August 16, 2019

The 9th Circuit Court has struck down the Administration's appeal to them that children detained at the U.S./Mexico border don't need sleep, edible food, toothbrushes, toothpaste, clean water, or soap.

It is beyond comprehension that my fingers had to type the above words. Seriously dumbfounding.

An actual human being employed by this White House argued to the three-judge panel that the Flores Agreement — mandating safe and sanitary conditions for migrant children kept in our facilities — did not include access to clean teeth, bodies, or mattresses. Food that had been defrosted. Water that wasn't brown. Sleep that didn't take place in rooms with bright lights on all the time, and in only short intervals. An actual human being, who gets a goddamned government paycheck, tried to convince three judges that children, BABIES, were not entitled to anything other than concrete to sleep on. That because the words "toothbrush" wasn't included, "soap" wasn't spelled out, "mattress" wasn't mentioned, the Government was not required to give these to toddlers in its care.

I'm not the only one astonished and outraged by this cruelty. Danny Cevallos, a legal analyst for MSNBC, joined Yasmin Vossoughian and Ayman Mohyeldin to discuss it this morning.

VOSSOUGHIAN: I want to talk about this ruling yesterday, which I thought was pretty astounding to say the least, on immigrant children in the ninth district saying children should be able to receive edible food, clean water, soap, and toothpaste under this longstanding agreement. What is astounding to me about this is that they actually had to even have a ruling on this. And actually had to spell it out. That children should get soap and toothpaste. Children. Again. Kids detained as young as 10 months old, as we've seen in these detention centers. What to do you make of it?

CEVALLOS: It gets even stranger than you describe. Because this is one of those cases where...I normally try to see both sides of every case, on every appeal there's an argument on both sides. This doesn't appear to be one of those cases. And it's even more amazing when you consider that a lower court, a district court already concluded that the 1997 Flores Agreement which governs all this activity, says, that even though it doesn't say the words tooth paste, toothbrushes, it is required to provide sanitary conditions. The government has that obligation. So, the government already lost this case at the lower district court level. What is surprising that they even bothered to appeal it to the 9th Circuit to begin with. The entire gist of their argument is, "Well, the agreement says sanitary conditions. It doesn't really say the words 'toothbrush' or 'toothpaste.' So, there's no requirement to provide that." I think anyone reasonably interpreting the Flores Agreement to provide sanitary conditions for young migrant children is going to conclude that that includes soap. It doesn't include an x box or cell phone but at its core, at its floor, it includes things like toothbrush and toothpaste.

MOHYELDIN: Edible food, apparently that had to be spelled out.

CEVALLOS: And edible food. Heat. Things like that. The basics.

Thankfully, the 9th Circuit judges were likewise astounded, and ruled that OF F*CKING COURSE the Flores Agreement's provision for safe and sanitary conditions included things like soap, toothbrushes, sleep and food.

“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,” wrote Judge Marsha S. Berzon, a Clinton appointee.
During the hearing, 9th Circuit Judge A. Wallace Tashima, a Clinton appointee, appeared incredulous that a lawyer for the federal government would not quickly concede that having soap and toothbrushes was a necessary requirement for sanitary conditions.

Someone had better spell out for DHS Acting Secretary Kevin McAleenan that children detained should be permitted to keep the fillings in their cavities, too. I mean, hey, that's not spelled out in the Flores Agreement, either.

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