Owner-Operator Independent Drivers Ass'n v. United States Department of Transportation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2013 Decided July 26, 2013

No. 12-1264

OWNER-OPERATOR INDEPENDENT DRIVERS ASS’N, INC.,

PETITIONER

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL.,

RESPONDENTS

On Petition for Review of an Order of

the Federal Motor Carrier Safety Administration

Paul D. Cullen, Sr. argued the cause for petitioner. With

him on the briefs were Joyce E. Mayers and Paul D. Cullen,

Jr.

Dana Kaersvang, Attorney, U.S. Department of Justice,

argued the cause for respondents. With her on the brief were

Stuart F. Delery, Principal Deputy Attorney General, Ronald

C. Machen, Jr., U.S. Attorney, Michael S. Raab and Michael

P. Abate, Attorneys, Paul M. Geier, Assistant General

Counsel for Litigation, Federal Motor Carrier Safety

Administration, and Peter J. Plocki, Deputy Assistant General

Counsel for Litigation.

2

Stephan E. Becker and Daron T. Carreiro were on the

brief for amicus curiae The United Mexican States in support

of respondents.

Before: GARLAND, Chief Judge, BROWN, Circuit Judge,

and SENTELLE, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge BROWN.

Dissenting opinion filed by Senior Circuit Judge

SENTELLE.

BROWN, Circuit Judge: The Owner-Operator Independent

Drivers Association (OOIDA), a trade association, challenges

the decision of the Federal Motor Carrier Safety

Administration (FMCSA) to exempt commercial vehicle

operators licensed in Canada or Mexico from certain statutory

medical certification requirements applicable to drivers

licensed in the United States. The FMCSA claims that

applying these requirements to these foreign drivers would

violate existing executive agreements between those two

countries and the United States. OOIDA cares naught for

these agreements, instead relying on generally applicable

statutory text. The question we must answer is whether a

facially unambiguous statute of general application is enough

to abrogate an existing international agreement without some

further indication Congress intended such a repudiation. We

conclude it is not.

I

Under federal law, “[n]o individual shall operate a

commercial motor vehicle without a valid commercial

driver’s license.” 49 U.S.C. § 31302. Individual states issue

3

these licenses, but the federal government specifies

“minimum uniform standards” via regulations contained in 49

C.F.R. Part 383. Id. § 31308; see Int’l Bhd. of Teamsters v.

Peña, 17 F.3d 1478, 1481 (D.C. Cir. 1994). In addition to

obtaining commercial driver’s licenses, U.S. commercial

vehicle operators must receive medical certification verifying

that their “physical condition . . . is adequate to enable them to

operate the vehicles safely.” 49 U.S.C. § 31136(a)(3). For

American drivers, this prerequisite to operating a commercial

vehicle is separate from the process for obtaining a

commercial driver’s license. See 49 C.F.R. § 391.41.

To facilitate trade, the United States has entered into

“executive agreements” with Mexico and Canada for

reciprocal licensing of commercial drivers operating across

national borders. Executive agreements are not quite treaties;

while the latter require Senate ratification, the former carry

the force of law as an exercise of the President’s foreign

policy powers. See Am. Ins. Ass’n v. Garamendi, 539 U.S.

396, 414–15 (2003). In the case of Mexico, a memorandum of

understanding (“MOU”) enshrined some basic principles from

which to structure regulation, including joint recognition of

U.S. commercial driver’s licenses and Mexico’s “Licencia

Federal de Conductor,” acknowledgment by the United States

of its need to imitate Mexico’s system “for including driver

medical qualification determinations” within the licensing

process, and an understanding that drivers “shall be subject to

the applicable laws and regulations of the country in which

they operate such motor vehicles.” The United States

concluded a similar agreement with Canada in 1998, with the

Federal Highway Administration (FHWA) affirming that “the

medical provisions of the Canadian National Safety Code for

Motor Carriers . . . are equivalent to the medical fitness

4

regulations in the [Federal Motor Carrier Safety

Regulations].”

Unlike the American system, which separates medical

certification from the commercial vehicle licensing process,

Mexico and Canada incorporate physical fitness criteria as

part of their licensing regimes. For this reason, the FHWA

treats commercial licenses from these countries as themselves

proof of medical fitness. See Motor Carrier Safety

Regulations: Technical Amendments, 67 Fed. Reg. 61,818,

61,819 (Oct. 2, 2002); Commercial Driver’s License

Reciprocity with Mexico, 57 Fed. Reg. 31,454, 31,455 (July

16, 1992).

