Linking Constitution, Laws Harder Than It Sounds
NEAL CONAN, host:
This is TALK OF THE NATION. Im Neal Conan in Washington.
When the House of Representatives convened earlier this month, Republican leaders put the Constitution front and center.
Representative JOHN BOEHNER (Republican, Ohio): We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
CONAN: Members of the House, led by Speaker John Boehner, read the document, or most of it, on the second day of the 112th Congress, and Republican leaders vow to base all legislation on specific parts of the document.
Several newly elected members campaigned as self-avowed constitutionalists, and last night, conservative Supreme Court Antonin Scalia briefed mostly Republican members of the House on congressional issues.
More broadly, the movement to limit the reach of the federal government questions where there Constitution gives Washington the authority to require everyone to purchase health insurance, to cite one recent example, or claim exclusive power to enforce immigration.
So which laws do you question on the basis of the Constitution? Give us a call, 800-989-8255. Email us, email@example.com. You can also join the conversation on our website. Go to npr.org. Click on TALK OF THE NATION.
Later in the program, what do you want to hear tonight from the president in the State of the Union message? You can email us on that now. Again, that address is firstname.lastname@example.org.
In a moment, we'll turn to two constitutional experts, but first, NPR senior Washington editor Ron Elving joins us here in Studio 3A. Ron, always nice to have you with us.
RON ELVING: Good to be with you, Neal.
CONAN: And how does this new focus on the Constitution actually manufest itself on Capitol Hill?
ELVING: Perhaps the smallest, most symbolic and most discussed element was that reading of the Constitution on the first day, when the House came together.
CONAN: The second day.
ELVING: Second day. Well, the first day was the swearing-in day. The first day of actually doing business, they read the Constitution. And that is, you know, it sounds like it's going to be an enormous undertaking, but actually, it didn't take that long, and it was rather smooth. And there were things about it that I think might actually be, well, incorporated into the routine of starting a new Congress - having a lot of members get together and share small parts of the Constitution, and it had a nice sort of ceremonial quality to it. And I think it actually - much as we're hoping the State of the Union integrated seating between Republicans and Democrats will do, contributed a little bit to a sense of bipartisanship and shared purpose.
CONAN: Yet we have people who now describe themselves as constitutionalists. In practical politics, what does that mean?
ELVING: Among other things, the House is saying that it wants all new bills to specify exactly what authority is derived from the Constitution to make possible whatever legislation is being contemplated. It wants to have a citation to exactly which article, what section, what amendment of the Constitution, enables Congress to do what it's contemplating doing.
That obviously is going to introduce an automatic argument about some of the things you've already mentioned, some of the authorities that Congress regularly assumes that it has (unintelligible) under constitutional, different theories of constitutional interpretation open to argument, open to dispute.
CONAN: And those might include?
ELVING: Well, they might include, for example, the authority to tell everyone they had to buy health insurance, the example that you mentioned and certainly the one that's being tested in the courts right now and one we all assume is going to make its way all the way to the Supreme Court for a final decision. But also, with respect to various kinds of taxation.
Now, an amendment to the Constitution established, I believe, in 1913, that the federal government had the power to tax incomes. So that is the basis for our modern income tax. But there are many other ways in which people are taxed that have been subject to some constitutional challenge.
So I would imagine, in the budgeting process and in the appropriations process and in most any kind of legislation that the 112th Congress contemplates in the House - we won't speak to the Senate for the moment - but in the House, there will be an automatic argument about whether or not the particular authority in the Constitution that's cited in the bill as it emerges from the Legislative Counsel's Office, which writes the bills, whether or not it really is an adequate authority for Congress to do what it's contemplating doing.
CONAN: And, well, Ron, we're going to ask you to stay with us, as some of these measures come up in the course of the conversation. Again, we want to hear from callers as to which parts of the law they question on the basis of the Constitution, which actions of the federal government, for that matter, 800-989-8255. Email is email@example.com.
But we want to bring two constitutional scholars into the conversation. Joining us from the campus at Yale University is Akhil Reed Amar, professor of law and political science there and the author of several books on the Constitution. Nice to talk to you again.
Mr. AKHIL REED AMAR (Author, "America's Constitution: A Biography"): Hi, Neal.
