Constitutional Law

  1. Federal Judicial Power
  2. Source and Scope
  3. Article III, §1 provides that the federal judicial power “shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
  4. Judicial Review
  5. The Constitution does not expressly give the Supreme Court power to declare acts by the coordinate branches of the federal government or state government actions unconstitutional.
  6. However, Marbury v. Madison established that the Supreme Court has the power to review acts of Congress and declare them void if they conflict with the Constitution. This power is implied from Article VI, §2 of the Constitution.
  7. Limitations
  8. Interpretive Limits: how the Constitution should be interpreted
  9. Originalist view: a right exists only if it is expressly stated in the text or was clearly intended by the framers
  10. Non-originalist view: courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document
  11. In District of Columbia v. Heller the Court interpreted the Second Amendment to mean that people had the right to possess handguns for private use in their homes
  12. Congressional Limits: ability of Congress to restrict federal court jurisdiction
  13. Article III, §2 provides that “the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
  14. One side argues that this clause provides Congress with broad powers to remove matters from the Supreme Court’s purview.
  15. The other side argues that Congress is limited in its ability to control Supreme Court jurisdiction.
  16. In Ex parte McCardle, Congress had the power to take away the Supreme Court’s appellate jurisdiction in certain cases
  17. In U.S. v. Klein, Congress went too far by directing a court to rule a certain way. This violated the separation of powers between the judicial and legislative branches.

 

  1. Federal Legislative Power
  2. Source and Scope
  3. Article I, §1 vests all legislative powers in Congress
  4. In evaluating the constitutionality of any act of Congress, two questions are asked
  5. Does Congress have the authority under the Constitution to legislate? Examine the scope of powers granted to Congress under Article I, §8
  6. If so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties?
  7. Implied Powers
  8. In McCulloch v. Maryland, the court held that the Constitution empowers Congress to “make all laws necessary and proper for carrying into execution the foregoing powers.”
  9. The Commerce Power
  10. Article I, §8 states, “Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
  11. The Four Eras of Commerce Clause jurisprudence
  12. Prior to the 1890s: broadly defined but minimally used
  13. 1890s-1937: narrowly defined the scope of Congress’s commerce power and used the 10th Amendment as a limit
  14. 1937-1990s: expansively defined scope of commerce power and refused to apply the 10th Amendment as a limit
  15. 1990s-present: narrowed scope of the commerce power and revived the 10th Amendment as an independent, judicially enforceable limit on federal actions
  16. Questions to consider
  17. What is commerce? All aspects of business, or limited to a smaller scope
  18. What does “among the several states” mean? Inter/Intrastate
  19. Does the 10th Amendment limit Congress?
  20. The 10th Amendment states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
  21. Some take the view that the 10th Amendment is not a separate constraint on Congress, but rather is simply a reminder that Congress only may legislate if it has the authority under the Constitution.

iii. Others take the view that the 10th Amendment protects state sovereignty from federal intrusion.

