*1 Cаrdiovas Fresenius Med. Care nity. Cf. INDEPENDENT OWNER-OPERATOR Res., Car v. P.R. & Caribbean Inc.
cular ASS’N, INC., (1st Petitioner DRIVERS Corp., 322 F.3d diovascular Ctr. Cir.2003) (“It every bit as much would be dignity the state’s fiscal an affront to DEPARTMENT UNITED STATES find erro a federal court to were
interests TRANSPORTATION, et OF entity an arm of the that an was neously al., Respondents. state, state not structure the when the did sovereignty.”). its to share entity 12-1264. No. opportunity had State of California interest when dignity or financial Appeals, claim United States Court submit an invited it to the Commission District of Circuit. Columbia Depart the Port explaining amicus brief Argued May 2013. law, under state but nowhere ment’s status interest in Oak any State assert did the July Decided immunity strong signal Cali land’s —a view the Port
fornia does not suits sovereign to its
Department as threat Estates, Inc., Country Lake
interests. Cf.
(looking
immunity on bi-state Auth., Area Transit
Wash. Metro. (D.C.Cir.1986) (similar). 218, 224-25
Indeed, spoke only after up the State so, affirmatively asked it to do
Commission filed fell silent after Oakland
and it and, telling
petition for review. This is
think, rights representative Oakland’s tidelands. responsibilities
Ill stated, peti- Oakland’s
For the reasons review is
tion for
Denied. *2 Cullen,
Paul D. argued Sr. the cause for petitioner. With him on the briefs were Joyce Mayers Cullen, E. and Paul D. Jr. Dana Kaersvang, Attorney, Depart- Justice, ment of argued the cause for re- spondents. With her on the brief were Delery, Stuart F. Principal Deputy Attor- General, ney Machen, Jr., Ronald C. Attorney, Michael S. Raab and Michael P. Abate, Geier, Attorneys, Paul M. Assistant General Counsel for Litigation, Federal Safety Administration, Motor Carrier Plocki, Peter J. Deputy Assistant General Litigation. Counsel for Stephan E. Becker and Daron T. Carrei- ro were on the brief amicus curiae The States in support of re- spondents. 31136(a)(3). drivers, this For American GARLAND, Judge, Chief
Before: ve- оperating commercial prerequisite BROWN, Judge, Circuit for ob- SENTELLE, Judge. process from the separate Circuit hicle is Senior *3 license. See driver’s taining a commercial by filed Circuit court Opinion for the § 391.41. C.F.R. Judge BROWN. trade, the United To facilitate by filed Senior Dissenting opinion agree entered into “executive States has Judge SENTELLE. Circuit recip Mexico and Canada ments” with BROWN, Judge: Circuit oper licensing of commercial drivers rocal Executive national borders. ating across Driv- Independent Owner-Operator treaties; while quite are not (OOIDA), a trade associa- Association ers ratification, the Senate require the latter of the Federal tion, the decision challenges law as an exer carry the forсe of former Safety Administration Motor Carrier foreign policy pow (FMCSA) vehicle cise of the President’s exempt commercial Garamendi, or Mexico in Canada Ins. Ass’n v. operators licensed ers. See Am. medical certification 396, 414-15, from certain drivers licensed Mexico, requirements applicable In the ease L.Ed.2d 376 The FMCSA claims (“MOU”) States. in the United understanding memorandum of to these requirements these applying principles enshrined some basic existing exec- would violate foreign drivers regulation, including which to structure those two coun- between utive driv of U.S. commercial joint recognition cares States. OOIDA tries and the United “Licencia Feder licenses and Mexico’s er’s rely- instead agreements, fоr these naught Conductor,” acknowledgment by the al de statutory text. applicable generally ing imitate Mexi of its need to United States answer is whether a we must question medical system including “for driver co’s general ap- unambiguous statute facially the li determinations” within qualification existing enough plication understanding and an censing process, without some fur- agreement appli subject that drivers “shall such a Congress intended ther indication regulations country cable laws and it is not. conclude repudiation. We motor vehi they operate in which such States concluded a sim cles.” The United I in with with Canada ilar law, individual shall “[n]o Under federal Highway Administration the Federal with motor vehicle operate a commercial (FHWA) provi that “the medical affirming license.” commercial driver’s out a valid Safety National sions of the Canadian Individual states issue U.S.C. ... equiva for Motor Code Carriers licenses, government the federal but these regulations fitness in lent to the medical via uniform standards” specifies “minimum Safety Regula Motor Carrier [Federal in 49 Part contained C.F.R. regulations tions].” 