For some time, medical certificates could be issued by

anyone “licensed, certified, and/or registered, in accordance

with applicable State laws and regulations, to perform

physical examinations,” 49 C.F.R. § 390.5 (2011), so long as

the examiner was familiar with the physical demands placed

on commercial motor vehicle operators and was “proficient in

the use of” the federal protocols necessary to conduct the

examination. Id. § 391.43(c) (2011). That changed in 2005

with enactment of the Safe, Accountable, Flexible, Efficient

Transportation Equity Act: A Legacy for Users (the “Act”),

Pub. L. No. 109-59, 119 Stat. 1144. Specifically, § 4116 of

the Act, which governs the “Medical program,” requires the

Secretary of Transportation to “establish and maintain a

current national registry of medical examiners who are

qualified to perform examinations and issue medical

certificates” necessary for drivers of commercial motor

vehicles. 49 U.S.C. § 31149(d)(1). The Act further directs the

Secretary to require all commercial vehicle operators “to have

a current valid medical certificate,” id. § 31149(c)(1)(B), and

“accept as valid only medical certificates issued by persons on

5

the national registry,” id. § 31149(d)(3). Section 4116 makes

no mention of the reciprocal agreements with Canada and

Mexico. See 119 Stat. 1726–28, 49 U.S.C. § 31149.

Several years later, the FMCSA proposed a new rule to

effectuate the Act’s call for a national registry of medical

examiners and to implement more stringent training and

testing requirements. See National Registry of Certified

Medical Examiners, 73 Fed. Reg. 73,129 (Dec. 1, 2008).

Under the proposed rule, only those medical certificates

issued by examiners listed on the registry would be accepted

as valid with one key exception: Mexican and Canadian

drivers operating in the United States would “continue to be

governed by the provisions of existing reciprocity agreements

with Canada and Mexico, because they are not in conflict with

49 U.S.C. 31136(a)(3) and 31149.” Id. at 73,131 n.3.

Meaning, only drivers domiciled in the United States would

need to obtain medical certificates from examiners on the

national registry. OOIDA objected during the comment

period, arguing the Act permitted of no such “exemption.”

The FMSCA rejected OOIDA’s complaint in its final rule. See

National Registry of Certified Medical Examiners, 77 Fed.

Reg. 24,104, 24,110–11 (Apr. 20, 2012) (“Final Rule”).

Having filed a petition for review, OOIDA now asks this

Court to set aside that portion of the Final Rule specifying that

the national registry requirements do not apply to the medical

certification of properly licensed Canadian and Mexican

drivers.

II

The Constitution places treaties and federal statutes on

equal legal footing—both are “the supreme Law of the Land.”

6

U.S. CONST. art. VI, cl. 2. Courts therefore approach conflicts

between treaties and statutes the way they would a conflict

between two treaties or two statutes: the more recent legal

pronouncement controls. Whitney v. Robertson, 124 U.S. 190,

194 (1888). This is known as the last-in-time rule. Kappus v.

Comm’r of Internal Revenue, 337 F.3d 1053, 1057 (D.C. Cir.

2003). But though the last-in-time rule tells courts how to

resolve clashes between statutes and treaties, courts prefer to

avoid such conflicts altogether. Thus, we presume that newly

enacted statutes do not automatically abrogate existing

treaties. See South Dakota v. Bourland, 508 U.S. 679, 687

(1993). The same principles govern the Executive Branch

agreements with Mexico and Canada, even though they were

not formal treaties ratified by the Senate. See, e.g.,

Weinberger v. Rossi, 456 U.S. 25, 31 (1982).

In this case, the Act speaks in general yet textually

unambiguous terms. Operators of commercial motor vehicles

must have “a current valid medical certificate,” 49 U.S.C.

§ 31149(c)(1)(B), and only a medical examiner listed on the

“national registry” may issue one, id. § 31149(d). No

exception is made for those drivers living in Canada or

Mexico who operate their vehicles within the United States.

But does such language sufficiently express Congress’s intent

to abrogate the executive agreements with Canada and

Mexico? On this question, the case law is murky. There have

been cases in which ambiguous statutes were interpreted to

preserve preexisting treaties or executive agreements, see,

e.g., Weinberger, 456 U.S. at 28–32, and there have been

cases in which unambiguous statutes expressly overrode

international agreements, see, e.g., Kappus, 337 F.3d at

1057–58. But the parties cite no case of quite this kind: a

textually clear statute with no express reference—or any other

7

indication of its intended application—to conflicting

international agreements.