  1. In Carter Coal, the court held that the manufacturing or production of goods does not amount to interstate commerce and may not be subject to federal regulation.
  2. In Schechter Poultry, the court held that the federal government has no authority to regulate intrastate transactions having an indirect effect on interstate commerce. (Stream of commerce theory)
  3. In NLRB v. Jones, the court held that Congress has the power to regulate any activity, even intrastate production, if the activity has an appreciable effect, either direct or indirect, on interstate commerce
  4. In U.S. v. Lopez, it was decided that in order for Congress to pass a law under the Commerce Clause, it must relate to:
  5. A channel of interstate commerce,
  6. An instrumentality of interstate commerce, or
  7. An activity having a substantial effect on interstate commerce
  8. In U.S. v. Morrison, it was decided that any regulation of intrastate activity under the Commerce Clause must be economic in nature
  9. Tenth Amendment Limit
  10. As decided in New York v. U.S., the federal government cannot order a state government to enact particular legislation.
  11. This opinion was furthered in Printz v. U.S., where the court held that the federal government cannot issue directives requiring states to address particular problems, nor command the states’ officers to administer or enforce a federal regulatory program
  12. Fourteenth Amendment Power
  13. The 14th Amendment provides that all persons born or naturalized in the United States are citizens and that no state can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, property without due process of law or deny any person of equal protection of the laws.
  14. Internal Limits
  15. As decided in Katzenbach, a federal statute enacted pursuant to the Enabling Clause of the 14th Amendment supersedes any state constitutional or statutory provision that is in conflict with the federal law.
  16. Eleventh Amendment
  17. Provides that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
  18. The basic rule: Congress may authorize suits against states pursuant only to §5 of the 14th Amendment
  19. In Fitzpatrick v. Bitzer, the court held that Congress may use its enforcement power under the 14th Amendment to abrogate the states’ sovereign immunity and to permit private suits against the states in federal court.
  20. In Seminole Tribe of Florida, the court held that Congress may not abrogate the states’ immunity from suits. The difference is that abrogation is permitted where it is necessary to enforce the rights of citizens guaranteed under the 14th Amendment.
  21. However, Congress cannot authorize suits against state governments in state court. State governments may not be sued in state court, even on federal claims, without their consent.

 

III.      Limits on State Regulatory and Taxing Power

  1. In determining whether a state or local law is invalidated because of restrictions by the federal government, there are two possibilities:
  2. Congress has acted by passing a law and it preempts state or local law under Article VI of the Constitution (Supremacy Clause, Article VI)
  3. Congress has not acted, or the judiciary decides that federal law does not preempt state or local law. Even if there is no preemption, state and local laws can be challenged under two principles:
  4. The Dormant Commerce Clause: state and local laws are unconstitutional if they place an undue burden on interstate commerce
  5. The Privileges and Immunities Clause: limits the ability of states to discriminate against out-of-staters with regard to constitutional rights or important economic activities
  6. Discriminatory State Laws
  7. The modern approach is based on courts balancing the benefits of a law against the burdens that it imposes on interstate commerce.
  8. In City of Philadelphia, the court held that state laws that are basically protectionist in nature unduly burden interstate commerce and are thus unconstitutional.
  9. In Clarkstown, the court held that discrimination against interstate commerce in favor of local businesses is invalid unless the municipality can demonstrate under rigorous scrutiny that it has no other means to advance a legitimate local interest.
  10. In United Haulers, the court held that an ordinance requiring use of a state-created public benefit corporation does not violate the Dormant Commerce Clause.
  11. Nondiscriminatory State Laws
  12. In Kassel, the court held that a state safety regulation will be unconstitutional if its asserted safety purpose is outweighed by its degree of interference with interstate commerce.
  13. In Reeves, the court held that in the absence of congressional action, nothing in the Commerce Clause prohibits a state from being a market participant (as opposed to a regulator) and acting in that capacity to favor its own citizens over others.
  14. The market participant exception provides that a state may favor its own citizens in dealing with government-owned business and in receiving benefits from government programs. If the state is literally a participant in the market, such as with a state-owned business, and not a regulator, the Dormant Commerce Clause does not apply.
  15. In South-Central Timber, the court held that if a state imposes a burden on commerce within a market in which it is a participant, but the burdens have a substantial regulatory effect outside of that market, they are invalid under the Commerce Clause

 