31308; see Int’l Bhd. Team 383. Id. sep- system, the American Unlike (D.C.Cir. Peña, 17 F.3d sters v. certification from the com- arates medical 1994). obtaining commercial In addition Mexico licensing process, vehicle mercial licenses, vehicle U.S. commercial driver’s physical fitness incorporate and Canada certifica must receive medical operators regimes. liсensing of their part criteria as condition “physical that their verifying reason, the FHWA treats com- For this operate them to ... to enable adequate from these countries as mercial licenses 49 U.S.C. safely.” vehicles 2008). proof of medical the proposed rule, themselves fitness. Under Tech- Safety Regulations: Motor Carrier those medical certificates issued exam- Amendments, 61,818, Fed.Reg. nical iners on the registry listed would be ac- (Oct. 2, 61,819 2002);, Driver’s Commercial cepted with key exception: as valid one Mexico, Reciprocity License Fed. Mexican and Canadian operating drivers 31,455 81,454, 16,1992). (July Reg. the United States would to be “continue governed provisions of existing reci- time, For some medical certifiсates procity agreements with “licensed, Canada and Mexi- by anyone certi- could be issued co, they are fied, because not in registered, conflict with 49 accordance and/or *4 31136(a)(3) 73,- applicable State laws and to U.S.C. and 31149.” regulations, Id. at examinations,” perform physical Meaning, 49 C.F.R. 131 n. 3. only drivers domiciled (2011), § so long 390.5 as the examiner in the States United would need to obtain physical was familiar the demands medical certificates from examiners on the placed opera- commercial on motor vehicle national OOIDA registry. objected during “proficient of’ tors and was in the use the period, arguing per- comment the Act (cid:127) protocols necessary federal to conduct the mitted such “exemption.” of no 391.43(c) (2011). § Id. That examination. rejected FMCSA OOIDA’s in complaint 2005 changed in with enactment final rule. See National Registry Certi- Safe, Accountable, Flexible, Efficient Examiners, 24,- Medical 77 Fed.Reg. fied Transportation Equity Legacy Act: A for 104, 24,110-11 20, 2012) (“Final (Apr. (the “Act”), 109-59, Users Pub.L. 119 No. Rule”). Act, § Specifically, Stat. 1144. 4116 of petition review, Having filed OOI- governs the “Medical re- program,” DA now asks Court to set aside quires Secretary Transportation portion Final Rule specifying “establish and maintain a current registry requirements the national not do medical registry of examiners who are apply to medical prop- certification of qualified perform and examinations is- erly licensed Canadian driv- and Mexican necessary sue medical certificates” ers. drivers of commercial motor 49 vehicles. 31149(d)(1). § U.S.C. The Act di- further II Secretary rects the to require all commer- operators cial vehicle “to have a current places The Constitution treaties certificate,” valid medical id. and equal federal statutes on foot legal 31149(c)(1)(B), “accept and as valid ing supreme are “the Law of —both Const, medical on by persons certificates issued VI, Land.” art. cl. 2. Courts 31149(d)(3). registry,” the national id. approach therefore conflicts between trea Section 4116 makes no the re- mention of way they ties and statutes would ciprocal agreements with Canada and conflict two stat between treaties or two Mexico. See 119 Stat. U.S.C. legal utes: the more recent pronounce § 31149. Robertson, ment Whitney controls. L.Ed. later, years pro-
Several
the FMCSA
(1888).
is known as the
This
last-in-time
posed a
rule
new
to effectuate the Act’s
Kappus
rule.
Comm’r
Internal Reve
registry
call for a national
ex-
of medical
nue,
(D.C.Cir.2003).
implement
stringent
aminers and to
more
But
the last-in-time
tells
training
testing requirements.
though
and
-See
Registry
National
Medical
courts
to resolve clashes
stat
how
between
of Certified
(Dec.
Examiners,
73,129
treaties,
73 Fed.Reg.
utes
courts
avoid
prefer
(2010).
Thus,
pre-
L.Ed.2d
altogether.
such conflicts
-
hand,
sees
as
newly
government,
statutes do not
the other
enacted
sume
existing treaties.
demanding
automatically
a clear statement rule
Bourland, 508 U.S.
Dakota v.
