when its says so unmistakably.
15
Instead of dealing
15
The POSSE decision has even been criticized because it
appears to open the door wider than some commentators believe
ad~isable. In an article by David Toscano entitled ''Forbearance
Agreements: Invalid Contracts for the Surrender of Sovereignty
analyzed the POSSE decision in great detail.
It concluded that
"(t]he power to waive sovereignty was recognized" in POSSE.
92
Colum. L. Rev. 426, 451.
It goes on "[i)n POSSE, the Court
relied entirely on Merrion v. Jicarilla Apache Tribe for the
proposition that the federal government can surrender sovereign
power.
Jicarilla in turn relied upon cases involving primarily
the taxation powers of state governments ... Instead of endorsing
09/15/94, 11:59am
20029980
27
CLINTON LIBR'\RY PHOTOCOPY
�accurately with the Court's actual analysis, the
Memorand~
at
page 11 relies upon a quote, claimed tQ set.forth the holding,
which is taken completely out of context and has nothing
whatsoever to do with the holding.
The quote, taken from 477
u.s.
55, fails to include the
entirety of the paragraph, the remaining text froin which puts
back into context the relationship of the bond and insurance
\
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court .focused on was the fact that
instead of Congress have stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
After stating that the contract claimed
by the State of California "bears little resemblance to rights
held to constitute 'property' and citing to the insurance and
bond cases as examples, the Court went on to explain their
relevance.·
Rather, the prov1s1on simply was part of a
regulatory program over which Congress
retained authority to amend in the exercise
the rule applying to the police powers -- such powers cannot be
surrendered -- it adopted the rule applying to taxation powers
such powers can only be surrendered if done ·so unmistakably.
This move should not be followed automatically:
if the Court
wants to enforce contracts that surrender the federal
government's regulatory authority, it should do so on the basis
of policy arguments, not on the basis of POSSE."
Id. at 460.
Obviously the author did not like the test used by the Court.
Nevertheless his criticism makes clear what the test is.
09/15/94, 11:59am
20029980
28
CLINTON LIBRI),RY PHOTOCOPY
�of its power to provide for the general
welfare. Under these circumstances, we
conclude that.the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
477
u.s.
at 55
(emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contracting away its right to adopt
legislatlon, because the "Court has never held that the United
States cannot surrender regulatory powers through contract ... "
92 Colum. L. Rev at 458.
But the Court has approved Congress
making effectiveness of its legislation subject to approval by
the voters who are impacted by the legislation, see, Currin v.
Wallace, 306 U.S. at 15-16.
It defies the rational of the POSSE
decision to argue that the Court would approve Congress adopting
legislation making effected-voters approval a requirement and
then pass subsequent legislation authorizing it to ignore the
vote c;>f approval, if it has stated in unmistakable terms that it
would not take such action.
After spending eleven and one-half pages arguing that mutual
consent clauses are unenforceable and unconstitutional, the
Memorandum comes to an astounding conclusion.
It states that the
"Department of Justice ... would honor past commitments with
respect to the mutual consent issue", including Section 105 of
09/15/94, I 1:59am
20029980
29
CLINTON UBR'l.R\' PHOTOCOPY
�the'Covenant with the Northern Marianas Islands.
Department cannot have it both ways.
But the
An Act of Congress is.
either constitutional and enforceable or it is not.
If a mutual
consent provision for Guam is unenforceable, then the Department
must reach the same conclusion for all other mutual consent
provisions.
This includes the mutual corisent provisions iri the
Compact of Free Association with Palau' scheduled to go into
effect on October 1, 1994.
The Department's Memorandum offers no
solid basis for such a significant reversal in policy.
All of
the cases upon which it relies, except POSSE, were available to
it when its earlier positions supporting mutual consent were
made.
POSSE does not change any rule with regard to Congress
binding itself.
It merely lays out clearly a test adopted in
1981 in Merrian v. Jecarilla Apache Tribe, 455 U.S. 130, which in
turn carried forward a principle which the D.C. Circuit states
"dates back to the early 19th century."
967 F.2d at 618.
CLINTON LIBR'\RY PHOTOCOPY
09115/94, n:s9am
20029980
30
�. · .· .
~~~:~!
·~
·.
.
~
.:
:, . . .
~
.
:·~
.. .'f;·.
.
.
. :
..
.
.
,
.
. . . ..
~..
·.. ,T~~J.;
Withdrawal/Redaction Sheet
Clinton_Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
Memo from Bill Clinton to Guam delegation re: campaign (1 page)
07/15/1992
Personal Misfile
002. briefing paper
re: Points regarding the Guam Commonwealth bill proposal (2 pages)
08/19/1994
PS
003. memo
To Leon Panetta from Anthony Lake, Marcia Hale, Carol Rasco, and
Susan Brophy. Subject: Inter-agency working group on Guari:l (2
pages)
08/24/1994
PS
· 004a. briefing
paper
re: Specific comments on the memorandum for Leon Panetta (2 pages)
n.d.
PS
004b. briefmg
paper
re: Specific comments on the memorandum for Leon Panetta (2 pages)
n.d.
PS
005. briefmg paper
re: Specific comments on the memorandum for Leon Panetta (3 pages)
n.d.
PS
006. briefmg paper
re: Guam mutual consent agreement and Puerto Rico (4 pages)
11/03/1994
PS
007. memo
Phone No.'s (Partial) (1 page)
11/08/1994
P6/b(6)
008. memo
To Leon Panetta through Marcia Hale from Jeffrey Farrow. Subject:
Guam mutual conseri.t agreement results (1 page)
11/07/1994
PS
009. memo
To Marcia Hale from Jeff Farrow. Subject: Washington Post article (1
page)
11116/1994
PS
COLLECTION:
Clinton Presidential Records
Intergovernmental Affairs
Cecily Williams
OA/Box Number: 990 I
FOLDER TITLE:
Guam
Jamie Metrailer
2006-0 193-F
"m119
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA]
b(l) National security classified information ((b)(l) of the FOIA)
b(2) Release would disclose internal persomiel rules and practices of
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(h)(3) of the FOIA)
P4 Release would disclose trade secrets or confidential commerciill or
b(4) Release would disclose trade secrets or confidential or financial
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President _ _ _ _......;.__,·~~~·~
..'Qiation [(b)(4) of the FOIA)
and his. advisors, or between such advisors [a)(S) of the PRA]
h(6) Relea would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
al privacy [(b)(6) of the FOIA)
7) Riea would disclose information compiled for law enforcement
personal privacy [(a)(6) of the PRA]
purpo es ((b)(7) of the FOIA)
C. Closed in accordance with restrictions contained in donor's de.ltt-----trv,.,Ht'ru..~,h'!l'l~a,A- would disclose information concerning the regulation of
1,ft'l"
of gift.
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
PRM. Personal record misfile defined in accordance-with 44 U.S.C.
2201(3).
concerning wells [(b)(9) of the FOIA)
RR. Document will be reviewed ·upon request.
CQRU
�,.
~· -~
. DETERMINED TO BE AN ·
ADMINISTRATIVE MARKING
INITIALS: JA/'1
DATE: 1/Ifpolo
'·
:JlJdt- o/13- J:
OeHfieeM~ial
November 3, 1994
The Guam Mutual consent Agreement and Puerto Rico·
·The Interior Department's Representative on Guain's ,
'Commonwealth' agenda (Michael Heyman) has reached an agreement
with the territory's representatives that may force the
. .
.·
.
Administration to take a position that could be decisive in
Puerto Rico's continuing statehood vs. commonwealth contest.
.
.
~
i
The "mutual consent" agreement would ostensibly_say that no
provision of the entire "covenant" on the new Federal-insular
relationship could be changed without the consent of the .
Commonwealth as well as the Congress. It is being promoted as a
guarantee that will insulate policies of importance to the i$land
embodied in a law covering .a wide range of subjects (e.g., trade
preferences) against unilateral Federal policy changes~
Although the agreement would onlyapply to Guam, it_would
p6sitively address the fundamental and controversial question
about 'commonwealth' in other. insular ·areas as well: Can if
reliably limit the broad powers that the_Federal government has
in territories, providing permanence in agreed-upon matters as
well as local.government autonomy?
The question _is. so much a part of Puerto Rico's debate that
the first premise of th~ commonwealth petition that confronts the
Administration from last year's status plebiscite claims the-same
local power that the Guam. agreement is now generally. understood·
to offer. And since both Puerto Rico ·and Guam have raised the
. '
same question, the Guam agreement will box the Administration ·--~
·into taking a position on it in Puerto Rico.
A positive answer would make commonwealth much more
acceptable in Puerto Rico, since the commonwealth-option has lost
credibility due in part to Federal resistance to mutual consent
ideas. It would mean that commonwealth is really different frorit
t~rritorial (~olonial) status and offers both so~ereignty as well
as some benefits of. the u.s. political family .
. CLINTON li8RAR.Y PHOTOCOPY
�2
By the same token, a negative answer would tip the balance
towards stateho"od and probably lead to a controversial statehood
petition from Puerto Rico in the next few years •. ·
Among the policy reasons for agreeing to such an arrang~ment
is that not havirig one leaves territories in which statehood may
not. be possible nor desired (and in which independence is not
desired) with no dignified and certain status option~
Among the policy reasons against agreeing to such an
arrangement, however, is that it simply may not be
constitutional.
In fact, the Justice Department, reflecting the predominant
legal opinion, contends that Federal powers cannot_be given up
unless statehood or independence is granted.
The Guam agreement circumvented Justice's objections by
·including a clause to the effect·that·the mutual consent
requirement is provided to the extent that it is constitutional .. ·
This clause is likely to undermine the initial perception
that the guarantee validates the commonwealth concept. But this,
too 1 would create a special problem in Puerto Rico-since the_
issue there goes beyond the question of whether a power-sharing
agreement can be obtained-to whether it already exists under the
islands' current co:nuTionwealth arrangement. (Puerto Rico's
commonwealth party leadership claims that it does ·even though
there is no .agreement similar to that signed with Guam.)
While the Guam-related consequences of agreeing to mutual
consent would be relatively minor (because of the island's small
population, distant location, etc.) the implications will be much
greater in the case of ·.much larger and closer Puerto Rico. They
include the ramifications of practically endorsin~ the basic
platform of the commonwealth party over the statehood party when
both are led by Democrats (and the President has had the support
of both.)
CLif\JTON-UBR~RY PHOTOCOPY
�3
Factors involved in effectively taking sides include: the
statehooders' current control of most public offices; the
commonwealthers' greater participation in Democratic primaries;
and the divisions among Puerto Ricans in the u.s. on status
issues (which seem to .favor commonwealth.)
Additionally, indicating a willi:qgness. to agree to m:utual
consent with J?uerto Rico will raise questions in Congress
(although, perhaps, not as many as would be raised by a petition .
foi statehood.) Sen. Simon and Rep .. To~icelli, among others, have
already objected to the commonwealthers' mutual consent claims.
Senate Chairman Johnston and House Members stimulated-by Pue~to
Rico's Carlos Romero-Barcelo can be·expected to at least-·
seriously question it ..
Recognizing that Puerto Rico's involvement could jeopardize.
any 'prospective mutual consent policy, Guam . negotiators suggest
.
.
that the arrangement does not have to be made available to Puerto
Rico because it has the option of statehood (whereas-Guam does
not.)
.
""
·-.)
The argument, however, assumes a consensus that Puerto Rico
can become a state, which, of course, does not exist and which
also involves significant political and economic factors!
The Guam agreement was reached without coordination with all
interested elements of_the Administration, in part because an
effort to obtain greater authorization for the talks was not
pursued (after questions about the approach were raised.)
Heyman (who has retained the Guam responsibility in spite of
resigning other Interior posts) intends to try. to·reach other
agreements with Guam's representatives by the end of the year on
some of the subjects_which would ultimately be "protected" by the
mutual consent agreement. The sub]ects range in nature from the
application of existing shipping laws to military activities
·rights. There is talk of having a bill ready before next Summer.
CLif~TON LIBR'\RY PHOTOCOPY
�c'
•.
4
·The agreement has left the Adminis-tration with a .number of
difficult options.· They must be faced soon since the agreement
may become·an issue any day in Puerto Rico. The options include.
those which follow .
.o Fail to endorse the Guam agreement.
This would tarnish the Administration's image ·in Guam
as well as.among some interest~d interri~tional
observers, would undermine the commonwealth party in
Puerto Rico, and would leave no good future status
options for at least some. of the insular areas.
o Admit that the guarantee probably won't be effective.
This_would result in problems similar to.those
identified under the option. above.but, possibly, not as
seriously.
o Make a similar offer to Puerto Rico.
This would encounter substantial opposition from
supporters of statehood for Puerto Rico, in the islands
and Congress.
o. Say that the option is not available to ~uerto Rico.
This would devastate the commonwealth party in Puerto
Rico and proba):>ly guarantee a statehood petition.
While the_Gu~m agreement will create great difficulties for
the Administration, at least in relation to Puerto Rico, the
underlying -- and, really,· more serious -:-problem is caused by
the lack of clear status.options for-insular areas and-the lack
of even an orderly process for developing options.
A better choice than.those above might be to work with the
interested Members of Congress on a process th~t enables the real .
status courses to be fairly pursued and negotiated by ' all areas.
CLii~TON
LIBRARY PHOTOCOPY
�---------------------------------------------------------------------------------~~----
NOU-16-1994
\.
-- .
'
@
cen;fidential
Nov. 16
MARCIA,
I'm told this story was spread here by the former
ReaganfBush appointee with whom Interior's Heyman cut the
mutual consent for changes in commonwealth policies deal.
If so, his motivation wasn't just political. He's trying to keep
the Guam·account by appealing•to the local feeling that its 'the
squeaky wheel that gets the grease.' Its a ta.ctic · in Puerto Rico
as well and stimulated by not getting serious attention.
It. may work with the new Democratic Gov. and ·Lt. Gov.,· Carl
Gutierrez and Madeleine Bordallo, both of whom I know well.
One part of this blurb is misleading, though: While Guam doesn't
have electoral votes, it does have convention votes.
That's why I've suggested Carl and Madeleine get congratulated.·
They'll control Guam's votes in '96. (In addition, Carl knows
Jesse Jackson and Madeleine delivered the '92 delegation for us
and is the most senior member of the DNC.)
This story obviously makes the point that insular areas shouldn't
be ignored~ But it doesnit really explain that there's a good
reason for them to have a place ·(albeit with us) in international
economic talks: They're not always a part of the U.S. in economic
terms-- e.g., trade policies. (Fortunately, we're on the right
track .with Puerto Rico and the Americas summit!)
That's somethinq Interioris territories office has had a hard
time trying to get across. (I understand they tried re APEC.)
Their inability to deliver in this and other areas is a reason
House Republicans may revive the Gallegly proposal to cut the
office and may not have opposition from House Democrats.
(Senators are rnore likely to want to do the type of restructuring
we were discussing earlier, though.)
CLINTON LIRR.il.RY PHOTOCOPY
Jeff
'
· THE WASHINGTON
. .·
'• "·-- --'
Posr
No Laughing Matter . , ',
· • Bad enough f~r President Clinton that he lost .
~ongress and his own .reelection is looking shaky
ow comes word that 150,000 Guama .
.
upset at the administration well thankruants aretJ_ a]
·
· d'
·
•
sonaon
:;ecunty_a V'!Ser ~thony Lake and National
Econorruc <::ouncil boss Robert E. Rubin.
The two met with reporters lasr week to talk
abou~ the Asian Pacific .Econorruc Coope t.
meetlntt that Clin ton attended this week ra Jon rt
.
''6
A
as~ed about the possibility of Guam a U·5 treP<? er .
bemg adniitted th · 18
.
· · · erntory
.
.
. to. e -member group. Lake and ,
Rubm, according to an account in the p cif' D 'I
News, laughed heartily.
a IC al Y
. Guam ~..-. Joseph F. Ada (R) fired off an angry
~~to Clinton dez:Mnding that Lake and Rubin be
unless bothaoolo~. 0Pmnno•~ .. •A- L•--··~-'
as
\
·~he roads lea.cliPg to the U.S. Navy base in Guam .
The a~":ce of an ·apology within twenty-four (24)
hours willl.ikely result in actions of dvil disobedience
directed at military inst91Jations as has occurred in
Guam today,• Ada Said:~ ·
Guam Del. Robert A."Underw-ood (D) said he
~eel Lake in Jakarta, Indc;mesia, on Monday to tell
him "of the seriousness 'o( the situation." An hour
later the White House sent over a letter from Lake
and Rubin ~g the matter Mwhat appears to be.an
Wlfortunate misunderstanding."
·
"Any mirth at the meeting was not. directed at
Gu~, but at our..s~rise.~t the question," they said,
adding that they 5a.ld nothing disrespectful of Guam
nor woul_d we." Ada and UnderwoOd accepted the. '
explanation.
·
·
The territory's 150,000 residents do not vote in
~~~fdential elec~ons, but Cll:nton apparently doesn't
. TDTRL P.01
I ,
..
I
�Withdrawal/Redaction ·sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
001. memo
To Special Representative for Guam Commonwealth from Teresa W.
Roseborough. Subject: Mutual consent provisions in the Guam
Commonwealth legislation (12 pages)
07/28/1994
P5
002. statement
re: Comments on DOJ memorandum regarding mutual consent
provision in the Guam Commonwealth legislation (4 pages)
08/26/1994
P5
003. statement
re: Comments on DOJ memorandum regarding mutual.consent
provision in the Guam Commonwealth legislation (52 pages)
08/26/1994
P5
004a. Jetter
To I. Michael Heyman from Walter Dellinger. Subject: Proposed
language from Department of Justice on Guam Commonwealth
legislation (2 pages)
. 06/29/1994
P5
re: Proposed alternatives for mutual consent provision (2 pages)
06/29/1994
P5
· 004b. note
COLLECTION:
Clinton Presidential Records
Legislative Affairs
Lucia Wyman
OA/Box Number:
CLINTON LIBR.'\RY PHOTOCOPY
1183 7
FOLDER TITLE:
Guam Commonwealth
Jamie Metrailer
2006-0193-F
'm599
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
.
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geologica' or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�I .
~.
1rlrllt' 111
111 .l1r 't ll
'·
Office of l...t!!!al CoumL'I
Ofti··~ oor'th~
Dep:.il) .-\»•"•:11 -'.lh•rn~.l (iencr~l
July 28, 1994
l\ffi\10RA'IDUM FOR
THE SPECIAL REPRESENTATIVE
FOR Gl.iA~\1 COMMONWEALTH
Roseborough~
From: Teresa Wynn
Deputy Assistant· Attorney General
Re:
Mutua] Consent Provisions in
The Guam Commonwealth Legislation
The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains
two sections requiring the mutual consent of the Government of the United States and the
Government of Guam. Section 103 provides that the Commonwcii.lth Act could be amended
only with mutual consent of the two governments. Section 202 provides that no Federal
laws, rules, and regulations passed after the enactment of ttie Commonwealth Act would
apply to Guam without the mutual consent of the two governments. The Representatives of
Guam in~ist that these two sections are crucial for the autonomy and economy of Guam. The
fanner views of this Office on the validity or efficacy· of mutual consent requirements
included in legislation gov~ming the relationship· between the federal government and non. state areas. i.e. areas under the sovereignty of the United States that are not States, 1 have
. CUNTO.I\l LIBRil.RY PHOTOCOPY
' Territories that have developed from the stage of a classical territory to that of a Commonwealth with a
constitution of their own adoption and an elective governor. resent being called Territories and claim that that
legal term and its implications are not applicable to them. We therefore shall refer to all Territories and
Commonwealths as non-state areas under the sovereignty of the United States. or briefly as non-state areas.
�CLINTON LIBR'\RY PHOTOCOPY
not bet!n consistent.= We therefore have carefully reexamined this issue. Our conclusion
1"
that these clat1ses raise serious constitutional issues and are legally unenforceahle.'
In our vie·w. it is importanr that the text of the Guam Commonwealth Act not create
any illusory expectations that might to mislead the electorate of Guam about the
consequences of the legislation. We must therefore oppose the inclusion in the
·Commonwealth Act of any provisions, such as mutual consent clauses, that are legally
unenforceable, unless their unenforceability (or precatory nature) is clearly stated in the
document itself. }
. -:.-·
I.
The Power of Congress to Govern the Non-State
Areas under the Sovereignty of the United States
is Plenary within Constitutional Limitations
All territory under the sovereignty of the United States falls into two groups: the
States and the areas that are not States. The latter, whether called territories, possessions, or
commonwealths, are governed by and under the authority of Congress. As to those areas,
Congress exercises the combined powers of the federal and of a state government. These
basic considerations were set out in the leading case of National Bank v. County of Yankton,
101 U.S. 129, 132-33 (1880). There the Court held:
\
:To our knowledge the first consideration of the validity of mutual consent clauses occurred in 1959 in
connection with proposals. to amend the Puerto Rico Federal Relations Act. At that time the Depart~nt took
the position that the answer to th.is question was doubtful butthat such clauses should not be opposed on the
ground that they go beyond the constitutional power of Congress. In ~~~the Department of Justice opined that
such clauses were legally effective because Ccmgress could create vested rights in the status of a territory that
could not be revoked unilaterally. The Department adhered to this position in 1973 in connection· with then
pending Micronesians status negotiations in a memorandum approved by tben Assistant Attorney General
Rebnquist. On the basis of this advice; a mutual consent clause was inserted in Section 105 of the Covenant
with the Northern Mariana Islands. The Department continued to support the validity of mutual consent clauses
in connection with the First 1989 Task Force Report on the Guam Commonwealth Bill. The Departme~t
revisited this issue in the early 1990's in connection with the Pu;.;rto Rico Status Referendum Bill in light of
Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 55·(1986), and concluded that there could
not be an enforceable vested right in a political status: hence that mutual consent clauses were ineffective
because they would not bind a subsequent Congress. We took the same position in the Second Guam Task
Force Report issued.during the last days of the Bush Administration in January 1993.
3
Mutual consent clauses are not a novel phenomenon; indeed they antedAte the Constitution. Section 14 of
the Northwest Ordinance contained six "articles of compact, between the original States and the people and
Slates in the said territory. and [shall] forever remain unalterable. unless by common consent. • These articles
were incorporated either expressly or by reference into many early territorial organic acts. Clinton v.
Englebrecht, 80 U.S. (13 Wall.) 434. 442 (1872). The copious litigation under these "unalterable ·articles"
focussed largely. on the question whether the territories" obligations under.them were superseded by the
Constitution .. or when the territory became a State. as the result of the equal footing doctrine. We have,
however. not found any cases dealing with the question whether the Congress had the power to modify any duty
imposed on the United States by those articles .
._ 2 -
�CLINTON LISR~l.RY PHOTOCOPY
It is cenainly now too late to doubr rhe power of Congress ro govem
the Territories. There have been some differences of opinion as to the
particular clause of the Constitution from which the power is derived. but thar
it t!xists has always been conceded.~
* "' ..
All territory within the jurisdiction of the United States not included in
any State must necessarily be governed by or under the authority of Congress.
The Territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same. as
that which counties bear to the respective States, and Congress may legislate
for them as a State does for its municipal organizations. The organic law of a
Territory takes the place of a constitution as the fundamental law of the local
government. It is obligatory on and binds the territorial authorities; but
Congress is supreme, and for the purposes of this department of its
governmental authority has all the powers of the people of the United States,
except such as have been .expressly or by implication reserved in the
prohibitions of the Constitution.
Yankton was anticipated in Chief Justice Marshall's seminal opinion in American
Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice
explained:
In the mean time [i.e. the interval between acquisition and statehood],
Florida continues to be a territory of the United States; gqyerned by vinue ofthat clause in the Constitution,. which empowers Congress "to make all needful
rules and regulations, respecting the territory, or other property belonging to
the United States."
·
'
Perhaps the power of governing a territory belonging to the United
States, which has not, by becoming a state, acquired the means of self-
~ Some derived that power from the authority of the United States to acquire territory, others from the mere
fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3.
Cl. 2) pursuant to which Congress has "Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States". See~ American Insurance Co. '.
Canter, 26 U.S. (I Pet.) 511, 542 (1828): Monnon Church v. United States, 136 U.S. 1, 42-44 (1890);
Downes v. Bidwell, 182 U.S. 244, 290 ( 1901).
At present. the Territory Clause of the Constitution is generally considered to be the source of the
power of Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674
(1945): Examining Board v. Flores de Otero, 426 U.S. 572, 586 (1976); Harris v. Rosario, 446 U.S. 651
('1980); ~also Wabol v. Villacrusis. 958 F.2d 1450, 1459 (9th Cir. 1992), ~· denied sub nom. Philippine
Goods. Inc. v. Wabol. --·U.S._. 113 S.Ct. 675 ( 1992). (Footnote supplied.)
-3-
�:!llVt!mment. may rt!stllt nt!ct!ssarily from the facts. that it is not within tilt:
.iurisdiction of any panicular state. and is within the power and jurisdiction of'
the United States.
* "' *
"In legislating for them [the Territories], Congress exercises the combined
powers of the general' and of a state government. "
.I
Id. at 54:!-·B, 5~6.
The power of Congress to govern the non-state areas is plenary like every other
legislative power of Congress but it is nevertheless subject to the applicable provisions of the
Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1.
196 (1824), with respect to the Commerce Power:
This power [the Commerce Power], like all others vested in Congress is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations. other than are prescribed in the constitution. (Emphasis added.)
This limitation on the plenary legislative power of Congress is self-evident. It
necessarily follows from the supremacy of the Constitution. ~ y., Hodel v. Vir~inia
Surface Minine and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of
Congress under the Territory Clause is subject to constitutional limitations has been
recognized in County of Yankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 29091 (1901); District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953).
Finally, the power of Congress over the non-state areas persists "so long as they
remain in a territorial condition." Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also,
Hooven & Allison Co. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the
intermediary period between the establishment of the· Commonwealth of the Philippine
Islands and the fmal withdrawal of United States sovereignty from those islands "Congress
retains plenary power over the territorial government").
The plenary Congressional authority over a non-state area thus lasts as long as the
area retains that status. It. terminates when the atea loses that status either by virtue of its
admission as a State, or by the termination of the sovereignty of the United States over the
area by the grant of independence. or by its surrender to the sovereignty of another country.
CLH~TON
LIBR.I),RY PHOTOCOPY
-4-
�II.
The Revocable Nature of Congressional Legislation
Relating to the Government of Non-State Areas
.
While Congress has the power to govern the non-state areas it need not exercise that
power itself. Congress can delegate to the inhabitants of non-state areas full powers of self-.
government and an autonomy similar to that of States and has done so since the beginning of
the Republic. -~uch delegation. however, must be "consistent with the supremacy and
supervision of National authority''. Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434. +41
(1872); Puerto Rico v. Shetl Co., 302 U.S. 253, 260, 261-62 (1937). The ·requirement that
the delegation of governmental authority to the non-state areas be subject to federal
supremacy and federal supervision means that such delegation is necessarily subject to the
right of Congress to revise, alter. or revoke the authority granted. District of Columbia v.
Thompson Co., 346 U.S. 100, 106, 109 (1953). 5 See also, United States v. Shamnack, 355
U.S. 286, 296 (1958), Harris v. Bareham, 233 F.2d 110, 113 (3rd Cir. 1956), Firemen's
Insurance Co. v. Washin~on, 483 F.2d 1323, 1327 (D.C. Cir. 1973); The power of
Congress to delegate governmental powers to non-state areas thus is contingent ori the
retention by Congress of its power to revise, alter, and revoke that legislation. 6 Congress
therefore cannot subject the amendment or repeal of such legislation to the consent of the
non-state area.
This consideration also disposes of the argument that the power of Congress under the
Territory Clause to give up its sovereignty over a non-state area includes the power to make
a partial disposition of that authority, hence that Congress could give up its power to amend
or repeal statutes relating to the governance of non-state areas. Bl:lt, as shown above, the
retention of the power to amend or repeal legislation delegating governmental powers to a
non-state area is an integral element of the delegation power; Congress therefore has no
~ Thompso~ dealt with the District of Columbia's government which is provided for by Art. I. ·sec. 8. Cl.
17 of the Constitution. rather than with the non-state areas as to whom the Congressional power is derived from
the Territory Clause. The Court. however. held that in this area the rules relating to the Congressional power
to govern the District of Columbia and the non-state areas are identical. Indeed, the Court relied on cases
dealing with non-state areas, s..g .. Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and
Christianson v. King County, 239 U.S. 365 (1915), where it held that Congress can delegate its legislative
authority under Art. I. Sec. 8. Cl. 17 of the Constitution to the District, subject to the power of Congress at any
time to revise, alter, or revoke that authority .
.~ Congress has exercised this power with respect to the District of Columbia. The Act of February 21.
1871. 16 Stat. 419 gave the District of Columbia virtual territorial status, with a a governor appointed by the
President, a legislative assembly that included an elected house of delegates, and a delegate in Congress .. The
1871 Act was repealed by the Act of June 20. 1874, 18 Stat. 116. which abrogated among others the provisions
for the legislative assembly and a delegate in Congress, and established a government by a Commission
appointed by the President.
CLINTON UBR~R\' PHOTOCOPY
-5-
�auth~)rity
~:"\ercise
enact legislation under the Territory Clause that would limit the: unl~o.:ttaed
of its power to amend or repeal.
to
The same result flows from the consideration that all non-state areas are subject to the
authority of Congress. which. as shown above, is plenary. This basic rule does not penn it
the creation of non-state areas that are only partially subject to Congressional authority. The
plenary power of Congress over a non-state area persists as long as the area remains in that
condition and tem1inates only when the area becomes a State or ceases to be under United
States sovereig~tt There is no intermediary status as far as the Congressional power is
conc.emed.
The two mutual consent clauses contained in the proposed Commonwealth Act
therefore are subject to Congressional modification and repeal.
m.
The rule that legislation delegating governmental PQwers to a non-state area
must be subject to amendment and weal is but a ·manifestation of the general ·
rule that one Congress cannot bind a subsequent Congress. exce.pt where it
creates vested rights enforceable. under the Due Process Clause of the Fifth
Amendment.
The rule that Congress cannot surrender its power to amend or repeal legislation
relating to the government of non-state areas is but a specific application of the maxim that
one Congress cannot bind a subsequent Congress and the case law developed under it.
The rationale underlying that principle is the consideration that if one Congress could
prevent the subsequent amendment or repeal of legislation enacted by it, such legislation
would be frozen pennanently and would acquire virtually constitutional status. Justice
Brennan expressed this thought in his dissenting opinion in United States Trust Co. v. New
Jersey, 431 U.S. I, 45 (1977), a case involving the Impairment o(the Obligation of
Contracts Clause of the Constitution (Art. I, Sec 10, Cl. 1):
One of the fundamental premises of our popular democracy is that each
generation of representatives can and will remain responsive to the needs and
desires of those whom they represent. Crucial to this end is the assurance that
new legislators will not automatically be bound by the policies and
undertakings of earlier days.... The Framers fully recognized that nothing
would so jeopardize the legitimacy of a system of government that relies upon
the ebbs and flows of politics to "clean out the rascals" than the possibility that.
those same rascals might perpetuate their policies simply by locking them into
binding contracts.
CLII~TON LISR"RY PHOTOCOPY
-6-
�Nt)nethekss. the maxim that nne Cun~res.'l L'<IJJnlH hind future Congress. like t:\ c:r_:.
legal nile. has its limits. As early as 1810. Chief Justice Marshall explained in Fletcher , .
Peck. Hl U.S. (6 Cranch) R7. 135 ( 181 OJ:
The principle asserted is that one legislature is competent to repeal any
act which a former legislature was competent to pass; and that one legislature
cannot abridge the powers of a succeeding legislature .
..The correctness of this principle, so far as respects general legislation.
can ne~er be controverted. But. if an act be done under a law, a succeeding
legislature cannot undo it. The past cannot be recalled by the most absolute
power. Conveyances have been made. those conveyances have vested legal·
estates, and if those estates rna y be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute rights have
vested under that contract, a repeal of the law cannot devest (sic) those rights.
The powers of one legislature to repeal or amend the acts of the preceding one are
limited in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of
the Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case
of Congressional legislation by the Due Process Clause of the Fifth Amendment. This
principle was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):
The United States cannot any more than a State interfere with private
rights, except for legitimate governmental purposes. They, are not included
within the constitutional prohibition which prevents States from passing laws
impairing the obligation of contracts, but equally wi~ll the States they are
prohibited from depriving persons or corporations of property without due
process of law. They cannot legislate back to themselves,· without making
compensation. the lands they have given this corporation to aid in the
_construction of its railroad. Neither can they by legislation compel the
corporation to discharge its obligations in respect to the subsidy bonds
otherwise than according to the terms of the contract already made in that
connection. The United States are as much bound by their contracts as are
individuals. (emphasis supplied.)
See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 (1986).
CUI~TON LIBRARY PHOTOCOPY
-7-
�IV
The Due Proces.<; Clause does not Preclude Congress from
Amending or Repealing the two Mutual Consent Clauses
The question therefore is whether the Due Process Clause of the Fifth Amendment
precludes a subsequent Congress from repealing legislation for the governance of non-state
areas enacted by, an earlier Congress under the Territory Clause. This question must be
.
answered in ttie-' negative.
The Due Process Clause of the Fifth Amendment provides:
No person shall . . . be deprived of life, liberty, or property without due
process of law. (emphasis supplied.)
This .Clause is inapplicable to the repeal or amendment of the two mutual consent
clauses here involved for two reasons. First, a non-state area is not a "person" within the
meaning of the Fifth Amendment, and, second, such repeal or amendment would not deprive
the non-state area of a property right within the meaning of the Fifth Amendment.
A.
A non-state area is not a person in the meaning of the Due Process Clause of the
Fifth Amendment.
In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (t966), the Court held that a
State is not a person within the meaning of the Due Process Clause of the Fifth Amendment.
See also, Alabama v. EPA, 871 F.2d 1548, 1554 (lith Cir.·), cert. denied, 493 U.S. 991
(1989) ("The State of Alabama is not included among the entities protected by the due
process clause of the fifth amendment"); and State of Oklahoma v. Federal Energy
Regulatory Comm., 494 F.Supp. 636; 661 (W.D. Okl. 1980), aff'd, 661 F.2d 832 (lOth Cir ..
1981), cert. denied, sub. nom. Texas v. Federal Energy Regulatory Comm., 457 U.S. 1105
(1982).
Similarly it has been held that creatures or instrumentalities of a State, such as cities
or water improvement districts. are not persons within the meaning of the Due Process
Clause of the Fifth· Amendment. City of Sault Ste. Marie. Mich. v. Andrus, 532 F. Supp.
157, 167 (D.D.C. 1980); El Paso. County Water Improvement District v. ffiWC/US, 701 F.
Supp. 121, 123-24 (W.D. Tex 1988).
The non-state areas, concededly, are ·not States or instrumentalities of States, and we
~ave not found any case holding directly that they are not persons within the meaning of the
Due Process Clause of the Fifth Amendment. They are, however, governmental bodies, and
. CLII~TON UBRl\RY PHOTOCOPY
- 8-
�tile rationale of Sl)tJth Can)lina-v. Katzenhacll. 3~J li.S. at 301. appears Ill be that such
bodies are not protected by th~ Due Process Claus~ of the Fifth Amendm~nt. tv1on.:over. it ~.,
well established that the politi~al subdivisions of a Stille are not considered persons protectt:d
as against the State by the provisions of the Foui1eenth Amendment. Se~. ~· Newark \'.
New Jersey. 262 U.S. 192. 19o ( 19~3): Williams v. Mayor of Baltimore. 289 U.S. 36. 40
(I Q33): South Macomb Disposal Authority v. Township of Washington. 790 F.2d 500. 505.
507 (6th Cir. J9g6) and the authorities there cited. The relationship of the non-state areas to
the Federal Gov~rnment has been analogized to that of a city or county to a State. As stated.
supra, the Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):
The territories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the same as .
that which counties bear to the respective States ...
More recently, the Covrt explained that a non-state area is entirely the creation of
Congress and compared the .relationship between the Nation and a non-state area to that
between· a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows
that, since States are not persons within the meaning of the Fifth Amendment and since the
political subdivisions of States are not persons within the meaning of the Fourteenth
Amendment, the non-state areas are not persons. within the meaning of the Du·e Process
Clause of the Fifth Amendment.
B.
Legislation relating to the governance ofnon-state areas does not create any rights or
status protected by the Due Process Clause against repeal or amelitlment by subsequent
legislation.
As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation
if such repeal or amendment would violate the Due Piocess -Clause of the Fifth Amendment.
i.e., if such amending or repealing legislation would deprive a person of property without
due process of law. It has been shown in the preceding part of this memorandum, that a
non-state area is not a person with the meaning of the Due Process Clause. Here it will be
shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam
Commonwealth Act, would not create property rights within the meaning of that Clause.
Legislation concerning the governance of a non-state area, whether called organic act.
feder3.I relations act, or commonwealth act, that does not contain a mutual consent clause is
clearly subject to amendment or repeal by subsequent legislation. A non-state area does not
acquire a vested interest in a particular stage of self government that subsequent legislation
could not diminish or abrogate. While such legislation has not been frequent, it has occurred
i!l connection with the District of Columbia. ·See District of Columbia v. Thompson Co.,
346 U.S. 100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause.
-9CLINTON USR.ARY PHOTOCOPY
/
�lef!islatinn cunceming the ~l1vemment PI a rHlli-siat~ area i~ subject tu arnend1nent l'r n.:pcal
hy subsequent legislation.
This leads to the question whether the addition of a mutual consent claust:. i.e. of a
provision that the legislation shall not he modified or repealed without the consent of the
Government of the United States and the Gqvemment of the non-state area. has the effect of
creating in the non-state ar~as a specific status amounting to a property right within the
meaning of the Due Process Clause. It is our conclusion that this question must be answered
in the negativeJ:~ecause (1) sovereign governmental powers cannot be contracted away. and
(2) because a specific political relationship does not constitute "property" within the meaning
of the Fifth Amendment.
1. As a body politic the Government of the United States has the general capacity to
enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This.
power, however, is generally limited to those types of contracts in which private persons or
corporations can engage. By contrast [sovereign] "governmental powers cannot be .
contracted away," North American Com!. Co. v. United States, 171-U.S.llO, 137(1898).
More recently the Supreme Court held in connection with legislation arising under the
Contract Clause (Art. I. Sec. 10, Cl. 1) of the Constitution that "the Contract Clause does
not require a State to adhere to a contract that surrenders an essential attribute of its
sovereignty." United States Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977). 7 In a similar
context Mr. Justice Holmes stated:
One whose rights, such as they are, are subject to state restriction.
cannot remove them from the power of the State by making a contract about
them. Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8
Agreements or compacts to the effect that the Congress may not amend legislation
. relating to the government of a non-state area without the consent of the latter. or that federal
legislation shall not apply to Guam unless consented to by the Government of Guam would
unquestionably purport to surrender essential powers of the federal government. They are
Cases arising under the Contract Clause holding that a State cannot contract away a sover~ign power are
also applicable to the contracts made by the federal government because the Contract Clause imposes more
rigorous restrictions on the States than the Fifth Amendment imposes on the federal government. Pension
Benefit Guaranty Corp. v. R.A. Gray Co., 467 U.S. 717, 733 (1984); National Railroad Passenger Corn. v.
A.T. & S.F. R .. _470 U.S. 451.472-73 n.25 (1985). Hence, when state legislation does not violate the
·Contract Cl~use. analogous federal legislation is all the more permissible under the Due Process Clause of the
Fifth Amendment.
7
. • Cited with approval with respect to federal legislation in Norman v. B. & O.R .. 294 L'.S. 240. 308
( JQ35).
CLII~TON
LIBRARY PHOTOCOPY
- l0 -
j
·
�~---------------------------------~~
tllt:reforL' not hindin~ on tilt.' United StalL'' and L':tlllllll L'Pilft.:r a propt:n;. intl"l\~'il pr(ltc,·tt.:d
tilt' Fifth Amendmelll. ~
11:
t\lore generally. the Supreme Court held in Bowen \'. Agencies Opposed to So(. SeL·.
Entrapment. 477 U.S. 41. 55 (1986). that the contractual property rights protected by the
Due Process Clause of the Fifth Amendment are the traditional private contractual rights.
such as those arising from bonds or insurance contracts. but not arrangements that are ran of
a regulatory program such as a State's privilege to withdraw its participation in the Social
Security systen~_)~'ith respect to its employees. Specifically. the Court stated:
. But the "contractual right" at issue in this case bears little. if any.
resemblance to rights held to constitute "property" within the meaning of the
Fifth Amendment .. The tennination provision in the Agreement exactly
tracked the language of the statute. conferring no right on the State beyond
that contained in § 418 itself. The provision constituted neither a debt of the
United States. see ~ v. United States, supra, nor an obligation of the
United States to provide benefits under a contract for which the obligee paid a
monetary premium, see Lynch v. United States, supra. The tennination clause
was not unique to this Agreement; nor was it a tenn over which the State had
ariy bargaining i>ower or for which the State provided independent
consideration. Rather, the provision simply was part of a regulatory program
over which Congress retained authority to amend in the exercise of its power
to provide for the general welfare.
Agreements that the Guam Commonwealth Act may not be amended without the consent of
the Government of Guam, or that future federal statutes and regulations shall not apply to
Guam without the consent of the Government of Guam clearly do not constitute conventional
private contracts: they are elements of a regulatory system.
In the past the Department of Justice at times has concluded that a non-State area may
have a vested interest in a specific status which would be immune from unilaterial
Congressional amendment or repeal. 10 We cannot continue to adhere to that position in
"Cases such as Lvnch v. Cnited States. 292 C.S. 571 (1934). and Perrv v. l]nited States. 294 t.:.S. 330
( 1935 ). are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance:
Pc=rrv: Government bonds) In Lynch the Courtheld thiu Congress could not amend the contract merely to save
money "unless. indeed the action falls within the federal police police power or some other paramount power."
:!92 U.S. at 579. Perrv involved bonds issued by the United States under the authority of Art. I. Sec. 8, C'l. 2
of the Constitution. to borrow money on the cn:dit of the united States. The Court held that Congress d)d not
have the power to destroy the credit of the United States or to render it illusory by unilaterally abrogating one
of the pivot~! terms of the bonds to save money. While .the Court held that the United States had broken the=
agreement. it nevertheless held that plaintiff could not recover because. as the result of regulations validly issued
b:·: the United States. he had not suffered any monetary damages.
''' Cf.
n.:.
CLii\lTON LISR..I\RY PHOTOCOPY
- 1I -
�\ iew uf the ndings ol the Suprerne Clllll1 that legislatron concerning the govemance of a nonstate area is necessarily subject to Congressronal amendment and repeal: that govemmental
bodies are not persons within the meaning of the Due Process Clause: that governmental
powers cannot be comracted away. and especially the exposition in the recem Bowen case.
that the property rights protected by the Due Process Clause are those arising from private
Ia\\· or commercial contracts and not those arising from governmental relations. 11
_)
Sections 103 and 202 therefore do not create vested property rights protected by the
Due Process Cl~~se of the Fifth Amendment. 12 Congress thus retains the power to amend
the Guam Commonwealth Act unilaterally or to provide that its legislation shall apply to
Guam without· the consent of the government of the Commonwealth. The inclusion of such
provisions, therefore, in the Commonwealth Act would be misleading. Honesty and fair
dealing forbid the inclusion of such illusory aild deceptive provisions in the Guam
Commonwealth Act. 13
Finally, the Department of Justice has indicated that it would honor past commitments
with respect to the mutual consent issue, such as Section 105 of the Covenant with the
Northern Mariana Islands, in spite of its reevaluation of this problem. Ute .question whether
the 1989 Task force proposal to amend Section 103 of the Guam Commonwealth Act so as to
limit the mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such
prior commitment appears to have been rendered moot by the rejection of that proposal by
the Guam Commission.
' It is significant that the circumstances in which Congress can effectively ag~ not to repeal or amend
legislation were discussed in the context of commercial contractS. Bowen, 477 U.S. at 52.
1
:: Bowen. it is true. dealt with legislation that expressly reserved the right of Congress to amend. while the
proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the
consent of the Government of Guam. The underlying agreements. however. are not of a private contractual
na(l!ie. and. hence. are not property within the meaning of the Due Process Clause. We cannot perceive how
they can be converted into "property" by the addition of a provision that Congress foregoes the right of
amendment.
1
~ The conclusion that Section 202 of the Guani Commonwealth Act (inapplicability of future federal
legislation to Guam without the consent of Guam) would not bind a future Congress obviates the need to
examine the constitutionality of Section 202. In Currin v. Wallace, 306 U.S. I. 15-16 (1939), and United
States v. Rock Royal Co-op. 307 U.S. 533. 577-78 (1939), the Court upheld legislation that made the
effectiveness of regulations dependent on the approval of tobacco farmers or milk producers affected by them.
The Court held that this approval was a legitimate condition for making the legislation appli~ble. Similarly, it
could be argued that the approval of federal legislation by the Government of Guam is a legitimate condition for
making that legislation applicable to Guam. Since, as stated above, a future Congress would not be bound by
Section 202. we need not decide the question whether the requirement of approval by the Government of Guam
for ~ future federal statute and regulation is excessive and inconsistent with the federal sovereignty over
Guam.
CLII~TON
LIBR/\RY PHOTOCOPY
- 12 -
�CL.Ii~TON
LIBRARY PHOTOCOPY
August 26, 1994
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION. IN rHE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to review.the July 28, 1994
.I
memorandum irFftialed by Deputy Assistant Attorney General
Roseborough'and addressed to the Special Representative for Guam
Commonwealth· (hereinafter the "Memorandum").
That Memorandum
purports to reverse a thirty-year Justice Department policy
supporting the constitutionality and enforceability of mutual
consent clauses in legislation providing for internal selfgovernment in the territories. 1
.
According to the Memorandum,
.
mutual consent clauses are unenforceable because (1) rulings of
the Supreme Court require that the "governance of a non-state
The Department of Jus~ice expressly-has approved and
gone on record supporting Congressional pass~ge of mutual consent
clauses in at least two U.S. statutes implementing political
status agreements with one U.S. territory, and the Freely
Assticiated States, and apparently continues to support the
constitutionality and enforceability of these provisions.
Memorandum at 12 ("Finally, the Department has indicated that it
would honor past commitments with respect to the mutual consent
issue"). But an Act of Congress either is constitutional and
enforceable or it is not.
If the Department of Justice means
what it has stated in the Memorandum, this will have profound
legal and political implications with respect to the state of law
. and governmental relations for the insular jurisdic~ions to which
the existing fEkleral mutual consent statutes apply,.as well as.·
one new insular jurisdiction for which yet another mutual consent
law is to take·effect within a matter of weeks.
Appendix A is a
description of the legal and political nature of the existing
mut~al consent precedents and some of the possible effects if the
Department of Justice does not reconsider the views recommended
in the Memorandum of July 28.
�area is necessarily subject to Congressional amendment and
repeal"; (2) "governmental bodies are not persons within the
meaning of the Due Process Clause"; and (3) "governmental powers
cannot be contracted away" relying on the recent decision in
Bowen v. Public Agencies Opposed to Social Sec. 477 U.S. 41
(1986) (popularly referrect·to as the
~POSSE"
decision) supposedly
.I
--..!
because the tourt held.
by the Due
Proce~s
th~t
the only "property rights protected
Clause are those arising from private law·or
commercial contracts and not those.arising from government
relations".
Memorandum at 12 .
.The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guam Commonwealth legislation can be justified
:; ..... .
relying on the POSSE decision or any other decision discussed in
·:, ···:
the Memorandum. 2
in~ccurate.
·
The Memor·andum is misleading and disturbingly
~·
It quotes parts of judicial
decision~
out of
context, relies on decisions which have nothing whatsoever to do
with whether Congress has the power.to bind itself when entering
into a political status arrangement with a territory,
misstates
holdings in cases cited, mistakes dicta for holdings in others
2
Interestingly while the Memorandum asserts that its
position must change as a~result of POSSE, the ·next most recenl·
decision relied upon is United States Trust Co. v. New Jersey,·
431 U.S. 1, decided in 1977. Virtually all of the other key
cases were decided in the.l9th Century and early 20th C~ntury,
none of which would justify the change. ·If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
. justification exists for the changed position.
-2CUI'JTON U8R./\RY PHOTOCOPY .
�and_relies upon a web of circular reasoning which quite simply
does not justify the
changed position.
Depart~ent's
Perhaps of most concern is that the MemorandUm reaches an
absolute conclusion concerning Congress' authority to enter into
a binding mutual consent arrangement with a territory, even
though this question has never been put directly before the
Supreme Court-Jor any other court.
This is all the more
disturbing .Decause the_ only court which has ever even approached
the question apparently assumed that Congress could indeed bind
itself, notwithstanding its
Clause.
See,
~'
u.s.
plenary power under the Territorial
Ex Rel. Richards v. De Leon Guerrero, 4
F.3d 749, 754 (9th Cir. 1993).
i'n the Memorandum. 3
This case is not even mentioned
More importantly, both the Supreme Court
and D.C. Circuit Court of Appeals have indicated in dicta that
Congress can limit the ability of future Congresses to change
t•
.... · ..
laws which grant vested rights if Congress expresses its
intention in "unmistakable terms".
See,~
52; Merrion v. Jicarilla Apache Tribe,. 455
3
U.-.~.
POSSE~
477
u.s.
at
130, 148 {.1982);
Our standards for legal advoca9y properly allow
attorneys to present the facts and law in the light most
favorable to the proposition being espoused. Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the arguments put forward
are accurate and .fairly reflect existing law, even i f asserting a
nonfrivolous proposition that the law should change. In our view
the Memorandum was not prepared in· a manner c9nsistent standards
of advocacy required in.l>roposlng such an important change irl
policy, and it should not have been presented for approval by
departmental management·as an official position without further·
deliberation between all concerned, agencies and even comment by
the insular areas affected~
-3CUI\)TON UBRl\RY PHOTOCOPY
�Transohio Savings Bank v. Director, Office of Thrift Supervision,
967 F.2d 598, 621 (D.C. Cir. 1992) ("Transohio").
Incredibly,_
this "unmistakable. terms" do9trine (which served as the basis for
the holding in
~OSSE)
is also not
address~d.
A section-by-section analysis of the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
.I
-_.I
prece~ent
exists for the proposed change in policy.
the contents of this analysis:
To summarize
(1) none of the cases cited for
the proposition that Congress must retain the right to alter,
amend or repeal territorial legislation dealt with the question
pl~ced
before the Department by the mutual consent proposal; (2)
··,_:the issue of the. Commonwealth 6£ Guam not being a person for
purposes of the Due Process Clause is a red herring because the
proposal being discussed by Guam and the Administration
;
contemplates an agreement between the Congress and the people of
..
Guam based in part on the Commonwealth Of The Northern Mariana
Islands and Freely Associated States political status precedents;
and (3) the holding in the POSSE decision prb~ides utterly no
suppqrt for the proposition set forth in the Memorandum.
Perhaps no part of the Memorandum is as disturbing as is the
analysis of the Supreme Court's decision in POSSE which is _put
forward as requiring the Department's change of its thirty-year
position on the constitutionality aqd. enforceability of mutual
consent clauses.
T.he Memorandum cfai~s the change is required
because the Supreme Court held in PbSSE "that the (only]
contractual property rights protected by .the Due Process Clause
,,
'
-4CLII~TON UBR.h.~Y PHOTOCOPY
�August 26, 1994
COMMENTS ON DOJ MEMORANDUM REGARDING MUTUAL CONSENT
PROVISION IN THE GUAM COMMONWEALTH LEGISLATION
We have had an opportunity to review the July 28, 1994
.
.
memorandum initialed by Deputy Assistant Attorney General
Roseborough. and addressed to the
~pecial
Representative for Guam
Commonwealth· (hereinafter the "Memorandum").
That Memorandum
purports to reverse a thirty-year Justice Department policy
supporting the constitutionality and enforceability of mutual
consent clauses in legislation providing for ·internal selfgovernment in the territories. 1
According to the Memorandum,
mutual consent clauses are unenforceable because (1) rulings of
.
.
.
the Supreme Court require that the "governance of a non-state
The Department of Justice expressly has approved and
gone on record supporting Congressional passage of mutual consent
clauses in at least two U.S. statutes implementing political
status agreements with one u.s. territory, and the Freely
Assticiat~d States, and apparently continues to support the
constitutionality and enforceability of these provisions.
Memorandum at .12 ("Finally, the Department has indicated that it
would honor past commitments with respect to the mutual consent
issue"). But an Act of Congress either is constitutional and
enforceable or it is not.
If the Department of Justice means
what it has stated in the Memorandum., this will have profound
legal and political implications with respect to the state of law
'. and governmental relations for' the insular jurisdic:t;.ions to which
the existing f4deral mutual consent statutes apply,.as well as.
one new insular jurisdiction for which yet another mutual consent
law is to take·effect within a matter of weeks.
Appendix A is a
description of the legal and ~olitical nature of the existing
mut~al consent precedents and some of the possible effects if the
Department of Justice does not reconsider the views recommended
in the Memorandum of July 28.
CLINTON LIBRARY PHOTOCOPY
�area is necessarily subject to Congressional amendment and
repeal"; (2) "governmental bodies are not persons within the
meaning of the Due Process Clause";_and (3) "governmental powers
cannot be contracted away" relying on the recent decision in
Bowen v. Public Agencies Opposed to Social Sec. 477
u.s.
41
(1986) (popularly referred to as the "POSSE" decision) supposedly
--.i
because the tourt held. th~t the only "property rights protected
by the Due Process Clause are those arising from private law·or
commercial contracts and not those' arising from government
relations".
Memorandum at 12.
The POSSE Decision Does Not Bar A Mutual Consent Clause - If
Congress Has Stated Its Intention in Unmistakable Terms.
Not one of the reasons given for rejecting a mutual consent
clause in the Guam Commonwealth legislation can be justified
relying on the POSSE decision or any other decision discussed in
the Memorandum. 2
inaccurate.