  1. Civil Rights and Civil Liberties
  2. Introduction
  3. The Bill of Rights guarantees certain rights that were not enumerated in the Articles of the Constitution.
  4. The 9th Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  5. Application of the Bill of Rights to the States
  6. In Barron, the court ruled that the Bill of Rights does not apply to the states, but solely to the federal government
  7. It was established in the Slaughter-House Cases that the 14th Amendment protects the privileges and immunities of national, not state, citizenship, and neither the Equal Protection, Due Process, nor Privileges and Immunities Clauses of the 14th Amendment may be used to interfere with state control of the privileges and immunities of state citizenship.
  8. Today, many of the rights guaranteed by the Bill of Rights are incorporated into the Due Process Clause of the 14th Amendment.
  9. Economic Liberties and Due Process
  10. Economic liberties refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property.
  11. People are guaranteed two types of due process under the 5th and 14th Amendments:
  12. Procedural: procedures that the government must follow when it takes away a person’s life, liberty, or property. (Ex: type of notice or hearing)
  13. Substantive: whether the government has an adequate reason for taking away a person’s life, liberty, or property. (Ex: proving a compelling purpose to take away a fundamental right)
  14. In Lochner v. New York, the court used substantive due process to invalidate a state law protecting workers. The court found that to be a fair, reasonable, and appropriate use of a state’s police power, an act must have a direct relation, as a means to an end, to an appropriate and legitimate state objective.
  15. This decision began a finding of many state laws as unconstitutional under substantive due process. It was used to ensure that laws served an adequate purpose. Following the decision in Lochner, three themes became apparent:
  16. Freedom of contract was a right protected by the Due Process Clauses of the 5th and 14th Amendments
  17. The government could interfere with freedom of contract only to serve a valid police purpose of protecting public health, public safety, or public morals
  18. The judiciary would carefully scrutinize legislation to ensure that it truly served such a police purpose.

 

  1. Equal Protection
  2. Methodology
  3. Questions to consider
  4. What is the classification?
  5. Facially discriminatory
  6. Facially neutral, but has a discriminatory impact and purpose
  7. What is the appropriate level of scrutiny?
  8. Strict scrutiny (racial discrimination)
  9. Intermediate scrutiny (gender and age discrimination)

iii. Rational basis (all others not in strict or intermediate)

  1. Does the government action meet the level of scrutiny?
  2. For strict scrutiny, the end must be deemed compelling for the law to be upheld
  3. For intermediate scrutiny, the end has to be regarded as important

