Appellants' Rule 28(j) Response Letter — Huisha-Huisha v. Mayorkas

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U.S. Department of Justice 
 
 
Civil Division, Appellate Staff 
 
 
950 Pennsylvania Ave. NW, Rm. 7232 
 
 
Washington, DC 20530 
 
DJ # 145-0-13060 
 
Tel: (202) 514-0236 
 
 
January 18, 2022 
 
Mr. Mark Langer 
Clerk, United States Court of Appeals 
  for the D.C. Circuit 
E. Barrett Prettyman U.S. Courthouse 
333 Constitution Avenue, NW 
Washington, DC 20001 
VIA CM/ECF 
 
RE: 
Huisha-Huisha v. Mayorkas, No. 21-5200; Oral Argument 
Scheduled for January 19, 2022 
 
Dear Mr. Langer: 
 
 
The Government submits this letter pursuant to Fed. R. App. P. 28(j) in 
response to plaintiffs’ letter filed earlier today. 
 
 
The question in this case concerns the correct interpretation of 42 U.S.C. 
§ 265.  That statute was not at issue in either National Federation of Independent 
Business v. Department of Labor, Occupational Safety & Health Administration 
(OSHA), 2022 WL 120952 (S. Ct. Jan. 13, 2022), or Biden v. Missouri, 2022 WL 
120950 (S. Ct. Jan. 13, 2022).  Moreover, unlike the vaccine-or-test requirement in 
the OSHA decision—which the Supreme Court noted affected “84 million 
Americans” and was an “exercise [of] powers of vast economic * * * 
significance,” 2022 WL 120952 at *3—the CDC order at issue in this case applies 
only to certain noncitizens seeking to cross the border without valid travel 
documents and has no broad economic impact.   
 
 
Moreover, the CDC order “fits neatly within the language of” Section 265, 
Biden v. Missouri, 2022 WL 120950 at *3, the text of which is properly construed 
to include both the power to prohibit introduction of persons and the power to 
expel persons who enter in contravention of that prohibition.  Although, as in 
USCA Case #21-5200      Document #1931115            Filed: 01/18/2022      Page 1 of 2

Biden v. Missouri, the challenged CDC Order “goes further than what the [CDC] 
has done in the past” under the relevant statutory authority, that is hardly surprising 
given that the CDC “has never had to address an infection problem of this scale 
and scope before.”  Id. at *3.  Section 265 applies only when “there is a serious 
danger of the introduction of [any communicable] disease into the United States,” 
42 U.S.C. § 265—a circumstance that does not arise frequently.  In addition, since 
at least 1985, CDC has invoked its Section 265 power to take other protective 
actions such as “re-exporting” property.  See Gov’t Op. Br. 28.  
 
 
 
 
 
 
Respectfully, 
 
s/ Joshua Waldman 
 
Joshua Waldman 
Attorney for Appellees 
USCA Case #21-5200      Document #1931115            Filed: 01/18/2022      Page 2 of 2

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