The Memorandum is misleading and disturbingly
It quotes parts of judicial decision~ out of
context, relies on decisions which have noth{ng whatsoever to do
with whether Congress has the power to bind itself when entering
into a political status arrangement with a territory,
holdings in cases cited, mistakes dicta for
2
ho~dings
misstates
in others
Interestingly while the Memorandum asserts that its
position must change as a~result of POSSE, the next most recent
decision relied upon is United States Trust Co. v. New Jersey,·
431 u.s. 1, decided in 1977. Virtually all of the other key
cases were decided in the' 19th Century and early 20th-~entury,
none of which would justify the. change. ·If the POSSE decision
has been wrongly interpreted in the Memorandum, then no
justification exists for the changed position.
-2CLINTON USR/\R\' PHOTOCOPY
�and relies upon a web of circular reasoning which quite simply
does not justify the Department's changed positioni
/
Perhaps of most concern is that the Memorandum reaches an
absolute conclusion concerning Congress' authority to enter into
a binding mutual consent arrangement with a territory, even
though this question has never been put directly before the
Supreme Court·..!or any other court.
This is all the more.
disturbing because the only court which has ever even approached
the question apparently assumed that Congress could indeed ·bind
itself, notwithstanding its
Clause.
See,~,
plenary power under the Territorial
U.S. Ex Rel. Richards·v. De Leon Guerrero, 4
F.3d 749, 754 (9th Cir. 1993).
i'n the Memorandum. 3
This case is not even mentioned
More importantly, both the Supreme Court_
and D.C. Circuit Court of App:als have indicated in dicta that
Congress can limit the ability of future Congresses to change
laws which grant vested rights if Congress expresses its.
intention in "unmistakable terms".
See, ~
POSSE, 477 U.S. at
I
52; Merrion v. Jicarilla Apache Tribe,· 455
3
u~,s·.
130, 148 (.1982);
Our standards for legal advocacy properly allow
attorneys to present the facts and law in the light most
favorable to the proposition being espoused. Generally accepted
ethical standards, however, obligate an attorney to undertake a
reasonable inquiry and to ensure that the arguments put forward
are accurate and fairly reflect existing law, even if asserting a
nonfrivolous proposition that the law.should change. In our view
the Memorandum was not prepared in a manner c9nsistent standards
of advocacy required in.l>roposing such an important change ir/.
policy, and it should not have beeri presented for approval by
departmental management·as an official position without further
deliberation between all concerned agencies and even comment by
the ins~lar areas affected.
-3-
CLINTON UBHAR\' PHOTOCOPY
�Transohio Savings Bank v. Director, Office of Thrift Supervision,
967 F.2d 598, 621 (D.C. Cir. 1992) ("Transohio").
Incredibly,
this "unmistakable. terms" doctrine (which served as the basis for
the holding in POSSE) is also not addressed.
A section-by-section analysis of the Memorandum is attached
as Appendix B.
This analysis demonstrates that no certain
.I
-.I
precedent exists for the proposed change in policy.
the contents of this analysis:
To summarize
(1) none of the cases cited for
the proposition that Congress must retain the right to alter,
amend or repeal territorial legislation dealt with the question
placed before the Department by the mutual consent proposal; (2)
· · the issue of the Commonwealth of Guam not .being a person for
purposes of the Due Process Clause is a red herring because the
proposal being discussed by Guam and the Administration
contemplates an agreement between the Congress and the people of
Guam based in part on the Commonwealth Of The Northern Mariana
. '
Islarids and Freely Associated States political status precedents;
and (3) the holding in the POSSE decision proVides utterly no
support for the proposition set forth in the Memorandum.
Perhaps no part of the Memorandum is as disturbing as is the
analysis of the Supreme Court's decision in POSSE which is put
forward as requiring the Department's change of its thirty-year
position on the constitutionality and enforceability of mutual
consent clauses.
T.he Memorandum ctaims the change is required
because the Supreme Court held in PbSSE "that the (only]
contractual property rights protected by the Due Process Clause
-4CLINTON LIBRARY PHOTOCOPY
�of the Fifth Amendment are the traditional private .contractual
rights, such as those arising from bonds or insurance contracts,
but not arrangements_that are part of a regulatory program .... "
Memorandum at 11.
The POSSE decision, however,
did not turn on the subject
matter of the contract in question, and the Court's reference to
I
.. ~ ..!
the bond and .·insurance cases had no direct bearing on the Court's
holding.
Tho.se cases were cited in POSSE for. the limited
purpose of contrasting contracts where Congress clearly evidenced
its intent to bind itself from the facts in the POSSE case where
"Congress expressly reserved to itself '[t]he right to alter,
amend, or repeal any provision of' the Act which authorized the
contracts at issue.
477
u.s.
at 42.
The Court relied upon this
contrast because its holding in POSSE was that the Congress could
amend the legislation in question, even if'that amendment
interfered with contractual.rights,
because it had not
unmistakably indicated its intent to bind itself -- the standard
the Court has established for determining whe.ther Congress has
imposed limits on the exercise of its
The actual holding in POSSE
sover~ign
powers.
--that Congress had not
surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the D.C. Court of Appeals irt
Transohio.
The Transohio decision demonstrates conclusively that
the Memorandum's analysis of
the.~holding
·in POSSE is. so
fundamentally wrong that one wonders how it could be relied upon
by the
nation~s
Department of Justice to justify a proposed
-5-.
CUi'lTON LIBRARY PHOTOCOPY
�reversal in such an important area of Administration policy.
that decision,
th~
In
D.C. Circuit makes clear that "[t]he Supreme
Court reached [its]. conclusion by analyzing .the governing
statute, the Social Security Act" and focused on the fact
critical to its decision-- "[t]he Social Security Act contained
an express reservation of Congress' power to amend the law ... ",
__ )
967 F.2d at
6~1,
not by establishing the per se "private rights"
test asserted iri the Memorandum.
According to the D.C. Circuit
The "principles forrn[ing] the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were those comprising
the unmistakability doctrine--the doctrine
that "'sovereign power, even when
unexercised, is an enduring presence that
governs all contracts subject to the
sovereign's jurisdictibn, and will remain
intact unless surrendered in unmistakable
terms.
Id. at 622 (emphasis added).
The D.C. Circuit also discussed the history ~.of the
unrnistakability doctrine.
"The 'unrnistakability' doctrine is a special
rule of contract interpretation that applies
to contracts with the government. The
doctrine dates back to the early 19th ..
century, when Chief Justice Marshall provided
its justification. The government,· Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of i t~s sovereign
powers.
Id. at ·618.
Both the POSSE and Transohio cases dealt with the
-6-
CLINTON LIBRARY PHOTOCOPY
�application of the "unmistakable terms" test to a detennination
of whether Congress has limited its right to exercise its
regulatory jurisdiction.
with a standard based
bn
T.his test has nothing whatsoever to do
"traditional private contractual rights"
which the Memorandum would have us believe is the standard.
If
it were the-t'est, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by adopting the test advocated in the Memorandum with
a simple finding that alleged contractual rights associated with
the regulatory programs at issue in the cases are not traditional
private contractual rights.
They did not, of course, because the
Supreme Court applies the "unmistakable terms" test which
requires an analysis of Congress' intent, not the per se standard
proposed in the Memorandum.
See,
~'
477 U.S. at 54.
We find it inconceivable that the Department would decide to
reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Conqress
can limit the exercise of its regulatory authority if it makes
clear its intent to do so.
4
~
Instead of dealing accurately with
The import of the POSSE decision has been recognized
even by its critics.
An article in the Columbia Law Review by
David Toscano entitled "Forbearance Agreements: Invalid Contracts
for the Surrender of Sovereignty" analyzed the POSSE decision in
great detail. It concluded that "(t]he p9wer to waive
.
sovefeignty was recognized" in POSSE. 92. Col. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Cburt relied ~ntirely on Merrion v.
· Jicar.illa Apache Tribe for the proposition that the federal
government can surrender sovereign power. Jicarilla in turn
relied upon cases involving primarily the taxation powers of
state governments ... Instead of endorsing the rule applying to
CLINTON UBR/~RY PHOTOCOPY
�the Court;s actual analysis, the Memorandum at page 11 relies
upon a quote, claimed to set forth the holding, which is taken
co·mpletely out of context and has nothing whatsoever to do with
the holding.
The quote, taken from 477
u.s.
55, fails to include the
entirety of the paragraph, the remaining text from which puts
'
back into context the relationship of the bond and insurance
cases to the basis of the decision.
The following quote picks
up the rest of this language beginning with the last sentence of
the quote from page 11 of the Memorandum.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress having stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
Rather, the provision simply was part of a
regulatory progra:mover which Congress
retained authority to amend in the exercise
of its power to provide for the general·.
welfare. Under these circumstances, we
conclude that the termination prov~sion ...
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' reserved power on agreements
entered into under a statute containing the
language of reservation.
477 U.S. at 55 (emphasis added).
the police powe~s -- such powers cannot be surrender~d ~- it
adopted the rule applying to taxation powers ~- such·powers can
only be. surrendered if done so unmistakably. This rn<;>Ve should
not be followed'automatically: if the Court wants to enforce
contracts that surrender the federal government's regulatory
authority, it should do so on the basis of policy arguments, not
on the ba.sis of POSSE." Id. at 460.
-8CUI\!TON USRI\RY PHOTOCOPY
�Congress Can Utilize Its Plenary Authority to Limit Its Future
Power -- The Greater Includes the Lesser.
'·
In part, the Memorandum goes astray in its interpretation of
Congress' plenary authority over the territories.
the Memorandum,
According to
Congress' plenary authority is infinite.in.time
or at least until one of three things happen: (1) Guam becomes a
State; (2) Guam achieves independence; or (3) the United States
transfers its sovereignty over Guam to another country.
Memorandum at 4.
Thus, the Memorandum seems to suggest that Congress is
estopped from exercising its authority with respect to Guam if
that exercise of authority results in some form of meaningful
consent to the form of government under which the Guamanian
people live.
But Congress is .not the prisoner of its plenary
authority over the territories -- it is the master.
The fact
that Congress has plenary authority does not mean that Congress
cannot exercise this authority to limit its rights in the future
in the context of a political status change ... Plenary authority .
means that Congress can take whatever action it decides is in the
best interest of the U.S. and the territories, including a
decision
th~t
it can limit its own exercise of future authority,
if its intentions are stated in unmistakable terms.
To assert
otherwise stands the meaning of plenary on its head.
Plenary
means .full power.
..
.
~
It does not mean full power, except when
.
~
Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
-9CLINTON LIBRAR\'PHOTOCOPY
�regulations.
The broad power of Congress under the territorial
clause is grounded in the need for the federal government to be
able to govern. and/or dispose of territory which is not part of a
state.
In this context, it is clear that
i~
Congress has the
power to dispose of a territory in its entirety, it also has the
power to dispose of some of its control by .exercising its power
'
to make all n'eedful rules and regulations.
It is an elementary
principle of. statutory interpretation that the "greater includes·
the less".
See, Late Corp. of
the Church of Jesus Christ of
Later-Day Saints v. Romney, 136 U.S. 1, 45 (1889).
The issue of Congress being able to restrict its authority
over territory of the United States has been long decided.
While
at first blush it may seem counter-intuitive, Congressional
authority over the people of the territories and their political
rights emanates from Congress' authority
over Guam as property
brought within Congress' control by the Territori~l Clause.
In
-·
Edward v. Carter, the Court clarified Congress' power. under the
property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. 2 embraces any
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 10£1 n. 18 (1978) (citations omitted) (emphasis
added).
Further definition was provided in U.S. v. Gratiot, 39
u.s.
526 (1840) where the Court considered Congress' power to impact a
lease of federal lands through legislation.
-10CLINTON LIBRARY PHOTOCOPY'
The Court's approach
�to the question is quite interesting and seems to analogize the
power over land with the power
ove~
territorial governments.
First, it finds that the mines in question lie within
territory of the United States are, therefore, its property.
Second, it recites the Territorial Clause and concludes that
the term .territory refers is a descriptive word referring to one
kind of property.
Third, the.Court concludes that "Congress has the same power
over [the mine) as over any other property belonging to the
United States; and this power is vested in Congress without
limitation; and has been considered the foundation upon which the
territorial governments rest". Id. at 537.
Fourth, the Court then references cases involving Congress'
authority over the territories, including Florida, including the
right of Congress "to make all
ne~dful
rules and regulations
respecting the territory or property of the United States". Id.
at 538.
Finally, the Court concludes "[i]f such 'are the powers of
Congress over the lands belonging to the
Un~ted States~
the words
'dispose of,' cannot receive the constructi6n contended for at
the bar; that they vest in Congress the power only to sell, and
not to lease such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater intludes the lesser.
'The C~urt reached its.
decision building on COngress'. authority over the
territorf~s.
If Congress has the power to dispose of terri torl.es or to .make
-11-
CUNTON LIBRARY PHOTOCOPY
�all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its· authority over
territory by leasing it.
The Result of .the Department's Opinion is to Leaves the People of
Guam with a Hobson's Choice -- Remain in a Perpetual State of
Colonialism.or Seek Independence.
The result of this reversal in position would have
extraordinarily serious policyimplications for United States
security interests in Guam and the Pacific-Region, not to mention
the United States' moral leadership on the issue of granting
democracy to non-self-governing people around the world.
The
.
. .
Memorandum begins by defining Guam as a "non-state area, a catchy
pseudonym for what Guam really is -- a territory, and U.S.
citizen population, which the U.N. officially classifies as not
yet having been decolonized, and which has no realistic prospect
of achieving statehood -- the traditional
pat..~
territories ceased being colonies and became
by which U.S.
self~governing
in
our constitutional system.
Fortunately, the Territorial Clause gives Congress the
constitutional power to address this problem.
·In theinsular
Cases the Supreme Court recognized that Congress must have
flexibility to adapt federal law and policy for island
territories which remain "unincorporated
II
for an extend-ed period
of time, and which remain subject·to federal power without being
integrated into the system- of constitutional federalism --12CLI!~TON UBRARY PHOTOCOPY
�leaving the U.S. citizens concerned without equal legal and
political rights when compared to citizens resident in the
states.
The moral imperative of ending Guam's neo-colonial
status is fundamental to the Administration's decision to pursue
a mutual
cons~nt
provision.
Mutual consent brings to the people
of Guam democracy by giving them a direct role in their own
internal self-government which would not otherwise be
available. 5
By rejecting absolutely any possibility that the
Supreme Court may uphold a mutual consent clause in a political
status arrangement, the Department of Justice is putting this
Administration in the untenable position of saying to the U.S.
citizens of Guam that they cannot have meaningful self-government
within the framework of the U.S. Constitution.
We do not think
this is a position which this Administration ougb.t to be taking,
especially when the Supreme Court has not spoken directly to the
5
The American-citizen residents of·Guam do not have the
same rights to participate in the representative democracy
enjoyed by the citizens of the •everal States. Without voting
representation in Congress or a vote in national elections, there
.is no means by which they meaningfully can consent to the laws
and form of government under which they live. This colonial
status was awkward even in its· first fifty year~, but has become
intolerable since the U.N. Charter was adopted and t}J.e era of
decolonization began. Guam is. not seeking decolonization outside
the U.S. system, and it would b~·perverse to suggest·that
decolonization is not availablw to u.s. citizens within the u.s.
political system~ · Thus, the. question facing the Administrati·on
is whether a nation founded on the principle of consent of the
governed can adapt its law and policy to end denial of this basic
right and establish an appropriate alternative means of consent
for loyal citizens in the territories.
-13CLINTON UBR.t.\R\' PHOTOCOPY
�#
question and the most that can be said about the precedent is
that arguments exist on both sides of the question.
The effect of the Department's changed position is to leave
.the people in a perpetual state of colonialism or force them into
independence.
The Clinton Administration has been the first to
state with candor and honesty on the record what all those who
have dealt with Guam have known for years -- Statehood is not an
option for Guam.
It is simply too small and remote.
Similarly,
given Guam's strategic importarice to the United States, it is
inconceivable that sovereignty would be voluntarily transferred
to another sovereign power, nor do we believe that the people of
Guam would accept it.
The
clear implication of the Department's
position, therefore, is that the American citizen
residents of
Guam, if they desire to possess a truly democratic government,
will have no choice but to seek independence from the United·
States.
The notion that independence is the only political status
-outcome through which the injustice of· Guam's colonial past can
be remedied is not only counter to the robu.st common sense with
which Americans have implemented their Constitution, it is a
dangerous, fatalistic and cold-hearted idea that will have a
chilling effect on the· spirits of the Guamanian people.
Leaving independence as the only alternative also raises
seriods national security policy questions~
Policy coordination
for Guam Commonwealth negotiations is exerc'ised by th'e National
Sec4rity Council because Guam is an important military and
-14CLII~TON
USRAR\' PHOTOCOPY
�strategic location for the United States.
(
A decision has been
made by the White House that an agreement should be reached with
the people of Guam which achieves two fundamental goals.
First,
the people of Guam should be permitted to achieve meaningful
internal self-government free from unnecessary interference.
Second, United States long-term security interests must be
'
O~fering
protected.
the people of
Gu~m
the opportunity to
achieve meaningful participation in a _democracy only by forcing
them to seek independence is inconsistent ·with the second of
these goals.
We do not believe that this Hobson's Choice ought
to be forced upon the United States or people of Guam based on
conclusions of anyone other than the Supreme Court.
This is a policy issue which is best left to the courts, if
a challenge ever arises.
In this regard, the Department's
concern that no one should be misled concerning the certain
viability of a mutual consent provision is consistent with our
position.
We have consistently taken the positioi in. the
negotiations that no one can be sure how the issue will be
decided.
The best we can do is to meet the. requirements the
Supreme Court has set out as being necessary for Congress to bind
itself {a statement in "unmistakable terms") and state
forthrightly in the political education process that we cannot be
sure of the outcome until the Supreme Court has acted.
It is
wel.i established, however·, that when the~ intent of Congress with
.respect to the precise question at issue·is clear, the courts
must give it effect.
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
-15CLINTON LIBRARY PHOTOCOPY
�837, 842-43 (1984).
It is equally clear that the courts give
great deference to Congress when it is exercising its Territorial
Clause authority.
~'
Wabol v. Villacrusis, 958 F.2d at 460,
citing Torres v. Puerto Rico, 442 U.S.465, 460-70.
In fact, we
know of no decision of the Supreme Court reversing any action by
the Congress taken with regard to the governance of a territory
when the
Cong~ess
has acted pursuant to its Territorial Clause
authority~
Attachments
;· '.:.
: ....
~
.
pv
CLINTON LIBRARY PHOTOCO ·
-16-
�CLINTON UBR'\R\' PHOTOCOPY
APPENDIX A
u.s .. Practice
With Respect to Mutual Consent Arrangements for
Insular Areas Not Incorporated into the U.S. Constitutional
Process for Democratic Self-Government But In Which the U.S.
Retains and Exercises Sovereignty and/or Significant Powers of
Government: ·
BACKGROUND:.
Under a succession of treaties with other nations and
international organizations including the U.N., in this century
the U.S. has acquiredand exercised actual sovereignty and/or the
full powers and jurisdiction of goverrunept over insular areas
(islands) 'which have not. been incorporated as ter.ritories or
states to which the U.S. Constitution applies in full. Thus,
these areas are not fully self~governing and have no power to
give consent to U.S. laws made applicable to t~em.
As each of these territories has moved toward greater selfgovernment the u.s. has agreed to various political, legal and
budgetary measures which accommodate U.S. interests in retaining
certain powers of government, .while at the same time redeeming in
some greater degree the principle that free people must be
enabled to give some meaningful form of consent to the laws and
form of government under which they live.
In the case of u.s. territories over which the u.s. exercises
full sovereignty, but which have not been incorporated fully into
the system of federalism, measures aimed at enhanced selfgovernment have at tempted to address the fact that the U.S .·
citizens concerned do not have· voting representation in Congress,
enfranchisement in national elections or general legal or
political equality with their fellow citizens in the states.
For example, in the case of the Commonwealth of the Northern
Mariana· Islands ( CNMI.), as discussed below,· the Executive Branch
of the federal government and Congress entered a "Covenant," or
agreement with the people of the territory, under which the u.s.
exercises sovereignty, but which defines a political relationship
the central elements of which are not subject to modification
without mutual consent of t-9e people of the territory and the
federal government.
·
I
This mutual consent arrangement constitutes a substitute set of
political rights intended to give the people of the CNMI a
greater measure of democratic self-government by granting them a
political power of consent to federal law not granted to U.S.
citizens in the states, who instead are able to give their
consent to federal law through representation in Congress and
voting in national elections. This type of mutual consent
�CLINTON LIBRARY PHOTOCOPY
arrangement has been promulgated by Congress pursuant to ·the
Territorial Clause of.the Constitution (Article IV, Section 3,
Clause 2), which empowers Congress to provide for areas not yet
fully within the constitutional system but subject to u.s.
federal law and sovereign powers.
For insular areas over which the.U.S .. exercised powers of
government but not sovereignty under agreements with the U.N.,
the federal government promulgated mutual consent provisions
through a combined statutory-and treaty-making process.
Under
these arrangements the u.s. retains plenary authority over broad
areas of government power in the concerned insular areas, i.e.,
full defens·e authority, while the separate citizenship,
·sovereignty and national independence of those insular areas have
been recognized.. This .arrangement is known as "free
association."
The compact agreements establishing the free association
relationships between the U.S. and certain insular areas have
been approved by the U.S. Congress in the form,of joint
resolutions. passed by both houses and signed by the President.
Like the CNMI covenant and the proposed Guam Commonwealth Act,
the u.s. federal statute approving the free association compact
was intended to create a unique and mutually agreed political
status for insular areas not incorporated intb the U.S.i but with
special close political, legal-and security ties to this nation.
The fact that Guam and the CNMI are unincorporated territories,
while the freely associated states under the compacts are
sovereign, does·not change the legal or constitutional analysis.
These acts of Congress which bind the federal government and
limit the exercise of constitutional powers either are
constitutional and enforceable or they are n~t.
There is no valid constitutional distinction between the mutualconsent provisions in the free association compact and the CNMI
covenant or proposed Guam Commonwealth Act simply because the
power of Congress which is being limited involves foreign policy
and national defense powers arising from Article I or Arti.cle II
of the Constitution, or if the subject matter gives rise to
Article IV territorial powers.
The general concept that Congress can alter, amend or repeal the
laws of purely domestic application has its parallel with respect
to laws and treaties which create obligations between the u.s~
and other.nations.
Spec~fically, an element of sovereignty ip
the power to abrogate treaties, and in the u.s. constitutional
system the President and Congress !lave the power to make. trea~ies
and terminate treaties. ·Goldwater v. Carter, 617 F.2d 697 (D.C ..
Cir. 1979).
As discussed below, in addition to formal
renunciation of a treaty by the ~resident, Congress can terminate
or preve·nt performance of treaties requiring appropriations
simply decline to appropriate funding to m~et international
obligations.
This has the effect of supers~ding the prior act
�of the Congress ratifying the treaty.
Thus, the question before us is whether Congress can ·limit its
power to amend, alter or repeal a prior act so that commitments
intended to be binding are set aside, and that question is
relevant to any act of Congress which purports to make such
binding commitments, including the statute making the free
association compacts U.S. law.
we·believe the test under POSSE for answering that question turns
on whether Congress makes its intent to do so unmistakably clear.
If the position set forth in DOJ Memorandum stands and the
Department of Justice reverses·prior legal policy by adopting the
view that binding commitments such as the mutual consent
provisions in the CNMI covenant, the free association compacts
and the proposed Guam Conunonwealth Act are unenforceable and
unconstitutional, then the effect of that could reach far beyond
the Guam mutual consent proposal.
For example, the mutual consent provisions relating to the
political and legal relationships created by the free association
compacts are linked to unprecedented multi-year funding
authorizations· that bind successive Congresses to enact
appropriate laws providing funding for specified grants to the
governments of the free associated insular areas.
These
provisions are enforceable in the federal courts, and give the
free associated state governments concerned access to domestic
u~s. legal remedies that foreign governments do not nave under
conventional U.S. laws and treaties.
.:. .
··~
:.: ,'
To illustr~te t~e point, as a general rule i f Congress refuses to
fund U.S. performance of a treaty, it is extremely unlikely that
without an explicit statutory basis for jurisdic~~on the federal
courts would be inclined to reach beyond the political question
doctrine and interfere in the foreign policy domain of the
political branches by entertaining an action·by a foreign
government seeking a court order to compel .payment of funding for
u.s. obligations under a treaty abrogated by the President or
Congress. Yet, under the free association compacts, that is
exactly what Congress has explicitly authorized and directed the
federal courts to do. See, Section 236, P.L. 99-239, discussed
below.
Similarly, in Section 101(d)(2)(B) of P.C .. 99-239, the statute
approving the compacts, Congress required that amendments to the
compact and certain related agreeme~ts made pursuant to the
~ applicable,mutual consen~ provisions would require congressional
approval. ~hus, Congress by statute.explicitly agreed to the.
·.mutual consent provisions in the agreements identified in Section
101(d)(2)(B) and establi~hed a role for Congress in the ·procedure
for u.s. consent to an amendment.
Thus., just as the mutual consent provJ.sJ.ons of the CNMI agreement
limit the exercise of Article IV territorial clause powers by
CLINTON LIBR~RY PHOTOCOPY
�..
Congress, the mutual consent and related funding provisions of
the- free association compacts limit the exercise of Article I and
Article II foreign policy and defense powers by the President and
Congress. These unprecedenied arrangements are intended to
enable the u.s. to sustain i.ts authority over areas in which it
has significant national interests, but in which the people do
not enjoy the full r~ghts and benefits of incorporation into the
u.s. federal political and legal system.
To understand the gravity of the problems that will be created if
the Department of Justice persists in what we believe is a
misinterpretation of the POSSE decision, it is important to
examine the existing mutual corisent precedents·very closely.
EXISTING MUTUAL CONSENT PRECEDENTS:
The first of the existing mutual consent precedents is found at
Section 105 in the Covenant to Establish the Commonwealth of the
Northern Mariana Islands, u.s. Public Law 94-241, 90 Stat. 263
(1976), reprinted at 48 u~s.c. 1681, note.
The additional
important insular area mutual consent precedents are given the
force and effect of U.S. law pursuant to the agreements referred
to in Section 101(d)(2)(B) of the U.S. statute approving the
Compact of Free Association between the U.S., the Republic of the
Marshall Islands ·(RMI) and the Federated States of Micronesia
(FSM), U.S. Public Law 99-239, 99 Stat. 1770, 48 U.S.C. 1681,
note. The CNMI, FSM and RMI mutual consent provisions became
effective under Presidential Proclamation No. 5564 of October 3,
1986, Federal Register Vol. 51, Number 216, November 7, 1986.
As already stated, the RMI and FSM compacts also bind successive
Congresses through a pledge of the full faith and. credit of the
U.S. for economic assistance grants which are central elements of
the political relationship defined in the compact as an agreement
between the u.s. and the peoples of the RMI and FSM exercising
their sovereignty by approving the agreement in a plebiscite.
See, Preamble and Section 236, Compact of Free Association, P.L.
99-239.
These multi-year funding obligations are not "subject to
appropriation by Congress," the typical treaty formulation, but
are enforceable in the u.s. courts, which are expressly granted
jurisdiction to enforce the payment obligations in the compact ..
Thus, Congress has restricted its ability to alter, amend or
repeal those statutory obligationi of its own making.
THE CASE OF PALAU:
A fourth mutual consent precedent is scheduled to enter into
force on October 1, 1994 under the terms of a Compact of Free·
Association between the u.s. and Palau.
CLINTON LIBR~R.\' PHOTOCOPY .
�The Palau compact implementation agreement is terminable
unilaterally by Palau or the u.s., but once the Compact enters
into force, under Section 453(a) of u.s. Public Law 99-658, ·100
Stat. 3700, 48 u.s.c. 1681, note, the Palau compact mutual
·
consent provision and all the related rights and obligations
under the agreement will be binding upon both Palau and the
United States.
If the DOJ Memorandum of July 28 is applied to
the Palauan compact mutual c6nsent provision there may be reasons
not to go forward with implementation..
·
The u.s. currently is under no legal obligation to implement the
Palau Compact, and even though the Palauans have approved the
Compact the ··government of that insular area has no rights under
the ~greement until it enters into force by mutual agreement, and
Palau .has no right to an arrangement with the U.S. which is
enforceable or unconstitutional -- even if that arrangement
ach·ieves important U.S. goals such as granting Palau selfgovernment and ending the U.N. trusteeship under which the u.s.
has the ultimate powers of government in Palau ..
Thus, implementing the Compact for Palau is not a case of
honoring a previous commitment on mutual consent, but of creating
a new one. If mutual consent clauses binding Congress are
unenforceable and unconstitutional, the U:S· should unilaterally
terminate the implementation agreement as provided for in Article
I I, Section 4 of that agreemen-t, and seek to renegotiate an
arrangement with Palau consistent with the Department's position
in the Memorandum.
It would be bad faith to implement the Palau Compact knowing that
a key provision is unenforceable and unconstitutional under U.S.
law. Under the Vienna Convention on the Law of Treaties, to do
so could give rise to international legal issues~affecting
enforceability of the compact. For the OOJ Memorandum of July 28
puts Palau on notice that the mutual consent·agreement contained
in Section 453(a) is viewed by the U.S. legal authorities.as
unenforc~able.
Yet, the Section 453(a) mutual consent arrangement with .Palau -which gives the U.S. "strategic denial" rights (i.e., exclusion
of third country military forces) in perpetuity -- is the single
most significant provision which justified to Congress the huge
economic grants contained in the funding sections of the Palau
compact.
As in the case of the FSM and RMI, those funding
grants are backed by the. full faith and credit of the u.s. and
enforceable in the federal courts.
.
~
~
If the Palau compact takes effect and the mutual consent
provision in Section 453(a) is unenforceable; it would appear
that the massive u.s. funding obligations under Title Two of the
compact for Palau would survive under the terms of Section
452(a), even if the U.S. followed the procedure under Section 442
to t'erminate the free association relationship due to loss of the
defense rights which were to extend beyond .the initial period of
CLINTON UBR!~R\' PHOTOCOPY
�the compact.
'.
'
Perpetual strategic denial is what the U.S. would be able to
retain under ~ontinuation of the U.N. trusteeship, and so
strategic denial that lasts beyond the agreed period of free
association under the compact is what Cong~ess demanded in order
to justify over $450 million in grants to a community of 14,000.
If the Department of Justice wants the Administration to give
· away what Congress approved in P. L. 99-658 just to win a debate
over mutual consent for Guam, shouldn't Congress be informed?
Thus, the decision of the Department of Justice to ch~nge its
position ort mutual consent does not impact on Guam alone.
The
most immediate impact may be on Palau. Of course, the Department
of Justice may not have the authdrity or-ability simply to choose
to honor what must be viewed under its theory as an
unconstitutional and inchoate mutual consent commitment between
the U.S. and Palau.
Indeed, the notion that individuals in the
federal government have that degree of discretion in fundamental
matters such as this itself raises constitutional issues.
But, again, even if the Department of Justice is as generous with
respect to honoring a mutual consent commitment to Palau as it
appears ready to be, a question may arise as to whether the u.s.
will be able to enforce its rights or meet its obligations under
the Palau mutual consent provision.
On the face of things
Section 453(a) and the related provisions of Section 311 seem to
be a benefit to the U.S. which it simply can enjoy by deciding to
honor it.
·
That view may be ~ally.
If the same litigious fiarties in the
U.S. or Palau who have mounted legal challenges to the military
provisions of the compact tirelessly for thelast fifteen years
establish jurisdiction to challenge the validity of the Section
453(a) mutual consent provision in our own courts, and prevail
with the aid of the DOJ Memorandum, it appears that U.S.
taxpayers could end up paying Palau for defense authority tied to
a mutual consent provision in Section 453(a) rendered null and
void.
Having been seized with what Palau and the U.S. prudentially must
view presumptively as a serious substantive legal infirmity in a
provision that is fundamental to. the purpose of the agreement
prior to its entry into force, will the parties be able to rely
upon and ~nforce the reciprocal and interdependent rights and
oblig~tions set forth in the agreement?
In not, are the U.S.
fundirtg obligations linked to the defense ~uthority and mutual
conse~t provisions severable so that. the U,S. would be able to
extricate itself from the full faith and credit payment
requirements if the defense rights proved unenforceable?
The answer to both those
negative.
qu~stions
CLINTON LIBRARY PHOTOCOPY
arguably would be in the
�We raise these issues not because we believe that the Palau
mutual consent provisions are either unenforceable or
unconstitutional. Rather, we use them to show the basic problem
inherent in the Justice Department's approach. When the CNMI
covenant and the comp~acts were negotiated, Justice supported the
mutual consent clauses. Nothing has changed since then. Only
the POSSE case has caused a iethinking of this support and POSSE
merely explains the test that must be employed to determine
whether Congress bound itself validly to a limitation on the
exercise of· its power. It did·nOt establish a per se rule to.
the contrary.
To avoid the perverse result that could come about by applying
the position set forth in the Memorandum to Palau's mutual
consent compact, the DOJ Memorandum of July 28 should be
withdrawn imrned,iately.
That would allow the Palau compact to be
implemented and enable the parties to the Guam commonwealth.
negotiations can move forward with the process of defining an
acceptable mutual consent relationship as endorsed by Secretary
Babbitt during his trip to Guam.
. CLINTON LIBRARY PHOTOCOPY
�I
\\
APPENDIX B
SECTION-BY-SECTION ANALYSIS OF THE
MEMORANDUM FOR THE SPECIAL REPRESENTATIVE
FOR GUAM COMMONWEALTH DATED JULY 28, 1994
RE:. MUTUAL CONSENT PROVISIONS IN THE
GUAM.COMMONWEALTH LEGISLATION
FROM THE DEPUTY ASSISTANT ATTORNEY GENERAL
Introductory Paragraphs - pp 1-2.
The Department's Memorandum cOrrectly recognizes that the
inclusion of mutual consent clauses in the Commonwealth
legislation is crucial to the people of Guam, referencing as the
reasons autonomy and economics.
While economic development is
clearly a consideration, the reference to autonomy is misleading.
It is true Guam seeks control over its internal affairs.
autonomy is less the goal than democracy.
But
The American-citizen
residents of Guam do not have the same rights to participate in
the representative democracy enjoyed by the citizens of the
several States.
If the citizens of the Guam maintain their
residence there, they elect voting members of" neither the House
nor the Senate, nor can they vote in presidential elections.
They are effectively excluded from the most fundamental aspect of
our democratic system -- the right of U.S. citizens to give some
form of meaningful consent to the laws and form of government ·
under which they live.
The circumstances of the people of Guam today are:the direct
consequence of almost
ioo
years of American ruie, a period during
09/15/94, 11:59am
20029980
CLINTON LIBRARYPHOTOCOPV
�which the U.S. has exercised sovereignty over Guam without
incorporating it into the U.S. system of constitutional
No level of economic development can sustain
federalism.
perpetual second-class citizenship.
A process must be created
which will lead to resolution of Guam's status as a non-selfgoverning area under the U.N. Charter.
.
~.---~
Until Guam is decolonized
it will be a living contradiction of U.S. moral opposition to
colonialism.·
Thus, the fundamental question which the people of Guam and,
indeed, which this Administration must ask today is similar to
that question asked by the leaders of the American revolution
can a nation, founded on the principle that government acts only
with the consent of its people continue to deny basic rights of
self-government to some of its citizens solely because they live
in a territory? 1
The DOJ Memorandum recognizes that for the past thirty
year~,
the Department has supported the constitutionality and
enforceability of mutual consent clauses. 2
Appendix A
In footnote 1, the Memorandum chooses to define Guam as a
"non-state area", a catchy pseudonym for what Guam really is --a
colony of the United States. This is why people in the
territories object to their territorial status. As a territory
they are precluded from the democratic system. The Guam
·
Commission on Self-Determination, however, does not claim that
the legal implications of being a territory do not apply to them.
It is because they recognize that being a territory leaves them
out of the democratic process that they seek mutual consent.
2
Unfortunately, the Department has refused to provide us
with any of the prior opitiions supporting mutual consent clauses.
09/15/94, 11:59am
20029980
2
CUNT()I\.\ UBR..'),R.\' PHOTOCOPV
�Sec. Entrapment, 477 U.S. 41 (1986) (popularly referred to as
"POSSE").
As discussed in great detail infra, POSSE does not bar
Congress from limiting its right to exercise sovereign power by
entering into a binding contract, nor does it establish a per se
test that Congress can only bind itself when entering into
contracts dea~ing with traditiorial pri~ate rights.
In fact,
POSSE dealt·with the exercise of a regulatory right, and turned,
not on the n~ture of the contractu~! right at issue, but on a
determination of whether Congress had expressed an intention to
bind itself in "unmistakable terms".
The following section-by-section analysis demonstrates that
. none of the cases cited in the Memorandum leads to· a certain
conclusion that the Supreme Court would restrict Congress'
'
..
:.
...
'
.
·.'
..
.
ability to enter into a political status arrangement with Guam
based on mutual consent.
Section I. - "The Power of Congress to Govern the Non-State Areas
under the Sovereignty of the United States is Plenary with.
Constitutional Limitations -- pp 2-4.
The DOJ Memorandum would lead us to believe that the Supreme
Court has already decided that Congress cannot limit its exercise
of authority over the territories because its authority is
plenary.
In this regard, the Memorandum seems to argue that this
plenary authority is infinite and must remain unencumbered in
perpettiity -- or at least until the
09/15/94, 11:59am
20029980
4
CLINTON LIBRARY PHOTOCOPY
u.s.
alters Guam's status ..
�authority under the Territorial Clause.
Id, at 330-36.
5
None of tpe cases cited in the Memorandum are to the
contrary.
Each of them sets forth the general proposition that
in regard to the territories, the Congress is supreme.
In part,
the earlier cases were required to make this point because the
Territorial Clause was included to make clear that it was the
Federal Government and not the States that would exercise control
over the Territories.
See,
~'
A. Leibowitz, Defining Statute
(1989) at 10-11; See also, District of Columbia v. Thompson Co.,
346 U.S. 100, 109 (1953).
But, none of the cases cited in this
5
The Congress also has authority to dispose of property
under the Territorial Clause. This power includes both the
absolute right to dispose.of property in its entirety or to
dispose of part of the governments rights in property:
Of course, a significant difference may e·xist between the
·disposition of property and the disposition of sovereign
authority.
Nevertheless, the conclusion that Congress can
partially dispose of matters over which it has the power of
total disposition has considerable logical appeal.
If
Congress could totally dispose of its p6wer over the
Philippines by granting them independence, it seems logical
that it could also· partially dispose of its powers by
granting them something le.ss than complete independence..
Whether Congress could later change its mind as to the
partial disposition is not clear, but some kinds of
dispositions are by nature final.
For example, if Congress
disposes of its powers over territory by admitting it as a
state, that would seem a final disposition of its
territorial powers; Congress cannot change later the status
of a state.
Similarly, when Congress granted independence
to the Philippines, it disposed of its territorial power
over them for all time.
·
Inventive Statesmanship vs. The Territorial Clause: The
Constitutionality of Agreements Limiting Territorial Powers, 60
Va~ L. Rev. 1041, 1060-61 (1974).
09/15/94, 11:59am
20029980
7
CliNTON UBP.AR.\' PHOTOCOPY
�Memorandum at .4.
Thus, the Memorandum argues that Congress actually is
estopped from exercising its authority with respect to Guam if
that exercise of authority results in some form of meaningful
con~ent to the form of government under which the Guamanian
people live.
But Congress is the master, not the prisoner of its
plenary authority over the territories.
If Congress has plenary
authority, it follows that Congress can exercise this authority
to limit the types of measures it will take pursuant to that
authority if that is in the best interests of the U.S. and the
territory.
To assert otherwise stands the meaning of plenary on
its head. ·Plenary means full power.
It does not mean full
power, except when Congress attempts to exercise it.
Under the Territorial Clause, Congress has the power to
dispose of a territory or to make all needful rules and
regulations.
If Congress has the power to dispo~~ of a territory
in its entirety, it also has the power to dispose of some of its
control by exercising its power to make all needful rules and
regulations.
It is an elementary principle of statutory
interpretation that the "greater includes the less".
Church
v. U.S, 136
u.s.
1, 45 (1889). 3
3
See, Morman
Similarly, in Collins
While a distinction obviously exists between the
Government's rights to abrogate property rights and'the issue of
its atithority to exercise political power in the territories, the
Supreme Court's frequent statements that the Government can bind
itself do not appear to be limited to commercial-type contracts.
The Court has, for instance, upheld limitations on federal
political powers in areas ceded to the federal government by the
09/15/94, 11:59am
20029980
5
CLINTON UBF!..I\R\' PHOTOCOPY
�v. Yosemite Park & Curry Co., 304 U.S .. 518 (1938), the Court
upheld an agreement between California and the Federal Government
which reserved certain rights to California when it ceded
Yosemite Park.
The Court concluded that the Federal Government
and the states could enter into agreements concerning
jurisdiction-~ver property within their borders, and the courts
should "recognize and respett" the agreements.
30.4
304
u.s.
at 527-
For instance, the Supreme Court has approved of the
Government's right to lease mineral rights.
Gratiot, 39 U.S.
See United States v.
(14 Pet.) 526,536 (1840)("it lies in the
discretion of Congress, ac_ting in the public interest to
deterrnine.how much of the property it shall dispose.").
In
Ashwander v. T.V.A., 297 U.S. 288 (1936), the Court approved a
contract for the sale of electricity, rejecting an argument that
the Government lacked constitutional authority to dispose
partially of its property by contract and relying.on Congresi'
-states pursuant to the Territorial Clause.
In Fort Leavenworth
R.R. v. Lowe, 114 U.S. 525 (1885), the Court upheld an agreement
between the Federal Government and Kansas dividing taxing
authority.
4
The Court stated:
Though the jurisdiction and authority of the general
government are essentially different from those of a
State, they are not those of a different country; and·
the two, the State and the general government, may deal.
with each other in any way they may deem best to carry
out the purposes of the Constitution.
Fort Leavenworth, 114
u.s.
at 541.
09/15/94, 11:59am
20029980
6
CLINTON UBR~R.\' PHOTOCOPY
�section address directly the question of whether Congress could
exercise its plenary authority by restricting its ability to act
in the future.
The Memorandum bases its assertions about Congress' plenary
authority on. Gibbons v. · Ogden, · 22 U.S.
( 9 Wheat) 1 ( 1824) .
That
case, of course, is the seminal decision establishing Congress'
power under· the Commerce Clause.
It has nothing whatsoever to do
with the Congress' Territorial Clause authority.
It is
apparently cited to establish.the proposition that in some
express areas Congress' power "acknowledges no limitations, other
than are prescribed in
~he
Constitution".
We think it should be
obvious that the Department's proposed changed opinion on mutual
consent is entirely inconsistent with this principle.
Rather
than recognizing the scope of Congress' powers, the Department is
claiming that a limitation exists on Congress' power -- that
Congress is imprisoned by its plenary power and cannot exercise
it to limit itself.
In fact, several of the other cases cited in
the Memorandum to support the breadth of Congress' power are
inconsistent with this limitation.
The very first case cited in the section is National Bank v.
County of Yankton, .101 U.S. 129 ( 1880).
The Memorandum utilizes
a quote to establish that Congress is supreme in the territories.
But this quote has nothing whatsoever to do with whether Congress
can act to limit its authority.
Unfortunately, what has been
left out from the quote are the next two sentences which bear
09/15/94, 11:59am
20029980
8
CL\1\lTON UBR'\RY PHOTOCOPY
�directly on the issue presented by the mutual consent clause and.
the analysis the Supreme Court adopted in POSSE whether Congress
has limited its right to exercise sovereign power.
The Court
apparently addressing the issue that Congress had not expressly
reserved the right to amend acts of a territory stated:
In the organic act of Dakota there was not an
expfess reservation of power in Congress to
a~end the acts of the territorial
legislature, nor was it necessary.
Such
power is an incident of sovereignty, and
continues until granted away.
101 U.S. at 133 (emphasis added).
Clearly, the implication of this decision is that while Congress
has full power it has the right to grant it away. 6
While the next case cited, Hodel v. Virginia Surface Mining
and Reclamation Assoc., 452 U.~. 264, 276 (1981), like Gibbons v.
Ogden, does not deal with the Territorial Clause, it does
describe accurately the standard the Court applies when
determining whether Congress has acted·within the scope of its
power.
This is the same test the Court would apply if it were
presented with the question of whether Congress had acted
appropriately in agreeing to a mutual consent clause.
The task of a court that is asked to
determine whether a particular exercise of
congressional power is valid under the
6
Similarly, American Insurance Co. v. Canter, 26 U.S. 511
(1828) and Downes v. Bidwell, 182 u.s. 244 (1901), cited in the
memorandum to establish the extent of Congress' power, do not
address the issue of whether Congress can act to limit its
authority.
09/15/94, 11:59am
20029980
9
CLII'lTON LIBRARY PHOTOCOPY
�Commerce Clause is relatively narrow. The
court must defer to a congressional
finding ... if there is any rational basis for
such a finding .. ~This established, the only
remaining question for judicial inquiry is
whether "the means chosen by (Congress) must
be reasonably adapted to the end permitted by
the Constitution." ... The judicial task is at
an end once the court determines that
·
Congress acted rationally in adopting a
particular regulatory scheme.
452 U.S.
a~
276 (emphasis added).
This test recognizes the great deference the Court gives to
an exercise of power by Congress.
If Congress were to conclude
that a mutual consent clause is within its power and that such a
clause is necessary to achieve
Cong~ess'
purpose of granting
greater self-government to.Guam, can anyone say with certainty
'·.
that the Court will not believe that a sufficient rational basis
exists.
If it does, not even the Memorandum asserts that
anything in the Constitution specifically bars a«mutual consent
clause.
It is well established that when the intent of Congress with
respect to the precise question at issue·is. clear, the courts
must give it effect.
837, 842-43 (1984).
See,
Chevron, U.S.A. v. NRDC, 467 U.S.
It is equally clear that the courts give
great deference to Congress when it exercises its Territorial
Clause authority.
See, Wabol-v. Villacrusis, 958 F.2d 145, 1460
(9th Cir. 1992) ("The incorporation analysis thus must be
undertaken with an eye toward
pres~rving
09/15/94, I 1:59am
20029980
10
CL.if~TON
LIBR.'\RY PHOTOCOPY
Congress' ability to
�accommodate the unique social and cultural conditions and values
of the particular territory.
More over, we must be cautious in
restricting Congress' power in this area."), citing Torres v.
Puerto Rico, 442 U.S.465, 460-70 (emphasis added).
In
fact,~
know of no decision of the Supreme Court reversing any action by
the
Congress-~aken
with regard to the governance of a territory
when the Congress has acted pursuant to its Territorial Clause
authority.
None of the rest of the cases cited for the proposition that
Congress' power continues indefinitely address the question of
whether Congress can limit its ability to act in regard to the
territories without their consent.
Shively v. Bowlby, 152 U.S. 1
(1894) can be cited only for the proposition that it is the
Federal Government and not the states which exercises control
over the territory of .the United States.
any way whether the Congress can limit its
this territory.
It did not address in
autho~.ity
to act over
Similarly, Hooven & Allison Co. vl Evatt., 324
U.S. 652 (1945),
can be cited only for the self-evident
proposition that Congress retained its authority until the
Philippines achieved independence.
The question of whether
Congress could have agreed with the Philippines that certain
Congressional powers would not be exercised during the transition
was not addressed.
Congressional authority over the people of the territories
and their political righti is derived from Congress' authority
09/15/94, 11:59am
20029980
11
CLINTON USRf\RY PHOTOCOPY
�over Guam as property brought withiri Congress' _control by the
Territorial Clause.
In Edward v. Carter, the Court clarified
Congress' power under the property clause, stating:
Thus, it appears that in referring to
Congress' power "without limitation", the
Court was holding that Congress' authority
under Article IV §3 cl. · 2 embraces any ·
disposition of property of the United States
chosen by Congress.
580 F.2d 1055, 1061 n. 18 (1978)
(citations omitted) (emphasis
added).
Further definition was provided in
u.s.
v. Gratiot, 39
u.s.
526 ( 1840) .where the Court considered Congress' power to impact a
lease of federal lands through legislation.
The Court's approach
to the question is quite interesting and seems to analogize the
power over land with the power over territorial governments.
First, it finds that the mines in question .lie with
territory of the United States are, therefore, its property.
Second, it recites the Territorial Clause and
con~ludes
that the
term territory refers is a descriptive word referring to one kind
of property.
Third, the Court concludes that "Congress has the
same power over [the mine] as over any other property belonging
to the United States; and this power is vested in Congress
without limitation; and has been considered the foundation upon
which the territorial governments rest".· Id. at 537.
Fourth, the
Court then references cases involving C6ngress' authority over
the territories, including Florida, including the right of
Congress ~to make all needful rules and regulations respecting
09/15/94, 11:59am
. 20029980.
12
CUI\lTON Utl.R.ARY PHOTOCOPY
�the territory or property of the United States". Id. at 538.
Finally, the Court concludes
''[~]f
such are the powers of
Congress over the lands belonging to the United States, the words
"dispose of," cannot receive the construction contended for at
the bar; that they vest· in Congress the power only to sell, and
not to lease·~.such lands".
Id.
The Court's concept which forms the basis of these opinions
is that the greater includes the lesser.
The Court reached its
decision building on Congress' authority over the territories.
If Congress has the power to dispose of territories or to make
all needful rules and regulations, it must then also have the
power to limit its political control over the people of the
territory just like it has the right to limit its authority over
·..
.....
·.
territory by leasing it.
Section I I - "The RevoGable Nature of Congressional Legislation
Relating to the Government of Non-State Areas-- pp 5-6.
This section.of the Memorandum offers nb"thing more than a
restatement of the "principle" asserted in Section I -- that
Congress'. plenary authority does not include the right to limit
the exercise of this authority in the future by way of a mutual
consent clause.
As with Section I, the cases relied upon in this
section do not deal with the issue of Congress exercising its
plenary authority in this way.
Clinton v. Englebrecht, 80 U.S.
not establish a
~ule
(13 Wall) 434 (1872) does
that any delegations of authority tb a
09/15/94, 11:59am
20029980
13
CLINTON LIBR~R\' PHOTOCOPY
�territory "must be 'consistent with the supremacy and supervision
of National authority'" as asserted in the Memorandum at p. 5.
The case did not address whether Congress could irrevocably limit
its right to alter a .law because of a mutual consent clause, nor
did it use the word "must" . . The quote is dicta and deals with
how Congress__};ad approached local government up to that time.
The actual quote is as follows:
The theory upon which the various governments
for portions Of the territory of the United
States have been organized, has ever been
that of leaving to the inhabitants all the
powers of self-government consistent with the
supremacy and supervision of National
authority, and with certain fundamental
principles established by Congress.
80
u.s.
at .441 (emphasis added).
This quote establishes nothing more than the historical fact that
Congress in its approach to self-government for the Territories
had not agreed to limit its power in any way.
Similarly Puerto Rico v. Shell Co.,
nothing to the debate.
30~U.S.
260 (1937) adds
The Court recites the quote set forth
above from Clinton v. Englebrecht but uses it to affirm a broad
grant of power to territorial legislatures, not to bar Congress
from entering into a~ agreement not to exercise its authority.
In fact, the holding in Puerto Rico was to affirm the validity of
Puerto Rico's anti-trust law which had been challenged as
conflicting with the Sherman Act.
District of Columbia v. Thompson Co., 346 U.S. 100 (1963)
09/15/94, 11:59am
20029980
14
CLINTON UBR./\RY PHOTOCOPY
�I
provides even less support for the Memorandum's assertions.
As
with the other cases, the Court was merely referring to the same
precedent regarding the general authority of Congress to alter
its legislation relating to a territory, but, here again, this
discussion was not in the context of a~ expression by Congress of
an intent to limit itself.
7
Mo+e importantly, the laws in
question contained specific reservations permitting Congress to
make such amendments.
346
u.s.
at 195.
What is missing from this section, is a discussion of two
important decisions more closely on point.
The first is Currin
v. Wallace, 396 U.S. 1 (1938) which is mentioned in footnote 13
of the Memorandum but summarily dismissed as being inconsistent
with the Department's new theory that Congress cannot bind
itself.
This is a decision which we suggest is more·
appropriately left to the Supreme Court.
Currin is significant
because the Supreme Court approved an Act of Cqngress
implementation of which required the approval of. those affected
by it, the essence of the Guam mutual consent' clause.
7
-
The Act,
The memorandum attempts to bolster the Department's
theory that Congress must retain the authority to revise, alter
or revoke any authority it grants t6 the territories by citing
United States v. Sharpnack, 355 U.S. 286 (1958); Harris v.
Bareham, 233 F.2d 110 (3rd Cir. 1956); Firemen's Insurance Co. v.
Washington, 483 F.2d 1323 (D.C. Cir. 1973); Hornbuckle v. Toombs,
85 U.S. 648 (1874) and Christianson v. King County, 239 U.S. 365
(1915).
The cases cited, similar to D.C. v .. Thompson, 346 U.S.
100 (l953) do not discuss an express intent by Congress to limit
the exercise of its authority, rather they are limited to
situations whereby Congress clear].y reserved the exercise of.its
authority to revise, alter or revoke through enacted legislation.
09/15/94, 11:59am
20029980
15
CLINTON LIBR.AR\' PHOTOCOPY
�I
~
passed pursuant to the Commerce Clause which the Memorandum
asserts gives Congress the same plenary power as the Territorial
·clause,
was challenged as an unconstitutional delegation of.
authority.
The.Court disagreed finding that rather than a
delegation of legislative authority, the. Congress "has merely
placed a
rest~ction
upon its OWn regulation by withholding its
operation ...·'unless two-thirds of the [voters] voting favor it.
Similar conditions are frequently fou·nd .in police regulations."
306 U.S. at 15.
The Court went on:
Here it is Con'gress that exercises its
legislative authority in making the
regulation and in prescribing the conditions
of its application. The required favorable
vote upon the referendum is one of these
conditions ... "Congress may feel itself unable
conveniently to determine exactly when its
exercise of the legislative power should
become effective, because dependent on future
conditions ... it may leave the determination
of such time to ... a popular vote of the
residents of a district to be effected by the
legislation. While in a sense one may say
that such residents are exercising
~·
legislative power, it is not an exact
statement, because the power has already been
exercised legi~latively by the body vested
with that power under the Constitution, the
condition of its legislation going into
effect being made dependent by .the
legislature on the expression of the. voters
of a certain district."
