Amicus Brief of Historians — Huisha-Huisha v. Mayorkas

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ORAL ARGUMENT SCHEDULED ON JANUARY 19, 2022  
  
No. 21-5200 
 
 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
 
NANCY GIMENA HUISHA-HUISHA, ON BEHALF OF HERSELF AND OTHERS SIMILARLY 
SITUATED, 
Plaintiffs-Appellees, 
 
v. 
 
ALEJANDRO MAYORKAS, SECRETARY OF HOMELAND SECURITY, IN HIS OFFICIAL 
CAPACITY, ET AL.  
Defendants-Appellants. 
_________________ 
 
On Appeal from the United States District Court 
for the District of Columbia 
No. 21-cv-00100-EGS 
 
 
BRIEF OF HISTORIANS AS AMICI CURIAE  
IN SUPPORT OF PLAINTIFFS-APPELLEES 
 
 
Raymond P. Tolentino  
 
Counsel of Record 
Mahrah M. Taufique 
KAPLAN HECKER & FINK LLP 
350 Fifth Avenue, 63rd Floor 
New York, NY 10118 
           
(212) 763-0883 
rtolentino@kaplanhecker.com 
 
Counsel for Amici Curiae 
 
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
 
Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel of record 
certifies as follows:  
A. Parties and Amici Curiae  
 
 
Except for the amici joining this brief and any other amici who had not yet 
entered an appearance in this case as of the filing of the Brief for Defendants-
Appellants, all parties, intervenors, and amici appearing before the district court 
and in this Court are listed in the Brief for Defendants-Appellants. 
B. Rulings under Review 
  
References to the ruling under review appear in the Brief for Defendants-
Appellants. 
C. Related Cases 
 
Amici agree with the statement in the Brief for Defendants-Appellants that 
there are no related cases within the meaning of D.C. Circuit Rule 28(a)(1)(C). 
 
Dated: November 19, 2021 
 
/s/ Raymond P. Tolentino 
 
Raymond P. Tolentino 
Counsel for Amici Curiae 
 
 
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CORPORATE DISCLOSURE STATEMENT 
Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 
26.1, amici curiae state that no party to this brief is a publicly held corporation, 
issues stock, or has a parent corporation. 
 
 
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D.C. CIRCUIT RULE 29(d) STATEMENT 
 
The amici who join this brief are filing a separate brief because, as 
professional historians, they have a unique perspective on the legal issues presented 
on appeal. Specifically, amici seek to provide this Court with valuable historical 
context in assessing whether the government has authority under 42 U.S.C. § 265 to 
summarily expel noncitizen families from the country. 
 
Dated: November 19, 2021 
 
/s/ Raymond P. Tolentino 
 
Raymond P. Tolentino 
Counsel for Amici Curiae 
 
 
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TABLE OF CONTENTS 
PAGE 
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ........... vi 
CORPORATE DISCLOSURE STATEMENT ....................................................... vi 
D.C. CIRCUIT RULE 29(d) STATEMENT ......................................................... viv 
TABLE OF AUTHORITIES ................................................................................... vi 
GLOSSARY ........................................................................................................... viii 
IDENTITY AND INTEREST OF AMICI CURIAE .................................................. 1 
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 2 
ARGUMENT ............................................................................................................. 3 
I. 
Congress Feared That Infectious Diseases Like Cholera Would 
Spread to the United States via Ship in the Late Nineteenth 
Century ..................................................................................................... 3 
II. 
Congress Enacted Section 7 of the 1893 Act To Regulate 
Steamships and Transportation Companies ............................................. 6 
III. Past Practice Confirms That the 1893 Act Was Meant To 
Regulate Transportation .........................................................................12 
IV. The 1944 Recodification of the 1893 Act Did Not Materially 
Alter the Statute .....................................................................................14 
CONCLUSION ........................................................................................................15 
APPENDIX A    
CERTIFICATE OF COMPLIANCE 
CERTIFICATE OF SERVICE 
 
