Amicus Brief — Cato Institute — Huisha-Huisha v. Mayorkas

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Case No. 21-5200 
 
 
IN THE 
United States Court of Appeals  
for the District of Columbia Circuit 
_______________ 
NANCY GIMENA HUISHA-HUISHA, AND HER MINOR 
CHILD, ET AL., 
 
Appellees, 
v. 
 
ALEJANDRO N. MAYORKAS, SECRETARY OF 
HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY,  
ET AL.,  
 
Appellants. 
_______________ 
On Appeal from the United States District Court 
for the District of Columbia, 21-CV-100-EGS 
(Hon. Emmet G. Sullivan) 
_______________ 
BRIEF AMICUS CURIAE OF THE CATO INSTITUTE 
IN SUPPORT OF APPELLEES 
Ilya Shapiro 
CATO INSTITUTE 
1000 Mass. Ave. NW 
Washington, DC 20001 
(202) 842-0200 
ishapiro@cato.org 
 
November 19, 2021 
 
 
Ilya Somin 
   Counsel of Record 
SCALIA LAW SCHOOL 
GEORGE MASON UNIVERSITY 
3301 Fairfax Dr.  
Arlington, VA 22201 
703-993-8069 
isomin@gmu.edu 
 
 
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
 
Pursuant to Circuit Rule 28(a)(1), counsel certifies: 
Parties and Amici: a. Appellants. b. The Cato Institute is a not-for-profit 
corporation, exempt from income tax under section 501(c)(3) of the Internal 
Revenue Code, 26 U.S.C. § 501(c)(3); it has no parent corporation; and no publicly 
held company has a 10% or greater ownership interest in the Cato Institute.  
 
Rulings Under Review: Huisha-Huisha v. Mayorkas, 2021 WL 4206688  
(D.D.C. Sept. 16, 2021). 
Related Cases: Counsel is not aware of any other related cases within the 
meaning of Circuit Rule 28(a)(1)(C). 
CERTIFICATION REGARDING SEPARATE BRIEFING 
Pursuant to Circuit Rule 29 and Federal Rule of Appellate Procedure 29, 
counsel certifies that a separate brief is necessary to outline the important 
nondelegation and “major questions” issues raised by the case. 
RULE 26.1 CORPORATE DISCLOSURE STATEMENT 
Amicus Curiae the Cato Institute is a nonprofit corporation. It has no parent 
companies, subsidiaries, or affiliates that have issued shares or debt securities to the 
public. Pursuant to D.C. Circuit Rule 26.1(b), the Cato Institute states that it is a 
501(c)(3) nonprofit organization dedicated to advancing the principles of individual 
liberty, free markets, and limited government. Cato’s Robert A. Levy Center for 
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Constitutional Studies helps restore the principles of constitutional government that 
are the foundation of liberty.
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TABLE OF CONTENTS 
 
Page 
 
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i 
CERTIFICATION REGARDING SEPARATE BRIEFING ..................................... i 
RULE 26.1 CORPORATE DISCLOSURE STATEMENT ....................................... i 
TABLE OF CONTENTS ......................................................................................... iii 
TABLE OF AUTHORITIES .................................................................................... iv 
STATEMENT OF INTEREST OF AMICUS CURIAE............................................. 1 
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1 
ARGUMENT ............................................................................................................. 6 
I.  
APPELLANTS’ INTERPRETATION OF THE CDC’S AUTHORITY 
WOULD CREATE AN UNCONSTITUTIONAL DELEGATION ............... 6 
II.  
APPELLANTS’ INTERPRETATION OF SECTION 265 VIOLATES  
THE “MAJOR QUESTIONS” DOCTRINE ................................................. 14 
III.  
ADOPTION OF A NARROWER INTERPRETATION OF  
SECTION 265 IS REQUIRED BY THE CANON AGAINST 
STATUTORY INTERPRETATIONS THAT RAISE  
CONSTITUTIONAL PROBLEMS .............................................................. 20 
CONCLUSION ........................................................................................................ 22 
CERTIFICATE OF COMPLIANCE ....................................................................... 23 
CERTIFICATE OF SERVICE ................................................................................ 24 
 