OOIDA and the government conceptualize the

presumption against implicit abrogation of international

agreements in different ways. OOIDA views it as no more

than an interpretive aid akin to the rule of lenity: applicable

only to choose among multiple possible readings of a textually

ambiguous statute. Cf. Skilling v. United States, 130 S. Ct.

2896, 2932 (2010). The government, on the other hand, sees it

as a clear statement rule demanding that a statute expressly

abrogate an international agreement before the last-in-time

rule applies. Cf. Gregory v. Ashcroft, 501 U.S. 452, 461

(1991) (“[T]he requirement of clear statement assures that the

legislature has in fact faced, and intended to bring into issue,

the critical matters involved in the judicial decision.” (internal

quotation marks omitted)). OOIDA’s interpretation, the

government warns, “call[s] into question the United States’

ability to import and export hundreds of billions of dollars of

goods across its borders.” Resp’ts’ Br. 29. Because judicial

pronouncements have vacillated between these two positions,

we sympathize with the parties’ confusion but ultimately

agree with the government: absent some clear and overt

indication from Congress, we will not construe a statute to

abrogate existing international agreements even when the

statute’s text is not itself ambiguous.

A

Both our precedents and the Supreme Court’s routinely

characterize the presumption against implicit abrogation of

international agreements as a clear statement rule. See Trans

World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243,

252 (1984) (“Legislative silence is not sufficient to abrogate a

8

treaty.”); Weinberger, 456 U.S. at 32 (“We think that some

affirmative expression of congressional intent to abrogate the

United States’ international obligations is required . . . .”);

Washington v. Wash. State Commercial Passenger Fishing

Vessel Ass’n, 443 U.S. 658, 690 (1979) (“Absent explicit

statutory language, we have been extremely reluctant to find

congressional abrogation of treaty rights.”); Cook v. United

States, 288 U.S. 102, 120 (1933) (“A treaty will not be

deemed to have been abrogated or modified by a later statute

unless such purpose on the part of Congress has been clearly

expressed.”); Roeder v. Islamic Republic of Iran (“Roeder I”),

333 F.3d 228, 238 (D.C. Cir. 2003) (“Executive agreements

are essentially contracts between nations, and . . . are expected

to be honored by the parties. Congress (or the President acting

alone) may abrogate an executive agreement, but legislation

must be clear to ensure that Congress—and the

President—have considered the consequences.”); see also

Roeder v. Islamic Republic of Iran (“Roeder II”), 646 F.3d 56,

61 (D.C. Cir. 2011) (expressly describing the presumption as

a “clear statement requirement”). In one case, the Supreme

Court even held an ambiguous treaty provision survived a

later-enacted statute of general scope. See Menominee Tribe of

Indians v. United States, 391 U.S. 404, 406 n.2, 410–12

(1968). 1 And crucially, the Court never deemed this later

1

In Menominee Tribe, the Court also found relevant language

in a related statute enacted by the same legislators that did expressly

preserve existing treaty rights. 391 U.S. at 410–411. Analogously,

we note that § 7105 of the Act expressly subjected Mexican and

Canadian commercial vehicle operators to the same regulatory

requirements drivers based in the United States face—at least with

respect to transporting hazardous material. See 49 U.S.C.

§ 5103a(h). Though not automatically conclusive, this provision

suggests that when Congress wished Mexican and Canadian drivers

9

statute ambiguous; much like the Act, it spoke in clear, albeit

general, terms. See id. at 408; cf. Trans World Airlines, 466

U.S. at 252–53 (holding that Congress’s repudiation of the

gold standard, which offered the unit of account for enforcing

a treaty, did not preclude an agency from continuing to adopt

regulations for the treaty’s enforcement).

That said, there are some choice passages in the case law

bolstering OOIDA’s weaker version of the presumption. See

Whitney, 124 U.S. at 194 (“[C]ourts will always endeavor to

construe” treaties and statutes “so as to give effect to both, if

that can be done without violating the language of

either . . . .”); Fund for Animals, Inc. v. Kempthorne, 472 F.3d

872, 879 (D.C. Cir. 2006) (“Courts apply a statute according

to its terms even if the statute conflicts with a prior treaty (the

last-in-time rule), but where fairly possible, courts tend to

construe an ambiguous statute not to conflict with a prior

treaty (the canon against abrogation).”); see also S. African

Airways v. Dole, 817 F.2d 119, 124–27 (D.C. Cir. 1987).

