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Ilya Shapiro

Ilya Shapiro

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb.

Articles by Ilya Shapiro

“Acting” Officers Can’t Act Forever, and Their Rules Are Illegitimate

September 10, 2020

A core component of the balance of powers between the executive and legislative branches is the Senate’s role to advise and consent to the appointment of officers. Under the Appointments Clause of Article II, federal officials are nominated by the president with the “advice and consent of the Senate.”
However, and this should come as no surprise to anyone, the Senate is not an efficient body; there are often delays with the appointment process, both due to unexpected vacancies, and general political gridlock. Knowing this, Congress enacted the Federal Vacancies Reform Act (FVRA) which allows the president to appoint “acting” officers, without the Senate’s advice and consent, so long as they are only in office for a limited time: a maximum of 210 days. This act is a narrow exception and is

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American Courts Don’t Have Universal Jurisdiction

September 9, 2020

Child slavery within the cocoa trade has earned global attention. Nestlé has condemned the practice and joined accords aimed at abolishing human trafficking in the region. Nonetheless, the chocolate company finds itself in a decade‐​long lawsuit over the enslavement of Malians on Ivorian plantations on the basis of the corporation’s alleged purchase of cocoa from farms that used slaves.
The Alien Tort Statute gives federal courts jurisdiction over cases brought by foreigners who allege a “violation of the law of nations or a treaty of the United States.” Passed as part of the Judiciary Act of 1789, its purpose was to assure foreign governments that the United States would provide legal remedies for breaches of international law. The Supreme Court in Kiobel v. Dutch Petroleum (2013) held

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Stop Treating Adopted Kids Differently Based on Race

January 13, 2020

The Indian Child Welfare Act strips basic constitutional rights from any child who is racially classified as “Indian.” ICWA was initially created to prevent seizure of Native American children from their intact families by state actors. Modern-day applications, however, hurt the administrative process of foster families’ adoption proceedings. Even in cases where the Native American parent(s), relatives, or affiliated tribe have no issue with the adoption, the process is still delayed by arbitrary administrative rules. In some cases, the child is even removed from stable adoptive parents to be placed in a neglectful, abusive situation. The U.S. Court of Appeals for the Fifth Circuit reversed a district court’s decision to deem ICWA as applied to adoption unconstitutional under principles of

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Yes, Colorado, the Excessive Fines Clause Protects Small Businesses against Your Regulatory Death Penalty

December 30, 2019

Mrs. Soon Pak manages Dami Hospitality, LLC, a company that runs hotels and motels in Colorado. Pak is a Korean immigrant with minimal proficiency in English. She relies on third-party professionals to assist her in maintaining compliance with the myriad regulations that even native English speakers struggle to understand. Between 2006 and 2014, Dami’s insurance agent failed to renew the company’s worker’s compensation insurance, despite assuring Pak that Dami maintained full coverage.
In 2014, the state division of workers’ compensation gave notice that Dami’s policy had lapsed, and Pak immediately secured coverage without any employee suffering any harm. A few weeks later, the division imposed a fine of $841,200, calculated at a $25-500 daily rate that the division had allowed to

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Indian Child Welfare Act Creates Unconstitutional Race-Based Classifications That Hurt Kids

October 9, 2019

The Indian Child Welfare Act strips basic constitutional rights from any child who is racially classified as “Indian.” ICWA was initially created to prevent seizure of Native American children from their intact families by state actors. Modern-day applications, however, both hurt the administrative process of foster families’ adoption proceedings. Even in cases where the Native American parent(s), relatives, or affiliated tribe have no issue with the adoption, the process is still delayed by arbitrary administrative rules. In some cases, the child is even removed from stable adoptive parents to be placed in a neglectful, abusive situation. The U.S. Court of Appeals for the Fifth Circuit recently reversed a district court’s decision to deem ICWA as applied to adoption unconstitutional under

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Indian Child Welfare Act Creates Unconstitutional Race-Based Classifications That Hurt Kids

October 9, 2019

The Indian Child Welfare Act strips basic constitutional rights any child who is racially classified as “Indian.” ICWA was initially created to prevent seizure of Native American children from their intact families by state actors. Modern-day applications, however, both hurt the administrative process of foster families’ adoption proceedings. Even in cases where the Native American parent(s), relatives, or affiliated tribe have no issue with the adoption, the process is still delayed by arbitrary administrative rules. In some cases, the child is even removed from stable adoptive parents to be placed in a neglectful, abusive situation. The U.S. Court of Appeals for the Fifth Circuit recently reversed a district court’s decision to deem ICWA as applied to adoption unconstitutional under