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TABLE OF AUTHORITIES 
Page(s) 
   Cases 
Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021) .................................. 4, 9, 10 
Ala. Ass’n of Realtors v. HHS, 2021 WL 2221646 (D.C. Cir. June 2, 2021) ..........10 
Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021) ........................................... 4 
Banks v. Booth, 3 F.4th 445 (D.C. Cir. 2021) ............................................................ 5 
Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) .....................................................15 
Crowell v. Benson, 285 U.S. 22 (1932) ........................................................ 5, 20, 21 
DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) .......................................................13 
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 
485 U.S. 568 (1988) ..............................................................................................21 
FDA v. Brown & Williamson, 520 U.S. 120 (2000) .................................................. 3 
Gundy v. United States, 139 S. Ct. 2116 (2019) ............................................... 1, 2, 8 
Head v. N.M. Bd. of Exam’rs in Optometry, 374 U.S. 424 (1963) ..........................14 
Hooper v. California, 155 U.S. 648 (1895) .............................................................20 
Huisha-Huisha v. Mayorkas,  
2021 WL 4206688 (D.D.C. Sept. 16, 2021) ........................................ 2, 15, 19, 22 
Nat’l Ass’n of Mfrs. v. DHS, 491 F. Supp. 3d 549 (N.D. Cal. 2020),  
app. dismissed, 2021 WL 1652546 (9th Cir. Apr. 8, 2021) .......................... 11, 14 
NFIB v. Sebelius, 567 U.S. 519 (2012) ......................................................... 5, 20, 21 
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) ...................................21 
P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020) ..........................................2, 12 
Skyworks, Ltd. v. CDC, 524 F. Supp. 3d 745 (N.D. Ohio 2021) .........................9, 10 
Terkel v. CDC, 521 F. Supp. 3d 662 (E.D. Tex. 2021) .........................................1, 9 
Tiger Lily, LLC v. HUD, 5 F.4th 666 (6th Cir. 2021) ................................................ 9 
Tiger Lily, LLC v. HUD, 525 F. Supp. 3d 850 (W.D. Tenn. 2021) ........................... 9 
Tiger Lily, LLC v. HUD, 992 F.3d 518 (6th Cir. 2021) ............................................. 9 
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United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) .........................13 
Util. Air Reg. Group v. EPA, 573 U.S. 302 (2014) .............................................3, 14 
Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) ................................................. 2 
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ............................................ 5 
 
Statutes 
42 U.S.C. § 264 .......................................................................................................... 5 
42 U.S.C. § 265 ........................................................................................... 3, 5, 7, 15 
Alien Friends Act, 1 Stat. 570, 571 (1798) ..............................................................12 
 
Other Authorities 
“1,300+ Medical Professionals from 49 U.S. States and Territories Call on  
CDC to End “Junk Science” Border Expulsion Policy,” Physicians for Human 
Rights, Oct. 28, 2021.............................................................................................17 
Alison Durkee, “Fauci Says Immigrants Are ‘Absolutely Not’ Driving Covid-19 
Surge: ‘Let’s Face Reality Here,” Forbes, Oct. 3, 2021 ......................................18 
Am. Immigration Council, A Guide to Title 42 Expulsions at the Border  
(Oct. 15, 2021) ......................................................................................................10 
B.E. Smith & Dwight W. Whitney, The Century Dictionary: An Encyclopedic 
Lexicon of the English Language (1895) ..............................................................16 
Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490 (2021) ............12 
James Madison, “The Report of 1800,” in 17 The Papers of James Madison 303 
(David B. Mattern et al. eds., 1991)......................................................................12 
James Morton Smith, The Enforcement of the Alien Friends Act of 1798,  
41 Miss. Valley Hist. Rev. 85 (1954) ...................................................................13 
Letter to CDC Director Walensky, “HHS Secretary Becerra, and DHS Secretary 
Mayorkas on the August 2021 Title 42 Order,” Sept. 1, 2021 .............................17 
Leyla Best, “Why Viruses Mutate, Explained by an Infectious Disease Expert,” 
UnityPoint Health, July 12, 2021 .........................................................................20 
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Matthew J. Lindsey, Immigration, Sovereignty, and the Constitution of 
Foreignness, 45 Conn. L. Rev. 743 (2013) ..........................................................13 
Rachel Siegel & Jonathan O'Connell, “The Feared Eviction ‘Tsunami’ Has Not 
Yet Happened. Experts are Conflicted on Why,” Wash. Post, Sept. 28, 2021 ....11 
Rebecca Beitsch, “Trump CDC Official: No 'Public Health Reason' for Border 
Closure, Title 42,” The Hill, Nov. 12, 2021 .................................................. 17, 18 
The Modern Webster Dictionary for Home and School (1941) ..............................16 
Webster’s Dictionary (1893) ....................................................................................16 
 
 
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STATEMENT OF INTEREST OF AMICUS CURIAE1 
The Cato Institute, established in 1977, is a nonpartisan public policy research 
foundation dedicated to advancing the principles of individual liberty, free markets, 
and limited government. Cato’s Robert A. Levy Center for Constitutional Studies 
helps restore the principles of constitutional government that are the foundation of 
liberty. Toward those ends, Cato publishes books, studies, and the annual Cato 
Supreme Court Review, and conducts conferences and forums. 
This case interests Cato because the Institute has long advocated strong 
enforcement of constitutional constraints on separation of powers, including the 
nondelegation principle. It filed an amicus brief to that effect in Gundy v. United 
States, 139 S. Ct. 2116, 2123 (2019). Cato also filed a brief supporting the plaintiffs 
in Terkel v. CDC, 521 F. Supp. 3d 662 (E.D. Tex. 2021), one of the cases challenging 
the Centers for Disease Control’s efforts to impose a nationwide eviction 
moratorium, a case that raised nondelegation issues strikingly similar to this one. 
INTRODUCTION AND SUMMARY OF ARGUMENT 
Since March 2020, the Centers for Disease Control (CDC), has used its 
supposed powers under Section 265 of the Public Health Service Act of 1944 to 
 