 
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TABLE OF AUTHORITIES 
PAGE(S) 
Cases 
Compagnie Francaise de Navigation a Vapeur v. Louisiana, 186 U.S. 380 
(1902) ..................................................................................................................... 7 
Larsen v. Ins. Co. of N. Am., 252 F. Supp. 458 (W.D. Wash. 1965) .......................13 
Minneapolis, St. P. & S.S.M. Ry. Co. v. Milner, 57 F. 276 (C.C.W.D. Mich. 1893).4 
Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302 (2014) ................................................ 8 
Statutes 
42 U.S.C. § 265 ......................................................................................... 1, 2, 13, 14 
Act of Feb. 15, 1893, ch. 114, 27 Stat. 449 (1893) ....................................... 2, 6, 7, 8 
Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084 (1891) ................................................... 4 
Rules 
Control of Communicable Diseases, 82 Fed. Reg. 6890 (Jan. 19, 2017) ................13 
Other Authorities 
24 Cong. Rec. 359-471 (1893) ................................................ 3, 4, 6, 8, 9, 10, 11, 12 
Exec. Order No. 5143 (June 21, 1929) ....................................................................13 
Hearing on H.R. 3379 Before the Subcomm. of the H. Comm. on Interstate & 
Foreign Commerce, 78th Cong. 28 (1944) ..........................................................14 
Howard Markel, “Knocking out the Cholera”: Cholera, Class, and 
Quarantines in New York City, 1892, 69 Bull. Hist. Med. 420 (1995) ................. 3 
Niall Johnson & Juergen Mueller, Updating the Accounts: Global Mortality of the  
1918-1920 “Spanish” Influenza Pandemic, 76 Bull. Hist. Med. 105 (2002) .... 12 
 
Twenty 
Days 
Quarantine, 
N.Y 
Times 
(Sept. 
2, 
1892), 
https://tinyurl.com/wrcaz5z8.................................................................................. 5 
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U.S. Dep’t of Treas., Quarantine restrictions upon immigration to aid in the 
prevention of the introduction of cholera into the United States (Sept. 1, 
1892)....................................................................................................................... 5 
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GLOSSARY 
App. 
Joint Appendix 
Br. for Appellees 
Brief for Plaintiffs-Appellees 
Br. for Appellants 
 
CDC 
Brief for Defendants-Appellants 
 
Centers for Disease Control and Prevention 
 
 
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IDENTITY AND INTEREST OF AMICI CURIAE1 
Amici are distinguished scholars with expertise in the history of immigration, 
medicine, and public health in the United States. They have substantial academic, 
pedagogical, and professional experience bearing on the legal questions presented 
for this Court’s review. In particular, amici submit this brief to offer an accurate 
historical understanding of 42 U.S.C. § 265, which forms the basis of the 
government’s unprecedented policy of barring and expelling families at the border 
under the guise of protecting public health. Based on their expertise and knowledge 
of the relevant history, amici urge the Court to affirm the district court’s order.   
A full list of amici is attached as Appendix A. 
 
 
 
1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici state that 
no party’s counsel authored this brief in whole or in part; no party’s counsel 
contributed money that was intended to fund the preparation or submission of the 
brief; and no person—other than amici and their counsel—contributed money that 
was intended to fund the preparation or submission of the brief. 
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INTRODUCTION AND SUMMARY OF ARGUMENT 
In the nineteenth and twentieth centuries, Congress enacted landmark public 
health laws aimed at preventing the spread of infectious diseases from foreign 
countries to the United States. To achieve that end, Congress chose a very specific 
and targeted approach. Instead of granting public health officials sweeping 
immigration powers to summarily deport all individuals deemed a public health risk, 
Congress chose to regulate the primary method by which those individuals were 
transported (or, in statutory terms, “introduce[d]”) into the country—which, at the 
time, was steamships. See Act of Feb. 15, 1893, ch. 114, 27 Stat. 449 (1893), App. 
196-99 (the “1893 Act”). 
As amici explain in this brief, the historical record is replete with evidence 
showing that section 7 of the 1893 Act—which was later reenacted as 42 U.S.C. 
§ 265 without material change—was intended to give the President authority to 
regulate transportation of individuals rather than to deport or expel the individuals 
themselves. Because the government’s deportation policy rests on an atextual and 
ahistorical understanding of the relevant public health statutes, this Court should 
affirm the district court’s order.2 
 