Taken at their word, these cases suggest that inasmuch as the

Act’s text is clear, the implication for the executive

agreements is not of judicial concern.

What might account for these disparate signals in the case

law? We think much turns on how courts have used the term

“ambiguous” over the years. Historically, a court might deem

a statute ambiguous even if its text was not. See, e.g.,

Albernaz v. United States, 450 U.S. 333, 343 (1981) (“[W]e

are not confronted with any statutory ambiguity. To the

contrary, we are presented with statutory provisions which are

unambiguous on their face and a legislative history which

to submit to U.S. regulatory requirements, it made that intention

clear.

10

gives us no reason to pause over the manner in which these

provisions should be interpreted.” (emphasis added)). These

days, textual clarity is usually dispositive. Dubbing some

statute “ambiguous” means only that its text “is reasonably

susceptible to more than one meaning.” McCreary v. Offner,

172 F.3d 76, 82 (D.C. Cir. 1999). Problem is, when dealing

with the presumption against implicit abrogation of

international agreements, many of the older cases employed

the more capacious concept. For instance, in Trans World

Airlines, the Supreme Court invoked the presumption against

implicit abrogation of international agreements in the face of

“ambiguous congressional action” despite a textually

straightforward statute. 466 U.S. at 252 (emphasis added). 2

Compare Chew Heong v. United States, 112 U.S. 536, 549

(1884) (“The utmost that could be said, in the case supposed,

would be that there was an apparent conflict between the mere

words of the statute and the treaty.” (emphasis added)), with

id. (“[T]he court ought, if possible, to adopt that construction

which recognize[s] and save[s] rights secured by the treaty.”).

Ironically, the word “ambiguous”—being susceptible to

multiple meanings—has itself proven to be ambiguous.

If we are to choose among conflicting dicta, we will opt

for those statements endorsed by the Supreme Court, which

better resemble the government’s position. More than just our

interpretation of the case law, however, supports our

conclusion that the presumption against implicit abrogation is

a clear statement rule. Repudiating an executive agreement

2

The Court then proceeded to examine the legislative history

for some indication of Congress’s desire to abrogate existing

agreements. In this case, for what it is worth, the Act’s legislative

history makes no mention of the executive agreements with Canada

and Mexico, let alone an intention to abrogate them. See, e.g., S.

REP. NO. 109-120, at 22 (2005).

11

raises concerns similar to those that justify other clear

statement rules. We have previously required clear statements,

for example, for “statutes that significantly alter the balance

between Congress and the President.” Armstrong v. Bush, 924

F.2d 282, 289 (D.C. Cir. 1991). OOIDA’s reading of the Act

impinges on the President’s foreign policymaking domain, as

well as the FMCSA’s role in enforcing that prerogative. And,

much like the presumption against extraterritorial effect,

requiring a clear statement rule with respect to implicit

abrogation of international agreements “serves to protect

against unintended clashes between our laws and those of

other nations which could result in international discord.”

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664

(2013) (internal quotation marks omitted); cf. Diggs v. Shultz,

470 F.2d 461, 466 (D.C. Cir. 1972) (refusing to employ the

presumption against implicit abrogation of treaties because

doing so would “raise questions of foreign policy and national

defense as sensitive as those involved in the decision to honor

or abrogate our treaty obligations”). The same wisdom

counsels that we not presume the Act repudiates the executive

agreements with Mexico and Canada sub silentio.

B

OOIDA’s best case is Fund for Animals, which construed

the Migratory Bird Treaty Reform Act (Reform Act) in light

of existing treaties respecting the protection of migratory

birds. See 472 F.3d at 874–77. That statute repudiated an

earlier decision of this Court holding that, pursuant to U.S.

treaty obligations, the Secretary of the Interior could not

exclude the mute swan from protection. See Hill v. Norton,

275 F.3d 98 (D.C. Cir. 2001). Rejecting the complaint that the

new statute should not be understood to violate the

international agreements on migratory birds, Fund for

12

Animals asserted that “the canon of construction that

ambiguous statutes should not be construed to abrogate

treaties . . . . applies only to ambiguous statutes (and as we

have just explained, this statute is not ambiguous).” 472 F.3d

at 878. This language appears to erect precisely the threshold

test OOIDA favors: Look to the statutory text. If it is

unambiguous, ignore any international agreements that may

exist; if it is ambiguous, only then interpret the statute as

consistent with these agreements.