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Picking the Next Supreme Court Justice

September 23, 2019

Three years ago, in the midst of the presidential campaign, I lauded then-candidate Donald Trump’s "terrific list of fabulous judges." This was an unorthodox maneuver — conventional political wisdom is not to put bullseyes on potential nominees’ back — but Trump is an unorthodox politician. Well, now we’re into the 2020 campaign and that old list is getting stale. As I write today in The Federalist, it’s time for an update:
One of the key innovations of Donald Trump’s 2016 campaign was his public list of potential Supreme Court nominees. After Justice Antonin Scalia’s passing thrust the court into the forefront of the presidential election, candidate Trump produced a list of judges that held the Republican coalition together and ultimately attracted swing voters in key states.
Three

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Picking the Next Supreme Court Justice

September 23, 2019

Three years ago, in the midst of the presidential campaign, I lauded then-candidate Donald Trump’s "terrific list of fabulous judges." This was an unorthodox maneuver — conventional political wisdom is not to put bullseyes on potential nominees’ back — but Trump is an unorthodox politician. Well, now we’re into the 2020 campaign and that old list is getting stale. As I write today in The Federalist, it’s time for an update:
One of the key innovations of Donald Trump’s 2016 campaign was his public list of potential Supreme Court nominees. After Justice Antonin Scalia’s passing thrust the court into the forefront of the presidential election, candidate Trump produced a list of judges that held the Republican coalition together and ultimately attracted swing voters in key states.
Three

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Arizona Levies Unconstitutional Tax to Pay for New Sports Facilities

August 28, 2019

Arizona needed to raise money to update its sports facilities, but polling indicated that a new tax for this purpose was politically unpalatable. The state legislature had an idea: it would tax the tourism industry through hotel and rental car surcharges. The initial draft of the tax exempted Arizonans from the surcharge, but a smart legislative counsel observed that this just might be unconstitutional because it treated in-staters differently than out-of-staters. Instead, when Arizona levied a new tax on rental vehicles, it exempted long-term rentals, replacement rentals, bus rentals, and a whole slew of other vehicle rentals that are used primarily by locals, leaving the tax in effect on the short-term rentals favored by visitors. This tax would be voted into place by individual

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The Presidency Didn’t Get More Powers When Congress, to Its Discredit, Failed to Provide Relief to the Dreamers

August 27, 2019

In 2012 President Obama announced the policy known as DACA (Deferred Action for Childhood Arrivals), which provided lawful status to about 1.5 million people brought to the United States illegally as kids. In 2014, he announced a follow-up policy known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). While there was no significant challenge to DACA, a group of states challenged the legality of DAPA. Cato filed amicus briefs in their support at the district court, circuit court, and Supreme Court. Throughout the litigation, Cato maintained that it supported DAPA as a policy matter—we were joined by several law professors along the way—but the president lacked the authority to pursue this change in the law unilaterally.
After Justice Antonin Scalia died

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Free the Eyebrow Threaders

August 13, 2019

One of the encouraging signs for the future of liberty is the spread of state-based groups engaging in constitutional litigation, often with a focus on economic liberty – protecting the right to earn an honest living and thus to pursue the American Dream. That’s why I recently joined the Mississippi Center for Public Policy (MCPP) as a nonresident senior fellow and chairman of the board of advisors to MCPP’s legal arm, the Mississippi Justice Institute (MJI).
Today, MJI filed a new federal lawsuit and joined the ongoing legal fight against occupational licensing laws. MJI’s client is Dipa Bhattarai, a Mississippi eyebrow threader. 
If you don’t know, eyebrow threading is a very safe method of hair removal that doesn’t involve the use of sharp implements, harsh chemicals, or heat.