CONAN: And joining us here in Studio 3A is Ed Whelan. He's the president of the Ethics and Public Policy Center and a contributor to the National Review Online, also a former law clerk for Supreme Court Justice Antonin Scalia. Nice of you to join us.
Mr. ED WHELAN (President, Ethics and Public Policy Center): Thank you, Neal.
CONAN: And from your point, Mr. Whelan, does this, did this new emphasis on the Constitution and Constitutionalism, does it to some degree derive from the originalist theories that we hear talked about at the Supreme Court and primarily by Justice Scalia, or at least initially by Justice Scalia?
Mr. WHELAN: Well, I think there is an increased interest in the principles of the Constitution, a concern that our country, in many respects, is going adrift. And I think that fuels a lot of the interest in the Constitution and in getting members of Congress to think seriously about their duties.
CONAN: And originalism, if you could briefly explain the theory for us.
Mr. WHELAN: Sure, originalism is a method of interpretation that says that the public meaning of a law is what determines its meaning now. So for example, the example I like to use that's far removed from political controversy is the provision in the Constitution that in order to be eligible to be president, one must be a natural-born citizen.
That's an arcane phrase. If we were thinking about what does it mean today, we might think, well, maybe your mother had to have used natural childbirth when you were born. That - but of course, we all recognize that in order to understand what that term means, we look back to what it meant at the time that it was adopted. And that illustrates the core principle of originalism, which I think is ultimately ought to be noncontroversial.
CONAN: Akhil Reed Amar, is it noncontroversial?
Mr. AMAR: Well, in the spirit of bipartisanship and civility, let me agree with Ed that I personally am an originalist. I think the text and original understanding of the Constitution are very important.
Now, that said, Ed and I actually, though, are only on one side of a debate. There are others, liberals and conservatives, just like there are liberal and conservative originalists - I would reckon myself generally probably more on the liberal side of the equation - there are liberal and conservative non-originalists.
And Neal, since you mentioned Justice Scalia, for whom I have great admiration and of course for whom Ed clerked, he today is very prominently associated with originalism, original intent, as is Justice Thomas, as was Robert Bork before them, my teacher.
But before Bork, before Thomas, before Scalia, I would say the greatest originalist, textualist of the 20th century was Hugo LaFayette Black, a justice on the Supreme Court. FDR's first appointee, a towering liberal, who famously carried the Constitution around with him on his person at all times and really helped create, actually, the foundations of modern originalism.
CONAN: All right. Let's see if we can get some callers in on the conversation as we're discussing the Constitution and how it applies to politics as we know it. Where in the Constitution does Congress derive the authority for certain laws? Where does the federal government derive its authority for certain actions? 800-989-8255. Email us, firstname.lastname@example.org. Let's go to Ken(ph). Ken's on the line with us from St. Louis.
KEN (Caller): Hey, guys, two things I thought were unconstitutional is the U.S. monetary system and the war on drugs. I'll do the drug thing first.
You know, back decades ago, when various folks thought that the federal government ought to have jurisdiction and get involved in stopping a liquid drug, i.e., alcohol, they didn't just start legislating it. They went through the laborious process of getting a constitutional amendment, which they did. Then we saw the folly of the drug war, the side effects on the war on drugs, the Prohibition effect, and the same people then took efforts to get an amendment to undo that previous amendment.
But where today is the war on drug a constitutional amendment, the marijuana one, or the one for cocaine? It's not there. So I think the federal government's involvement in the drug war is unconstitutional. They should follow the same procedure as what happened decades ago.
And then I can real quickly mention monetary...
CONAN: Well, the monetary system is a whole other ball of wax, I think, as we can all agree to that. But Akhil Amar, is there something in the Constitution that gives the Congress the authority to draft laws that prohibit the use of certain drugs?
Mr. AMAR: Sure, justices from all across the political spectrum have always thought so, but beginning with major conservatives, such as Chief Justice William Howard Taft, former President Taft, Mr. Republican before his son was also Mr. Republican. More recently, in the Gonzales versus Raich case, even Justice Scalia for whom Ed clerked, said there's clearly a power.
Marijuana, for example, is a major commodity. There is an interstate and international black market in it. It crosses state lines, and there is power in the federal government to regulate or even prohibit interstate transmission of these things across state lines. And there's even power to regulate in-state aspects of the marijuana trade because those in-state aspects, growing a pot plant in your own home, for example, those plants sometimes find their way onto the black market.