Several considerations dissuade us from elevating this

dictum to a doctrine. First, this weaker version of the

presumption against implicit abrogation conflicts with the

clear statement rule prescribed by Roeder I and II—two cases

that sandwiched Fund for Animals temporally—as well as

past Supreme Court practice. Second, and more importantly,

the statute in Fund for Animals is readily distinguishable. The

Reform Act included a “sense of Congress” provision voicing

disagreement with this Court’s previous interpretation of the

treaty at issue. See id. at 877. Though the provision asserted

that the new statute offered the true interpretation of the treaty

rather than a repudiation of it, it nonetheless showed

Congress’s express desire to abrogate the treaty’s prior

application. And finally, even without the “sense of

Congress” provision, the Reform Act was obviously

remedial—even its title is a dead giveaway. When it comes to

the present case, however, nothing in the Act speaks so

plainly to Congress’s intent to alter the legal landscape.

Though Fund for Animals may have suggested a more

permissive standard, the Reform Act offered precisely the

express indication of congressional intent a clear statement

rule requires.

13

It stands to reason that if Congress or the President

understood the Act to be a repudiation of the federal

government’s obligations to Mexico and Canada, someone

would have said something. But contrary to what the dissent

claims, our decision is directed by a legal presumption, not an

“inquiry into congressional and presidential motives.”

Dissenting Op. 6. We remain, as ever, guided by the text. In

circumstances like this one that demand a clear statement, part

of the textual analysis involves drawing insight from what

Congress chose not to say along with what it did. In reality, it

is not our treatment of the presumption in this case that the

dissent indicts, but all clear statement rules. After all, any

clear statement rule involves an unwillingness to give full

effect to a statute’s unambiguous text. That is how they work.

See Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2878

(2010) (“When a statute gives no clear indication of an

extraterritorial application, it has none.”); Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 237 (1995) (“[S]tatutes do not

apply retroactively unless Congress expressly states that they

do.”); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241

(1985) (holding that a state constitutional provision providing

that “[s]uits may be brought against the State . . . in such

courts as shall be directed by law” was insufficient to

constitute a waiver of Eleventh Amendment immunity

because such a waiver “must specify the State’s intention to

subject itself to suit in federal court”); id. at 242–46 (holding

that remedies under the Rehabilitation Act for violations by

“any recipient of Federal assistance” did not extend to

violations by a State recipient because Congress did not make

“unmistakably clear in the language of the statute” its

intention to abrogate State immunity).

Our invocation of the presumption against implicit

abrogation of international agreements is born of common

14

sense. Our dissenting colleague laments how much “harder”

today’s opinion makes it for Congress to override existing

agreements. Dissenting Op. 4. But inserting a phrase like

“notwithstanding any existing international agreement” into a

bill does not threaten to exhaust legislative resources. Like all

clear statement rules, the one we acknowledge today injects

clarity into the policymaking process. It permits Congress, the

President, the courts, and the public alike to better

comprehend the actual implications of legislation. We

therefore presume the Act was not intended to abrogate the

executive agreements with Mexico and Canada and hold that

the FMCSA’s implementing rules appropriately understood

the medical certificate requirement to apply only to drivers

based in the United States.

III

Having dispensed with OOIDA’s main contention, we

turn now to its secondary argument. In a Wittgensteinian

move, OOIDA attempts to dissolve the controversy

altogether—at least with respect to Mexican drivers 3 —by

contending there is no conflict between the MOU and general

application of the Act’s national registry requirement. OOIDA

invokes the interplay of the MOU’s Articles 3 and 4:

Article 3

3

It is not entirely clear from its reply brief whether OOIDA

thinks its argument on this point can be generalized to the executive

agreement with Canada. See Reply Br. 3 & n.1. Whatever OOIDA’s

intentions may be, it makes no difference. OOIDA devoted the

entirety of its discussion to the language of the MOU, and we need

not address conclusory arguments that receive no further

development. Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855,

869 (D.C. Cir. 2001) (per curiam).

15

Medical Qualification

In recognition of the medical qualification

program for a Licencia Federal de Conductor,

the United States of America shall conduct a

comprehensive study of processes for

including driver medical qualification

determinations within its commercial driver’s

licensing process.

Article 4

Application of Law

U.S. and Mexican drivers of motor

vehicles . . . shall be subject to the applicable

laws and regulations of the country in which

they operate such motor vehicles.

OOIDA draws two inferences from this language: first, the

MOU does not dictate “how either country must deal with

medical qualifications or certification of those qualifications”;

and second, “Article 4 of the MOU specifically provided that

driver qualifications are to be determined by the laws of the

country in which they operate.” Pet’r’s Br. 16. OOIDA thus

concludes that requiring Mexican drivers to obtain medical

certificates from examiners on the national registry is

consistent with the MOU.