 
1 Fed. R. App. P. 29 Statement: No counsel for either party authored this brief 
in whole or in part. No person or entity other than amicus made a monetary 
contribution to its preparation or submission. All parties have been timely notified 
and consented to the filing of this brief. 
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expel hundreds of thousands of migrants and asylum seekers crossing the southern 
border. Huisha-Huisha v. Mayorkas, 2021 WL 4206688 at *2–5 (D.D.C. Sept. 16, 
2021). A district court injunction forbids the CDC from expelling unaccompanied 
minors. P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020).2 But the agency has 
continued to deport families and unaccompanied adults. Appellees’ Br. at 7–10. 
Appellants’ interpretation of the CDC’s powers under Section 265 would 
render the statute unconstitutional by violating the nondelegation doctrine. That 
principle of separation of powers holds that “Congress . . . may not transfer to 
another branch ‘powers which are strictly and exclusively legislative.’” Gundy, 139 
S. Ct. at 2123 (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825)). 
While Congress can give executive branch officials a wide range of discretion, it 
cannot delegate “unguided and unchecked” discretion over a major area of public 
policy, such as immigration and entry into the United States. Id. at 2123 (citation 
omitted). The latter is exactly what the CDC would enjoy if the Appellants prevail 
here: It would have the power to exclude or deport virtually any entrants into the 
United States at any time, thereby usurping legislative power over immigration and 
regulation of entry into the country.  
 
2 The injunction is currently in abeyance, because the agency has agreed to stop such 
deportations. Appellees’ Br. at 7–8. 
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42 U.S.C. § 265 gives the CDC “the power to prohibit… the introduction of 
persons and property from such countries or places as he shall designate” whenever 
the agency  “determines that by reason of the existence of any communicable disease 
in a foreign country there is serious danger of the introduction of such disease into 
the United States.” 42 U.S.C. § 265. If this language is interpreted as giving the CDC 
virtually unlimited power to bar or deport migrants from such countries as it 
designates, it would violate constitutional constraints on delegation.  
By contrast, there would be no such nondelegation issue if the term 
“introduction” were limited to situations where the entry of persons from the country 
in question could result in the spread of a disease not already prevalent in the United 
States. See Part II, infra. The problem could also be averted if this court adopts the 
Appellees’ interpretation of Section 265 as being limited to regulation of 
transportation, excluding the power to deport migrants, and subject to limitation by 
later statutes granting rights to asylum seekers. Appellees’ Br. at 16–30, 34–40. 
 
For similar reasons, Appellants’ position also violates the longstanding 
principle that courts must not assume that Congress has delegated to the executive 
the power to decide a “major” question of public policy, unless Congress has clearly 
indicated its intent to do so. See, e.g., Util. Air Reg. Group v. EPA, 573 U.S. 302, 
324 (2014) (“We expect Congress to speak clearly if it wishes to assign to an agency 
decisions of vast ‘economic and political significance.’”) (citation omitted); FDA v. 
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Brown & Williamson, 520 U.S. 120, 159–60 (2000) (Congress cannot be assumed 
to have implicitly delegated the power to regulate “a significant portion of the 
American economy” because “we are confident that Congress could not have 
intended to delegate a decision of such economic and political significance” without 
explicitly saying so.); Am. Lung Ass’n v. EPA, 985 F.3d 914, 959 (D.C. Cir. 2021) 
(“[S]ometimes an agency’s exercise of regulatory authority can be of such 
‘extraordinary’ significance that a court should hesitate before concluding that 
Congress intended to house such sweeping authority in an ambiguous statutory 
provision.”).  
The Supreme Court recently reaffirmed this vital rule in a decision involving 
the CDC, the same agency involved in the present litigation. In Alabama Ass’n of 
Realtors v. HHS, the Court rejected the CDC’s claims that another provision of the 
Public Health Service Act gave it the authority to enact a nationwide eviction 
moratorium in order to combat the Covid-19 pandemic. The Court ruled that, “[e]ven 
if the text were ambiguous, the sheer scope of the CDC's claimed authority under 
Section 361(a) would counsel against the Government’s interpretation.” 141 S. Ct. 
2485, 2489 (2021). Such an assertion of power was rejected by the Court because 
“[w]e expect Congress to speak clearly when authorizing an agency to exercise 
powers of ‘vast economic and political significance.’” Id. (quoting Util. Air Reg. 
Group, 573 U.S. at 324).  
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The same agency has made the same mistake here. Rather than heed the 
admonition that Congress “does not . . . hide elephants in mouseholes,” the CDC has 
indeed tried to squeeze yet another pachyderm into a narrow provision of the Public 
Health Service Act. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001); cf. 
Banks v. Booth, 3 F.4th 445, 449 (D.C. Cir. 2021) (“Congress does not hide elephants 
in mouseholes.”). Having vastly overclaimed its authority under Section 361 of the 
Act in the eviction moratorium litigation, the agency has done the same thing with 
Section 362 here.3 There are few bigger elephants than near-total control over entry 
into the United States. 
Like the nondelegation problem, the major questions issue can be solved by 
limiting the scope of Section 265 to cover only the spread of diseases not already 
present within the United States or by adopting the Appellees’ more limited 
interpretation of Section 265 as being confined to regulation of transportation, 
excluding the power to deport migrants, and constrained by later statutes pertaining 
to asylum rights. Appellees’ Br. at 16–30, 34–40. 
Finally, to the extent that the text of the Public Health Service Act is 
ambiguous, this court should rule against Appellants because doing so is required by 
the rule that courts must interpret federal statutes to avoid constitutional problems, 
 