South
expressly abrogate
ambiguous statutes
A
or executive
preserve
preexisting
see, e.g., Weinberger, 456 U.S.
agreements,
precedents
Supreme
Both our
n
1510,
there
at
102
have
S.Ct.
routinely
pre
Court’s
characterize
unambiguous
statutes
been cases which
abrogation of
sumption against implicit
in
agree
expressly overrode international
clear
agreements
ternational
as a
state
ments, see,
biguous; much it spoke like the (“[W]e clear, any are not with confronted statu- albeit general, terms. See id. at 1705; tory ambiguity. contrary, 88 S.Ct. Trans World Air- To the we are cf. lines, presented provisions U.S. at S.Ct. 1776 with which (holding Congress’s repudiation that unambiguous face legis- on their and a standard, gold which the unit offered history no gives lative which us reason to enforcing treaty, account for did not over the in which pause manner these agency continuing to preclude interpreted.” should provisions (empha- adopt regulations treaty’s for the enforce- added)). days, clarity These textual sis ment). usually dispositive. Dubbing some statute “ambiguous” only that said, mеans its text “is
That
pas-
there are some choice
reasonably
to
sages
susceptible
in the
more than one
bolstering
case law
presumption.
meaning.” McCreary Offner,
weaker version of the
See
Tribe,
1.
Menominee
the Court also found
ments drivers based in
United States
respect
transporting
relevant
in a related statute
face—at
least with
enacted
legislators
expressly pre-
the same
did
hazardous
material.
49 U.S.C.
5103a(h).
existing treaty rights.
Though
automatically
serve
Several rules. considerations dissuade us all, any After clear statement rule elevating First, involves this dictum to a doctrine. an unwillingness give full effect this weaker to a version of the presumption statute’s unambiguous text. That is implicit abrogation how conflicts with they work. See the clear Morrison v. statement Nat’l Austl. prescribed by Ltd., Bank Roeder I and II —two cases that S.Ct. sand- (2010) (“When 177 L.Ed.2d wiched Fund temporally Animals —as gives statute no cleаr well as indication of an ex past Supreme practice. Sec- ond, application, none.”); traterritorial and more it importantly, the has Farm, Inc., Plaut v. Spendthrift readily Animals is distinguish- able. The Reform Act L.Ed.2d 328 included “sense (1995) (“[Statutes do apply Congress” provision retroac voicing disagree- tively unless Congress expressly ment with states previous this Court’s interpreta- do.”); they Atascadero treaty Hosp. tion of the State at issue. See id. Scanlon, Though provision asserted that 87 L.Ed.2d.l71 (holding
new statute that a offered the true state interpretation constitutional provision providing rather than a repudiation of “[sjuits it, may be brought against the State Congress’s nonetheless showed ex- ... in such courts as shall be press desire to directed treaty’s law” was insufficient to application. constitute a waiver finally, And even without the of Eleventh immunity Amendment Congress” “sense of because provision, the Reform *8 such a waiver “must specify Act the State’s obviously was remedial —even its title subject intention to itself to suit in giveaway. is a dead When it comes to the federal court”)-, case, however, id. at present S.Ct. 3142 nothing the Act (holding that remedies under the speaks plainly so Rehabili Congress’s to intent to tation Act by “any for violations legal recipient alter the landscape. Though Fund of Federal assistance” Animals have did not extend to suggested a more standard, permissive recipient violations a the Reform because Act of- ..State preсisely Congress fered the did not express “unmistakably indication make of congressional intent a clear in the language clear statement rule of the statute” its requires. intention abrogate to State immunity).