iii. For the rational basis test, there just has to be a legitimate purpose

  1. In Romer v. Evans, the court held that a single class of citizens (homosexuals) cannot be singled out for a discriminatory purpose
  2. In Beazer, the court held that excluding an entire class (drug users) does not violate the Equal Protection Clause of the 14th Amendment
  3. Under and Overinclusiveness under rational basis review
  4. Laws are underinclusive when they do not regulate all who are similarly situated. Allowed under rational basis review.
  5. Laws are overinclusive if they regulate individuals who are similarly situated; that is, if it covers more people than it needs to in order to accomplish its purpose. Allowed under rational basis review.
  6. Race Discrimination
  7. Rational basis review prohibits arbitrary, unreasonable, and irrational classifications because:
  8. They are unlikely to lead to any discernable and understandable legitimate purpose
  9. It regulates similarly situated parties differently, without legitimate reason.
  10. In City of Cleburne, the court held that laws impacting the mentally retarded are not to be given heightened scrutiny
  11. Initially, racial discrimination was not given strict scrutiny. In Dred Scott, the court held that “negroes” could not bring suit in federal court because they were not citizens under the Constitution.
  12. Today, in order for the court to allow racial classifications, the government must show:
  13. An extremely important reason for its action, and
  14. The goal cannot be achieved through any less discriminatory alternative
  15. Race-specific classifications that disadvantage racial minorities
  16. Korematsu is the only case in which the court expressly upheld racial classifications burdening minorities. In this case, the court ruled that Japanese-Americans could be excluded from a certain area.
  17. Racial classifications burdening both whites and minorities
  18. In Loving v. Virginia, the court invalidated an anti-miscegenation law
  19. Laws requiring separation of the races
  20. In Plessy v. Ferguson, the court upheld a law that segregated races on trains
  21. In Brown v. Board of Education, the court invalidated the doctrine of “separate but equal” in schools
  22. Purposeful Discrimination
  23. Some laws that are facially race neutral are administered in a manner that discriminates against minorities or has a disproportionate effect against them.
  24. In Washington v. Davis, the court held that a law must have a “discriminatory purpose,” not merely a disproportionate effect on one race, in order to constitute “invidious discrimination” under the 5th Amendment Due Process Clause or the 14th Amendment Equal Protection Clause.
  25. In City of Mobile v. Bolden, the court held that both a law that has a discriminatory effect, but not a discriminatory purpose, does not violate the Constitution.
  26. Both a discriminatory effect and purpose are required to invalidate a law.
  27. In Palmer v. Thompson, the court held that a facially neutral decision not to operate desegregated facilities does not violate the Equal Protection Clause.
  28. In order to prove that there was a discriminatory purpose, the court must show that the government desired to discriminate. It is not enough that the government had knowledge that their actions would have discriminatory consequences.
  29. In Feeney, the decision to favor veterans for employment did not discriminate against women because the government did not intend to have a discriminatory purpose.
  30. A discriminatory purpose implies that the decision maker selected a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.
  31. Affirmative Action
  32. Questions to consider
  33. What level of scrutiny should be used for racial classifications benefiting minorities?
  34. What purposes for affirmative action programs are sufficient to meet the level of scrutiny?
  35. What techniques of affirmative action are sufficient to meet the level of scrutiny?
  36. In Richmond v. J.A. Croson, the court used strict scrutiny and held that a program requiring the use of minority-owned businesses violated the Equal Protection Clause.
  37. In Grutter v. Bollinger, the court held that a university may admit or deny certain students admission based on race because student-body diversity is a compelling state interest and enrolling an unspecified critical mass of minority students is a narrowly tailored way to advance that interest.
  38. Sex Discrimination
  39. Level of scrutiny: intermediate
  40. In Craig v. Boren, the court held that laws that establish classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives to be constitutionally in line with the Equal Protection Clause.
  41. In U.S. v. Virginia, the court held that public schools cannot exclude women (VMI case).
  42. Proving the existence of a gender classification
  43. Facial discrimination: draws a distinction between men and women
  44. Facially gender neutral: requires demonstrating that there is both a discriminatory effect and purpose
  45. Gender classifications benefiting women
  46. Gender classifications benefiting women based on role stereotypes generally will not be allowed.
  47. Gender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally are permitted.
  48. In Rostker v. Goldberg, the court upheld legislation that limited draft registration to males.
  49. In cases where women benefit because of biological differences between men and women, the court generally allows discrimination.

 

