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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
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July 28. 1994
.ML\10RA.'NDlJM FOR
THE SPECIAL REPRESENTATIVE
·FOR Gt;A.:\1 COIVL\10NWEALTH ·
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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 "
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been consis!c!ll.: Wr:. thC:reforc: have carefully reexamined !his issue. Our
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·unchhltllt
rhat ihc:s<: clauses raise serious constitutional issues and are legally unenforcca le.'
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In our vie\!. .. it is important that the text of the Guan1 Commonwealth Act 101 create ~~
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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
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�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.)
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~(1\~mnlt::rl!. ri1ay result nec~ssarily from till' facts. that
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jurisdiction ofany panicu!ar state. and is within the power and jlHi..'sdicuon ot
the United States.
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"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.
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�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.
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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.
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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:
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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.
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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).
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�IV
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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
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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
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(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.
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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.
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. 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.
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�.
'
.
.
.
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 ::;
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�..
:<._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.
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�.·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-
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�..
~
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
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�..
.
·,~
:\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
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�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.
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�,•
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
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�·-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-
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�,"\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-
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�•.
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-
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�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
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----
�~
#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
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·
.
:'\ 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
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�'·
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
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�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
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�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
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�---------------------:--:------:----
-·----
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
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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
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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
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�·.
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
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�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
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_..:___
_______ ______
_:___
--.--
--
..
�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
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�..
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
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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
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�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
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�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
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�.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
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�U. S. Department of Justi!:~
.
'
Office of Legal Counsel
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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
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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. ; :
·:
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:
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
.
,
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>
.
•
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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. , .
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C.O.PY
�"-<I Ill)
;
I hope that your negotiation~ with Guam are successful. Again,lf I can
assistance, please let me know.
·
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Sincerely,
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cc: Monon H.a.1peri.h
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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. .
·
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SBC. 103.
MUTUAL CONSRNT.
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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.
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�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
·.
�
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