2 Because the district court found that, even assuming Title 42 authorizes 
regulation of individuals seeking to come into the country, it “does not authorize 
expulsion,” the district court did not address the alternative argument (presented by 
amici in this brief) that the statute regulates only transportation and, for that 
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ARGUMENT 
I. 
Congress Feared That Infectious Diseases Like Cholera Would Spread to 
the United States via Ship in the Late Nineteenth Century  
Before turning to the 1893 Act itself, it is critical to understand the historical 
context in which Congress was legislating. During the late nineteenth century, two 
interrelated historical developments were unfolding in the United States and Europe. 
First, the United States was experiencing a great wave of immigration that brought 
a steady stream of newcomers to the United States from across the Atlantic. See 
Howard Markel, “Knocking out the Cholera”: Cholera, Class, and Quarantines in 
New York City, 1892, 69 Bull. Hist. Med. 420, 423 (1995). And second, many of 
those immigrants were coming from countries (mainly in Europe) that were 
experiencing deadly outbreaks of infectious diseases—including cholera in the 
1880s. 
Federal officials and members of Congress quickly realized that this heavy 
volume of maritime transportation heightened the risk of an epidemic in the United 
States. See, e.g., 24 Cong. Rec. 360 (statement of Senator Chandler noting that “90 
or 95 per cent of the immigration into the United States comes into” New York City, 
and that “the most danger of cholera is to be apprehended from vessels arriving at 
 