  1. Fundamental Rights
  2. Introduction
  3. For almost all of these rights, the court uses strict scrutiny, which means that the government must justify its interference by proving that its action is necessary to achieve a compelling government purpose.
  4. Under due process, the constitutional issue is whether the government’s interference is justified by a sufficient purpose.
  5. Under equal protection, the issue is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose.
  6. Framework for analyzing fundamental rights
  7. Is there a fundamental right?
  8. Originalists argue that fundamental rights are limited to those liberties explicitly stated in the text or clearly intended by the framers of the Constitution.
  9. Non-originalists argue that it is permissible for the court to protect fundamental rights that are not enumerated in the Constitution or intended by its drafters.
  10. Is the constitutional right infringed?
  11. In evaluating whether there is a violation of a right, the court considers “the directness and substantiality of the interference.”
  12. Is there a sufficient justification for the right?
  13. If the right is deemed to be fundamental, the government must present a compelling interest to justify and infringement.
  14. If the right is not fundamental, the government only needs to prove a legitimate purpose for the law to be sustained.
  15. Is the means sufficiently related to the purpose?
  16. If the government has infringed on a fundamental right, it must show a compelling purpose, and that the law is necessary to achieve the objective. This requires that the government prove that it could not attain the goal through any other alternative that is less restrictive.
  17. Privacy
  18. The Right to Marry
  19. In Zablocki v. Redhail, the court ruled that a statutory classification that significantly interferes with the exercise of a fundamental right cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.
  20. The Right of Parents to Control the Upbringing of Their Children
  21. In Troxel v. Granville, the court held that a parent has a fundamental right in the care, custody, and control of his or her child.
  22. The Right to Procreate
  23. In Skinner v. Oklahoma, the court ruled that the government cannot sterilize criminals because people have a fundamental right to procreate.
  24. The Right to Purchase and Use Contraceptives
  25. In Griswold v. Connecticut, the court ruled that people have an implied fundamental right to use contraceptives. This right is implied as a “penumbra” under the Necessary and Proper Clause.
  26. Abortion
  27. In Roe v. Wade, the court recognized the right of women to terminate a pregnancy in the first trimester. After this point, the state may regulate the abortion procedure in ways that are reasonably related to maternal health. Furthermore, the state may regulate abortion subsequent to the point of viability, except where abortion is necessary for the life of the mother.  This right is guaranteed by the right of privacy found in the 14th Amendment’s concept of personal liberty.
  28. Planned Parenthood v. Casey furthered this decision, where the court held that a law is unconstitutional as an undue burden on a woman’s right to an abortion before fetal viability, if the law places a substantial obstacle in the path of a woman seeking to exercise her right.
  29. Right to Assistance in Dying
  30. Right to Refuse Treatment: not absolute, may be regulated in certain situations
  31. In Cruzan, the court held that a state may require clear and convincing evidence of consent by an individual prior the cessation of life support procedures upon that individual.
  32. Right to Physician-Assisted Suicide
  33. In Washington v. Glucksberg, the court held that there is not a fundamental right to physician-assisted suicide.
  34. Sexual Orientation
  35. In Lawrence v. Texas, the court held that the right to privacy protects a right to engage in private consensual homosexual activity. This decision was consistent with the substantive protections of Due Process Clause of the 14th Amendment.
  36. Right to Vote and Right to Education
  37. Requirement for Photo Identification for Voting
  38. In Crawford, the court held that states may require voters to present government-issued photo identification prior to voting.
  39. Right to Education
  40. In San Antonio ISD v. Rodriguez, the court held that school finance systems based upon differing property tax rates in different school districts do not violate equal protection.

 

