The United States Court of Appeals for the D.C. Circuit opened at 9:40 Tuesday morning and heard Jorge Rivera Lujan v. Federal Motor Carrier Safety Administration as the third case of three. Wendy Liu of Public Citizen argued for Lujan, Aleksei Semenovskii, AFSCME and the American Federation of Teachers. Paul Lawrence argued for King County, Washington, the consolidated petitioner. Simon Jerome of the Justice Department argued for the agency. The panel was Judges Millett, Pillard, and Childs, all three appointed by Democratic presidents, a change from the panel the court had first announced.

The rule under review is the one that took effect March 16: no non-domiciled commercial driver’s license on an Employment Authorization Document alone, no CDL for DACA recipients, asylees, refugees or asylum seekers, and eligibility limited to H-2A, H-2B and E-2 visa holders whose records the State Department is supposed to check. FMCSA estimates that about 194,000 current drivers lose eligibility as their licenses expire. The first version of the rule, the interim final rule of September 2025, was stayed by this same court in November after the agency skipped the statutory consultation with the states and leaned on 12 crashes with no denominator. The agency went back, consulted, and in February published a final rule that dropped the safety claim and rested on two things: states cannot obtain foreign driving records, and state clerks cannot reliably read work authorization documents.

I wrote in July that the final rule was a win worth defending, because the records argument is the argument. Everything I have reported this year about placeholder names, about a Pennsylvania CDL issued to a man with an Interpol notice under his own name, about 124 licenses minted from a restaurant with database access, comes down to whether the state knew who it was licensing and what he had done behind the wheel before. That is the identity thesis, and it is the right one.

On Tuesday, the court said so. “It seems reasonable for the agency to want foreign driver records,” one judge told Liu. “I think everyone agrees a record of dangerous driving is a powerful indicator that you will be a dangerous driver in the future.” When Liu answered that there is no evidence non-citizen drivers are less safe, the bench did not accept the pivot: “Saying you don’t have evidence that this group of people is more dangerous is not really responsive. We still want to know which of the people are going to be dangerous and potentially exclude them.”

That is as good as the agency was going to get, and it was the high point of its morning.

Where it went

The problem is that the rule does not do what the principle says. It does not require a driving record. It bans a category of people, most of whom have a driving record a DMV can read, and then exempts a category of people whose records nobody has shown the government will actually check.

Take the lead petitioner. Jorge Rivera Lujan is a DACA recipient who has lived in the United States since he was two years old. His entire driving history is American. Any DMV can pull it. The rule excludes him anyway, and FMCSA says it has no records. Clerks find his work authorization document confusing. The petitioners’ reply brief calls that rationale “unsupported by data,” and at argument Liu put a number on it: in Pennsylvania, FMCSA found two improperly coded applications out of 150 reviewed. One judge called the agency’s response to that point “utterly non-responsive,” and observed, looking at the I-94 form the rule says clerks misread, that it does not carry an expiration date labeled as such at all.

Then the exemptions. The rule’s theory for keeping H-2A, H-2B and E-2 holders eligible is that a consular officer vets their driving history when the visa is issued, which takes the job off the DMV. The E-2 is an investor visa. It requires a substantial investment in a U.S. business, typically well over $100,000. One judge asked why on earth a consular official adjudicating that application would care about the applicant’s driving record, and called it “freakish” that an investor visa “would somehow be a more reliable indicator of driver records than actual driver records in this country.”

Jerome explained the mechanism: the sponsoring employer files a job description, and if it says the person will drive a tractor-trailer, the consular officer has that in front of him.

“So they only check driving records if the description says they drive a truck?”

The rulemaking, Jerome conceded, did not spell out the labor certification process.

“If the employer doesn’t mention truck driving, would that trigger consular vetting?”

“I don’t know.”

“That’s a huge problem,” the judge said. “How is this remotely a rational proxy if it all depends on whether particular magic words are used by the employer?”

And there is the second problem inside the first. Jerome told the court that an E-2 investor’s employees would be visa-eligible too. Overdrive has already reported an upswing in non-domiciled CDL issuance to visa holders since the State Department resumed issuing them. A rule that excludes a DACA recipient with twenty years of American driving history and admits the employees of any foreign investor who buys a fleet of trucks is not a records rule. It is a status rule with a records label, and the court noticed.

What the court did not need to say

Petitioners’ brief also argues the rule exceeds FMCSA’s statutory authority, incorporating King County’s argument and an amicus brief from 25 members of Congress. The panel spent little time there. It did not have to. Under the arbitrary and capricious standard, the question is whether the agency’s stated reasons connect to what it did, and by the end of the hour both stated reasons had a hole in them: the clerk confusion rationale had a denominator of 150 and a numerator of two, and the records rationale exempted the people it could not vet and excluded the people it could.

The petitioners and the bench between them listed the alternatives the agency never explained rejecting: require a driving record from every applicant, domiciled or not; let states use the federal SAVE system, which they already use, to verify status; issue non-domiciled licenses that expire with the authorization; carve DACA out of the ban entirely. Any one of them would have kept the principle and dropped the category.

What happens now

An opinion will take months. A panel that sounded like this one can vacate the rule, remand it to the agency without vacating it, or sever the pieces it found irrational and leave the rest. Vacatur returns about 194,000 drivers to eligibility as their renewals come due and puts the agency back where it was in November. Remand without vacatur leaves the rule in force while FMCSA rewrites the E-2 mechanism and the EAD rationale, which is the outcome the agency would take if it could. Severance is the wildcard: strike the DACA exclusion and the investor exemption, keep the foreign-record requirement, and you have something close to the rule I would have written.

Here is what I would say to the people at FMCSA who built this, because I have been on their side of it. The identity thesis won Tuesday. The judges gave it to you unprompted. You lost the morning on the parts that were never about identity: a clerk rationale with two bad files in it, and a visa carve-out that nobody in the room could explain. If the rule comes back, write the one the principle actually supports: no commercial license without a readable driving record, from anyone, from anywhere. That rule survives this panel. This one may not.

The court’s minute entry for the day is one page. It lists the judges, the lawyers, and the time the court opened. It does not say how it went. Everyone who sat in the room knows.