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As Arguments Wrap, Future of Health Law Is Unclear


This is TALK OF THE NATION. I'm Neal Conan in Washington. All this week, the U.S. SUPREME COURT commanded the nation's attention through three days of oral arguments on what may well be its most important case in decades.

The court's ruling could affect the lives of millions, redefine the role and limits of the federal government, and change the character of the 2012 election. We don't expect to know how the justices will rule until late June, but that doesn't stop journalists and legal experts from reading between the lines.

We'll hear from advocates on either side of the debate about their impressions, and if you followed the arguments this week, what did you learn? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, Will Doig on the bright future of BRT, Bus Rapid Transit, but first the Supreme Court and the future of the Affordable Care Act, and we begin with David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune newspapers, our guest on these issues all this past week. David, nice to have you here in the studio.


CONAN: And before we look back at the week as a whole, let's focus for a few minutes on yesterday's arguments, two different issues. We'll begin with the morning session. If the court decides to strike down the individual mandate, does that mean that the hundreds of other provisions in the law get struck down as well?

SAVAGE: Yes, the - I went into that argument thinking that the court might strike down the mandate, it sure sounded that way on Tuesday, but that then they might find a sort of middle position and say the mandate goes and the insurance regulations go, but all the rest of it stands.

But when the Obama administration lawyer stood up, the court's conservatives, the five essentially on the right, gave him a hard time and seemed to be saying the whole law has to go. It was passed as a package and it has to go entirely.

CONAN: And here's Justice Kennedy's thoughts on the matter. We focus on Justice Kennedy as the justice thought to be more or less in the middle on these issues. He was asked whether the high court would let the law - other parts of the law stand if the mandate was thrown out.


JUSTICE ANTHONY KENNEDY: ...to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike - than to striking the whole.

CONAN: So he's talking about whether it would be, in fact, a more judicial - more judicially active to keep the law minus the mandate or to strike it all down.

SAVAGE: It sounds backwards, doesn't it? The liberal justices - Ruth Ginsberg said we shouldn't be engaged in a wrecking operation, this should be a salvage job - that is, we should try to salvage as much of the law as we can. And you heard Justice Kennedy. He seemed to think that if we left large parts of it standing, this would be a new law, new risks for insurance companies, and really it would be very unwise, and it would be - you know, it would be, he said, an extreme exercise to do that.

So I came away thinking he was inclined, and John Roberts and certainly Justice Scalia, inclined to strike down the entire law.

CONAN: It was Justice Scalia who said if you take out the heart, you have to take out everything else as well. The entire edifice crumbles, to mix metaphors - he didn't, I just did. Then the afternoon issue. This was on the expansion of Medicaid. The federal government was going to be sending a lot more money, effectively, to the states. They would be required to pony up some to get that benefit as well. There were 26 states who said, wait a minute, this is an undue burden.

SAVAGE: That looked like a real hard argument to win. The Supreme Court never in its history has struck down a federal spending law on the grounds that it was an unfair deal to the states. Paul Clement made this argument, said this goes too far.

It started off with Elena Kagan saying, come on, this is a gift, this is a big gift to the state. This is like a gift card. We're going to essentially pay 100 percent of the cost. You're going to expand this program, but what's the big deal?

The big deal, Paul Clement said, was yes, but if the states go along, they could lose all their funding, and that's sort of a club held against the states. And as the argument went along, many of the justices seemed to buy into the loaded gun pointed at the – pointed at you, and even if they don't pull the trigger, that loaded gun can have a - you know, cause you to do what the feds want you to do.

CONAN: And again, we'll go to Justice Anthony Kennedy, and this is his response as he addressed this question.


KENNEDY: There's no realistic choice. There's no real choice. And Congress does not in effect allow for an opt-out. We just know that.

CONAN: So taking it almost as a given.

SAVAGE: Yes, that's right. I mean to the latter part of the argument, Kennedy basically said what Paul Clement was arguing, which is that the states have no choice, they have to go along with this. Therefore it's a type of coercion, and we can't do that.