That said, I'm not at all sure that the war on drugs is a good idea. There are many bad ideas that are, nevertheless, properly constitutional. And if you think that they're bad, vote against the legislators who give you this war on drugs, but don't say it's unconstitutional.
CONAN: Ed Whelan?
Mr. WHELAN: Well, I very much agree with Akhil. I think there's a tendency on the part of folks, across the political spectrum, to think that anything that they care passionately about must be either constitutionally protected or constitutionally prohibited.
In fact, the genius of the Constitution is to set up a system in which the vast bulk of issues, large and small, are left to the political processes to be worked out and revised over time. And we can work to persuade our fellow citizens that something is or is not a good idea.
CONAN: Can I just add this email that we have from Ben(ph): I have a problem with the unjust prohibition of marijuana. There is nothing in the Constitution that gives the government or companies that control it the right to take away people's right to medicate themselves.
So marijuana as medication, does that change the argument?
Mr. WHELAN: Well, there's also not - I'm sorry. There's also not a right stated in the Constitution, a general right to medicate oneself with whatever one wants to. So no, I think this is a matter where, as with the war on drugs generally, Congress' Commerce Clause power suffices to enable to do as it's been doing.
Mr. AMAR: One way to see that point is if it - there really is an individual right to self-medicate, then you couldn't have state laws, either, and we do have state drug laws, and we've had state Prohibition laws. Again, that said, I'm not at all sure that the caller is wrong on policy.
When people are in great pain, and marijuana might actually alleviate the pain, I'm not at all sure that we should be declaring war on those people.
CONAN: What do we do about the Constitution and Congress? Stay with us. It's the TALK OF THE NATION from NPR News.
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CONAN: This is TALK OF THE NATION. Im Neal Conan in Washington.
As the new Congress gets underway tonight, the State of the Union message - more on that later in the program. And by the way, if there's something you'd like to hear from the president tonight, send us an email, email@example.com.
But there is renewed focus on the Constitution, not just in the House of Representatives, but elsewhere in the federal government, most notably, of course, where you might expect that, at the Supreme Court of the United States.
Here with us in Studio 3A are Ron Elving, NPR senior Washington editor, and Ed Whelan, president of the Ethics and Public Policy Center, a former law clerk to Supreme Court Justice Antonin Scalia. With us from Yale is Professor Akhil Reed Amar.
We'd like to hear from you, where you think the Constitution poses problems for certain acts of the federal government or certain laws, 800-989-8255. Email us, firstname.lastname@example.org.
And let's go next to Jordan(ph), Jordan with us from Boone in North Carolina.
JORDAN (Caller): Hi, I just want to say first-time caller, long-time listener. I love the show.
CONAN: Thank you.
JORDAN: I was actually going to comment on two different parts of the Constitution, one I think has been given a little bit more power than I'm comfortable with, and one that I think we should focus a little bit more on.
CONAN: Well, why don't we focus on one at a time. These tend to be thorny issues.
JORDAN: Excuse me?
CONAN: These tend to be thorny issues. One at a time, please.
JORDAN: All right. The first one, I was just going to comment on the Commerce Clause. I believe that we've kind of gotten into a vague definition of the Commerce Clause, and I'm a little apprehensive to see what sort of things come out of this discussion that we're getting into with that. And I'm looking forward to the discussion, as well.
CONAN: Are you talking about the Commerce Clause and the health care reform?
JORDAN: Commerce Clause with health care reform and just cross - a lot of things I believe, like health insurance, should be opened up across state lines and things like that. Which brings me to the second part of the Constitution that I would like to comment on, that I really - I'm in favor of more individual states' rights.
I love the idea that potentially a lot of the social issues that we're debating about right now, like the previous caller, legalization of marijuana, abortion, things like that, can be taken from more of a state-centered approach than more of a federally centered one. And I can take any sort of comments off the air.
CONAN: All right, Jordan, thanks very much for the call. And Ed Whelan, indeed, the Commerce Clause, as he mentioned, is at the heart of the debate over the right of the federal government to impose the ability to - the requirement that people, individuals, buy health insurance coverage.