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Don’t Abuse Property Rights to Build Pipelines

August 7, 2019

The demand for American energy independence and expansion of the natural gas industry have led to a marked increase in the construction of new gas pipelines. The Natural Gas Act empowers the Federal Energy Regulatory Commission to delegate to private pipeline companies the power to take private property to build these pipelines, so long as they pay the just compensation due under the Fifth Amendment. Not content with the power to begin construction after judicially authorized transfer of title, however, these companies have claimed the equivalent of government power—not mere delegated authority—by taking property before any adjudication by means of preliminary injunctions, with even fewer owner protections than statutory “quick takes” (expedited title transfers).
Karolyn and Clarence

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Franco is Still Dead and the CFPB is Still Unconstitutional

July 30, 2019

In Federalist 47, James Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Our constitutional structure is thus built on a foundation of the separation of powers. Indeed, as any Schoolhouse Rock aficionado could tell you, the legislative branch is supposed to legislate, the executive branch is supposed to enforce that legislation, and the judicial branch should interpret that legislation. But what happens when Congress places all of those powers in one agency, and then removes all of that agency’s accountability to elected officials? Worse, what happens when the power of such an agency

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Justice John Paul Stevens, R.I.P.

July 17, 2019

Justice Stevens, who died yesterday at age 99, was the longest-lived justice in American history and the third-longest serving. A proud son of the Midwest, he lived an amazing American life that included witnessing Babe Ruth’s “called shot” and a valorous WWII stint in the Navy. I never had the chance to meet him but, as the personal accounts and eulogies now attest, he was a consummate gentleman and all class, a bow-tied throwback to an era to which we should all attitudinally aspire.  
Stevens, nominated by President Ford in 1975 as the first new justice after Roe v. Wade, had a confirmation process that lasted all of 19 days and concluded with a 98-0 vote. (A different world, indeed.) From 1994 until his retirement in 2010, he was the senior associate justice, meaning the one who

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Cato Does Well in a Tumultuous Supreme Court Term

June 27, 2019

After a bruising and highly partisan confirmation fight, Justice Brett Kavanaugh took his seat on the Court as the term began. Replacing the predictably unpredictable Justice Anthony Kennedy, Justice Kavanaugh seemed poised to move the Court in a decidedly rightward direction. But looks can be deceiving. In a few high-stakes cases and, especially, petition rejections and other votes on the “shadow docket” (as opposed to fully briefed and argued cases), Kavanaugh demonstrated a dynamic – not wholly originalist/textualist or “conservative” – jurisprudence. Notably, he was the swing vote to allow a questionable antitrust lawsuit to proceed against Apple.
And Kavanaugh has tried to keep a low and agreeable profile, easily becoming the justice most often in the majority (over 90 percent of

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Although Supreme Court Doesn’t Overrule Judicial Deference to Agencies, It Cuts It Back Big-Time

June 26, 2019

As the Court often does, in Kisor v. Willkie, it made a big correction in an important legal area without formally overruling a weak or misapplied precedent. All nine justices agreed that courts need to work harder to ensure that a regulation truly is ambiguous before giving the agency re-interpreting it any sort of deference.
In other words, the Court limited the number of cases where judges defer to agencies, while setting out standards for evaluating those cases that boil down to “when the agency is correct and brings its expertise to bear, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy-nilly. That sounds like reining in the administrative state!
At first blush, Justice Neil Gorsuch’s magisterial

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Supreme Court Toasts Economic Liberty in Tennessee Wine Case – Cheers!

June 26, 2019

This morning, in a win for wine-drinkers and freedom-lovers alike (but I repeat myself), the Supreme Court struck down a heavily restrictive Tennessee law that prevented anyone but longtime state residents from getting liquor licenses. The provisions required applicants for an initial license to have lived in the state for two years and for a renewal of that to reside for 10 years, and prevented corporations from getting licenses unless all stockholders were residents. This hurt both would-be small business owners and large distributors like Total Wine & More (one of the parties; full disclosure: I have reserve status in its loyalty program).
It’s terrific that a lopsided majority of justices (7-2) thus preserved economic liberty and interstate commerce, as against a flawed claim that

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Supreme Court Does Well to Strike Down Trademark-Office Censorship

June 24, 2019

In a replay of the Slants case Matal v. Tam from two years ago, the Supreme Court was right to strike down the ban on “scandalous” or “immoral” trademarks because government officials shouldn’t be making those kinds of values judgments. While the outcome was only ever in doubt becuase of an an unusually contentious oral argument, the majority, in a typically evocative opinion by Justice Elena Kagan, did well to show how similar the cases were.
This case illustrates a bedrock principle of First Amendment law. As Kagan puts it, “The government may not discriminate against speech based on the ideas or opinions it conveys.” The problem here is that “the Lanham Act [the federal trademark statute] allows registration of marks when their messages accord with, but not when their messages

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In Private Cemetery Case, Supreme Court at Last Buries Rule Denying Property Owners Their Day in Federal Court

June 21, 2019

This morning, the Supreme Court in Knick v. Township of Scott ruled 5-4 that a government violates the Fifth Amendment’s Takings Clause when it takes property without compensation, and a property owner may bring a claim to that effect in federal court at any time. This means an overruling of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), which required property owners to seek state law remedies in state court  before bringing a federal takings claim.
It’s gratifying that the Court finally overturned the anomalous Williamson County doctrine, which for 34 years denied property owners their day in federal court – forcing them to go through the courts (and often administrative agencies) of the very states they alleged were taking their property.