3 Sections 361 and 362 of the Act were codified as 42 U.S.C. § 264 and 42 U.S.C. § 
265, respectively. 
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so long as it is “fairly possible” to do so. NFIB v. Sebelius, 567 U.S. 519, 563 (2012) 
(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). “’[E]very reasonable 
construction must be resorted to, in order to save a statute from unconstitutionality.’” 
Id. (quoting Hooper v. California, 155 U.S. 648, 657 (1895)).  
The government’s position here at the very least raises serious constitutional 
problems with respect to nondelegation.  And there obviously are “fairly possible” 
alternative readings that would give the CDC’s authority a more limited 
construction—one that would avoid running afoul of nondelegation principles. 
ARGUMENT 
I.  
APPELLANTS’ INTERPRETATION OF THE CDC’S AUTHORITY 
WOULD CREATE AN UNCONSTITUTIONAL DELEGATION 
  
If accepted by this court, Appellants’ position would give the CDC virtually 
unlimited discretion to bar or expel any entrant into the United States from anywhere 
in the world, at any time. A delegation of such vast power  runs afoul of 
nondelegation principles and must be rejected. 
 
42 U.S.C. § 265 gives the CDC director “the power to prohibit, in whole or in 
part, the introduction of persons and property from such countries or places as he 
shall designate in order to avert such danger, and for such period of time as he may 
deem necessary for such purpose” whenever the agency  “determines  that by reason 
of the existence of any communicable disease in a foreign country there is serious 
danger of the introduction of such disease into the United States, and that this danger 
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is so increased by the introduction of persons or property from such country that a 
suspension of the right to introduce such persons and property is required in the 
interest of the public health.” 42 U.S.C. § 265. 
 
Appellants contend this language gives the CDC the power to both prevent 
entry and expel migrants for an unlimited period of time, whenever it decides that 
such a measure might be necessary. Appellants’ Br. at 25–36. They even admit that 
their interpretation of the statute could well allow the CDC to bar or expel U.S. 
citizens. Id. at 43–45. 
It is important to recognize that the statute does not require the CDC to provide  
evidence that the “serious danger” can be averted by the measures it adopts. Rather, 
the agency need only “determine” that this is so and then “deem necessary” the 
measures in question. On Appellants’ interpretation of the statute, those measures 
include barring all entry into the United States, and expulsion of anyone who 
manages to enter nonetheless.  
 
In addition, nothing in the text of the statute restricts these vast powers only 
to cases where the disease at issue is a deadly pandemic, such as Covid-19. Rather, 
the text covers “any communicable disease” (emphasis added), which includes even 
such relatively minor dangers as the flu or the common cold. On this view, the CDC 
could order the expulsion of entrants into the United States from any country where 
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the flu is prevalent during flu season, even though that disease is already present in 
the United States. 
 
At any given time, communicable diseases of one type or another exist in 
every inhabited area of the world.  There is, therefore, always a danger that entrants 
from anywhere in the world might “introduce” a disease into the United States, as 
Appellants’ approach defines that term. Thus, under Appellants’ interpretation of the 
statute, the CDC has virtually unlimited power to prohibit entry into the United 
States from anywhere in the world, to deport entrants from anywhere, and to 
continue these measures for as long as the agency might “deem necessary.” In effect, 
this amounts to a claim of near-total control over both immigration policy and entry 
into the United States more generally.  
The Appellants do suggest, at one point, that “Section 265 was meant to 
address extraordinary and unprecedented public-health emergencies.” Appellants’ 
 Br. at 33. But nothing in the logic of their argument requires any such limitation on 
the CDC’s power under Section 265. 
The agency’s breathtakingly expansive view of its authority runs afoul of the 
nondelegation doctrine.  While Congress has considerable leeway to delegate policy 
decisions to agencies, it cannot delegate “unguided and unchecked” discretion over 
a major area of public policy, such as immigration and entry into the United States. 
Gundy, 139 S. Ct. at 2123 (quotation omitted). If the CDC is given virtually 
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unlimited power to bar any entrants from anywhere, at any time, that surely amounts 
to “unguided and unchecked” discretion, if anything does. 
The Supreme Court and several lower courts recently rejected a comparably 
broad claim of authority by the CDC in the context of the agency’s attempt to impose 
a nationwide eviction moratorium as a measure to combat the Covid-19 pandemic. 
Ala. Ass’n of Realtors, 141 S. Ct. at 2489; Tiger Lily, LLC v. HUD, 5 F.4th 666 (6th 
Cir. 2021); Tiger Lily, LLC v. HUD, 992 F.3d 518 (6th Cir. 2021); Tiger Lily, LLC 
v. HUD, 525 F. Supp. 3d 850 (W.D. Tenn. 2021); Skyworks, Ltd. v. CDC, 524 F. 
Supp. 3d 745 (N.D. Ohio 2021); Terkel v. CDC, 521 F. Supp. 3d 662. 
 In its ruling against the CDC eviction moratorium, the Supreme Court 
emphasized that the “breathtaking amount of authority” claimed by the agency was 
a crucial factor in its decision. Ala. Ass’n of Realtors, 141 S. Ct. at 2489. The Sixth 
Circuit, in its ruling against the eviction moratorium, highlighted nondelegation 
concerns even more directly, emphasizing that “the government’s interpretation of 
§ 264(a) could raise a nondelegation problem . . . . Under that interpretation, the 
CDC can do anything it can conceive of to prevent the spread of disease.” Tiger Lily, 
5 F.4th at 672; cf. id. at 673–74 (Thapar, J., concurring) (emphasizing that 
application of the nondelegation doctrine in this case was necessary to preserve the 
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“separation of powers” and ensure that “one branch” cannot “impermissibly delegate 
. . . its powers to another”).4 
As in the eviction moratorium litigation, the CDC has claimed “a breathtaking 
amount of authority” over a major area of public policy, giving itself nearly 
unlimited discretion to bar entry into the United States. Ala. Association of Realtors, 
141 S. Ct. at 2489. And, as with the eviction moratorium, the agency has sought to 
“exercise powers of “vast economic and political significance.” Id. (citation 
omitted). Expelling some 1.2 million entrants, as the CDC has done under the order 
challenged today, unquestionably has enormous economic and social effects. See 
Am. Immigration Council, A Guide to Title 42 Expulsions at the Border (Oct. 15, 
2021), https://bit.ly/3FkrZCw. Expelled migrants often suffer enormous harm, 
including rape, murder, assault, and kidnapping, as well as “horrendous living 
conditions.” Appellees’ Br. at 42–45. 
 
