The government is not required to provide migrant children in custody on the border with soap, toothbrushes, or adequate bedding, a lawyer for the Trump Justice Department insisted in court Tuesday. A consent decree guaranteeing “safe and sanitary” conditions, the government argued, is too vague to be enforceable. The assertions left a panel of three judges for the Ninth Circuit Court of Appeals incredulous, with one stating plainly: “I find that inconceivable that the government would say that.”
The case before the court stems from the Flores settlement — a consent decree signed by the government in 1997 that guarantees basic rights for children detained at the border. The Trump administration has repeatedly sought to undermine the two-decade-old agreement, in particular as it pursued its policy of family separation. Currently the administration is appealing a 2017 district court ruling that found the feds had violated Flores by not providing children access to basic toiletries and adequate sleeping conditions at temporary detention facilities operated by the Border Patrol.
As attorney Sarah Fabian of the Justice Department’s Office of Immigration Litigation haltingly attempted to make the Trump administration’s case in a San Francisco courtroom, she was hit with disbelieving questions from the three judges on the bench, Wallace Tashima, William Fletcher and Marsha Berzon.
Judge Berzon zeroed in on the sleep question, citing findings that the Border Patrol made children spend days in facilities with 24/7 artificial light, no beds, cold cement floors, and only an aluminum blanket for insulation. “You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?” Berzon asked. “You’re not really going to say that, right?”
Fabian, the Justice Department lawyer, managed a halting, sputtering response before Berzon broke in again to insist sleep is covered by the language of the consent decree. “You can’t be sanitary or safe as a human being if you can’t sleep,” she said.
Fabian suggested that sleep is not guaranteed because it is not spelled out in the language of the Flores agreement. “One has to assume it was … not enumerated by the parties because either the parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” she said. Judge Fletcher cut in, insisting it is “obvious enough that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum blanket on top of them, that that doesn’t comply with the agreement.”
Fabian conceded she was on shaky ground when it came to depriving migrant children of a right to rest: “I will acknowledge that sleep is at the more difficult edge of what I’m arguing.” Judge Berzon noted: “We have a Supreme Court decision saying it’s unconstitutional to make homeless people not sleep.” The Justice Department lawyer countered: “We’re not talking about the constitutional standard here.”
The exchange continued:
Fletcher: Are you arguing seriously that you do not read the agreement as requiring you do something other than what I described: Cold all night long. Lights on all night long. Sleep on the concrete floor and you get an aluminum blanket?”
Berzon: And too crowded to lie down?
Fletcher: Are you saying that that’s OK? I find that inconceivable that the government would say that that is “safe and sanitary.”
Fabian: Again, as I said, think sleep is clearly at one end of findings.
The proceedings then turned to hygiene items. Judge Fletcher took issue with the government’s claim that the consent decree didn’t guarantee any specific items. “It was soap!” said Judge Fletcher. “That sounds like part of ‘safe and sanitary.’ Do you disagree with that?”
Judge Tashima cut in: “Granted that the decree doesn’t have a list of items that has to be supplied in order to be ‘sanitary.’” But he insisted: “It’s within everybody’s common understanding. If you don’t have a toothbrush if you don’t have soap, if you don’t have a blanket, it’s not ‘safe and sanitary.’ Wouldn’t everybody agree to that? Do you agree to that?”
Fabian responded: “Well— I think it’s— I think those are— there’s fair reason to find that those things may be part of ‘safe and sanitary.’”
“Not ‘may be.’ Are a part,” Tashima cut in. “Why do you say ‘may be’? You mean there are circumstances where a person doesn’t need to have a toothbrush, toothpaste and soap? For days?”
When Fabian deflected, Tashima redirected his questioning trying to draw an argument out of the government’s lawyer. “You’re saying maybe the agreement is so vague as to be unenforceable?” Tashima asked. “That’s really your argument isn’t it?”
“To some extent. Yes, your honor,” Fabian replied. “If the term in the agreement requires an after-agreement interpretation by the district court then, yes, that does constitute a vague term that the parties didn’t sufficiently clarify in reaching agreement.”
Watch the contentious exchange beginning at minute 24 in the video below.
The court gave no indication when it will rule in the case.