additional reason, does not authorize the government’s draconian expulsion policy. 
App. 112 n.6. 
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that port”); see also id. at 359 (letter from physician stating that “the extent of th[e] 
danger” of a cholera outbreak from Europe was “very considerable”). 
Recognizing the specific threat of communicable diseases brought to the 
United States by sea, Congress thus began to take an increasingly active role in 
regulating public health and developing quarantine laws targeted at diseases borne 
on seafaring vessels. It was not especially concerned about the transmission of 
disease across the country’s land borders. See 24 Cong. Rec. 364 (statement of 
Senator Chandler stating he was “not afraid . . . that there will be any cholera-
breeding immigration which will come into this country by land”). That made sense: 
the primary source of cholera was overseas, and at the time, individual States 
enforced their own health and quarantine laws to prevent the transmission of disease 
across land borders. See, e.g., Minneapolis, St. P. & S.S.M. Ry. Co. v. Milner, 57 F. 
276, 277 (C.C.W.D. Mich. 1893) (finding that the Michigan State Board of Health 
was permitted to quarantine railway passengers entering Michigan from Canada). 
By 1891, Congress had already implemented immigration legislation 
empowering the federal government to inspect noncitizens before admission and 
deport them based on public health concerns. See Act of Mar. 3, 1891, ch. 551, 26 
Stat. 1084, 1084-86 (1891). But, with cholera at the nation’s doorstep, President 
Benjamin Harrison took an extraordinary step in September 1892: rather than invoke 
his statutory authority under the Immigration Act of 1891 to expel individual 
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immigrants from infected countries, he cut off their primary mode of transportation 
into the United States. He therefore instructed Surgeon General Walter Wyman to 
issue a “circular” order to “[f]oreign [s]teamship [c]ompanies.” U.S. Dep’t of Treas., 
Quarantine restrictions upon immigration to aid in the prevention of the introduction 
of cholera into the United States (Sept. 1, 1892), App. 207. The circular order 
recognized that “immigrants in large numbers” were “coming into the United States” 
from “infected districts” in “Russia, Germany and France, and at certain ports in 
Great Britain, as well as in Asia.” Id. Notably, however, it did not ban those 
immigrants from entry or otherwise impose restrictions on them. Id. Instead, it 
mandated that “no vessel from any foreign port carrying immigrants shall be 
admitted to enter at any port of the United States until said vessel shall have 
undergone a quarantine detention of twenty days.” Id. (emphasis added). This 
quarantine requirement imposed severe (and often prohibitive) costs on steamship 
companies; as the New York Times predicted at the time, the circular order would 
“practically put a stop to immigration, for no steamship company will continue to 
transport people to this country” given the high costs of quarantine. Twenty Days 
Quarantine, N.Y. Times (Sept. 2, 1892), https://tinyurl.com/wrcaz5z8. According to 
press reports, several Harrison administration officials initially questioned whether 
they had the statutory authority to impose such drastic quarantine procedures. See id. 
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II. 
Congress Enacted Section 7 of the 1893 Act To Regulate Steamships and 
Transportation Companies 
A few months later, in February 1893, Congress enacted the 1893 Act. Much 
of the legislative debate over that statute concerned whether Congress should 
override existing State public health laws or merely supplement them. 24 Cong. Rec. 
362, 371-73. While Congress was hesitant to usurp individual States’ traditional 
jurisdiction over quarantine powers, it recognized that national control might be 
necessary to effectively control the influx of disease threatening to arrive by 
seaborne vessels. See, e.g., 24 Cong. Rec. 362 (debating legislation for the 
establishment of an exclusive national quarantine, which was not adopted). The final 
language of the 1893 legislation reflected respect for the continuing role of States in 
enforcing public health rules while arming the federal government with additional 
powers to protect the nation’s public health from the looming threat of contagion. 
See Act of Feb. 15, 1893, ch. 114, §§ 3, 4, & 6, 27 Stat. 450. One of the arrows in 
that new quiver was section 7, which gave the President clear statutory authority to 
issue orders like the one issued by President Harrison in 1892.  
In particular, section 7 granted the President the “power to prohibit, in whole 
or in part, the introduction of persons and property” from foreign countries 
experiencing outbreaks of “cholera or other infectious or contagious diseases.” See 
1893 Act § 7. Congress’s deliberate use of the word “introduction” shows that 
section 7 was designed to regulate the steamships or other third parties that were 
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transporting or “bringing in” infected immigrants or goods to the country. See Br. 
for Appellees at 25-26 (collecting contemporaneous sources defining the term 
“introduce” to mean to “bring” in).3 
The statutory context of the 1893 Act elucidates section 7’s focus on 
regulating transportation, as opposed to authorizing deportation policies. 
Neighboring provisions in the statute show that Congress’s concern in the 1893 Act 
was the regulation of steamships that were transporting individuals into the country. 
See, e.g., 1893 Act § 1 (prohibiting “any merchant ship or other vessel from any 
foreign port” from entry into U.S. ports except in accordance with public health 
regulations); id. § 2 (requiring “any vessel” traveling to the United States to first 
obtain a bill of health at “port of departure”); id. § 3 (authorizing Secretary of the 
Treasury to regulate “vessels sail[ing] from any foreign port or place”); id. § 4 
(charging the Surgeon General of the Marine Hospital Service with, among other 
 