4  Other lower-court rulings against the eviction moratorium also emphasized 
nondelegation. See, e.g., Tiger Lily, 525 F. Supp. 3d at 862 ( “The Court construes 
42 U.S.C. § 264 narrowly in order to uphold the Separation of Powers and avoid 
violation of the non-delegation doctrine”); Skyworks, 524 F. Supp. 3d at 757 (broad 
reading of CDC authority “would likely raise a serious question whether Congress 
violated the Constitution by granting such a broad delegation of power unbounded 
by clear limitations or principles”). This court rejected the plaintiffs’ nondelegation 
arguments in the eviction moratorium case. Ala. Ass’n of Realtors v. HHS, 2021 WL 
2221646 at *3 (D.C. Cir. June 2, 2021). But its construction of the statute was  
repudiated by the Supreme Court’s later ruling striking down the slightly more 
limited revised version of the moratorium. Ala. Ass’n of Realtors, 141 S. Ct. at 2489. 
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Indeed, the impact of the Title 42 expulsions is likely even greater than that 
of the eviction moratorium, which may have altered only a small number of landlord-
tenant relationships, given that there were relatively few planned evictions affected 
by it. Cf.  Rachel Siegel & Jonathan O'Connell, “The Feared Eviction ‘Tsunami’ has 
not Yet Happened. Experts are Conflicted on Why,” Wash. Post, Sept. 28, 2021 
(noting that there has been no spike in evictions since the moratorium ended, which 
suggests that it may have prevented or delayed very few such actions). 
Last year, a federal district court ruled against the executive branch’s attempt 
to use the Covid-19 crisis as justification for suspending a wide range of employment 
visas, because “Congress’ delegation of authority in the immigration context . . . 
does not afford the President unbridled authority to set domestic policy regarding 
employment of nonimmigrant foreigners.” Nat’l Ass’n of Mfrs. v. DHS, 491 F. Supp. 
3d 549, 563 (N.D. Cal. 2020), app. dismissed, 2021 WL 1652546 (9th Cir. Apr. 8, 
2021). The court emphasized that “there must be some measure of constraint on 
Presidential authority in the domestic sphere in order not to render the executive an 
entirely monarchical power in the immigration context, an area within clear 
legislative prerogative . . . . Such unrestrained delegation in the context of 
immigration would plainly contradict the structural foundation undergirding the 
Constitutional separation of powers.” Id.  
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The present case involves a similar claim of “unrestrained delegation” giving 
an executive agency “entirely monarchical power in the immigration context.” It 
would give the CDC virtually unlimited authority to bar the entry of migrants and 
visitors from abroad, and even U.S. citizens. See P.J.E.S., 502 F. Supp. 3d at 539–
40 (noting that the “[t]he government . . . admitted . . . that the section authorizes the 
government to expel even U.S. citizens who arrive from a foreign country during a 
pandemic”). 
The delegation of power over important subjects to the executive was 
precisely the sort of measure that the founding generation understood to be a grave 
breach of separation of powers, and therefore unconstitutional. See Ilan Wurman, 
Nondelegation at the Founding, 130 Yale L.J. 1490 (2021). There are few more 
important subjects than the power to exclude or deport virtually any entrant into the 
country.  
James Madison, the “father of the Constitution,” was among those who argued 
that a similarly broad delegation of expulsion authority to the executive in the Alien 
Friends Act of 1798, was unconstitutional. Id. at 1512–14.5 As Madison warned in 
his constitutional critique of that act, if the executive were granted the power to expel 
 