CONAN: So as we go back over these discussions over the first - these historic three days, four separate issues. Monday's issue was whether this was a tax, whether an 1867 statute applied, which meant that none of this could be adjudicated until somebody had to pay the tax, which doesn't happen until 2015, so we could punt this down the road two years.

As I recall from that day's argument, well, I think the justices seemed to be pretty well convinced that let's deal with this right now.

SAVAGE: Yes, that's exactly right. We went into it the first day thinking there's a possibility the court may say all of this is premature, let's stand back, let's wait till 2015. It was very clear after that argument that nobody seemed to be buying that.

They seemed, both on the left and the right, they were inclined to say let's decide this issue now, it's important to get a decision.

Day two was the mandate, and that sure looked - sounded like a 5-4 split to say this mandate is something new. As Justice Kennedy said, it sorts of puts a duty, an affirmative duty, on citizens. We've never done that from the federal government before.

And then you heard day three, which is - OK, if it goes, what else? And the answer seemed to be the entire law. And to make matters worse from the government's point of view, they seemed to think - five of them seemed to think the expansion of Medicaid was an unfair deal to the states.

CONAN: So even if the federal government is basically giving you money and saying you don't have to take it if you don't want it, that's no good.

SAVAGE: And so that's about as bad as it could go from the government's point of view, from what I heard.

CONAN: Well, we want to hear your thoughts, 800-989-8255. Email talk@npr.org. You can join us - and we'd like to hear your thoughts on what you've learned this past week as you listened to these arguments, the excerpts on this program and broadcast later on ALL THINGS CONSIDERED. There was a special also heard on many of these NPR stations.

But we also want to interview two experts: Randy Barnett, a professor of law at Georgetown University Law Center, a senior fellow at the Cato Institute, with us here in Studio 3A. Thanks very much for being with us.

RANDY BARNETT: Great to be here, Neal.

CONAN: And Neal Katyal, former acting Solicitor General of the United States, currently a partner at Hogan Lovells here in Washington, D.C., with us by phone from Florida. Nice to have you back on the program.

NEAL KATYAL: Thank you very much.

CONAN: And Randy Barnett, let me ask you: What did you learn this week?

BARNETT: Well, I have to say, I told my wife before the arguments started that if I walked out of the courtroom knowing what the outcome was going to be, that would mean we lost, because it would mean that all the justices were basically training their fire in our direction, and then you can be pretty sure.

But if we won, I would walk out of the courtroom not really knowing, and so that's where I am. I feel very good about how the arguments went. In fact, I don't think they could have gone much better for us than they did, or you would be hearing a whole lot more quotes that were adverse to our side than you are currently hearing.

But still I don't know, and I'm not going to know until everybody else finds out in June. I did want to say one thing about one of the quotes that you played in the setup to this, the quote by Justice Kennedy about severability. And I'd be interested if Neal, my colleague from Georgetown, feels the same way.

It's my recollection that at the time that Justice Kennedy made that point, that was a point against just knocking down the mandate alone without also taking out the insurance company regulations that the government said should also go out and were not severable. And that's the 11th Circuit opinion that the amicus had to defend.

I don't think at that point in the argument he was arguing for complete - striking down the whole law, as opposed to just protecting the insurance companies. But I do think later in the argument he made sympathetic noises.

CONAN: A gentle way of telling me I messed up. So Neal Katyal, did I?

KATYAL: Well, I actually thought that the setup to this whole discussion was just a terrific explanation of the issues...

CONAN: You'll be back tomorrow.


KATYAL: And with respect to, you know, the quick question about severability, I think Randy is right, that this was having to do with the government's narrower claim. And what the government was saying here is basically this: The reason why we had a guaranteed-issue provision in the statute is because seven states had tried to insure - to reform their insurance markets by ending discrimination against those with pre-existing conditions.

And those were actually disasters because if insurance companies were told, look, you have to insure anyone, regardless of whether they have pre-existing conditions or not, then everyone waits to buy insurance until they get sick. You literally wait until you're on the ambulance to buy insurance.

