that decision actually goes back to the obama administration which the court ruled violated a mandate that immigrant children in government custody be housed in safe and sanitary conditions. this tuesday the government argued what is and what is not sanitary is vague and doesn't specifically cover toothbrushes and toothpaste. but the appellate court judges all appointed by president clinton argued that should be common sense. >> it's within everybody's common understanding that 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 to that? do you agree to that? >> there's fair reason to find that those things may be part of safe -- >> not maybe. are. >> reporter: just last month the head of dhs congress were in the midst of an on going security and humanitarian crisis at our