5 The Alien Friends Act authorized the president to order the departure of “all such 
aliens as he shall judge dangerous to the peace and safety of the United States,” as 
well as any suspected of “treasonable or secret machinations against the 
government.” Alien Friends Act, 1 Stat. 570, 571, § 1 (1798). 
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foreigners at will, “it would follow, that the whole power of legislation might be 
transferred by the legislature from itself, and proclamations might become 
substitutes for laws.” James Madison, “The Report of 1800,” in 17 The Papers of 
James Madison 303, 324 (David B. Mattern et al. eds., 1991). The Alien Friends Act 
was widely condemned as unconstitutional, and eventually allowed to expire by 
President Thomas Jefferson, without ever actually being used to deport a migrant. 
Matthew J. Lindsey, Immigration, Sovereignty, and the Constitution of Foreignness, 
45 Conn. L. Rev. 743, 758–59 (2013); James Morton Smith, The Enforcement of the 
Alien Friends Act of 1798, 41 Miss. Valley Hist. Rev. 85 (1954). 
The CDC’s actions here are precisely the sort of usurpation of legislative 
power that Madison warned against. If it is permitted to stand, the agency’s 
“proclamations” will indeed “become substitutes for laws.” Id.  
 
In United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), the 
Supreme Court concluded that nondelegation principles generally do not constrain 
executive power over “the exclusion of aliens.” Id. at 542. But the Court also 
differentiated this from rules “concerning deportation of persons who have gained 
entry into the United States.” Id. The present case concerns deportation of persons 
already in the country.6 In addition, the government’s sweeping interpretation of 
 
6In DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020), the Supreme Court ruled that 
aliens detained soon after “unlawful entry” into the United States may be treated as 
 
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Section 265 would allow the exclusion of US citizens, as well as aliens. Appellants’ 
Br. at 43–45. 
 
Furthermore, nondelegation can still apply to exclusion of immigrants to the 
extent that the latter is not based on foreign policy or national security 
considerations, but on considerations of domestic policy. Nat’l Ass’n of Mfrs., 491 
F. Supp. 3d at 563–64. The CDC order at issue in the present case is based on the 
domestic policy objective of protecting public health, which is a part of 
government’s internal police power. See, e.g., Head v. N.M. Bd. of Exam’rs in 
Optometry, 374 U.S. 424, 428 (1963) (“protection of the public health . . . falls within 
the most traditional concept of what is compendiously known as the police power”). 
II.  
APPELLANTS’ INTERPRETATION OF SECTION 265 VIOLATES 
THE “MAJOR QUESTIONS” DOCTRINE 
For much the same reasons as it runs afoul of the nondelegation doctrine, 
Appellants’ interpretation of Section 265 also violates the “major questions” 
doctrine, which holds that courts must not assume that Congress has delegated to the 
executive the power to decide a “major” question of public policy, unless Congress 
has clearly indicated its intent to do so. Congress must “speak clearly if it wishes to 
 
applicants for admission, with respect to the Due Process Clause of the Fifth 
Amendment and the Suspension Clause. Id. at 1982-83. However, this ruling not 
efface the distinction between entry and deportation for nondelegation purposes. 
Moreover, the present case concerns the status of asylum seekers whose entry would 
be legal, but for the CDC order whose own legality is at issue in this very case. See 
Appellees’ Br. at 34–40. 
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assign to an agency decisions of vast ‘economic and political significance.’” Util. 
Air Reg. Group, 573 U.S. at 324 (quotation omitted).  
 
In this case, there is no such clear statement, because Section 265 can readily 
be construed more narrowly. It does not give the CDC the power to restrict all entry 
by people who may be carriers of a contagious disease. Instead, it merely allows it 
to forbid entry by those who might create a “serious danger of the introduction of 
such disease into the United States.” 42 U.S.C. § 265 (emphasis added).  
 
The term “introduction” could perhaps be interpreted to cover any and all 
instances where a carrier of a contagious disease might enter the United States. But 
it is more plausible to interpret it to refer to the transmission of a disease that is not 
already present in this country, or at least not yet widely prevalent.  
The Supreme Court “normally interprets a statute in accord with the ordinary 
public meaning of its terms at the time of its enactment.” Bostock v. Clayton Cty., 
140 S. Ct. 1731, 1738 (2020). Thus, it is essential to consider the ordinary meaning 
of “introduction” at the time Section 265 was enacted. 
 The origins of Section 265 are traceable to an 1893 law, which was later 
incorporated without significant change into the 1944 Public Health Service Act. 
Huisha-Huisha, 2021 WL 4206688 at *2. During both periods, standard definitions 
of “introduction” focused on the insertion of that which was not present previously. 
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On this view, one cannot “introduce” into the United States that which is already 
here. 
The first listed definition of “introduction” in the 1895 Century Dictionary is 
“The act of introducing, or leading or ushering in; the act of bring in: as, the 
introduction of manufacturers into a country.” B.E. Smith & Dwight W. Whitney, 
The Century Dictionary: An Encyclopedic Lexicon of the English Language 3164 
(1895). It makes little sense to refer to the “ushering in” of a phenomenon into an 
area where it already exists. Likewise, “introduction of manufacturers into a 
country” clearly refers to their establishment in a country where they are not already 
present.  
In the same vein, the first and most relevant listed definition of “introduction” 
in the 1893 Webster’s Dictionary is  “[t]he Act of introducing, or bringing to notice.” 
Webster’s Dictionary 393 (1893). “The Act of introducing” is not something that 
can be done with respect to an entity that is already present.  Similarly, “[b]ringing 
to notice” is usually accomplished by the act of initially introducing a new 
phenomenon. Something which is already present cannot be “brought to notice” 
because it has likely been noticed already. Standard definitions of the relevant term 
around the time of the reenactment of the statute 1944 were similar to those of 1893.7  
 