3 Before the district court, the government argued (in a passing footnote) that 
the Supreme Court in Compagnie Francaise de Navigation a Vapeur v. Louisiana, 
186 U.S. 380 (1902), held that a statute prohibiting “introduction” can authorize the 
exclusion of individuals. Def.’s Opp’n to Pls.’ Mot. for Class Cert. at 21 n.12, 
Huisha-Huisha v. Mayorkas, No. 21-cv-100(EGS) (D.D.C. Sept. 16, 2021). But that 
argument is mistaken. Compagnie Francaise involved a constitutional challenge to 
the State’s regulation of a steamship, and the Court’s analysis of the Louisiana 
statute therefore focused on the State’s regulation of transportation. 186 U.S. 380 at 
381-82, 391-92. In any event, the Louisiana statute in Compagnie Francaise—which 
authorized “rules and regulations, terms and conditions on which intercourse with 
said infected locality shall be permitted,” id. at 384—was broader than section 7. 
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things, “obtain[ing] information of the sanitary condition of foreign ports”); id. § 5 
(directing Treasury Secretary to issue “rules and regulations” governing “vessels in 
foreign ports”); id. § 6 (providing for “an infected vessel” to be “remand[ed]” to “the 
nearest . . . quarantine station”). Moreover, the 1893 Act imposed penalties only on 
transportation that violated the public health requirements established under the 
statute; no such penalties were imposed on individual immigrants. See, e.g., id. § 1 
(imposing a penalty of up to $5,000 on any “vessel” that violated the Act). 
Thus, read in context, section 7 (like its neighboring provisions) is properly 
understood as a provision that gives the federal government authority to regulate 
transportation. See Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 320-21 (2014) 
(noting the “fundamental canon of statutory construction that the words of a statute 
must be read in their context and with a view to their place in the overall statutory 
scheme,” and stating that any “reasonable statutory interpretation must account for 
both the specific context in which . . . language is used and the broader context of 
the statute as a whole” (ellipsis in original) (internal quotation marks omitted)). 
The legislative history confirms what the statutory text and context already 
make clear: that section 7 was never meant to bestow upon the President wide-
ranging deportation powers. For instance, Senator Chandler, a proponent of the 1893 
Act, expressed the view that restricting travel by ship would protect the country from 
a cholera epidemic. See 24 Cong. Rec. at 360-63. Senator Harris, one of the Act’s 
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sponsors, explained that section 7 was directed at “vessels” that were “sailing to this 
country” with “passengers, crews, and cargo,” id. at 392, because the federal 
government already had the authority to quarantine and inspect individuals crossing 
land borders under a different statute, id. at 370 (referencing a preexisting “power to 
protect the Mexican and Canadian borders”). Congress’s focus on the regulation of 
steamships in the 1893 Act was no surprise. As explained above, see supra Part I, 
Congress enacted the 1893 Act during a moment in history when it was widely 
understood that immigrants, especially those from Europe and Asia, 
overwhelmingly arrived by ship (rather than by land), and that transoceanic 
immigration by steamship from Europe posed a perilous threat to the nation’s health. 
The government argues that Congress could not have been focused on 
passenger ships, because legislators were aware that communicable diseases could 
spread across land borders. Br. for Appellants at 39. As evidence, the government 
selectively cites comments by legislators about cholera spreading to the United 
States from Canada and Mexico. Id. But a review of the legislative record 
demonstrates that these comments were made by critics of the bill, in the context of 
their argument that the bill was unduly focused on vessels from Europe to the 
detriment of commerce, while not being broad enough to address migration by foot 
from Canada or Mexico. 24 Cong. Rec. at 370 (noting that the bill “invests certain 
officers with power to prohibit the entry of vessels bearing this enormous commerce 
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into our ports” while cholera could “come from Mexico”). In fact, it was because 
these critics understood the 1893 Act to be limited to regulating transportation that 
these objections were raised. 
Examining various proposals for the language of section 7 further supports 
the view that Congress always understood section 7 of the 1893 Act to address 
passenger travel. For example, Congress initially considered an amendment to 
section 7 that would give the President the power to “suspend immigration.” 24 
Cong. Rec. at 470. Senator Vilas proposed striking “immigration” and inserting “all 
passenger travel, but not immigration alone.” Id. The government argues that the 
consideration and rejection of this language must mean that section 7 “was plainly 
intended to be broader than a mere restraint on passenger travel.” Br. for Appellants 
at 38-39. But this argument misapprehends the debate at the time. Senator Vilas 
understood that “immigration” was only one type of passenger travel. 24 Cong. Rec. 
at 470 (explaining that the power to prohibit all passenger travel “would be the 
greater power . . . which would include the less[er]” power to prohibit immigration). 
He reasoned that if it were necessary “to take so violent a remedy as to prohibit the 
access to our shores of people from foreign lands” to protect against disease, that 
power “ought not to be an authority which discriminates in the manner in which the 
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word ‘immigration’ operates a discrimination.” Id.4 (emphasis added). He was thus 
not willing to grant the power to prohibit transportation of certain travelers “unless 
it shall also be provided that the exigency which shall forbid them shall be sufficient 
to forbid all.” Id. That proposal was rejected because others did not agree that 
discrimination was a problem. Senator Gray explained, for example, that he saw “no 
great injustice in the discrimination,” such that if “we can avert a threatened danger 
or deal with it successfully by a discriminating embargo,” the statute should grant 
the power to prohibit “any passenger class.” Id. Ultimately, Congress adopted the 
 
