Exhibit A Administration that the provision may be implemented in a manner that violates the protection of voting rights under the Fifteenth Amendment and the doctrine of equal protection pursuant to the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment. Any expression of political desire by the Chamorro people must be without any sponsorship by either the Federal government or the Commonwealth government and not under auspices of either government. Section 102(b). Voting to Ratify Commonwealth. Summary of Provision. The subsection provides that "notwithstanding the provisions of" section 102(a), no qualified voter will be deprived of the right to participate in a local referendum to ratify the Commonwealth Act. Current Position. There are concerns because this subsection references section 102(a) and implies an endorsement of the Chamorro-only vote. An amendment to section 102(a) Chamorro Self-Determination, as recommended above, would remove Federal concerns regarding section 102(b). Section 102(c) Federal Programs For Chamorros Summary of Provision. Requires new Federally-funded programs and authorizes the Commonwealth to promote programs targeted toward the enhancement of economic, social and educational opportunities for Chamorros and to protect their language and culture. Current Position. The responsibility imposed upon the United States should not be mandatory. Furthermore, under Adarand Construction v. Pena, 515 U.S. 200 (1995), any benefit provided exclusively to the Chamorro people would likely be subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment, and thus would need to be narrowly tailored to serve a compelling government interest. Finally, any new training programs should be coordinated with existing workforce development programs. Section 102(d) Continued Eligibility Under Existing Programs Summary of Provision. Provides that new programs under 102(c) will not affect eligibility of all minorities under existing programs. Current Position. The Administration supports this provision. Exhibit A Section 102(e) No Impairment of U.S. Citizenship Rights Summary of Provision. Confirms that the Act and the Constitution of Guam do not impair U.S. citizenship or the rights of legally admitted permanent residents. Current Position. This subsection can be eliminated as unnecessary. Section 102(f) Chamorro Land Trust Summary of Provision. Requires the Government of Guam to establish a Chamorro Land Trust for the benefit of indigenous Chamorros, comprised of lands returned to Guam by the U.S. Authorizes return or lease of lands to original owners. Current Position. There are strong concerns that this subsection may be race-based and Section 102(g) Residency Requirements Summary of Provision. Provides that the Commonwealth Constitution shall establish reasonable residency requirements for voting and elective office. Current Position. The Administration would support this provision if it is amended to specify "bona fide" residency and not permit durational requirements which could be longer than the Supreme Court has found to be the maximum permitted by the Constitution. Section 103. Mutual Consent Summary of Provision. Provides that the United States will not modify the Guam Commonwealth Act unless it has the consent of the Government of the Commonwealth of Guam. (There is also a "mutual consent" principle in Section 202). Current Position. The first Special Representative attempted to strike a compromise by proposing that Guam and Congress agree to mutual consent "to the extent constitutionally permissible." The Administration, however, has strong reservations regarding this proposal because of the firm legal conviction that a mutual consent statute cannot preclude the plenary constitutional authority of Congress to enact laws regarding a United Exhibit A States territory. Therefore, it is our considered view that the proposed mutual consent language cannot preclude a future Congress from unilaterally modifying or repealing the Guam Commonwealth Act. Hence, we are concerned that inclusion of the recommended provision -- even with the "to the extent constitutionally permissible” proviso -- risks misleading the people of Guam and others regarding the legal force of the Federal commitment not to modify the Guam Commonwealth Act without the consent of the people of Guam. For this reason, if the proposal is to be used, it is essential that it be made clear to all concerned that the provision is not enforceable. In any event, the Administration is supportive of a statement that the Federal government is committed, as a matter of sound policy and principle, not to alter Guam's Commonwealth status without the consent of the people of Guam. Finally, any mutual consent policy should not go beyond provisions that establish the basic political relationship between Guam and the United States and should not reach ancillary matters (e.g. tax) that the Federal government should be free to alter. TITLE II - APPLICABILITY OF FEDERAL LAW Section 201. Applicability of the