You may recall my earlier post with a video of a Department of Justice lawyer Sarah Fabian trying to defend the awful conditions that detained migrant children were being kept in (such as being denied soap, toothpaste, toothbrushes, showers, beds, and cloth blankets in very cold rooms with the lights permanently on) to an openly incredulous panel of three justices in the Ninth Circuit Court of Appeals.
The court has now issued its opinion and, to no one’s surprise, they ruled against the Trump administration’s position that the phrase ‘safe and sanitary’ conditions stipulated under the earlier Flores consent agreement did not require that children be given access to the above basis human necessities. The government had argued that the district court judge, by requiring that the government provide things like soap or edible food or clean drinking water to children, had altered the Flores agreement rather than simply elaborating its requirements and making them more explicit.
The justices were not buying it. Here are some key sections from their opinion.
The government first suggests that the key phrases in paragraph 12A—“safe and sanitary” and “special concern for the particular vulnerability of minors”—add nothing to the enumerated specific requirements found in the next sentence of the Agreement (requiring “access to toilets and sinks, drinking water and food as appropriate,” and so on). The government’s brief maintains that as the enumerated conditions said nothing about, for example, allowing the children in government custody to sleep or to wash themselves with soap, reading the “safe and sanitary” requirement to cover those requirements is a modification of the Agreement rather than an interpretation of it.
That cramped understanding of paragraph 12A is untenable. Construing the Agreement as requiring only the particular conditions specifically enumerated renders both the “safe and sanitary” and the “particular vulnerability of minors” phrases wholly superfluous. We cannot accept that the parties to the Agreement included gratuitous standards that have no practical impact.
The district court’s interpretation of the Agreement is consistent with the ordinary meaning of the language of paragraph 12A, which does provide a standard sufficiently clear to be enforced. The court found, among other things, that minors (1) were “not receiving hot, edible, or a sufficient number of meals during a given day,” (2) “had no adequate access to clean drinking water,” (3) experienced “unsanitary conditions with respect to the holding cells and bathroom facilities,” (4) lacked “access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels),” and (5) endured “sleep deprivation” as a result of “cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting.” After so finding, the district court concluded that these conditions fall short of paragraph 12A’s requirement that facilities be “safe and sanitary,” especially given “the particular vulnerability of minors.” Those determinations reflect a commonsense understanding of what the quoted language requires. 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.
Of course, the term ‘commonsense’, as well as phrases such as ‘concern for the vulnerability of minors’ are utterly foreign to this administration.