In an August 15 decision in the continuing litigation over the rights of detained immigrant children that began during the Obama administration but whose origins go back almost 35 years to 1985, the 9th Circuit Court of Appeals rejected an argument by Trump's Department of Justice that Border Patrol officers are not required to provide soap, towels or other hygienic or sleeping facilities to detained immigrant children. In effect the DOJ argued that the Trump administration has the right to engage in systematized child abuse. The Circuit Court disagreed.

On the surface, the only issue involved in this latest development in the long standing litigation over the human rights of immigrant children, now known as Flores v. DHS, ICE and CBP (originally Flores v. INS), was the technical legal issue of whether the appellate court had jurisdiction.

This question in turn depended on another technicality, namely whether a 2017 District Court order directing Border Patrol officers to provide soap, toothbrushes adequate paces to sleep to detained immigrant children represented a "modification" of the 1997 Flores settlement agreement between children's rights advocates and the government, or whether the District Court order was only "enforcing" the Flores settlement

Trump's DOJ argued that since the Flores settlement only contained general language requiring the government to protect the safety and best interests of detained immigrant children, but made no reference to details such as soap, toothbrushes or sleeping arrangements, the District Court order had "modified " the Flores Settlement and given the DOJ the right to appeal to the Circuit Court.

The 9th Circuit dismissed the DOJ's appeal for lack of jurisdictio, and rejected this patently absurd and meretricious argument in the following words:

"Specifically, the government contends that by interpreting paragraph 12A [of the Flores Settlement Agreement] in the body of its opinion to require that Border Patrol stations provide the most basic human necessities - accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water - the District Court modified the Agreement's requirement that minors be held in 'safe and sanitary' conditions that comport with the 'special concern for the particular vulnerability of minors.' We emphatically reject this argument."

For a link to the full decision, see The Guardian, August 16:

https://www.theguardian.com/us-news/2019/aug/16/immigrant-children-soap-beds-trump-court

Beneath this surface of he technical argument over whether the the District Court order that was being appealed was a "modification " of the Flores Settlement Agreement or merely an "interpretation" of that agreement lies much large questions:


1) Why was it so important to the Trump administration to deprive innocent children of basic human necessities that it was willing to go to court in the first place to ask permission to engage in such an obvious and egregious form of child abuse?

2) Why was depriving children of these basic necessities such a key goal of the Trump administration that it was willing to let DOJ lawyers make such a frivolous and meritless argument in court as the one described above - an argument which could quite conceivably have been grounds for their being censured by the Court?

2) What kind of country is America becoming when its government is so anxious to stop immigrants of the "wrong" ethnicity or skin color from coming to America that it is making violation of the basic human rights of children on of its top priorities?


There is an answer to these three question, and it is that this appalling form of child abuse is part of a larger fascist agenda. Commentator David Love wrote as follows in June of last year in Al Jazeera:

"However, for the first time under the Trump administration, the government is now forcefully taking children away from their parents as part of an official punitive measure...

This is American fascism in action."


See:

American fascism is attacking migrant children:

https://www.aljazeera.com/indepthopinion/american-fascism-attacking-migrant-children-180601115856156.html

See also:Josh Potash, (6/20)

Donald Trump is Marching America Toward Fascism

https://blog.usejournal.com/donald-trump-is-marching-america-toward-fascism-ae501dd76185




Roger Algase
Attorney at Law