306
u.s.
at 16 (citing Hampton & Co. v. United States, 276 U.S.,
394, 407
(19??).
If the Court agrees Congress has the authority to make
implementation of its legislation subject to ratification by the
affected voters, it is inconceivable that the Court would find
09/15/94, 11:59am .
20029980
16
CLINTON UBR..'\RY PHOTOCOPY
�that Congress could not agree to limit its ability to change that
same law without the consent of those same voters, if Congress
has expressed its intention unmistakably.
The most troublesome oversight in this section of the
Memorandum, however, is the failure to discuss the Ninth
Circuit's deGision in United States v. De Leon Guerrero, 4 F.3d
749 (9th Cir. 1993), cert. denied, ?? U.S. ?? (199?).
De Leon
Guerrero is the only decision of which we are aware that deals
with the applicability of a mutual consent provision in
territorial legislation.
The case arose under the Covenant for
the Commonwealth of the Northern Mariana Islands.
was ratified by an Act of the Congress.
The Covenant
48 U.S.C. § 1681b.
The
case involved an ongoing debate about whether the Commonwealth's
right of local self-government as defined in the Covenant under.
Section 103 substantially limits Congress' legislative powers
over the Commonwealth under Section 105".
4 F.3d at 752.
The
specific issue was whether the audit provisions of the Inspector
General Act of 1978 "conflicts with the self-government
provisions of the Covenant". 4 F.3d at 753.
In ·order to reach the question, the court first had to deal
with arguments put forward by the Department of Justice which are
identical to those in the Memorandum.
Arguing on behalf of the
Inspector General, the Department asserted that Congress had the
right to pass the Act under the Territorial Clause arguing "that
because· the CNMI is governed through Congress' .power under the
09/15f.l4, 11:59am
20029980
17
CLINTON UBR'~R.Y PHOTOCOPY .
�Territorial Clause, Congress has plenary legislative authority
(
over the CNMI".
4 F.3d at 754. 8
"unpersuasive".
According to the Ninth Circuit
The court found this argument
'the authority of the United States towards
the CNMI arises solely under the Covenant.'
The Covenant has created a 'unique'
relationship between the United States and
the,CNMI, and its provisions alone define the
bou~daries of those relations ... The
applicability-of the Territorial Clause to
the CNMI, however, is not dispositive of this
dispute. 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 Congres~'
legislative authority.
4 F.3d at 754.
Ultimately, the Ninth Circuit approved application of the
law not because Congress had plenary authority
~nder
the
... ·: ..
Territorial Clause but because the Covenant specifically gave
Congress the right to enact legislation -applicable to the
Cormnonwealth.
The only limit on this right is
a~.r;nutual
consent
provision stating that a few limited sections of the Commonwealth
Act could not be modified without the mutual consent of the
The court referred to Simms v. Simms, 175 u.s. 162, 168
(1899) a case which explained that under the Territorial Clause,
Congress "has the entire dominion and sovereignty, national and
local, Federal and state, and has full legislative over all
subjects upon which the legislature of a state might legislate
within the state". This is the same principle upon which the
Justice Department again relies.
·
8
09/15/94, ll:S9am
20029980
18
CLII'lTON UBR'\RY PHOTOCOPY
�(
Conunonwealth.
Covenant Section 105. 9
The Court found that this
mutual consent provision as drafted did not bar the Congress from
passing laws. affecting the Commonwealth where the U.S. had a
sufficiently significant interest to justify it.
The holding in De Leon Guerrero contradicts directly the
conclusion paiagraph to this se.ction.
This paragraph reasserts
that the "non-state areas are subject to the authority of
Congress, which, as shown above, is plenary ... [and] persists
(until] the area becomes a State or ceases to be under United
States sovereignty".
Memorandum at 6.
Rather, that decision
makes clear that Congress' authority, after a political status
change agreed to between Congress and the people of the
territory, is defined solely by the terms of that agreement.
(.
Section III -- The Rule that Legislation Delegating Governmental
Powers to a 'Non-State Area Must Be Subject to Amendment and
Repeal Is but A Manifestation of the General Rule That One
Congress Cannot Bind A Subsequent Congress, Except Where It
Creates Vested Rights Enforceable Under the Due Process Clause of
the Fifth Amendment-- pp 6-7.
This entire subsection is. premised on a fallacy.
There is
no rule expressed in any decision of any court that governmental
powers to a non-state area must be subject to amendment and
repeal.
As described above, the most that can be said is that
there is dicta in a series of cases, not addressing the issue of
9
Without explanation and despite the inconsistency with
its newly proposed position, this is one of the mutual consent
provisions which the Memorandum states the Department will
continue to support. Memorandum at 12.
·
09/15/94, ll:S9am
20029980
19
CLINTON UBR~H\' PHOTOCOPY
�whether Congress can bind itself, that Congress' actions inthe
territories are subject to later amendment or repeal.
What is
accurate in the section is that these statements are nothing more
than "a specific application of th~ maxim that one Congress
cannot bind.another .... "
Memorandum at 6 •
. -:-·.!
The an.alysis does not end here, however, because it is
simply not true that one Congress cannot bind another, as the
Memorandum recognizes but then attempts to explain away.
As
described above, the most that can be 5aid is that there is dicta
in
a
series of cases, which do not address the issue of.whether
~ongress
can bind itself.
They stand only for the proposition
that when express statutory language exists or when language is
not provided and it is clear Congress originally had the power,
{-··
then in those situations Congress retains its authority and its
actions in the territories may be subject to later amendment or
repeal.
In the end, the section misrepresent~ as· conclusive and
inflexible "the maxim that one Congress canri6t bind another."
First, the law must create vested rights as Justice Marshall
explain~d in Fletcher v.
Peck,· 19
u.s.
(6 Crarich) 87, 135 (1810)
("When, then, a law is in its naturea contract, when absolute
rights have vested under that contract, a repeal of the law
cannot devest .· (sic) those rights.") 10
This, too, the Memorandum
10
. Although the Department in its memorandum focus' on the
dissenting opinion in U.S. Trust Co. v. New Jersey, 431 u.s. 1
(1977) the actual holding was that impairment of contract by the
·State was in violation of the Contract clause and neither
necessary nor reasonable in light of the circumstances. Although
09/15/94, 11:59am
20029980
20
CLINTON LIBRARY PHOTOCOPY
�recognizes but goes on to utilize a quote from the Sinking Fund
Cases as part of its effort to build a case that only contractual
rights of a private nature are protected from change. 11
The analysis provided is incomplete.
.The test actually
established by the Supreme Court to determine whether Congress
~ ..
,.!
has bound itielf turns not on the nature of the contract (private
right vs public) but on whether Congress has expressed its
intention to protect the vested right in "unmistakable terms".
The "unmistakable terms" doctrine is not even addressed in the
Memorandum.
Infra at p. 25.
Section IV -- The Due Process Clause Does Not Preclude Congress
from Amending or Repealing the Two Mutual Consent Clauses - p. 8.
The Memorandum presents two bases for its conclusion that
the Due Process Clause does not bar a repeal of a mutual consent
the Contract clause applies to States and not the.federal
government, the "United States are as much bound by their
contracts as are individuals." Sinking-Fund Casess, 98 u.s. 700,
719 (1879).
The Court in Barcellos and Wolfsen v. Westlands
Water District, 899 F.2d 814, 821 (9th Cir. 1990) quoting Lynch
v. United States, 292 U.S. 571, 579 (1934), stated "the Supreme
Court held that "[r]ights against the United States arising out
of a contract with it" are property rights protected from
.
deprevation or impairment by the 5th Amendment."· See also Madera
Irr. Dist. v. Hancock, 985 F.2d 1397, 1401 (9th Cir. 1993).
Moreover the Court, in u.s. Trust Co. noted that "a statute is
itself treated as a contract when the language and circumstances
evince a legislative intent to create private rights of a
contractual nature enforceable against the State." 431 u.s. at
17, fn 14 (1977).
11
What is not disclosed about the Sinking Fund Cases is
that the "statutes in question expressly reserved Congress'
authority to repeal, alter, or amend them, and Congress exercised
tha't power ... " POSSE, 477 U.S. at 53.
09/15194, 11:59am
20029980
21
CLINTON LIBR~RY PHOTOCOPY
�clause.
First it points out that a territory is not a person
within the meaning of the Due Process Clause.
herring.
This is a red
Secondly, it asserts that a repeal would not deprive a
territory of property within the meaning of the F~fth Amendment.
This is not the test the Supreme Court has established.
not the
natu~7
of the vested right that controls.
It is
Rather,
the
test involves a combination of a vested right coupled with an
"unmistakable" commitment by the Congress not to interfere with.
the right.
Subsection IV, B -- "A Non-State Area Is Not A Person in the
Meaning of the Due Process Clause of the Fifth Amendment." pp.B9.
We do not need to debate the merits of the legal arguments
presented in this subsection because this is ·a non-existent
issue.
The mutual consent clause being discussed between the
President's designated negotiator and representatives of the .Guam
Commission on Self-Determination runs between the Government of
the United States and the People of Guam, not the political
entity of the Commonwealth of Guam as the Memorandum assumes.
The People of Guam clearly qualify as persons under the Due
Process Clause.
We have attached the current
for your review.
configuratio~
of the proposal
The reference to the People of Guam is
appropriate because elsewhere in the Act we intend to require
that after adoption by Congress the People of Guam hold a
09/15/94, 11:59am
20029980
22
CLINTON UBR.'\R\' PHOTOCOPY
�plebiscite to approve what Congress has enacted before it becomes
applicable to Guam.
In this regard, we also intend to change the
nature of the Guam Commonwealth Act.
Rather than an Act of
Congress approved by the people before implementation, it will
become a Covenant between the United· States and the people of
Guam.
This Covenant will create vested and binding rights
protecting both the interests of the United States and of the
People of Guam.
Subsection IV, B -- Legislation Relating to the Government of
Non-State Areas Does Not Create Any Rights Or Status Protected By
the Due Process Clause Against Repeal Or Amendment By Subsequent
Legislation. - pp. 9-12.
'
,While recognizing that the Government may enter into
contracts, the Memorandum asserts that only contracts similar to
those entered into by private individuals are enforceable, and
"governmental powers cannot be contracted away", citing North
American Cornl. Co. v. United States, 171
u.s. 110, 137 (i898) . 12
To bolster its position, the Memorandum relies on the POSSE
12
The comment by the Court relied upon by the Memorandum
is dicta.
It .carne in a case involving Congress' right to alter
the terms of a lease through regulation. The decision did not
turn on the rule that sovereign regulatory authority could not be
waived.
It turned on the fact that an express reservation of
authority had been included in the contract. As the Court noted,
this was a lease "expressly subjected from the beginning, to
whatever regulations of the business the United States might
make".
171 U.S. at 137.
09/15/94, 11:59am
20029980
23
CUNT0\\1 LIBR.'~R\' PHOTOCOPY
�decision.
13
The POSSE decision, hbwever,
matter of the contract in
qu~stion.
did not turn on the subject
The actual foundation of the
Court's holding was that if Congress was to surrender any of its
sovereign power in a contract, it must do so in "unmistakable
terms".
The_ ~.unmistakable terms" analysis would not be necessary
if the Court did not assume that Congress could indeed surrender
sovereign powers, even.in the realm of traditional regulatory
authority as was presented in the POSSE case.
This is exactly
the opposite of what the Memorandum asserts.
Indeed, the Court's reference to the bond and insurance
cases had no direct bearing on the Court's holding.
The cases
were cited for the limited purpose of contrasting circumstances
where Congress clearly evidenced its intent to bind itself from
the facts in the POSSE case where "Congress expressly reserved to
itself "[t]he right to alter, amend, or repeal any provision of"
13
The Memorandum lacks examples that give support to the
Memorandum's theory that Congress does not have the ability. to
limit the exercise of its authority under the plenary power of
th~ Territorial Clause.
Rather, the cases cited involve
situations whereby the Congress through legislation, or the lack.
of legislation, retained its authority.
For example, the
memorandum indicates Hudson Water Co. v. McCarter, 209 U.S. 349·
(1908) has a much broader interpretation than the actual case
decision provides for.
In fact, Hudson concerns an action
involving a water rights contract between the State and an
individual where the State did not include provisions limiting
its powers, therefore allowing subsequent legislation by the
State and a resulting ineffective contract.
It is not about the
State's incapability to limit its power by contract, rather it's
about the authority of a State to retain its power when not
granted away.
09/15/94, 11:59am
20029980
24
CLINTON LIBR'~RY PHOTOCOPY
�the Act which lead to the contracts at issue.
477 U.S. at 42.
The Court relied upon this contrast because its holding in POSSE
was that the Congress could amend the legislation in question,
even if that amendment interfered with contractual rights,
because it had not unmistakably indicated its intent to bind
itself -- the standard the Court has established for determining
whether Congress has waived its sovereign power.
The actual holding in POSSE --· that Congress had not
·surrendered its sovereign power to alter Social Security laws
has been thoroughly analyzed by the ·D.C. Court of Appeals in
Transohio Savings Bank v. Director, Office of Thrift Supervision,
~67
F.2d 598, 621 (D.C. Dir. ·1992).
The Transohio decision
demonstrates conclusively that the Memorandum's analysis of the
holding in POSSE is so flawed that one wonders how it could be
used to justify a proposed reversal in such an important area of
Administration policy.
In that decision, the D.C. Circuit makes
clear that "[t]he Supreme Court reached {its)
cohclu~ion
by
analyzing the governing statute, the Social Security Act" ·and
focused on the fact critical to its decision -- "[t)he Social
Security Act contained an express reservation of Congress' power
to.amend the law ... ", 967 F.2d at 621, not by establishing the
per se "private rights" test asserted in the Memorandum.·
According to the D.C. Circuit
The "principles form(ing) the backdrop" of
the Supreme Court's analysis of the Social
Security Act in POSSE were .those comprising
the unmistakability doctrine--the doctrine
09/15/94, !1:59am
20029980
25
CLINTON UBR.'~R'f PHOTOCOPY
�that
'sovereign power, even when
unexercised, is an enduring presence that
governs all contra6ts subject to the
sove.reign' s jurisdiction, and will remain
intact unless surrendered in unmistakable
terms. '
Id. at 6 2 2 (emphasis added) . 14
II
II
The D.C. Circuit also discussed the history of the
uninistakability doctrine.
"The "unmistakability" doctrine is a special
rule of contract interpretation that applies
to contracts with the government.
The
doctrine dates back to the early 19th
century, when Chief Justice Marshall provided
its justification. The government, Chief
Justice Marshall wrote for the Court in a
case concerning the government's taxing
power, may enter binding contracts when it
finds "a consideration sufficiently valuable
to induce a partial release" of its sovereign
powers.
Id. at 618.
Both the POSSE and Transohio cases dealt with the
application of the "unmistakable terms" test to a determination
of whether Congress has limited its right to exercise its
14
If the Court had actually established a per se rule
which depended on the nature of the contract, then why did the
Court continue after stating the unmistakable terms principle and
the general rule that "contractual arrangement, including those
to which a sovereign itself is party, remain subject to
subsequent legislation by the sovereign" state that ''(t]hese
principles form the backdrop against we must consider the
District Court's decision effectively to forbid Congress to amend
a provision of the Social Security Act"..
477 U.S. at 52.
By
use of the "must consider" terminology, the Court made clear what
the test is..
It would have been much more dir~ct and ultimately
clearer simply to have ruled that the contract between the Social
Security Administration and the State of California was not a
traditional private contract.
It d~d not, of course, because
that is not the test the Supreme Court ever applies.
The test is
whether Congress has stated its intentions in unmistakable terms.
09/15/94, !1:59am
20029980
26
CLINTON USR~R.\' PHOTOCOPY
�regulatory jurisdiction.
This test has nothing whatsoever to do
with a standard based on ''traditional private contractual
right~"
which the MemorandUm would have us believe is the standard.
If
it were the test, the Supreme Court and D.C. Court of Appeals
could easily have disposed of the contracts in POSSE and
Transohio
by' adopting the "traditional private contractual
rights" test advocated in the Memorandum with a simple ·finding
that alleged contractual rights
ass~ciated
with the regulatory
programs at issue in the cases are not traditional private
contractual rights.
They did not, of course, because the Supreme
Court applies the "unmistakable terms" test which requires an
analysis of Congress' intent, not the per se standard proposed in
the Memorandum.
See,
~'
477
u.s.
at 54.
We find it inconceivable that the Department would decide to
.reverse a thirty-year old policy based on a decision which has
been universally interpreted as suggesting exactly the opposite
of what the Memorandum asserts is the holding -- that Congress
can contract away sovereign rights to exercise its regulatory
authority when its says so unmistakably. 15
Instead of dealing
15
The POSSE decision has even been criticized because it
appears to open the door wider than some commentators believe ,
advisable. In an article by David Toscano entitled "Forbearance
Agreements: Invalid Contracts for the Surrender ~f Sovereignty
analyzed the POSSE decision in great detail.
It concluded.that
"[t]he power to waive sovereignty was recognized" in POSSE.
92
Colum. L. Rev. 426, 451.
It goes on "[i]n POSSE, the Court
relied entirely on Merrion v. Jicarilla Apache Tribe for the
proposition that the federal government can surrender sovereign
power. Jicarilla in turn relied upon cases involving primarily
th~ taxation powers of state governments ... Instead of endorsing
· 09!15194, 11:59am
20029980
27
CLINTO~l UBR~R\' PHOTOCOPY
�accurately with the Court's actual analysis, the Memorandum at
page 11 relies upon a quote, claimed to set forth the hcilding,
which is taken. completely out of context and has nothing
whatsoever to do with the holding.
The quote, taken from 477 U.S. 55, fails to include the
entirety of
.~e
paragraph, the remaining text from which puts
back into context the relationship of the bond and insurance
cases to the basis of the decision.
up
th~
The following quote picks
rest of this language beginning with the last sentence of
the quote from page 11 of the MemorandUm.
This language makes
absolutely clear that what the Court focused on was the fact that
instead of Congress have stated in unequivocal terms its
intention to limit the exercise of its regulatory authority, it
explicitly retained it.
After stating that the contract claimed
by the State of California "bears little resemblance to rights
held to constitute 'property' and citing to the
~nsurance
and
bond cases as examples, the Court went on to explain their
relevance.
Rather, the prov~s~on simply was part of a
regulatory program over which ·congress
retained authority to amend in the exercise
the rule applying to the police powers -- such powers cannot be
surrendered -- it adopted the rule applying to taxation powers
such powers can only be surrendered if done so unmistakably.
This move should not be followed automatically: if the Court
wants to enforce contracts that surrender the federal
government's re·gulatory authority, it should do so on the basis·
of policy arguments, not on the basis of POSSE."
Id.·at 460.
Obviously the author did not like the test used by the Court.
Nevertheless his criticism makes clear what the test is.
09/15/94, 11:59am
20029980
28
CLINTON USR.'~RY PHOTOCOPY
�of its power to provide for the general
welfare.
Under these circumstances, we
conclude that the termination provision
did not rise to the level of "property." The
provision simply cannot be viewed as
conferring any sort of "vested right" in the
face of precedent concerning the effect of
Congress' <reserved power on agreements
entered into under a statute containing the
language of reservation.
477
u.s.
at 55
(emphasis added).
Indeed, the Memorandum is unable to cite any cases holding
that Congress is barred from contracting away its right to adopt
legislation, because the "Court has never held that the United
States cannot surrender regulatory powers through contract ... "
92 Colum. L. Rev at 458.
But the Court has approved Congress
making effectiveness of its legislation subject to approval by
the voters who are impacted by the legislation,
Wallace, 306 U.S. at 15-16.
~'
Currin v.
It defies the rational of the POSSE
decision to argue that the Court would approve Congress adopting
legislation making effected-voters approval
~ require~ent
and
then pass subsequent legislation authorizing it to ignore the
vote of approval,. if it has stated in unmistakable terms that it
would not take such action.
After spending eleven and one-half
pa~es
arguing that mutual
consent clauses are unenforceable and unconstitutional, the
Memorandum comes to an astounding conclusion.
It states that the
"Department of Justice ... would honor past commitments with
respect to the mutual consent issue", including Section 105 of
09/15/94, !1:59am
20029980
29
CLINTO~lliBRAR\' PHOTOCOPY
�the Covenant with the Northern Marianas Islands.
Department cannot have it both ways.
But the
An Act of Congress is
either constitutional and enforceable or it is not.
If a mutual
consent provision for Guam is unenforceable, then the Department
must reach the same conclusion for· all other mutual consent.
provisions. _Jhis includes the mutual consent provisions in the
Compact of Free Association with Palau' scheduled to go into
effect on October 1, 1994.
The Department's Memorandum offers n,o
solid basis for such a significant reversal in policy.
All of
the cases upon which it relies, except POSSE, were available to
i t when its earlier positions supporting mutual consent were
made.
POSSE does. not change any rule with regard to Congress
binding itself.
It merely lays out clearly a test adopted in
1981 in Merrian v. Jecarilla Apache Tribe, 455 U.S. 130, which in
turn carried forward a principle which the D.C. Circuit states
"dates back to the early 19th century."
09/15/94, !1:59am
20029980
967 F.2d at 618.
CUNTml UBR'\R\' PHOTOG
30
QP'(
.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. memo
To Leon Panetta and Sandra Kristoff from John Garamendi: Subject:
Situation in Guam. (2 pages)
10/18/1996
PS
002a. fax cover
sheet
with marginalia. (1 page)
10/22/1996
PS
002b. memo
To Leon Panetta and Susan Kristoff from John Garamendi. Subject:
Situation in Guam. (2 pages)
10/18/1996
PS
003. memo
For Robert Suettinger from John Garamendi. Subject: Guam
Cominonwealth Negotiations. (2 pages)
03/13/1996
PS
COLLECTION:
Clinton Presidential Records
National Security Council
Asian Affairs
CLINTON LIBR.'~RY PHOTOCOPY
OA/Box Number: 1046
FOLDER TITLE·:
Guam--Agency Positions: Guam--DOl [Department of the Interior] Positions [2]
Van Zbinden
2006-0193-F
vz1177
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)l
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets 'or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA]
b(3) Release would violate a Federal statute [(b)(3) of the FOlA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOlA]
b(6) Release would constitute a clearly unwarranted invasion· of
personal privacy [(b)(6) of the FOlA] .
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) ofthe FOlA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOlA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�DE~T.
OF INTERIOR
RightFAX
PAGE 1/8
10-22-1996 17:07
U.S. DEPARTMENT OF .THE INTERIOR
OFFICE OF THE. SECRETARY
.S~~
tJ,J~~
1LCOff1)~ ~
~~~oi~~~
:o
•·
6-JJ~clo It!<~-
&CJvrt/w..o~cL ~ 0 j
.
~ CeJof ~6} hy ~~.
~~~1ft1CVK/J ~:eJ{y
ifdt ~ 11-,qffVYL
From
fie_
s~ 1-o
/4 J- A~1oYL
~,,.
. Facsimile Transmission
To
I 'L
Name . . . . . . . Pritchard, Jack
/he_
company .... NSC/ASian Affairs 1/JCL., (i4v~
Location . . . . . washington, D.C. ~~k_
,
Fax Number . . 9-456-9250
voice Number. 202-456-9251
y
Lfl
~
fte__ ..
jJor!tzr (o / y'~ __.~
J/J ~0 /v;
Sec KYJtoh~r,
Name . . . . . . . Danny Aranzj!jha vtRtrf' A-vl A> .J? JJ .
. ·
Fax Number . .
~'if', .,.~.a~
voice Number .. 202-208-4709
~ _ tvl?,dt_ ~~
.Message . or comment ...
41-L. ~t! ~I
r 10..,_.. .
CLINTON UBR'~RY PHOTOCOPY
Date and time of transmission: Tue 10-22-96 05:01PM
· <Including this cover page.>
Number of pages: os
�- - - - - - - - - - - - - - - - - - - - -
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. fax
Classified fax number. [partial] (2 pages)
02/19/1997
b(2)
002. report
The Strategic Importance of Guam. (1 page)
02/03/1997
Pl/b(l) ·
003. fax
Classified fax number·. [partial] (1 page)
12/11/1996
b(2)
004. note
To Robert Uriu from Monette. Subject: Offer the Following Advice.
(1 page)
12/09/1996
P5
005. fax
Classified fax number. [partial] (1 page)
12/06/1996
b(2)
006. memo
To Admiral William Perry from John Garamendi. Subject: Guam
Commonwealth Negotiations. (4 pages)
12/02/1996
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Asian Affairs
OA/Box Number:
CLINTO~l LIBR~RY PHOTOCOPY
1046
FOLDER TITLE:
Guam- Agency Positions: Land I DOD [Department of Defense]
Van Zbinden
2006-0193-F
vz518
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
. P3 Release would violate a Federal statute [(a)(3) ofthe PRA]
·
P4 Release would disclose trade secrets or confidential commercial or
finl!ncial information [(a)(4) of the PRA].
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy.[(a)(6) of the PRA]
C. Closed in· accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.s:c.
2201(3)..
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
�/
_ ..
DEC-09~1995
18:05
703 595 8222
P.02
...,~ <.::.- '1 t.) 0
CLINTO~l UBR~RY PHOTOCOPY
Bob:
. Phil Barringer, Ralph Thomas, Nicole Doucette and I met to
discuss the upcoming interagency meeting on Guam. We offer the
following advice:
~UG
· • We all believe that there should be no;piscussions with
anyone representing Guam interests until we have a coordinated
Federal position. Above all, this initial meeting, and any follow-on
meetings, should be conducted freely and openly, without fear that
interagency positions will be compromised.
• We suggest this strawman as a starting point for process:
• • Interior produces the draft USG Commonwealth Act
based on Garamendi's views of where we stand, as referenced in his
letters to· Cabinet members.
•• Draft Act is distributed for interagency review.
•• Interagency meets and reps are assigned to Title subgroups based upon expression of interest and organizational equities.
• • Within each sub-group, NSC should appoint lead
agency to run groups, and given charter to staff level interagency
position.
• • Titles are brought together for second, reissued draft.
•• Full draft text is circulated for staff review.
• • Once staff agrees on entire text, NSC seeks
coordinated position on Act from each agency.
• • Act is presented to Guam as Federal response.
We see utility in NSC retaining control of the process. Interior
is in a good position to draft the first Act, in light of their recent
correspondence and research into Agency positions. Give us a call if
you have more questions.
TOTRL P.02
�@002
United States Department of the Interior
OFFICE OF THE DEPUTY SECRETARY
Washington, D.C. 20240
Honorable William J. Perry
. Secretary of Defense
The Pentagon
Washington, D.C. 20301
CLINTO~l UBR.~RY PHOTOCOPY
Dear Mr. Secretary:
I am writing you in my capacity as the Administration's Special Represe!J.tative for the Guam
Commonwealth negotiations. The essence of Guam Commonwealth is increased selfgovernance under the continued sovereignty of the United States. This proposal has been
"vetted'' within the executive branch since 1988, when the Guam Cotnm•)nwealth Act ·was
originally introduced in Congress by the Guam delegate. Unfortunately, despite almost a decade
of extensive intergovenunental and interagency discussions,.the issue has not yet been brought to
closure. The people of Guam are still waiting for the United States to re:;pond in a definitive way
to their request. My personal goal is to have a legislative package endor::~ed by the
Administration and transmitted to the 105th Congress early next year.
My staff and I have worked with representatives from your Department :for the past year on
Commonwealth issues that are within your Department's purview. We have reached a point
where the outstanding issues have been fully discussed and differences in opinion noted.
the
enclosed memorandum, I have taken the liberty of laying out the Commonwealth issues that I
consider priorities for resolution by your Department. Please note that tb.e positions ascribed to
different agencies are informal in nature. Although there have been extt:nsive discussions
· between our staffs, none of the issues outlined have gone through forriial OMB clearance.
In
As we end the first term of this Administration, I seek your help in bringing immediate closure to
these issues. It would be extremely detrimental to the negotiating proc~~ss 'With Guam if
resolution of these issues is delayed until after the transition to the second term -- a new team
may be put in place, the learning curve would have to be restarted, and 1he same issues which
have been around for almost a decade would be recycled for several more years.
In regard to effectuating change within large bureaucracies, someone once said, "Unyielding
pressure applied unrelentingly yields unassuming changes measured inc~rementally." I seek your
help in this endeavor and will be contacting your office directly to follow up on these issues.
Enclosure
cc: Dr. John P. White, Deputy Secretary
�· - . 12_.1~4/96
WED 14:27 JAX
l4J OOJ.
CLINTOI\1 UBR~,RY PHOTOCOPY
GUAM COMMONWEALTH
RESOLUTION ISSUES FOR DEFENSE DEPJlRTMENT
December 2, 1996
Issues referred to in this report are based on an informal draft document that reflects my
negotiations with Guam and federal agencies during the summ~r. Although the document as a
whole has not been circulated, all sections have been ·discusselseparately with agencies having
an interest in particular issues or sections. Once negotiations are conclud(:d and all open issues
are brought to closure, I plan to circulate my fmal report and a completed docwnent for formal
· Administration approval through the OMB referral process.
Excess Land
-{ s~ ~~ !\) l>u :f") .
Issue: Should the Government of Guam be authorized to obtain j.~derallands declared
excess in Guam, prior ·ro screening by other federal agenc.fes?
A. Background
Guam is a small island, approximately 3 0 miles long, 7 iniles wide and 2:20 square miles in area.
About one·third of the island, or 44,800 acres is owned by the military. Ofthi~ amount, the Air
Force controls approximately 24,500 acres and the Navy controls approximately 20,300 acres. In
addition to the military, the U.S. Fish & Wildlife Service is a major federal land manager in
Guam. It controls a 28,3 89 acres wildlife refuge on Guam, of which about 28,000 acres is
overlaid upon lands o'Nn.ed by the military and about 3 71 acres is owned by the Service in an
area known as Ritidian Point.
As the economy of Guam bas grown, so has the demand for developable land. This has led to
increasing pressw:e by the Government of Guam to seek return ofFederEuly-owned lands. From
Guam's perspective, land was taken by the military after World War II with the "understanding"
that the land would be returned once it was no longer needed for milit~r purposes. With ·
military downsizing and base closure activities in Guam, there have been increasingly strident
calls for the return of federal lands declared excess by the military. Approximately 11,400 acres
of military land in Guam have been identified by the Defense Departm.e:at as releasable or
potentially releasable.
At the same time that the military is down-sizing and there are increasiiJ.g calls for the return of
land to local con1~ol. the FWS is seeking to consolidate ownership of la:nd in (_}uam that it
considers critical for the viability of the Wildlife Refuge. This has led to a situation where the
1/ FWS has sought and received the transferoflands in Guam declared excess by the milit~. This
has led to direct confrontation between Guam and the Federal governm~nt. On the legal front,
the U.S. Attorneys Office in Guam and the Department of Justice in Washington are defending
the Federal government against lawsuits brought by the Government of Guam and by private
parties. The Government of Guam lawsuit alleges, among other things, that the transfer of
,____
Ritidian Point to the FWS was illegal and seeking return of the parcel t:l local control The
�12/04/96
WED 14:27 FAX
i4J004
private parties hav1e brought lawsuits seeking title and access through mihtary and Refuge
property.
B. Proposal
In addition to litigation, Guam has concurrently sought legislative relief 1hrough two avenues.
The fust consisted of various sections in the draft Guam Comwonwealth Act. As originally
~d. the Commonwealth provisions soug!tt an extremely broad scope of local authority over
the identification, declaration and transfer of federal excess lands in Guam. The original
Commonwealth proposals also had land provisions relating to federal powers of eminent domain,
access to federal property and utilities and management of submerged la.11ds in the exclusive
economic zone. The second avenue consisted of separate legislationjus1. on the excess lands
issue, which was introduced by Guam Delegate Underwood. Underv;oo:l's proposals focused
solely on giving Guam a "ri~ht of first refusal" -.- i.e. it would have givell Guam the right to
obtain excess federa}lands on the island, at no costs and prior to screening by federal agencies.
In the waning days of the 104th Congress, there was a last-minute attempt to pass a form of the
Underwood legisliation. It was strongly opposed by the FWS, the Defense Department, the
General Services Administration and the Justice Department's environn:teri:tal division. Due to
agency opposition, the Guam excess lands legislation failed ;o pass eithc!r the House or the
Senate.
C. Arguments Against Excess Lands Authority For Guam
The FWS argued that providing Guam with a "first refusal" right would. 'undermine its current
ac~ to excess military land necessary for viability of the Wildlife Refuge. The Justice
Department expressed concerns regarding the effect of such a policy in its current litigation
against Guam. Among other things, Justice points out that there is c~tly no law, policy or
legal precedent that allows the Government of Guam or private landown.ers to obtain property
obtained legally by eminent domain and paid for (in some cases more than once) by the United
\ States.. The Defense Department argued that any Guam excess lands legislation should be
considered only within the context of the Guam Commonwealth negotiations. The General
Services Administration stressed that it was against making any special exceptions for Guam in
. the uniform application ofthe general laws governing disposal of real property, including the
payment of fair .market value.
.
.
D. Arguments In Support of Excess Land Authority For Guam
It is important to realize that the disposition of excess federal lands in Guam is one of the most
highly-charged political issues in the island. It is driven by the e~onomic value of scarce land
resources in Guam. It also finds its strength in the people's perception that the United States
"stole" land from original landowning families. It also plays into charges of U.S. colonialism,
CLINTON LIBR.il.RY PHOTOCOPY
2
)
�-
12/~4/96
- · ;------·--
-·
WED 14:28 FAX
@005
that one federallar1d baron transfers "stolen property" to another federallmd baron. The land
issue is so strong that some believe that it drives Guam's quest for Commonw~th status.
·From my perspective, if the lmd issue is not resolved soon, it will form the basis for an
increasingly hostile and uncooperative attitude from Guam's political and community leaders./
Unlike the iinm.igration issue or the Chamorro self-determination issue, which find different
sectors of the local! community on opposite sides, the land iss~e seems to have thepotential to
unite all groups in Guam. Thus far, most of the hostility has been limited to political rhetoric,
lawsuits and sporaldic protests by certain landowning families arid a small but vocal nationalist·
movement. The trend towards increased agitation against the United Sta·tes will only grow
stronger and more widespread the longer the land issue remains unresolved.
·
In the long-term, this growing tension will only serve to make military and federal agency
presence in Guam more difficult and less stable. Guam, after all, is an insular community
located thousands of miles from the U.S. mainland, separated not just by geography but by
history, culture artd tradition. Short of sheer military force,-the United States has. few options if
the entire local community becomes galvanized to actively work against federal operations in the
island. While this may seem like a remote possibility at. this time, stranger things have happened
on a global scale --viz. the dissolution of the Soviet Union and the end ·of the Cold,War.
It is important to emphasize that the lands that Guam wants are limited only to those that the
military has determined that it no longer needs to accomplish its mission on the island and in the
region. Taken on its face, providing excess military lands to Guam would not jeopardize any
national security interests. On the contrary, returning such lands to local control would provide
·
long-term stabilhy to the relationship between the U.S. and Guam.
With respect to concerns raised by the agencies, we can agree to the prbciple of giving Guam a
"right of first refusal" while accommodating agency concerns through c:areful drafting of the
provision. First, in order to address FWS interests, Guam's "right offtrst refusal" can be
structured to apply only to excess federal lands not currently within the boundaries of the Guam
Wildlife Refuge. This would assure that FWS has continu~d access to excess military lands that
are necessary fo1r the viability of the refuge. With respect to Justice's concerns regarding impact
on current litigation, there is a clear distinction between existing realproperty laws and policies,
which support continued U.S; control of existing federal lands in Gua!ll, and a prospective law
which will apply only to the transfer of future federal. lands declared excess by the United States.
With respect to Defense's concern that the excess lands issue be discus.sed within the context of
the Commonwealth negotiations, this concern is met by being cognizant of the excess lands issue
and understanding its interplay with other land issues in the Commonwealth proposal. It should
not mean that excess lands legislation cannot be considered separately and on a faster track than
the Commonwealth legislation. Finally, concems raised by GSA app1~ar centered on retention of
the status quo, which I do not believe is a reasonable response to Guam.
CLINTON LIBRARY PHOTOCOPY
3
�-------------------------------~----------------c-------
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. note
DATE
SUBJECT/TITLE .
c. 1996
Handwritten notes on Guam issues. (2 pages)
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Asian Affairs (Robert Suettinger)
OA/Box Number:
CLINTON LIBRARY PHOTOCOPY
1044
FOLDER TITLE:
Robert Uriu Notebooks: [Guam]
Van Zbinden
2006-0193-F
vz1179
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) ofthe PRA]
.P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release woulddisclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
·P6 Release would.constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ofthe PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release' would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or fmancial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�CLINTON LIBRARY PHOTOCOPY
~-----~
~-----~--~----
-~----~~--~~----~------------~
~-----
�CLINTON LIBRARY PHOTOCOPY
'
'
'
--~of\-"'1
~ ~ /"""' ~L,-~__,_1·_w_f)_~-~-fo-----'--'--.~--------'--'--
-~1·~.·--~~,_--~------~--------~--~-----------------~{l_~~-· ~. fkO)_ _ _~--------------
------11
------fl
--~'
Lw 1n tUJ. '
------Q Cl l,w.t-. 6"l'\
.
kL,j - - c_l
1
L,fm~·~-~-
f:Too L.t-
---
tJr 1~~-r_C_JJ_J_________
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
1111994
Handwritten Notes regarding Guam. (2 pages)
001. riote
RESTRICTION
P5
f''
)
COLLECTION: "
Clinton Presidential Records
National Security Council
Assistant to the President for National Security Affairs (Lake Subject Files, 1993-1996)
ONBox Number: 1465
FOLDER TITLE:
Guam
CUNTO~.J
UBRU.Fn' PHOTOCOPY
Van Zbinden
2006-0193-F
vz1180
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [{a)(4) of the PRA]
'
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
· P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)] ·
b(l) National security classified information [(b)(l) ofthe FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b )(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b )(9) of the FOIA]
�CLINTON LIBRARY PHOTOCOPY
"-
----
z__,__ ti;.
Qr<1
.
,.
~
.
-(-4AJll-L ...,,. ,-~-~
fA. 'I .
2.~!
lo'l..
3Jtf
4
----
)~.
A-I
_ _ ___
.
-
1.., Lt.r,. ""
-~-'n-0Vvv~- tq !---c--
1-.-1)
'1 ~
~-
- ~~~ bv
,,~"'
~YU-( f_Vl.J{A
- tN-[ '"' -u;;:;;
~'!&~~
(0)
-
~~
....
-t D
~t...lvt. u. I{
~ ~-. I
~
Cn,_.f'wn.~~
~/
-~
5~
b
~-~----Y-lr+':
'
----
I
1
-----
-
-
~ ~Ih4
L;n...c
~ ..
2
-]
14
----
~ •. ~~&r> ·~
~fi.n.~K-
----
P""-4./t.. ~·~
------
ioJ'f-
~
f/J~
'I
VI.
(A,f>lt...J
s~-rr~~~9
'"D pvwt
-~-·--·
~
~!';'J-0)·L..
tvb. ~~~
"¥· - ~t;,h
w.
------
.
--.........
v(~
iF.J--l
'!;;;)-~ y_Jt:;.~,'?-
.
""' ,..
~----
f...jS ut;..,;.•..A<ilfc.
A1f4. - )1'1 ~~df!~tfk~i!lliA4
-
)&..JA.. JJ.
;,.'
1/JV-.
\
~
&J1I..<.,.
----·-----
fh..~ ' \
.
-If~ ~,, t fh. ~·n:u
-----
I ~>2."--
---·---------
A/If
·--
\
---
\nJa~~~~
---
19~11 "i ~t,·fy_
--,
~
~
~ ~hOU...t
-
-
nv,·~~
- 4--o
---- - - - - - - - - - - - --
-
~ pr/..uJ
- - - - - - , - - -- - - - - - - - -
-~.r7.
l
'
--\-
&k-ith~
-
~
\
_----i----
------!:
~
--------- - - - )
--------------------------------------
-----------
_________
-
-----------
""a
/t-
1
~vJ,.;..j "r<./
-------
.
.. --I __ ru_~-&.11~-----~
J LM-~
. .
---------------
-------------------------,-_PF'j
-·----------
-------------- - - -
----
~u~, hJl'J~- - - - - - - - -
_____________ ~ ___ ?,.j Mf-w~-~-}YJY, ~~_}J-~_•t!L~---------------~ ----~---------------pit._ ta-.4.·.uro - 1..1- ~ -~ ~-
---------
-----------~
---
----
~oh'lt~ ¥~1\.--~----------
-------------------:t)
-------·---------- -·· -'J:il
--
-------·-
1/
.....
_____
-------
---
----
---
.
.
--------------
- - - - - -----------------------
-=
.
tiP'wl~~~------_:_=~'
----------~~-----~ ~-----
-
I
---~--------------
- - - - - \ - "---····--~--··-----------·----·- -
--------- ---
�CLINTON UBR~~RY PHOTOCOPY
-----------~----------------------------------------------
_ _:_________A_f~
~~r_,.._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - -i
~/ll)J o.k'u..~·a ~l(f(b
ft,.wrt,'{--------------
Lii.'J-I(#A~ ~-------~----------------------
-----1---_1-~
1
-----------{~1~ ~( tm,~
~;~
- - - - - - - - _ _ _ _ ____:___ __:__t1."1::___:__.
,_
,- "--w /!1-~~-----------~v QYNI-0Jf)v ~t~_}______________________________ _
---~----~~~~~~~~~~~~~,A~~~-------~--------' --f-t,c-·~-'z,-~;t-)"l;lT '
II
I-
rt{~ ·.
__
"J_~M~-
~~ ~~~
----1-----
_
.
~·~,_4--'-vh
___ -----:-___________________
1
h;
J ..
Jk{f
in~------------------------------
'~ tv-(N,.~ ~~~ r;4
-------+--------~- wtAttlA-
-
~
14..
~-=-'p,_~-------------
.
-
m..h' llvi ~-----~-----------
--------1----------------------------------------------------------
r
4<Jo-7~s--z__
~~~
~
--------------------------------------------------~--------------------------
i
L----------------------------------------------------!
!
c--------------------------------------------
----------------------------·-
-------
---~------------------------------
)
--~-------,--------------------
- - - - - - - - - - - - - - - - ·- - - - - - - - - -
-------------------------------------------------------------
-~---------~-----------------------------~-------------~---------·-:-----
----------------------_-----------------·---------;--------------------
�Witharawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
OOla. draft
Memo to Sandra Kristoff and Bob Bell trom Don Kerrick. Subject:
POTUS Stop in Guam. With marginalia. (1 page)
10/28/1997
P5
OOlb. memo
To S~dy Berger and Jim Steinberg from Mickey Ibarra and Fred
DuVal. Subject: Guam. (1 page)
10/27/1997
P5
002. email
From James Seaton to @NSA, Leon Fuerth, and Sandra Kristoff.
Subject: Rep. Underwood. With marginalia. (1 page)
07/28/1997
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Defense Policy (James Seaton)
CLINTON LIBRAR'r' PHOTOCOPY
OA/Box Number: 1236
FOLDER TITLE:
Guam BRAC [Base Closure and Realignment Commissi~n]
Van Zbinden
2006-0193-F
vz1181
RESTRICTION CODES
Presidential Records Act" [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA] ·
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
·
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information ·[(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA].
. P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be. reviewed upon request.
�FROM:
next
Elkon
CLII~TON USR'\R\' PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
MEMORANDUM T
FROM:
Mickey·~IIDr-IU'r
Fred DuVal
SUBJECT:
Guam
CC:
Erskine Bowles ·
Sylvia Mathews
Stephanie Streett
Craig Smith
Thurgood Marshall, Jr.
Jeft'Farrow
Janet Murguia
Lucia Wyman
Bill Marshall
Sandra Kristoff
For 'many years, the territory of Guam has been seeking federal government support for a bill to
chaitge its status within U.S. sovereignty. However, many of the bill's proposals are unacceptable
to the Administration. This will be made clear at a U.S. House hearing Wednesday. The reaction
in Guam will be one of niajor disappointment.
For this reason- and beCause of the President's interest in our citizens in Guam who often
question whether their small. and distant island is appreciated in Washington, we are trying to
identify an action that can be taken contemporaneously with the. hearing that.will signal the
continuing U.S. commitment to Guam.
·
·
Announcing a Presidential visit would be such an action. It would significantly "soften the blow"
and emphasize the continuing importance that Guam's relationship to the U.S. has to the
Administration.
·
Since a trip of such magnitude is only feasible in connection with travel elsewhere.in the region,
we would like to propose that we tell the Governor of Guam - who is in Washington for the
hearing- and Guam's Delegate to.Congress this week that the President Will stop in Guam in
route to either China or APEC next year.
With major Air Force and Naval bases, Guam is a logical stopover to Asia and has been used for·
that purpose in past Administrations.
We recognize that many decisions on prospective Asia travel are not yet made, but anticipating
that a trip will occur sometime next year, we would like to recommend that this decision be
expedited..
CUI~TON LIBR/\RY PHOTOCOPY
�Kelly, Sandra L.
From:
Sent:
To:
Cc:.
Subject:
Bill Danvers and I visited with Representative Underwood (Guam) today to listen to th Congressman's concerns
)
regarding the recent DoD decision to establish separate DoD dependents schools
1litary dependents currently atte d
Guam-run schools). ·The DoD decision came a year earlier than Underwood expe ed and resulted from poor
educational, health and safety conditions in the local schools.
'
Underwood's real issue is that this is yet another instance where the Federa overnment is running roughs d over
Guam. At a time that Guam is taking on greater strategic importance (with losure of bases in Philippines, nrest in
Okinawa, resettlement of Kurds, etc.), the USG is not cultivating its relati ship with Guam. In addition t the DoD
schools issue, the USG is not working closely with Guam to overcome e economic effects of base cl ures nor to
expeditiously turnover land to Guam. These actions, explained Unde ood, of which the school issu IS only the latest,
are "in ironic contrast to the President's race initiative" and demonst te that there really has been " progress in Guam's
political status on the part of the Clinton Administration."
CLINTON UBRr.i.R\' PHOTOCOPY
1
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. email
To Morton Halperin from Danny Aranza. Subject: Special
Representative on Guam Commonwealth. (2 pages)
02/14/1995
P5
002. memo
ForT. Alexander Aleinikofffrom Janice Podolny and Craig
Raynsford. Subject: Commonwealth Negotiations with Guam. (4
pages)
11/30/1994
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Democracy, Human Rights, and Humanitarian Affairs (Morton Halperin)
ONBox Number: 492
FOLDER TITLE:
Guam#2 [1]
CLINTON LIBRARY PHOTOCOPY
Van Zbinden
2006-0193-F
vzll82
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office [(a)(i) of the PRA)
P3 Release would violate a Federal statute [(a)(3) ofthe PRA]
P4 Release would disclose trade secrets or confidential commercial or
fmancial information [(a)(4) of the PRA]
PS. Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
'
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b )(7) of the FO lA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b )(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerillng wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�'0'202 20s aJflo
OIL-\. .
~~~
XSC
DE~OCRACI
14J002-'003
.
'
[54} From: Danny A:r-anza at -IOS 2/14/95 12:36PM (4075 by"tes: 77. ln)
To: Tom. Collier, BJ Parker, Leslie Turner,· TIM ELLIOT'!' at ~ISOL,
SECSI@Siv~I.SI.EDU at ~INTERNET, John Wright
Subject:· GUAM CO!ffiotrwEALTH - REPACEMENT FOR MIKE HEYMAN
---~~---------------~---------- Message contents -------------------------------
( 1)
I am informed that Congressman Underwood had a very
positi-ve telephone conversation with Richard Mallery.
Underwood relayed his positive reaction to Governor
Gutierrez and the word back is that the Governor is also
upbeat regarding Mallery's possible selection as Mike
Heyman's replacement.
(2)
Due to the positive reaction to Mallery by the
Govenor, Underwood's office has asked
whether the Secretary could publicly announce his
designation of Richard Mallery as the Adminsitrationrs
Special Representative on Guam commonwealth BY NEXT WEEK.
>·
0.
0
0
~
0
:c
0.
(3) Underwood is seeking an announcement by next week
because Governor Gutierrez will be. in D.C. FEBRUARY 21 to
24. While the Governor is in town, they would like to
arrange meetings with Secretary Babbitt, Secretary Heyntan
and Richard Mallery (if he can be flown in from Phoenix).
* If a public announcement is doable by next week, I
propose two meetings: (a) one meeting woUld include
Secretary Babbitt, Secretary Heyman, Richard Mallery,
Governor Gutierrez and congressman Underwood -- this couldbe structured as a joint press conference;photo opport~~ity
announcing Mallery's designation as Special Representative
for Guam commonwealth~ (b) a second meeting would be a
private, working meeting among Secretary Heyman, Richard
Mallery, Governor Gutierrez and Congressman Underwood (plus
staff of the principals) to discuss moving forward with the
negotiating process.
(4)
Issue for Immediate Decision:
IS SECRETARY BABBITT
READY AND WILLING TO MAKE A PUBLIC ANNOUNCEMENT OF MALLERY'S
SELECTION BY NEXT .WEEK?
If so, the following tasks need to be undertaken
immediately:
· o resolution of personnel-type issues with Mallery e.g. contractual arrangements (Secretary, Collier, Mallery,
Tim Elliott - SOL)
o
drafting letter from the Secreta_ry designating
Richard Mallery 11 with the conc.ur:rence of the President"
(as was done with Mike Heyman, this will need some Jcind of
clearance from the White House) (Collier, Turner, .P-..ranza) i
o drafting a press release to be issued jointly by the
Secretary.. Governci~ Gut:ierrez 9-Jld Con~essman Underwood and
preparing for ~fess conference (Ar~flza, Wright);
. o~LINTON LIBRARY PHOTOCOPY ! •
•
o coorduilling. schedules Qt. .the p:¢2.nc1.pals for a press
- .
...
.
-.-·
~.
.(\
'
;
"
..
.
.
�OTU.
+++
\SC
DE~OCRACY
[ij(l(l3i(l(l3
•·'
I
conference a..c!d
c
private working meeting between February 21
and Februa.r·{ :.:; (Barbara Atkinson, Barbara
Cederborq, Sh.;.r-on Herald, Faye Jones)
o preparinq an agenda and materials for the private
working neeting on next steps in the process (Heyman,
Hallery, Turner, .Aranza, Elliott)
(5) The Secretaryrs decision can be relayed to Danny Aranza
via cc;:mail or phone (208-4709) and Aranza will initiate
coordination of the various tasks required.
!6) Note: Notwithstanding their positive reaction to
Hallery and :Ear reasons having to do with Guam's local
political situation, Underwood and Gutierrez will be sending
the Secretary a letter recommending that Stan Roth be
selected as Special Representative, wit~ a proviso that they
understand that Roth's present duties may not permit him to
Q~dertake this position.
cc: Richard Mallery (fax - (602) 382-6070)
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
OOla. letter
To Michael Hayman from Walter Dellinger. Subject: Guam
Commonwealth Act. (2 pages)
06/29/1994
P5
OOlb. memo
Proposed Alternatives for Mutual Consent Provisions. (2 pages)
06/29/1994
P5
002a. letter
Duplicate ofOOla. (2 pages)
06/29/1994
P5
002b. memo
Dupliqate ofOOlb. (2 pages)
06/29/1994
P5
003a. letter
Duplicate ofOOla. (2 pages)
06/29/1994
P5
003b. memo
Duplicate ofOOlb. (2 pages)
06/29/1994
P5
004. memo
For Secretary Babbitt from Mike Heyman. Subject: Guam
Commonwealth. [partial] (4 pages)
06/3011994
P5
005. memo·
Duplicate of004. (4 pages)
06/30/1994
P5
006. note
To Morton Halperin from Mike Heyman. (1 page)
06/1611994
P5
007a. letter
To Morton Halperin from Mike Heyman. (1 page)
06/02/1994
P5
007b. memo
Guam's Negotiations. (5 pages)
06/02/1994
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Democracy, Human Rights, and Humanitarian Affairs (Morton Halperin)
ONBox Number: 492
-
FOLDER TITLE:
Guam #2 [5]
CLII~TON LISR!~RY PHOTOCOPY
Van Zbinden
2006-0193-F
vz1183
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
Pl
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b )(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
Natiomii''Security Classified Information [(a)(l) ofthe PRA)
Relating to the appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Clo.sed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misflle defmed in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
•
•
1
-
•
•
••
.,
... •
•
t
~~:~.:J.M
�..
.
.
.
.
.
OFFICE OF THE
SECRETARY OF THE INTERIOR
1
l
WASHiNGTON
June 1.6, 1994
Note
To:
Morton HalperJn= //).,
·From:
'
I
Received the attached this afternoon. I am shocked
that Dellinger purports to decide v-;i thout even
affording us a hearing.
(I suspect that all he is
doing is signin~ letters pr~pared by Marcusa.)
can you get us an audience?
June
22.
afternoon.
thereafter.
You
We
.I return Wednesday,
have an appointment that
should see him then or soon
and
'
Lfjl,.(J!J/._
Mike Heyman
I
Attachment
.PRESERVATiON PHOTOCOPY
~~LINTON Lffi~Y P~OTOCDPY 'l
·--·~~"!.-;~,-~~~.:::·,_.'. --~~--.'--... : :_ ..·-·-·-
.":-..
-~·_,.
.L ...
-~-~)
)
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT' NO.
AND TYPE
DATE
. SUBJECT/TITLE
RESTRICTION
001a. form
I-590. [partial] (2 pages)
c. 09/1999
P6/b(6)
001b. form
I-590~
c. 09/1999
P6/b(6)
002. email
To Fred Duval from Jeffery Farrow. Subject: Scott Busby. (1 page)
04/09/1998
P5
003. email
Duplicate of002. (1 page)
04/09/1998
P5
004. memo
For John Podesta from Samuel Berger and Mickey Ibarra. Subject:
Deterring Chinese Illegal Immigration to Guam. Record ID: 9903101.
(2 pages)
07/30/1999
P5
005a. memo
For John Podesta from Samuel Berger. Subject: Deterring Chinese
Illegal Immigration to Guam. Record ID: 9903101. (2 pages)
04/24/1999
P5
005b. draft
Memo for John Podesta from Samuel Berger and Mickey Ibarra.