OOIDA’s theory flatly ignores Article 2 of the MOU,

which specifies that each country “shall require drivers,

licensed pursuant to its authority, to . . . meet its established

medical standards.” Article 2 also provides that “all

Commercial Driver’s Licenses and Licencias Federales de

Conductor issued pursuant to” this requirement “shall be

16

given complete recognition and validity by Federal and State

authorities in both countries.” Thus, the MOU explicitly

requires (1) that Mexican drivers licensed in Mexico must

meet Mexico’s medical standards, and (2) that the United

States must recognize Mexican licenses, which themselves

certify that their holders have satisfied those medical

standards.

In response to this fairly conclusive language, OOIDA

advances a tortured distinction between meeting “established

medical standards” and possessing certification of that fact. In

other words, Article 2 may require that Mexican drivers

satisfy Mexican medical standards, but a medical examiner on

the U.S. national registry must separately certify that fact—or

so OOIDA believes. Its reading is implausible. The United

States cannot accord Mexico’s Licencia Federal de Conductor

“complete recognition and validity” if it refuses to

acknowledge the medical fitness certification role the license

plays. And certification is itself a part of satisfying

“established medical standards.”

Even were the MOU’s text insufficiently clear, we draw

insight from the 1992 FHWA rule, which, in implementing

the MOU, treated the Licencia Federal de Conductor as

certification of medical fitness. See Commercial Driver’s

License Reciprocity with Mexico, 57 Fed. Reg. at 31,455.

OOIDA acknowledges FHWA’s longstanding interpretation

but believes it irrelevant to understanding the terms of the

MOU. Not so. “Although not conclusive, the meaning

attributed to treaty provisions by the Government agencies

charged with their negotiation and enforcement is entitled to

great weight.” Sumitomo Shoji Am., Inc. v. Avagliano, 457

U.S. 176, 184–85 (1982); see Kolovrat v. Oregon, 366 U.S.

187, 194 (1961). Mexico’s government sees things similarly,

17

see Br. for Amicus Curiae the United Mexican States 6–7, and

the postratification understandings of signatory nations to a

treaty are an additional interpretive aid, see Medellín, 552

U.S. at 507. These principles of treaty interpretation apply all

the more strongly to executive agreements, where no

potentially competing Senate view must be considered. We

reject OOIDA’s efforts to find consistency between the MOU

and application of the Act to Mexican drivers.

IV

For the foregoing reasons, the petition for review is

Denied.

SENTELLE, Senior Circuit Judge, dissenting: The

majority concedes that the statute at issue is capable of only

one interpretation, yet it reaches a result that it concedes is

inconsistent with that interpretation. Because we lack

authority to rewrite Congress’s statutes, I respectfully dissent.

The Supremacy Clause of the Constitution provides that

“[t]his Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land.” U.S. Const. art. VI,

cl. 2. The rule of priority contained in the Supremacy Clause

is straightforward: The Constitution trumps those statutes and

treaties which are inconsistent with it. See, e.g., Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 180 (1803); Reid v. Covert,

354 U.S. 1, 16–17 (1957). If statutes or treaties are

inconsistent with other statutes or treaties, the last-in-time rule

applies, and the most recent statute or treaty controls. See,

e.g., Breard v. Greene, 523 U.S. 371, 376 (1998) (per

curiam); Covert, 354 U.S. at 18; Whitney v. Robertson, 124

U.S. 190, 194 (1888). Where a statute potentially conflicts

with a prior treaty, “an ambiguous statute should be construed

where fairly possible not to abrogate a treaty.” Fund for

Animals, Inc. v. Kempthorne, 472 F.3d 872, 878 (D.C. Cir.

2006) (citing Trans World Airlines, Inc. v. Franklin Mint

Corp., 466 U.S. 243, 252 (1984)).

With these fundamental precepts in mind, this case ought

to be simple. In the 1990s, the executive branch made

agreements with Mexico and Canada that exempted Mexican

and Canadian commercial drivers from a Department of

Transportation (“DOT”) regulation that all commercial

drivers operating commercial vehicles in the United States

must have a current medical certification. In 2005, Congress

passed and the President signed a law requiring all

2

commercial motor vehicle operators in the United States “to

have a current valid medical certificate” “issued by persons

on” a newly-created “national registry of medical examiners.”

