They are monsters looking for any loophole to torture children who came desperately seeking the America that claimed to be a haven. My family sought and received that refuge when we ran from pogroms and German National Socialists.
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.
The United States’s 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.
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