As part of President Trump’s aggressive action toward immigrants, the Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA) issued a rule stripping the commercial licenses of about 200,000 drivers.
On November 10, however, a three-judge panel of the U.S. Court of Appeals for the District of Columbia issued an administrative stay on implementation of the interim rule, “Restoring Integrity to the Issuance of Non-Domiciled Commercial Drivers Licenses.” The vote from the panel was 2-1, with Circuit Judge Karen LeCraft Henderson dissenting, saying the stay was not warranted.
Later, the court upgraded its decision to a complete emergency stay pending judicial review. The court found that petitioners in the case Rivera Lujan v. FMCSA would “likely succeed” on multiple claims that FMCSA violated federal law and bypassed the usual rulemaking process.
As with many legal rulings, the court argued FMCSA’s process was unlawful and that it did not use the standard rulemaking process, which includes:
1. Notice of Proposed Rulemaking (NPRM): The agency publishes proposed rules in the Federal Register, explaining the problem, proposed solution, legal authority, and regulatory impact analysis.
2. Public Comment Period: The agency must allow at least 30-60 days (often longer for complex rules) for public input. Industry stakeholders, affected individuals, state agencies, safety advocates, and any interested party can submit comments raising concerns, providing data, or suggesting modifications.
3. Agency Response: FMCSA must review and consider all substantive comments, addressing major concerns in the final rule’s preamble. This often results in modifications based on industry feedback or additional data.
4. Final Rule Publication: After considering comments, the agency publishes the final rule with an effective date (typically 30+ days out), giving affected parties time to prepare for compliance.
5. State Consultation: For CDL-related rules, federal law requires FMCSA to explicitly consult with states before establishing standards, a recognition that states administer licensing programs and implement needed coordination.
The process generally takes 6-18 months, during which time it can often uncover unintended consequences of the rule, incorporate all relevant expertise, and allow time to prepare for changes.
In contrast, the FMCSA issued a final rule on non-domiciled drivers before any of these steps were taken. No advance notice was given, no comment period was provided, and states were not consulted. Instead, about 200,000 drivers lost the ability to renew their licenses virtually overnight.
FMCSA did provide a comment period after the rule had gone into effect, which is contrary to the usual process. Over 7,200 comments were submitted, but the rule’s immediate implementation meant drivers faced license denials while the agency debated its merits.
In its defense, the FMCSA said it was an urgent matter to sideline non-domiciled drivers until proper vetting and licensing procedures could be completed. FMCSA has claimed that many states have used questionable processes to vet drivers.
California’s admission that it issued approximately 20,000 non-domiciled CDLs in violation of its own state laws highlighted how verification vetting had failed in some states. FMCSA’s emergency rulemaking identified six states with “substantial” compliance failures: California, Illinois, Nevada, New York, Pennsylvania, and South Dakota. But FMCSA data suggests problems extended beyond those jurisdictions.
These problems, however, were not in question. The problem was the entire process being carried out in such a hasty, haphazard fashion.
In Rivera Lujan v. FMCSA, the petitioners argued that the FMCSA violated legal requirements, including failing to consult the states, providing insufficient emergency justification, engaging in arbitrary and capricious action, and raising concerns about the constitutionality of the rulemaking.
Thus, the November 13 emergency stay order delivered a far more comprehensive analysis. The court didn’t just pause the rule; it found that petitioners would likely prevail on multiple arguments, an essential indicator of judicial dissatisfaction with FMCSA’s process.
Judger Henderson argued that the emergency stay was inappropriate and that the problems should be resolved through a merits review rather than a preliminary injunction. She claimed that FMCSA’s concern about drivers with “unchecked driving histories” operating commercial vehicles was crucial. She cited historical surges in applications when requirements were announced in advance.
Legal experts believe the most likely outcome of the rule is the FMCSA withdrawing or substantially revising it, conducting proper notice-and-comment rulemaking with genuine state consultation, and adopting enhanced verification requirements that apply to both domiciled and non-domiciled licenses rather than abrupt prohibitions.