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Of Course a Memorial Cross Doesn’t Establish Religion

June 20, 2019

This morning, the Supreme Court ruled in American Legion v. American Humanist Association that a 100-year-old cross WWI memorial in Bladensburg, Maryland, doesn’t “establish” religion. That’s the correct result (read Cato’s brief), but the mish-mash of opinions – it took a paragraph to explain which justice was joining which aspect of the decision – leaves Establishment Clause jurisprudence in the muddled state it’s been for decades.
That is, much like in the Ten Commandments cases in 2005, the cross here survived largely because it’s really, really old. Justice Alito’s majority opinion does well not to apply the much-ballyhooed Lemon test – looking to purpose and effects of government action, as well as “entanglement” with religion – but lost votes when he began to squeeze it. Still,

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Iowa Channels Colonel Jessup in Prosecuting Truth-Telling

June 19, 2019

“You can’t handle the truth!” So says Jack Nicholson’s cantankerous Colonel Nathan R. Jessup in A Few Good Men upon the prosecutor’s needling inquisition into the death of a young Marine. So also say the paternalistic officials of Davenport, Iowa to tenants who seek to learn whether their eviction was motivated by what they would consider to be a good or bad reason. The Supreme Court has long held that “hurtful” speech—even outright hate speech—shares the same level of First Amendment protection as a friendly greeting. Two years ago in Matal v. Tam, the Court summarized the law thus: “Speech may not be banned on the ground that it expresses ideas that offend.”
Well, Iowa courts seem to disagree with the U.S. Supreme Court. Theresa Seeberger of Davenport leased a single-family

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Shamefully, Only Two Justices Find that You Can’t Be Prosecuted by a State and the Feds for the Same Crime

June 17, 2019

This morning, in the case of Gamble v. United States, the Supreme Court ruled 7-2—with only Justices Neil Gorsuch and Ruth Bader Ginsburg in dissent—that state and federal governments can continue having a second bite at the apple, both prosecuting someone for the same crime if they wish. It’s really unfortunate that the justices declined to withdraw the “dual-sovereignty” exception to the Double Jeopardy Clause. The Court itself created this doctrine decades ago, before the federal criminal code (unconstitutionally) exploded and before the Double Jeopardy Clause even applied to the states. 
As Justice Gorsuch wrote, “the separate-sovereigns exception to the bar against double jeopardy finds no meaningful support in the text of the Constitution, it’s original public meaning,

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Supreme Court Argument in the “Scandalous Trademarks” Case Wasn’t So Funny

April 15, 2019

FUCT may be fuct. Two years ago in the Tam case, the Supreme Court struck down the Lanham Act’s “disparaging trademarks” provision, but the justices seem less likely to erase the “scandalous trademarks” prohibition now – at least as far as one can tell from this morning’s argument in Iancu v. Brunetti.
That’s because racial slurs and other offensive phrases necessarily have a viewpoint – on the basis of which the First Amendment doesn’t allow the government to discriminate – but swear words can be just a “mode of expression.” At the same time, the “scandalous” mark restriction is so broad that the government is asking the Court to either accept its benevolent assurances or narrow the statute. There were echoes of the government’s assurances not to prosecute certain kinds of speech

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Unanimous Supreme Court Upholds Right to Be Free of Excessive Fines

February 20, 2019

It’s gratifying that the Supreme Court unanimously agreed that the Eighth Amendment’s Excessive Fines Clause applies to the states, meaning that states can’t fine you in a way that’s wholly disproportionate to the offense you commit. As one of the long-established natural rights in the Anglo-American legal tradition, there’s no reason it wouldn’t be and the debates over the Fourteenth Amendment’s ratification support this conclusion. (Here’s Cato’s brief in Timbs v. Indiana.)
At the same time, it’s disappointing that Justices Neil Gorsuch and Clarence Thomas were the only ones who explained, in separate concurrences, that the Fourteenth Amendment’s Privileges or Immunities Clause is the more constitutionally faithful way of extending rights as against state infringement. (Justice Ruth

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That’s Not a Knife… This Is a Knife!

