Court filing

Amicus Brief (Historians, Supporting Appellees) — Huisha-Huisha v. Mayorkas (2021-11-19)

Filed November 19, 2021 in Nancy Huisha-Huisha v. Alejandro Mayorkas; one of 56 filings from this case.

Record facts

Court	U.S. Court of Appeals for the D.C. Circuit
Filed	2021-11-19

Full text

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,

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

USCA Case #21-5200 Document #1923344 Filed: 11/19/2021 Page 1 of 28

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.

USCA Case #21-5200 Document #1923344 Filed: 11/19/2021 Page 3 of 28

iii

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

USCA Case #21-5200 Document #1923344 Filed: 11/19/2021 Page 4 of 28

TABLE OF CONTENTS
PAGE
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
D.C. CIRCUIT RULE 29(d) STATEMENT ........................................................... iii
TABLE OF AUTHORITIES ..................................................................................... v
GLOSSARY ............................................................................................................ vii
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

USCA Case #21-5200 Document #1923344 Filed: 11/19/2021 Page 5 of 28

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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vii

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 CURIAE0F1
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.1F2

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).2F3
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.3F4 (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.4F5 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).5F6
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.6F7

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

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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 #1923344 Filed: 11/19/2021 Page 24 of 28

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 #1923344 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 #1923344 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 #1923344 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 #1923344 Filed: 11/19/2021 Page 28 of 28

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Our copy: gov.uscourts.cadc.38067.01208377684.0.pdf
Original: archive.org

Amicus Brief (Historians, Supporting Appellees) — Huisha-Huisha v. Mayorkas (2021-11-19)

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