Briefs in as sides gets read to rumble over non-domiciled CDLs

At issue is the February rule that limited the ability of states to issue a CDL to persons who were “not domiciled in the United States, who are almost entirely aliens,” the government respondents, including FMCSA and Secretary of Transportation Sean Duffy, said in its brief filed last week. 

Screening an applicant’s driving history is of “limited utility for applicants who are aliens not domiciled in the United States, because the databases do not contain foreign driving records and States otherwise lack the ability to obtain those foreign driving records,” the government’s brief said. 

But the rule handed down in February, the government brief said, “closes this gap by precluding aliens whose driving history cannot be adequately vetted from obtaining a CDL.”

Part two of the February rule tightened the method a CDL applicant could demonstrate “lawful immigration status” by presenting an active passport or various federal forms. 

It’s in our wheelhouse

The core of the argument presented by FMCSA is that the changes the agency made are “well within FMCSA’s statutory authority to prescribe minimum uniform standards for CDL issuance.”

“Furthermore, FMCSA exercised its authority reasonably,” the agency said. “It documented the safety and administrability concerns that motivated it to act, it addressed those concerns in a rationally tailored manner, and it gave due consideration to important aspects of the problem.”

The lead petitioner in the case, fighting the FMCSA move, is Martin Luther King County in Washington. The lead named individual is one-time truck driver Jorge Lujan. Several unions under the AFL-CIO also are listed as petitioners to the appellate court.

The list of petitioners’ amici seeking to reverse the FMCSA decision–friends of the court–is a long one. It includes a list of cities from Albany to Seattle to El Paso and plenty in between. The Teamsters are in there; so is the Sikh Coalition. 

Beyond its authority

“Congress provided FMCSA with narrowly prescribed rulemaking authority to establish safety and licensing standards for issuing commercial driver’s licenses (CDLs),” the petitioners said in their filing, submitted to the court last month.

But the non-domiciled rule, the petitioners say in their filing, “does not set a safety standard of specific information that a driver must submit before obtaining a CDL. Rather, the rule restricts noncitizens’ eligibility for CDLs to those with specific visas.”

In the process, according to the petitioners, the FMCSA rule “broadly prohibits all other lawfully present noncitizens—asylum seekers, asylees, refugees, and Deferred Action for Childhood Arrivals (DACA) recipients—from obtaining CDLs even though they are eligible to remain and work in the United States.”

The rule will “render ineligible 97% of noncitizens who currently hold a CDL,” the petitioners’ brief said.

The petitioners charge FMCSA with saying the agency “cannot adequately vet the driving histories of the now-ineligible categories of noncitizens. “

“Even if FMCSA’s asserted safety rationale were well supported (it is not), the Rule exceeds FMCSA’s statutory authority,” the petitioners argue in their brief. 

The government does not make an argument that non-domiciled drivers are more dangerous. Instead, it argues that checking their past driving record that has been compiled in another country is effectively impossible. 

That didn’t stop the petitioners from saying that FMCSA is not authored “to render entire categories of persons ineligible on the basis of a population-level proxy for safety.”

“If FMCSA were correct, the agency could limit eligibility for CDLs to persons from particular ZIP codes because those people tend to be safer drivers,” the brief says.

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