February 18, 2019

If a law is so vague that it makes it impossible to know whether what you’re doing is illegal or not, it cannot stand. Especially not when the vague law requires no criminal intent to render an action unlawful. The state of New York ignored this basic point of criminal law with its ban of “gravity knives”—pocket knives capable of being opened by the mere force of gravity or a slight flick of the wrist, as opposed to “switchblades,” which are spring loaded. The legislature both failed to define what a gravity knife is and eliminated any requirement that a person have criminal intent (mens rea) when it made simple possession of a pocket knife that could qualify as a “gravity knife” a crime.
The central problem here is that this law, which imposes strict liability on simple possession of

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Wall Emergency, Even If Legal Under Existing Law, Violates the Separation of Powers

February 15, 2019

Our Constitution divides federal power among three branches of government: the legislative, the executive, and the judicial. One of the powers given exclusively to the legislative branch (Congress) is to spend money, or to appropriate money for the executive branch to spend, in enforcing the law (which is the president’s power and indeed duty). Specifically, Article I, Section 9 (the Appropriations Clause) says that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” And of course, the purposes for which Congress can exercise this “power of the purse” are enumerated in Article I, Section 8, which is why we have legal battles over, for example, whether some federal law fits into the power to regulate interstate commerce (aka the Commerce

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States Can’t Engage in Protectionism by Labeling It Environmentalism

February 11, 2019

The Commerce Clause was designed not only to give Congress the authority to regulate interstate commerce, but also to ensure that states don’t disrupt the flow of goods and services over state lines. States cannot prefer in-state producers, sellers, or buyers over out-of-state ones, or regulate conduct outside the state. This is a fundamental principle of federalism that prevents states from gaining advantage over others when it comes to trade.
Despite that anti-protectionist mechanism, Oregon enacted its Low Carbon Fuel Standard, which caps emissions not just from the use of fuels, but also from their production and transportation. It uses a methodology called “life cycle analysis” to include these factors. But a life cycle analysis that includes transportation penalizes out-of-state

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Supreme Court Finally Takes Up Second Amendment Case

January 23, 2019

Yesterday morning, the Supreme Court agreed to hear New York State Rifle & Pistol Association v. New York City, which challenges the city’s ban on transferring even licensed, unloaded guns anywhere outside the city – including to weekend homes or shooting ranges. 
Finally! In the decade since the Supreme Court ruled in D.C. v. Heller that the Second Amendment protects an individual right to keep and bear arms, it has declined to take any cases regarding the scope of that right – until now. Matt Larosiere and I made the case a few weeks ago in the pages of the Wall Street Journal that the Court was neglecting its duty to say what the law is by abdicating its responsibility to resolve important controversies regarding various gun regulations. “The federal circuits can’t even agree on

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Supreme Court Shouldn’t Let Agencies Get Away with Animal House Rules

January 2, 2019

Businesses in regulated industries rely on the advice of the regulating agency when making decisions. But, with so many businesses asking the agency for advice, sometimes the agency will need its professional staff (rather than the commissioners or other principals) to help answering questions. If a staff member issues advice, should that be considered the agency’s advice? If not—and if it can neither be relied upon for legal purposes nor be subject to judicial review—isn’t it worse than not getting any advice at all?
Soundboard Association, an industry group representing call centers and others using new phone-dialing technology, wants to know the answer to those questions. In 2009, a Federal Trade Commission staff member sent a letter to a telemarketing company that used soundboard

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Your Constitution Is in the Mail

December 18, 2018

Return Mail, Inc. is a small technological company that developed a and patented a system for processing returned mail after a failed delivery attempt, using optical scanners, computer databases, and other mechanisms. When it sought to enforce its patent against the United States Post Service (USPS), it knew that in the wake of the 2011 America Invents Act (AIA), the U.S. Patent and Trademark Office (PTO) could change its mind and conclude that the patent was granted in error and should have no further force. It also knew, however—or so it thought—that once the government made a decision regarding a patent, the government would be expected to speak with one voice. Instead, two different governmental agencies came to different conclusions and attempted to argue amongst themselves over

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