4 Senator Vilas also proposed a second edit to the text of section 7, replacing 
the term “immigration” used in another part of the language with “passenger travel.” 
This was merely a conforming edit, as the operative text granted the power to 
suspend “all passenger travel, but not immigration alone.” The full text of his 
proposal read:  
 
That whenever it shall be shown to the satisfaction of the President that 
by reason of the existence of cholera or other infections or contagious 
diseases in a foreign country there is serious danger of the introduction 
of the same into the United States, and that notwithstanding the 
quarantine defense this danger is so increased by passenger travel that 
a suspension of the same is demanded in the interest of the public 
health, the President shall have power to suspend all passenger travel, 
but not immigration alone, from such countries or places as he shall 
designate and for such period of time as he may deem necessary. 
 
24 Cong. Rec. at 470 (emphases added). In this context, suspending “immigration” 
meant suspending passenger travel of immigrants as one type of traveler, as opposed 
to other types of travelers, such as tourists. Properly understood, the whole debate 
was about the transportation of passengers and property, not the regulation of 
individuals coming on foot. Therefore, these proposals provide no support for 
reading section 265 (and section 7 before it) as overriding immigration laws, as the 
government suggests. Br. for Appellants at 41-43.  
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language prohibiting the “introduction of persons and property,” “in whole or in 
part” because it was understood that the new language would include transportation 
of both “all . . . classes of travel” and property such as cargo, or of just some such 
transportation. 24 Cong. Rec. at 471. Throughout these discussions, the debate 
revolved around the various kinds of passenger travel that the bill could prohibit, not 
whether it created the power to regulate individual travelers directly, much less 
deport or expel individuals. 
III. 
Past Practice Confirms That the 1893 Act Was Meant To Regulate 
Transportation 
Past practice provides further historical evidence that section 7 of the 1893 
Act does not supply the Executive with broad authority to expel or deport 
immigrants based on public health concerns. Section 7 has been invoked rarely 
throughout history as a basis to prohibit the introduction of persons.5 And in the rare 
circumstance when it has, the federal government has used its section 7 authority to 
regulate the transportation of those persons to the United States. In response to the 
meningitis outbreak of 1929, President Herbert Hoover, invoking his authority under 
section 7, issued an executive order restricting the “transportation of passengers 
 
5 The federal government did not invoke its authority under the 1893 Act 
during the devastating influenza pandemic of 1918, which was responsible for the 
deaths of approximately 675,000 people in the United States, or about 0.65% of the 
population at the time. See Niall Johnson & Juergen Mueller, Updating the 
Accounts: Global Mortality of the 1918-1920 “Spanish” Influenza Pandemic, 76 
Bulletin of the History of Medicine 105, 111 (2002). 
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from” China and the Philippines to the United States. Exec. Order No. 5143 (June 
21, 1929), App. 201 (emphasis added).6 
Accordingly, the language of the 1929 executive order made abundantly clear 
that the President was invoking his section 7 authority to regulate the transportation 
of infected passengers from infected countries. In amici’s view, the limited usage of 
section 7 in the historical record strongly reinforces that the provision was intended 
to give the President regulatory authority over steamships and transportation 
companies to protect public health—not to endow him with expansive deportation 
powers that have never been exercised in the history of the country.7 
 
