Why a Government Lawyer Argued Against Giving Immigrant Kids Toothbrushes

Arguments before the United States Court of Appeals are usually dry, esoteric, and nerdy. What would it take to make one go viral? This week, in a clip that launched a million angry Facebook posts, we found out. It took a lawyer for the United States telling a panel of incredulous Ninth Circuit judges that it is “safe and sanitary” to confine immigrant children in facilities without soap or toothbrushes and to make them sleep on concrete floors under bright lights.

This assertion generated widespread outrage. Sarah Fabian, the senior attorney in the Department of Justice’s Office of Immigration Litigation who uttered it, was instantly excoriated online. As fate would have it, the clip of her argument went viral at the same time as a new wave of reports of brutal and inhumane conditions at immigrant confinement centers. It also immediately followed the raucous debate over Representative Alexandria Ocasio-Cortez referring to the confinement centers as concentration camps. The juxtaposition suggested, misleadingly, that the Trump administration was explicitly justifying the worst sorts of child mistreatment we were seeing on the news.

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The truth is more complex, but still appalling. The sheer effrontery of the government’s argument may be explained, but not excused, by its long backstory.

The government’s “safe and sanitary” argument did not arise from a new case generated by Trump-administration policies. It arose in 1985, during the Reagan administration, when a 15-year-old Salvadoran child named Jenny Lisette Flores was detained after entering the United States illegally, hoping to escape her country’s vicious civil war. Flores spent two months at a facility in California, confined with adult strangers in poor conditions and strip-searched regularly. In July 1985, she and three other minors brought a class action against what was then called the Immigration and Naturalization Service, challenging its policies for the care and confinement of minors.

In 1997, after a dozen years of litigation, the parties settled the lawsuit in what became known as the “Flores Agreement.” The Flores Agreement requires, among other things, that the government hold minors in facilities that are “safe and sanitary” and that they be released from confinement without delay whenever possible.

Over the years, lawyers acting on behalf of minors protected by the Flores Agreement have filed numerous motions asking judges to enforce it, claiming that the government has fallen short of its obligations. They filed the motion now at issue in 2016, during the Obama administration, arguing that ICE (Immigration and Customs Enforcement) and CBP (Customs and Border Protection) were violating the Flores Agreement by, among other things, confining minors in facilities that are not “safe and sanitary.”

United States District Judge Dolly Gee, who considered hundreds of declarations from minors and their parents, ultimately ruled that CBP was violating the Flores Agreement. In 2017, during the Trump administration, she found that CBP failed to provide adequate food and water to minors, that it did not maintain the facilities at adequate temperatures, and that it deprived the minors of sleep by confining them on concrete floors under bright lights. Gee also found that CBP’s obligation to provide “safe and sanitary” conditions included providing soap, dry towels, showers, toothbrushes, and dry clothes. Gee ultimately ordered CBP to appoint a monitor to bring its facilities into compliance with the Flores Agreement.

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Gee’s order put the government in a technical legal bind. When a federal judge appoints an official to monitor compliance with an already existing injunction or agreement like the Flores Agreement, the government cannot immediately appeal. Such a measure is considered an “interlocutory” order—an intermediate one that does not generate a final decision suitable for appellate review. The government can only appeal if the judge modifies the prior injunction or order.

So that’s what the United States argued. In its appeal to the Ninth Circuit, the United States—through Fabian and the other attorneys of the Office of Immigration Litigation—claimed that Gee had altered the deal. They argued that by ruling that “safe and sanitary conditions” specifically required things like dry clothes and toothbrushes and showers and not sleeping on concrete under bright lights, Gee changed the Flores Agreement and “substantially altered the legal relations of the parties by reading new requirements into the Agreement.” That was the premise of their assertion that they could appeal, after all.

It was this sequence of events that brought Fabian before three judges of the United States Court of Appeals for the Ninth Circuit last week to make her startling argument. The panel—which included Judge A. Wallace Tashima, who as a child in World War II was confined to an internment camp with other Japanese Americans—was perhaps not an ideal forum. The judges were openly hostile, incredulous that the government would argue that a facility is “safe and sanitary” even if the minors confined there have no soap, toothbrushes, or dark places to sleep. “I find that inconceivable that the government would say that that is safe and sanitary,” said Judge William Fletcher, in a representative comment. The judges ultimately suggested that the United States should consider whether it wanted to maintain the appeal—a signal that litigants ignore at their grave peril.

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The United States’ loathsome argument—that it is “safe and sanitary” to confine children without soap, toothbrushes, dry clothes, and on concrete under bright lights—is morally indefensible. It’s also a spectacularly foolish argument to raise in the famously liberal Ninth Circuit, where the United States should have expected exactly the reception that it got. And even though the litigation began under the Obama administration, it was the Trump administration that elected to bring this appeal and ask the court to bless these inhumane conditions as “safe and sanitary.” That’s an extremely aggressive legal argument, and one that suggests that the disturbing conditions being reported at confinement centers are intentional, not a sign of mere neglect.

It is right and fit to condemn the Trump administration for its argument and its treatment of children. But it’s wrong to think the problem can be cured with a presidential election. Trump will depart; the problem will not depart with him. This administration is merely the latest one to subject immigrant children to abusive conditions. It’s been 35 years since Jenny Flores was strip-searched in an adult facility. Before Sarah Fabian defended concrete floors and bright lights for President Donald Trump, she defended putting kids in solitary confinement for President Barack Obama.

The fault lies not with any one administration or politician, but with the culture: the ICE and CBP culture that encourages the abuse, the culture of the legal apologists who defend it, and our culture—a largely indifferent America that hasn’t done a damn thing about it. This stain on America’s soul will not wash out with an election cycle. It will only change when Americans demand that the government treat the least of us as both the law and our values require—and firmly maintain that demand no matter how we feel about the party in power.