Mr. WHELAN: Yes, it is, and it'll be interesting to see, among other things, how members of Congress construe their Commerce Clause authority. The framers recognized that each branch would have a tendency to aggrandize its own authority. So it would be rather remarkable if Congress, as a whole, takes a narrow view of its Commerce Clause authority. But we'll see how that shakes out.
CONAN: And Akhil Amar, this is going to be decided, everybody believes, as Ron Elving said earlier, eventually by the United States Supreme Court.
Mr. AMAR: On the health care policy, I would say that there are at least four plausible bases for federal authority. One is the interstate Commerce Clause. The big idea is that stuff that crosses state lines, where the effects are not merely limited within the jurisdiction of any given state, those things that cross state lines - people, economic effects, goods and services - can be regulated by the interstate government because they have interstate effects. And insurance and health care are genuine interstate, indeed, international, industry.
But in addition to the interstate Commerce Clause, I think that the health care plan is plausibly understood as a tax plan under the taxing power of Article One, Section 8, as reinforced by the 16th Amendment, which confirmed very broad taxing authority.
And I believe that Congress may legitimately consider health care a fundamental civil right, human right, under its, in my view, very sweeping powers under the 14th Amendment.
Now, my view of the 14th Amendment powers of Congress are perhaps broader than what the Supreme Court today would say. But if we're really going to get back to the Constitution itself, I'd want to remind Jordan the Constitution isn't just the founders' document. It was amended, and it was amended, among other times, after the Civil War to add very considerable power to the federal government because states had misbehaved.
States' rights run amuck had given us the Civil War, and Amendments 13, 14 and 15, all adopted after the Civil War, all end with the same sentence: Congress shall have power.
CONAN: Ron Elving, I wonder, if we go back to the debate on the health care revision, as proposed eventually by the Democrats and President Obama, were these constitutional issues at the heart, or how much were they discussed?
ELVING: I think they were very much at the heart of much of the Republican and conservative critique of the bill that we heard in 2009 and 2010. They may not have been something that the framers of the bill overly concerned themselves with at the time, because they blew past it. They essentially said, as we just heard President Amar say, that there were many bases on which the federal government had the authority to deal with some of these issues. And they were going to proceed.
But I do think it was at the heart of the critique, right from the beginning, that the federal government was overstepping its bounds. Even if those bounds are not generally agreed upon, it was overstepping bounds it should not overstep.
CONAN: Ed Whelan?
Mr. WHELAN: Well, this may be a case where the focus on the individual mandate may be obscuring the broader criticisms of Obamacare. I think Obamacare is bad legislation on all sorts of grounds that have nothing to do with congressional power but simply have to do with the system that's being set up that I think ultimately will debilitate medical care in this country.
So there is this question going on in the courts about the constitutionality of the individual mandate, but again, it shouldn't distract us from the broader policy dispute over Obamacare.
CONAN: Here's an email we have from John(ph) in Columbus: It's going to surprise Americans, and John Boehner, that there's no clear citation in the Constitution to limit immigration. The original Constitution was written in the era of open borders.
As Michele Bachmann said in Iowa last week, immigrants made us the exceptional, indispensible nation. All federal laws that restrict immigration, it turns out, have no constitutional foundation unless, of course, you accept the ruling of what must have been active liberal? question mark, court that allowed Congress to invent a power for itself.
Is the power to limit immigration, Ed Whelan, in the Constitution?
Mr. WHELAN: Well, I'll defer to Akhil on this because he's a genuine expert on the history of a whole range of constitutional provisions. I will note that there is a provision to - that gives Congress the power to establish a uniform rule of naturalization, and I do think it also adheres in a sovereign power that you're able to protect your borders. So I'd have difficulty - I'd be disinclined to believe that there's not that power, but I'd certainly want to hear the counterargument.
Mr. AMAR: That power has been exerted from the earliest days of the republic. I agree with the caller, the framers were very pro-immigration. Seven of the 55 people who signed their name to - of the 39 people who signed their name to the Constitution in Philadelphia were themselves, foreign-born. Four of our first six secretaries of the treasury, including Alexander Hamilton and Albert Allatin, three of the first 10 justices of the Supreme Court, the man who writes the words we the people, James Wilson, he's an immigrant.