. Subject: Deterring Chinese Illegal Immigration to Guam. Record ID:
9903101. (1 page)
04/24/1999
P5
[partial] (2 pages)
COLLECTION:
Clinton Presidential Records
National Security Council
Multilateral and Humanitarian Affairs (Scott Busby)
OA/Box Number: 2251
FOLDER TITLE:
Guam [1]
CLINTON LIBP-.ARY PHOTOCOPY
Van Zbinden
2006-0193-F
vz553
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
National Security Classified Information [(a)(l) ofthe PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
ofgift
'
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�-.[·'~'"·-~··'"'''•
Jeffrey L. Farrow
04/09/98 04:31:39 PM.
Record Type:
Record
To:
Fred DuVai/WHOIEOP
cc:
Subject:
Scott Busby/NSC
I just met with Scott and am cool to that they want to do - put Pol Pot in the NMI because the Immigration
Act (that we're trying to apply) doesn't. I told him I'm cool because the opposition to extension will use our
using the NMI as a rationale for not extending, this will raise concerns with the George Millers and Akakas
on the Hill, and the issue has gotten too much media attention not to get noticed. I'm also not sure that
there's not the asylum problem that he thought they'd be avoiding.
I suggested further consideration of other insular areas such as Palau or the Marshall Islands which are
outside US sovereignty but still pretty much under our control.
He's open to the idea, wanted me to talk to Justice, and I'll go to an interagency meeting tomorrow on the
matter.
1also said I'd help with the intergovernmental/congressional aspects if the decision is the NMI (its pretty
far down the line and I don't think its the end of the world to go that way). I also said mnterior ought to be
involved and he and· I will talk to John Berry.
CLINTON LIBR/.\R\' PHOTOCOPY
�/
..
........ Jeffrey_L. Farrow
04/09/98 04:31:39 PM
Record Type:
To:
Record
Fred DuVaiiWHOIEOP
cc:
Subject: Scott Busby/NSC
I just met with Scott and am cool to that they want to do - put Pol Pot in the NMI because the Immigration
Act (that we're trying to apply) doesn't. I told him I'm cool because the opposition to extension will use our
using the NMI as a rationale for not extending, this will raise concerns with the George Millers and Akakas
on the Hill, and the issue has gotten too much media attention not to get noticed. I'm also not sure that
there's not the asylum problem that he thought they'd be avoiding.
1suggested further consideration of other insular areas such as Palau or the Marshal Islands which are
outside US sovereignty but still pretty much under our control.
He's open to the idea, wanted me to talk to Justice, and I'll go .to an interagency meeting tomorrow on the
matter.
I also said I'd help with the intergovernmentallcongressional aspects if the decision is the NMI (its pretty
far down the line and I don't think its the end of the world to go that way). I also said Interior ought to be
involved and he and I will talk to John Berry.
,
CLINTON LIBR'\RY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DATE
SUBJECT/TITLE
DOCUMENT NO.
AND TYPE
RESTRICTION
OOla. memo
Summary of Conclusions for Meeting of the NSC Deputies
Committee. Subject: Summary of Conclusions for DC Meeting on
Migrant-Burden Sharing. (2 pages)
08/26/1999
Pl/b(l)
001 b. list
Deputies Committee Meeting, August 26, 1999, Attendees [partial]
[CIAAct] (1 page)
08/26/1999
P3/b(3)
OOlc. draft
Summary of Conclusions for Meeting of the NSCDeputies
Committee. Subject: Summary of Conclusions for DC Meeting on
Migrant-Burden Sharing. (1 page)
08/26/1999
Pl/b(l)
OOld. draft
Summary of Conclusions for Meeting of the NSC Deputies
Committee. Subject: Summary of Conclusions for DC Meeting on
Migrant-Burden Sharing. (2 pages)
08/26/1999
Pl/b(l)
OOle. draft
Summary of Conclusions for Meeting of the NSC Deputies
Committee. Subject: Summary of Conclusions for DC Meeting on
Migrant-Burden Sharing. (2 pages)
08/26/1999
Pl/b(l)
002. memo
From William Treanor to James Baker. Subject: Authority to
Implement Burden-Sharing Plan for Migrant Operations at
Guantanamo and Other Overseas Facilities (8 pages)
04/02/1999
Pl/b(l)
003a. form
Routing Sheet. Annotated. ( 1. page)
04/24/1999
P5
003b. draft
For John Podesta from Samuel Berger. Subject: Deterring Chinese
Illegal Migrat~on to Guam. Record ID: 9903101. (1 page)
04/24/1999
P5
003c. draft
Duplicate of 003b. (1 page)
04/24/1999
P5
COLLECTION:
Clinton Presidential Records
National SecuritY Council
Multilateral and Humanitarian Affairs (Scott Busby)
ONBox Number: 2251
FOLDER TITLE:
CLINTON LIBR/\RY PHOTOCOPY
Guam [2]
Van Zbinden
2006-0193-F
vz523
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [S U.S.C. SS2(b)]
Pl
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
· information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of·
financial institutions [(b)(S) ofthe FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe.FOIA]
·
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ofthe PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misflle defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
..
:
.'.;.:?~
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
003d. draft
Duplicate of003b. (1 page)
04/24/1999
P5
004. demarche
Chinese Migrant Smuggling to Guam. (4 pages)
04/2.3/1999
Pllb(l)
005. draft
Memo for John Podesta from Samuel Berger. Subject Deterring
Chinese Illegal Migration to Guam. (1 page)
04/23/1999
P5
COLLECTION:
Clinton Presidential Records
National Security Council
Multilateral and Humanitarian Affairs (Scott Busby)
OA/Box Number: 2251
FOLDER TITLE:
Guam [2]
CLINTON LIBRARY PHOTOCOPY
Van Zbinden
2006-0193-F.
vz523
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
PI
P2
P3
P4
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commerciar or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 u:s.c.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S. C. 552(b))
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information· [(b)(4) of the FOIA]
b(6) Release. would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the·FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
· b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would ·disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
�National Security Council
The White House
PROOFED BY: - - - - - -
LOG# _ _'5_\~D"---'-\
URGENT NOT PROOFED: _ __
SYSTEM~$NSC
___
BYPASSED WW DESK:----
X~
)~
SEQUENCE TO
Davies
'·
A/0
---
DISPOSITION
®)~fi;
@)4/d-3 __
Kerrick
____,..,.__-t---\J__
Steinberg
v:q _·-
Berger
Situation Room
-f-0!H~
I = Information
cc:
COMMENTS:~
Exec Sec Office· has disket
CLINTON UBRAR\' PHOTOCOPY
INITIAUDATE
l
Rice
Records Mgt.
DOCLOG
/NT . ARS
0 = Dispatch
A = Retain
+
N = No Further Action
�Withdrawal/Redaction Sheet
Clinton Library.
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
Phone No. (Partial) (1 page)
11111/1998
P6/b(6)
002. briefmg paper
re: Deliverable issues for Guam (2 pages)
n.d.
P5
003. list
re: Trip meeting (1 page)
10/21/1998
P1/b(l)
004. memo
Samuel Berger to Stephane Streett to President William J. Clinton re:
Post-APEC-travel (3 pages)
09/29/1998
P1/b(l), P5
005. memo
Samuel Berger to Stephane Streett to President William J. Clinton re:
Post-APEC-travel (3 pages)
09/29/1998
P1/b(1), P5
COLLECTION:
Clinton Presidential Records
Scheduling Office
OA/Box Number:
CLINTON LIBR~RY PHOTOCOPY
16415
FOLDER TITLE:
Guam. Malaysia, Japan and Korea 11/13 -11122/98
Jamie Metrailer
2006-0193-F
'milS
RESTRICTION CODES
Presidential Records. Act- [44 U.S.C. 2204(a)]
Fr~edom
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Rdease would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA].
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions ((b)(8) of the FOIA]
b(9) Rele!!se would disclose geological or geophysical information
concerning wells [(b)(9) of the FqiAJ
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) ofthe PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
of Information Act- [5 U.S.C. 552(b))
�'
..
CUNTONUBRAR\' PHOTOCOPY
Deliverable Issues for Guam
Micronesian Compact Impacts- The U.S. Free Association Compacts with Micronesia, the·
Marshall Islands, and Palau have enabled 10,000 citizens of those states to move to Guam. The
Compact law authorizes reimbursement of costs to Guam and other U.S. islands. $4.6 Million is
being provided annually through FYO 1. If we support it, Interior will increase this to 10 Million(the minimum the governor says is needed) by subtracting from the allotment to the CNMI
discretionary.
End Interior Auditing of Guam- The Interior IG audits both local spending by the smaller
territorial areas as well as the use of federal funds. There is no similar auditing in our largest
territorial area, Puerto Rico. The other territories consider tllis auditing colonial. We would
p~opose a bpl to end the auditing as Guam and other islands were certified to have independent
1
lo~al auditing agencies.
·
·
Gu,~anian J.s. Attorney- The nomination of a U.S. Atto~ney for Guam- as requested by the
,,
Govetnor and the Delegate to Congress - is not ready for announcement.
\
Liberalize Trade Restrictions- Guam and the other small territorial areas are outside the Customs
territory of the U.S. market if they meet specific tests. Guam has sought the 'elimination of most
free trade restrictions. We have cleared but not yet announced proposed legislation to eliminate
redundant value added requirements. It would not apply to garments in light oftpeabusiye
Northern Marianas garment industry.
·
Excess Military Property Conveyances- 30% of Guam is federally-owned, most of this is under
military control. Much of the military holdings are seldom or not used. (It is being held for
contingencies.) Guamanians feel the extent and location of tills land limit~ their economic
development. Additionally, some of the land was unfairly acquired. Former owners feel they
have missed out on fortunes others made by selling to Japanese investors. The President may be
able to announce plan to convey:
- 2, 136 acres Air Force acres;
- 360 Air Force housing units on another 519 acres; and
-some Navy property
We may also want to announce plans to:
- ask Congress to enact umbrella land transfers legislation without all the usual
restrictions on such transfers. (The bill passed the Senate this Congress. Guam's desire to
have land go free to former owners who were already compensated for it may be the
sticking point that discourages such an announcement.) We may also want to announce
the designation of a senior DOD official to expedite Guam and transfers.
There are also some excess military facilities that may be the basis of some announcements.
-The Navy will expedite the transfer ofl ,900 acres of land and facilities at the forn1er
Naval Air StationAgana (the name of the capital).which is adjacent to the commercial
airport. EDA will seriously consider a $1 Million plus grant for infrastructure
· improvements on the site to enhance its commercial viability.
- The Air Force will turn over its water systems to the insular system.
�...
.
'.:'
' ..
Ship Repair Facility Assistance- The Navy closed it ship repair facility on Guam and the territory
is trying to keep it in open as a private commercial operation. Maritime Administration's
(MarAd) decision to repair a ship which is based in Guam in Japan November 2 was a blow
requiring 100 plus layoffs at the already scaled-down facility. A plan to enhance the viability of
the yard may include:
-A Navy commitment to continue to sole-source 25,000 man days ofwork a year at the
yard.
- A MarAd yard modernization low-cost loans.
- Repairs to a small vessel to prevent some of the immediate layoffs
-The transfer ofNavy facilities including a dry dock 2.5 times the size of the existing
one at the yard.
DOD Ombudsman-Guam has a number of military issues and tensions between the community
arki field officers have increased. DOD has agreed with out request to designate a senior DOD
ap~intee in ~ashington to monitor and address major complaints of the Governor or Delegate.
Eco~dmic Development Plan:.. The Asian economic downturn has depressed Guam's major
· industry: tourism. The Interi"or Department will fund a major economics study in Guam.
Coral Reef Initiative- The President will propose $2 Million for Guam and other territorial areas
in his Coral Reeflnitiative and include the governor's of the areas on the initiative task force.
Relations/Status- The President would reiterate that the Administration has addressed Guam's
'Commonwealth' proposals for autonomy and economic benefits and itis now up to Congress to
act. H~ would also recognize Guam's inherent right to fuil self-government and his intent to try
to have the Executive Branch place a greater focus on the island's situation, needs, and proposals
under the current status through a senior level interagency group co-chaired by the White House
and Interior .
..I
..I
Micronesia/Marshall Islands Aid Package:.. The Presidents of Micronesia and the Marshall
Islands will be present. Our $2.5 Billion, 15 year assistance commitment to these freely
associated states expires in 200 1. The President should be able to announce the intent to begin
talks with the areas on a post 200 1 assistance package. (State has the lead because these are
diplomatic relations. Interior has a big stake because it currently coordinates the assistance.
DOD has an interest because military rights is one of our major objectives.)
Palau Road- The U.S. committed in the free association compact with Palau to build a road
through much of its largest but largely undeveloped island. The President of Palau will be in
Guam. The President should be able to announce a $150 Million plan for this road.
CLII~TON LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
·Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!TITLE
· DATE
RESTRICTION
00 I. briefing paper
re: Deliverable issues for Guam (2 pages)
n.d.
PS
002. memo
To Jeff Farrow from Joan M. Plaisted. Subject: President's trip to
Guam (I page)
11/03/1998
PS
003. draft
re: Guam deliverables (4 pages)
n.d.
PS
004. briefmg paper
re: Framing speech: America's next agenda (I page)
n.d.
PS
COLLECTION:
Clinton Presidential Records
Speechwriting
June Shih
OA/Box Number:
16420
FOLDER TITLE:
GUN 1u~~ Lltlt~l"K vPHu 10G0t.t v
Guam 11/23/98 [I]
Jamie Metrailer
2006~0193-F
'm601
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) ofthe PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
·
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�..~.
Deliverable Issues for Guam
Micronesian Compact Impacts- The U.S. Free Association Compacts with Micronesia, the·
Marshall Islands, and Palau have enabled I 0,000 citizens of those states to move to Guam. The
Compact law authorizes reimbursement of costs to Guam and other U.S. islands. $4.6 Million is
being provided annually through FYO I. If we support it, Interior will increase this to 10 Million(the minimum the governor says is needed) by subtracting from the allotment to the CNMI
discretionary.
End Interior Auditing of Guam- The Interior IG audits both local spending by the smaller
territorial areas as well as the use of federal funds. There is no similar auditing in our largest
territorial area, Puerto Rico. The other territories consider this auditing colonial. We would ·
Pl;.Opose ~ ~pl to end. the auditing as Guam and other islands were certified to have independent ·
lo~al aud1tu:lg agenc1es.
·
·
Gu~anian J.s. A~omey- The nomination of a U.S. Attom~y for Guam- as requested by the
Govetnor and the Delegate to ,Congress - is not ready for announcement.
.
,
.
·
.
Liberalize Trade\Restrictions- Guam and the other small territorial areas are outside the Customs
territory of the u.·s. market if they meet specific tests. Guam has sought the 'elimination of most
.
\
free trade restrictions. We have cleared but not yet announced proposed legislation to eliminate
redundant value added requirements. It. would not apply to garments in light of the abusiye
Northern Marianas garment industry.
'
'I
l•
Excess Military Property Conveyances- 30% of Guam is federally..,owned, most ofthis is under
military control. Much of the military holdings are sddom or not used. (It is being held for
contingencies.) Guamanians feel ~he extent and location of this land limits their economic
development. Additionally, some of the land was unfairly acquired. Former owners feel they
have missed out on fortunes others made by selling to Japanese investors. The President may be
able to announce plan to convey:
- 2, 136 acres Air Force acres;
- 3 60 Air Force housing units on another 519 acres; and
- some Navy property
We may also want to announce plans to:
- ask Congress to enact umbrella land transfers legislation without all the usual
restrictions on such transfers. (The bill passed the Senate this Congress. Guam's desire to
have land go free to former owners who were already compensated for it may be the
sticking point that discourages such an announcement.) We may also want announce
the designation of a senior DOD official to expedite Guam and transfers.
There are also some excess military facilities that may be the basisofsome announcements.
-The Navy will expedite the transfer of 1,900 acres of land and facilities at the former
. Naval Air Station Agana (the name of the capital) which is adjacent to the commercial
airport. EDA will seriously consider a $1 Million plus grant for infrastructure 1
· improvements on the site to enhance its commercial viabllity.
-The Air Force will tum over its water systems to the insular system.
to
CLINTON LIBHAR\' PHOTOCOPY
�~-
~I'
.,
Ship Repair Facility Assistance- The Navy closed it ship repair facility on Guam and the territory
is trying to keep it in open as a private commercial operation. Maritime Administration's
(MarAd) decision to repair a ship which is based in Guam in Japan November 2 was a blow
requiring 100 plus layoffs at. the already scaled-down facility. A plan to enhance the viability of
the yard may include:
-A Navy commitmentto continue to sole-source 25,000 man days ofwork a year at the
yard.
- A MarAd yard modernization low-cost loans.
.
- Repairs to a small vessel to prevent some of the immediate layoffs
- The transfer ofNavy facilities including a dry dock 2.5 times the size of-the existing
one at the yard.
DOD Ombudsman-Guam has a number of military issues and tensions between the community
aJ~ field officers have increased. DOD has agreed with out request to designate a senior DOD
ap~intee in yvashington to monitor and address major complaints of the Governor or Delegate.
\,
.
.
Ecoridmic Development Plan.:. The Asian economic downturn has depressed Guam's major
industry: tourism. The Interior Departmentwill fund major economics study in Guam.
a
Coral Reeflnitiative- The President will propose $2 Million for Guam and other territorial areas
in his Coral Reef Initiative and include the.governor's ofthe areas on the initiative task force.
-
~
,;
.
\
Relations/Status- The President would reiterate that the Administration ~hs addressed Guam's
'Commonwealth' proposals for autonomy and economic benefits and it is now up to Congress to
act. He would also recognize Guam's inherent right to full self-government and his intent to try
to have the Executive Branch place a greater focus on the island's situation, needs, and proposals
under the current status through a senior level interagency group co-chaired by :the White House
and Interior .
..I
.I
Micronesia/Marshall Islands Aid Package- The Presidents of Micronesia and the Marshall
Islands will be present. Our $2.5 Billion, 15 year assistance commitment to these freely
associated states expires in2001. The President should be able to announce the.intent to begin
talks with the areas on a post 2001 assistance package. (State has the lead because the~e are
diplomatic relatio~s. Interior has a big stake because it currently coordinates the assistance. DOD has an interest because military rights is one of our major objectives.)
Palau Road- The U.S. committed in the free association compact with Palau to build a road
through much of its largest but largely undeveloped island. The President of Palau will be in
Guam. The President should be able to announce a $150 Million plan for this road.
CLINTON UBRAR\' PHOTOCOPY
�X 692 247 7533
RMEMBRSSY MRJURO
EMBASSY OF THE UNITED STATES OF AMERICA
MAJURO • REPUBLIC OF THE MARSHALL ISLANDS • 96960
DATE:
November 3, 199R
TO:
Mr. Jeff Farrow
FAX: (202) 45ti-2MM9
fROM:
Ambassador Joan M. Plaislc.d
American Embassy Majuro
FAX: (692) 2474012
PHONE: (692) 247-4011
ornce dirC(.:t (692) 247-753?.
THIS TRANSMISSI.ON CONSISTS OF
D~r
PAGE(s)
Jeff,
Thanks for the information on the President's trip to Guam. As promised, here Js the press
report on the Micronesian leaders possihlc meeting with t.hc Presi<icnl. As 1 mcnt ioned on the phune,
.President Tito of Kiribati, who is the head of the Council of Mtcronc..1iian Chief Executives, Nhlluld he
i ncludcd in any recepUon.
I'd recommend lwu points to include in tllc J>rcsidcnt'!l speech:
1.
The Cumpar.t itself is not up for renegolialJon. Our great Prix.~ .1\.."'sucialion status rl~mains. We
will begin renegotiations on lhe pnivisions of the Cumpad "thai expire (mainly lhc l'~~unouLic
provisions) beginning In October and Novemher 1999 with the RMI11.nd the. FSM, respectively.·
(FYI: Foreign Minister Muller told the American Vice Prc..'lident of the Asian Development Bank
who was jusl. on island lhatthc US would hegin negotiations early and the RMI would deal with
the Congress, not the adminisl.raUon. He also said they W()uld get so much uaonllY from Ihe. US
they won'l need rhc ADB. Soil is iulportant to l~lariry our position Ji"lllll the tup.)
2.
We v11.lue lherelationsh.ip and know the Frooly Associated States do. We note the FSM ancl
RMI's efforts to d~te and encoura.gc ulore on public sector rcl"twm, g<.~_vermnent downsi:~>.ing, and
stimulating U1e private scct.or. · (FY 1: The FSM is further along lhan the RMI on making the
n~c:ssar)r reforms). We urge them not to do things that could jcopardi:~.e their bcnelits and t.hcir
cJlorts to stimulate the private sector, such as engaging In fraudulent passport sales and interfering
in the judicial process. President Clinton should menUon huzz words of "go<.Kl governance"
and/or ''eUucs Jn government" and the importance of an indcpcncJcntjudidary, i.ll".CountahJlity. and
transparency to private sector development. (rYI: Prcsidcm Kahua just cscap('.(.f a no confidence
marion by one vole and could race another early next year. The lligh Court judge here is under
attack from the President and Cabinet for ruling againo.;l U1c Prc..'iidcnt when Kahua 4ucslioncd the
no confidence procedure..~! the legislature t(JIIowcd. Kahua uppcalcd the case to the Supreme Court
and is now busy trying t.O select the judg~'l who will hear it. He has n:.movcd one long~time
member of the Judicial Servke Commission, which has a ~ay in selecting the judges, and replaced
him whh a crony.) ·
, ,
In sum, President Clinton's comments and actions need to he halanc<:XL ar\d nuanced.
. )
l ..
,._....
.7-·/
~.:
.
·•'
l
/
.~ .. ··!
.1~-· J.)_.~
,··...... r·'
.....
..
J'/ ••
.....
'· :·"'
•"
;
CLINTON UBRAR\' PHOTOCOPY
....
,}
(
....
, ...
~-
., • 1 .
(
.
'
, ,.)
)
/~··
1:11
�CLINTON LIBRARY PHOTOCOPY
DRAFT
Guam Deliyerables
Micronesian CompaCt Impact Aid
Background: ·
The U.S. 'free association' compacts with ·Micronesia, the Marshall Islands, and Palau have
enabled thousands of citizens of those states to move to Guam, Hawaii, and the Northern Mariana
Islands. The Compact law authorizes reimbursement ofthe costs to their social programs.
$4.6 million is being provided by Interior annually to Guam through FY01. Almost no funds are
provided to Hawaii and the Northern Marianas. Gov. Gutierrez says that $10 million is the
minimum amount Guam needs. Gov. Cayetano says Hawaii should be reimbursed. The Northern
Marianas is not being provided funding in light of the other assistance that it gets.
Proposal:
Announce a FYOO budget proposal to increase the reimbursement to Guam to $10 million
annually.
There are two options for funding this. One would take the $5.4 million from the $11 milliOn a
year general subsidy to the Northern Marianas, which is resisting the Administration's efforts to
apply Federal immigration and minimum wage laws. Under this option, the other $5.6 million
could be allocated to Hawaii. The second option would require OMB to find the funding
elsewhere.
Liberalize Trade Restrictions
Background:
Guam and the other smaller territorial jurisdictions are outside the customs territory of the U.S.
but can import products into the U.S. market free of duties and quotas if the products meet
specific tests-- 'substantial transformation' of foreign components into a new product and 'value
added' .locally to the components. Guam has sought the elimination of most of these restrictions.
Proposal:
We have cleared-- but not yet announced --legislation to eliminate the value added requirements.
It· would not apply to garments in light of the abusive Northern Marianas garment industry.
Excess Military Property Conveyances
Background:
The military owns 44,800 acres in Guam. Most of the land dcies not appear to be used and is held
for contingency purposes. Up to 25% is excess to military needs. Guamanians feel land was
�unfairly acquired in the wake of the liberation of the island from enemy hands in World War Two.
They also contend the.military holdings limit the island's development. Some former owners feel
they have missed out on fortunes others made by selling their land to Japanese investors.
A 1994law providing for the transfer of3,213 acres has not been fully implemented. Transfers
have been complicated by Guamanian demands for the land to be given to former owners.
Base closings have made other land and facilities available.
Proposal:
The President would announce the following --
•
' Jtt(~{~
The intent to transfer the 3,213 acres provided for by the 1994law in 1999 . ....:) O'Y\ ( Cf'i ff d
·
•
The availability of561 acres of Air Force land on which 360 housing units are located.
•
The availability of 1,805 other AF acres .
•
An effort to expedite the transfer of2,031 acres at the former Naval Air Station adjacent
to the commercial airport, including a 92 acre officer's. family housing parcel. EDA
consideration of$1 million for infrastructure and marketing of this property.
•
An effort to expedite the transfer of the former Navy Ship Repair Facility. Consideration
of Mar Ad low-cost financing of the yard as a commercial operation. Military Sealift
Command commitment for contracting the yard(?). Navy donation of a larger drydock.
•
The availability of another 2, 779 acres of Navy land .
-
L...
.
·~cA.Jfz
~
·~yL
The actual
treatment
trans~ of~res of'fonnerNavy land worth $4:5 million for a w.::.l tfY,;~
pla~t. J
.
~
~
-----.
•
Plans to ask Congress to complete action on umbrella Guam excess land transfers
legislation. (Passed the Setaate this year.)
•
A White House-led task force to ensure follow-up on the above .
DOD Ombudsman ·
Background:
Guam has a number of military issues and tensions between the community and field officers have
increased.
CLINTON LIBRARY PHOTOCOPY
2
�Proposal:
DOD has agreed with our request to designate a member of the Secretary's staff to monitor and
.
address issues raised by Guam.
.
Bac ground:
Guam has been disappointed with the Federal response to its "Commonwealth" proposals for
national powers while under the U.S. flag and greater economic benefits. While it continues to
pursue them, it has undertaken a second status initiative. This calls for a referendum next year on .
the internationally-recognized non-colonial statuses: free association; independence; and
statehood. A problem with the new initiative is that the referendum would be limited to the
plurality of the population who are descended from long-term residents. Many Guamanians do no
seem to want a change in status as much as greater Federal attention and changed policies on
economic matters.
Proposal:
. The President would reiterate that the Administration has addressed Guam's Commonwealth
proposals and Congress should now act. He would also recognize non-voting Guam's inherenf
right to full self-government if Guamanians want it. He would announce his intent to have the
Executive Branch place a greater focus on the island's situation, ne~ds, and proposals under th
current status through a senior level interagency group co-chaired by the White House and
Coral Reef Initiative
Background:
The President announced a major initiative to protect coral reefs this year.
Proposal:
The President would announce that the FYOO budget will propose $2 Million for .reef protection
near Guam and other territorial jurisdictions and the governors of the areas will be members of
the initiative task force.
Micronesia/Marshall Islands Aid Package
Background:
The Presidents of Micronesia and the Marshall Islands will be present on Guam. Our $2.5 billion,
15 year assistance commitment to these freely associated states expires in 2001. The compact
with them requires negotiations on the expiring provisions beginning in 1999.
. CLINTON LIBF~AR\' PHOTOCOPY
3
�Proposal:
The President would aim ounce the intent to begin talks with the areas on a post 200 1 assistance
package.
~~d
Background:
The U.S. committed in the free association compact with Palau to build a road through much of
its largest-- but largely undeveloped-- island. The President of Palau will also be present in
Guam.
Proposal:
The President would announce a $150 million plan for the road.
THE FOLLOWING MORE MINOR INITIATIVES COULD ALSO BE ANNOUNCED.
Water/Sewage Grant
Background:
EPA has been providing Guam $2 million a year to construct water and sewage facilities.·
Proposal:
The President would announce an increase in the grant to $3 million this year.
Economic Development Plan
Background:
The Asian economic downturn has depressed Guam's·major industry: tourism. Military activity
has also been a major component of Guam's economy. The military has downsized operations.·
Proposal: The Interior Department will fund a major study of Guam's economic options. This
would be part of a $1 million increase in funds for technical assistance to the small territories~
CLINTON LIBR~RY PHOTOCOPV
.
.
4
�CLINTON USR·~Rv " " . (_,Qpy
.. ' DHt)TO""
FRAMING SPEECH: AMERICA'S NEXT AGENDA
Purpose
This 'framing' speech will be an opportunity for the President to interpret
the results of the election (perhaps implicitly), and to and to spell out what
we believe the nation's upcoming agenda should be. This speech is not a 'mini
State of the Union' -the policies will not be new- but will frame_ what you
believe the next several months should be about. (In short, even if they want
to move forward on investigations, we want to move forward on Social Security
and other matters.) It shouldremind people of just how successful the.
President has been, and make clear that he has more work to do.
Themes and outline
We are now barely a year away from the new millennium. Six years ago,
America was sluggish, falling behind in the world, seemingly unable to grapple
with longstanding problems. Today, America is a different place. We have
built a new prosperity, made remarkable progress over social problems, and
renewed progressive government. Our vision has now swept the world. Now we
have a duty to seize these good times - to move forward or risk falling back.
Recent turmoil in the world economy reminds us that prosperity is never simply
guaranteed; we must continue to steer the nation through new and complex
challenges at every turn.
The election spoke loudly: the American people do not want their leaders to
indulge in the luxury of partisanship. The political season is now over.
These must be months of action and achievement, not stalemate and
partisanship. Here are the immediate priorities over the next several months:
1. IntensifYing the effort to save Social Security - discuss the conference and its goals.
2. Pressing for peace in the Middle East and Kosovo (including the trip to Gaza).
3. Acting to strengthen the economy -- continuing to rally the leading economies to
address the fmancial crisis (preview the APEC trip).
4. Education (especially school construction) --pledge to unveil new proposals in SOTU
5. Health care (Patient's Bill of Rights).
· Does it also malce sense to discuss campaign finance (in the light of the massive spending by
GOP and affiliated interest groups), the minimum wage and/or tobacco (the other elements of the
campaign litany)? If we do these, we will need to figure out how to frame them, since there
won't be much action to take before next year.
�Withdrawal/Redaction Sheet·
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. email
Donsia Stron to Carol Rasco, re: insular territories (I page)
4/14/1994
P5
002. email
Melissa Green to Jake Siewert, re: latest draft of APEC memo (6
pages)
10/30/1998
P5
COLLECTION:
Clinton Presidential Records
Automated Records Management System fEmaill
OPD UGuam, Political Status, Reforml)
OA/Box Number: 250000
CLINTON LIBRARY PHOTOCOPY
FOLDER TITLE:
[4/14/1994- 3/5/1999]
Whitney Ross
2006-0193-F
wr599
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b )(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA) ·
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security_ Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President '
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
0. Closed in accordance with restrictions contained in donor's deed
.of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3). .
RR. Document will be reviewed upon request.
I
�Page 1 of 1
ARMS Email System
RECORD TYPE: PRESIDENTIAL (RECONSTRUCTED EMAIL)
CREATOR:
Donsia, Strong
STRONG D
(OPD)
CREATION DATE/TIME:l4-APR-1994 09:09:00.00
SUBJECT:
insular
territori~s
TO:
Carol H. Rasco
READ : UNKNOWN
RASCO C
(OPD)
TEXT:
You may recall late last year DPC and DOI discussed establishing, by EO, an
interagency council to ccordinate and address insular territories policy. This
was prompted by legislation which would statutorily establish and dictate its
operation.
·
By way of background, during the previous administrations, DOI's policy towards
the territories was abysmal and maybe hostile. Many sought to abolish the
Office of Insular Territories Administratio in DOI.
In addition, the
territorial executives has no mechanism to contact other executive brapch
officials but had to rely on the delegates.
After we had gone some way toward preparing and vetting a draft EO, the House
delegates objected.
In my view, this was brought on solely by one House
staffer (DeLugo), Jeff Farrow, who 1) held the WH insular policy job during
Carter; 2) worked on the transition and expected a WH job; and 3) is now working
over at Commerce and co-chairing with Marcia Hale, a cmte on Puerto Rico policy
and politics. , (The Senate is miffed because a lame duck non voting delegate
gets more reaction _from the WH than more powerful Senators--Moynihan and
Johnston) Therefore, we never established a mechanism for ensuring that policy
which affected insular territories was affected.
DOI would like policies, which are currently being reviewed and developed in
small 2 agency working groups, brought before the DPC for resolution.
I do not
believe They are any longer tooking for a formulized structure to.have issues
coordinated and discussed.
With respect to Guam, their feeling is that the political status question should
be handled by Intergovermental but brought before the DPC for final resolution.
The complicating issue here is the DOD wants to preserve and protect its use of
guam for military use no matter what.
I spoke to House staffers about the issue and Leslie Turner.
In my opinion, we
can easily resolve this issue by occasionally putting isular issues on Monday
One issue
DPC agenda, show some resolution successes and make the Hill happy.
sure to affect the territiories is welfare reform and changes to the formula.
We should make sure Leslie is briefed at _the appropriate time so she can help
defend it.
You may want to inform ASec'y Turner that when the working groups have completed
their work, she should ask Sec'y Babbitt to list the matter for the DPC agenda
and then attend if he won't.
Let me know if there is anything you want me to do.
CLINT0!\1 LIBR~RY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
001. email
Adam Kreisel to Eri O'Connor, re: Rep. Underwood (1 page)
3/2311995
P5
002. email
Grace Garcia to Stefanie Sanford [partial] (1 page)
119/1997
P6/b(6)
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO CrGuam, Political Status, Reforml)
OA/Box Number: 500000
FOLDER TITLE:
[3/25/1994- 6/13/1997]
CLINTON UBR~R.\' PHOTOCOPY
Whitney Ross
2006-0193-F
wr600
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information ((b)(l) of the FOIA)
b(2) Release would disclose. internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b( 4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would.disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) ofthe FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1
(ALL-IN-1 MAIL)
·CREATOR: Adam R. Kreisel ( KREISEL A )
(WHO)
CREATION DATE/TIME:23-MAR-1995 11:36:41.52
SUBJECT: Rep. Underwood
TO: Erin A. O'Connor
READ:23-MAR-1995 12:21:08.51
OCONNOR E )
(WHO)
TEXT:
Erin: As you know, Rep. Underwood is trying to get meet with Leon
regarding the Guam political status negotiations.
John on
Underwood's staff told me that both the Congressman and the
Administration are starting to get bad press in Guam for failing
to resolve this. Underwood is going back to Guam on Saturday and
would like to meet with Leon before he leaves.
Does Pat think that he should do this meeting instead?
Contact: John Witt 225-1188
CLINTON LIBRARY PHOTOCOPY
of 1
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. email
SUBJECT/TITLE
DATE
Fred DuVal to Maurice Daniel (1 page)
1115/1997
RESTRICTION
P5
. t._,_·
COLLECTION:
Clinton Presidential Records
Automated Records Management System fEmaill ·
WHO (fGuam, Political Status, Reforml)
OA!Box Number: 500000
FOLDER TITLE:
CLIN ! UN USI{'~R\' PHOTOCOPY
[6/13/1997- 10/5/1998]
Whitney Ross
2006-0193-F.
wr601
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.t. 552(b )]
PI
P2
P3
P4
b(l) National security classified information [(b)(l) ofthe FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA] ·
b(9) Release would disclose geological or geophysical information
· concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
.
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors·[a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C.·Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined i.Ji accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon re.quest.
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP [ WHO ]
)
CREATION DATE/TIME: 5-NOV-1997 17:51:04.00
SUBJECT:
Re:
TO: Maurice Daniel ( CN=Maurice Daniel/O=OVP @ OVP [ UNKNOWN ] )
READ: UNKNOWN
CC: Craig T. Smith ( CN=Craig T. Smith/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Well, on the theory that he has to refuel somewhere , it is an option. In
fact, you might even consider overnightingthere and acclimating to the
time change before the three hour flight to Japan.
The history of the politics of Guam is important and unfortunately,
complicated. But in short, the incumbent Governor is a real frien~ of the
Presidents. His great hope has been that the US federal government would
address the aspirations of the citizens in Guam for a new political status
vis-a-vie the US. We have been unable to satisfy these hopes for a
complicated set of proper constitutional, legal anc~ policy reasons.· This
being the case, we have sought to communicate our concern about Guam and
reinforce the importance of Guamanians as US citizens and as a part of our
strategic geopositioning in the eastern pacific theater ( did you like
that? Impressed? I love sounding like a former state dept guy!)
They have been badly neglected, but there are some real politics here.
Craig has history on the subject and will have an informed opinion. NOTE
CRAIG ... the fact that we came down the way we did in hill testimony last
week sho~ld put alot of issues behind us. Let's discuss ...
CLINTO~l LISR~RY PHOTOCOPY
I
�Withdrawal/Redaction Sheet
Clinton Library
D.OCUMENT NO.
AND TYPE
001. email
DATE
SUBJECT/TITLE
Jeffrey Farrow to Michael Ahola, re: V.I. budget (1 page)
6/25/1999
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
.Automated Records Management System rEmaill
WHO UGuam, Political Status, Reforml)
OA/Box Number: 500000
FOLDER TITLE:
[6/7/1999- 3/10/2000]
CLINTO~.J LIBR'l.RY PHOTOCOPY
Whitney Ross
2006-0193-F
wr602
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b ))
Pl·National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3.Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or ·
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) ofthe FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA]
b(6)Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
·purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Page 1 of 1
ARMS Email System
.RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:25-JUN-1999 11:40:28.00
SUBJECT·:
Re: V.I. budget
TO: Michael J. Ahola ( CN=Michael J. Ahola/OU=ONDCP/O=EOP®EOP [ ONDCP ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
James Kazel ( James Kazel [ OMB l
READ: UNKNOWN
)
TEXT:
Good question and thanks for not losing interest.
The wage rollback was a key element of Turnbull's plan b:ut had not been
well thought out in terms of political viability. He needs to take
politically tough steps but still steps that can be accomplished.
He's
committed to substitute other measures to save at least as·much money.
Interior staff were put off by being surprised about his pullback, but
Babbitt recognized Turnbull needs some flexibility on how to make savings
(so long as they are made) in a meeting yesterday.
The Governor did not like the optics of a Federal board per se in the
meeting but did not object to the function within the Federal Government.
Senate Interior Approps just reported $5.4 for VI capital improvements
contingent on the VI meeting Interior or other budgetary reform
stipulations.
(The problem with this is that they took it from funds the
President personally proposed for Guam.)
Interior is drafting a bill that
would provide a new $10 million for VI capital improvements if the VI
meets Federally stipulated budgetary reform benchmarks, We haven't met
because they've taken so long in deciding on what they want to propose.
The Governor told me last night he's gotten the message that the VI has to
help itself first before expecting much aid here and needs to do more to
convey that to the legislature, etc. He and the Congresswoman will
briefly see the President late today and I've given the President a couple
of talking points on this. The Congresswoman privately agrees the Governor
needs to be stronger.
The VI still wants to push for FEMA loan forgiveness.
(The capital
improvement money won't solve its debt ·burden problem.)
I see us
exploring other debt aid as the VI makes real spending and taxing reforms.
~
A draft from Interior will give us the basis to resume our discussions.
CLINTON LIBR.'-\RY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE.
SUBJECTrflTLE
RESTRICTION
001. email
Keith Parsky to Jeffrey Farrow, re: Guam (2 pages)
6/19/2000
P5
002. email
Keith Parsky to Jeffrey Farrow, re: Guam (3 pages)
6/22/2000
P5
COLLECTION:
Clinton Presidential Records
Automated R~cords Management System rEmaill
WHO CrGuam, Political Status, Reforml)
OA/Box Number: 500000
FOLDER TITLE:
[5/24/2000 - 6/23/2000]
CLI!~TON
LIBR!l.R\' PHOTOCOPY
Whitney Ross ·
2006-0193-F
wr603
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b )]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules alid practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
· b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C
2201(3).
RR. Document will be reviewed upon request.
�Page 1 of 2
ARMS Email System
CLINTON LIBRll.R\' PHOTOCOPY
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
)
CREATOR: Keith_Parsky®ios.doi.gov (
Keith_Parsky®ios.do~.gov
[ UNKNOWN ] )
CREATION DATE/TIME:l9-JUN-2000 09:41:57.00
SUBJECT:
TO.: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ]
READ: UNKNOWN
CC: Sandra_King®ios.doi.gov
READ :UNKNOWN
CC: Danny_Aranza@ios.doi.gov
READ:UNKNOWN
Sandra_King@ios.doi.gov
Danny_Aranza@ios.doi.gov
UNKNOWN ] )
UNKNOwN.]
)
TEXT:
A.3. Second Action Item: Haven't we finished reviewing HR 2462 sec 3?
No- there is another meeting contemplted,
SAP to be fashioned(possibly 2
different SAPs-one for House and one for Senate)
a
If the concern here is where the issue stands, the SAPS will reflect
exactly where the Administration stands on the issue of Secion three- and
it will be written so as to say, if Guam takes certain actions to cure the
local law's applicability,then the Administration supports the proposal- if
Guam does not take this action, then the Administration is against the
section . Since the SAP has not been written at this time, the entry on
the IGIA Report had to be general.
But Keith, we don't anticipate changing our position do we?
I don't think so.
·A.4. Third Item: Haven't the DoJ, VI, Guam meetings already taken place and
the reimbursement figures been discussed?
NOT.TO MY KNOWLEDGE- the meetings were between VI and all Fed. departments
who are owed money by the VI to arrive at a comprehensive way to handle the
VI requests for favorable treatment.
Keith, I think both Guam and the VI have met with DoJ. DoJ sent someone
from the Marhals Service to Guam without resolution.
Jack Lew wrote Guam.
I. called Mary Eva Candon and set up conversations and heard a couple of
rteports from INS they were progressing.
VI AG came up here and VI has
exchanged correspondence with BoP.
Peter Hiebert has been working on this.
Can you check status? .
Will accomplish today-between Edgar Johnson and me.
A.7. Second Action Item: Should we say OIA is seeking favorable comment on
legislation before clearance?
Yes-why not?
Keith, we should reflect an Administration position and not set up or
project conflict. The Administration may not agree to the proposal.
I have changed this language to take out freferences to favorable. See the
fix, and let me know if this does not work .for you.
�ARMS Email System
Page 2 of 2
A.13.
Second Action Item:
Doesn't the law (the 76 territories act I
think)
alre<?-dY provide for this?
I do not know this~ .but I will ask around here on this one.
Keith, have you checked yet?
Yes, Steve Sander and I both looked through the '76 zTerritories' Act and
f.ound nothing, on point.· On an unrelated note, I did find interesting
language in P.L. 95-134: October 15, 1977, 91 Stst.1163 at Title IV- Sec.
402 which authorized compensation for Guam and the VI as a result of
unexpected revenue loss occasioned by the Tax Reduction Acts of 1975 abd
the Tax Reform Act of 1976, and at Title V- Sec 501 I found language which
appeared to authorize the administrative authority to waive matching
requirements
AS.9. Action Item; Didn't ASG and FEMA meet a few
weeks ago?
Not to my knowledge. The only meeting was to present the VI arguments.
Keith, ASG Counsel and Treasurer met with FEMA Dir. Witt some weeks ago.
Jane Leipsen accompanied them.
Nik Pul anad I will have this answered by today COB as well.
AS.10. Action Item:
Should be singular.DONE What monitoring is
contemplated?
Purposely vague-not sure other than keeping tabs on any developments.
Keith, we should say "work for" vs monitor.
Language changed to reflect your comment;
GUAM.2. Action Item: Make title singular. Done. What are the "relevant
functional disciplines"?
Don't know- this was the DOD language that DOD insisted upon. They would
not entertain any change to this language.
Keith, tell them they need to.
How about "offices"?
I made this change and will be talking to Lori Hancock about this today.
believe she will agree to the change, but they were very insistent about
this language before.
I will mention your name in the discussion.
**********************************************************************
This email and any files transmitted with it are confidential and
intended solely for the use of the individual or entity to whom they
are addressed. If you have received this email in error please notify
the system manager.
This footnote also confirms that this email message has been swept by
MIMEsweeper for the presence of computer viruses.
www.mimesweeper.com
**********************************************************************
CLINTON UBH.'~R\' PHOTOCOPY
I
�I
I
Page 1 of 3
ARMS Email System
CUf\ITON UBR·~RY PHOTOCOPY
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Keith_Parsky®ios.doi.gov ( Keith_Parsky®ios.doi.gov [ UNKNOWN ] )
CREATION DATE/TIME:22-JUN-2000 14:25:25.00
SUBJECT:
TO: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
CC: Nikolao_Pula®ios.doi.gov
READ: UNKNOWN
Nikolao_Pula®ios.doi.gov [ UNKNOWN ] )
CC: Danny_Aranza®ios.doi.gov
READ: UNKNOWN
Danny_Aranza@ios.doi.gov [ UNKNOWN ] )
TEXT:
Jeff:
See AS #9- still waiting for G-#2
Keith Parsky
06/20/2000 05:55 PM
To:
cc:
Jeffrey_L._Farrow®who.eop.gov
Danny Aranza/OIA/OS/DOI®DOI, Nikolao Pula/OIA/OS/DOI®DOI
Subject:
IGIA fixes- still awaiting one item- not re-submitted yet
A.3. Second Action Item: Haven't we finished reviewing HR 2462 sec 3?
No- there is another meeting contemplated, a SAP to be fashioned
(possibly
2
different SAPs-one for House and one for Senate)
If the concern here is where the issue stands, the SAPS will reflect
exactly where the Administration stands on the issue of Section three- and
it will be written so as to say, if Guam takes certain actions to cure the
local law's applicability,
then the Administration supports the proposalif Guam does not take this action, then the Administration is aga~nst the
section . Since the SAP has not been written at this time, the entry on
the IGIA ·Report had to be general.
But Keith, we don't anticipate changing our position do we?
I don't think so.
A.4. Third Item: Haven't the DoJ~ VI, Guam meetings already taken place and
the reimbursement figures been discussed?
NOT TO MY KNOWLEDGE- the meetings.were between VI and all Fed. departments
who are owed money by the VI to arrive at a comprehensive way to handle the
VI requests for favorable treatment.
Keith, I think both Guam and the VI have met with DoJ. DoJ sent someone
from the Marshals Service to Guam without resolution.
Jack Lew wrote Guam.
I called Mary Eva Candon and set up conversations and heard a couple of
�ARMS Email System
CLINTON LISR~RYPHOTOCOPY
Page 2 of 3
reports from INS they were progressing. VI AG came up here and VI has
exchanged correspondence with BoP.
Peter Hiebert has been working on this.
Can you check status?
On April 11, 2000, Virgin Islands' Attorney General Stridiron and Bureau of
Prisons/Department of Justice Director Sawyer, memorialized an
agreement which
provides, among other things, that the Government of the Virgin
Islands will remit
timely payment for monthly charges on a current basis, for housing
Virgin Islands prisoners beginning with the March 2000 invoice.
The
agreement further provides that the Government of the Virgin Islands
will take approximately 10 inmates out of Bureau of Prisons' custody
each month, until all prisoners are returned to the Virgin Islands.
The total amount of such delinquent debt is $9.75 million.
The
Bureau of Prisons/Department of Justice will continue to work with the
Virgin Islands' officials regarding the return of their inmates and
will work to develop a plan which resolves the delinquent debt
issue.
A. 7. Second Action Item: Should we say OIA is seeking favorable comment on·
legislation before clearance?
Yes-why not?
Keith, we should reflect an Administration position and not set up or
project conflict. The Administration may not agree to the proposal.
I have changed this language to take out references to favorable. See the
fix, and let me know if this does not work for you.
A.13. Second Action Item: Doesn't the law (the 76 territories act I
think)
already provide for this?
I do not know this- but I will ask around here on this one.
Keith, have you checked yet?
Yes, Steve Sander and I both looked through the '76 territories' Act and
found nothing on point. On an unrelated note, I did find interesting
language in P.~. 95-134: 06tober 15, 1977, 91 Stat.1163 at Title IV- Sec.
402 which authorized compensation for Guam and the VI as a result of
unexpected revenue loss occasioned by the Tax Reduction Acts of 1975 and
the Tax Reform Act of 1976, and at Title v~ Sec 501 I found language which
appeared to authorize the administrative authority to waive matching
requi rem en t s.
AS.9.
9. Forgiveness by FEMA of disaster assistance loans
ASG would like forgiveness of certain FEMA debts incurred after Hurricanes.
A February 4, 2000 working meeting was arranged between American Samoa's
Governor and FEMA followed up by letter dated April 7, 2000 by FEMA to the
Governor.
FEMA's Pacific Area Office was instructed to work with American
Samoa to resolve issues.
Action Item:
T
abLetter dated May 3, 2000 from FEMA to American Samoa government
proposed a resolution of American Samoa's obligations to FEMA which
American Samoa will appeal. The IGIA will facilitate the negotiations
between FEMA and American Samoa and help bring them to resolution.
�'ARMS Email System
AS.lO. Action Item:
Should be singular. DONE What monitoring is
contemplated?
·Purposely vague-not sure other than keeping tabs on any developments.
Keith, we should say "work for" vs monitor ..
Language changed to reflect your comment.
GUAM.2 .. Action Item: Make title singular. Done. What are the "relevant
functional disciplines"?
Don't know- this was the DOD language that DOD insisted upon. They would
not entertain any change to this language.
Keith, tell them they need to.
H6w about "offices"?
I made this change and will be talking to Lori Hendricks about this again
today.
She assured me that she will have an answer tomorrow. (Thursday,
June 22) I believe she will agree to the change, but they were very
insistent about this language before.
I will mention your name in the
discussion.
**************************************~*******************************
This email and any files transmitted with it are confidential and
intended solely for the. use of the individual or entity to whom they
are addressed. If you have received this email in error please notify
the system manager.
This footnote also confirms that this email message has been swept by
MIMEsweeper for the presence of computer viruses.
www.mimesweeper.com
**********************************************************************
CLINTON LIBP~R\' PHOTOCOPY
Page 3 of 3
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. email
SUBJECT/TITLE
DATE
Mary Smith to Maria Echaveste, re: Hearing news [partial] (1 page)
9/5/2000
RESTRICTION
P5
COLEECTION:
CLINTON LIBRARY PHOTOCOPY
Clinton Presidential Records
Automated Records Management System rEmaill
WHO (rGuam, Political Status, Reforml)
OA/Box Number: 500000
FOLDER TITLE:
[7 /3112000 - 10/4/2000]
Whitney Ross
2006-0193-F
wr604
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
National Security Classified Info'rmation [(a)(l) of th~ PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade. secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information I(b)(l) of the FOIA]
· b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b( 4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA)
b(9) Release would disclose geological or geophysic'al information
concerning wells [(b)(9) of the FOIA]
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misflle defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�· ARMS Email System
Page 1 of 21
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Mary L. Smith ( CN=Mary L. Smith/OU=WHO/O=EOP
WHO ] )
CREATION DATE/TIME: 5-SEP-2000 14:01:32.00
SUBJECT:
Re: Hearing news
TO: Maria Echaveste
READ: UNKNOWN
CN=Maria Echaveste/OU=WHO/O=EOP@EOP [ WHO ] )
CC: laura efurd ( CN=laura efurd/OU=who/O=eop@eop [ who ] )
READ :UNKNOWN
CC: jeffrey l. farrow ( CN=jeffrey 1. farrow/OU=who/O=eop@eop · [ who J )
READ: UNKNOWN
CC: irene buena ( CN=irene bueno/OU=who/O=eop@eop [ who ] )
READ: UNKNOWN
CC: lynn g. cutler ( CN=lynn g. cutler/OU=who/O=eop@eop [ who ] )
READ: UNKNOWN
TEXT:
I think we were very clear. irr our testimony and in the report that we
cannot support or condone breaking away from the United States, and that
this group advocating a separate nation-state should not read our pOsition
as supporting them.
I agree .with Lynn that Akaka and Inouye will have to
manage this faction, but I think that the majority view in Hawaii is in
favor of the legislation that Akaka introduced.
I think that Akaka and
Inouye are going to try to get hearings and try to get this passed this
year.
I think that is unlikely though as it seems that this legislation
needs to percolate a bit longer.
I don't think there is anything we need
to do at this point except be supportive of the Hill
Maria Echaveste
09/05/2000 11:41:47 AM
Record
Record Type:
To:
Lynn G. Cutler/WHO/EOP@EOP, Jeffrey L. Farrow/WHO/EOP@EOP, Mary
L. Smith/WHO/EOP@EOP
cc:
Irene Bueno/WHO/EOP@EOP, Laura Efurd/WHO/EOP@EOP
bee:
Subject:
Re: Hearing news
well, well--this story on hawaiian hearing was quite interesting--perhaps,
the state dept was right to be concerned about this bill--what do you all
think? What are the next steps here?
·
Lynn G. Cutler
09/05/2000 11:20:51 AM
CLINTON LIBRARY PHOTQCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
OOla. email
Emory Mayfield to Aviva Steinberg [partial] (1 page)
112/1998
P6/b(6)
OOlb. email
Emory Mayfield to Jeffrey Farrow [partial] (1 page)
117/1998
P6/b(6)
OOlc. email
Fred Duval to Jeffrey Farrow [partial] (1 page)
118/1998
P6/b(6)
OOld. email
Suzanne Dale to Jeffrey Farrow [partial] (1 page)
1115/1998
P6/b(6)
OOle. email
Fred Duval to TJ Glauthier, re: vetting (1 page)
1115/1998
P5
OOlf. email
Fred Duval to Mickey Ibarra, re: SOTU (1 page)
1116/1998
P5
OOlg. email
Joseph Minarik to Jeffrey Farrow, re: Tobacco Taxes (1 page)
1116/1998
P5
OOlh. email
Fred Duval to Jeffrey Farrow, re: Russello (1 page)
1/2111998
P5
OOli. email
Fred Duval to Jeffrey Farrow, re: Our SOU invitation to Rossello (1
page)
112111998
P5
OOlj. email
Janet Murguia to Michael Waldman, re: Puerto Rico/SOU (1 page)
1122/1998
P5
OOlk. email
WAVES confimation appointment for Solermari [partial] ( 1 page)
1127/1998
P6/b(6), b(7)(E)
.COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO (rGuam, Political Status, Reforml)
CLINTON LIBRtl.RY PHOTOCOPY
OA/Box Number: 500000
FOLDER TITLE:
[1112/2001 - 1118/2001]
Whitney Ross
2006-0193-F
wr605
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S~C. 552(b))
PI National Security Classified Information [(a)(l) ofthe PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
. financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA)
P6 Reiease would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and praCtices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financiai
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA) ·
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Page 64 of 230
ARMS Email System
Message Sent
To:~----~----~--~--------------------------------------------Emily Bromberg/WHO/EOP®EOP
Lynn G. Cutler/WHO/EOP®EOP
Fred DuVal/WHO/EOP®EOP
Sky Gallegos/WHO/EOP®EOP
Cecily C. Williams/WHO/EOP®EOP
Mona G. Mohib/WHO/EOP®EOP
Emory.L .. Mayfield/WHO/EOP®EOP
Jeffrey L. Farrow/WHO/EOP®EOP
---------------------- Forwarded by Jeffrey. L. Farrow/WHO/EOP o~
01/18/2001 05:35 PM ---------------------------
From:
E. Irene James.on 01/15/98 05:09:48 PM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re: IRC Collections for Puerto Rico
Thanks for all your help on this!
