This comes as the Trump administration argued this week in federal court that the government is not required to provide toothbrushes, soap or beds to children detained at the border. Justice Department attorney Sarah Fabian made this argument before a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco on Tuesday. All three judges repeatedly questioned the government’s claim. This is Judge Wallace Tashima.
Judge Wallace Tashima: “If you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree with that? Do you agree with that?”
Sarah Fabian: “Well, I think it’s—I think those are—there is fair reason to find that those things may be part of safe and sanitary.”
Judge Wallace Tashima: “Not 'may be.' 'Are' a part. What do you say, 'may be'? You mean there are circumstances when a person doesn’t need to have a toothbrush, toothpaste and soap for days?”
Sarah Fabian: “Well, I think, in CBP custody, there’s—it’s frequently intended to be much shorter-term, so it may be that for a shorter-term stay in CBP custody that some of those things may not be required.”
Judge Marsha Berzon also pointed out that detained children have been forced to sleep on cold cement floors with just an aluminum blanket.
Judge Marsha Berzon: “Are you really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?”
Sarah Fabian: “Your Honor, I think what I’d like to—what I’d like to stand up and say”—
Judge Marsha Berzon: “Not really going to say that.”
Sarah Fabian: —”is the focus—is to focus the court on what—what the question is.”