VII.     First Amendment: Freedom of Expression

  1. Methodology
  2. Overbreadth: A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated and a person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others.
  3. Vagueness: A law is vague if persons of common intelligence cannot guess what type of behavior is being regulated.
  4. Unprotected Speech
  5. Incitement of Illegal Activity
  6. Under the “Clear and Present Danger” Test, the court may decide that speech is unconstitutional if it will bring about the substantive evils that Congress has a right to prevent.
  7. Under the Brandenburg Test, states are not permitted to proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce or incite such action.
  8. Fighting Words
  9. In Gooding v. Wilson and subsequent cases, the court has held that “fighting words” laws will be upheld only if they are specific and narrowly tailored to apply just to speech that is not protected by the 1st Amendment.
  10. In R.A.V., the court held that a “fighting words” law will be upheld only if it does not draw content-based distinctions among types of speech, such as by prohibiting words based on race, but not based on political affiliation.
  11. The Hostile Audience
  12. In Feiner v. New York, the court used the clear and present danger test to determine that when there is a danger of riot, disorder, interference with traffic on the streets, or other immediate threat to public safety, peace, or order, the state has the power to punish or prevent such disorder.
  13. Sexually Oriented Speech
  14. The court has held that obscenity is a category of speech unprotected by the 1st Amendment and has struggled to define what is “obscene.”
  15. In Paris Adult Theatre, the court held that a state can forbid the distribution of obscene material to consenting adults in order to preserve the quality of the community and to prevent the possibility of resulting antisocial behavior.
  16. In Miller v. California, the court used a three-part test to determine whether material is obscene and unprotected by the 1st Amendment:
  • The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  • The work depicts in a patently offensive way sexual conduct specifically defined by the applicable state law; and
  • The work, taken as a whole, lack serious literary, artistic, political, or scientific value
  1. The court has indicated that child pornography is not protected by the 1st Amendment, even if it does not fit within the definition of obscenity.
  2. In New York v. Ferber, the court held that the government may prohibit the exhibition, sale, or distribution of child pornography even if it does not meet the test for obscenity.
  3. In Free Speech Coalition, the court emphasized that the law required that the material could be deemed child pornography only if children were actually used in its production.
  4. Protected but Low-Value Sexual Speech
  5. There is a category of sexual speech that does not meet the test for obscenity and thus is protected by the 1st Amendment. However, it is deemed to be of low value, and thus the government has latitude to regulate such expression. The contours of this category are undefined.
  6. Vulgarity
  7. Profanity and “Indecent” Speech
  8. Generally protected by the 1st Amendment, but there are exceptions
  9. In Cohen v. California, the court held that a state cannot bar the use of offensive words either because such words are inherently likely to cause a violent reaction or because the state wishes to eliminate such words to protect the public morality.
  10. In FCC v. Pacifica, the court held that the government may validly regulate speech that is indecent but not obscene.
  11. However, the government cannot restrict indecent or obscene telephone or internet messages because people must take affirmative steps to access these types of media, whereas content on the radio may be heard without the listener’s consent.
  12. Conduct the Communicates
  13. Under the Spence Test, conduct is communicative when:
  14. There is an intent to convey a particular message, and
  15. In the surrounding circumstances, the likelihood was great that the message would be understood by those who viewed it.
  16. Finding that conduct communicates does not guarantee that it is immune from government regulation. Under the O’Brien Test, when both speech and nonspeech elements are combined in the same conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of 1st Amendment freedoms.
  17. Public Forum
  18. The government may regulate speech in public forums only if certain requirements are met:
  19. The regulation must be content neutral unless the government can justify a content-based restriction by meeting strict scrutiny.
  20. It must be a reasonable time, place, or manner restriction that serves an important government interest and leaves open adequate alternative places for speech.
  21. A licensing or permit system for the use of public forums must serve an important purpose, give clear criteria to the licensing authority that leaves almost no discretion, and provide procedural safeguards such as a requirement for prompt determination of license requests and judicial review of license denials.
  22. The court has ruled that government regulation of speech in public forums need not use the least restrictive alternative, although they must be narrowly tailored to achieve the government’s purpose.
  23. Content Neutrality
  24. In Mosley, the court held that the government has no power to restrict expression because of its message, ideas, subject matter, or content under the 1st Amendment.
  25. Time, Place, and Manner Restrictions
  26. In Hill v. Colorado, the court held that a statute may be upheld as a valid time, place, and manner regulation where it serves governmental interests that are significant and legitimate, the restrictions are content-neutral, and the statute is narrowly tailored to serve such interests, leaving open ample alternative channels for communication.
  27. Licensing and Permit Systems
  28. The government can require a license for speech in public forums only if:
  29. There is an important reason for licensing,
  30. There are clear criteria leaving almost no discretion to the licensing authority, and

iii. There are procedural safeguards such as a requirement for prompt determination of license requests and judicial review of license denials

  1. The government cannot require a permit fee for demonstrations if government officials have discretion in setting the amount of the charge
  2. No Requirement for Use of the Least Restrictive Alternative
  3. In Ward v. Rock Against Racism, the court held that when the government regulates speech in the public forum, it need not use the least restrictive alternative, although any regulation must be narrowly tailored.
  4. Association and Compelled Speech
  5. The court has indicated that freedom of association would protect a right to discriminate only if it is intimate association or where the discrimination is integral to express activity.
  6. In Hurley, the court held that private citizens organizing an event may not be forced to include groups whose message they do not wish to convey.
  7. In Boy Scouts of America v. Dale, the court held that a group may constitutionally exclude an unwanted person if forced inclusion would infringe the group’s freedom of expressive association by affecting in a significant way the group’s ability to advocate public or private viewpoints.
  8. In Christian Legal Society v. Martinez, the court upheld the constitutionality of a law school requiring student groups to accept all members and denying recognition to student groups that discriminated based on religion and sexual orientation.

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