·---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM -------------~------------Fred Duval
Record Type:
01/15/98 05:39:06 PM
Record
To:
T .J. Glauthier/OMB/EOP®EOP
cc:
Jeffrey L. Farrow/WHO/EOP®EOP
Subject:
Re:
me too, Farrow is vetting but I think what he has found is that the Gov
cares more about leveraging the pass-through than the ultimate
beneficiary. Will get you final OK asap.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM --------~------------------
Fred Duval
01/15/98 05:47:21 PM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re:
yes, he said "sounds good to me but I am surprised the Gov will buy it"
------------~--------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/i8/2001 05:35 PM -----~---------------------
Fred Duval
Record Type:
Oi/15/98 06:57:48 PM
Record
CLif~TON LIBR~RY PHOTOCOPY
�Page 67 of 230
ARMS Email System
do memo from us to Waldman and Lewis. Copy Begala, Blumenthal, Verveer,
Lovell, Smith, Murguia, Silverman, Echeveste, Ibarra.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---------------------------
Fred Duval
Record Type:
01/16/98 11:32:07 AM
Record
To:
Mickey Ibarra/WHO/EOP@EOP
cc:
Jeffrey L. Farrow/WHO/EOP®EOP, Emily Bromberg/WHO/EOP®EOP
Subject:
Jeff and I would like to prepare a memo to the SOU team recommending that
POTUS address Puerto Rico in the SOU. Murguia supoports. Three potential
hooks:
(1) Millenium, (2) Race, or (3) that the territories are left out
of all the new social program initiatives because of their undefined
status
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM---------------------------
Fred Duval
01/16/98 01:07:03 PM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re:
---------------------- Forwarded by Fred Duval/WHO/EOP on 01/16/98 01:01
PM ---------------------------
Emily Bromberg
01/16/98 12:10:46 PM
Record Type:
Record
To:
Fred DuVal/WHO/EOP
cc:
Subject:
Re:
but not state parity, right? i think we are right on the policy, but i'm
not sure what the argument is for inclusion in SOU.
-------------------:--- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM -------~------------------~
Fred Duval
Record Type:
01/16/98 01:07:22 PM
Record
CLINTON LIBR'~RY PHOTOCOPY .
�Page 68 of 230
ARMS Email System
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re:
---------------------- Forwarded by Fred Duval/WHO/EOP on 01/16/98 01:01
PM ---------------------------
Emily Bromberg
01/16/98 11:58:07 AM
Record
Record Type:
To:
Fred DuVal/WHO/EOP
cc:
Subject:·
Re:
yes, but why would the president ·point this out in the SOU?
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---------------------------
Joseph J. Minarik
01/1~/98 03:14:09 PM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
fred duval/who/eop®eop, janet murguia/who/eop®eop
Subject:
Re: Tobacco taxes
Happy to talk, though today is a mess.
FYI: The language in the budget book will make reference to tobacco
settlement legislation. The State AGs negotiated a settlement with the
companies, but its provisions required Federal legislation to make it
work, hence the role of Federal_legislation. The settlement made
reference to lump-sum payments from the companies to some recipient entity
(not specified)
not increases in tobacco taxes per se. Accordingly, we
make no reference to any tobacco "tax" in the budget.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM --------------------------I
From:
E. Irene James on 01/16/98 06:14:00 PM
Record Type:
Record
Jeffrey L. Farrow/WHO/EOP®EOP
To:
cc:
Subject:
Re: Marianas numbers.
CLINTO~! LIBR!~RY PHOTOCOPY
It went up to $250 M beginning in FY 1999, and remains at that level
through FY 2003.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
�Page 74 of 230
ARMS Email System
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
We need to clarify the Russello seating issue. We can get him comfirmed
standing room or a wait list for randam balcony seating, or ask Gore for
one of his seats (although he has alot of demand to handle) . Everyone
asks - why do we have to do this since he -unlike everyone else - has
floor privledges.
----~-~---------------
Forwarded by Jeffrey L. Farrow/WHO/EOP on.
01/18/2001 05~3~ PM ---------------------------
Fred Duval
Record Type:
01/21/98 01:10:3.4 PM
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re: Rossello SOU seating
I'll put him on the back-up list for gallary (will depend on declines).
What do we do if he doesn't get in~ - which is likely. Should we line up
back-up now? I think Alvaro should get his lobbiests on this
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM --------------------------:.
Fred Duval
Record Type:
01/21/98 02:06:53 PM
Record
To:
Mickey Ibarra/WHO/EOP@EOP
cc:
Jeffrey L. Farrow/WHO/EOP®EOP
Subject:·
I don't think we should use one of our two seats for Russello. We have
other vechiles and will work it out.
---------------------: Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---------------------------
.Fred Duval
Record Type:
01/21/98 03:54:43 PM
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re: Gutierrez
what?
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---------------------------
·Fred Duval
01/21/98 03:56:13 PM
CLINTON UBFU~HY PHOTOCOPY
�Page 75 of 230
ARMS Email System
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
rum tax
when and how would you propsoe we roll this out?
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ----------------~----------
Fred Duval
01/21/98 03:58:00 PM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re: Gutierrez
got it: I was thinking you were refering to Gov of Guam!
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---------------------------
Fred Duval
Record Type:
01/21/98 07:06:40 PM
Record
To:
Jeffrey L. Farrow/WHO/EOP@EOP
cc:
Subject:
Re: Our SOU invitation to Rossello
a littrle disinguinueness. Alvaro said they were coming weather or not the
DGA event hit criticalk mass.
I spoke with him and if the Gore ·mtg occurs
we have our line. Our invitation was premised on the fact that he has
floor privleges - if he doesn't want to use it I don't know if we should
find him an alternative. Most folks don't have ANY options .
. ---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---~------------------~----
Fred Duval
Record Type:
To:
01/21/98 07:11:50 PM
Record
Jeffrey L. Farrow/WHO/EOP®EOP
CC:
Subject:
If the VP .mtg doesnt happen, who wshould tell Russello ab Rum tax ... OMB
official or Interior official.
I like Raines or Lew. what do you think?
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ------------------~--------
Fred Duval
01/21/98 07:56:47 PM
CLINTON UBRIJ.RY PHOTOCOPY
�Page 80 of 230
ARMS Email System
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---------------------------
JANET MURGUIA
01/22/98 06:04:17 PM
Record
Record Type:
To:
Michael Waldman/WHO/EOP®EOP, Craig T. Smith/WHO/EOP®EOP
cc:
Fred DuVal/WHO/EOP®EOP, Jeffrey L. Farrow/WHO/EOP®EOP
.Subject:
Puerto Rico/SOU
I suggest the following- regarding the language that Fred Duval and Jeff
Farrow gave you on the Puerto Rico status problem,
It would broaden the
Congressional appeal.
(There are a'large number of sponsors of the
current legislation on both sides of the aisle but a few opponents of
statehood -- one of the options we support being included).
I suggest:
[)elete "complete its work on bipartisan legislation.to" and "have local
self-government."
You could also substitute "provide Puerto Ricans with the optons for their
islands' future status" after "finally"
(but its ok either way).
It would then read:
1998 is the Centennial of the acquisition of Puerto Rico. Its nearly four
million residents are citizens, but the islands are· not fully a part of
our country. As w~ are the champion of democracy around the globe, so must
we be here at home.
Congress should finally provide Puerto Ricans with
the options for their islands' future status.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 05:35 PM ---------------------------
Kevin S. Moran
01/22/98 07:36:04 PM
Record Type:
Record
To:
See the distribution list at the bottom of this message
cc:
Subject:
President's Initiative on Race Talking Points
Talking Points and Accomplishments Documents for
ONE AMERICA IN THE -21ST CENTURY:
The PresidentO,s Initiative On Race
CLINTm.J LIBR.'~R\' PHOTOCOPY
Attached find the following documents:
A one:..page, talking-.points document for discussing the broad outlines of
the PresidentD,s Initiative on Race.
These talking points should be useful
�Page 4 of 154
ARMS Email System
-----·----------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on·
01/18/2001 10:49 PM -------~--------~---~------
Jeffrey L. Farrow
12/11/97 04:01:30 PM
Record Type:
Record
To:
Suzanne Dale/WHO/EOP
cc:
Fred DuVal/WHO/EOP
Subject:
12/12/97 Weekly
Insular Affairs
Puerto Rico Governor Pedro Rossello (D/NP) became President of the Council
of State Governments and began taking over the chairmanship of the DGA.
Puerto Rico Senator Kenneth McClintock, head of the pro-statehood minority
of .the islands' 1996 Democratic Convention delegation, became
Chairman-Elect of the Council of State
Governments.
With Legislative Affairs, we continued work with agencies in follow-up to
Virgin Islands Delegate Donna Christian-Green's (D) request to you for aid
for the territory. We are also exploring aid requests from Governor Roy
Schneider (I) and working with other offices on issues related to your
upcoming trip to the
islands.
At Puerto Rico Resident Commissioner Carlos Romero-Barcelo's (D) request,
we are working with USTR on litigation in Belgium challenging the labeling
of Puerto Rico products as "Made in the USA." Support of the use of the
label is being communicated to Belgium.
------~--------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
~2/12/97 02:5S:43 PM
Record Type:
Record
CLINTON LIBR'l.RY PHOTOCOPY
To:
Suzanne Dale/WHO/EOP
cc:
Fred DuVal/WHO/EOP
Subject:
Addition to Weekly
Fred thought that we should add an item on our major insular budget
issues. I agree.
We are working to en~ure that the FY '99 budget is fulfills your
commitments to and addresses the most critical needs-of the.country's
four million unrepresented citizens in the.insular areas. We are
recommending that it: (1) not drop your initiative to provide a investment
incentive primarily based on wages paid in Puerto Rico; (2) provide the
equitable Ch{ldren's Health Care funding that you pledged to work for when
Congress unilater~lly gave the areas 1/6 of the share of the new program
that you proposed; (3) slightly increase the caps on Medicaid in the
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
OOla. email
Jeffrey Farrow to Suzanne Dale, re: 12/12/97 Weekly (1 page)
12/11/1997
P5
OOlb. email
Jeffrey Farrow to Suzanne Dale [partial] (1 page)
1/15/1998
P6/b(6)
OOlc. email
Jeffrey Farrow to Mickey Ibarra, re: Gov. Gutierrez (1 page)
6/5/1998
P5
OOld. email
Jeffrey Farrow to William White Jr., re: Weekly (1 page)
7/9/1998
P5
001e. email
Jeffrey Farrow to Fred DUval, re: POTUS on Insular (2 pages)
10/14/1998
P5
OOlf. email
Jeffrey Farrow to Maria Soto [partial] (1 page)
2/26/1999
P61b(6)
001g. email
Jeffrey Farrow to Maria Soto, re: Weekly (2 pages)·
4/16/1999
P5
OOlh. email
Jeffrey Farrow to William White, re: Weekly (1 page)
7/15/1999
P5
001i. email
Jeffrey Farrow to Maria Echaveste, re: Vieques and Poster (1 page)
OOlj. email
001k email
. 8/411999
P5
Jeffrey Farrow to Jacqueline Lain, re: Weekly (2 pages)
116/2000
P5
Jacqeuline Lain to Jeffrey Farrow, re: Weekly (1 page)
1121/2000
P5.
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO <rGtiam, Political Status, Reforml)
OA/Box Number: 500000
CUNTOI\J LIBR.IJ.RY PHOTOCOPY
FOLDER TITLE:
[1118/2001] [3)
Whitney Ross
2006-0193-F
wr608
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4-Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) ofthe FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Page 21 of 154
ARMS Email System
Jeffrey L. Farrow
06/05/98 03:05:10 PM
Record Type:
Record
To:
Fred DuVal/WHO/EOP
cc:
·Subject:
Gutierrez Call
Are we sure we can say there' 11 be trip later this year-? The president's
comment on the Weekly as that we're not ready and something Gagnon of NSC
said makaes me question this.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
06/05/98 05:30:44 PM
Record
Record Type:
To:
Mickey Ibarra/WHO/EOP
cc:
Fred DuVal/WHO/EOP
Subject:
URGENT- Gov. Gutierrez call recommendation
Fred and I think your goal in talking to Podesta and Melanne about the
Guam visit should be to resolve whether it will happen rather than to have
a call made now.
In response to the last Weekly, the President agreed that the announcement
with Gov-. Gutierrez needed to happen but said it couldn't right now
because of the uncertainty re India, etc. Fred and I have explained this
to Gov. Gutierrez's reps and they understand.
We do, though, need closure on the question of how the President relates
to the Governor ASAP because of the Governor's other requests. We think
that concerns about contributions and the Commonwealth bill policies were
obviated by the positions we took but we will continue to encounter
roadblocks and frustrate Gutierrez until others here agree. And, if the
final decision is opposed to interaction with Gutierrez, we need to know
so we know how to handle other requests.
---------------------- Forwarded by Jeff~ey L. Farrow/WHO/EOP on.
01/18/2001 10:49 PM ----------------~----------
Jeffrey L. Farrow
06/11/98 05:59:56 PM
Record Type:
Record
CLINTON USR~~RY PHOTOCOPY
To:
William H. White Jr./WHO/EOP
cc:
Fred DuVal/WHO/EOP, Emory L. Mayfield/WHO/EOP
Subject:
Weekly
(
�Page 25 of 154
ARMS Email System
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
07/09/98 11:00:22 AM
Record Type:
Record
Toi
William H. White Jr./WHO/EOP
cc:
Fred DuVal/WHO/EOP, Emory L. Mayfield/WHO/EOP
Subject:
Weekly
I submitted this late last week. Include this week if it wasn't sent to
Mickey last week. I will also have a graph on the Puerto Rico strike.
Insular Affairs
Secretary of the Interior Babbitt, who is responsible for general
relations with Guam, the Northern Marianas, Samoa, and.the Virgin Islands,
proposed the creation of an interagency group concerning those areas
under the co-chairmanship of his office and mine. It would be similar to
the group you established relating to Puerto Rico, for which the White
House has direct policy responsibility. The proposal responds to
long-standing insular requests, including one made during your recent
meeting with the Congressional Asian-Pacific Islanders Caucus.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
07/09/98 11:52:07 AM
Record Type:
Record
To:
William H. White Jr.)WHO/EOP
cc:
Fred DuVal/WHO/EOP, Emory L. Mayfield/WHO/EOP
Subject:
Weekly
Puerto Rico unions conducted a 48 hour work stoppage in opposition to the
insular government's decision to sell a controlling ·interest in the
Islands'
telephone company. It supported a strike by phone company
worker~. It was also a rallying point for Commonwealth party opposition to
Governor Pedro Rossello (D) even though his Commonwealth party predecessor
had also tried to sell the company. Rossello is currently engaged in
confidential· talks with phone company unions on employment/unionization
issues.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ----------------------~----
Jeffrey L. Farrow
CLINTON LIBR'~R\' PHOTOCOPY
�Page.35 of 154
ARMS Email System
Jeffrey L. Farrow
10/14/98 12:28:28 PM
Record·
Record Type:.
To:
Fred DuVal/WHO/EOP
cc:
Emory L. Mayfield/WHO/EOP
Subject:
POTUS on Insular $
I want to make sure you saw that the President noted on the Weekly that
our FY99 spending negotiators should "try to do" (underscored thrice) his
Puerto Rico/VI rum tax and Territories CHIP proposals.
Any ideas for making sure our negotioators are aware of his directive?
I've sent e-mails re it to Maria E. and Janet and Danny Mendelson and Joe
Minarik of OMB.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
10/17/98 12:23:08 PM
Record
Record Type:
To:
Mickey Ibarra/WHO/EOP
cc:
Subject:
Weekly
Did you finish Weekly?·I can add a bullet or two quickly if not.
to get throu~h yesterday from PR but it wasn't possible:)
(I tried.
·--------~-~--------~-- Forwarded by Jeffrey
L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
10/17/98 02:23:25 PM
Record Type:
Record
CLINTON U~P.ARY PHOTOCOPY
To:
Mickey Ibarra/WHO/EOP
cc:
· Subject:
Re: Weekly .
Overall the trip was good and positive but there were some glitches that
were lesser in real importance.
On the positive side:
Witt personally went down, learned about, and got committed. to the
situationi
it highlighted our effortsi
we got some problems solvedi
�Page 36 of 154
ARMS Email System
the insular government and Cong. Romero appreciated it;
we clarified issues re several concerns that had become public; and
we touched Commonealther bases.
On the glitches:
. (1) Sec. Cuomo is upset. (A) He wasn't invited (even though Aida was
along) . (B) An AP story suggests Witt committed to a 50 000 home building
program (that Cuomo is, pushing with Gov. Rossello). I think the truth is
that Rossello's COS announced it (in Spanish), Witt then said we were
working together, and a reporter suggested it was a joint announcement.
(I'm waiting to see the clip.)
I
(2) The House· Speaker (an RNC member) refused to go to a meeting with the
. joint Legislature leadership because we (including Romero) settled on ~t
being in the Senate President's office (aDem by the way). He then
declined to met with Witt.
I am not concerned about this: He looks petty. His fight is with the
Senate President. We accomplished the purpose of the meeting -- meeting
with the Commonwealth party leaders who statehooders didn't want us to
see.
(Among those who wanted this were Melanne, who responded to a letter
to the First Lady with a call and got harangued by a Commonwealther.)
James Lee and I also thought we needed to see the Commonwealthers -- to
eliminate·complaints about lack of access and set them straight on the
facts. We got it down without offending the Gov's people, etc.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------~-----------
Jeffrey L. Farrow
10/19/98 11:23:11 AM
Record Type:
Record
To:
Mickey Ibarra/WHO/EOP
cc:
Janet Murguia/WHO/EOP, Fred DuVal/WHO/EOP
Subject:
Re: Weekly
Thanks for talking to Sec. Rubin re rum tax.
Re Joe Crapa: I want to do letters to a few Members of Congress who were
key and thought I'd include him. Janet, in particular we needed to tell
Schumer he would get some credit re territories CHIP bec~use D'Amato was
pushing so hard·. I've tried to do that with a couple of Puerto Rico
reporters but a POTUS letter would be good for him to have.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
· 10/24/98 10:50:13 AM
· Record Type:
Record
To:
Maria E. Soto/WHO/EOP, /WHO/EOP
cc:
Subject:
WeekJy
CLINTON UBRf.\R\' PHOTOCOPY
�Page 52 of 154
ARMS Email System
The Coast Guard intercepted a boat with152 Chinese citizens apparently
bound for Guam to
claim asylum on u.s, soil. Governor Carl Gutierrez
(D) and Congressman Robert Underwood (D) complained about the Immigration
and Naturalization Service not housing some 492 illegal- entrant Chinese
asylum seekers who have already made it to Guam recently and have filled
its jails to capacity. We are working with an NSC-led interagency task
force on.the problems.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM --------------~------------
Jeffrey L. Farrow
04/16/99 05:28:17 PM
Record
Record Type:
To:
Maria E. 'Soto/WHO/EOP®EOP
cc:
Subject:
Weekly
Where are you on Weekly? What is your time frame? I want to finalize re
Guam boat people.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---~-----------------------
Jeffrey L. Farrow
04/16/99 05:59:05 PM
Record
Record Type:
To:
Maria E. Soto/WHO/EOP®EOP
cc:
Subject:
Re: Weekly
We will wrap up Guam boat people soon.
-~-------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM --------------------------~
Jeffrey L. Farrow
04/16/99 06:45:42 PM
Record.
Record Type:
CLINTON LIBRARY PHOTOCOPY
To:
Maria E. Soto/WHO/EOP®EOP
cc:
Fred DuVal/WHO/EOP®EOP, Todd A. Bledsoe/WHO/EOP®EOP, William H.
White Jr./WHO/EOP®EOP
Subject:
Weekly
Our work with NSC and agency staff on the boat of 152 Chinese citizens ·
apparently bound for Guam culminated in the recommendation Sandy Berger
�Page 53 of 154
ARMS Email System
and I made that you grant the Attorney General authority to detain the
people in the Northern Mariana Islands and a directive to agencies to take
them there and process them for repatriation or asylum.
Governor Pedro
Tenorio (I) agreed to the request. We are working with NSC staff to have
an interagency meeting next week consider the further concerns of Guam
Governor Carl Gutierrez (D) and Congressman Robert Underwood (D) regarding
the 492 Chinese who have already made it to Guam and others who may try to
go there illegally to seek asylum.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
04/16/99 06:57:27 PM
Record
Record Type:
To:
Maria E. Soto/WHO/EOP®EOP
cc:
Subject:
Re: Weekly
As far as I'm concerned.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
04/16/99 07:15:38 PM
Record Type:
Record
To:
Maria E. Soto/WHO/EOP®EOP
·CC:
Subject:
Re: Weekly
This replaces the original.
.
---------------------- Forwarded by jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
04/22/99 07:23:34 PM
Record
Record Type:
CLINTON LIBRARY PHOTOCOPY
To:
Maria E. Soto/WHO/EOP®EOP
cc:
Subject:
Weekly
The only change is that the following sentence substitutes for the third
and fourth sentences in what I gave Bill.
Governor Pedro Rossello (D), Congressman Carlos Romero-Barcelo (D), and
the'legislature called for ending live ammunition practice on the island
municipality..
�Page 69 of 154
ARMS Email System
the name of the islands' independence.
Guam at the UN:
Guam representatives led by Governor Carl Gutierrez (D)
raised State Department concerns in appearances at the U.N.
They invited
the decolonization committee to observe a status choice vote limited to
the island's indigenous people which the Administration does not support._
They also criticized the u.s. for not establishing a process to enable the
territory to become self-governing.
Vieques Demonstration: A reported 50,000 people, including Representative
Luis Gutierrez (D-IL), called for an end to military activity on Vieques
in a Puerto Rico demonstration.
july 4th Puerto Rico Message: At the request of Governor Rossello, Puerto
·Rico Interagency Group Co-Chair Jeff Farrow delivered a message from you
at the islands' U.S. Independence Day ceremony.
It reiterated your
commitment to enabling Puerto Ricans to choose the islands' status among
all the options.
Gore Puerto Rico Vice Chairs:
Five leaders from each of Puerto Rico's two
largest political parties became Vice Chairs of the insular Gore for
President campaign under Governor Rossello, its Chairman.
They include
Congressman Carlos Romero-Barcelo (D), a statehooder like Rossello, and
Miguel Lausell, a 'Commonwealther'.
----------------~-~--- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
07/15/99 05:37:28 PM
Record·
Record Type:
CLINTON UBR'~R\' PHOTOCOPY
To:
William H. White Jr./WHO/EOP@EOP
cc:
Fred DuVal/WHO/EOP@EOP, Todd A. Bledsoe/WHO/EOP®EOP
Weekly
Subject:
Insular Areas
Navy Concludes Vieques Bombing Needed: Navy Secretary Danzig joined the
Atlantic commanders of the Navy and the Marines in re.porting that bombing
practice on the Puerto Rican island of Vieques is needed and is not
unusual.
The report g?es to the special panel Defense Secretary Cohen
established at your direction to consider Puerto Rican objections to the
bombing as well as military needs. Naval officials did, however, suggest
the possibility of slight reductions in the bombing, safety and noise
improvements, the transfer of some land to the municipality, and
substantial economic aid for the community.
Guam/Marianas Illegal Migrants Reimbursement:
We worked with NSC and OMB
to fund costs Guam and the Northern Mariana Islands incurred in detaining
Chinese citizens caught by Federal agencies trying to enter the U.S.
through Guam. An $18 million FY99/00 Budgets amendment will be sent to
Congress.
Insular Office Subpoena: House Resources Committee Chairman Don Young (AK)
launched an investigation of whether the Interior Department's Insular
Affairs Office has conducted partisan activity against House Republican
leaders Tom DeLay_ (TX) , Dick Armey (TX) and Dana Rohrabacher (CA) and
Senate Energy and Natural Resources Committee Chairman Frank Murkowski·
�Page 73 of 154
ARMS Email System
Record Type:
Record
To:
William H. White Jr./WHO/EOP®EOP
cc:
Subject:
Re: IGA Weekly Report
Bill, thanks!
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ------------------~--------
Jeffrey L. Farrow
08/04/99 06;33:19 PM
Record
Record Type:
To:
Maria Echaveste/WHO/EOP®EOP
cc:
Leslie Bernstein/WHO/EOP®EOP, Marjorie Tarmey/WHO/EOP®EOP
Subject;
Vieques & Poster
I thought you might like to see (or have) the poster of Ruben Berrios on
Vieques.
FYI, the President wrote the bombing "should be stopped!!" on
our IGA Weekly Report.
I heard our Vieques visitors today were pleased
with the meeting. We'll see how it plays in the press.
Some, including
Jose Rivera, had a hard time making it through the Secret Service system.
Underwood was also pleased with his meeting
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ------------------~-----~--
Jeffrey L. Farrow
08/05/99 04:46:20 PM
Record
Record Type:
To:
William H. White Jr./WHO/EOP®EOP
cc:
Fred DuVal/WHO/EOP®EOP, Todd A. Bledsoe/WHO/EOP®EOP
Subject:
Weekly
Insular Areas
Vieques Bombing: Senator Charles Schumer (D-NY) reportedly said he will
sponsor legislation to force an end to military bombing practice at
Vieques,. Puerto Rico if necessary. He and nine House Members joined
Puerto Rican activists demonstrating at the Capitol on the issue.
Forwarded by Jeffrey L. Farrow/WHO/EOP on
61(18/2001 10:49 PM
Jeffrey L. Farrow
--------------------------1
CLINTON UBR,~RY PHOTOCOPY
�Page 94 of 154
ARMS Email System
12/17/99 10:43:30 AM
Record Type:
Record
CLINTO~~ LIBRARY PHOTOCOPY
To:
Jacqueline F. Lain/WHO/EOP®EOP
cc:
Subject:
Weekly
I will update this after 11 am meeting today
Insular Areas
Vieques Bombing Practice: John Podesta and Maria Echaveste led marathon
talks on the issue with Governor Pedro Rossello's chief aide, Secretary
Cohen's COS, Navy Secretary Danzig, and others with our help. They
produced a draft agreement on the issue that closely tracks the recent
Vieques announcement but also includes the provisions the Governor said
were missing based on his conversations with you and made what was
announced unacceptable. When consulted, the Governor said he would accepb
the draft accord, however, the Chief of Naval Operations and the
Commandant of the Marine Corps were not ready to.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
01/06/2000 12:47:39 PM
Record
Record Type:
To:
Jacqueline F. Lain/WHO/EOP®EOP
cc:
Subject:
Weekly
Insular Areas
.Vieques Bombing Practice: Noting that you, Secretaries Cohen and Danzig,
and others of us have tried to work out a solution to the dispute,
Governor Pedro Rossello (D) said Navy Operations Chief Johnson and Marine
Corps Commandant Jones were not and were insubordinate to you.
He was
reacting to the service chiefs private insistence the Navy be able to
shoot iive ordnance at the range from ships even though you and the
Secretaries announced only inert ordnance will be used and to unofficial
reports of Navy views.
Stronger statements were made by other Puerto
Rican leaders. The reaction here to the Governor's comments said such
statements were not helpful and you have full confidence in the chiefs.
Meanwhile, Cohen and Danzig continued to discuss the draft agreement with
Rossello on the issue with the Admiral and General. Additionally, the
head of the Independence Party resigned his Senate seat to continue
heading the live-in on the range and protesters are building permanent
housing there.
Millennium Celebration: We worked with other offices to meet Guam
Governor Carl Gutierrez's (D) requests for participation.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
�Page 95 of 154
ARMS Email System
CLINTON LIBR'~R.\' PHOTOCOPY
Jeffrey L. Farrow
01/06/2000 01:38:32 PM
Record Type:
Record
To:
Jacqueline F. Lain/WHO/EOP®EOP
cc:
Subject:
Weekly
Jackie, this is an update.
Insular Areas
Vieques Bombing Practice: Saying efforts by you, Secretaries Cohen and
Danzig, and others of us had produced enormous progress on the issue,
Governor Pedro Rossello (D) said Navy Operations Chief Johnson and Marine
Corps Commandant Jones blocked it and were insubordinate. He was reacting
to the service chiefs private insistence the Navy be able to shoot live
ordnance at the range from ships ·even though you and the Secretaries
announced only inert ordnance will be used and to unofficial reports of
such Navy views. Stronger criticism of the chiefs came from other Puerto
Rican leaders. The reaction here to the comments said such statements
were not helpful and you have full confidence in the chiefs. Meanwhile,
Cohen and Danzig continued to discuss the draft agree,ment with Rossello on
the issue with the Admiral and General. Additionally, the head of the
Independence Party resigned his Senate seat to continue heading the
live-in on the range and protesters are building permanent housing there.
Millennium Celebration: We worked with other offices to meet Guam
Governor Carl Gutierrez's (D) requests for participation.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM ---------------------------
Jeffrey L. Farrow
01/12/2000 06:08:43' PM
Record Type:
Record
To:
Jacqueline F. Lain/WHO/EOP®EOP
cc:
Subject:
The Weekly
Insular Areas
Rossello Hospitalized:
Puerto Rico Governor Pedro Rossello (D) was
hospitalized for a gallstones problem and was scheduled for surgery
today.
We had a note from you sent to him.
Vieques Bombing Practice: Governor Rossello hopes you will stick with the
.plan to resolve the dispute that he agreed to even though military
officers now want to change what they agreed to.
�Page 98 of 154
ARMS Email System
Subject:
Re: Weekly
I would put Vieques first, Guam election second, Interagency group third
and the other two as you see fit.
I have made a few slight changes on the
. below. Thanks.
Jacqueline F. Lain
01/21/2000 02:51:42 PM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP
cc:
Subject:
Re: Weekly
Jeff, I found the piece about Vieques Bombing Practice confusing.
Please
read below to ensure I didn't misinterpret where I had questions.
I also
indicated one remaining question for you to answer.
I meshed your
paragraph on the Interagency Insular Affairs meeting with a paragraph
Mickey submitted.
Vieques Bombing Practice: We joined other staff in presenting the military
chiefsD, new proposal to Governor Pedro Rossello (D).
The Governor
objected to (1) the statement that a return to live ordnance remains a
U.S. goal, (2) making the
community aid announced earlier contingent
upon local agreement to live ordnance and, possibly, permanent bombing,
and (3) the refusal to give Puerto Rico title to most of the land occupied
by the Navy in the event of a Navy exit. Rossello considered the proposal
insulting in light of the joint effort to resolve the dispute and
inflammatory given the more acceptable ·plan that was announced last month
and Puerto Rican views.
The Governor will be very disappointed if the
issue is left as it is now but will try to minimize Federal-insular
confrontations.
Insular Interagency Group:
On January 18, Jeff Farrow and John Berry,
Assistant Secretary of the Department of the Interior, co-chaired the
first meeting of the Interagency Group on Insular Areas created last year
at your d~rection to coordinate federal activity involving Guam, the
Northern Mariana Islands, American Samoa, and the U.S. Virgin Islands.
Samoa Fuel Waiver: The Environmental Protection Agency, pursuant to
Governor Tau'ese Sunia's (D) request, agreed to a one-year waiver of a
fuel requirement for the main power plant. The fuel requirement would
have been costly for the impoverished te.rritory to meet.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/18/2001 10:49 PM --------------------------C!Jf~TQN LIBR.'~RY PHOTOCOPY
_
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
001. email
Ronald Levy toM. Gibbons, re: HR-1056 (2 pages)
6/2611995
P5
002. email
Vivian Grisbkot to Carl Snoddy et al. [partial] (1 page)
9/12/1996
P6/b(6)
003. email
Vivian Grisbkot to Cabinet Affairs [partial] (1 page)
6/17/1997
P6/b(6)
COLLECTION:
CUNTOI\l LIBR.~RY PHOTOCOPY
Clinton Presidential Records
Automated Records Management System rEmaill
Default UGuam, Political Status, Reforml)
OA/Box Number: 1100000
FOLDER TITLE:
[5/25/1993- 10/10/2000]
Whitney Ross
2006-0193-F
wr610
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- (5 U.S.C. 552(b)]
PI National Security Classified Information ((a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office ((a)(2) of the PRA)
P3 Release would violate a Federal statute ((a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or ·
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 R~lease would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRA]
b(l) National security classified information ((b)(l) ofthe FOIA]
b(2) Release would disclose internal personnel rules and practices of .
an agency ((b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b )(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA)
·
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
·
b(8) Release would disclose information concerning the regulation of
financial institutions ((b )(8) of the FOIA]
b(9) Release would disclose geologica_! or geophysical information
concerning wells ((b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�,I
Page 1 of 2
·ARMS Email System
RECORD TYPE: FEDERAL
(EXTERNAL MAIL)
CREATOR: Ronald Levy®8=RL®4=Asst GC Legis Litig Regu@5=Departmerit of the Treasury@3=
CREATION DATE/TIME: 26"-JUN-1995 11: 09: 00.00
SUBJECT: HR-1056-B
LRM No. 1583
TO: GIBBONS M@A1@CD
READ:26-JUN-1995 11:26:19.51
CC: ASSOC GEN COUNSEL (LLR)
READ: NOT READ
( ASSOC (LLR)@8=AGC(@4=Asst GC Legis Litig
TEXT:
HR-1056-B
LRM No. 1583: Justice Proposed Report
H.R. 1056, Guam Commonwealth Act
Jill:
Below are comments from our tax and international trade folks:
Tax:
The Justice Department was correct in identifying two problems
concerning the treatment of taxation in the bill:
Concerning Title VI ~ Taxation, Justice noted that the
legislation should refer to the current version of the tax law
rather than to an obsolete version.
This is correct. However,
the reference should be to the Internal Revenue Code of 1986 as
amended from time to time.
Second, Justice noted that the provisions of.Title VI are
inconsistent with and should be coordinated with section 1271 of
the Tax Reform Act of 1986. This is correct.
Guam is not
permitted to replace the mirror code with its own tax laws unless
it enters into an impleme~tating agreement with the U.S. to
alleviate certain problems with tax administration.
Tax Policy has additional serious problems with the bill,
including:
-- with section 303, which would delegate to Guam the power to
enter into tax treaties with foreign governments,
with section 603, which allow Guam to rebate any taxes received
by it,
with section 604, which would allow Guam to determine under its
laws the amount of taxes imposed on the income and property of
persons within its jurisdiction, which could affect U.S. taxation
of U.S. persons;
CLINTON LIBR~RY PHOTOCOPY
�'I
Page 2 of 2
' ARMS Email System
-- with section 605, which would exempt Guam's bonds from taxation
by any State, Territory or political subdivision thereof (an
exemption not granted to the states, and
-- with section 1105, which would establish an Economic
Development Furid, which w01:1ld, inter alia, grant tax incentives to
start or expand commercial businesses in Guam in order to provide
employment and ownership.opportunities for residents of Guam.
International Trade
The bill is objectionable because it would permit Guam to enter
into trade agreements with foreign governments
CLINTO~J LISR'l.RY PHOTOCOPY
�Withdrawal/Redaction Sheet.
Clinton Library
DOCUMENT NO.
AND TYPE
001. email
DATE
SUBJECTffiTLE
Jeffrey Farrow to Marianas Asylum Issue (3 pages)
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
OPD crGuam, Legislation, Tourisml)
12/10/1999
RESTRICTION
P5
CLINTO~l UBR.'~RY PHOTOCOPY
OA/Box Number: 250000
FOLDER TITLE:
[12/10/1999- 10/20/2000]
Whitney Ross
2006-0193-F
wr611
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
-
Freedom of Information Act- [5 U.S.C. 552(b ))
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b( 4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ofthe PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Page 1 of 3
ARMS Email System
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL}
.CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] }
CREATION DATE/TIME:10-DEC-1999 14:54:02.00
SUBJECT:
Marianas Asylum Issue
TO: Irene Bueno ( CN=Irene Buen6/0U~OPD/O=EOP®EOP [ OPD ] }
REAP: UNKNOWN
TO: Scott Busby ( CN=Scott Busby/OU=NSC/O=EOP®EOP [ NSC ] }
READ: UNKNOWN
Danny_Aranza®ios.doi.gov
READ: UNKNOWN
Danny_Aranza@ios.doi.gov @ inet [ UNKNOWN ] }
Anna M. Briatico ( CN=Anna M. Briatico/OU=OMB/O=EOP [ OMB ] }
READ: UNKNOWN
TEXT:
Please note the message which follows from the Interior Department's
Insular.Affairs Director.
I think the suggestion of an interagency
meeting here on the proposal is a good one.
I have also heard concerns
about,the INS proposal today from Rep. George Miller's staffer.
Reaction?
---------------------- Forwarded by Jeffrey L. Farrow/~HO/EOP on 12/10/99
02:30 PM --------------------------Danny_Aranza@ios.doi.gov
12/10/99 12.:44:00 PM
Record Type: Record
To: Jeffrey L. Farrow®eop
CLINTmJ LIBR.'~R\' PHOTOCOPY
CC:
Subject: CNMI Immigration Matter
I have also discussed this
This follows up on our conversation today.
with Ed Cohen,
Jim Beirne and Marie Howard.
Their comments are set forth below.
I also
plan to call' Bo
Cooper at INS today.
In any event, it would be good to have our CNMI
interagency group briefed by Bob Bach on this issue before he acts on it.
Bob Bach, INS associate commissioner for programs, briefed me on his
recent visit to Saipan.
Bach indicated that INS wants to settle part of the asylum li~igation
filed by the two Chinese
workers against the U.S. and CNMI.
Specifically, he is proposing to enter
into
an MOU with the CNMI that has four parts:
1. At CNMI's request, INS will send trained federal officials to
Saipan on
an as-needed basis to conduct the interviews of asylum applicants and to
assure
that the appropriate asylum or non-refoulment standards, protocols and
procecures are followed to ensure that the workers are protected. The INS
ofticials will.then make recommendations to the CNMI government on whether
particular applicants qualify.
The ultimate decision remains with the
�-------------------
ARMS Email System
CNMI as
to whether to follow the INS recommendations.
++ According to Bach, this has the benefit of: (a) ensuring that the
workers are processed by trained officers and their rights are protected;
and
(b) leaves the ultimate legal authority and responsibility for this
process with
the CNMI.
·-- However, folks on the Hill are extremely skeptical and do not
believe
that INS should be abdicating a U.S. responsibility to the CNMI. What,
would
happen, for example,. if the INS officer recommends asylum or
non-refoulment, and
the CNMI nevertheless says no and sends the wo"rkers back?·
2.
INS will offer an intensive and extensive training of CNMI DOLI
officials in INS asylum procedures.
It is contemplated that, prior to
taking
this training, all CNMI officials will have gone through the regular
Federal
screening and security clearances.
++According to Bach, the theory here is two-fold: (a) it_will
develop a
professional cadre of local immigration officials who will be
knowledgeable in
INS regulations and procedures; and (b) in the event that the INS is
extended to
the CNMI, there will be a number of trained and cleared local
professionals that
the INS can hire.
This proposal does not appear to be problematic. However, if this
is
something that INS can already do, it should be doing this everi without a
settlement agreement.
3.
If asylum or non-refoulment is ultimately approved for particular
applicants, CNMI will agree to provide that peson with a formal, official
status
under CNMI local immigration law and still remain the official
responsibility of
the CNMI government.
In addition,
the Federal government (through·
existing
refugee assistance programs at State and Justice) will provide financial
assistance to non-governmental organizations (e.g. church groups or
others) in
the CNMI to enable these. groups to find sponsors for the approved
applicants and
to take the lead in relocating the-applicants as appropriate.
++ According to Bach, this is advantageous because: (a) the U.S.
does not
. undertake legal responsibility for the approved aliens, and (b) the NGO's
over
time will develop the institutional capability to assist CNMI refugees in
the
CLINTON LIBR'~RY PHOTOCOPY
Page 2 of 3
�Page 3 of 3
ARMS Email System
transition and relocation, which will be helpful in the event that the INA
is
eventually extended to the CNMI.
-- Folks on the Hill see problems with this.
First, who's to say who
these
third party groups will turn out to be -- it's even possible that
individuals
·
associated with the garment industry might set up an NGO for these
purposes.
Second, there's a. general concern about the u.s. government surrendering
control
and oversight on this process to third parties.
4.
INS continues to be concerned about smuggling of·non-resident
aliens
from the CNMI to Guam.
Unfotunately, there is currently no local laws with
·teeth that will allow Federal authorities to crack down on these
activities_ in
the CNMI -- current laws permit Federal intervention at the point of entry
into
U.S. immigration territory.
INS hopes to persuade the CNMI to enact a
local law
based on model legislation that the U.S. has Jorked out with foreign
countries,
which makes such activities a felony and allows Federal officials
extraterritorial jurisdiction to enforce these laws.
++ According to Bach, this will provide INS with a critical tool in
stemming the continuing stream of illegal aliens to Guam.
Folks on the Hill disagree with point.
They believe that there
must
already be existing Federal statutes that will allow the FBI, U.S.
Attorney's
office or other law enforcement agencies to prosecute perpetrators of
smuggling
rings while they are in the CNMI. There is also a sense that the INS will
probably be unable to persuade the· CNMI to go along with doing this.
Personally, I think that the terms of the MOU have some merit,
particularly 2
and 4. However, I told Bach frankly that .I could also see such an MOU
being
misused to argue that federalization is no longer necessary.
The argument
would
be something like -- Why do we need to extend the INA? . We have a great
MOU
that takes care of all our immigration problems.
Our Solicitor's office has
~isgivings
about this matter.
Please note that Bach/INS plan to meet with CNMI officials in Honolulu
next week
·on this.
It. is important to bring Bach in to explain his proposal in more
detail to the White House (Intergovernmental, NSC and DPC) as well as other
agencies (particularly State, Justice and Labor and Interior) .
CLINTmJ LIBR.';;.w PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. email
Mickey Ibarra to Capricia Marchal, re: State Dinner (1 page)
10/27/1997
P5
002. email
Mickey Ibarra to Douglas Sosnik, re: State Dinner (1 page)
10/27/1997
P5
003. email
Fred Duval to Emory Mayfield, re: Puerto Rico Rep. (2 pages)
1/23/1998
P5
004. email
Jeffrey Farrow to Maureen Hudson, re: Guam Gov. Gutierrez (1 page)
4/6/1998
P5
005. email
Dorinda Salcido to Roger Salazar [partial] (1 page)
10/27/1998
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO CrGuam, Legislation; Tourisml)
.P6/b(6)
CLINTON LIBRARY PHOTOCOPY
ONBox Number: 500000
FOLDER TITLE:
[2/26/1997- 12/22/1998]
Whitney Ross
2006-0 193-F
wr612 ·
RESTRICTION CODES
· Presidential Records Act- [44 U.S.C. 2204(a))
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a){2) ofthe PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6fofthe PRA)
·
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom oflnformation Act- [5 U.S.C. 552(b)]
b{l) National security classified information [(b)(l) ofthe FOlA)
b(2) Release would disclose internal personnel rules and practices of
an agency [{b)(2) of the FOlA]
b(3) Release would violate a Federal statute [(b){3) of the FOlA)
b(4) Release would disclose trade secrets or confidential or financial
. information [{b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b){6) of the FOlA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b){7) of the FOlA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOlA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOlA)
�Page 1 of 1
.ARMS Emai_l System
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP [ WHO ] )
.CREATION DATE/TIME:27-0CT-1997 10:38:49.00
SUBJECT:
State Dinner
TO: Capricia P. Marshall ( CN=Capricia P. Marshall/OU=WHO/O=EOP @ EOP [ WHO ] )
.READ: UNKNOWN
CC: Cecily C. Williams ( CN=Cecily C. Williams/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Sylvia Mathews and I just completed discussing the possibility of the
Governor.of Guam, Carl Gutierrez (D), who is in town dealing with Guam
status legislation, being invited to the the China State Dinner. This
would help us "soften the blow" he has received with 'the announcement that
we are unable to support the current proposed legislation. Is such an
invitation possible? I have not contacted NSC.
Second, I'm hoping you can ask your staff to identify for me or Cecily
Williams our electeds invited to .the After Dinner.entertainment.
Tahnks.
CUNTO~~<J LIBFU~RY PHOTOCOPY
(
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:27-0CT-1997 17:33:42.00
SUBJECT:
State Dinner
TO: Douglas B. Sosnik ( CN=Douglas B. Sosnik/OU=WHO/O=EOP @ EOP [ WHO ] )
READ :UNKNOWN
TEXT:
Partner, can you help me again on the request below. Since Guam is only a
1,000 miles from China, their number one trading partner, ~nd the Gov. is
in town I really want to make a push on this. Any advise?
---------------------- Forwarded by Mickey Ibarra/WHO/EQP on 10/27/97
05:21 PM --------------------------~
Mickey Ibarra
10/27/97 10:36:46 AM
Record Type:
Record
To:
Capricia P. Marshall/WHO/EOP
cc:
Fred DuVal/WHO/EOP, Cecily C. Williams/WHO/EOP
Subject:
State Dinner
Sylvia· Mathews and I just completed discussing the possibility of the
Governor of Guam, Carl Gutierrez (D), who is in town dealing with Guam
status legislation, being invited to the the China State Dinner. This
would help us "soften the blow" he has received with the announcement that
we are unable to support the current proposed legislation. Is such an
invitation possible? I have not contacted NSC.
Second, I'm hoping you can ask your staff to identify for me or Cecily
Williams our electeds invited to the After Dinner entertainment.
Tahnks.
CLINTON USRI}.RY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page ·1 of 2
(NOTES MAIL)
CREATOR: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP [ WHO ] . )
CREATION DATE/TIME:23-JAN-1998 16:08:10.00
SUBJECT:
Re: Puerto Rico Rep.
TO: Emory L. Mayfield ( CN=Emory
READ: UNKNOWN
L~
Mayfield/OU=WHO/O=EOP @ EOP [ WHO ] )
TEXT:
print
---------------------- Forwarded by Fred Duval/WHO/EOP on 01/23/98 04:02 PM
Jeffrey L. Farrow
01/23/98 04:05:48 PM
Record Type:
Record
CLINTON LIBR"'RV "H')TO""
,_., ... - t • ~.~opy
To:
Fred DuVal/WHO/EOP
cc:
Subject:
Re: Puerto Rico Rep.
I agree. I also told Dem Chair Miranda I'd tell him if there was anything
and would need to call Cong. Gutierrez's staffer who called for the
Commonwealthers. I would make calls at the appropriate moment to make sure
it was properly understood and get some positive Commonwealther reacts
(e.g. , Hernandez Agosto and Lausell).
A few points just so you understand how intense P.R. politics is and then
one about Guam:
1. The'current leaders of the party would be happier of nothing positive
happened until whenever it may be that they win office again. Example: the
$3 rum tax and health care funding are their ideology, the Conservation
Trust is controlled by Comrrionwealthers, the lack of the funding in these
areas now is a major issue against Commonwealth, and they may publicly
applaud the Pres. doing the funding, but they'll privately not be happy it
came when statehooders were in power.
2. We have striven to do what is fair, right, and sensitive to the needs
of all parties (in addition to the people as a whole) as well as be
reasonably consistent. We don't do things that we would otherwise do
because of the Commonwealthers' sensitivities. They will bluff us into
doing less if they can. (The statehooders would as well if they needed to.
)
3. We held back on status in '95 and '96 for the Commonwealthers, impeding
congressional action but we also promised Cong. Serrano as well as
Rossello and Romero w~ would be serious participants after '96. (The
statehood leaders were unhappy with us then.) The President personally
and publicly committed to work for legislation as of '97. We have obtained
some 30 amendments so far to the current bill, mostly for the
Commonwealthers.
4. P.R. politics is excessively next-day's-paper oriented. We've done well
�ARMS Email System
thinking about ther long haul and the people as well as the day to day
party demands.
Guam- Cong.·Underwood wrote asking for a mention in the SOU. I·told
Janet,, as we briefly discussed, I'd think of something re Guam's status.
I'm think of a brief letter from the Presd. to the Gov. and Cong.
reiterating the Administration's willingness to work on the legislation,
following up on the testimony, and noting that we will soon be making
supplementary comments (tax and trade proposals not fully addressed·
before).
I
i.
I
CLINTON LIBR'~Rv PH·o rocopy
· .. · .
Page 2 of 2
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 6-APR-1998 11:54:23.00
SUBJECT:
Guam Gov. Gutierrez
TO: Maureen·A. Hudson ( CN=Maureen A. Hudson/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TO: Carmen B. Fowler ( CN=Carmen B. Fowler/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
The two matters I thought it would be appropriate to mention are noted
below.
Recove.ry from the devastation caused by Typhoon Paka which hit the island
last December with the highest winds ever recorded anywhere.
Legislation to improve the Federal-territorial relationship, the
"Commonwealth bill." [This needs to be carefully phrased-- or just
mentioned-- since Guam proposed'many changes in Federal policy that.we
(like the Bush and Reagan Administrations) did not accept. We did, though,
suggest the positive measures that we could take as an alternative in a
Commonwealth bill.]
You might reference the territory's long
"quest" for legislation to establisha Commonwealth of Guam and for
Congressional action on it, which we are encouraging (to the extent of the
policy changes we
support).
CLif\ITONJIBR.'~RY PHOTOCOPY .
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. email
John Berry to Fred Duval, re: Virgin Islands Economic Revitalization
Legislation (1 page)
7/22/1999
P5
002. email
Danny Aranza to Fred Duval, re: Virgin Islands Economic
Revitalization Legislation (2 pages)
7/22/1999
P5
COLLECTION:
Clinton Presidential Records
Automated Records Management System [Emaill
WHO CrGuam, Legislation, Tourisml)
OA/Box Number: 500000
FOLDER TITLE:
[112111999- 111111999]
CUI~TON UBR~RY PHOTOCOPY
Whitney Ross
2006-0193-F
wr613
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom ofinformation Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or ·
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(~)(6) of the PRA)
.
b(l) National security classified information [(b){l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA) ·
b(4) Release would disclose trade secrets or confidential or financial
information [{b)(4) of the FOIA)
b{6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b){S) ofthe FOIA)
· b(9) Release would disclose geological or geophysical information
concerning wells [(b )(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
·PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: John_Berry@os.doi.gov@INET@LNGTWY ( John_Berry@os.doi.gov®INET®LNGTWY [ UNK
CREATION DATE/TIME:22-JUL-1999 09:33:01.00
SUBJECT:
Re: Virgin Islands Economic Revitalization Legislation
TO: Fred Duval@eop
READ: UNKNOWN
Fred Duval®eop [ WHO ] ).
TEXT:
We need to be careful here - there are real sensitivities with Guam right
now VI just got $16 million for Y2K computer fixes and Guam got
$60,000 .. ; ... Guam
also lost the $5 million the President PROMISED them and we MUST solve
this as
well.
If the Dept and the Admin are seen as advancing MORE mdeny for VI
BEFORE
we have solved the Guam issue, we could have a very problematic situation.
Karen - please get with John T and me and lets discuss asap.
CUNTON UBR'\R.Y PHOTOCOPY .
�Page 1 of 2
ARMS Email System
RECORD'TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Danny_Aranza@os.doi.gov@INET@LNGTWY ( Danny_Aranza@os.doi.gov@INET®LNGTWY [
CREATION DATE/TIME:22-JUL-1999 11:34:51.00
SUBJECT:
Re: Virgin Islands Economic Revitalization Legislation
TO: Fred Duval@eop
READ :UNKNOWN
Fred Duval@eop [ WHO ] )
TEXT:
John Per our conversation this morning, I've asked Dee to tentatively scheduled
a 3
p.m. meeting in your office to discuss where we are with the Virgin Islands
issue, and its probable interplay with Guam sensitivities.
I agree with
your
sentiments -- things have gotten so sensitive with Guam and the Y2K
discrepancy,
that I have had to schedule an emergency trip to Guam this weekend to have
personal face time with Governor Gutierrez to calm him down and give him
some
comfort that Guam will be treated fairly.
We plan to get out a new
Guam-only
Y2K report by Wednesday next week for Departmental review, prior to
submission
to OMB.
Danny
P.S. - Karen, I understand Dee will·be checking with you to confirm your
availability at 3 p.m. today.
John Berry
07/22/99 09:30 AM
To:
cc:
CUI~TON LIBR.~R't' PHOTOCOPY
Karen Kovacs/A8FW/08/DOI®DOI
Anne 8hields/SIO/OS/DOI®DOI, Danny Aranza/OIA/08/DOI@DOI, John
Trezise/POB/OS/DOI®DOI, Donald Barry/ASFW/OS/DOI®DOI, David
Heggestad/OIA/08/DOI®DOI, Duval_f@a1.eop.gov
Subject: Re: Virgin Islands Economic Revitalization Legislation
(Document link
not converted)
We need to be careful here - there are real sensitivities with Guam right
now . VI just got $16 million for Y2K computer fixes and Guam got
$60,000 ...... Guam
.
also lost the $5 million the President PROMISED them and we MUST solve
this as
well.
If the Dept and the Admin are seen as advancing MORE moeny for VI
BEFORE
we have solved the Guam issue, we could have a very problematic situation.
Karen - please get with John T and me and lets discuss asap.
�ARMS Email System
CLINTON UBR..'~R.Y PHOTOCOPY
Page 2 of 2
�Withdrawal/Redaction Sheet
Clinton Library·
DOCUMENT NO.
