The Trump administration went to court on Tuesday to argue that “safe and sanitary” treatment can mean keeping children in detention without soap or toothbrushes and sleeping on cold concrete floors. The three judges on the 9th Circuit Court of Appeals panel hearing this argument were not having it.
The administration was asking the appeals court to overturn a district court’s order that the longstanding Flores settlement, which governs treatment of detainees, requires such basic hygiene items. While Flores calls for detainees to be housed in “safe and sanitary” conditions, it didn’t specifically mention toothbrushes—or, apparently, sleeping conditions other than a cold floor with a foil blanket—so the Trump administration wanted the 9th Circuit to say it doesn’t have to provide them. The judges wanted to be really sure that was what the administration was arguing.
“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.
“It’s within everybody’s common understanding that if you don’t have a toothbrush, you don’t have soap, you don’t have a blanket, those are not safe and sanitary,” said U.S. Circuit Judge A. Wallace Tashima.
But according to Justice Department lawyer Sarah Fabian, making the administration’s case, “One has to assume” that since the Flores settlement didn’t specify toothbrushes, “it was left that way and 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.” So if Border Patrol now says you don’t need toothbrushes to be safe and sanitary, that should fall within the agency’s power to determine.
”Or it was relatively obvious,” replied U.S. Circuit Judge William Fletcher. “And at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum-foil blanket on top of them that it doesn’t comply with the agreement.”
He went on: “It wasn’t perfumed soap, it was soap. That’s part of ‘safe and sanitary.’ Are you disagreeing with that?”
Yes, the Trump administration was disagreeing with that. In court. In an appeal of a previous judgment against it on this front. It doesn’t sound like that appeal will be successful. In fact, “Have you considered whether you might go back and consider whether you really want to continue this appeal?” Berzon asked. But she also noted that this case “feels like we’re litigating ancient history,” since the Trump administration is also moving to replace the Flores settlement with its own rules—and when that happens, get ready for new horrors.