It stands to reason Our that if invocation of presumption the President understood the Act against implicit abrogation to be a of international repudiation of the government’s federal is born of common sense. Our obligations Canada, to Mexico and some- dissenting colleague laments how much Application Law opinion makes it of today’s for Con-
“harder” existing agreements. gress to override of motor vehi- and Mexican drivers inserting But at 241. a Dissenting Op. to subject applica- ... shall cles be any “notwithstanding existing phrase like country regulations ble laws and into a bill does agreement” they vehi- operate in which such motor legislative re- to exhaust not threaten cles. rules, all clear statement sources. Like this OOIDA draws two inferences from today injects acknowledge clar- the one we first, the MOU does not dictate language: process. per- into It ity policymaking deal medi- country “how either must President, courts, Congress, mits cal certification of those qualifications or comprehend alike and the to better public second, qualifications”; and “Article legislation. We implications the actual specifically provided that driver MOU the Act was intend- presume therefore qualifications to be determined to ed executive they operate.” in which country laws of and hold that the with Mexico and Canada Pet’r’s Br. 16. OOIDA thus concludes rules implementing appropriate- FMCSA’s medi- requiring Mexican drivers obtain ly the medical certifícate re- understood cal certificates examiners on the na- quirement apply only to drivers based in registry tional is consistent with the MOU. the United States. flatly ignores Article 2 theory OOIDA’s MOU, specifies which that each Ill drivers, country require “shall licensed dispensed with Having pursuant authority, to its to ... meet its contention, we main turn now its sec standards.” Article established medical ondary Wittgensteinian In a argument. provides “all Driver’s also Commercial move, attempts to dissolve the OOIDA Licenses Licencias Federales de Con- controversy altogether least with re —at pursuant require- ductor issued to” this spect by contending Mexican drivers3 — given complete ment recognition “shall there is no conflict between MOÚ validity by Federal and State authori- general of the Act’s national application Thus, in both countries.” ties MOU OOIDA'invokes the registry requirement. (1) explicitly requires that Mexican drivers interplay thé Articles 3 and 4: of MOU’s must Mexico’s licensed Mexico meet Article 3 standards, and that the United medical Qualification Medical licenses, must recognize States qualifica- In medical recognition certify that their holders themselves for Licencia Federal de program have satisfied those medical standards. Conductor, the Unitеd States America study shall comprehensive fairly conduct lan- response conclusive processes driver including medical guage, OOIDA advances tortured dis- qualification within determinations meeting tinction between “established *9 process. licensing commercial driver’s possessing certifi- medical stándards” words, Article 4 cation of that fact. In other Article entirely reply tirety It to the of the is not clear from brief its discussion MOU, argument conclusory whether on this and we need not OOIDA thinks its address point generalized arguments develop- can to the executive that receive no further be EPA, Reply Recycling See Br. 3& ment. Cement Kiln Coal. v. Canada. be, 855, (D.C.Cir.2001) (per n. 1. cu- Whatever intentions 869 OOIDA’s riam). makes difference. devoted the en- no OOIDA
239 may require satisfy. 2 that Mexican drivers IV standards, medical but a medical reasons, For foregoing the petition registry on the U.S. examiner for review is separately certify fact—or so must Denied. reading implausi- believes. Its OOIDA The United States- cannot accord
ble. SENTELLE, Judge, Senior Circuit Licencia de Conductor Mexico’s Federal dissenting:
“complete recognition
validity”
if it
majority
concedes that the statute
to acknowledge
refuses
the medical fitness
capable
at issue is
one interpreta-
plays.
certification role the license
And tion, yet it reaches a result that it concedes
satisfying
certification is itself a
part
is inconsistent with that
interpretation.
“established medical standards.”
authority
we
Because
lack
to rewrite Con-
statutes,
gress’s
respectfully
I
dissent.
Even were the MOU’s text insuffi
The Supremacy
Clause
Constitu
clear,
ciently
insight
from the
draw
provides
Constitution,
tion
that “[t]his
rule, which, in
1992 FffWA
implementing
the Laws of the
States
United
which shall
MOU,
treated the Licencia Federal de
thereof;
made in
be
Pursuance
and all
of medical
Conductor as certification
fit
made,
made,
Treaties
or which shall be
ness.
Commercial Driver’s License
Authority
under the
Mexico,
Reciprocity
Fed.Reg.
57
supreme
shall be the
Law of the Land.”
31,455.
acknowledges
OOIDA
FHWA’s
Const,
VI,
art.
cl. 2. The
rule of
but
longstanding interpretation
believes it priority contained in the Supremacy
understanding
irrelevant
terms of
straightforward:
Clause
Constitu
“Although
Not
the MOU.
so.
conclu
trumрs
those statutes and treaties
sive,
treaty
meaning
pro
attributed
See,
are
inconsistent with it.
e.g.,
agencies
visions
the Government
(1 Cranch)
Madison,
Marbury v.
5 U.S.
charged with their
and en
negotiation
137, 180,
(1803);
Covert,
L.Ed.2d 218
Mexico’s
Greene,
v.