AND TYPE
DATE
SUBJECTrfiTLE
RESTRICTION
001. email
Anna Briatico to Lisa Fairhall, re: Interior Response to VA Braunch
and OPM Comments ton H.R. 755 (2 pages)
6/22/2000
P5
002. email
Anna Briatico to Jame Kazel, re: Late Comment from Justice (1 page)
7/25/2000
P5
003. email
Nicholas Gess to Jeffrey Farrow [partial] (1 page)
8/9/2000
P6/b(6)
004. email
Nicholas Gess to Jeffrey Farrow, re: Guam Urgent Request (2 pages)
8/10/2000
P5
COLLECTION:
CUf~TON UBR.'~RY PHOTOCOPY
Clinton Presidential Records
Automated Records Management System [Emaill
WHO ([Guam, Legislation, Tourisml)
OA/Box Number: 500000 ·
FOLDER TITLE:
[6/22/2000- 9/19/2000]
Whitney Ross
2006-0193-F
wr614
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) ofthe PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disClose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
. P6 Release would constitute a clearly unwarranted invasion of·
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift. ,
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) ofthe FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA]
b(3) Release would violate a Federal statute [(b )(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b )(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�-------------------------------------------------------------------------------------------------------------------
Page 1 of2
ARMS Email System
CLINTON LIBR ~RY PHO"fOCOPY
1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Anna M. Briatico ( CN=Anna M. Briatico/OU=OMB/O=EOP [ OMB ] )
CREATION DATE/TIME:22-JUN-2000 18:53:59.00
SUBJECT:
Interior Response to VA Branch and OPM comments on H.R. 755 - Guam War Res
TO: Lisa B. Fairhall ( CN=Lisa B. Fairhall/OU=OMB/O=EOP@EOP [ OMB ] )
READ: UNKNOWN
TO: Toni S. Hustead ( CN;=Toni S. Hustead/OU=OMB/O=EOP@EOP [ OMB ] )
READ: UNKNOWN
TO: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
TO: Anita Chellaraj
READ: UNKNOWN
TO: James B. Kazel (
READ: UNKNOWN
( CN=Anita Chellaraj/OU=OMB/O=EOP@EOP [ OMB ] )
CN~James
B.
Kazel/OU:OMB/O~EOP@EOP
[ OMB ] )
CC: John D. Burnim ( CN=John D. Burnim/OU=OMB/O=EOP@EOP [ OMB ] )
.READ: UNKNOWN
TEXT:
This e-mail provides additional information from the Department of the
Interior that accompanied the revised amendment (circulated under LRM AMB
373). Specifically, Interior responded to the comments from the VA Branch
and OPM as follows
Original comments from the VA Branch:
We have no objection to form a commission to study this issue.
there are some concerns we would like to highlight.
However,
The bill requests the commision to assess parity of war claims paid to the
residents of Guam under the War Claims Act of 1945 with war claims paid to
US citizens who lived in or had holdings in.foreign countries.
Guamanians were not citizens of the US until 1950. Since they were not
citizens of the US at the time of war, why compare them to US citizens?
Many Filipinos were granted US citizenship for the war effort eventhough
the Phillipines is not a territory of·the US.
Will this commission
compare the Guam situation to the Filipino situation?
We have not compensated nurses and other non-military personnel who have
served during wars? What do we owe them? Will the commission study that'?
In order for the commission to be effective, it should consider all
situations in the Pacific region before they recommend granting benefits
to the Guamanians.
Is there anyway we can ensure that the Commission will
study all the relavant situations? We would recommend section 3 read:
'"In its review, the Commission shall examine the circumstances of the
taking and occupation o.f Guam to determine if resulting treatment was
unique to Guam or was part of a pattern of Japanese occupation, and shall
examine whether or not there was pa)ri ty of· proper war claims were awarded
paid to residents of Guam under the Guam Meritorious War Claims Act of
November 11, 1945, with war claims awards paid to United States citizens
who lived in or had holdings in foreign countries, in parity with
�Page 2 of2
ARMS Email System
individuals with .similar situations during the WWII period.
Department of the Interior response:
We have a problem with the OMB suggested language.
questions:
But first to the OMB
(1) Of course, Guamanians were not U.S. citizens at the time.
They were
"virtual" U.S. citizens.
Citizenship was granted in 1950.
If they had
been on the same track (not isolated in the Pacific) as Puerto Rico and the
Virgin Islands, they would have had their citizenship decades earlier. The
entire piece of legislation is premised on judging the Guamanian claims as
if they were United States citizens. That concept must stay~
(2) Yes. The Commission may look at how U.S. citizens in the Philippines
were treated.
(3) No. Nurses and other non-military serving during wars are'irrelevant.
We're talking about civilians on Guam and others similarly situated who
were not "serving."
Our compromise at the .end of section 3 is to (1) keep the U.S. citizenship
standard, (2) utilize the following words ·from the 1948 War Claims Act ?"in
territory occupied or attacked by the Imperial Japanese military forces",
and (3) keep the following OMB language? "during the World War II period".
Also, we would deleted the word "all" from the first line section 3, and
have added the word "civilian" to sec. 3 "analagous categories of civilian
war claims" for clarification.
Depa,rtment of the Interior Response to OPM comments:
We accepted the OPM suggestions on compensation.
Please let me know by 2 p.m. tomorrow if you have any concerns regarding
the revised substitute. Thanks.
CLINTON LIBR'l.RY PHOTOCOPY
�Page 1 of 1
ARMS Email System
RECORD TYPE: PRESIDENTIAL. (NOTES MAIL)
CREATOR: Anna M. Briatico ( CN=Anna M. Briatico/OU=OMB/O=EOP [ OMB ] )
CREATION DATE/TIME:25-JUL-2000 16:07:07.00
SUBJECT:
Late comment from Justice on LRM-AMB413, HR2462, .Guam Omnibus Opportunitie
TO: James B. Kazel ( CN=James B. Kazel/OU=OMB/O=EOP@EOP [ OMB ] )
READ: UNKNOWN
TO: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
CC: John D. Burnim ( CN=John D. Burnim/OU=OMB/O=EOP®EOP [ OMB ] )
READ: UNKNOWN
TEXT:
FYI
---------------------- Forwarded by Anna M. Briatico/OMB/EOP on 07/25/2000
04:17 PM ----------------------:-----
"Silas, Adrien" <Adrien.Silas@usdoj.gov>
07/25/2000 03:48:06 PM
Record Type: Record
To: Anna M. Briatico/OMB/EOP
cc:
Subject: LRM-AMB413, HR2462, Guam Omnibus Opportunities Act (Control
-1823)
We would have amended the SAP in the following way:
(2) allow Guam, with some exceptions, the right to acquire federal land on
Guam deemed excess and not be bound to put that property to a "public
purpose" in the event payment of "compensation" is forthcoming.
This
provision portends controversy because the extent of the compensation
required is not defined iri. the proposed legislation;
I have been ad~ised that this is a big deal for us.
call to explain.
CUI\ITON UBPJ~~{\' PHOTOCOPY
We will have someone
�,..
Page 1 of 2
ARMS Email System
CLINTmJ LIBR/.\R\' PHOTOCOPY
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR:. "Gess, Nicholas M" <Nicholas.M.Gess@usdoj .gov> ( "Gess, Nicholas M" <Nichol
CREATION DATE/TIME:lO-AUG-2000 13:55:41.00
SUBJECT:
RE: Guam Urgent Request
TO: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
CC: Mark D. Magana ( CN=Mark D. Magana/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
CC: Mickey Ibarra ( .CN=M1ckey Ibarra/OU=WHO/O=EOP [. WHO ] )
READ: UNKNOWN
TEXT:
Jeff,
Part of the problem is that Guam's people aren't blameless. Witt
has failed to return two phone calls.
I'm not sure if he relayed that
tidbit to you.
If he calls you for any reason, please ask him to call Joe
Fanaroff at DOJ/IGA. Joe is poised to help him out.
Thanks.
Nick
-----original Message----From: Jeffrey_L._Farrow@who.eop.gov@inetgw2
[mailto:Jeffrey_L._Farrow@who.eop.gov]
Sent: Wednesday, August 09, 2000 12:33 PM
To: Gess, Nicholas M
Cc: Mickey_Ibarra@who.eop.gov@inetgw2;
Mark_D._Magana@who.eop.gov@inetgw2
Subject: Guam Urgent Request
Remember Delegate Underwood of Guam'· s request in June for help re INS
staffing on tourist arrivals? INS is now addressing the problem but it has
worsened a~d adequate help is reportedly several months away. Gov.
Gutierrez has now asked for help today. How can we?
The banner headline in the Pacific Daily Newstoday reads "Tourist entry
delayed/Visitors wait up to 4.hours for processing." The story reports
that:
processing used to take 45 minutes but has lengthened due to the end of
visa waiver programs;
the American Federation of Government Employees has filed a greivance
.over the is sue;
All Nippon Airways and the Westin Resort have complained;
INS says additional personnel with be there in several months;and
INS collects $ 7 million a year in user fees but spends only $1.5 ·
million on services.
Asian tourism is the major component of Guam's ·economy.
Gov. Gutierrez
says INS should have 70 agents but has only 40 slots of 58 filled.
Gutierrez wants· (1) to see if agents. can be detailed from Hawaii or
elsewhere and (2) something said today to the effect that we are working on
the problem.
�Page 2 of 2 ·
ARMS Email System
Thanks in advance for getting on this.
CLINTO~J LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
·Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
·DATE
RESTRICTION
001. email
Jeffrey Farrow to Mickey Ibarra, re: Guam War Claims EO (1 page)
12/13/2000
P2
002. email
Jeffrey Farrow to Scott Beale, re: Weekly (1 page)
12/15/2000
P2
003. email
Jeffrey Farrow to Scott Beale, re: Weekly (1 page)
12/15/2000
P2
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO (rGuam, Legislation, Tourisml)
CLINTON LIBR:~RY PHOTOCOPY
OA/Box Number: 500000
FOLDER TITLE:
[10/19/2000- 1/17/2001]
Whitney Ross
2006-0193-F
wr615
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA] ·
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) ofthe FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOlA]
b(3) Release would violate a Federal statute [(b)(3) of the FOlA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOlA]
b(6)Release would constitute a clearly unwarranted invasion.of
personal privacy [(b)(6) ofthe FOlA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOlA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOlA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request. .
�ARMS Email System
Page 1 of 1·
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:13-DEC-200017:02:08.00
SUBJECT:
Guam War Claims EO
TO: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Delegate Underwood called to recommend doing his WWII claims legislation
by EO (and appointing Gerri Gutierrez to chair. it ) as Gov. Gutierrez
requested. Did the Gutierrez request make it in the Daily?
.I
CLINTON UBP..AR\' PHOTOCOPY
�ARMS Email System.
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:15-DEC-2000 11:49:07.00
SUBJECT:
Weekly
TO: .Scott Beale
READ: UNKNOWN
CN=Scott Beale/OU=WHO/O=EOP®EOP [ WHO ] )
Records Management@EOP ( Records Management@EOP [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
Just go with this on Vieques;
Thanks.
Insular Areas
Vieques: Governor-elect Sila Calderon (I) said she would press the next
administration -- and not you -- to immediately end training and that she
had established working relationships with Senate Majority Leader Lott and
House Speaker Hastert.
She also said that she would not be detered in
acting to force an end to training by that delaying the land transfers and
community development projects t~at are based on the Government of Puerto
Rico's support of limited training. Navy Secretary Danzig had cautioned
her about the consequences of her plans to break the Vieques agreement.
Governor Pedro Rossello (D) said he was very pleased Danzig set the
referendum date (November 6) in response to Rossello's request to you.
However, Resident Co.mmissioner- elect.Anibal Acevedo said he would fight
the referendum because it does not incluqe an immediate end to training.
option.
Gutierrez Requests: Governor Carl Gutierrez (D) asked for two executive
orders. One would establish a commission to review compensation to
Guamanians for suffering during the enemy occupation of the island in
World War Two. This order would be based on legislation we supported.
Gutierrez also asked that you name his wife Geri to chair the commission.
Delegate Robert Underwood (D) who sponsored the legislation does not favor
such an order or the appointment of Mrs. Gutierrez. The other order would
transfer to local ownership land in the Guam National Wildlife Refuge.
The Interior Department has declined to relinquish this land in return for
rights to land Guam owns. Gutierrez also invited you to speak on Pacific
policy at Georgetown University February 27.
CLINTON LIBR/~RY PHOTOCOPY
.,
.
�· ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:15-DEC-2000 11:30:04.00
SUBJECT:
Weekly
TO: Scott Beale
READ: UNKNOWN
CN=Scott Beale/OU=WHO/O=EOP@EOP [ WHO ] )
Records Management@EOP ( Records Management@EOP [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
Did the first item get in the Daily?
Vieques.
2nd item is for Weekly.
I want to know where to starty on
Insular Areas
Vieques: Navy Secretary Danzig requested the referendum next November 6.
Governor Pedro Rossello (D) said he was pleased a date was finally set in
response to his request to you.
Gutierrez Requests:
Governor Carl Gutierrez (D) asked for two executive
orders. One would establish a commission to review compensation to
Guamanians for suffering during the enemy occupation of the island in
World War Two. This order would be based on legislation we supported.
Gutierrez also asked that you name his wife Geri to chair the commission.
Delegate Robert Underwood (D) who sponsored the legislation does not favor
such an order or the appointment of Mrs. Gutierrez. The other order would
transfer to local ownership land in the Guam National Wildlife Refuge.
The Interior Department has declined to relinquish this land in return for
rights to land Guam owns. Gutierrez also invited you to speak on Pacific
policy at Georgetown University February 27.
CLINTON LIBR~RY PHOTOCOPY
�Withdrawal/Redaction· Sheet
Clinton Library
DOCUMENT NO.
AND.TYPE
·
DATE
SUBJECT/TITLE
RESTRICTION
001. email.
Thurgood Marshall to Sylvia Mathews, re: FYI re Guam (2 pages)
8/9/1997
P5
002. email
Lisa Levin to Helen Veit [partial] (1 page)
1/8/1998
P6/b(6)
003. email
Jeffrey Farrow to Cecily Williams, re: Gmim Proposal (2 pages)
4/3/1998
P5
COLLECTION:
Clinton Presidential Records
Automated Records Management System ["Emaill
WHO (fGuam, Economic Development, Militaryl)
OA/Box Number: 500000
CLINTON LIBR~RY PHOTOCOPY
FOLDER TITLE:
[9/7/1995 - 10/1311998]
Whitney Ross
2006-0193-F
wr616
RESTRICTION CODES
: Presidential Records Act- [44 U.S.C: 2204(a)]
PI
P2
P3
P4
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
and his advisors; or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
. 2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)]
b{l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internill personnel rules and practices of.
an agency [(b)(2) ofthe FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�,,·\
· ARMS Email System
Page 1 of 2
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Thurgood Marshall Jr ( CN=Thurgood Marshall Jr/OU=WHO/O=EO:{ [ WHO ] .)
CREATION DATE/TIME: 9-AUG-1997 13:21:50.00
SUBJECT:
FYI re Guam .
TO: Sylvia M. Mathews ( CN=Sylvia M. Mathews/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Stephen B. Silverman ( CN=Stephen B. Silverman/OU=WHO/O=EOP@ EOP [WHO]
READ: UNKNOWN
Elisabeth Steele
· READ: UNKNOWN
CN=Elisabeth Steele/OU=WHO/O=EOP [ WHO ] )
TEXT:
As you may have heard, Governor Gutierrez of Guam was headed last night on
a collision course with U.S. military folks handling the
rescue/investigation on Guam. The Governor had wanted to .lead relatives
of victims on a search for victim remains (there are still some 100 bodies
believed to be among the wreckage) and the U.S. military was resistingi
it is an NTSB investigation site and the u.s. military presence is mindful
of that.
The Governor was also demanding an opportunity to bring relatives of
victims to one location where all victim remains could be made available
for identification.
Steve Silverman worked last night with Glen Davies and Mickey Ibarra
(Mickey's note on this is attached hereto)
and the anticipated standoff
was averted, as follows:
The Gqvernor will bring small groups of
relatives in to search the wreckage and, for identification, photos will
be provided rather. than an examination of the actual remains.
On a related note, the Governor taped his conversation with the POTUS and
has been replaying the tape for press·and others.
---------------------- Forwarded by Thurgood Marshall Jr/WHO/EOP on
08/09/97 01:07 PM ---------------------------
Mickey Ibarra
08/09/97 12:22:32 PM
Record Type:
Record
CLINTON LISR~FI.Y PHOTOCOPY
To:
Thurgood Marshall Jr/WHO/EOP
cc:
Subject:
Guam ·
.
.
---------------------- Forwarded by Mickey Ibarra/WHO/EOP on 08/09/97
12:14 PM---------------------------
)
�.(
Page 2 of 2
· ARMS Email System
Mickey Ibarra
08/09/97 ll:56:42 AM
Record Type:
Record
To:
Fred Duval/WHO/EOP
cc:
Suzanne Dale/WHO/EOP
Subject :
Guam
Fred, I spoke to Gil Shinohara, advisor to Gov. Guiterrez of Guam late
last night at the request of Steven Silverman. I expressed to Gil our
concern regarding the tension which has developed between the NSTB, US
Military and the Governor regarding matters related to the airplane crash
there. Gil, and Steven confirmed, that the situation has improved very
recently. The Gov. was meeting with the Admiral when I called. Gil agreed
to contact me if the situation worsened in anyway and also agreed to share
our concern with the Governor.
(I tried to reach you last night and am
concerned that I was unable to. Is there a problem with your pager?
Please check it out. ) I did receive your page message this morning. On
Monday , let's talk about the phone taping and other Guam matters. Thanks.
CLINTON UBR. ~~RY PHOTOCO~Y
�,ARMS Email System
Page 1 of 2
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP
WHO ] )
CREATION DATE/TIME: 3-APR-1998 12:06:05.00.
SUBJECT:
Guam proposal
TO: Cecily C. Williams ( CN=Cecily C. Williams/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
You did a good job but here are a few suggestions.
PURPOSES:
(1) To demonstrate the President's interest in the island's 140,00
residents, overcoming a view that they are generally ignored by the
Federal Government due to their lack of votes in it as well as their small
population and distant location. (2) To mitigate disappointment caused by
the Administration's unwillingness to make most of the Federal policy
changes Guam sought in its 'Commonwealth' proposal and provide an
opportunity to highlight the positive measures that we support/are
taking.
BACKGROUND:
The. trip through the area around Guam is scheduled to begin just days
after the Centennial of the taking of the island during the
Spanish-American War -- an anniversary that would provide a greater
context for a visit to the national news media and will have great
signficance to Guamanians. For Guamanians and veterans across the country,
the date would also recall the liberation of the island from a brutal
foreign occupation through a bloody battle in the Summer of 1944.
Governor Carl Gutierrez (D) and Delegate to the House Robert Underwood (D)
have repeatedly sought a stop during the President's trips in the region
and the President has suggested interest in going. Guam is the center of
the five insular areas linked to.the U.S. in the region. A visit could
also focus on. (1) efforts to help with recovery from a devastating typhoon
that hit with the highest winds ever recorded anywhere and (2) personnel
at our major military bases on Guam.
PREVIOUS PARTICIPATION:
The island is a reasonable stop during travel through the area. Several
presidents have used it as a rest stop.
BRIEFING TIME:
On the plane.
CLINTON LIBR~R\' PHOTOCOPY ·
(?)
Minimal .
(?)
DURATION:
Can be as little as an hour.
[I'd hope for at least four]
OUTLINE OF EVENTS:
Option 1: Open arrival/greet insular officials/remarks/rope line/greet,
military personnel/departure.
�Page 2 of 2_
, ARMS Email Syste~
Option 2: Open arrival at insular airport. Drive with Governor Gutierrez
and Congressman Underwood through capital of Agana. Brief meeting wiutn
insular electeds. Drive to military land to be transferred TBD. Remarks to
public rally; Drive to Navy side of airport. Rope line with milirary
personnel/dependents. Depart.
REMARKS REQUIRED:
Yes.
ORIGIN OF THIS PROPOSAL:
as you have it substituting "Delegate" for "Rep."
RECOMMENDED BY:
Fred
CLINTON LIBR·~RV PHOTOCOPY
./
�Withdrawal/Redaction Sheet
r
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001. email
Mark Magana to Biran Mason, re: NPR on Vieques (7 pages)
115/2000
P5
002. email
Jeffrey Farrow to Jacqueline Lain, re: Insular Areas [partial] (1 page)
1112/2000
P6/b(6)
003. email
Ann Donovan to Caroline Croft, re: Guam Participation in the
Millennium Celebration (3 pages)
1128/2000
P5
004. email
MaryEva Candon to Anne Donovan, re: Guam Participation in the
Millennium Celebration (2 pages)
1128/2000
P5
005. email
Paul McCarthy to Jeffrey Farrow, re: Guam Participation in the
Millennium Celebration (3 pages)
2/2/2000
P5
COLLECTION:
Clinton Presidential Records
Automated Records Management System fEmaill
WHO (fGuam, Economic Development, Militaryl)
CLINTON UBR~I-1.\' PHOTOCOPY
OA/Box Number: 500000
FOLDER TITLE:
[115/2000- 2/28/2000]
Whitney Ross
2006-0193-F
wr619
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a))
Freedom of Information Act- [5 u.s. c.· 552(b))
PI
P2
P3
P4
b(l) National security classified information [(b){l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
·
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA)
b(9) Release would disclose geological or geophysical information ·
concerning wells [(b)(9) ofthe FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a){4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release. would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request
�ARMS Email System
Page 1 of 7
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Mark D. Magana ( CN=Mark D. Magana/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 5-JAN-2000 17:08:58.00
SUBJECT:
NPR. on Vieques
TO: Brian S. Mason ( CN=Brian.S. Mason/OU=WHO/O=EOP@EOP [ WHO ] )
\
· READ: UNKNOWN
TEXT:
Brian -- FYI -- Vieques E-mail traffic in Reverse order
---------~------------ Fopwarded by Mark D. Magana/WHO/EOP on 01/05/2000
05:08 PM ---------------------------
Jeffrey L. Farrow
01/04/2000 10:11:10 AM
Record
Record Type:
To:
See the distribution list at the bottom of this message
cc:
Subject:
NPR on Vieques
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on
01/04/2000 10:08 AM ---------------------------
Seth J. Applebaum
01/04/2000 10:02:40 AM
Record
Record Type: _
_;
To:
>Mickey Ibarra/WHO/EOP@EOP
cc:
Jeffrey L. Farrow/WHO/EOP@EOP
Subject:
NPR Segment.
This segment aired on NPR (Morning Edition) today. I can order a transcipt
of the segment for $18 if you are interested.
Vieques Island Dispute -- Leda Hartman reports from the Puerto Rican
island of Vieques on
developments surrounding an eight month protest. Demonstrators are
upset over the death of a
civilian who was working on the U.S. Navy base there. The Clinton
Administration is trying to
come up with an .agreement that satisfies both the Puerto Rican
government and the Navy'· but
the agreement could lead to the Navy's eventually leaving the island.
(5:12)
CLINTON UBR~RY PHOTOCOPY
�Page 2 of 7
ARMS Email System
CLINTON LIBR~R\' PHOTOCOPY
Message Sent
To.: __~--------~---------------------------------------------------Maria Ecpaveste/WHO/EOP®EOP
Mara E. Rudman/NSC/EOP®EOP
Marjorie Tarmey/WHO/EOP®EOP
Leslie Bernstein/WHO/EOP®EOP
John Podesta/WHO/EOP®EOP
James R. Fallin/NSC/EOP®EOP
James E. Kennedy/WHO/EOP®EOP
Barry J. Toiv/WHO/EOP®EOP
Brian A. Barreto/WHO/EOP®EOP
Katharine Button/WHO/EOP®EOP
Charles W. Burson/OVP®OVP
Leon S. Fuerth/OVP®OVP
Mark D. Magana/WHO/EOP®EOP
Joseph F. Bouchard/NSC/EOP®EOP
Miles M. Lackey/NSC/EOP®EOP
Mark J. Tavlarides/NSC/EOP®EOP
Dawn M. Chirwa/WHO/EOP®EOP
Beth Nolan/WHO/EOP®EOP
---------------------- Forwarded by Mark D. Magana/WHO/EOP on 01/05/2000
05:08 PM
Jeffrey L. Farrow
01/05/2000 04:23:15 PM
Record Type:
Record
To:
Mickey Ibarra/WHO/EOP®EOP, Maria Echaveste/WHO/EOP®EOP
cc:
See the distribution list at the bottom of this message
Subject:
Guam Illegals Reimbursement
FYI, Guam and Justice agencies are disputing the amount Guam should ·be
reimbursed for holding in tents many of the illegal Chinese migrants who
entered the territory last year. At this stage, I am in agreement with
INS and OMB on how to handle the issue.
Essentially, Guam just wants the $98/day the Marshals Service pays it for
housing detainees in its prison and INS wants an amount based on the
actual services and costs in the tents.
So far, INS has calculated about
a third of the in prison rate and Guam has declined to provide
justification data. At INS' request, I contacted the Governor's office
beginning a few weeks ago to seek resolution conversations. As of this
point, Guam has not engaged although I have continued to get promised it
will.
If nothing else develops this week, Justice will set the rate based on the
data it has and have its IG make a determination re the rate. Any
additional costs that are justified will be reimbursed.
As you'll recall, we agreed to Guam's request that these illegal migrants
be detained, .unsuccessfully asked Congress to earmark State Criminal
Alien Assistance Programs funds for the purpose, and INS has already
provided Guam $4.4 million for it.
�Page 3 of 7
ARMS Email System.
CLINTON UBR.9.RY PHOTOCOPY
l'JJ~ssage
Copied
To=-----------------------------------------------------------------Mark D. Magana/WHO/EOP®EOP
Scott Busby/NSC/EOP®EOP ·
Steven M. Mertens/OMB/EOP®EOP
Michael Deich/OMB/EOP®EOP
Irene Bueno/OPD/EOP®EOP
Marjorie Tarmey/WHO/EOP®EOP
James B. Kazel/OMB/EOP®EOP---------------------- Forwarded by Mark D.
Magana/WHO/EOP on 01/05)2000 05:08 PM ~--------------------------
Jeffrey L. Farrow
01/05/2000 04:47:13 PM
Record Type:
Record
To:
See the distribution list at· the bottom of this message
cc:
Subject:
NPR report on Vieques
FYI transcript of NPR report on Vieques yesterday. Mara and Jim, Rossello
was interviewed but note that would not discuss details in talks.
He did
say our 12/3 plan went a long way but assurance mechanisms are needed. He
also suggested he would accept inert bombing.
This is NPR's MORNING EDITION. I'm Bob Edwards.
For the last eight months, protesters on the Puerto Rican island of
Vieques have forced the US Navy to stop training at a base there. The
demonstration follows the death of a civilian working on the base. The
Clinton administration has been trying to work out an agreement
acceptable to both the Puerto Rican government and the Navy, which
could lead to the Navy's eventual departure. From Vieques, Leda
Hartman prepared this report.
(Soundbite of protesters chanting)
LEDA HARTMAN reporting:
Since April, protesters chanting ~Navy out' have gathered 24 hours a
day at the_ gates of Camp Garcia, the US naval base on Vieques. That's
when a civilian guard named David Sanes was killed by two stray
bombs during US naval exercises. To understand why one death
unleashed such a torrent of resentment, you have to talk to people like
83-year-old Luisa Guadalupe(ph), who comes to Camp Garcia almost
daily. Her family lost its farm in 1943 when the Navy took two-thirds
of the land in Vieques, claiming eminent domain during the World War
II crisis.
Ms. LUISA GUADALUPE (Vieques Resident): (Through Translator)
In the towns of Mosquito and Playa Grande, the Navy knocked down
the houses with a mechanical shovel and threw the whole thing into a
truck.
HARTMAN: Guadalupe says living next door to a bombing range is
like living iri a war zone.
�ARMS Email System
CLINTOf'-J LIBRIJ.RY PHOTOCOPY
Ms. GUADALUPE:· (Through Translator) At night when you're asleep,
there's a mountain of helicopters in the sky flying low. They make noise
right over our roofs night and day. And the kids get scared. That's why
a lot of people have left the island.
HARTMAN: Many Viequesans also fear that contamination from the
bombing has led to unusually high cancer rates on the island. A Puerto
Rican Department of Public Health study shows cancer rates on
Vieques are 26 percent higher than on the mainland. The Navy
questions that conclusion.
Few people protested the Navy's presence until the death of David
Sanes. Robert Raban has lived on Vieques for 20 years, and he's an·
organizer with the Committee for the Rescue and Development of
Vieques, the group coordinating the protests.
Mr. ROBERT RABAN (Committee for the Rescue and Development
of Vieques): Peoples' souls, we think, have been shaken because
there's never been this type of unity. And--you know, unity in Puerto
Rico across ideological, philosophical, social class lines is~-it's
historic.
HARTMAN:
over the
The Navy
training
The Navy acknowledges the hostility that has developed
years, but maintains that Vieques is vital to national security.
says Vieques is the only place in the Atlantic where live fire
can take place from the air, land and sea.
The Clinton administration has been trying to resolve the dispute, but
has declined to comment on its negotiations. In early December, the
administration made a proposal calling for the Navy to leave Vieques
within five years and to train only with inert bombs, not live ones.
Puerto Rico's governor, Pedro Rossello--a supporter of
statehood--says the proposal went a long way in responding to local
concerns, but didn't go far enough. He's looking for legal guaranties that
the Navy would depart on a specific date.
Governor PEDRO ROSSELLO (Puerto Rico): It's very important that
whatever solution is reached, that there be an assurance that this time
around we have the mechanisms in place that will guarantee that
whatever is decided will be done.
HARTMAN: The protesters on Vieques have praised Rossello's
firmness, but many remain adamant that all bombing of any kind stop.
The governor says the possibility of inert.bombing is still on the table.
Gov. ROSSELLO: We still have not agreed on ~ll the points, and I
have to faithfully keep our promise that we will not discuss the details.
(Soundbite of waves hitting shoreline)
HARTMAN: No matter what agreement is reached,'the bombing
range on Vieques' eastern shore is no longer the empty stretch of land it
was eight months ago. Dozens of protesters are camped out illegally
. here in an event to stave off further military exercises. Alejandro Torres
is one.
Mr. ALEJANDRO TORRES (Protestor): The people here is a
guarantee--like a human shield--to prevent the Navy from bombing the
area. We have people that have been living here for more than seven
Page 4 of 7
�ARMS Email System
Page 5 of 7
I.
months.
(Soundbite of people speaking in Spanish)
HARTMAN: The protesters are here for the long haul. At Torres'
camp, there is a solar collector and a wind turbine. There are even pots
of seedlings to help reclaim the bombing range, a cratered stretch of
land littered with_old planes and tanks used for target practice. Bombs,
spent and unspent, are everywhere. Independence Party President
Ruben Berrios has lived at the bombing range continuously since May.
Mr. RUBEN BERRIOS (President, Independence Party):
spoken)
(Spanish
. HARTMAN: Berrios tells his supporters that if they can maintain a
.
solid block of resistance to the Navy's presence, President Clinton will
have no other choice but to pull out without letting one more bomb be
dropped.
(Soundbite of helicopter flying over)
HARTMAN: As he speaks, a Navy helicopter circles in low around his
lean- to.· The door opens, and someone lea·ns out and snaps a photo.
For now, the helicopters in the skies over Vieques just take pictures,
but that may change in spring when the George Washington battle
group is scheduled to begin military exercises here. Berrios says he'll be
here unless the.Navy leaves or he's arrested. For NPR News, I'm
Leda Hartman in Vieques, Puerto Rico.
END
Message Sent
To:·
~----------~--~--------------------------------------------Maria Echaveste/WHO/EOP@EOP
Mara E. Rudman/NSC/EOP®EOP.
James R. Fallin/NSC/EOP®EOP
James E. Kennedy/WHO/EOP®EOP
Alejandro G. Cabrera/OVP®OVP
Charles W. Burson/OVP@OVP
Leon S. Fuerth/OVP®OVP
John Podesta/WHO/EOP®EOP
Brian A. Barreto/WHO/EOP®EOP
Mark D. Magana/WHO/EOP@EOP
Katharine Button/WHO/EOP®EOP
---------~------------ Forwarded by Mark D. Magana/WHO/EOP on 01/05/2000
05:08 PM -------------------~-------
CLINTON L!BR·~R.Y PHOTOCOPY
�Page 6 of 7
ARMS Email System
Mara E. Rudman
01/05/2000 04:54:02 PM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP@EOP
cc:
See the distribution list at the bottom of this message
Subject:
Re: NPR report on Vieques
JEff-I
heard NPR yesterday and thought it was fine.
Unfortunately, the reports we're getting from reporters on the Governor's
comments today are not so good. ·Far harsher than your description in
terms of the words he used to describe Johnson and Jones and their
position.
We are working on press guidance now, to coordinate with OSD, that
disavows an "us v. them" posture/position.
Message Copied
To=------------~--~~----------~----------------------------------
maria echaveste/who/eop®eop
james r. fallin/nsc/ eop®eop
james e. kennedy/who/eop@eop
alejandro g. cabrera/ovp®ovp
charles w. burson/ovp®ovp
leon s. fuerth/ovp®ovp
john podesta/who/eop@eop
brian a. barreto/who/eop®eop
mark d. magana/who/eop®eop
katharine button/who/eop®eop
Joseph F. Bouchard/NSC/EOP®EOP
Miles M. Lackey/NSC/EOP@EOP---------------------- Forwarded by Mark D.
Magana/WHO/EOP on 01/05/2000 05:08 PM ---------------------------
Jeffrey L. Farrow
01/05/2000 05:06:28 PM
Record Type:
Record
To:
Mara E. Rudman/NSC/EOP@EOP
cc:
See the distribution list at the bottom of this message
Subject:
Re: NPR report on Vieques
Yes, the Governor went beyond what Morey expected. A second hand source
says Rossello said the chiefs were·working against resolution, wanted to
go back to pre-accident use of Vieques with live fire, totally divorced
from the realistic possibilitieson the island, and "insubordinate"
calling civilian control of the military into question.
Message Copied
To=------------~----------------------------------------------------
maria echaveste/who/eop®eop
james r. fallin/nsc/eop®eop
james e. kennedy/who/eop@eop
alejandro g. cabrera/ovp®ovp
charles w. burson/ovp®ovp
leon s. fuerth/ovp@ovp
CLINTON UBR.'~RY PHOTOCOPY
�Page 7 of7
ARMS Email System
john podesta/who/eop@~op
brian a. barreto/who/eop®eop
mark d. magana/who/eop@eop
katharine button/who/eop®eop
joseph f. bouchard/nsc/eop@eop
miles m. lackey/nsc/eop@eop
CUNTO~J LISFU~RY PHOTOCOPY
�'r
Page ·1 of 3
ARMS Email System
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Anne F. Donovan ( CN=Anne F. Donovan/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:28-JAN-2000 18:19:50.00
SUBJECT:
Guam Participation in the Millennium Celebration
TO: Caroline J. Croft ( CN=Caroline J. Croft/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Amy Comstock ( CN=Amy Comstock/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
CC: Ellen M. Lovell ( CN=Ellen M. Lovell/OU=WHO/O~EOP@EOP ·[ WHO ] )
READ: UNKNOWN
CC: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Paul McCarthy ( CN=Paul McCarthy/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN .
TEXT:
Caroline:
fyi-stay tuned.
Talk with me though before you have copies of the tape
duplicated.
I'm leaving the tape on your chair. Have you gotten anyplace
with State being willing to pay for the duplication? I spoke to Jeff
Farrow this morning about this and he was going to check with Mary Eva on
where they were with everything.
I'll call him now before' I leave and
will let you know the results.
·Paul:
Has anyone ever heard from Brian or anyone there as to where they will
play the Guam tape?
Anne
---------------------- Forwarded by Anne F. Donovan/WHO/EOP on 01/28/2000
06.:15 PM ---------------------------
MaryEva Candon <Candon@BCJLaw.com>
01/28/2000 05:15:08 PM
Record Type: Record
To:. Paul McCarthy /WHO /EOP, Anne F·. Donovan/WHO /EOP
cc:
Subject: Guam Participation in the Millennium Celebration
CLINTQI\J LIBR'.\R\' PHOTOCOPY
Paul and Anne:
[I will also fax this to Amy Comstock and Jeff Farrow].
First, to all four of you, thank you for sitting down with us last week to
try to resolve the damage unintentionally done to Governor Gutierrez.
�''
Page 2 of 3
ARMS Email System
CLINTON LI8P.AHY PHOTOCOPY
We have further "researched" the source of funds
in all cases, local
funds were used, not federal funds.
Those to be thanked and the sources of
the funds are as follows:
Mr. Jerry Yingling
Executive Manager
The Guam International Airport Authority
GIAA marketing budget
P.O. Box 8770
Tamuning, Guam
96931
Tel: 671-646-0300
Fax: 671-646-8823
Mr. James Nelson
Executive Director
The Guam Visitors' Bureau
marketing budget
Pale San Vitores
Tuman, Guam
969l0
Tel:
671~646-5278
Fax:
671-646-8861
$l00,000 from the
$ 50,48l from the GVB
Mr. Ed Untalan
General Manager
The Guam .Economic Development Authority
the payroll budget bec.ause of early
590 South Marine Drive
personnel
Suite 5ll ITC Bldg.
Tamlining, Guam
96931
Tel:
671-647-4332
Fax:
671-649-4l46
$ 50,000 from monies saved in
departures of
Of course, the Governor should be thanked:
The Honorable Carl T.C. Gutierrez
Governor
The Ricardo J. Bordallo Governors' Complex
Adelup
Hagatna, Guam 96910
Regarding our discussion about how to give Guam exposure, the idea of a
video or something at the International Trade
Center was well received. However, whatever is done the desire is to do it
quietly for now so as not to create anymore bad
press in Guam
the taste is still bad and no one wants to be reminded
of
it right now. Therefore, we did not pursue the radio
talk with Paul and Ellen Ratner.
However, having Guam's sponsorship mentioned in all the letters to the U.S.
Ambassadors and to the foreign Ambassadors is
considered an excellent idea as well as having the Guam sponsorship
mentioned as a feeder.in the video going to all
embassies as well as ~entioning Guam's sponsorship on the video case.
�•;
ARMS Email System
Page 3 of 3
What were you all able to come up with?
Thank you again for your serious consideration of this difficult situation
which we all wish had not happened.
MaryEva
. CLINTON LIBR~RY PHOTOCOPY
�ARMS Email System
Page 1 of 2
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: MaryEva Candon
MaryEva Candon
[ UNKNOWN ] )
CREATION DATE/TIME:28-JAN-2000 17:23:35.00
SUBJECT:
Guam Participation in the Millennium Celebration
.TO: Anne F. Donovan ( CN=Anne F. Donovan/OU=WHO/O=EOP [WHO]
READ: UNKNOWN
TO:.Paul McCarthy ( CN=Paul McCarthy/OU=WHO/O=EOP [WHO]
READ: UNKNOWN
)
)
TEXT:
Paul and Anne:
[I will also fax this to Amy Comstock and Jeff Farrow]
First, to all four of you, thank you for sitting down with us last week to
try to resolve the damage unintentionally done to Governor Gutierrez.
We have further "researched" the SOl.lrce of funds
in all cases, local
funds were used, not federal funds.
Those to be thanked.and the sources of
the funds are as follows:
Mr. Jerry Yingling
Executive Manager
The Guam International Airport Authority
GIAA marketing budget
P.O. Box 8770
Tamuning, Guam
96931
Tel: 671-646-0300
Fax: 671-646-8823
Mr. James Nelson
Executive Director
The Guam Visitors' Bureau
marketing budget
Pale San Vitores
Tuman, Guam
96910
Tel: 671-646-5278
Fax: 671-646-8861
Mr. Ed Untalan
General Manager
The Guam Economic Development Authority
the payroll budget because of early
590 South Marine Drive
personnel
Suite 511 ITC Bldg.
Tamuning, Guam
96931
Tel: 671-647-4332
Fax: 671-649-4146
$100,000 from the
$ 50,481 from the GVB
$ 50,000 from monies saved in
departures of
Of course, the Governor should be thanked:
CUf\ITON UBR.~R\' PHOTOCOPY
�ARMS Email System
Page 2 of 2
The Honorable Carl T.C. Gutierrez·
Governor
The Ricardo J. Bordallo Governors' Complex
Adelup
Hagatna, Guam 96910
Regarding our discussion about how to give Guam exposure, the idea of a
video or something at the International Trade
Center was well received. However, whatever is done the desire is to do it
quietly for now so as not to create anymore bad
press in Guam
the taste is still bad.and no one wants to be reminded
of
it right now.
Therefore, we did not pursue the radio
talk with Paul and Ellen Ratner.
However, having Guam's sponsorship mentioned in all the letters to the U.S.
Ambassadors and to the foreign Ambassadors is
considered an excellent idea as well as having the Guam sponsorship
mentioned as a feeder.in the video going to all
embassies as well as mentioning Guam's sponsorship on the video case.
What were you all able to come up with?
Thank you again for your serious consideration of this difficult situation
which we all wish had not happened.
MaryEva
CLINTON UBPJ~R\' PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 3
(NOTES MAIL)
CREATOR: Paul McCarthy ( CN=Paul McCarthy/OU=WHO/O=EOP
UNKNOWN ] )
CREATION DATE/TIME: 2-FEB-2000 15:41:22.00
SUBJECT:
Guam Participation in the Millennium Celebration
TO: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Anne F. Donovan ( CN=Anne F. Donovan/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Ellen M. Lovell ( CN=Ellen M. Lovell/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Jeff:
From Mary Eva's E-mail, it would appear that they are primarily
interested in the video mailing to the embassies. Ellen Lovell had spoken
to the folks at GSA regarding the showing of a Guam video, and my
understanding is that they were receptive to the idea.
I do not believe·
the concept was brought to the implementation stage. If the ITC video
display is still of interest to the Guam businesses, we need to get that
program in place. Unfortunately, today is my last day here in
:washington. I'm sure that Ellen or her designee will follow-up.
Thanks
for your efforts on our behalf.
Paul
----------:----:--------- Forwarded by Paul McCarthy/WHO/EOP on 02/02/2000
03:33 PM ---------------------------
MaryEva Candon <Candon@BCJLaw.com>
01/28/2000 05:15:08 PM
Record Type: Record
To: Paul McCarthy/WHO/EOP, Anne. F. Donovan/WHO/EOP
cc:
Subject: Guam Participation in the Millennium Celebration
Paul and Anne:
[I will also fax this to Amy Comstock and Jeff Farrow]
First, to all four of you, thank you for sitting down with us last week to
try to resolve the damage unintentionally done to Governor Gutierrez.
We have further "researched" the source of funds
in all cases, local
funds were used, not federal funds.
Those to be thanked and the sources of
the funds are as follows:
Mr. Jerry Yingling
Executive Manager
The Guam International Airport Authority
GIAA marketing budget
P.O. Box 8770
Tamuning, Guam
96931
Tel: ~71-646-0300
$100,000 from the
CLII•JTON USR'\RY PHOTOCOPY
�Page 2 of3
ARMS Email System
Fax:
671-646-8823
Mr. James Nelson
Executive Director
The Guam Visitors' Bureau
marketing budget
Pale San Vitores
Tuman, Guam
96910
Tel:
671-646-5278
Fax~
671-646-8861
$ 50,481 from the GVB
Mr. Ed Untalan
General Manager
.The Guam Economic Development Authority
the payroll budget because of early
590 South Marine Drive
personnel
Suite 511 ITC Bldg.
Tamuning, Gua~
96931
.Tel:
671-647-4332
Fax~
671-649-4146
$ 50,000 from monies saved in
departures of
Of course, the Governor should be thanked:
The Honorable Carl T.C. Gutierrez
Governor
The Ricardo J. Bordallo Governors' Complex
Adelup
Hagatna, Guam 96910
Regarding our discussion about how to give Guam exposure, the idea of .a
or something at the International Trade
Center w~s.well received . . However, whatever is done the desire is to do it
quietly for now so as not to create anymore bad
press in Guam
the taste is still bad and no one wants to be reminded
of
it right now. Therefore, we did not pursue the radio
talk with Paul and Ellen Ratner.
vid~o
However, having Guam's sponsorship mentioned in all the letters to the U.S.
Ambassadors and to the foreign Ambassadors is
considered an excellent idea as well as having the Guam sponsorship
mentioned as a feeder.in the video going to all
embassies as well as mentioning Guam's sponsorship on the video case.
What were you all able to come up with?
Thank you again for your serious consideration of this difficult situation
which we all wish had not happened.
MaryEva
CLII~TON USR!~RY PHOTOCOPY
�· ARMS Email System
CLINTON LIBRARY PHOTOCOPY
Page 3 of 3
�Withdrawal/Redaction Sheet
Clinton Library
. DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
001. email
Ronald Levy toM Gibbons, re: HR 1056 (3 pages)
7/2611995
P5
002. email
Alicia Kolaian to C Callahan, re: sample SAP paygo language for
Guam War restitution (1 page)
9/27/1996
P5
003. email
Eric Dodds to Cabinet Affairs [partial] (1 page)
8/12/1998
P6/b(6)
004. email
Roger Stillwater to Dany Aranza, re: Accuracy of Guam's Section 30
Payments (2 pages)
4/5/1999
P5
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
Default (fGuam, Economic Development, Militaryl)
OA/Box Number:
CUi~TON LIBR.~RY PHOTOCOPY
1100000
FOLDER TITLE:
[6/9/1995- 9/30/1999]
Whitney Ross
2006-0193-F
wr620
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade.secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the. President
.
.
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personar privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
C. Closed in accordance with restriCtions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Page 1 of 3
_ . ,ARMS Email System
RECORD TYPE: FEDERAL
(EXTERNAL MAIL)
CREATOR: Ronald Levy®8=RL@4=Asst GC Legi$ Litig Regu®5=Department of the Treasury®3=
CREATION DATE/TIME:26-JUL-1995 10:16:00.00
SUBJECT: HR-1056-AR Rpt for OMB
TO: GIBBONS M@A1@CD
READ:26-JUL-1995 10:19:25.54
CC: ASSOC GEN COUNSEL (LLR)
READ: NOT READ
( ASSOC (LLR)@8=AGC(®4=Asst GC Legis Litig
CC: JUKES J®A1@CD
READ: 26-JUL-1995 10:25:11.78
TEXT:
Jill:
Per our conversation of a few minutes ago I am attaching a
draft report, .for inteagency clearance, on H.R. 1056, the Guam
Commonwealth Act.
·
In responding to your question, "what kind of clearance timeframe is Treasury looking for," we were sidetracked with the
Justice/Interior disagreement, re constitutional issues, and I
never did answer your question to me Knowing what agency workloads are, I am hesitant to request
yesterday . . I am equally reluctant to be.indefinite or·stretch the
review period out too long.
From our perspective, a five or--six
working day review period should get a clearance back to us in
within two weeks.
Thanks!
Ron Levy
Attachment
0
The Honorable Don Young
Chairman
·
Committee on Resources
U.S. House of Representatives
Washington, D.C. 20515
CLINTON LIBR.~RY PHOTOCOPY
Dear. Mr. Chairman:
This letter responds to your request for the views of
the Department of the Treasury on H.R. 1056, "To establish
the Commonwealth of Guam, and for other purposes. n' While
the Department takes no position with regard to the merits
of Commonwealth stat·us, it does have specific concerns and
objections with the bill that are set forth below.
Section 303(a) (2):
The Department is opposed to that portion
of section 303(a) (2) that would authorize the Commonwealth of Guam
�ARMS Email System
CLINTON
UBR'~RY PHOTOCOPY
to "enter into agreements with sovereign states, and the political
entities resulting from the Trust Territory of the Pacific
Islands, relative to reciprocal trade and tax questions and their
application to the respective jurisdictions." This is authority
that the Commonwealth of Puerto Rico does not have, and we are
unaware of any reason to draw a distinction for Guam.
Section .·601 (d) (1) and (e): The references to the Internal
Revenue Code of 1954 should be replaced by a references to the
"Internal Revenue Code of 1986."
Section 603: The Department is opposed to the breadth of
section 603. As drafted, section 603 authorizes the Commonwealth
of Guam, by local law, to provide for the rebate or reduction of
any taxes received by it in order to assist new industries coming
to Guam or to assist Guam's economic development. This has the
potential to undermine the mirror code tax system now in place
for U:S. contributions to the treasury of'Guam. Under current
·law, Guam cannot rebate taxes collected by the Internal Revenue.·
Service and covered over by the U.S. to the Guam treasury. The
U.S. "covers over" taxes in lieu of annual appropriations by
Congre.ss.
Section 604: The language of section 604(b) is ·ambiguous
because it can be read to provide that only Guam may tax the
income and property of persons within Guam's jurisdiction,
from whatever source derived. However, to the extent that such
persons and property are also within the jurisdiction of the
United States, the United States should also tax such persons.
The statutory rules for· the prevention of double taxation would
apply.
To preserve the application of U.S. taxes persons and
0
-2-
property that are also within the jurisdiction of the United
States, section 604(a)m should be amended to read as follows:
"(a) The Commonwealth of Guam shall have the power
to determine under the laws of Guam the nature and
amount of Guam's taxes imposed upon the income and
property of persons within its jurisdiction, from
whatever source derived."
[underlined language has
been added]
In addition, under section 604(b) Guam may move off the
mirror code and enact a comprehensive local income tax and replace
it without entering into an implementation agreement with the
United St~tes (the implementing agreement signed on April 5, 1989,
is not yet in effect) . Statutory language should. be added to
section 604(b) to the effect that the implementation of a local
income·tax may become effective only if, and so long as, an
implementing agreement is in effect between the United States
and the Commonwealth of Guam with respect to:
(1) the elimination of double taxation involving taxation
by the Commonwealth of Guam and taxation by the United States,
·(2) the establishment of rules under which the evasion or
avoidance of United States income tax shall not be permitted
Page 2 of 3
�Page 3 of 3
ARMS Email System
or facilita_ted in such possession,
(3) the exchange of information between the Commonwealth
of Guam and the United States in accordance with the provisions
of section 274(h) (6) (C) of the Internal Revenue Code (IRC) for
purposes-of tax administration, and
(4) the resolution of other problems arising in connection
with the administration of the tax laws of the Commonwealth of
Guam or the Uni"ted States.
Any such implementing agreement shall be executed on behalf of the
United States by the Secretary of the Treasury after consultation
with the Secretary of the Interior.
Section 605: This section makes all borids and obligations
of the Commonwealth of Guam exempt from taxation by the Government
of the United States, etc. This is too broad.
In order for Guamissued bonds to be exempt from Federal taxation they must derive
their exemption from the tax code and conform to the statutory
and regulatory provisions under section 103_and section 141-150
of the IRC.
State bonds must conform to the same requirements
0
-3-
and Guam should not be free to issue non-conforming bonds.
Section 103 limits Federal tax exemption to bonds issued by
States, possessions and territories. Guam's ability to issue
tax-exempt bonds as a_"commonwealth" should be clarified under the
IRC. Also, Guam-issued bonds should not be exempt from taxation
by any State or territory or any political subdivision thereof,
or by the District of Columbia .
. Section 1105(4): This section would authorize a revolving
fund to "establish an Economic Development Fund on Guam . . . To
thisend, the Economic Development Fund is authorized to provide
financial and other assistance to increase investments (including
loans, tax incentives, guarantees and equity capital) . . . " The
role of the fund in providing "tax incentives," .and the nature of
the tax incentives are unclear and should be deleted.
The Office of Management and Budget had advised that there
is no objection from ·the standpoint of the Administration program
to the submission of this report to your Committee ..
Sincerely,
Edward S. Knight
General Counsel
CLINTON UBR.IJ.R\' PHOTOCOPY
�ARMS Email System
RECORD TYPE: FEDERAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Alicia K. Kolaian ( CN=Alicia K. Kolaian/OU=OMB/O=EOP [ OMB ] )
CREATION DATE/TIME:27-SEP-1996 17:45:56.00
SUBJECT:
sample SAP paygo language for Guam War restitution
TO: CALLAHAN C ( CALLAHAN C
READ: UNKNOWN.
®
A1
@
CD
®
LNGTWY [ EOP ] )
(OMB)
CC: E. Irene James ( CN=E. Irene James/OU=OMB/O=EOP ® EOP [ OMB ]
READ: UNKNOWN
)
TEXT:
Try this.
H.R. 2041 affects direct spending; therefore'it is subject to the
pay-as-you-go requirements of OBRA. · The establishment of a surcharge on
military sales would result in new collections, while the creation of an
entitlement to certain benefits would result.in new direct spending.
I gliess we should just be silent about estimates.
I hope that if Roz really disagreed she would have called after reading my
e-mail.
CLINTON UBRAR\' PHOTOCOPY
�ARMS Email System
RECORD TYPE: FEDERAL
Page 1 of 2
CUf~TON UBP..ARY PHOTOCOPY
(NOTES MAIL)
CREATOR: Roger_Stillwell®os.doi.gov ( Roger_Stillwell@os.doi.gov
UNKNOWN
CREATION DATE/TIME: 5-APR-1999 11:45:13.00
SUBJECT:
Accuracy of Guam's Section 30 payments
TO: Danny_Aranza@os.doi.gov
READ: UNKNOWN
TO: David_North®os.doi.gov
READ: UNKNOWN
TO: Allen_Stayman®os.doi.gov
READ: UNKNOWN
Danny_Aranza@os.doi.gov [ UNKNOWN ] )
David_North®os.doi.gov
UNKNOWN ] )
Allen_Stayman@os.doi.gov [UNKNOWN
TEXT:
MEMO TO AL AND DANNY
FROM: ROGER STILLWELL
DATE: APRIL 5, 1999
RE: PDN EDITORIAL OF 4\4\99 AND SECTION 30 $$$$
The April 4th PDN carried a column.by a John A. B. Pangelinan (whom I do
not know) who alleged that Guam could be owed more money under Section 30
of the Organic Act if (as he believes) DOD undercounted the number of
military personnel stationed on Guam in past years. As you know, the
Federal Government pays to Guam taxes collected from military personnel
stationed in Guam or those who use Guam as their Home of Record. I believe
Mr. Pangelinan may not understand how Section 30 money is calculated.
In reality, the bookkeeping process used by IRS to account for the annual
Section 30 payments are such that Guam has most likely been substantially
overpaid. Nancy Fann~ng and I discovered this back in the late 1070's when
Guam was asking for a review of Section 30 payments, looking for more
money.