49 U.S.C. § 31149(c)(1)(B), (d)(3).

Under the statute, then, all commercial drivers, including

Mexican and Canadian drivers, need a medical certificate

issued by an examiner on the national registry to operate

commercial motor vehicles in the United States. But the

DOT’s promulgated rule, relying on the prior agreements,

exempts Mexican and Canadian drivers from this statutory

requirement.

Because the statute is last-in-time and clearly inconsistent

with the earlier international agreements, the statute governs.

The DOT rule at issue here would permit Mexican and

Canadian drivers to operate commercial vehicles in the United

States without following the statutory requirements of

§ 31149. It is therefore our obligation to grant the petition for

review and vacate this unlawful rule.

The majority concedes that the statute is unambiguously

inconsistent with the prior international agreements. The

majority expresses worry about congressional intent, but

given that Congress has passed statutory text that the majority

concedes is inconsistent with the prior agreements,

Congress’s intent is no great mystery. Its statute contradicts

the prior rule. That should be the end of the matter, for

“courts must presume that a legislature says in a statute what

it means and means in a statute what it says there.” Conn.

Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992). But the

majority goes on to justify elevating the prior agreements

above the statutory text by manufacturing a heightened clear

statement requirement not found in the Constitution, the

Supreme Court’s precedents, or this court’s precedents.

3

First, the Constitution: “Distorting statutory language

simply to avoid conflicts with treaties would elevate treaties

above statutes in contravention of the Constitution.” Fund for

Animals, 472 F.3d at 879. Yet the court’s decision today goes

beyond distorting statutory language and abrogates it

altogether. The court concedes that there is no other plausible

interpretation of the statute, but then it goes on to hold that

Congress must use some additional magic words to give the

admittedly clear statute effect.

It has long been understood that the Supremacy Clause

places treaties and statutes on equal footing, which is why

courts have always evaluated conflicts between treaties and

statutes using the last-in-time rule. The court’s holding today

elevates treaties above statutes by making it more difficult for

Congress to abrogate prior treaties than prior statutes. The

political branches can overrule a prior statute by enacting a

new statute inconsistent with the old one. See, e.g., Nat’l

Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.

644, 662–63 (2007); Posadas v. Nat’l City Bank, 296 U.S.

497, 503 (1936). Both the Supreme Court and this court have

explained that this rule should apply identically to conflicts

between a statute and a treaty. See Chew Heong v. United

States, 112 U.S. 536, 549–50 (1884); S. African Airways v.

Dole, 817 F.2d 119, 126 (D.C. Cir. 1987). Thus, the Supreme

Court has explained: “The Constitution gives [a treaty] no

superiority over an act of Congress in this respect, which may

be repealed or modified by an act of a later date.” The Head

Money Cases, 112 U.S. 580, 599 (1884). The court today

requires the political branches to do more to overrule prior

treaties and international agreements than they would need to

do to overrule prior statutes. There is no warrant in the

Supremacy Clause for this result.

4

This result is especially troubling because the Supremacy

Clause does not expressly encompass international

agreements of the type at issue here. It is undisputed that the

agreements before us were not entered pursuant to the

Constitution’s Treaty Clause. See U.S. Const. art. II, § 2, cl. 2

(giving the President “Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two thirds

of the Senators present concur”). Nor are they “Laws of the

United States” enacted through bicameralism and

presentment. See id. art. I, § 7, cl. 2. See generally Bradford

R. Clark, Separation of Powers as a Safeguard of Federalism,

79 Tex. L. Rev. 1321, 1334–36 (2001). The Mexican

agreement was made between the U.S. Secretary of

Transportation and the Mexican Secretary of Communications

and Transportation, while the Canadian “agreement” was

contained in letters exchanged between two transportation

bureaucrats in the United States and Canada. If “[d]istorting

statutory language simply to avoid conflicts with treaties

would elevate treaties above statutes in contravention of the

Constitution,” Fund for Animals, 472 F.3d at 879, distorting

statutory language to avoid conflicts with international

agreements even more obviously contravenes the

Constitution.

It is now harder for Congress to overrule two letters

exchanged between mid-level administrative functionaries

than it would be for Congress to overrule a statute passed by a

majority of the people’s representatives and signed by the

President. Nothing in the Constitution justifies transferring

the people’s right to govern themselves to Transport Canada’s

Director General of Road Safety and Motor Vehicle

Regulation and an Associate Administrator in the U.S.

Department of Transportation’s Federal Highway

Administration Office of Motor Carriers. Ours is a

government of laws, not of bureaucrats.

