Appeals Court: All God's Children Get Soap
A federal appeals court has rejected the Trump administration's claim that detained immigrant children don't necessarily need little luxuries like soap, toothbrushes, edible food, or even a place to sleep. In a ruling yesterday, a three-judge panel of the Ninth Circuit Court of Appeals said the government really and truly does have to comply with the 1997 Flores agreement that sets requirements for how the government treats undocumented children in detention.
Flores requires children be held in "safe and sanitary conditions," but in June, DOJ lawyer Sarah Fabian argued that since the consent decree doesn't specifically define "safe and sanitary," then the government can treat detained kids however it wants, as long as it's not actively injuring them too badly. You're alive and not up to your needs in filth? You're safe and sanitary! Next you'll be complaining the water in cells tastes like bleach, even though bleach is very very sanitary indeed.
When Fabian argued "safe and sanitary conditions" didn't necessarily include "soap" or "places to sleep," the judges were whomperjawed:
"You're really going to stand up and tell us that being able to sleep isn't a question of safe and sanitary conditions?" U.S. Circuit Judge Marsha Berzon asked the Justice Department's Sarah Fabian Tuesday.
U.S. Circuit Judge William Fletcher also questioned the government's interpretation of the settlement agreement.
"Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you've got an aluminum foil blanket?" Fletcher asked Fabian. "I find that inconceivable that the government would say that that is safe and sanitary."
As for Fabian's contention that the phrase "safe and sanitary" was so vague that it was unenforceable, therefore leaving "specifics of compliance up to the government," Judge Berzon was terse in writing for the panel: "Not so."
US District Judge Dolly Gee, who oversees the ongoing implementation of Flores, ruled in 2017 that the government had violated Flores by keeping children in cold, overcrowded cells and not giving them adequate food and water. Those problems continued, leading to the administration's latest attempt to get the Border Patrol out from under Gee's mean decisions. The appeals panel swatted that down:
Gee's determinations "reflect a commonsense understanding of what the quoted language requires," Berzon wrote. "Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep deprived are without doubt essential to the children's safety. The district court properly construed the agreement as requiring such conditions rather than allowing the government to decide whether to provide them."
To her credit, Berzon exercised considerable restraint in not adding, "You vicious fuckers."
The appeals panel rejected the government's argument that in specifying particular conditions for feeding and caring for detained children, Gee had illegally "modified" the settlement beyond its original meaning.
"We doubt that the requirements – that minors 'be offered a snack upon arrival and a meal at least every six hours thereafter,' have food that is 'in edible condition (not frozen, expired, or spoiled),' and 'have regular access to snacks, milk, and juice,' – extend beyond what paragraph 12A requires," Berzon wrote for the panel, referring to a specific section of the Flores agreement.
So hooray! The government will now have to stop housing children in filthy conditions and will have to feed them real food, at least until Stephen Miller comes up with a rationale for encasing their feet in cement so they won't run away. There's nothing in Flores explicitly prohibiting cement shoes, is there?
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