Section 30 mandates that Guam should receive the total tax payment due from
Guam-based military personnel in any given year .. From this one would assume
that the Feds figure out what each military taxpayers owes Uncle Sam and
then give that amount to Guam. Not so. IRS and DOD says that calculating
the exact amount owed was far too much work (at the time) and it was easier
for Washington to simply give Guam all the taxes that were withheld, as
opposed to owed. As we all know, the amount withheld is usually more than
the. amount we owe. Guam thus ended up with a gross payment of taxes
withheld instead of a net payment, as should be the case and was paid
millions more than it technically was owed.
Note: Mr. Won Pat
O,s office added taxes paid by Navy ships that come into
Guam for a while. Mr. Won Pat even pursuded Phil Burton to do even better
by giving Guam their Section 30 paymentsa full year in advance with any
corrections due at the end of the fiscal year. This was done to ease the
fiscal pressure on the territorital treasury. Considering the amounts
involved, Guam is in essencereceiving a massive interest-free loan from
Washington each time they receive their advance Section.30 $$$$.
While IRS maya no longer continue to calculate the Guam Section 30 money as
generously as it used to, I thought this bit of background would be
�ARMS Email System
Page 2 of 2
helpful. By any standard, Guam has no complaint and in fact, should be
grateful that Uncle Sam was too busy or lazy to make the bottom.line
accurate.
Pangelinan also says Guam is owed more money from a 1985 law called the
Payment in Lieu of Taxes. Since I was not on the Hill in 1985, he could be
right.
CLINTON LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND
SUBJECT/TITLE
DATE
RESTRICTION
TYPE
001. email
Jeffrey Farrow to Steven Mertens, re: INS· (2 pages)
3/26/1999
P5
002. email
Jeffrey Farrow to Steven Mertens, re: Guam illegal entries (1 page)
4/14/1999
P5
003. email
Jeffrey Farrow to Steven Mertens, re: Guam boat people (1 page)
4/16/1999
P5
004. email
Jeffrey Farrow to Irene Bueno, re: Guam Asylum Exemption Bill (1
page)
5/1111999
P5
005. email
Jeffrey Farrow to Irene Bueno, re: Guam Asylum Exemption Bill (1
page)
·
5/12/1999
P5
COLLECTION:
CLINTON LIBRARY PHOTOCOPY
Clinton Presidential Records
Automated Records Management System rEmaill
OPD (rfarrow: Guaml)
OA/Box Number: 250000
FOLDER TITLE:
[03/22/1999 - 5/1711999]
Whitney Ross
2006-0193-F
wr621
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA]
·
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b )(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
· purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b )(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a,Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]·.
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of ·
personal privacy [(a)(6) ofthe PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
. 2201(3).
RR. Document will be reviewed upon request.
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
· Page .1 of 2
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:26-MAR-1999 17:18:38.00
SUBJECT:
Re: INS not holding illegals in Guam
TO: Steven M. Mertens ( CN=Steven M. Mertens/OU=OMB/O=EOP @ EOP [ OMB ] )
READ: UNKNOWN
TO: Irene Bueno ( CN=Irene Bueno/OU=OPD/O=EOP @ EOP [ OPD ] )
READ: UNKNOWN
TEXT:
Help. The Gov. of Guam's rep here said today INS told them there's not
money to return to a no release policy in Guam! Of course, I heard that
just hours after assuring Rep. George Miller's staffer to the contrary.
Miller is very hot on the problem of foreign workers _in the neighboring
U.S. territory of the Northern Mariana Islands (which handles its own
immigration) sneaking into Guam.' Where are we? Thanks.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on 03/26/99
04:18 PM ---------------------------
Irene Bueno
03/12/99 05:26:10 PM
Record Type: Record
To: Jeffrey L. Farrow/WHO/EOP
CC:
Subject: Re: INS not holding illegals in Guam
FYI
---------------------- Forwarded by Irene Bueno/OPD/EOP on 03/12/99 05:27
PM ---------------------------
Steven M. Mertens
CLii~TON
LIBRARY PHOTOCOPY
03/12/99 64:46:21 PM
Record Type: Record
To: Maria Echaveste/WHO/EOP
cc: See the distribution list at the bottom of this message
Subject: Re: INS not holding illegals in Guam
I have talked with INS.and Justice regarding your e-mail concerning INS'
detention of illegal aliens in Guam.
INS practice has been to
incarcerated both criminai and illegal aliens on Guam pending final
removal.
FY 99 detention funding constraints resulted in INS revisiting
this policy 'for the last group of illegals being held in Guam.
INS
notified the Governor of this change and its future plans to only
incarcerate those determined to be non-criminal aliens with little flight·
risk or threat to the community.
In response, the Governor decided to
provide adequate detention space to continue to incarcerate all illegal
�Page 2 of 2
ARMS Email System
aliens (apparently at no charge to INS) so no illegal aliens would be
released in Guam.
INS has assured me the $111 million in additional funding for detention
($80 million in Central American sup and $31 million in reprogrammed
resources) in FY 99 will permit a return to a "no release" policy in Guam
at INS expense.
If you have any questions, please let me or Irene know.
Message Copied
Thanks.
To=--------~--------------~-------------------------------------
irene bueno/opd/eop
Michael Deich/OMB/EOP
Kenneth L. Schwartz/OMB/EOP
David J. Haun/OMB/EOP
Ingrid M. Schroeder/OMB/EOP
CLii~TON LIBR'~RY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1·
(NOTES MAIL)
CREATOR: Jeffrey L, Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:l4-APR-1999 16:52:48.00
SUBJECT:
Re: Guam illegal entries
TO: Steven M.. Mertens ( CN=Steven M. Mertens/OU=OMB/O=EOP®EOP [ OMB ] )
READ: UNKNOWN
CC: Irene Bueno ( CN=Irene Bueno/OU=OPD/O=EOP@EOP [ OPD ] )
READ: UNKNOWN
TEXT:
Interior opposes the Northern Marianas location because it would be taking
advantage of the INA not applying to those islands when the President has
strongly pushed for it .to.
(Interior is responsible for overall policy
concerning Guam and the Marianas.) Our using the Marianas that way could
be an argument for Tom DeLay in his effort to block the Administration
(George Miller/Danny Akaka) bill.
I think higher levels at DoJ may also share this concern -- the foreign
worker situation in the Marianas is a problem that has attracted
national/international media, union, human rights groups attention.
(20/20 may run a 2nd piece on it this week or next.) I have discussed this
with Scott Busby in the context of the boat heading to Guam. That may be
an isolated case that can be directed to the Marianas but want to talk
about it tonight on the 7 pm call. There ~re some other islands associated
with the US in .the region that would be less problematic from this
perspective but may not be a solution for this boat because of their
distance.
CL\1'.\TON UBRAR\' PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow. ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:16-APR-1999 18:56:29.00
SUBJECT:
Guam boat people
TO: Steven M. Mertens. ( CN=Steven M. Mertens/OU=OMB/O=EOP@EOP [ OMB ]
READ: UNKNOWN
TO: Irene Bueno ( CN=Irene .Bueno/OU=OPD/O=EOP@EOP [ OPD ] )
READ: UNKNOWN
Records Management®EOP ( Records Management@EOP [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
Sandy Berger and Mickey Ibarra have sent the President a memo recommending
he grant the AG the authority to detain in the Northern Mariana Islands
the boat of 152 Chinese citizens apparently bound for illegal entry and '
seeking asylum
Guam. Agencies have been directed to take them to the
Marianas and process them for repatriation or asylum. Governor Tenorio
has agreed to the plan.
in
Scott Busby is arranging an interagency meeting next Thursday that will
consider Guam Governor Gutierrez and Congressman Underwood's further
concerns re the 492 Chinese who have already made it to Guam and have
filled the territory's jails to capacity and others who may try'to go
there.
CLH~TON LIBPJ~RY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP
WHO ] )
CREATION DATE/TIME: 11-MAY-.1999 12:56:25.00
SUBJECT:
Guam Asylum Exemption Bill
TO: Irene Bueno ( CN=Irene Bueno/OU=OPD/O=EOP®EOP [ OPD ] )
READ: UNKNOWN
TEXT:
The House Immigration SUbcommittee will hold a hearing 5/18 I believe on
Guam Congressman Underwood's bill to exempt Guam from the asylum
provisions of the INA as a partial solution to the current problem of
boatloads of·Chinese asylum seekers. Guam Gov. Gutierrez will also
testify in fa.vor.
From speaking with John Morton/Justice and Scott Busby,
I assume we'll want to oppose the bill. Agree? Beau Cooper/INS will
testify.
I think we'll have to carefully explain our position for a
number of reasons.
Some relate to asylum policy/politics.
In addition,
we're for amending the INA for Guam to address Guam specific problems with
national immigration law,
I think Beau will also have to explain what
we're doing about the current' problem.
I will keep you plugged in on
this and welcome any advice.
CLINTON LIBRIJ.R\' PHOTOCOPY
�---
---------
--------------------------------------------------------
ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:l2-MAY-1999 18:51:30.00
SUBJECT: · Re: Guam Asylum Exemption Bill
TO: Irene Bueno ( CN=Irene Bueno/OU=OPD/O=EOP@EOP [ OPD ] )
READ: UNKNOWN
TEXT:·
We are committed to reimbursing Guam's costs. Whether OMB/INS want to be
statutorily required may be another question.
I don't have a strong view at all.
negative.
Scott Busby and John Morton were
Arguments against: We are for asylum for those who qualify; its a basic
American policy and should be available in all U.S. areas. We want to
make it available in the Northern Marianas. We're granting it to Chinese
taken there even though the INA asylum provisions don't apply yet. We
have international asylum commitments. ·Human rights advocates would
think we're undermining the principles of asylum if we agree to exempt a
U.S. territory.
Exemption from the INA asylum provisions wouldn't mean we
wouldn't grant asylum in Guam, so this is·not the solution to the current
problem. The solution to illegal immigration shouldn't be exempting our
border areas.
Given Interior's position, I thought a meeting might be worthwhile. Your
inclinations confirm that. You may want to call in tomorrow 9:10 am
757-2104 code 5642. This is a call on the Guam/Marianas operation.
Interior will raise the issue on it.
I thought it might then justify a
meeting.
CLINTON LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
001. email
Jeffrey Farrow to Fred Duval, re: Guam Compact Impact (1 page)
119/1998
P5
002. email
Jeffrey Farrow to Fred Duval, re: Lausell/Guam FEMA match (I
page)
2/6/1998
P5
003. email
Jeffrey Farrow to Fred Duval, re: Guam lead (1 page)
4/7/1998
P5
004. email
Jeffrey Farrow to Mickey Ibarra, re: Guam Stop Cover Note (1 page)
4/8/1998
P5
005. email
Jeffrey Farrow to Emory Mayfield, re: Weekly- Guam Bullet (1 page)
4/9/1998
P5
006. email
Jeffrey Farrow to Fred Duval, re: Guam Rep (2 pages)
4/2811998
P5
007. email
Jeffrey Farrow to Fred Duval, re: President on Guam Stop (1 page)
4/30/1998
P5
008. email
Jeffrey Farrow to Fred Duval, re: Guam (1 page)
5/6/1998
P5
009. email
Jeffrey Farrow to Emory Mayfield [partial] (1 page)
5112/1998
P6/b(6)
010. email
Jeffrey Farrow to Fred Duval, re: Guam Proclamation (1 page)
5/12/1998
P5
011. email
Jeffrey Farrow to Janet Murguia, re: Guam Message (1 page)
6/3/1998
P5
012. email
Jeffrey Farrow to Mickey Ibarra, re: Guam Centennial Video (1 page)
6/16/1998
P5
.
COLLECTION:
.
Clinton Presidential Records
Automated Records Management System fEmaill
WHO ([Farrow: Guaml)
CUI~TON U8R/~RY PHOTOCOPY
ONBox Number: 500000
FOLDER TITLE:
[11117/1997 ~ 10/28/1998]
Whitney Ross
2006-0193-F
wr622
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S. C. 552(b)]·
PI National Security Classified Information [(a)(l} of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release· would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
·
b(l) National security classified information [(b)(l} of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b}(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b}(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8} Release would disclose information concer~ng the regulation of
financial institutions [(b)(8) ofthe FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b}(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misflle defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�·Withdrawal/Redaction Sheet
··
DOCUMENT NO.
AND TYPE
Clinton Library
SUBJECT/TITLE
DATE
RESTRICTION
013. email
Jeffrey Farrow to Jennifer Palmieri, re: Guam/State Dept. Nexus (1
page)
6/1711998
P5
014. email
Jeffrey Farrow to Simeona Pasquil, re: Guam Stop Announcement (1
page)
8/4/1998
P5
0 15. ein.ail
Jeffrey Farrow to Mickey Ibarra, re: Guam (I page)
8/5/1998
P5
016. email
Jeffrey Farrow to Fred Duval, re: Guam (I page)
8/19/1998
P5
017. emllll
Jeffrey Farrow to Fred Duval, re: Guam (1 page)
8/20/1998
P5
COLLECTION:
CLII~TON
Clinton Presidential Records
Automated Records Management System rEmaill
WHO UFarrow: Guaml)
ONBox Number: 500000
UBRARY PHOTOCOPY
FOLDER TITLE:
[11/17/1997- 10/28/1998]
Whitney Ross
2006-0193-F
wr622
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute ((a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate aFederal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law· enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 9-JAN-1998 17:01:25.00
SUBJECT:
Guam Compact Impact
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ]
READ: UNKNOWN
TEXT:
OMB today declined to clear Interior's draft of the annual report reqUired
by law on the issue. Its due Wednesday by court order and OMB, which got
it last night, said (1)
there isn't enough time for review by other
agencies and (2) it didn't meet the reqUirements of the law or court
order. Interior was told to send it anyway to meet the deadline but
without indicating that it had Administration approval, although it is
suppqsed to be a Presidential report.
Guam (and, prehaps, the Marianas and Hawaii) can be expected to complain
about the report
(as well as the lack of additional reimbursement $).
This is a Presidential responsibility by law but can be delegated by law
'and Interior is running the show. After their giving up the additional $
for Guam, I would, frankly, direct the islands there.
I'd be happy to fix the handling of this but would have to take over the
lead more from them.
The situation is unfortunate but not as critical as
Guam Commonwealth. We could always do more if we feel we have to for
Gutierrez or some other reason.
Finally, I think I've mentioned that Interior is trying to get out of the
·responsibility by shifting responsibility for the report from the
President to the Governors. I don't advise this and the islands probably
don't like it but I haven't .objected because Interiuor seems like a lost
cause on this anyway and the islands haven't made an issue of it,.
CLII~TON LIBRARY PHOTOCOPY
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 6:-FEB-1998 16:20:49.00
SUBJECT:
Lausell/~uam
FEMA match
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Lausell: Now wants to get together another time.
Guam FEMA match: My guess after talking to FEMA staff is that this will
take a push. Territories laws I helped write and get enacted provide
special waiver authority but they were enacted over agency opposition.
(Bush said the '92 law wouldn't "diminish matching requirements" in
signing it even though it did.) I favor pushing and the President might
want us to do so. I think its the type of special treatment that he has
favored in conversations with Gov. Gutierrez and on Puerto Rico.
Do you
want to weigh in?
CLINTON LIBR~R\' PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 7-APR-1998 14:07:17.00
SUBJECT:
Guam lead
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP
READ: UNKNOWN
@
EOP [ WHO ] ·)
TEXT:
Whatever happens with D/S.at Interior, it would be good to use Garamendi's
'departure to for a better insular relations arrangement/support.
You should also know that Guam status is not a part of the D/S portfolio
per se, .it fell to Garamendi after some 'presidential' reps (an NSC
staffer and ex Rep. Dennis Echardt, who found he had a conflict) left and
someone was needed ASAP.
CLINTON LIBP.ARY PHOTOCOPY
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 8-APR-1998 14:41:09.00
SUBJECT:
Guam Stop cover note
TO: Mickey Ibarra
READ: UNKNOWN
CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
CC: Cecily C. Williams ( CN=Cecily C. Williams/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ]
READ: UNKNOWN
Suzanne Dale ( Suzanne Dale [ WHO ] )
READ: UNKNOWN
Emory L. Mayfield .( CN=Emory L. Mayfield/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
TEXT:
You may want to make the points which follow in a cover note to Podesta
and Berger for the Guam stop schedule proposal. I also recommend copying
Janet on it.
Attached is a copy of a proposal for the President to make a brief stop
on Guam en route to or from China that I hope you will also seriously
consider.
The President has never visited this jurisdiction of our country in spite
.of many requests that he do so from its Democratic Governor and
Congressman and his expressed interest in visiting. Because of its
location, a visit is only feasible in connection with an As~an trip but,
as past administrations have recognized, it provides a convenient and easy
resting or refueling point on the way.
Even a brief stop would be very helpful to relations with the territory.
Guamanians really feel ignored because of their location and lack of
votes. The significance to them of a visit during the Centennial of the
taking of their island in war cannot be overstated and would be understood
nationally .
. Finally, .questions which would have been raised by a stop during much of
last year were obviated by the positions that we eventually took on Guam's
'Commonwealth' bill in a congressional hearing last Fall. The questions
would have related to (1) recommendations from the Administration's
representative to Guam on the bill to which other agencies objected and
(2) substantial campaign contributions from the territory. We did not
.accept the recommendations and even a congressional Republican who had
·questioned them has acknowledged that the contributions could not have
influenced the policies that the Administration finally stated.
CLINTON UBRAR\' PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO. ] )
CREATION DATE/TIME: 9-APR-1998 19:15:17.00
SUBJECT:
Weekly - Guam bullet
TO: Emory L. Mayfield ( CN=Emory L. Mayfield/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
I didn't include a bullet on our Guam stop proposal so as not to have
other (senior) staff think we're end-running them. I also, though, think
that it might get ~he answer we want and that it is legitimate in terms of
informing the President about requests. I defer to your judgmen.t and will
send Suzanne the bullet below (or a revised one) if you still want to
raise this.
Guam Governor Carl Gutierrez (D) and U.S. House Delegate Robert Underwood
(D) very much want you to visit the territory -- on the Centennial of its
acquisition by the U.S. -- on your China trip. They have consistently
requested a stop during your Asian trips, noting that the island generally
feels ignored. We are exploring the possibility of a brief stop with other
staff.
CLINTON LIBRARY PHOTOCOPY
�Page 1 of 2
·ARMS Email System
CLINTON LIBRARY PHO'fOCOPY
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L.
Farrow/OU~WHO/O=EOP
[ WHO ]
CREATION DATE/TIME:28-APR-1998 19:35:18.00
SUBJECT:
Guam Commonwealth rep/Territories IG(me)
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
.TEXT:
1. Guam .Commonwealth rep -John Berry is moving to get Interior to recommend that he be the new rep.
As you know, I think this makes sense if we have a clear understanding on
coordinating positions.
I told Al Stayman and Treasury today that we need to resolve otir positions
on the outstanding issues (tax and trade) without wating for a new rep and
that the new rep's function is to work in Congress from the Administration
positions. I .will tell the same to OMB and USTR . I want the President to
be able to say in June that Congress should act (since he has) .
Guam may have the idea of a Geo. Mitchell but there's not much for a name
negotiator to negotiate now. The best we can do is real· action on
realistic measures. (Guam also needs to decide what it really wants. The
.Commonwealth commission is still asking for action on the territory's
Commonwealth package but the territory also has a Chamorro-only vote
scheduled by law on the full self-government options -- statehood,
independence and free association this Fall.)
2. Territories IG -Stayman will recommend an interagency group for cooordinating policy re
the four unincorporated areas for which Interior has limited
responsibilities -- Guam, the Virgin Is. Samoa, and the Marianas -co-chaired by Interior and IGA.
While Interior is responsible for relations with them, it specifically
lacks authority for matters within the responsibility of other agencies
and, thus, often can't other agencies to do what is needed. That requires
EOP intervention ~~ which Interior r~quests.
We have an IG.for Puerto Rico (for which the White House has policy
responsibility) and there is one for the freely associated states (for
which State and Interior have policy and funding responsibilities
respectively) .
An IG re the other areas is needed. It shouldn't add work here (since IGA
gets requests anyway) but should organize the process for some requests to
be staffed at Interior or other agencies
This could be the coordination mechanism re Guam Commonweal.th, etc.
3. Me
)
I haven't gotten into it with Stayman but the'territories IG could provide
a basis for my work on territories matters here.
So, too, could an
additional designation to advise here on Insular Affairs. That would
�ARMS Email System
Page 2 of 2
provide a basis for memos, external interaction, etc.
awkward and confusing to people.
3.
CLINTON LIBRARY PHOTOCOPY
Right now its
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 6-MAY-1998 12:53:29.00
SUBJECT:
Re: Guam
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Emory L. Mayfield ( CN=Emory L. Mayfield/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
1. Budget/Logistical issues:
DoD/Interior funding
Message/Political Issues: Us (including Janet and with Craig's support and
in consultation with Interior) .
2. The President was very clear about wanting to stop this year.
3. I had been thinking about a Gutierrez/Stephanie (and ~s, etc.) meeting
that could get publicity as "we're consulting with the Gov. on the
possibility of a stop on a foreign trip" as an alternative to a Gov/Pres
meeting that would be much more committal -- especially next week given
where Stepanie is. ~·m sure May Eva wouldn't like it as an alternative but
I think it would make it clear in Guam that Gutierrez is a main player in
a stop.
We can also, though, reinforce Gutierrez's close working relationship with
us by the Oceans Conf. and APEC invitations. They are actually better in
terms of public impact.
CLINTON LIBRARY PHOTOCOPY
�.--------------------------------~------------------------------------------------------------------
ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:12-MAY-1998 17:30:51.00
SUBJECT:
Guam proclamation
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Danny Aranza suggested a Centennial proclamation for Guam, possibly with a
photo-op signing. I think the only downside would be doing one for Puerto
Rico too.
CLINTON UBR/\R\' PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
,CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 3-JUN-1998 12:37:40.00
'sUBJECT:
Guam message
TO: Janet Murguia ( CN=Janet Murguia/OU=WHO/O=EOP ® EOP [ WHO ]
READ: UNKNOWN
TO: KRISTOFF S
READ: UNKNOWN
KRISTOFF S ® A1 @CD ®-VAXGTWY [ UNKNOWN ] )
(NSC)
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP ® EOP [ WHO ] )
·READ: UNKNOWN
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
Suzanne Dale ( CN=Suzanne Dale/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
Emory L. Mayfield ( CN=Emory L. Mayfield/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Would you please tell me if you think there should be any changes to the
attached draft message to Guam? It was drafted for a.video for the
Centennial of the raising of our flag there June 21 (but could also be the
basis of remarks during a visit to the Island later this year) . Delegate
Underwood and Governor Gutierrez requested a message.
I think it would convince Guamanians that the President understands their
basic concerns even though we have not agreed to their (unrealistic)
'Commonwealth' proposals and that it is appropriate given Guam's history.
Please call (6~5179) if you have any questions.
==================== ATTACHMENT
1 ====================
ATT CREATION TIME/DATE:
0 00:00:00.00
TEXT:
Unable to convert ARMS_EXT: [ATTACH.D25]MAIL44100735K.126 to ASCII,
The following is a HEX DUMP:
FF575043AB040000010A020100000002050000000317000000020000CCC0914DEAA17AAE846D35
. 412D8453E88D7FC5ABFD1AED3A92C9C85E97ED76C81A05C323F52479757C7D36B5DA8AD2599019
. BF120DA92722FAED5B2ElC5E35EB4F633BBBBA671D8550A2F3E03AC34D2E4EBD59249F8CDC136D
B5FOC73FA1223E61C1E58FDB8A1ED6EF04B3F5FOAEE76131B71884F644.CC625FA51EED0448F5A3
3C72AFBOA1FDC9B7B3C50FAFDAB8844E4EE9E634D8FD48480C54DE5A0842AED10F59562258BCB7
Cl733E9565A54595D0377COE736A98EAE93DC682A6DBD3116BF007BABE86E197CECC1AA5E09AE9
03D3AE4D54F9EA527EBDD742A2BAD52CB90A3081B9FD9783DE782DFCB2DCOCOFOOCDFD3224DC12
OB472FBA54FC272CD03A37213AEB2F7CA93C35694BA4C4D52Dll34FB8284EFOE835AD5640BCE12
FF21364EB3B8ABB5.5A7962E3EE58739FOAOE3DFE867F0918C5EF768058C69520E925AD19179E4B
CLINTON LIBRARY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:16-JUN-1998 14:01:16.00
:sUBJECT:
Re: Guam Centennial Video
.TO: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP
READ: UNKNOWN
@
EOP [ WHO ]· ·)
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
I sent the contingent message request last week.
It would be disappointing -- and wrong -- though not to do more than a
:written message. ( I know you support doing more.) The President is
sending a delegation to the Philippines. Guam is much smaller than the
Philippines but the Philippines opted for independence and Guam is u.s.
(Guam is also near the Philippines.) Further, even though it is part of
.our country, it has no vote in its national government -- the one that the
President heads.
••
1
·'WI?~
USRAHV PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:l7-JUN-1998 14:26:28.00
SUBJECT:
I
Guam/State Dept. nexus
TO: Jennifer M. Palmieri ( CN=Jennifer M. Palmieri/OU=WHO/O=EOP @ EOP
READ: UNKNOWN
WHO ]
TO: Stephanie S. Streett ( CN=Stephanie S. Streett/OU=WHO/O=EOP @ EOP
READ: UNKNOWN
WHO ] ·)
CC: Patrice L. Stanley ( CN=Patrice L. Stanley/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Janet Murguia ( CN=Janet Murguia/OU=WHO/O=EOP @ EOP [ WHO ] )
. READ: UNKNOWN
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Here are a couple ideas re State Dept. business that could be done on Guam.
Guam is the logical place to meet (briefly) with the presidents of our
three 'freely associated states'. (State handles relations with them.)
They are made up of Micronesian islands; Guam is the largest Micronesian
· island; and tens of thousands of their citizens live in Guam.
We are
required by law to begin renegotiating the .association with two of the
states weeks prior to the time of the South Asia
trip.
We have major Navy and Air Force bases on Guam. It is a logical. place for
addressing regional security issues.
(We also have important DoD
land/community relations issues we're
addressing. )
As the westernmost point of U.S. soil, Guam is a logical place for other
meetings/speaking related to the region. Guam, in particular has links to
the Philippines and Japan.
The President said he liked the idea promoted by the Congressional
Asian/Pacific Islands Caucus of a Pacific Islands Summit including the
many independent nations in the region as well as our three freely
associuated states and two territories. They proposed it for next year in
·Hawaii but Guam would also be a logical place.
CLINTON UBRARY PHOTOCOPY
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO .J
)
CREATION DATE/TIME: 4-AUG-1998 11:24:35.00
SUBJECT:
Guam stop announcement
TO: Simeona F. Pasquil ( CN=Simeona F. Pasquil/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TO: Craig T. Smith
READ: UNKNOWN
CN=Craig T. Smith/OU=WHO/O=EOP @ EOP [ WHO ] )
TEXT:
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on 08/04/98
11:23 AM ----------------.-----------
Mickey Ibarra
08/04/98 08:27:23 AM
Record Type:
Record
To:
Jeffrey L. Farrow/WHO/EOP
cc:
Janet Murguia/WHO/EOP, Fred DuVal/WHO/EOP
Subject:
Guam
We reached agreement this morning that we are now·ready to announce our
Guam trip for November. However, we do not want t6 do this until tomorrow
with the Governor. So, if Underwood asks the President about it in the CHC
meeting, I suggest he respond 'we are
working on this and expect to have
an answer very soon. ' Please coordinate this carefully with Janet so we
ensure a simultaneous notification to the Governor and Underwood. Thanks.
CLINTON USRMW PHOTOCOPY
�ARIY1S Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME£ 5-AUG.:.1998 10:50:37.00
SUBJECT:
Guam
TO: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Emory L. Mayfield ( CN=Emory L. Mayfield/OU=WHO/O=EOP @ EOP [ WHO ] )
. READ: UNKNOWN
TEXT:
FYI, we will be lucky to actually have Guam stop come off after tonight's
event. Craig and Stephanie feel very used and misled by Mary Eva et. al.
We're at 45 people for the.30 person total event. We .know that they will
·do press out of the closed press event (done to get video the Governor
could use later). After the discussions last night, Stephanie, however,
did reiterate announcing the stop tonight.
CUNTON USRARY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:20-AUG-1998 17:49:50.00
SUBJECT:
Re: Guam
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP ® EOP [ WHO ] )
READ: UNKNOWN
TEXT:
.I don't disagree. We don't need to do anything until then and it will be
.easier then to clarify the terms of the designation, i.e., not
renegotiating our Commonwealth Bill positions but explaining them and
answering Congressional questions.
CLINTON UBR!\R\' PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE.
SUBJECT/TITLE
RESTRICTION
001. email
Jeffrey Farrow to Craig Smith, re: As Guam Goes ... (1 page)
1113/1998
P5
002. email
Jeffrey Farrow to A viva Steinberg, re: Guam Stuff (6 pages)
1116/1998
P5
003. email
Jeffrey Farrow to Fred Duval, re: Guam Election (6 pages)
1116/1998
P5
004. email
Jeffrey Farrow to A viva Steinberg, re: Guam Points (2 pages)
1119/1998
P5
005. email
Jeffrey Farrow to Fred Duval, re: Guam Points (2 pages)
11/9/1998
P5
006. email
Jeffrey Farrow to Mickey Ibarra, re: Guam Relations (1 page)
11114/1998
P5
. COLLECTION:
Clinton Presidential Records
Automated Records Management System fEmaill
WHO ([Farrow: Guaml)
OA/Box Number: 500000
CLINTON UBR~R\' PHOTOCOPY
FOLDER TITLE:
[10/29/1998 -11117/1998]
Whitney Ross
2006-0193-F .
wr623
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade' secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) ofthe FOIA]
.b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) ofthe FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential. or financial
information [(b)(4) ofthe FOIA]
b(6) Release would constitute a clearly unwarranted-invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial'institutions [(b)(8) ofthe FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
· C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
be reviewed upon request.
RR. Document
will
�ARMS Email System
I
Page 1 of 1
.
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREArOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 3-NOV-1998 13:26:10.00
SUBJECT:
As Guam Goes . . .
TO: Craig T. Smith
READ: UNKNOWN
CN=Craig T. Smith/OU=WHO/O=EOP @ EOP [ WHO ] )
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: John Podesta ( CN=John Podesta/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Janet Murguia ( CN=Janet Murguia/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Maria Echaveste ( CN=Maria Echaveste/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Monica M. Dixon ( CN=Monica M. Dixon/O=OVP @ OVP [ UNKNOWN ] )
READ: UNKNOWN
CC: Mickey Ibarra (. CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
. ~EAD: UNKNOWN
TEXT:
Guam Gov. Gutierrez won -- looks like 53% to 47% with absentees not yet
counted. Cong. Underwood won overwhelmingly -- last I heard almost three
to one. GOP took 12 of 15 Legislature seats.
Do you want to'recommend a congrats call-- if only to highlight the first
Dem gubernatorial and congressional victory of today? If so, it should be
joint to Gutierrez and Underwood.
CLINTON UBR/~RY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 6
{NOTES MAIL)
CREATOR: Jeffrey L. Farrow { CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 6-NOV-1998 12:03:45.00
SUBJECT:
Re: guam stuff
TO: Aviva Steinberg { CN=Aviva Steinberg/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Fred DuVal { CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Leaders:
U.S. Territorial Jurisdictions -Governor Tau'ese Sunia {D) of the territory of American Samoa
Governor Pedro P. Tenorio {I) of the Commonwealth of the Northern Mariana
Islands
States Freely Associated with the U.S. -President Kuniwo Nakamura of the Repubblic of Palau
President Jacob Nena of the Federated States of Micronesia
President · Imata Kabua of the Republic of the Marshall Islands
Governors of the four states of the Federated States -- Yap, Kosrae,
Phonpei, and Chuuk
Foreign Countries -President of Nauru
President Tito of Kiribati
I will get missing names soon.
Election:
No resolution.
Mary Eva called a few hours ago to say Counsel to Election Commission
agrees that blannk ballots should not be counted -- a major aspect of
Gutierrez's contention -- but there are also mismarked ballots and
write-ins at issue.
Republican Joe Ada said it doesn't look like he lost and he will fight to
the end.
Some of the six election comm1s1oners -- split three Dems, three GOP ~
are reportedly off-island. One is at a 9th Circuit hearing in SF. One is
in the hospital in Honolulu.
Again, final count, commission decision, and litigation could be involved.
Nov. 17 is fixed date for ruri-off.
CLINTON LIBRARY PHOTOCOPY
�ARMS Email System
CUNTON LIBRAR\' PHOTOCOPY
Page 2 of 6
�ARMS Email System
CLINTON UBR/~R\' PHOTOCOPY
Page 3 of6
�Page 4 of6
.ARMS Email System
J
CLINTON USRAR\' PHOTOCOPY
�ARMS Email System
CL\1\ITON UBRf~RY PHOTOCOPY
Page 5 of 6
�ARMS Email System
6£ , DI'll get you names/titles of.other insular leaders shortly. (I have
~o
check a few.)
Guam election:
CUl~TOl~ UBR!~R\' PHOTOCOPY
Page 6 of 6
�· ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 6
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 6-NOV-1998 13:55:33.00
SUBJECT:
Re: guam election
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
No resolution.
Mary Eva says Counsel to Election Commission agrees that blannk ballots
should not be· counted
a major aspect of Gutierrez's contention -- but
there are also mismarked ballots and write-ins at issue.
Republican Joe Ada said it doesn't look like he lost and he will fight to
the end.
Some of the six election comm~s~oners -- split three Dems, three GOP -are reportedly off-island. One is at a 9th Circuit hearing in SF. One is
in the hospital in Honolulu.
Again, final count, commission decision, and litigation could be involved.
~ov. 17 is fixed date for run-off.
CLII\JTON U8RARY PHOTOCOPY
�' ARMS Email System
CLINTON UBRIJ.RY PHOTOCOPY
Page 2 of6
�Page 3 of6
' ARMS Email System
CUi~TON UBRt~R\'
PHOTOCOPY ·
�' ARMS Email System
I
I
CLII\!TON LIBRARY PHOTOCOPY
Page 4 of 6
�. . ARMS Email System
CLINTON LIBP.AR\' PHOTOCOPY
Page 5 of 6
�Page 6 of 6
ARMS Email System
of , DI'll get you names/titles of other insular leaders shortly.
to check a few.)
Guam election:
CLINTON UBR/\RY PHOTOCOPY
(I have
�ARMS Email System
Page 1 of 2
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)'
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 9-NOV-1998 20:57:19.00
SUBJECT:
Guam points
TO: Aviva Steinberg
READ: UNKNOWN
CN=Aviva Steinberg/OU=WHO/O=EOP ® EOP [ WHO ] )
TEXT:
Background.
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on 11/09/98
08:57 PM ---------------------------
Jeffrey L. Farrow
11/09/98 08:53:52 PM
Record
Record Type:
To:
cc:
Subje~t:
CUI~TON UBR!~R\' PHOTOCOPY
Fred DuVal/WHO/EOP
Guam points
Guam,Election Complication Points
The Guam Elections Commission's preliminary results from the gubernatorial
election give Governor Gutierrez 49.79% of the vote -- just short of the
required 50% plus one vote. Unless a candidate receives a majority, a
runoff election is required two weeks after the general election, or
November
·17.
November 17 is two days after the President was scheduled to appear at
events arranged as official with Governor Gutierrez. The Governor may be a
candidate on virtually the eve of an election at that
point.
Governor Gutierrez is challenging the preliminary finding that he did not
receive an absolute majority and we have no doubt that he is right. We
understand that is also the conclusion of the commission's legal
adviser .
.we understand that is not the position of his Republican challenger,
however. Further, the commission -- which is evenly split between
Republicans and Democrats -- has not
ruled.
Instead, we understand the commission is conducting a recount and will not
meet until Thursday.
How the recount may affect the situation. is,
obviously, unclear. What the commission will do is also .unclear.
The major paper has editorialized twice suggesting a. runoff
Further, there are reports from the challengers' side that they will go to
court, making_resolution of the issue even less certain.
In any case, the atmosphere is highly charged politically and planning a
trip could be intrusive and become a lightening rod.in the debate.
The President wants to visit the people of Guam to demonstrate that he
�ARMS Email System
Page 2 of 2
takes his responsibilities to all of them as seriously as he does to their
fellow citizens in the States. He ~ants to focus on the island's future
development with the election resolved
There are substantial differences between an official trip and a political
trip. They involve issues of payment and appropriate
activities.
The costs involved in a delay to the end of this trip to Asia would be
staggering. If a Guam stop became political, they would be beyond what
Governor Gutierrez's campaign could reasonably be expected to pay. There
would be other huge costs from a delay for the Federal Government. There
would also be enormous logistical problems and burdens placed on
individuals and support equipment in the
field.
Planning a visit takes substantial lead time that would not be available
if it takes a couple of more days to completely resolve the election
issue.
'rn the tim,e between now and when he visits, we're going to focus on
working with Gov. Gutierrez and Cong. Underwood on improvidng Federal
policies concerning Guam and Guam's situation, needs, and proposals.
CLif~TON LIBHAR\' PHOTOCOPY
�Page 1 of 2
ARMS Email System
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 9-NOV-1998 20:56:03.00
SUBJECT:
Guam points
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP
READ: UNKNOWN
@
EOP. [ WHO ] )
TEXT:
Guam Election Complication Points
The Guam Elections Commission's preliminary results from the gubernatorial
election give Governor Gutierrez 49.79% of the vote -- just short of the
required 50% plus one vote. Unless a candidate receives a majority, a
runoff election is required two weeks after the general election, or
November
17.
November 17 is two days after the President was scheduled to appear at
events arranged as official with Governor Gutierrez. The Governor may be a
candidate on virtually the eve of an election at that
point.
Governor Gutierrez is challenging the preliminary finding that he did not
receive an absolute majority and we have no doubt that he is right. We
understand•-that is also the conclusion of the commission's legal
adviser.
We understand that is not the position of his Republican challenger,
however. Further, the commission -- which is evenly split between
Republicans and Democrats -- has not
ruled.
Instead, we understand the commission is, conducting a recount and will not
meet until Thursday.
How the recount may affect the situation is,
obviously, unclear. What the commission will do is also unclear.
The major paper has editorialized twice suggesting a runoff
Further, there are reports from the challengers' side that they will go to
court, making resolution of the issue even less certain.
:In any case, the atmosphere is highly chargedpolitically and planning a
trip could be. intrusive and become a lightening rod in the debate.
The President.wants to visit the people of Guam to demonstrate that he
takes his responsibiliti~s to all of them as seriously as he does to their
fellow citizens in the.States. He wants to focus on the island's future
development with the election resolved
There are substantial differences between an official trip and a political
trip. They involve issues of payment and appropriate
activities.
· The costs involved in a delay to the end of this trip to Asia would be
staggering. If a Guam stop became political, they would be beyond what
Governor Gutierrez's campaign could reasonably be expected to pay. There
would be other huge costs from a delay for the Federal Government. There
would also be enormous logistical problems and burdens placed on
individuals and support equipment in the
field.
Planning a visit takes substantial lead time that would not be available
�. ARMS Email System
if it takes a couple of more days to completely resolve the election
issue.
In the tim,e between now and when he visits, we're going to focus on
working with Gov. Gutierrez and Cong. Underwood on improvidng Federal
policies concerning Guam and Guam's situation, needs, and proposals.
CLINTON UBRAR\' PHOTOCOPY.
Page 2 of 2
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 14-NOV-1998 16:28:31.00
SUBJECT:
Re: Guam relations
TO: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
You sent the memo to John and it was approved. You then wanted to make
sure OMB cleared it. That took a while. (Much of this was the OMB Counsel
but some of it has been me. on either side, we've been distracted by
budget talks, hurricanes, trip, etc.) OMB has given me a draft EO. I think
we should do someconsultations before paper is issued. (This action will
not be controversial like Federalism but we should talk with electeds
beforehand.) ·
"·
CUNTON LIBR!~R\' PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
001. email
Jeffrey Farrow to1"anet Irwin, re: President on Guam (1 page)
11/18/1998
P5
002. email
Jeffrey Farrow to June Shih, re: Guam Reception (1 page)
11/20/1998
P5
003. email ·
Jeffrey Farrow to Sylvia Mathews, re: Guam Announcement (1 page)
11/25/1998
P5
004. email
Jeffrey Farrow to Sylvia Mathews, re Guam Announcements
Addendum (1 page)
11/30/1998
P5
005. email
Jeffrey Farrow to Maria Echaveste, re: INS (1 page)
3/6/1999
P5
006. email
Jeffrey Farrow to Steven Mertens, re: Guam Asylum Entries (1 page)
4/12/1999
P5
007. email
Jeffrey Farrow to Maria Soto, re: Guam (1 page)
4/15/1999
P5
008. email
Jeffrey Farrow to Mickey Ibarra, re: Guam Illegal Entries (2 pages)
4/15/1999
P5
009. email
Jeffrey Farrow to Mindy Myers, re: Guam Boat People (1 page)
4/16/1999
P5
010. email
Jeffrey Farrow to Maria Echaveste, re: Call on Guam Chinese Boat
People (1 page)
4/28/1999
P5
011. email
Jeffrey Farrow to Fred Duval, re: Guam US Atty. (1 page)
4/30/1999
P5
012. email
Jeffrey Farrow to Carol Dennis, re: Guam Asylum Bill (1 page)
5/12/1999
P5
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO ([Farrow: Guaml)
CLINTON LIBRARY PHOTOCOPY
OA/Box Number: 500000
FOLDER TITLE:
[11/17/1998- 6/30/1999]
Whitney Ross
2006-0193-F
wr624
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformatioil Act- [5 U.S.C. 552(b)]
PI National Security Cla~sified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
fina~cial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or betwe~n such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA] ·
b(3) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or finanCial
information [(b)(4) ofthe FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
.
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
013. email
Jeffrey Farrow to Steven Mertens, re: Guam Asylum Bill (2 pages)
5/12/1999
P5
014. email
Jeffrey Farrow to Irene Bruno, r~: Guam Asylum Exemption Bill (1
page)
5/12/1999
P5
015. email
Jeffrey Farrow to Fred Duval, re: Guam Money Issues (2 pages)
6/8/1999
PS
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO (rfarrow: Guaml)
CLINTON UBR·~RY PHOTOCOPY
OA/Box Number: 500000
FOLDER TITLE:
[11117/1998- 6/30/1999]
Whitney Ross
2006-0 193-F
wr624
RESTRICTION CODES
· Presidential Records Act- [44·U.S.C. 2204(a)]
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release·would violate a Federal statute [(a)(3) ofthe PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misflle defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Fr.eedom of Information Act- [5 U.S.C. 552(b))
b(l) National security classified information [(b)(l) ofthe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]·
b(3) Release would violate a Federal statute [(b )(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(bX4) of the FOIA)
· b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
·
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA)
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:18-NOV-1998 19:22:11.00
SUBJECT:
Pre.sident on Guam
TO: Janet E. Irwin ( CN=Janet E. Irwin/OU=OMB/O=EOP @ EOP [ OMB ] )
READ: UNKNOWN
TEXT:
Consensus here to go with increasing Compact Impact Aid to Guam $5.42 m
from subsidy now going to the Northern Mariana Islands.
Any developments on Coral Reef $ My inclination is that, if anything, the
President say that he will propose special funding for the territories
(presuming your $500,000 or whatever) as well as the inclusion of the
territorial governors on the task force.
Finally, Interior keeps suggesting a technical assistance study of Guam's
economic alternatives. I'm not keen on announcing that; studies sound
lame. They're talking about a $1 m increase in TA from this year. Is that
what you advise or just what OIA wants us to help get this way?
Thanks.
CLINTON LIBRARY PHOTOCOPY
�· ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:20-NOV-1998 17:09:46.00
SUBJECT:
Re: Guam reception
TO: June Shih ( CN=June Shih/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
David Goodfriend also spoke to me about the thanks for the land language.
He suggested we already say enough thanks and that will cover land and we
could also insert a line recognizing the Chamorro language and culture.
He also suggested people of Guam instread of Guamanian.
I agree in all, respects.
CLINTON UBRAR.Y PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow, ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:25-NOV-1998 14:31:01.00
SUBJECT:
Guam announcement
TO: Sylvia M. Mathews ( CN=Sylvia M. Mathews/OU=OMB/O=EOP @ EOP [ OMB ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Maria Echaveste ( CN=Maria Echaveste/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
TEXT:
I was surprised to learn of a problem, am sorry about it, and tried to
avoid one. I did talk to OMB. The principal subject was about the money
issue, which was a further reallocation of mandatory territories spending,
to take more of the funds away from the Northern Mariana Is. and use them
for Guam. I checked this out with appropriate staff and understood it was
livable.
Another issue was the territories interagency process which was discussed
a while back and for which OMB staff drafted a presidential memorandum in
preparation for the trip.· Incidentally, I think this mechanism will help
avoid any problems in the future concerning these relatively obscure
issues (although this was an extraordinary circumstance) . I think our
Puerto Rico interagency coordination has helped with that area's issues
Joe Minarik serves as a base within OMB.
I think a big part of the clearance problem was that the speech wound up
being circulated late (much after I did the original draft) and,
unfortunately, ran you into the weekend.
Additionally, my repeated recommendation was that Fred go on the trip and
I work on the substance issues. As it was, I wound up doing a substantial
amount of the planning for the trip itself, etc. as well as the substance
and traveling .. With many of the issues not finalized (even from our point
of view) until very late, I reiterated this precisely to be here to be
able to answer any questions and make any needed changes. That was not the
decision.
The ·President· very much wanted to do what he could fo'r Guam. We cobbled
together what is really a very minor package, much of it by dusting off
and spinning measures. It worked very well for him.
I am very keen on coordination. As Maria and Fred know that's what I've
been pressing for re territories in·general and Guam specifically for
years. I have ieally battled internally for this.
You have been especially helpful and sensitive ·to issues on which it is
hard to get attention. I am very chagrined that there was a problem.
CLINTON UBRfl.RY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:30-NOV-1998 18:59:14.00
SUBJECT:
Re: Guam announcements addendum
TO: Sylvia M. Mathews ( CN=Sylvia M. Mathews/OU=OMB/O=EOP @ EOP [ OMB ] )
READ: UNKNOWN
TEXT:
Yes, I first sent my e-mail on the announcements backgrounder to Sonyia
Matthews by error and that prevented you from seeing it earlier. (I must
have clicked on the wrong line when e-mail didn't recognize how I typed
your name.)
The backgrounder, incidentally, was something: the press office pressed
for; I completed late Friday; which I said I didn't want released unless
it was OK with you, having heard your question about the speech; and
wasn't essential from my point of view, given the content of the speech.
OMB folks I spoke with included Interior Branch Chief Janet Irwin on the
Compact Impact $ and Dep. Counsel Mac Reed on the territories interagency
group but I hope you don't put them on the spot. Blame me (within the
context of a flawed process overall). I'll try to make sure we don't get
.out of synch again.
I really do appreciate your attention and sensitivity. (And; totally
unrelated, do want to talk to you all about the next budget soon.)
r,ul,lTOI\1 L\1?-R.•\RY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
,(NOTES MAIL}
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] }
CREATION DATE/TIME: 6-MAR-1999 12:37:,03.00
SUBJECT:
INS not holding illegals in Guam
TO: Maria Echaveste (CN=Maria Echaveste/OU=WHO/O=EOP@ EOP [WHO]
READ: UNKNOWN
}
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] }
READ: UNKNOWN
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP @ EOP [ WHO ] }
READ: UNKNOWN
CC: Marjorie Tarmey ( CN=Marjorie Tarmey/OU=WHO/O=EOP @ EOP [ WHO ] }
READ: UNKNOWN
TEXT:
Guam Gov. Gutierrez raised the issue of INS no longer holding illegal
aliens in Guam after administrative violations processing and before
criminal charges. This is a problem for the territory since foreign
workers in the Northern Mariana Islands sneak into Guam.
(One of the
many reasons we don't like the NMI system.}
Eric Holder's office told me you are working on the national funding
problem re this.
I want to make sure you are aware of the need in Guam.
CliNTON LIBR/~HY PHOTOCO!·-;'!
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
~REATOR:
Page 1 of 1
(NOTES MAIL)
Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:12-APR-1999 17:59:54.00
SUBJECT:
Guam Asylum Entries
TO: Steven M. Mertens ( CN=Steven M. Mertens/OU=OMB/O=EOP @ EOP [ OMB ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP @ EOP [ WHO ] )
READ: UNKNOWN
CC: Irene Bueno ( CN=Irene Bueno/OU=OPD/O=EOP @ EOP [ OPD ] )
READ: UNKNOWN
TEXT:
Guam Gov. Gutierrez (D) has asked for help re the illegal entry into the
territory of aliens seeking asylum.
The help he wants is both in
preventing further entries and removing asylum seekers to the location(s)
of their hearings. He wonders if the substantial Navy and Air Force
resources there can help the INS in housing and transportation.
A boatload of another 50 Chinese crashed into a reef in Guam waters this
past weekend. There are some 350 illegal entrants seeking asylum now in
the territory of 140,000 people. Many of the entrants are sneaking over
.from the adjacent Northern Mariana Islands, a U .' S. terri tory but not
·subject to the INA.
The President has proposed applying the INA to the
Marianas. He also greatly disappointed Gov. Gutierrez, a friend, by not
agreeing to. Gutierrez's request for
Guam exemption from the INA. One of
'Gutierrez's main arguments for exemption was that Guam could better
enforce immigration laws in the territory than the INS.
a
· What can be done to help?
Thanks.
CLINTON UBRAR\' PHOTOCOPY
�Page 1 of 1
ARMS Email System
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:15-APR-1999 17:31:15.00
SUBJECT:
Guam
TO: Maria E. Soto ( CN=Maria E. Soto/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
TEXT:
I am on an Nsc:...interagency call right now on this working out interagency
differences.
Interior doesn't want to use the Marianas more than
essential. Justice wants to use the Marianas. Underwood wants the
Marianas instead of Guam.
I am going along with Marianas but agree with
'Interior to limit it to the minimum and then try to send the 152 people on
.the boat abroad.
I also want to use the situation to get DoD to free up
vacant base housing in Guam to house the 492 people already in Guam.
Simply going along with Justice will not get the latter done.
CLINTON LIBRARY PHOTOCOPY
.
.
�Page 1 of 2
ARMS Email System
CLINTON LIBRARY PHOTOCOPY
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME: 15--APR-1999 07:49:14.00
SUBJECT:
Re: Guam illegal entries
TO: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Todd A. Bledsoe ( CN=Todd A. Bledsoe/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
CC: Janet Murguia ( CN=Janet Murguia/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Maria E. Soto ( CN=Maria E. Soto/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Mindy E. Myers ( CN=Mindy E. Myers/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Yes. I spoke with Underwood and said we would have a meeting.
We had a
conference call coordinated by NSC last night and will have another one
this AM. NSC scheduled a meeting next Thursday but will try, at my
further request, to do it earlier.
(A·key State Dept. official is having
an operation.) We need a little Administration work before we sit down
with Underwood or others.
Also prompting the NSC is Coast Guard spotting of another boat headed for
Guam with an estimated 80 Chinese on board.
INS and others want to
prevent it from landing, steer it to the Northern Marianas, and get
China's agreement to send the people home.
The Marianas would be-used
since the Immigration Act does not apply and the individuals can't claim
asylum. Law enforcement typses want to use this vessel to send a message
to the organized shippersof these Chinese that their new Guam approach to
U.S. soil will be stopped.
Interior is opposed to this plan because it would enable Gov. Tenorio and
Rep. DeLay to argue there's an important benefit from the non-application
of the Immigration Act to the Marianas -- which we strongly want to end.
While I was initially sympathetic to Interior's opposition, there does not
seem to be a foreign island alternative without endangering the people on
this decrepit boat.
l disappointed Interior.on the call last night by siding with the other
agencies (Justice, State, and Coast Guard as well as NSC) in agreeing to
the Marianas plan with the concessions that (1) DoD and State see if the
people can be quickly transhipped to one of the freely associated states
or the Philippines, (2) we not tell Gov. Tenorio that we've steered the
people away from Guam so as not to give him the amunition Interior rightly
fears, (3) we try to develop a freely associated state or Philippines
option not involving the Marianas for futu're boats, and (4) we explore
with _DoD using vacant Air Force housing on Guam to house the illegal
asylum seekers already there Underwood and Gov. Gutierrez are complaining
�ARMS Email System
Page 2 of2
about.
We need to be very careful about what we tell Underwood and Gutierrez
though because we don't want to give the Marianas and deLay amunition
against our marianas proposal.
CLINTON LIBRARY PHOTOCOPY
�ARMS Email System
Page 1· of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:16-APR-1999 18:51:46.00_
SUBJECT~.
Guam boat people
TO: Mindy E. Myers ( CN=Mindy E. Myers/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
TO: Janet Murguia ( CN=Janet Murguia/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
Records Management@EOP ( Records Management®EOP [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
Mickey has joined Sandy Berger in sending a memo to the President
recommending the President grant the AG the authority to detain in the
Northern Mariana Islands the boat of 152 Chinese citizens apparently bound
for Guam to illegally enter and seek asylum. Agencies have been directed
to take them there and process them for repatriation or asylum. Underwood
is happy that they are not coming to Guam. We will have an NSC chaired
interagency meeting next Thursday that will consider Underwood's further
concerns re the 492 Chinese who have already made it to Guam and others
who may try to go there illegally to seek asylum.
Underwoiod also wants a
meeting he and the Governor can attend or be represented. I told him we
would do that as well.
CL\NTON LIBRARY PHOTOCOPY
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
'
CREATION
SUBJECT:
~
.
.
DATE/TIME:28-APR~1999
.
r
12:55:36.00
1 pm call on Guam Chinese boat people
!0: Maria Echaveste ( CN=Maria Echaveste/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
CC: Marjorie Tarmey ( CN=Marjorie Tarmey/OU=WHO/O=EOP@EOP [ WHO ] )
READ: UNKNOWN
TEXT:
Coast Guard is holding another undocumented boat with Chinese 1/2 mile off
Guam and wanted instructions this AM on wehether to take it to the
Marianas or let it go to Guam.