Breard
523 U.S.
Br.
things similarly,
sees
for Amicus
see
(per
L.Ed.2d
Curiae
United Mexican States
and curiam); Covert,
U.S. at
postratification understandings
sig
1222;
Robertson,
Whitney v.
natory
treaty
nations to a
an additional
(1888).
competing (D.C.Cir.2006) Senate must be view consid (citing Trans World Air lines, reject We efforts ered. to find Mint Corp., Franklin Inc. *10 1776, consistency applica between the MOU and 80 L.Ed.2d S.Ct. (1984)). of the Act tion to Mexican drivers. in a says in statute what it means and means precepts fundamental these
With says in a it there.” mind, ought simple. to be In the statute what Conn. case this Germain, 1990s, agree- branch made Nat’l 253- the executive Bank v. (1992). and Canada that ex- Mexico 117 L.Ed.2d ments with majority goes justify and Canadian commercial But the оn to elevat- empted Mexican Department Transporta- ing prior from a above drivers the statu- (“DOT”) regulation that all commer- tory text by manufacturing heightened commercial vehicles operating cial requirement drivers clear found in statement must current in States have a Constitution, the United Supreme Court’s Congress medical certification. precedents, precedents. or this court’s President a law passed signed and the First, “Distorting stat- Constitution: op- vehicle all commercial motor requiring utory simply to avoid conflicts States “to have erators in the United with treaties would elevate treaties above medical certificate” “issued current valid statutes contravention Constitu- newly-created “nаtional by on” a persons tion.” at 879. registry of medical examiners.” U.S.C. today goes Yet the beyond court’s decision (d)(3). 31149(c)(1)(B), distorting statutory language and abro- then, statute, all commercial Under the court gates altogether. The concedes drivers, including and Canadian plausible that other interpreta- there is no drivers, medical certificate issued statute, need a goes tion of then it but on to the national registry an examiner on that Congress hold must use some addi- operate motor vehicles in the commercial magic give admittedly tional words to promulgat- But the DOT’s United States. clear statute effect. rule, prior agreements, ed on the relying It has understood long been Mexican and Canadian drivers exempts Supremacy places treaties Clause and stat statutory requirement.
from this why utes on equal footing, which is courts the statute is last-in-time Because always have evaluated conflicts between inter- clearly inconsistent with earlier treaties using and statutes the last-in-time governs. the statute agreements, holding today rule. The court’s elevates permit here would The DOT rule issue by making treaties above statutes it more operate Mexican and Canadian drivers to Congress difficult prior States commercial vehicles United The prior political than statutes. statutory require- following without prior branches can overrule a statute It is therefore our obli- ments of 31149. enacting a new statute inconsistent with gation petition for review and grant the old one. Nat’l Ass’n Home vacate unlawful rule. this Builders Wildlife, 551 U.S. Defenders of 644, 662-63, 2518, 168 L.Ed.2d concedes that the statute majority (2007); Bank, City v. Nat’l Posadas is unambiguously pri- inconsistent with the 296 U.S. 80 L.Ed. majori- agreements. Supreme Both the Court and ty in- expresses worry congressional about explained this court have tent, passed has given but identically should apply conflicts be majority concedes statutory text that the treaty. tween a statute and a Chew prior agreements, inconsistent with the Heong v. 549- Its Congress’s great mystery. intent is no (1884); 28 L.Ed. S. rule. That contradicts Dole, matter, 119, 126 Airways v. should be the end of the for African (D.C.Cir.1987). Thus, presume legislature “courts must
241 gives Congress [a “The Constitution would be for stat- explained: has overrule a superiority passed by over an act of Con- ute treaty] majority no of the people’s respect, representatives signed be re- gress by in this the Presi- by Nothing modified an act of later dent. in the pealed justifies Constitution Cases, Head Money transferring people’s right date.” The 112 U.S. govern (1884). 28 Transport L.Ed. 798 themselves to Director Canada’s today political requires Safety The court General of Road and Motor Vehicle prior Regulation to do more to overrule trea- and an branches Associate Administrator agreements Department Transporta- ties and international in the than U.S. they Highway would need to do to overrule tion’s Federal Administration Of- There is no warrant in the Su- fice of statutes. Motor Carriers. Ours a govern- is laws, fоr this ment not premacy Clause result. of bureaucrats. Second, especially troubling is be- Supreme