And so the Congress in Affordable Care Act followed what was then the Massachusetts model, which is the idea that says, OK, we're going to end discrimination in the markets, but at the same time we're going to ensure that everyone have a certain minimum amount of insurance to prevent that adverse selection problem.

And so that's what the government was advocating, and that's where the - that's the context of Justice Kennedy's...

CONAN: You have both advocated in front of the Supreme Court. I wanted to get your opinions. How much can we read into the questions that we heard Tuesday and Wednesday morning? Neal Katyal?

KATYAL: Well, I think the first thing that everyone should take from this is just really what a masterful job the several different advocates did and the Supreme Court as a whole. I mean, in this town of Washington, D.C., you often go into rooms with high-stakes government decisions going on in which people don't ask the hard questions, they obfuscate them.

And I think that the challengers in the argument and the lawyers for the government, as well as the private lawyers who were appointed by the friends of the court, all did a great job, as did the justices themselves. And I do think that a lot of the credit goes to people like Randy, who framed the issues up correctly for the justices.

I mean, they had, you know, all sorts of influential firepower to try and present the issues as cleanly and in a crystal way as they could, and it really showed in the arguments. Now, with respect to whether or not you can predict something from an oral argument, I'm a pretty firm believer that you can't. And the reason is that the justices, even if they're inclined to agree with you, are often trying to give you a really, you know, hard time, not because they want to give you a hard time but because they want to know the limits of your position, because they know whatever decision they make is going to be the law of the land not just for the specific act at issue in the case, here the Affordable Care Act, but for future things.

And so they're testing the logic. And so I remember, for example, when I argued the Voting Rights Act case, the constitutionality of that, two years ago, and that was a big, huge landmark piece of legislation, the justices gave me, you know, a very thorough grilling at the time, and I think many people, you know, reported and said, oh, you know, the Voting Rights Act is going down as unconstitutional...

CONAN: And it came out the other way. We'll hear from Randy Barnett when we come back from a short break. This is NPR News.


CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. Reading between the lines of some of the Supreme Court's tough questions to government lawyers this week, many legal experts said the court could rule against part or all of the Affordable Care Act. Final arguments wrapped up yesterday in a case with broad implications for business, insurance companies and tens of millions of Americans, and for the fall campaign as well.

If you followed the arguments this week, what did you learn? 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. David Savage is with us, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. He was at the court all this week.

Also Neal Katyal, former acting solicitor general for the United States, now a partner at Hogan Lovells here in Washington; and Randy Barnett, professor of legal theory at Georgetown University Law Center and a senior fellow at the Cato Institute.

And getting back to your read, can you tell from the questions what the justices are actually thinking?

BARNETT: Well, I generally subscribe to Neal's view that you can't really tell. But when I walked out of the - I argued the Raich case, the medical marijuana case, in the Supreme Court. And when I walked out of that argument, I was pretty darn sure that I knew I did not have the votes of Justice Kennedy and Justice Scalia, whose votes I sorely needed to win that case.

And I had two months to convince myself I was wrong, but by the time the opinion came out, I was right, as it turns out. So I think sometimes you can tell. And I thought one of the significant indicators, which everybody was picking up on, at least subtly, and that is when the more conservative justices were asking critical questions of our side.

And by the way, Neal, you should tell your listeners that I'm one of the lawyers for the NFIB in the case itself, and Neal argued the other side...

CONAN: One of the amicus, yes.

BARNETT: No, I'm actually one of the lawyers representing one of the parties, and Neal was representing the other side in the lower courts. But when they were asking us the critical questions, they couched them like, the government says X, what do you say? They said that repeatedly, both Chief Justice Roberts and Justice Kennedy.

When they were asking the critical questions of the government's side, it was a lot more of: I think this, I have the following problem. And I think everybody was - subconsciously, at least - picking up on the difference in tenor of how those critical questions were phrased.

CONAN: We'll hear an example of that. Again, Justice Anthony Kennedy - this is in the debate over the individual mandate.


KENNEDY: Help me with this. Assume for the moment - you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

CONAN: And David Savage, that's the moment where Justice Kennedy was looking at the solicitor general, the government's lawyer here, and saying: Where does this stop?