7 See, e.g., The Modern Webster Dictionary for Home and School 201 (1941), 
(defining “introduce” as “To bring into use, notice or acquaintance” and 
 
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Perhaps “introduction” in this sense can still occur in an area where the 
phenomenon in question is present, but still very rare, thereby potentially escaping 
notice and not–yet–been truly “ushered in.” But that does not apply to the present 
situation, where—tragically—Covid-19 is anything but rare in this country. 
This comparatively narrower definition of “introduction” is consistent with 
the idea that purpose of Section 265 is to prevent diseases from spreading to the 
United States. That purpose that cannot be achieved by blocking entry from abroad 
in a situation where the disease in question is already widely prevalent in this 
country, as is currently true of Covid-19. Whatever may have been true when the 
CDC order was first adopted in March 2020,8 it is now impossible to prevent the 
“introduction” of Covid-19 into the United States for the simple reason that it is 
already here, and already widespread. As numerous public health experts have 
testified, Title 42 expulsions cannot and do not meaningfully restrict spread of 
Covid-19 to this country. See, e.g., Supplemental Declaration of Former Centers For 
Disease Control And Prevention (CDC) Officials, Joint Appx. 384; “1,300+ Medical 
Professionals from 49 U.S. States and Territories Call on CDC to End “Junk 
 
“introduction as “act of introducing,” thereby linking the definition of the latter word 
to the former). 
8 The Covid-19 virus was likely already widespread in the United States even then, 
and therefore its spread could not have been prevented through the use Title 42 
authority. CDC experts held this view at the time and were overridden by the White 
House. See Rebecca Beitsch, “Trump CDC Official: No 'Public Health Reason' for 
Border Closure, Title 42,” The Hill, Nov. 12, 2021, https://bit.ly/3ceJtnl.  
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Science” Border Expulsion Policy,” Physicians for Human Rights, Oct. 28, 2021, 
https://tinyurl.com/ud7fhktk; Letter to CDC Director Walensky, “HHS Secretary 
Becerra, and DHS Secretary Mayorkas on the August 2021 Title 42 Order,” Sept. 1, 
2021 (letter signed by numerous experts), https://bit.ly/3DiYFMk. Even when the 
Title 42 order was first enacted in March 2020, CDC public health experts 
recognized, as one recently stated, that “[t]he bulk of the evidence at that time did 
not support this policy proposal,” in part because “a]t that time, there was a lot more 
disease in the U.S. than south of the border.” Beitsch, supra. 
Dr. Anthony Fauci, the administration’s top adviser on Covid-19 policy, 
recently stated that the spread of the disease “is not driven by immigrants” because 
it is already “present in our country.” Alison Durkee, “Fauci Says Immigrants Are 
‘Absolutely Not’ Driving Covid-19 Surge: ‘Let’s Face Reality Here,” Forbes, Oct. 
3, 2021, https://bit.ly/3HAYheL. Therefore, he concluded in a direct reference to the 
Title 42 expulsions, “focusing on immigrants, expelling them . . . is not the solution 
to an outbreak.” Id. Dr. Fauci recognizes that migrants subject to expulsion under 
the CDC policy are not introducing the disease into the United States, for the simple 
reason that it is already here. 
Adopting the narrower and more plausible interpretation of “introduction” 
avoids giving the CDC vast power to decide major questions of social and economic 
policy without clear authorization by Congress. Under this approach, the CDC might 
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19 
still be able to restrict entry by persons who are likely to be carriers of a deadly 
contagious disease that is not already widely prevalent in the United States. But the 
agency would not have the vastly greater power to bar the entry of virtually anyone 
at any time, for as long as it wants. 
The requirements of the major questions doctrine would also be at least 
partially satisfied if this court adopts the district court’s ruling that Section 265 does 
not authorize the CDC to expel migrants already within the United States, and the 
Appellees’ additional arguments that its reach is limited to regulating transportation 
providers, and that the agency’s powers are limited by other federal statutes 
protecting the rights of asylum seekers. Huisha-Huisha, 2021 WL 4206688 at *12–
14; Appellees’ Br. at 16–30, 34–40. The adoption of these restrictions would also 
deny the CDC vast power to exclude or deport virtually any entrants into the United 
States, at any time. 
This Court’s approach to the major questions doctrine in the eviction 
moratorium litigation was recently implicitly rejected by the Supreme Court.9 The 
Court should heed the Supreme Court, and rigorously apply the doctrine in the 
present case.  
 