6 The order prohibited introduction “by transshipment or otherwise.”  
Transshipment refers to transferring something between ships. See Larsen v. Ins. Co. 
of N. Am., 252 F. Supp. 458, 473 (W.D. Wash. 1965). The order thus covered all 
types of transportation: direct, indirect with stops, and via a single or multiple ships. 
There is no basis in the order’s text to suggest, as the government previously has, 
that this order would apply to a person swimming or walking ashore to the United 
States. Def.’s Opp’n to Pls.’ Mot. for Class Cert. at 23, Huisha-Huisha v. Mayorkas, 
No. 21-cv-100(EGS) (D.D.C. Sept. 16, 2021). 
7 Subsequent invocations of 42 U.S.C. § 265, the successor provision of 
section 7, follow the same pattern. For example, in 2017, the CDC promulgated 
regulations pursuant to 42 U.S.C. §§ 264 and 265 (among other provisions) in 
response to the largest outbreak of Ebola on record, an outbreak of Middle East 
Respiratory Syndrome, and repeated outbreaks of measles. See Control of 
Communicable Diseases, 82 Fed. Reg. 6890 (Jan. 19, 2017). The regulations 
enhanced and clarified the CDC’s broad responsibilities with respect to preventing 
the introduction, transmission, and spread of communicable diseases into the United 
States and between States. But the regulations do not purport to authorize 
deportations. 
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IV. 
The 1944 Recodification of the 1893 Act Did Not Materially Alter the 
Statute 
In 1944, Congress passed the Public Health Service Act, which recodified 
section 7 of the 1893 Act as 42 U.S.C. § 265 without material change. Thus, like its 
statutory forebear, section 265 was not intended to supply the federal government 
with statutory authority to expel noncitizens from the United States. As evidenced 
by the continued use of the term “introduction,” the focus of section 265 remained 
the same: regulating transportation to protect against the spread of infectious 
diseases from other countries. See 42 U.S.C. § 265. To be sure, in 1944, Congress 
believed that the public health quarantine laws needed to be updated to account for 
modern air travel. See Hearing on H.R. 3379 Before the Subcomm. of the H. Comm. 
on Interstate & Foreign Commerce, 78th Cong. 28, 45 (1944) (“[T]he revolution in 
travel brought about by the airplane has necessitated the revolution of our methods 
of control and our defense against disease.”). But, if anything, this congressional 
focus on modes of transportation further supports the conclusion that section 265 
(and section 7 before it) was designed to give the President the power to regulate 
transportation, not to create new deportation policies out of whole cloth.  
* * * 
 
The history and application of the legislation in 1893 and 1944 is clear: neither 
section 7 of 1893 nor its successor provision (section 265) was intended to provide 
the President with the power to deport or expel individuals deemed to be a public 
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health risk. Based on their expertise and knowledge, amici respectfully submit that 
the government’s policy is flatly inconsistent with the statute and the historical 
record and must therefore be enjoined.  
CONCLUSION 
For these reasons, the Court should affirm. 
 
Dated: November 19, 2021 
Respectfully Submitted, 
 
/s/ Raymond P. Tolentino 
 
Raymond P. Tolentino  
 
 
 
 
 
    Counsel of Record 
 
 
 
 
 
Mahrah M. Taufique 
KAPLAN HECKER & FINK LLP 
350 Fifth Avenue, 63rd Floor 
New York, NY 10118 
(212) 763-0883 
rtolentino@kaplanhecker.com 
 
Counsel for Amici Curiae  
 
USCA Case #21-5200      Document #1923266            Filed: 11/19/2021      Page 23 of 28

 
A1 
APPENDIX A 
The amici listed below join this brief as individuals; institutional affiliation is 
noted for informational purposes only and does not indicate endorsement by 
institutional employers of the positions advocated in this brief. 
 