This result prece Court’s Supremacy not ex- majority cause the Clause does dents: The does dispute not encompass agree- no Court pressly Supreme international decisions require type ments of the at issue here. It is clear rule. statement all undisputed upon that the before us relied majority Court cases pursuant were not entered to the which the found no abrogation, Constitu- Const, Treaty statutory tion’s Clause. See U.S. art. Court held that the relevant text II, “Power, instance, (giving ambiguous. cl. 2 the President was For in Trans Airlines, the Advice of the and with and Consent World there was no direct con Senate, Treaties, statute, make provided treaty two flict between and the so concur”). present thirds of the Senators abrogation given Court refused to find they Nor “Laws of the did speak ques United States” the statute to the through pres- enacted bicameralism and tion at issue. U.S. at 104 S.Ct. I, 7,§ entment. See id. art. 2. See 1776. cl. Cook v. States emphasized Clark, generally Bradford R. Separation prior practice under the could Federalism, Safeguard as a “doubt Powers resolve as to the construction (2001). Tex. L.Rev. 1334-36 The of the” statute. U.S. added). Mexican was made (emphasis between L.Ed. Secretary Transportation Weinberger abrogation v. Rossi found no Secretary of Communications and because the crucial word at am issue was 25, 29-36, Transportation, biguous. while Canadian “agreement” was contained in letters ex- changed two bu- transportation between contrast, By the statute in is this case in the reaucrats United States and Cana- “textually unambiguous,” majority as the “[distorting statutory language da. If Maj. Op, concedes. at 234. The Supreme simply to avoid conflicts spelled Court has out our in such role would elevate treaties above statutes in “When the stat circumstances: words of a Constitution,” contravention unambiguous, ute are ... can th[e] first distorting F.3d at on[, legislature says that a in a statute conflicts to avoid with what it means and means in a what even obvi- more says judicial there] also the last: ously contravenes the Constitution. Germain, inquiry complete.” 253-54, 112
It is now hardеr for over- S.Ct. 1146 (quoting Rubin exchanged two letters between mid- United (internal (1981)) level quo- administrative functionaries than it L.Ed.2d *12 recalled, omitted). recently statutory can As The we Supreme marks tation merely as “an interpretation a on of serves ago clear that “when long made Court aid, validity not an invitation re provisions, interpretive its in its law is clear Am. R.Rs. v. the courts for write Ass’n before statutes.” be assailed cannot of stipulations of a No. conformity Dep’t Transp., F.3d of want already at *6 n. executed.” n. 2013 WL treaty not previous 2013). ’(D.C.Cir. A Accordingly, at S.Ct. 456. we Whitney, July abrogation “‘made the United States have the canon applied subject to such ... is any foreign nation where the later agreement only of a prior enforce- Congress may pass acts as ambiguous in relevant re statute was ” ment, modification, (quot- repeal.’ or Id. spects, always emphasized we have and Cases, 599, 112 U.S. at ing Money Head ambiguity. e.g., Roeder the statute’s 247). governed by we are Because Iran, Republic Islamic text, and Supreme precedents, the (D.C.Cir.2003) that “the (emphasizing clear, go no further. would the statute I precise the legislation itself is silent” on point conflict between the statute and Third, precedents: this court’s prior agreement); Roeder v. Islamic contra- new clear statement court’s (D.C.Cir. Iran, 56, 61 Republic Never have we precedents. dicts our own 2011) (“An ambiguous cannot su prior of a statute abrogation agree- to find refused if percedе an international an clearly statute was ment where a later (em fact, agreement. reading fairly possible.” In inconsistent with the alternative added)). discussed, explicitly majority phasis have held concedes as we plain meaning unambiguous. of a we do “distort the statute here is it Therefore, in an to make consistent attempt the cases on which it relies are prior treaty.” all distinguishable. “The omitted). (emphasis clear, F.3d at entirely if that is not statute is and Congress Congress what meant then has law was that today, Before our circuit’s will have Congress made a mistake “unambiguous we where have an n Conroy Aniskoff, correct it.” mandate,” agree- international Dole, 817 F.2d at give way. ment must J., (Scalia, concurring judg in the 2; Animals, 472 F.3d 125 n. sеe Fund for ment). Court, Supreme Quoting at 879. immaterial to in- “wholly have called it course, appears nothing Of departed from quire” Congress whether from prohibit the DOT add- statute would accident or de- prior agreement “by ing doctors to the Canadian Dole, sign.” (quoting at 126 Further, registry. new the Unit- 456) 195, 8 Whitney, 124 ed choose into States could to enter new omitted). majority uses (emphasis Yet agreements with Mexico or Canada that gov- as the these issues. would address erning acknowledging rule even while opinion today departs The court’s unambiguous simply the later statute is precedents Court and because it is whether unsure circuit, and is not founded in Con- the President meant really respectfully I stitution. dissent. Op. at 236-37. agreement. Maj. so, doing departs from our majority into
precedents inquiry and fashions
congressional motives. presidential