SAVAGE: Yes, and the important part of that, Neal, is that the government's argument has been that for 70 years the Supreme Court had basically said that Congress has very broad power to regulate anything that's commercial and economic and that regulating health care was obviously commercial interstate commerce, and that the assumption would be that the court would look favorably on that because there's a long line of precedent; you look favorably on that.

Right away Justice Kennedy said no, this is something different. This is putting an affirmative duty on someone to buy a product. We've talked before about regulating products. This is something different. This is something new, and we're not going to assume this is constitutional. You have a heavy burden to show it's constitutional.

That's the way Randy has talked about this issue from the beginning, and the justices seemed to subscribe to that way to view it, that the mandate is something different and therefore should not be presumed to be unconstitutional(ph). So I think it's a very big moment against the government.

CONAN: Five of them seem to feel that way, four didn't, but five makes a majority. Let's get a caller on the line. This is Rich, Rich with us from Rochester, New York.

RICH: Hello, how are you doing today?

CONAN: Good, thanks.

RICH: What I learned was how smart the justices are. I mean, we all think that these, you know, everybody's up there and they're political. But they seem to ask a lot of tough questions and - even on both sides. As much as, you know, you'll hear from the news people, you know, like, this has been a slam-dunk for this one, this has been a slam-dunk for that one, I think we're jumping the gun on all of this.

I think just like Kennedy said, he takes this seriously, and if he's going to do it, he's going to look to see if it should be done or not. I don't think that - I don't think he said one way or the other which way he's going to go as much as if you expect me to do this, show me why I should do this.

And I think – I think - I just - I think - I have the greatest respect for the Supreme Court, and I just think that they'll do a pretty good job. But in the end, I don't think we really know which way this case is going to go. I mean, I always listen to this stuff, and I would say a lot of times I'm surprised by the decisions, so...

CONAN: Neal Katyal, you spoke earlier about how well you thought the justices had done. Randy Barnett, as you watched them perform, what did you think?

BARNETT: Well, first of all, I want to say that I thought that clip was - that could turn out to be the most important statement made by any justice over the six hours of argument. So that clip is very, very telling. And I also agree with the caller, that the justices were really, really on.

That's one of the reasons why I don't credit these criticisms that have been made of the solicitor general and that somehow his performance would have cost the government the case. The justices themselves repeated every one of the best arguments made by both sides. They knew the best arguments made by both sides. They didn't need the advocates to tell them.

This is one of those cases where oral argument probably will not and did not affect the outcome of this case because they walked in the door completely and totally prepared.

CONAN: David, there had been so much argument earlier in lower courts. Based on what we heard out of the 11th Circuit, out of the various other decisions, how much did that influence the justices, do you think?

SAVAGE: Well, it's clear that they've been thinking about this for a long time. And I think it's good to point out to your listeners that oral argument is not sort of like the beginning of the stage where they start thinking about this. It's actually the end of the decision process, because they've been thinking about this for months.

They paid a lot of attention to those lower court opinions. They granted this case in November. They've been getting the briefs in for months. And what happens with the oral arguments is they get together - they're going to get together Friday morning and cast their votes on this case. And so if you're one of the justices, you really have to have it pretty much set in your mind before the oral arguments begin.

That's not the time you walk in and start thinking about the problem. And you could tell, they ask very questions, but because they've spent a lot of time thinking about this, and most of them seem to be - have a pretty good sense of where they wanted to go, but you sort of want to test your own ideas or try it out on the advocates.

So I thought a lot of it is the justices sort of trying out different views on the advocates and getting their response to some of the things that they're uncertain about, but I do think when you listen to them, most of them seem to have a pretty firm view in their mind as to how they view this matter.

KATYAL: You know, I think at the same time, you know, a lot of stuff doesn't actually get asked at oral argument or answered, you know, entirely in a satisfactory way, and it gets kind of hashed out in the months to follow. And sometimes even opinions can change or even votes can change as a result.