5

Second, the Supreme Court’s precedents: The majority

does not dispute that no Supreme Court decisions require a

clear statement rule. In all the Supreme Court cases relied

upon by the majority in which the Court found no abrogation,

the Court held that the relevant statutory text was ambiguous.

For instance, in Trans World Airlines, there was no direct

conflict between the treaty and the statute, so the Court

refused to find abrogation given that the statute did not speak

to the question at issue. 466 U.S. at 252. Cook v. United

States emphasized that prior practice under the treaty could

resolve only “doubt as to the construction of the” statute. 288

U.S. 102, 120 (1933) (emphasis added). Weinberger v. Rossi

found no abrogation because the crucial word at issue was

ambiguous. 456 U.S. 25, 29–36 (1982).

By contrast, the statute in this case is “textually

unambiguous,” as the majority concedes. Maj. Op. at 6. The

Supreme Court has spelled out our role in such circumstances:

“When the words of a statute are unambiguous, . . . th[e] first

canon[, that a legislature says in a statute what it means and

means in a statute what it says there] is also the last: judicial

inquiry is complete.” Germain, 503 U.S. at 253–54 (quoting

Rubin v. United States, 449 U.S. 424, 430 (1981)) (internal

quotation marks omitted). The Supreme Court long ago made

clear that “when a law is clear in its provisions, its validity

cannot be assailed before the courts for want of conformity to

stipulations of a previous treaty not already executed.”

Whitney, 124 U.S. at 195. A treaty “‘made by the United

States with any foreign nation . . . is subject to such acts as

Congress may pass for its enforcement, modification, or

repeal.’” Id. (quoting Head Money Cases, 112 U.S. at 599).

Because we are governed by Supreme Court precedents, and

the text of the statute is clear, I would go no further.

6

Third, this court’s precedents: The court’s new clear

statement rule contradicts our own precedents. Never have

we refused to find abrogation of a prior agreement where a

later statute was clearly inconsistent with the agreement. In

fact, as discussed, we have explicitly held that we do not

“distort the plain meaning of a statute in an attempt to make it

consistent with a prior treaty.” Fund for Animals, 472 F.3d at

879 (emphasis omitted).

Before today, our circuit’s law was that where we have

an “unambiguous statutory mandate,” the prior international

agreement must give way. Dole, 817 F.2d at 125 n.2; see

Fund for Animals, 472 F.3d at 879. Quoting the Supreme

Court, we have called it “wholly immaterial to inquire”

whether Congress departed from the prior agreement “by

accident or design.” Dole, 817 F.2d at 126 (quoting Whitney,

124 U.S. at 195) (emphasis omitted). Yet the majority uses

the international agreements as the governing rule even while

acknowledging that the later statute is unambiguous simply

because it is unsure whether Congress and the President really

meant to abrogate the agreement. See Maj. Op. at 12. In

doing so, the majority departs from our precedents and

fashions an inquiry into congressional and presidential

motives.

As we recently recalled, a statutory canon of

interpretation serves merely as “an interpretive aid, not an

invitation to rewrite statutes.” Ass’n of Am. R.Rs. v. Dep’t of

Transp., No. 12-5204, slip op. at 14 n.7 (D.C. Cir. July 2,

2013). Accordingly, we have applied the canon against

abrogation of a prior agreement only where the later statute

was ambiguous in relevant respects, and we have always

emphasized the statute’s ambiguity. See, e.g., Roeder v.

Islamic Republic of Iran, 333 F.3d 228, 238 (D.C. Cir. 2003)

(emphasizing that “the legislation itself is silent” on the

7

precise point of conflict between the statute and the prior

agreement); Roeder v. Islamic Republic of Iran, 646 F.3d 56,

61 (D.C. Cir. 2011) (“An ambiguous statute cannot supercede

an international agreement if an alternative reading is fairly

possible.” (emphasis added)). The majority concedes that the

statute here is unambiguous. Therefore, the cases on which it

relies are all distinguishable. “The language of the statute is

entirely clear, and if that is not what Congress meant then

Congress has made a mistake and Congress will have to

correct it.” Conroy v. Aniskoff, 507 U.S. 511, 528 (1993)

(Scalia, J., concurring in the judgment).

Of course, it appears that nothing in the statute would

prohibit the DOT from adding Mexican or Canadian doctors

to the new national registry. Further, the United States could

choose to enter into new agreements with Mexico or Canada

that would address these issues.

The court’s opinion today departs from the precedents of

the Supreme Court and this circuit, and is not founded in the

Constitution. I respectfully dissent.