United States Constitution. Summary of Provision. In addition to particular provisions of the U.S. Constitution that already apply to Guam, Section 201 provides for the application to the Commonwealth of additional Constitutional provisions: Article IV, section 2, clause 2; Article IV, section 4; the Tenth Amendment; and the first sentence of the Fourteenth Amendment. Current Position. The Administration would support this provision with amendments to Section 202. Effect of Federal Law (Mutual Consent) Summary of Provision. The section provides that no Federal law, rule, or regulation passed after the date of enactment will apply to Guam unless Guam consents. Current Position. The Administration recommends deletion of this provision because it is Exhibit A inconsistent with United States sovereignty over Guam and also contrary to Congress's plenary powers over territories under the Territorial Clause. There are also a number of administrative and jurisdictional concerns regarding the possibility that two sets of potentially conflicting federal standards would need to be enforced: one for Guam and one for the rest of the United States if Guam objected to policies uniformly applied elsewhere. Section 203. Joint Commission. Summary of Provision. Four Guam and three federal officials would form a commission, funded by the U.S., to conduct regular consultations and negotiations with U.S. on all matters affecting the relationship between Guam and the U.S.; to recommend modification of federal laws; and (via last sentence of Sec. 1002) to declare federal property excess. Current Position: The Special Representative had proposed a Joint Commission under Federal control comprised of 3 federal officials and 2 Guam officials which would have three functions: (i) be a forum for regular consultations between the U.S. and Guam; (ii) be an advisory body to recommend modifications in the application of selected federal laws to Guam; and (iii) be a decision-making body in determining the application of selected federal regulations to Guam. While the Administration supports the concept of providing Guamanian officials with a formal mechanism to advise and consider Federal laws and policies regarding Guam, the structure and function of the Joint Commission raises constitutional concerns. In addition, the Administration objects, as a matter of policy, to granting the Commission ultimate decision-making authority to suspend or modify federal policies, whether by statute or regulation, to Guam. Furthermore, a grant of authority to suspend any or all federal regulations is not a technical or trivial matter. The proposal provides the Joint Commission with review power over all manner of federal rules and regulations, even where the subject matter of such regulations is not within the substantive expertise of the members of the Joint Commission. This provision would effectively allow the Joint Commission -- made up of only a handful of U.S. officials and Guamanian officials -- to supplant the knowledge and expertise of entire agencies on particular issues. The Administration believes that various agencies with knowledge and expertise on a particular subject, after proper consultation and advisement by the Joint Commission, should continue to be vested with ultimate authority to enact and apply Federal regulations to Guam. The Administration does not object to a consultative forum between Guam and the Federal government and would support the creation of a Commission in which Guam would have input and representation and which could Exhibit A provide recommendations to Federal agencies regarding the application of Federal policies to Guam. Such a Commission should include representation for the Federal agency or agencies with jurisdiction over the issues being addressed. If such a Commission were created with Guam members and U.S. members, we recommend that each government bear the expense of the Commission's work through a mutually agreeable cost-share agreement. Section 204. Delegation of Authority. Summary of Provision: Congress would authorize the President or his designee to delegate to Governor of Guam total or partial performance of functions now vested in administrative agencies in the Federal Government. Current Position: We recommend that the proposed provision clarify that, if the President elects to delegate authority to the Governor of Guam, the Governor of Guam would not thereby become a federal official. Rather, he would remain a Guamanian official and thus need not be appointed in conformity with the Appointments Clause. In implementing such a designation, there are concerns regarding the application of Federal conflict of interest statutes to Guamanian officials. TITLE III - FOREIGN AFFAIRS AND DEFENSE Section 301. U.S. Authority for Foreign Affairs and Defense. Summary of Provision. The U.S. would have responsibility and authority for foreign affairs and defense that affect the Commonwealth of Guam. Current Position. The Administration would support this provision if the word |