9 Compare Alabama Ass’n of Realtors, 2021 WL 2221646 at *3 (rejecting “major 
questions” challenge to the eviction moratorium) with Ala. Ass’n of Realtors, 141 S. 
Ct. at 2489 (ruling against a later, slightly less expansive, version of the moratorium 
because it violated the major questions doctrine).   
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It could be argued that the narrower definition of “introduction” might still 
authorize the CDC to enact its large-scale exclusion and deportation policy on the 
grounds that the policy keeps out potential new variants of Covid-19, which—if 
allowed to enter—would qualify as bringing in a new disease not already prevalent 
in the United States. But virtually all viruses mutate over time and can potentially 
develop variants. See, e.g., Leyla Best, “Why Viruses Mutate, Explained by an 
Infectious Disease Expert,” UnityPoint Health, July 12, 2021, https://bit.ly/3cd0tdI. 
If the mere possibility of blocking a new variant of an existing disease were enough 
to trigger the CDC’s Section 265 authority, it would again become a virtually 
unlimited power over immigration policy, thus violating both nondelegation 
principles and the major questions doctrine.  
At the very least, the risk of new variants cannot qualify as “introduction” 
under Section 265 unless there is strong evidence that the new variant is 
fundamentally different from the old, and that it is prevalent in the country at issue.  
III.  ADOPTION OF A NARROWER INTERPRETATION OF SECTION 
265 IS REQUIRED BY THE CANON AGAINST STATUTORY 
INTERPRETATIONS 
THAT 
RAISE 
CONSTITUTIONAL 
PROBLEMS 
Courts must interpret federal statutes to avoid constitutional problems, so long 
as it is “fairly possible” to do so. NFIB, 567 U.S. at 563 (quoting Crowell, 285 U.S. 
62). “’[E]very reasonable construction must be resorted to, in order to save a statute 
from unconstitutionality.’” Id. (quoting Hooper v. California, 155 U.S. 648, 657 
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(1895)).  The Supreme Court has emphasized that a reading of the statute that avoids 
constitutional problems must be adopted in preference to one that raises them even 
if the latter interpretation would otherwise be sounder. “The question is not whether 
[the reading that avoids unconstitutionality] is the most natural interpretation [of the 
statute] . . . , but only whether it is a ‘fairly possible’ one.” Id. (quoting Crowell, 285 
U.S. at 62). 
This rule applies not just when a state would otherwise be rendered plainly 
unconstitutional, but also in cases where the alternative approach would raise 
“serious constitutional problems.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast 
Bldg. & Constr. Trades Council, 485 U.S. 568, 574 (1988). See also NLRB v. 
Catholic Bishop of Chicago, 440 U.S. 490, 504 (1979) (requiring a “clear expression 
of an affirmative intention of Congress” before a statutory interpretation that raises 
serious constitutional questions can be upheld). 
There is no doubt Appellants’ interpretation of Section 265 here at the very 
least raises serious constitutional nondelegation issues. See Part I, infra. As a result, 
the avoidance canon applies. And, just as obviously, there are “fairly possible” 
alternative readings of the statute that avoids the problem by interpreting the term 
“introduction” more narrowly than the extraordinarily broad approach urged by the 
CDC. See Part II, supra. 
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The constitutional problem can also be avoided, or at least greatly mitigated, 
by adopting the district court’s reading of the statute as denying the CDC the power 
to expel migrants already present within the United States, and Appellees’ additional 
arguments that the agency’s powers are confined to regulation of transportation 
providers, and limited by other statutes protecting asylum rights. Huisha-Huisha, 
2021 WL 4206688 at *12–14; Appellees’ Br. at 16–30, 34–40. 
CONCLUSION 
For these reasons, this court should affirm the decision of the district court.  
 
Respectfully submitted, 
 
Ilya Shapiro 
CATO INSTITUTE 
1000 Mass. Ave. NW 
Washington, DC 20001 
(202) 842-0200 
ishapiro@cato.org 
 
November 19, 2021 
 
/s/ Ilya Somin 
Ilya Somin 
   Counsel of Record 
SCALIA LAW SCHOOL 
GEORGE MASON UNIVERSITY 
3301 Fairfax Dr. 
Arlington, VA 22201 
703-993-8069 
isomin@gmu.edu 
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CERTIFICATE OF COMPLIANCE 
 
1. 
This document complies with the type-volume limits of Fed. R. App. 
P. 32(a)(7) and Fed. R. App. P. 29(a)(5) because, excluding the parts of the document 
exempted by Fed. R. App. P. 32(f), this document contains 5,287 words. 
 
2. 
This document complies with the typeface requirements of Fed. R. 
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because 
this document has been prepared in a proportionally spaced typeface using Microsoft 
Word 2019 in 14-point Times New Roman. 
/s/ Ilya Somin 
         
 
 
       Ilya Somin 
 
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CERTIFICATE OF SERVICE 
I certify that on November 19, 2021, the foregoing was electronically filed 
through this Court’s CM/ECF system, which will send a notice of filing to all 
registered users.  
/s/ Ilya Somin 
Ilya Somin  
USCA Case #21-5200      Document #1923174            Filed: 11/19/2021      Page 31 of 31

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