So I think one example of this is that we heard a lot of talk about the broccoli hypothetical and what the limiting principle is, and in the briefs there's a limiting principle that just didn't get any discussion at all in the oral argument, which is the idea that the federal government has additional powers that - when states are separately incompetent to deal with a problem.

And so in the past times, when the Supreme Court has enforced the Commerce Clause in things like violence against women and child, and preventing guns being near schools, those are things that are truly local problems. States can deal with those. Localities can deal with them.

Here health care is really different, because any one state that tries to solve the problem on its own becomes a magnet for the uninsured. People in other states will come in. And so things like broccoli, burial insurance, states can solve those problems on their own. What the federal government is seeking isn't some sort of national police power. They're just saying that there are some things that require a uniquely federal solution. And I expect things like that to be advanced in the dialogue in the days to come.

CONAN: Let's go next to Kelly(ph), Kelly with us from River Falls in Wisconsin.

KELLY: Well, good afternoon, gentlemen. I had a question regarding the issue of coercion. I remember back in the 1980s that the government threatened to take away everybody's transportation money if they didn't change their drunk driving limit from .10 to .08. And that seemed to me to be just as coercive as threatening to take away their Medicaid aid if they don't expand Medicaid.

Why is one instance considered unconstitutional by some scholars and some judges, and the other was considered completely permissible? It seems hypocritical to me. So I'd like some education.

CONAN: You could have added the 55-mile-an-hour speed limit too. But Randy Barnett...

BARNETT: Well, in the case that the caller's talking about, what the Congress threatened to withhold was five percent of highway funding, and highway funding, the percentage of money that Congress gives to states for highway funding, doesn't hold a candle to what Medicaid funding is.

And not only did Congress condition 100 percent of the new funding for the new expansion on the states accepting these new terms. But they also conditioned all the previous funding that they've ever had under Medicaid on that. And I think here's the point we're making is that since that very - in that very case, the court said that at some point inducement turns into coercion. If this isn't that point, then there is no such point. And that's - that was what the argument rested on.

CONAN: Neal Katyal?

KATYAL: Well, at the same time, I mean, I think here it's a unique program. The federal program set in it in 1965 when it was set up, that Congress reserves the right to alter, abolish or amend the program at any time. And indeed, Congress has done precisely that. In 1972, they said you're going to lose your funding unless you cover SSI patients. And in 1989, they did that with respect to pregnant women. So this is the exact same tool that has been used before. I think it's an extremely difficult argument to say that the federal government has given too much money under this program and therefore it violates notions of federalism. I just find that a hard one for the court to ultimately swallow.

CONAN: Kelly, thanks for the call.

KELLY: Thanks.

CONAN: Here's an email from Brooke(ph) in Oklahoma City. I listen closely to as much of the coverage audio this court this week as I could. I've always felt like the rally cry from the right- and leftwing extremists who are politicking from the bench was mostly unfounded. However, after the last three days, I'm a bit unnerved at how politically biased the justices on both sides sound. David, we presume all along that four justices would vote with the government, and that there were three justices who were almost a slam dunk to vote against the government. And there were two sort of in the middle but on the conservative side.

SAVAGE: Yes. As, you know, the Supreme Court is always sort of a mix of law and there is a political element. Presidents pick justices because they sort of share his ideology. And we now have five Republican appointees on the Supreme Court, four Democratic appointees. And for much of the argument, you know how this went in Congress, all the Democrats lined up to support the bill, all the Republicans...

CONAN: All but a couple and every single Republican opposed.

SAVAGE: Every single Republican opposed it. And I don't know whether it's - I should be surprised, but it's a little bit distressing that it seemed like all the arguments yesterday - the last couple of days was that the Republican-appointed justices were highly skeptical, and the Democratic-appointed justices were quite supportive.

KATYAL: Well, I think that there's - I mean, you could attribute that to politics, but you also could interpret it in - attribute it to a difference in philosophy. I mean, I think that the justices appointed by Republican presidents tend to look much more at kind of the original understanding of the Constitution. And that's kind of what I'm saying, that the oral argument didn't bring out kind of the originalist arguments for why actually what the government is doing here is permissible.