So they're very pro-immigrant. But Congress has a very sweeping power to limit immigration. I deduce it textually from the Commerce Clause, which is about interstate and international transaction. Bodies crossing international borders, just like goods and services crossing international borders, may be regulated.
This argument is put forth quite brilliantly in a recently article by my colleague Jack Balkin in the University of Michigan Law Review on commerce. And basically saying it's not infinite, it's not everything, but things that are genuinely interstate and genuinely international, that's what we have a federal government for, and that's what John Marshall, I believe, though in the great case of McColloch versus Maryland from 1819.
CONAN: Let's go next to Brian(ph), Brian with us from Denver.
BRIAN (Caller): Hi, good afternoon. I was curious as to how the Constitution interprets or what is going to happen for a lot of the social agenda, particularly surrounding a lot of the new anti-abortion and abortion-restricting measures that Republicans are introducing and also how that's going to affect any anti-gay marriage agenda that they have. Where is any of that found in the Constitution?
CONAN: And these are - and Akhil Amar, as I turn to you, these are generally decided in the courts of late, and not at the congressional level.
Mr. AMAR: And there are two issues. One is about the scope of federal power. That's a federalism question. Are these properly regulated by the federal government on the one hand, or are they basically reserved to the states?
And then there's a second question, an individual rights question. If a certain kind of law violates individual rights, in general in our tradition, after the Civil War, not only can Congress not invade civil rights, states can't either. They can't abridge free speech or free press, even though the original First Amendment says Congress shall make no law.
So they are really two-fold objections sometimes. One is a federalism objection. One is an individual rights objection. And then as Ed and I have been repeating, a lot of times it's just a policy objection.
On Obamacare, for example, I don't love the system either, as a policy matter. I think it's obviously constitutional and doesn't violate either federalism or individual rights. It still might be a bad law. That's true of the marijuana laws and maybe a lot of laws.
CONAN: Ed Whelan?
Mr. WHELAN: Well, on federal abortion measures, I think it's fair to say they generally take either of two types. One would be conditions on federal funding, and I think the ability to attach conditions to federal funding flows from the ability to confer the federal funding.
And secondly, I think there's a Commerce Clause authority to regulate matters in interstate commerce. It would also be anomalous for the Supreme Court to have taken, to have so federalized the issue, seized away from the states, and it's a little strange for Congress not to have any power there.
On same-sex marriage, the primary measure that the federal government has taken is the Defense of Marriage Act, which in part defines what marriage means for purposes of federal law - clearly within its authority - and part attempts to define the full faith and credit obligations of the different states. And again, there's some disputes over whether it has that power or not, we'll see.
More broadly, I think the effort in Congress, at least at one point, was to promulgate a constitutional amendment on marriage pursuant to the amendment provisions (unintelligible).
CONAN: As many states have - yes. As many states have. Brian, thanks very much for the call.
And it's - here's an email we have. This from - this - excuse me, from Lorna(ph) in Palisade, Colorado. Where in the Constitution is funding for NASA justified? And I think this goes to the broader question of there's a whole range of things obviously never envisioned by the Founders of the United States Constitution, from television to cell phones to any of the other myriad devices that human ingenuity has contrived in the years intervening.
Akhil Reed Amar, does the Constitution - is it absurd to say the Constitution covers funding for NASA?
Prof. AMAR: Not at all. We mark this week the 50th anniversary of John Kennedy's inaugural address. He understood that the race to the moon was actually part of foreign policy. It was part of the Cold War. We were challenging the Soviet Union. We said we could put a man on the moon within that decade, and we did it, and we were challenging them to compete with us peacefully. We would show to the rest of the world the superiority of our way of life. It was very much a national security strategy to not lose the race for space.
The Constitution talks about armies and navies. It doesn't say air force, but I would be very loath to think that you can't have an air force. And for similar reasons, I'd be very loath to think you can't have a space policy, a NASA policy.
And John Marshall basically made just this argument in McCulloch versus Maryland, because there's no bank clause of the Constitution, and there's no corporation clause of the Constitution, yet he said Congress surely has power to create a national bank, to create a corporation, and he didn't point to a specific clause. He did not rest on the necessary and proper clause or any other specific clause. He basically said it was part of the basic purpose of the federal government, most important of which is national defense, and he said properly that a bank was very useful for our national defense to move money around from north to south, east to west, to make sure that the army got paid on site, on time, an ATM argument for broad federal power. And he was at Valley Forge. He understood national security.
