Under Section 105 of the Covenant, specified “fundamental provisions”--including Section 303 recognizing people born in the NMI as citizens–“may be modified only with the consent of the Government of the United States and the Government of the Northern Mariana Islands.” 48 U.S.C. § 1801. Thus, the proposed legislation challenges that negotiated agreement by seeking to unilaterally limit the Covenant’s guarantee of U.S. citizenship without the consent of the NMI Government. 

Whether or not Congress can unilaterally amend these “fundamental provisions” of the Covenant without the consent of the NMI government has not been resolved by the federal courts. Over the years, many have expressed concern that the Covenant was adopted as federal statute, part of the U.S. Code as opposed to ratified as a formal treaty.  This opens the possibility that Congress may be able to expand its powers by striking the language in Section 105 requiring mutual consent based on the generally-accepted principle that one Congress cannot bind a future Congress through a federal statute.