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ORAL ARGUMENT SCHEDULED FOR JANUARY 19, 2022
No. 21-5200
IN THE UNITED STATES COURT OF APPEALS
FOR THE D.C. CIRCUIT
Nancy Gimena Huisha-Huisha, et al.,
Plaintiffs-Appellees,
v.
Alejandro Mayorkas, et al.,
Defendants-Appellants,
On Appeal from the United States District Court
for the District of Columbia
Case No. 1:21-cv-00100-EGS
MOTION OF AMICUS CURIAE THE STATE OF TEXAS TO
PARTICIPATE IN ORAL ARGUMENT
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697
JUDD E. STONE II
Solicitor General
RYAN S. BAASCH
Assistant Solicitor General
Ryan.baasch@oag.texas.gov
LEIF A. OLSON
Special Counsel
Counsel for Amicus Curiae the State
of Texas
USCA Case #21-5200 Document #1924789 Filed: 12/01/2021 Page 1 of 7
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Pursuant to D.C. Circuit Rule 34(e), amicus curiae the State of Texas
(“Texas”) respectfully moves this Court for leave to participate in oral argument in
the above-captioned case and further requests that it be granted seven minutes of
argument time. Texas satisfies this Court’s “extraordinary reasons” requirement
for amicus participation at oral argument because Texas (1) would present
dispositive statutory interpretation arguments that the parties have not addressed;
(2) has a unique institutional interest and expertise in the subject matter and
potential doctrinal repercussions of this case; and (3) will bear an outsized burden
throughout the duration of COVID-19, and potentially again in the future, if
Appellees’ view of the law is adopted. Counsel for Appellants and Appellees oppose
this motion.
This case concerns an issue of first impression and tremendous importance:
the proper interpretation of 42 U.S.C. § 265. Texas is uniquely invested in the
answer to that question because the Court’s decision will shape how effectively the
United States, or even the State itself, may prevent communicable diseases from
being introduced into Texas across its 1,000+ mile international border. On October
11, Texas moved for leave to intervene to protect its interest. On October 26, the
Court denied that motion but invited Texas “to participate as amicus curiae.” On
October 28, Texas filed an amicus brief presenting distinct statutory interpretation
arguments that Appellants and Appellees have not addressed. Extraordinary reasons
justify extending the Court’s invitation for Texas to participate as an amicus to
include Texas’s participation at oral argument.
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First, this case presents a novel question of statutory interpretation that
neither this Court nor any other circuit court has addressed. See Amadis v. DOJ,
Case No. 19-5088 (D.C. Cir. Jan. 13, 2020) (granting motion to participate at oral
argument where amici sought to present statutory interpretation arguments in case
of first impression). Specifically, this case presents the question whether 42 U.S.C.
§ 265 authorizes the Executive branch to summarily expel aliens who enter from a
country experiencing spread of a communicable disease. Appellants and Appellees
principally focus on whether this statute itself grants expulsion power to the
Executive. Texas, by contrast, contends that the Executive branch has multiple other
sources of expulsion authority, and that 42 U.S.C. § 265 permits the Executive to
“suspend” the statutory defenses that aliens would invoke against those other
expulsion authorities. This presents a dispositive alternative ground to reverse the
district court and to establish precedent on this important statutory interpetation
question. See Klayman v. Obama, Case No. 14-5004 (D.C. Cir. Oct. 7, 2014)
(granting multiple opposed motions to participate in oral argument where amici
offered alternative grounds for affirmance). In addition, it closely matches an
interpretation the previous administration advanced when promulgating the orders
at issue here. See Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right to Introduce and Prohibition of Introduction of Persons into
United States from Designated Foreign Countries or Places for Public Health
Purposes, 85 Fed. Reg. 56,424, 56,426 (Sept. 11, 2020) (stating that the law “grants
[the Executive] the authority to temporarily suspend the effect of any law, rule,
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decree, or order by which a person would otherwise have the right to be introduced
or seek introduction into the U.S.”).
Second, Texas has a unique institutional interest and expertise in the subject
of this litigation and the potential doctrinal repercussions of the Court’s ruling. See
Nat’l Ass’n for Surface Finishing v. EPA, Case No. 12-1459 (D.C. Cir. Nov. 11, 2014)
(granting California agencies’ opposed motion to particiate in oral argument where
California had unique institutional interest in outcome of regulatory question).
Texas is currently litigating multiple challenges implicating federal authority at the
border,1 including the Executive branch’s exercise of its Title 42 authority. See Texas
v. Biden, 4:21-cv-00579-P (N.D. Tex.). Texas can assist the Court at argument by
addressing the interplay of these multiple litigations and how a decision in this one
could affect the broader regulatory field governing border security and public health.
For example, in United States v. Texas, 3:21-cv-173 (W.D. Tex.), Texas is actively
litigating the scope of its own authority to limit spread of COVID-19 by aliens subject
to expulsion under Title 42. The district court there preliminarily enjoined a Texas
Executive Order governing movement of those aliens as preempted. 2021 WL
4848743 (W.D. Tex. Aug. 26, 2021). If that order stands, a ruling for Appelles here
may have particularly grave public health repercussions. It may, for example, mean
that government actors at every level of our federal system are materially limited
1 Texas v. United States, 1:18-cv-68 (S.D. Tex.) (DACA); Texas v. Biden, 2:21-cv-67
(N.D. Tex.) (Migrant Protection Protocols); Texas v. United States, 6:21-cv-3 (S.D.
Tex.) (pause on removals); Texas v. United States, 6:21-cv-16 (S.D. Tex.)
(prioritization of removal); United States v. Texas, 3:21-cv-173 (W.D. Tex.) (Texas
authority to restrict transport of aliens).
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from restricting the flow of aliens with communicable diseases. Texas is prepared to
address this and many other potential effects of a ruling for Appellees.
Third, if the district court’s order is not reversed, Texas will suffer outsized
impacts both now and in the future. See, e.g., United States v. AT&T, Case No. 18-
5214 (D.C. Cir. Nov. 30, 2018) (granting opposed motion to participate at oral
argument where amici had special interest in development of key legal precedent).
According to the district court (and Appellees), the federal government lacks
authority to summarily expel aliens who enter from a country suffering from a
communicable disease outbreak. Instead, Appellees argue that the Executive must
allow those aliens to remain in the United States for months, if not years, to litigate
potential statutory privileges to remain indefinitely. Necessarily, aliens carrying a
communciable disease will be able to spread that disease during this lengthy stay.
That will have an outsized impact on Texas both during COVID-19 and during any
future event where aliens with a communicable disease are crossing the southern
border. The facts of the current pandemic vividly illustrate the problem, as multiple
Texas communities were forced to declare states of disaster because of the recent
surge of aliens carrying COVID-19. See Texas Amicus Br. at 22-23.
CONCLUSION
For the foregoing reasons, Texas respectfully requests that the Court allocate
seven minutes of argument time for Texas to present oral argument.
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Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1896
Fax: (512) 370-9191
JUDD E. STONE II
Solicitor General
/s/ Ryan S. Baasch
RYAN S. BAASCH
Assistant Solicitor General
Ryan.baasch@oag.texas.gov
LEIF A. OLSON
Special Counsel
Counsel for Amicus Curiae the State
of Texas
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Certificate of Service
On December 1, 2021, the foregoing motion was served via CM/ECF on all
registered counsel.
/s/ Ryan S. Baasch
RYAN S. BAASCH
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