So first and foremost, the Constitution is a national security document. Congress and the federal government have broad national security powers, and NASA is part of that.
CONAN: We're talking about the Constitution and constitutionalism and originalism. You're listening to TALK OF THE NATION from NPR News. Our guests, Akhil Reed Amar, you just heard him from Yale University, where he's a professor of law and political science. Also with us, Ed Whelan, president of Ethics and Public Policy Center and former law clerk to Supreme Court Justice Antonin Scalia. NPR's senior Washington editor Ron Elving also with us here in Studio 3-A.
And, Ron, as you're hearing this debate and this discussion, these various issues as they come up, are they going to be practical issues on Capitol Hill? Are we going to see proposals, for example, immigration reform activists say we need to repeal part of the 14th Amendment that gives persons who are born in the United States automatic citizenship? Is that going to be anything real that we have to worry about?
ELVING: Yes, I believe it will be part of the debate, whether or not we have to worry about it. Of course, it depends on where you stand on that particular issue, but I do believe that the amendment, the 14th Amendment, with respect to whether or not someone is a citizen just by virtue of being born here even if one's parents are not here legally, that I believe is going to be an issue that's going to be debated.
Some other elements of the new conservative movement, sometimes referred to as the Tea Party, very loosely, have also asserted that the 17th Amendment, which allows for the popular election of senators, was not a particularly good idea, that that was not an improvement, and that perhaps we were better off when the state legislatures were deciding who should be the senator from each state. These all can be reconsidered. That is part of the organic nature of the Constitution.
And I think if we go back 10, 20 years, 30 years, depending on whose regime was more dominant in Washington at a particular time, you find the Constitution being used as a rhetorical weapon by the people who are more or less feeling imposed upon by the dominant federal power, whatever it happens to be.
Back in 1980s when Ronald Reagan was president, I remember many of the candidates running for president in 1988, at the end of the Reagan presidency, were criticizing the Reagan administration for having ignored the Constitution with respect to the Iran-Contra controversy, for example. Dick Gephardt would say over and over the Reagan administration took the Constitution and put it through a shredder. That was one of the main mantras of his campaign in 1988.
And the other Democratic candidates were saying similar things about the high-handed way in which the Reagan administration had dealt with the Constitution. So we've seen this as a left-right dynamic in both directions.
CONAN: Akhil Amar, are we seeing idealism here being expressed, and is this the political realm or opportunism?
Prof. AMAR: Well, here's what I love that ordinary Americans are beginning to talk about the Constitution, to take it seriously. I welcome and applaud that. My own view is that if we do take it seriously, it's not always going to mean what the Tea Party folks say it means, but let the conversation begin. Let's read the Constitution not just once every session, let's read it once every month. So it's a great conversation. The Constitution is what we all have in common - liberal and conservative, Republican and Democrat.
CONAN: Ed Whelan, would you agree?
Mr. WHELAN: Once again, I find myself in agreement with Akhil. I, again, I think the more study of the Constitution, of the Federalist Papers, of good books about the Constitution, the better.
CONAN: All right. Do you agree with him that some of the people who are declaring themselves constitutionalists might be surprise by the correct interpretation of the Constitution?
Mr. WHELAN: Well, sure, that's going to be the case across the board. Again, there's a tendency to think that the Constitution has in it whatever you'd like to be in it. And when you look more closely, you may discover that's not the case.
So, again, I think folks ought to recognize that the broad outline of our system of government is that issues are left to the political processes to be worked out, that we're not going to find the solution set forth in the Constitution for most things.
CONAN: Ed Whelan, thanks very much for your time. We appreciate it. Ed Whelan, again, the president of the Ethics and Public Policy Center. And, Akhil Reed Amar, thank you for your time today.
Prof. AMAR: Thanks, Ron. Thanks, Ed. Thanks, Neal.
CONAN: And Akhil Amar is a Yale professor of law, and Ron, who he just referenced, is Ron Elving, NPR senior Washington editor. Ron Elving and Ed Whelan were with us here in Studio 3-A.
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