CONAN: Randy Barnett?

BARNETT: I was going to make a similar point to Neal. I think that they - the - that people do pick up on what you might call a bias, although I wouldn't call it that. And it does have to do with judicial philosophy. And I would say that the left side of the court tends to agree with most of my academic colleagues that Congress has an unlimited plenary power to deal with national problems involving the national economy. And the right side of the court tends to take the view that there must be limits somewhere and you have to tell us what those limits are.

And those are two different views of the Constitution, and they're - they have a political valence to them, but they're not partisan, and they don't have to do with this particular policy measure or this particular president.

CONAN: Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, and Neal Katyal, former acting solicitor general for the United States, currently a partner at Hogan Lovells in Washington, D.C. Also with us, David Savage of the Los Angeles Times and the Chicago Tribune. You're listening to TALK OF THE NATION from NPR News. And let me ask that right at the end of the discussions yesterday, right at the end of the discussions, we had the solicitor general, who did not have the greatest of weeks, stand up and say, really for the first time, there are tens of millions of people who under this law get the blessings of liberty because they get their health care covered.

They will be able to participate in a real meaningful way in modern life because they will get their health care taken care of. Did that argument, do you think, Neal Katyal, cut any ice with the justices?

KATYAL: Well, I think that's hard to say. I mean, my sense is that the - that what the court is looking for is a limiting principle and one grounded in kind of text, history and structure of the Constitution. That particular sentence I don't think really advanced the ballgame, but I think that the government certainly throughout the three days did. And I do think, as I say, that when the justices go back and look at it and understand that there is this very strong originalist conception of when the federal government powers uniquely situated when states can't separately solve a problem like health care on their own. I do think that that limiting principle is available to them.

CONAN: Well, Randy Barnett, do you think the solicitor general had as bad week as a lot of people said he did?

BARNETT: I don't, actually. I think he made the arguments that the government had to make. He put them out there. I think he may not have anticipated as well as maybe he should have what the skepticism he was going to get from the other side. But I think all the arguments were made well. But that one point he made, I'm afraid did open the door to Paul Clement coming in and saying it's a strange kind of liberty - that's a conception of liberty that says the government can impose contracts on people, and make them do business with private companies.

And it's a strange kind of federalism that says the federal government can coerce states to do its bidding. And I don't think Paul would have been able to make that argument if he had - if the solicitor general had not set him up in that way.

CONAN: Let's get one more caller in. Rita. Rita with us from Newbury in Ohio.

RITA: Hi. I'm afraid I have a different take. All of these people on the Supreme Court are unelected, and they don't really represent the country. They're mostly New Yorkers. And I can't understand how the Supreme Court has gotten so much power in our country.

CONAN: Mostly New Yorkers, there's nobody from Staten Island. Anyway...


CONAN: David Savage?

SAVAGE: Yes. That used to be a conservative argument. It was always said, you know, these are unelected judges. They shouldn't be making the big decisions of our government and our political system. And that was the argument that Don Verrilli was saying - hey, this is a, you know, these kind of decisions should be made by the democratically accountable elected officials, not by the justices. So it's sort of a - it's sort of changing the argument around the other way, but it didn't seem like it swayed too many of the critics of the law.

CONAN: And, Randy Barnett, we just have a few seconds left, but clearly, this is set up in the Constitution this way.

BARNETT: Yes. It was. It is. And I will just say about this: I don't consider myself a conservative. I consider myself a libertarian. But I love the way liberals always instruct conservatives on what their conservatives requires on them in terms of judicial philosophy. It's a very interesting instruction.

CONAN: Rita, thanks very much for the phone call.

RITA: Thanks.

CONAN: And, Randy Barnett, thanks very much for your time today.

BARNETT: My pleasure.

CONAN: Neal Katyal, nice to talk with you again.

KATYAL: Thank you.

CONAN: And, David Savage, as always, our visitor from the Supreme Court and the correspondent for the Los Angeles Times and the Chicago Tribune. When we come back, we're going to be talking about the bright future of an underappreciated form of mass transit: the bus. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.

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