June 23, 2019


Why a Government Lawyer Argued Against Giving Immigrant Kids Toothbrushes (Ken White, 6/23/19, The Atlantic)

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 El 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 Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) 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.

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 modifiesthe 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.

The entire point of the Frenchism spectacle is that the Right views the insistence of conservatives on a consistent Christian morality as an abdication to the Left. That's why the worse Donald behaves the more hysterical they are in defending him. And, when the issue is immigration, any humane treatment is repellant to them.

NO TRUE SCOTSMAN: The Neo-Nationalist Danger (GABRIEL SCHOENFELD, 6/21/19, American Interest)

One of the nationalist principles Hazony emphatically propounds is "non-interference in the internal affairs of other states." This, of course, leaves open the problem of what to do about genocidal dictators like Hitler, a figure who seems to bedevil Hazony's analysis at every turn. As is well known, in the course of the 1930s, as Hitler tightened the noose around the Jews of Germany, there was a significant number of Americans who believed passionately in something very much like Hazony's principle of non-interference. Like Hazony, they regarded themselves as nationalists. Some were admirers of Mussolini and Hitler. Most were proponents of the slogan Trump has resurrected from that era, "America First." To these America Firsters, Germany's persecution of the Jews was simply the trouble of a wretched people in a faraway land and of no concern whatsoever to the United States.

Some of Hazony's nationalist compatriots like Patrick Buchanan insist to this day that American intervention in Europe in World War II was a historic error. Such a stance is evidently an embarrassment to Hazony, who identifies himself as a "Jewish nationalist, a Zionist, all my life." Confronted with the problem of a Hitler, Hazony jettisons his principle of non-interference and shifts into reverse.Confronted with the problem of a Hitler, Hazony jettisons his principle of non-interference and shifts into reverse. In some instances, Hazony avers, independent nation-states "have no choice but to interfere." Hazony's rationale for this 180-degree turnabout is that the crimes Hitler committed against his own people "were only a prelude to the attempt to destroy all the neighboring national states and to annex their populations to a universal empire." But as Suzanne Schneider asked in a pointed review in Foreign Policy, "How is one to know for sure when crimes committed internally are a prelude to those of outward aggression?" The answer, of course, is that one cannot know. But even if one could know, what course of action would Hazony recommend if the internal crimes were not a prelude to aggression, as in the wholesale slaughter of the Tutsi in Rwanda in 1994 or if Hitler had confined his genocidal ethnic cleansing to within German borders? Would Hazony, like Buchanan, recommend that the United States remain a bystander under the banner of America First? The return of a 1930s-style isolationism is where Hazony's principles appear to lead.

Closely related to the problem of ethnic cleansing is the question of the homogeneity of the nation-state. Although Hazony does not include it in his enumeration of virtues, in the course of his argument it emerges that he regards homogeneity as a significant strength for an independent nation-state. The unwelcome "diversity" that one finds in empires or other agglomerations of peoples, he writes, makes them "more difficult to govern, weakening the mutual loyalties that had held it together, dissipating the attention and resources in the effort to suppress internal conflicts and violence that had previously been unknown to it." For Hazony, what is required for the establishment of a free state is "a majority nation whose cultural dominance" is so "overwhelming" that "resistance appears to be futile." He approvingly quotes Johann Gottfried Herder, the 18th-century father of German nationalism, who warns against "the wild mixing of races and nationalities under one scepter."

The United States thus poses a special challenge to the nationalist idea, for ours is a land where there has long been just such "wild mixing of races and nationalities." Rooted in the involuntary influx of the slave trade and the voluntary influx of immigration, our diversity in the 19th century brought us the bloody strife of a civil war, but in the 20th century it contributed to our remarkable success. Yet diversity is disquieting to Hazony and his fellow neo-nationalists; it is regarded not a strength but a weakness. Many of America's nationalist conservatives, it emerges on inspection, harbor a pronounced strand of nativism.

To Tucker Carlson, a keynote speaker at the Washington conference, immigration is something that "makes our own country poor and dirtier and more divided." Michael Anton warns that "a republic that opens its doors to immigrants must choose carefully whom and how many to accept." He cautions darkly against "ongoing mass immigration that. . . .'fundamentally transforms' one American community after the next." He inveighs against "the ceaseless importation of Third World foreigners with no tradition of, taste for, or experience in liberty." As for Stephen Bannon, at a rightist rally in France, he was the most explicit. He told the crowd, "Let them call you racist, let them call you xenophobes, let them call you nativist. Wear it as a badge of honor." The racialist tenor of such alarums is as transparent as Donald Trump's comments about the "very fine people" among the white supremacists carrying tiki torches as they marched in Charlottesville.

If Germany had only had six million Muslims to purge (as Israel does), Hitler would be the perfect avatar for Hazony's Nationalism.

Posted by at June 23, 2019 8:57 AM