Alan Kraut, PhD 
Distinguished Professor of History 
College of Arts & Sciences 
American University 
Washington, District of Columbia 
 
Carl Bon Tempo, PhD 
Associate Professor 
Department of History 
University at Albany, State University of New York 
Albany, New York 
  
Nancy Foner, PhD 
Distinguished Professor of Sociology 
Graduate Center and Hunter College 
City University of New York 
New York, New York 
 
Maria Cristina Garcia, PhD 
Howard A. Newman Professor of American Studies 
College of Arts and Sciences 
Cornell University 
Ithaca, New York 
 
David A. Gerber, PhD 
Distinguished Professor of History Emeritus 
Senior Fellow in History and in Disability Studies 
University at Buffalo, State University of New York 
Buffalo, New York 
 
Adam Goodman, PhD 
Assistant Professor of History and Latin American and Latino Studies 
University of Illinois at Chicago 
Chicago, Illinois 
USCA Case #21-5200      Document #1923266            Filed: 11/19/2021      Page 24 of 28

 
A2 
 
Torrie Hester, PhD 
Associate Professor of History  
College of Arts and Sciences  
Saint Louis University 
St. Louis, Missouri 
 
Hidetaka Hirota, PhD 
Associate Professor  
Department of English Studies 
Sophia University  
Tokyo, Japan 
 
Philip Kasinitz, PhD 
Presidential Professor of Sociology 
Graduate Center 
City University of New York 
New York, New York 
 
S. Deborah Kang, PhD 
Associate Professor 
University of Virginia 
Charlottesville, Virginia 
 
Julia Rose Kraut, JD, PhD 
Legal Historian 
Author, THREAT OF DISSENT: A HISTORY OF IDEOLOGICAL EXCLUSION AND 
DEPORTATION IN THE UNITED STATES (2020) 
New York, New York 
 
Erika Lee, PhD 
Regents Professor of History and Asian American Studies  
Director, Immigration History Research Center  
University of Minnesota 
Minneapolis, Minnesota 
 
USCA Case #21-5200      Document #1923266            Filed: 11/19/2021      Page 25 of 28

 
A3 
Julian Lim, JD, PhD 
Associate Professor of History 
School of Historical, Philosophical and Religious Studies 
Arizona State University 
Tempe, Arizona 
 
Maddalena Marinari, PhD 
Associate Professor of History 
Gustavus Adolphus College 
St. Peter, Minnesota 
 
Howard Markel, MD, PhD  
George E. Wantz Distinguished Professor of the History of Medicine  
Director, Center for the History of Medicine 
Professor of Pediatrics and Communicable Diseases 
Professor of Health Management and Policy (Public Health) 
Professor of History 
University of Michigan  
Ann Arbor, Michigan 
 
Deirdre Moloney, PhD 
Historian 
Author, NATIONAL INSECURITIES: IMMIGRANTS AND U.S. DEPORTATION POLICY 
SINCE 1882 (2012) 
Lawrenceville, New Jersey 
 
Lucy E. Salyer, PhD 
Professor of History 
University of New Hampshire 
Durham, New Hampshire 
 
Yael Schacher, PhD 
Senior U.S. Advocate 
Refugees International 
Washington, District of Columbia 
 
USCA Case #21-5200      Document #1923266            Filed: 11/19/2021      Page 26 of 28

 
CERTIFICATE OF COMPLIANCE 
This brief complies with the type-volume limitation of Fed. R. App. P. 
29(a)(5) because it contains 3,630 words. 
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) 
and the type style requirements of Fed. R. App. 32(a)(6) because this brief has been 
prepared in a proportionally spaced type face using Microsoft Word 2010 in Times 
New Roman 14-point font. 
Dated: November 19, 2021 
  
 
/s/ Raymond P. Tolentino  
 
 
Raymond P. Tolentino 
Counsel for Amici Curiae 
 
 
 
USCA Case #21-5200      Document #1923266            Filed: 11/19/2021      Page 27 of 28

 
 
CERTIFICATE OF SERVICE 
I hereby certify that on November 19, 2021, I electronically filed the foregoing 
amicus brief with the Clerk for the United States Court of Appeals for the D.C. 
Circuit by using the CM/ECF system. A true and correct copy of this brief has been 
served via the Court’s CM/ECF system on all counsel of record.  
Dated: November 19, 2021 
  
 
/s/ Raymond P. Tolentino  
 
 
Raymond P. Tolentino 
Counsel for Amici Curiae 
 
 
 
 
USCA Case #21-5200      Document #1923266            Filed: 11/19/2021      Page 28 of 28

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