I persuaded them to wait until 1pm. Scott
Busby is calling them now to see if we can buy any more time but the 1 pm
,call is on.
The major problem with either location -- the Marinas being preferred -.is that DoD will need to assist and has been mostly unwilling to.
('Gen.
Shelton doesn't want another G'tmo, we're not authorized to do this, we're
tapped out by Kosovo, we don't want to get into the immigration control
business.')
Scott is trying to get Eric Holder to call DoD. Holder
staffer John Morton wanted a call from here and for DoD to agree not to be
reimbursed for some costs.
The other major problem is the money for this.
Justice wanted a
supplemental. Michael Deich wanted DoJ to find the money within its
budget. Justice is working on that. DoD wants full reimbursement for
whatever they do.
Overall costs for Guam and the Marianas so far are
projected at $10m-15m.
INS as exhausted its emergency fund.
Neither
Governor wants more boat people unless they can be reassured about issues
. involving costs.
'Call is 7-2104 pin 5642.
CLINTON LIBRARY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1 .
(NOTES MAIL)
CREATOR: Jeffrey L: Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:30-APR-1999 17:58:55.00
SUBJECT:
Guam US Atty.
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNO~
TEXT:
Holder's candidate is the same. He also want to put in a new 1st
Assistant. He is moving expeditiously and will have a final (hopefully?)
meeting next week. He's.being absolutely thorough. The incumben~ U.S.
Atty. is said to be investigating allegations relating to the incumbent
local administration.
CUNTON LIBRARY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:12-MAY-1999 14:22:39.00
SUBJECT:
Guam Asylum Bill
TO: Carol R. Dennis ( CN=Carol R. Dennis/OU=OMB/O=EOP®EOP [ OMB ] )
READ: UNKNOWN
Records Management®EOP ( Records Management®EOP [ UNKNOWN ]
READ: UNKNOWN
',I'EXT:
Anna Briatico told me you are going to handle testimony on Guam Delegate
Underwood's bill to exempt Guam from the asylum provisions of the INA, HR
945, for the hearing 5/18.
I coordinat~ issues re the territories for the
WH.
A major effort to smuggle Chinese into the U.S. entering in Guam prompted
the bill.
From conversations with John Morton, Counsel to the Dep AG, as
well as Scott Busby/NSC, I believe we should oppose it.
INS Dep. Gen.
Counsel Beau Cooper is to testify.
·
We will, however, need to carefully explain our reasons because of (1)
asylum policy/politics and (2) our willingness to amend the INA to address
Guam problems.
Cooper will also need to be prepared to explain how we're responding to
the current Chinese smuggling problem.
(This includes a presidential
memo authorizing the AG to detain interdicted illegals in the Northern
.Mariana Islands, the newest territory in the same chain as Guam where the
INA does not yet apply although we are trying to get it extended. Four
boats with about 480 people have been interdicted in the past few weeks.
This is being done to alleviate overcrowding Guam's jails, which are
housing 600 illegals for INS.
Coast Guard has sent out a plane and two
large cutters for increase surveillance.· Justice has committed to try to
find funds to pay Guam for housing the illegals who have made it to Guam.
State is pressing China on local enforcement.)
I have asked Morton to get draft testimony and q's and a's in soon.
Interior which is responsible for Guam relations and leading on the
initiative to extend the INA and others laws to the NMI needs to be
involved.
I am at 6-5179, fax 6-2889.
'
CLINTON UBPJ~R\' PHOTOCOPY
�I
..
Page 1"of 2
ARMS Email System
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: ·Jeffrey ·L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [WHO] )
CREATION DATE/TIME:12-MAY-1999 14:45:47.00
SUBJECT:
Guam Asylum Bill
TO: Steven M. Mertens ( CN=Steven M. Mertens/OU=OMB/O=EOP®EOP [ OMB ] )
READ: UNKNOWN
TEXT:
FYI. Also Justice is to brief AG tomorrow Am on reprogramming for
Guam/NMI costs. i ahevtold John Morton we need to have domething more
solid before 5/18 hearing.
--------------------- Forwarded by _
02:44 PM _____ ;_ ____________________ Jeffrey L. Farrow/WHO/EOP on 05/12/99
Jeffrey L. Farrow
05/12/99 02:22:27 PM
Record
Recort;l Type:
To:
Carol R. Dennis/OMB/EOP@EOP
CC:
Subject:
Guam Asylum Bill
Anna Briatico told me you are going to handle testimony on Guam Delegate
·Underwood's bill to exempt Guam from the asylum provisions of the INA, HR
945, for the hearing 5/18. I coordinate issues re the territories for the
WH.
A major effort to smuggle Chinese into the U.S. entering in Guam prompted
the bill. From conversations with John Morton, Counsel to the Dep AG, as
well as Scott Busby/NSC, I believe we should oppose it. INS Dep. Gen.
Counsel Beau Cooper is to testify.
We will, however, need to carefully explain our reasons because of (1)
asylum policy/politics and (2) our willingness to amend the INA to address
Guam problems.
Cooper will also need to be prepared to explain how we're responding to
the current Chinese smuggling problem.
(This includes a presidential
memo authorizing the AG to detain interdicted illegals in the Northern
Mariana Islands, the newest territory in the same chain as Guam where the
INA does not yet apply although we are trying to get it extended. Four
boats with about 480 people have been interdicted in the past few weeks.
This is being done to alleviate overcrowding Guam's jails, which are
housing 600 illegals for INS. Coast Guard has sent out a plane and two
large cutters for increase surveillance. Justice has committed to try to
find funds to pay Guam for housing the illegals who have made it to Guam.
State is pressing China on local enforcement.)
I have asked Morton to· get draft testimony and q's and a's in soon.
Interior which is responsible for Guam relations and leading on the
initiative to extend the INA and others laws to the NMI needs to be
involved.
CLINTON UBR!~R\' PHOTOCOPY
�'ARMS Email System
I am at 6-5179,
fax 6-2889 ..
CLINTON L\BRA\W PHOTOCOPY
Page 2 of 2
�~age
ARMS Email System
RECORD TYPE; PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:12-MAY-1999 17:36:51.00
SUBJECT:
Guam Asylum Exemption Bill
TO: Irene Bueno ( CN=Irene Bueno/OU=OPD/O=EOP@EOP [ OPD ] )
READ: UNKNOWN
.TEXT:
Arguments For Exemption: The Chinese are only going to Guam to get to the
States.
We're taking interdicted aliens to the adjacent Northern Mariana
Islands, a territory in which the INA does not yet apply, so we can
repatiate them quickly -- a few weeks vs. close to a year under the INA.
Guam's original population is being diluted, contrary to our international
responsibility re a territory -- a claim that resonates with the UN
Decolonization Committee .
.Other Exemptions: Territories are not treated equally in laws. The
.co;nstitution's Uniformity Clause does not apply and there are many areas
of different treatment, including exemptions.
Importantly, we have said
· we would be willing to amend the INA to address Guam and Marianas specific
problems, treating them differently than the States.
INS Testimony:
I asked John.Morton in the Dep. AG's office to make sure
.we have time with the testimony ..
G! \1\tTO!~ UGRN~\' PHOTOCOPY
1 of 1·
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 2
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
.CREATION DATE/TIME: 8-JUN-1999 12:43:12.00
SUBJECT:
Guam money issues
TO: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP@EOP [ WHO ] )
· READ: UNKNOWN
TEXT:
---------------------- Forwarded by Jeffrey L. Farrow/WHO/EOP on 06/08/99
l2:43 PM ---------------------------
Scott Busby
06/08/99 09:41:12 AM
Record
Record Type:
To:
Maria Echaveste/WHO/EOP@EOP
cc:
See the distribution list at the bottom of this message
Subject:
Guam money issues
Maria -Wanted to bring you up to date on where we are. As you may know, FY 2000
budget amendments went up yesterday (sooner than expected) and thus did
not incorporate solution to this problem.
But that is not our only
chance to fix it. What we need first is an interagency agreement on the
roles of each agency.·
I am refining a general migrant burden-sharing proposal that we intend to
·apply to the Guam operation as well as all future similar migrant
interdiction operations. Simultaneously, Justice and Defense are
. finalizing their own views on what their roles should/should not be on
these issues. We have insisted on receiving those views in the next
couple of days.
(Justice in particular is all over the map on.this issue;
they need to have the AG resolve.)
As soon as we have agency views, Eric intends to host a small meeting with
agency.reps to see whether he can get buy-in at the A/S level on our
proposal.
If so, then to Deputies and/or Principals for ratification.
r-.
That would mean we have a course of action roughly one week from now.
Tough to resolve before then without a firm Justice position (which they
are solidifying now) .
Scott
Message Copied
To:~~--------~--~~~------~--------------------------------Marjorie Tarmey/WHO/EOP®EOP
Jeffrey L. Farrow/WHO/EOP@EOP
Steven M. Mertens/OMB/EOP®EOP
Irene Bueno/OPD/EOP®EOP
CL H~TOI\i UI3RM~Y PHOTOCOPY
Clara J. Shin/WHO/EOP@EOP
�,.
ARMS Email System
Eric P. Schwartz/NSC/EOP@EOP
CLINTON LIBRARY PHOTOCOPY
Page·2of 2
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
001. email
Jeffrey Farrow to Elwood Holstein, re: Guam Compact Impact (1
page)
10/2111999
P5
002. email
Jeffrey Farrow to Elwood Holstein, re: Guam Compact Impact (1
page)
11/1111999
P5
003. email
Jeffrey Farrow to Steven Mertens, re: Guam Detention Letters (2
I
pages)
·
2/11/2000
P5
004. email
Jeffrey Farrow to Christopher Scully [partial] (1 page)
7/12/2000
P6/b(6)
005. email
Jeffrey Farrow to Sandra King, re Guam Bill (1 page)
7/20/2000
P5
COLLECTION:
CLII~TON
Clinton Presidential Records
Automated Records Management System [Emaill
WHO HFarrow: Guaml)
OA/Box Number: 500000
LI8R/\RY PHOTOCOPY.
FOLDER TITLE:
[6/30/1999- 8/21/2000]
Whitney Ross
2006-0193-F
wr625
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Relea~e would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel roles and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4)of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for'iaw enforcement
purposes [(b)(7) ofthe FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3). .
RR. Document will be reviewed upon request.
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR:.Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [WHO]
)
CREATION DATE/TIME:21-0CT-1999 15:19:05.00
SUBJECT:
Guam Compact Impact
TO: Elwood Holstein ( CN=Elwood Holstein/OU=OMB/O=EOP®EOP [ OMB ] )
READ: UNKNOWN
CC: Sylvia
M.
Mathews ( CN=Sylvia M. Mathews/OU=OMB/O=EOP®EOP [ OMB ] )
READ: UNKNOWN
{"
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
Records Management®EOP ( Records Management®EOP [ UNKNOWN l
READ: UNKNOWN
).
. TEXT:
I hope you'll continue to keep in mind the Presdent's proposal while
inGuam of $5.4 million to pay for migration costs to the territory of the
U.S. compacts with other Micronesian areas. As you know, the Interior
Appropriations conference would use the money for capital projects in the
fiscally even harder pressed Virgin Islands. The funds would come from
the $11 m subsidy for the Northern Marianas, which has labor policies to
which we strongly object.
CUNTONUBRARYPHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:11-NOV-1999 10:58:36.00
SUBJECT:
Guam Compact Impact
TO: Elwood Holstein ( CN=Elwood Holstein/OU=OMB/O=EOP@EOP [ OMB ] )
READ': UNKNOWN
CC: Sylvia M. Mathews ( CN=Sylvia M. Mathews/OU=OMB/O=EOP@EOP [ OMB ] )
READ: UNKNOWN
CC: Maria Echaveste ( CN=Maria Echaveste/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
CC: Mickey Ibarra ( CN=Mickey Ibarra/OU=WHO/O=EOP®EOP [ WHO ] )
READ: UNKNOWN
i
~ecords Management®EOP ( Records Management®EOP [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
Any progress re the Presdent's proposal while in Guam for· $5.4 million to
pay for migration costs to the territory of the U.S. compacts with other
Micronesian areas?
As you'll recall, the Interior Appropriations bill would give the money to
the Virgin Islands for infrastructure. That's OK but we also wanted the
.$5.4 m for Guam. The $5.4 m we proposed would come from the $11m
subsidy for the Northern Marianas, which has labor policies to which we
strongly object.
CLINTON UBRAR\' PHOTOCOPY
�ARMS Email System
Page 1 of 2
RECORD TYPE: PRESIDENTIAL
CREATOR:
Jeff~ey
L.
(NOTES MAIL)
Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:11-FEB-2000 20:01:45.00
SUBJECT:
Re: Guam Detention Letters
TO: Steven M. Mertens ( CN=Steven M. Mertens/OU=OMB/O=EOP®EOP [ OMB ] )
READ: UNKNOWN
CC: douglas pitkin ( CN=douglas pitkin/OU=omb/O=eop®eop
READ: UNKNOWN
OMB ]
)
Sylvia Matthews ( Sylvia Matthews [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
The attached includes my suggested edits. The key change I suggest is
referring to the territory vs to Guam officials not providing
justification. I think that will make it seem less critical.
I also
think its important the Governor get a letter not later than the
Delegate.
(This wil~ require coordination since he is on the other side
of the Earth.)
Thanks for your good work on the issue.
Steven M. Mertens
02/11/2000 09:55:48 AM
Record TyPe:
Record
To:
Jeffrey L. Farrow/WHO/EOP®EOP, Douglas Pitkin/OMB/EOP®EOP
CC:
Subject:
Guam Detention Letters
Jeff: Sylvia Mathews has reviewed the letters to Representative Underwood
and Governor Gutierrez and is concerned the tone may be too abrupt.
Prior
to sending the letters forward, Doug and I softened the tone somewhat. My
concern is that the message be unambiguous -- especially after the past
three months of unsuccessful negotiations.
± know you have reviewed and edited these letter before -- but with your
knowledge of the best.method to get this message through to Guam without
doing it in a way that sends an inappropriate tone to its elected
officials -- I would appreciate if you could review, edit and sign-off on
these letters once again.
Any change please let Doug or me know.
Many thanks.
'"'' """'0!11 U8Rf~R\' PHOTOCOPY
==================== ATTACHMENT
1 ====================
ATT CREATION.TIME/DATE:
0 00:00:00.00
TEXT:
�Page 2of 2
ARMS Email System
Unable.to convert ARMS_EXT: [ATTACH.D3]ARMS27953305X.046 to ASCII,
The following is a HEX DUMP:
FF575043D5040000010A020100000002050000005620000000020000875144AB3ASA937E68E775
85BSADlBC65447AF1DlDA2BOF04B4AC7E491C43CACAE3978093E4AC9D85134CA8492Dl69E637A4
. CUNTON LIBRARY PHOTOCOPY
�ARMS Email System
RECORD TYPE: PRESIDENTIAL
Page 1 of 1
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L .. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:20-JUL-2000 ll:33:03.00
SUBJECT:
Re: Guam Bill
TO: Sandra_King@ios.doi.gov ( Sandra_King@ios.doi.gov [ UNKNOWN l
READ: UNKNOWN
)
TEXT:
agreed to that?!!!
It seems a strategy likely to lock agencies into
negative positions vs. resolve issues.
~ho
CLINTON LIBR!\R\' PHOTOCOPY
�. Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001; email
attachment
Memo for William Ratchford from Margaret Haggerty, re: HR. 2462
(1 page)
10/20/2000
P5
002. email
Jeffrey Farrow to Mickey Ibarra, re: Guam (1 page)
12/12/2000
P2,P5
COLLECTION:
Clinton Presidential Records
Automated Records Management System rEmaill
WHO (rfarrow: Guaml)
OA/Box Number: 500000
CLINTON LIBR:~RY PHOTOCOPY
FOLDER TITLE:
[8/2112000- 1/17/2001]
Whitney Ross
2006-0193-F
wr626
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
· PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) ofthe PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b))
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
·
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions '[(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
�CLII\lTON LIBRARY PHOTOCOPY
October 20, 2000
MEMORANDUM FOR WILLIAM R. RATCHFORD
ASSOCIATE ADMINSTRATOR (S)
FROM:
MARGARET M. HAGGERTY
ASSISTANT REGIONAL COUNSEL (9L)
SUBJECT:
H:R. 2462 Revised Guam Omnibus Opportunities Act
I am responding on behalf of the Office of General .Counsel. We have also
consulted with the Office of Property Disposal (PR).
We primarily are concerned about the impact of (d)(2)(C) (see page 4 of the draft
attached to your memo), which permits the military department to transfer
administrative control over certain property to the General Services
Administration subject to any terms and conditions applicable to such property.
In other words, as drafted, GSA will be responsible for all aspects of the property,
including environmental liability. This is troubling since we are not involved in the
negotiations regarding its ultimate disposition. Moreover, pursuant to (d)(2)(E),
GSA could not dispose of the property until there is an agreement between the
Government of Guam and the Fish and Wildlife Service or Congress authorizes
otherwise.
Thus, we rnake the following suggestion:
The last sentence of (d)(2)(C) be revised to read" ... to the
General Services Administration subject to the approval of the
Administrator and any other terms and conditions applicable to
such property".
Alternatively, the last sentence of (d)(2)(C) be revised to
read" ... to the General Services Administration subject to the
terms of an Inter-Agency Agreement, among the participating
agencies, and any terms and conditions applicable to such
property. 1
Thank you for providing us with the opportunity to submit comments. Please
contact me if you have questions. I can be reached by telephone at (415) 5222600.
1
A copy of a proposed agreement is attached. DOl has informally advised that they would not
opposeexecuting such an agreement; however, they have not reviewed this particular document.
Automated Records Management System
Hex-Dwnp Conversion
�ARMS Email System
Page 1 of 1
RECORD TYPE: PRESIDENTIAL
(NOTES MAIL)
CREATOR: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
CREATION DATE/TIME:12-DEC-2000 10:46:45.00
SUBJECT:
Re: Guam
TO: Mickey Ibarra
READ: UNKNOWN
CN=Mickey Ibarra/OU=WHO/O=EOP®EOP [ WHO ] )
TEXT:
I haven't seen these yet but his office talked to me about two: transfer
of Federal land at Ritidian Point (possibly in a swap for Guam land) and a
commission on WWII claims to be chaired by his wife.
Sec Babbitt has
really. worked on Ritidian but has told Gov he cannot because of FWS
objections (and I have spoken with FWS Dir Clark and Asst Sec Smith about
it a couple of times and gotten the same answer) . I would like to try to
create the commission. After months, we worked out a compromise bill for
this with Delegate Underwood but it was too late to enact into law. Geri
Gutierrez chairing it would be interesting, she is a victim and is toying
with running to succeed Carl. Underwood also hopes to and there will
probably be a strong GOP candidate. Both of these proposals address major
issues in Guam.
CLINTON UBRI},R\' PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. email
Grace Garcia to Cabinet Affairs [partial] ( 1 page)
1/9/1997
P6/b(6)
002. email
Mary Eva to Emory Mayfield, re: President's Visit to China (4 pages)
3/27/1998
P5
COLLECTION:
· Clinton Presidential Records
. Tape Restoration Project rEmaill
Default (rGuam, Political Status, Reforml)
CLINTON UBR~R.Y PHOTOCOPY
OA/Box Number: 1100000
FOLDER TITLE:
[1/9/1997- 10/2/1999]
Whitney Ross
2006-0193-F
wr627
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information [(b)(l) ofthe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA)
· b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b )(9) of the FOIA)
National Security Classified Information [(a)(l) ofthe PRA)
Relating to the appointment to Federal office [(a)(2) of the PRA)
Release would violate a Federal statute [(a)(3) of the PRA)
Rele~se would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
P5 Release would disclose· confidential advice between the President
. and his advisors, or between such advisors [a)(5) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
. persoral privacy [(a)(6) of the PRA)
C. Closed in accordancewith restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
':
'·_,~
�Page 1 of 4
ARMS Email System
CLINTON LIBR.ARYPHOTOCOPV
RECORD TYPE: FEDERAL
(TRP NOTES MAIL)
CREATOR: maryevac (.maryevac@bradyberliner.com@INET@LNGTWY
UNKNOWN ]
CREATION DATE/TIME:27-MAR-1998 22:39:00.00
SUBJECT:
President's Visit to China
TO: Emory L. Mayfield ( Emory L. Mayfield@eop [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
Emory
I am faxing you some of the previous correspondence regarding
the
standing invitation of the' President to visit Guam during a visit across
the
Pacific . . The upcoming visit to China in June will be at least the fourth
time the President has visited Asia and not visited Guam.
The last time
in
November 1996 was particularly egregious because the President's schedule
took him to three locations around Guam (Hawaii, Australia and Thailand, I
think~
which meant the plane had four or five opportunities to stop in
Guam
but didn't ..
This was noted by the people of Guam with great
· disappointment,
which the Pacific Daily News opinion piece indicates.
The following are compelling reasons within the context of
"inter-governmental affairs" for the President to honor Governor.
Gutierrez's
invitation ·during this next visit to Asia:
1)
If President Clinton stops to visit the Governor· and the people.of
Guam,
and Air Force One lands at the Guam International Airport rather than the
U.S. Air Force.base, he will be the first U.S. President to recognize the
�~RMS
Email System
Page 2 of 4
CLINTON UBRt,;,RY PHOTOCOPY
people of Guam with that honor.
Three previous President's have visited
Guam
(Nixon, Johnson and Reagan) but it is my under§tanding that these stops
were
related to U.S. military concerns
Nixon and Johnson's, I believe,
were
directly related to the Viet Nam War.
2)
The Governor has extended written invitations to the President at
least
three times (two faxed to you) and verbal invitations numerous times.
The
President has indicated privately and publicly that he will visit Guam.
~)
This is the lOOth anniversary year of the Unite.d States acquisition of
Guam.
June 21 will be the lOOth anniversary of the American flag being
raised on Guam.
4)
The people of Guam are frustrated by the standstill in the Guam
political
status negotiations.
feel disregarded.
They are not angry, but they are disappointed.
T):ley
A stop by the President of the United States will
reassure
them that even though they have no political status within our Democratic
framework,
5)
their value to the
us
is not entirely ignored.
Note that the people of Guam have voted overwhelmingly in two
plebiscites
:to request "commonwealth" status with the United States.
divided.
.division.
They are not
The President will not be caught in a quamire of political
On the contrary, the President will be received with
�Page 3 of 4
ARMS Email System
overwhelming
warmth and show of patriotism.
6)
Guam is among the strongest economies in Asia (I think fourth behind
Japan, Taiwan and Singapore).
The President, leading us into the 21st
century, can tout Guam as America in Asia.
The President may also observe
Guam's privatization efforts in the wake of U.S. military base closings.
7)
The devastation of Super Typhoon Paka was extraordinary and the
recovery
since Typhoon Paka is quite remarkable.
It is highly appropriate for the
President to visit the devastated areas and to see the strength of our
American economy in Asia.
8)
The people of Guam are proud that their small island has such
significance in U.S. national security.
As the site from which our
military
operations will be launched in the event of any conflict throughout the
world, it is terribly appropriate for the President to greet the native
population that welcomes our presence in their home and to visit the U.S.
service men stationed there.
Emory - this isn't quite what I had hoped to do for you but I hope this
gives
you some ideas. Unfortunately, I ··11 be away Saturday and Sunday, but I'll
be
in Monday morning.
Thank you so very much.
CLINTON LIBRARY PHOTOCOPY
�fARMS Email System
Page 4 of 4
MaryEva==================== ATTACHMENT
ATT CREATION TIME/DATE:
0 00:00:00.00
TEXT:
================== END ATTACHMENT
1 ====================
1 ==================
CLINTON LIBRAR\' PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUM~NT
NO.
DATE
SUBJECTffiTLE
RESTRICTION
AND TYPE
001. email
Ginger Cruz to Susan Hazard [partial] (1 page)
10/27/1998
P6/b(6)
002. email
Gordon Creed to Jeffrey Farrow, re: Guam Land (3 pages)
11/5/1998
P5
COLLECTION:
Clinton Presidential Records
Tape Restoration Project rEmaill
WHO <rGuam, Legislation, Tourisml)
CLif~TON LIBPJ~RY PHOTOCOPY
ONBox Number: 500000
FOLDER TITLE:.
[10/27/1998- 11/17/1998]
Whitney Ross
2006-0193-F
wr628
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
· P4 Release would disclose trade secrets or confidentilil commercial or
financial information [(a)(4) ofthe PRA]
PS .Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request;
Freedom of Information Act- [S.U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA]
·
b(3) Release would violate a Federal statute [(b )(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA] .
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement.
purposes. [(b)(7) ofthe FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
conceni.ing wells [(b )(9) of the FOIA]
�Page 1 of 3
ARMS Email System
CLINTON LIBR.~R\' PHOTOCOPY
RECORD TYPE: PRESIDENTIAL
(TRP NOTES MAIL)
CREATOR: gordon.creed ( gordon.creed@gsa.gov [ UNKNOWN ] )
CREATION DATE/TIME: 5-NOV-1998 22:18:00.00
SUBJECT:
Guam
La~d
TO: Jeffrey L. Farrow ( CN=Jeffrey L. Farrow/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
CC: aki.nakao ( aki.nakao@gsa.gov [ UNKNOWN ] )
READ: UNKNOWN
CC: alfonso.mendez ( alfonso.mendez@gsa.gov [ UNKNOWN l
READ: UNKNOWN
)
CC: brian.polly ( brian.polly@gsa.gov [ UNKNOWN
READ: UNKNOWN
CC: carol.arnold ( carol.arnold@gsa.gov [ UNKNOWN ] )
READ: UNKNOWN
CC: carolyn.fulton ( carolyn.fulton@gsa.gov [ UNKNOWN ] )
READ: UNKNOWN
CC: clark.vanepps ( clark.vanepps®gsa.gov [ UNKNOWN ] )
READ: UNKNOWN
CC: Fred DuVal ( CN=Fred DuVal/OU=WHO/O=EOP [ WHO ] )
READ: UNKNOWN
CC: Dave.Barram
READ: UNKNOWN
dave.barram@gsa.gov [ UNKNOWN ] )
CC: kenn.kojima
READ: UNKNOWN
kenn.kojima@gsa.gov [ UNKNOWN ] )
CC: meg.haggerty ( meg.haggerty@gsa.gov [ UNKNOWN ] )
READ: UNKNOWN
CC: paul.chistolini ( paul.chistolini@gsa.gov [ UNKNOWN ] )
READ: UNKNOWN
CC: richard.butterworth
READ: UNKNOWN
richard.butterworth@gsa.gov [ UNKNOWN ] )
CC: tony.costa ( tony.costa@gsa.gov [ UNKNOWN ] )
READ: UNKNOWN
TEXT:
Jeff
1.
NO, the entire 3,213 acres have not been reported to GSA.
Because of contamination issues, USAF & Navy are reconfiguring the
parcels and only reporting clean acreage.
Navy has reported 852 of
�ARMS Emaii.System
Page 2 of 3
CLI!~TON UGR!~R\' PHOTOCOPY'
1,040 acres or 83% and USAF has reported 432 of 2,136 acres OR 20%
excess to GSA.
Our excess screening for further Federal reuse has
resulted in Interior INFORMALLY expressing an interest in some of
the parcels for use by the National ~ark Service &'U.S. Fish &
Wildlife Service.
2.
Contained within the 3,213 acres mapped in the legislation are
37.52 acres that were reported excess by FAA.
This property was
excessed and screened with negative interest ..
3.
All of the above properties 852 + 432 + 37
=
1,321 acres are
bundled in an appraisal contract which GSA expects to receive,
internally review andpresumably approve by DECEMBER 31, 1998.
4.
Gov Guam has submitted its Land Use Plan to the Congress.
5.
Therefore, YES the President could correctly state that there
are 1,321 acres in the pipeline that were released by USAF, NAVY &
FAA for which the Administration (GSA) is diligently working to
transfer to the Gov. of Guam as envisioned in P.L. 103-399.
6.
NOTE:
I checked further and found that there is a 44.37 acre
of property in Agat, Guam that is exclusive of the 3,213 acreage
addressed above.· The property successfully proceeded through the
excess and surplus stages with Gov Guam submitting an application
for a no cost conveyance of the property.
Gov Guam intends to use
the property for public health purposes [Waste Treatment Plant.]
On May 26, 1998, HHS executed a deed WITHOUT A CEREMONY, but Gov
Guam as of today, has not accepted nor recorded the deed.
could be an opportunity.
This
�Page 3 of 3
ARMS Email System
Gordon
Reply Separator ·
Subject: Guam land
Author:
jeffrey_l._farrow@who.eop.gov at internet
Date:
11/5/98 2:05 PM
Are all the 3,213 acres covered by PL 103-339 in process for transfer? The
President could also say GSA expects to complete the required appraisals by
12/31?
Thanks.
CUI\ITON UBR!~R\' PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
. . SUBJECTffiTLE
DATE
RESTRICTION
Robert Uriu to Charles Pritchard and Robert Suettinger at 10:46.
Subject: duam ... Guam ... Guam ... Guam [partial] (12 pages)
12/12/1996
P5, b(6)
. 002. erriai1
From Joseph Sestak to Robert Uriu at 16:44. Subject: RE: Possible
Guam ProtestofPort Call. (1 page)
02/25/1997
P1/b(l)
003. email
Robert Uriu to Sandra Kristoff. Subject: Guam Meeting. (2 pages)
01/07/1997
P5
004. email
Robert Uriu to Roseanne Hill, Sandra Kristoff, Charles Pritchard, and
Robert Suettinger. Subject,: Report on 2/1197 meeting on Guam. (1
page)
02/01/1997
P5
005. email
From Robert Uriu to Peter Bass, Kristen Cicio, Wilma Hall and
Katherine Veit at 14:52. Subject: Guam Negotiations (pass to Berger)
(2 pages)
·
12/13/1996
P1/b(l)
001. email
·COLLECTION:
Clinton Presidential Records
NSC Emails
.MSMaii-Record(Sept 94-Sept 97) ([Guam])
ONBox Number: 590000
CUNTO~J LIBRAR\' PHOTOCOPY
FOLDER TITLE:
[ 12/0211996-02/2511997]
Van Zbinden
2006-0 193-F
_ vz552 .
RESTRICTION CODES
Presidential Records Act- (44 U.S.C 2204(a)l
PI
P2
P3
. P4
National Security Classified Information ((a)(l) of the PRA]
Relating to the appointment to Federal office ((a)(2) of the PRA]
Release would violate a Federal statute ((a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAJ
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
perso~al privacy ((a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of.gift. .
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
. RR. Document will be reviewed upon request.
Freedom of Information Act- (5 U.S.C. 552(b)].
b(l) National security classified information [(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIAJ
b(8) Release would disclose information concerning the regulation of
financial institutions ((b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAJ
�CLINTON LIBRARY PHOTOCOPY
For you Guam gluttons out there, this is the current status. We expect
to.·
have everything settled by tomorrow afternoon. Bob
OGUAMSTR.DOC : 2592 in OGU
11 December 96 21:55
OGUAMSTR.DOC
SUMMARY
Conclude negotiations on Commonwealth Act in reasonable time.
Final .
. .
.
product should be sensitive to Guani'~ concerns if possible, but
inust
be acceptable on grounds of national security, agency interests,
constitutionality, and prospects of Congressional approval.
Assessment of Current Negotiations
Bad. At present, major policy issues remain unresolved,
including
thefundaniental parameters ofGuam'sfuture relationship to the
U.S.
Lack of progress has fostered an atmosphere ofdistrust in which
both sides are taking uncompromising positions. Agencies have
expressed a uniform distrust of current negotiator. Chances of
present legislation passing Congress are nil.
�CLINTON LIBRARY PHOTOCOPY
Essential first steps
l. Federal goverriment needs to formulate a united position. The
admillistration should set out clear parameters on basic issues,.
beyond which we cannot compromise.
2. Given the broad range of issues involved -- policy,
constitutional, legislative -- any single agency will be
incapable of .
coordinating all interests. Current negotiating structure needs
to
be changed. Either:
a broader unit such as NSC should be responsible for
coordinating positions, drafting legislation, etc., or
we should set up·a Presidential W~)fking Group similar to the
one we have for Puerto Rico, in which all agencies are
formally represented.
3. We need to communicate our positions clearly to Guam. Guani
has
never been told how far the Federal government can compromise_..:
they
have been given the impression that our silence means that we can
accept even their extreme positions. '
A clear USG position will cause some resentmentand strong
opposition from a vocal leadership. But my assessment is that
Guam
prefers a negative response to continued dithering -- they have
been·
waiting for aclear answer for a long time. Resentment will
eventually pass because Guam does not have attractive
alternatives to
Commonwealth-- no one wants to give up U.S. citizenship, and
statehood is not a·viable option. But we should make sure we
convey
our position diplomatically and demonstrate simultaneously that
we.
will compromise wherever we are able.
Immediate Game Plan
1. Ickes meeting
Tn thi<: mPPtino urP ...:hrmlrl·
�CLINTON LIBRARY PHOTOCOPY
raise our and agency concerns about the current draft and the
structure of negotiations.
get his input on how to restructure negotiations (I have had a
long conversation with JeffFarrow, head of the Puerto Rico
Workillg
.
.
.
Group, who also supports some change in structure. Jeff will
also
be at the meeting.) ·
agree withickes that we should keep Puerto Rico negotiations in
mind as we conduct Guam negotiations.
2. Ganimendi meeting
I have·asked Aranza for their general assessment of negotiations,
anddiscussion of fundamental issues (not minutia). I have also
asked them to: ·
·assess what is needed to move the negotiations forward
. discuss the sections of the draft which Garamendi has labeled
"~esolved" without inforill.ing the agencies how they were resolved.
assess the chances of Congress approving the current draft (if
he
says "good" he is deceiving us or himself).
We should then spring the idea of a IWG on him-- what tactics do
you wantto use?
3.IWG
The IWG should be for agency representatives only (i.e., not
inCluding Guam), and chaired by you. In the IWG we should:
·send a clear signal that the White House is turning its
attention
to the issue. One of Guam's biggest frustrations is that the
issue is not being discussed at high enough levels. (At a later
date we can ask for their input.)
review progress to date, or lack of same. We should tackle the
larger issues first, and get agencyinputon our negotiating
parameters.
depending on how you and Ickes decide, announce/discuss future
..:tnw.t11rP nf intPr-l'laPnf'.V nPantil'ltinn..:
�...
'
C!JNTO~J LIBRARY PHOTOCOPY
· decide:.on·howto restru~!Ufe' fh<:! dr~fting·.process:
ifwe ~tick withthe'~)0isti'nginterior~draffwe shouici setup
subgroups of ageneies interested iri each section to reyise.
if we de¢id~to r.edtaft alLor part·ofthe Act, wy shcmld
appoint a singk agel)cy;or group o((.lge,ncies to draft- a·
counternrQposal, whic.h ',¥Ould then be circulated; and discus'sed
·
'by the group'as a whole.
Discussion ofOther Issue.s
.Ba.ckground on Garamendi:
el1di's objectives: Ha:rd t6 decipher. ·One pers<:m fi!unitia.r
.hiqt has said Garame,nqi h(lstgken Guam's side beca1.Ise he is thily
convinced thatoill relationship with Guam is a residtfal of
cokmialisn'l, and. that Guam deserves betterthai1 "'indentured
·servitude.. " if this)'s the:case· he will coptj11ue;tq pusQ. the
exttetn.e (}uam position; (1\s source purif,. "the,re is ·pot a lot'of
game~manship ~ith Garc,unendi ·"~he is driven by what he- truly
believes ... he fits the old sayirig, 'Ofteh wtong,.ii'ever in .
doubt.~'')
·
Ifhis-obj,ecii~e·is. toresolve the issue~anq-take credit fo_r:it,
:he
·
has: handled the negotiations. in.the· Worst·pbssible way ...He 'also
has
not paid attention. to gaining Congtessiort~.Lapprov.al.fOI: it
·l-Iard
····
·
·
~o
believe for an e,xperienced pqlitician .
. Strengths: Gatamendi.is a long-time I)ernocratfrornNorihetn
California who helped run.eilnton:s. 92· campaign in-'QA. Thi§ yea,r
,he
.h.elped quell ,~orne explo~ive·environment~l issues·.iil CA,j'ust
·
.1Jefore·
the election,. so may have \veri some poil1ts .. He is extr~rnPl~ioyal
to
POTUS. Strong perso]lality (9an be <;:harmingJ.
[001]
'·-·- ------- ----- ____ . ,_ ___ _.,_. --· - ·-------
-~---"'-
------
'""·"--~-··-·-
. -·.--: ...
~·-·-····-·-- -·~---:----·-·
...
---.
··~k----~------·
�CLINTON LIBR'~RY PHOTOCOPY
[001]
The 'G.uarrtpeople haye:some:very legitini?:t~,gripes, which we sh~:mld
l:>e
as . receptive to as we can. They pe!·cdve: themselves,.as
histori'cally
occu-pied -- firstby the Oerm:ans, then ·spanish;jh~ll Japanes.e,
then
·
Arperica.,ns. Navy has heldJ1lore tp~n 40 percentofthe.island,.and
~ook mpst ofthe prime pieces of 'land (nowdo\\'11 to 28%, butpi'ime.
pieces). Thus, their mcist corrunon·.n·egotiatingploy is to cite
Guam's
;;unique historic:£J,Ls.tatus."
Many oftheir positions and ·argument~, however,rema1n too.
extreme.
.
this is. dutHb a·vocaPand active political:l~C!det_ship --,spme of
:the:tcip elected.bfficials . W,er,e formerly lqlO,\Yfl asJhe CommQI}\Ve<tlth·
·~raclicals."
.
The populatiohas a whole ;js hot'that.iriterest¢dlntheissue.
01l.e
·sourc·e says that they'wiU never do arlYthing tq give .up :their
u.·s.
·
r..iti.7P.n<::hin ·--
,,
·-:---~-----...--·--:--·:--....--------
,__..._
___
._. - ·
··-··-~----
··
thi~ i r;:
-----·--.
thP.
�CLINTON LIBRW.Y PHOTOCOPY
Guam. There is no independence movement, and little hope for
leaders
'
to whip up sustained anti-US demonstrations (although they will
try). Statehood is not an option being discussed.
Guam thus will not back away from negotiations, even if things
are
going against them. The leadership will kick and scream, but
because
the majority of the Guam people see achieving Commonwealth status
as
the real goal, they will eventually compromise. (That said, we
will
help ourselves if we handle this diplomatically, say all the
right
words about Guam's uniqueness, etc., and show that we can deliver
on
specific compromises.)
A fmal note: opinion on Guam is divided between the Chamorro
and
rion-Chamorro: In fact, source describes the Chamorro as racist
and
unfair to other minorities and new immigrants from Asia.
Citizens
from the U.S. (known as "State-siders") are treated well.
Relationship with Puerto Rico
Jeff Farrow, aide to Ickes and head of the Working Group on
Puerto
Rico, tells me that Ickes wants to make sure that the 'Guam
negotiations do not complicate the negotiations with Puerto Rico.
Some in PR want enhanced Commonwealth -- i.e,, more rights,
powers
and autonomy, while stopping short of statehood. These people
are·
watching what we do with. Guam very closely. Ifwe give into
Guam's
demands this will make it more difficult to deny to PR, as we
have
PR and Guam are discussing many similar issues, but the
rli ffprf'nl'P
�CLINTON LIBR.~R\' PHOTOCOPY
is that PR has become more realistic over time and is no longer
making extreme demands. It will be especially problematic if we
gave
.
.
in to Guam on mutual consent, applicability of federal laws,
defense
·
and foreign affairs, immigration, labor, maritime shipping .and
aviation, environmental regulations, tax autonomy, equal finance
iri other words, everything!
One issue I did not discuss with Farrow: should we link the two
negotiations in some way, even if only informally? This would be
yet
another way to unify/bolster our positions.
Congressional prospects
Farrow reports that one key Congressional staffer calls the
current
Guam draft "a joke." Garamendi has evidently made no effort to
consult with anyone on the Hill -- a mistake that means that the
current draft has virtually no chance of passing.
Whoever/whatever takes on this issue must have capacity to work
together with Hill. This is another argument for a
Presidential-level working group, staffed by people with
Congressional·
·
·
experience (i.e., Farrow was key staffer on Insular Affairs
Committee);
Alternative inter-agency structures
If we are able to change the current structure, I don't think
NSC/Asia should try to take the lead iii negotiating and
coordinating
the draft. This is a full-time job (as Stanley Roth discovered).
NSC also does not have the legal or congressional expertise or
manpower needed (nor does our Legal or Legislative Affairs
offices).
Many of the truly contentious issues are purely domestic, and
thus
out of our bailiwick.
i favor a presidential working group along the lines ofthe
P11f~rtn
�CLINTON UBR'l.R\' PHOTOCOPY
Rico working group. This would ensure that all agencies have a
formal voice in the entire drafting process. The group could
also be
·
given adequate legal and legislative expertise. I would prefer
replacing Garamendi with a more neutral and experienced
negotiator -someone who is familiar with the inter-agency process and with
Congress. If this is not politically possible, arid Garamendi
remams
as the lead negotiator, we could at least surround him by reps
from··
·
all interested agencies.
Specific Issues of Disagreement
1. Mutual Consent
Guam wants to include clause which prevents either side from
changing the Act without mutual consent (this clause was included
m
Northern Marianas Covenant, but DOJ has since reconsidered).
Justice now opposes on constitutional grounds -- argues that
agreements reached by one Congress cannot be immune from
alteration by a subsequent Congress.
However, DOJ has already accepted a compromise, granting Mutual
Consent "to the extent constitutionally permissible"; DOJ
believes that it is not constitutionally permissible, Guam
believes it is -- both believe they will win a court case.
_ NSC should support DOJ if they want to remove compromise
clause.
2. Applicability of Federal Laws and the Joint Commission
·Most seem to recogllize that there should be some way to review
whether US laws apply equally to Guam (some US laws are clearly
not
appropriate). But Guam wants to establish a Joint Commission, ·
composed of Federal and Guam representatives, to have authority
to
make these determinations, and wants near parity in terms of
representation. (Guam has recently agreed to downgrade Joint
Commissions powers.)
All US agencies oppose giving too much autonomy to this
Commission, and want to limit Guam's ability to dominate
rlPl'.i c;:i nne;:
�CLII~TON LIBRARY PHOTOCOPY
_ NSC agrees with agencies.
3. Foreign and Defense Policy
Guam wants to maximize its independence on the foreign policy
front.
It wants the ability to join lOs on its own, be consulted on .
treaty
negotiations that affect it, and wants to be consulted on
military
·
base issues, changes in DOD activities, stationing of US forces
m
Guam, etc ..
State and Defens~ have finally talked this week, and both now
want
to completely rewrite clause.
State maintains that the US must speak with one voice on foreign
policy: we cannot allow states, territories, etc. to take
independent action. Guam should accept limitations of
Commonwealth or become an independent state. (State says that in
practice we will consult at times, and that Guam can join some
lOs, but that it opposes writing this into the Act.)
Defense flatly rejects consultation provision.
_ NSC fully supports State and Defense.
4. Excess Military Land
This is one of the most contentious issues -- the one issue on
which
all on Guam seem to agree.
DOD has identified a considerable amourtt ·of land as excess, and
IS
.
.
willing to turn back to Guam. The problem is in the terms of the
return. Under current GSA laws, other agencies can screen for
excess land first, and can claim it if wanted. (Fish and
Wildlife
has already claimed some choice excess DOD lands in this way,
pissing off Guam.) Guam wants to have the "right of first
refusal,"
allowing it frrst dibs. Also, wants to obtain the lands
cost-free
l'!nrJ urithn11t PnnrJitinn~ (i.l'lrl'lmP.nrJi P.ll'lim~ th!'!t llnTP~t uri1J arn,~T
�CLINTON LIBRARY PHOTOCOPY
otherwise (I do not take this seriously).
We.are still waiting for CINCPAC position paper on strategic
assessment of Guam.
DOD prefers to keep current rules as is, to maintain ·
flexibility.
If excess land is needed at a later date it will be easier and
cheaper to take from, say, FWS than from private Guam owners.
FWS has a large 370-acre refuge at Ritidian Point, wants to
protect on conservation grounds. Will likely take more DOD
excess
land if made available.
Justice, GSA also opposed to changing the rules just: for Guam -both because of the precedent it will set and because of the
question of payment.
_ NSC position. If CINCPAC comes back with a strong rationale for
retaining as.much access as possible, then we should go with
them.
'
'
•
'
•
'
I
_Absent strong strategic needs for. retaining access to Guam, we
~an
compromise on the land rules. Much of land DOD identified as
excess is truly excess (some Navy people on the isla.Il:d even say
it
is more costly and troublesome to hold onto it).
There is also some room for compromise: discussions are
underway'
on how to move Guam up the ·ladder in terms of rights of refusal
(i.e., on par with the Federal agencies, or just after them);
DOD
also willing to commit itself to periodic excess land reviews;
may be able to speed up the process of reversion; might have
some
flexibility on money issues (confidential). Also, Guam source
suggests that long.,.term (99-year leases) will be acceptable to
Guam, and should be to DOD as well.
5. Immigration and Labor
Guam· wants to maximize local control over permanent residency, in
order to deter excessive immigration from Asia. At the sam~
time,
Guam wants to be able to admit more temporary workers, for
tn11ri ~t
�CUI~ TON U8R:~RY PHOTOCOPY
and other industries. It also wants local control over labor
standards and enforcement.
Guam is divided on this. The native Chamorro population is
close
to falling under 50%.ofthe total population, and wants to
protect
itself. Other immigrant groups on the islands, especially the
Filipinos, have felt mistreated by the Chamorro majority;
restrictions on permanent immigration will hurt them the most.
Labor opposes, in light of difficulties in the Northern
Marianas,
.
where there were many problems with exploitation of temporary
workers from Asia. (Guam's immigration proposal comes straight
from the NMI Covenant.)
INS opposes, on precedent and logistical grounds.
Justice also quietly argues that Guam government is too corrupt
to
handle these issues responsibly, which angers Guam.
State, DOD don't care.
_ NSC also takes no position. Garamendi's current proposal of
allowing Guam control over immigration and labor standards to be
phased in on 4-year basis may be acceptable. He also proposes
·
that Guam be granted a Guam-only permanent immigrant visa. Some
compromise possible if Labor allowed to include in the Act some
extremely tough labor standards.
6. Chamorro Self-Determination
Chamorros have demanded a Chamorro-only vote, to decide on the
island's future political status. As mentioned, this is opposed
by
other minorities on Guam.
Justice argues that any vote by a single minority/ethnic group
cannot be binding or enforceable.
·Still, DOJ was pushed into a compromise: mention of Chamorro
self-determination appears in the Act, but will not involve USG
m
any official way, and USG is not bound by its results.
~ NSC takes no position (this issue may already be finessed).
�7. Other Issues
There are a host of other disputes, many related to legal rather
than policy matters. '
a; taxation ·
b. commerce and trade
c. transportation (maritime and civil aviation)
d. environment, including the disposal ofhazardous wastes
G!.INT()f\J LIBRARY PHOTOCOPY
�Page 1 of2
32D2C4A5.FIN
CLINTON LIBRM~\' PHOTOCOPY
MSMail
DATE-TIME
07 January 97 16:47
FROM
Uriu, Robert M.
CLASSIFICATION
UNCLASSIFIED
SUBJECT
Guam meeting [UNCLASSIFIED]
TO
Kristoff, Sandia J.
CARBON COPY
Pritchard, Charles (Jack) L.
Suettinger, Robert L.
TEXT BODY·
Sandy. A very productive meeting. This is more detail than you need, but
there is likely to be a follow-up this Thursday and then next week
The meeting started badly when John Angell expressed optimism that we could
get everything resolved before the inauguration. He went through the main
issues, using a memo from Lenga to Panetta that echoed GaramendiEs
assessment of the issues (Mutual Consent, Chamorro Self-Determination,
Federal Excess Land, Joint Commission, and Immigration). He also expressed
little concern over whether Congress would reject the draft out of hand, and
didnEt seem to care about what the agencies thought, either -- he simply
wanted things done. (At the same time, he mentioned that he wasnEt
concerned if we didnEt get everything resolved, since Ecertain peopleE are
gone in 2 weeks anyway.)
·
Jeff Farrow did most of the heavy lifting in terms of raising objections,
but I voiced agency concerns as well. On EourE issues, Angell was in full
agreement on the DOD land issue, and wanted to simply reject GuamEs demands
out of hand. (At a later point, when we discussed ways to move forward, I
did suggest that DOD would be willing to give up land if the rules were
favorable; would commit to periodic land reviews; and might consider
long-term (99-year) leases on current lands.) We also discussedDODEs and
StateEs objections to giving Guam too much autonomy in foreign affairs
(consultations on treaties and troops, entering international organizations,
:receiving foreign aid, etc.). Angell agreed these provisions are
unacceptable.
Jeff did a good job of raising a long list of particulars that are still in
the bill that the USG and Congress will never approve. This list forced
Angell to realize that everything wasnEt going to be resolved in two weeks.
At that point I spoke more candidly about the problems cifthe negotiations.
I raised the agencyEs general distrust toward the process, and their
complaints that Garamendi was ignoring them in making commitments to Guam.
At the end I raised the suggestion that the WH restructure the negotiations
�Page 2 of2
32D2C4A5.FIN
,..
,)
.
by creating a more formal mechanism that would focus WH attention and allow
for agency input into the process. I suggested this was one way they could
show EprogressE in the next two weeks ..
Angell will check with Garamendi and others on some outstanding questions.
He wants another meeting Thursday at 1:30, and will then come to a final
decision on what advice to give to Panetta.
P.S. Tell me if anything I said went beyond your instructions.
CLINTON LIBRAR\' PH
OTOCQpy
�Page 1 of 1
R2F39C1B.FIN
M S M.a i 1
DATE-TIME
01 February 97 14:27
;FROM
Uriu, Robert M.
CLASSIFICATION
UNCLASSIFIED
SUBJECT
Report on Steinberg 2/1197 meeting on Guam [UNCLASSIFIED]
TO
Hill, Roseanne M.
Kristoff, Sandra J.
Pritchard, Charles (Jack) L.
Suettinger, Robert L.
Uriu, Robert~·
CARBON COPY
NO CC's on THIS MESSAGE
TEXT BODY
Sandy. It turns out that Shearer/Aranza had not been informed about COS
decision to move ahead with WH informal working group. They thus came in
with standard pitch for why NSC should help push WH to get involved -GuamEs strategic importance, possibility of instability if status not
resolved, etc. They asked for WH to take the lead, and to help put pressure
on agencies to compromise. ·
They were thus surprised (and pleased) when Steinberg mentioned Bowles
decision. We both assured them that WH is now focused and that we want to
resolve the issue. (This is, however, an example ofthe danger of getting
what you wish for -- the WH process is likely to move many provisions of the
bill away from GuamEs position. )
(BTW, since Garamendi was informed about COS decision yesterday, I had
assumed Interior was calling this meeting in order to oppose the move -especially if JG perceived this as lowering his position or complicating
. negotiations. My memo to Steinberg thus anticipated a negative reaction
from them.)
CLINTON UBRARV PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT/TITLE
RESTRICTION
001a. memo
For John Podesta from Samuel Berger and Mickey Ibarra. Subject:
.Deterring Chinese Illegal Migration to Guam. Record ID: 9903101.
(2 pages)
07/30/1999
P5
001b. memo
For John Podesta from Samuel Berger. Subject: Deterring Chinese
Illegal Migration to Guam. Record ID: 990310 i. (1 page)
04/24/1999
P5
001c. draft
Page 2 of001a. (1 page)
07/1999
P5
001d. draft
Page 1 of001a. (1 page)
07/1999
P5
002a. form
Routing Sheet with Annotations. (1 page)
04/24/1999
P5
002b. form
Photocopy of 002a. (1 page)
04/24/1999
P5
002c. memo
. Duplicate of001b. (1 page)
04/24/1999
P5
002d. draft
Duplicate of001b. (1 page)
04/24/1999
P5
002e. draft
Duplicate of001b. (1 page)
04/24/1999
P5
COLLECTION:
Clinton Presidential Records
NSC Records Management
rGuaml
CLINTON UBRARY PHOTOCOPY
ONBox Number: 2725
FOLDER TITLE:
9903101
Van Zbinden
2006-0193-F
vz1187
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal.personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
·
'
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release. would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutions [(b)(8) ofthe FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) ofthe PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed ·
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�·.J·~·
~
'
-~~ ·~
.
•
.1 . .
:-
< '
~,.
, -·- \Natio~~~ S~curity Council
.· r -~ ·_.
. i'
•
· :'~;- \:fRe White House
'._;·
·_
__;__cs.:.._- D~'.!,..._-..,.SYSTEM f/]p_
NSC I~T ,ARS
LOG#
PROOFED BY: -----,---.:.,.-----'URGENT NOT PROOFED: - - -
....!....'
DOCLOG~
BYPASSED WWDESK: _ _ __
A/0 _ __
I
INITIAUDATE
SEQUENCE TO
®)~vd-3-
1
Rice
@4-fd-~--
Davies
Kerrick
Steinberg
---71---\--\J_~
Berger
Situation Room
Records Mgt.
A = Action
--:-f-01/VI
I = Information ·
D = Dispatch
R = Retain
cc:
·:\
.
Exec Sec Office has
. . .
....
diskette~
j
CLll'lTON UBPJJ.RY PHOTOCOPY
DISPOSITION
_1
+
N = No Further Action
·'
�National Security Council
The White House
PROOFED BY: - - - - - -
LOG#--~--_\,__,()"'--'-\_ __
URGENT NOT PROOFED:----'-
. SYSTEM
BYPASSED WW DESK:----
~S
NSC
DOCLOG
INITIAUDATE
SEQUENCE TO
"· .
/NT
A/0
ARS
----
DISPOSITION
Rice
Davies
@JZF(-cr3 _ _
Kerrick
~+---\J__'-
Steinberg
v:q
Berger
-{---'-0 $J .· +
Situation Room
Records Mgt.
I = Information
cc:
COMMENTS:
~
..,.
. CLINTON UBRAR\' PHOTOCOPY
D = Dispatch
. A = Retain
N = No Further Action
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
FOIA 2006-0193-F - Guam
Identifier
An unambiguous reference to the resource within a given context
2006-0193-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 4
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference