Democrats Introduce Unconstitutional Act To Limit The Tenure Of Supreme Court Justices

Democratic members are introducing a blatantly unconstitutional bill that would limit the tenure of U.S. Supreme Court justices to 18 years. In claiming to defend the Constitution, members like Rep. Ro Khanna (D., Cal.), Rep. Joe Kennedy III (D., Mass.), and Don Beyer (D., Va.) are offering a plan that is as illogical as it is unconstitutional. While the bill also includes a provision that I proposed decades ago for the expansion of the Court, the term limit would be dead on arrival at any court.

The new bill, seen by Reuters, would also allow every president to nominate two justices per four-year term. That is a part of a proposal that I made over 20 years ago for the expansion of the Court (here and here and here and here).  Notably, such a bill would raise a severability problem for the courts.  The term limits are clearly unconstitutional and the question would be whether the expansion provision could be preserved. The two provisions could be viewed as so closely related in the legislative scheme to require that the entire law be struck down.

Rep. Khanna is quoted as saying “That’s perfectly consistent with their judicial independence and having a lifetime salary and a lifetime appointment.” It is neither consistent nor constitutional

Article III, Sec. 1 states: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  There is no term limit imposed on such service and the only method for removal is through impeachment. Alexander Hamilton in Federalist No. 78 defended this “permanent tenure” as central to insulating judges from political pressures: “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.” Thomas Jefferson was also an outspoken advocate for this element of Article III and the necessity that judges should “hold estates for life in their offices.”   The Democrats appear to be adopting the failed arguments of anti-Federalists in pursuing this limitation, a curious position for the party.

If Democrats want to reargue the anti-Federalist arguments against life tenure, they need to seek the amendment of the Constitution. While they can expand the Supreme Court without such an amendment, they cannot rewrite the Constitution to achieve this unworthy purpose of packing the Court.

202 thoughts on “Democrats Introduce Unconstitutional Act To Limit The Tenure Of Supreme Court Justices”

  1. The article should have addressed why he thinks the term limits proposal is clearly unconstitutional and the arguments that some make why it is constitutional or ways such a proposal could be made constitutional.

    1. An act of congress to change the constitution without amending the constitution is unconstitutional. That is something one learns in Civic class or Government class at the beginning, if not in history classes years before.

      The Constitution provides that judges “shall hold their Offices during good Behaviour.” The term “good behaviour” is interpreted to mean that judges may serve for the remainder of their lives, although they may resign or retire voluntarily. ” Nothing other than bad behavior or voluntary retirement can remove them without a constitutional amendment.

      1. To clarify, he should have explained his reasoning (which he didn’t) and addressed counter arguments that term limit laws with a senior justice concept are constitutional —see fixthecourt.com Thanks.

  2. These guys are the kids who always got a trophy for participating and were told the score doesn’t matter. Now, they realize how stoopid that idea is, and they are the poorest losers in society. POOR LOSERS! LOSERS! DEM LOSERS!

  3. The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious scandal in American political history.

    The co-conspirators are:

    Kevin Clinesmith, Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann,

    James Comey, Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic,

    Sally Yates, James Baker, Bruce Ohr, Nellie Ohr, Priestap, Kortan, Campbell,

    Sir Richard Dearlove, Christopher Steele, Simpson, Joseph Mifsud,

    Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry, Hillary,

    Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,

    Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,

    Joe Biden, James E. Boasberg et al.

  4. “Guest Commentary: I served under six presidents — four Republicans, two Democrats — only one has failed to serve U.S. national security interests …

    “I spent over 300 mornings in the Oval Office briefing the president and his senior staff. I had the privilege to manage, edit and deliver the president’s Daily Brief a summary of the most timely and critical intelligence threats to the U.S. from 2010 to 2014. As a Deputy on the National Security Council, I spent over 1,000 hours in the White House Situation Room providing the intelligence assessments which informed critical U.S. national security policy decisions — including the raid that rendered justice for the victims of 9/11.

    “Since I have been eligible to vote, I have never registered with a political party. I remain an independent with a history of voting for candidates I believe in — I focused on their policy and not their party. Before this election, I have never spoken out for or against a candidate for any office. But I can be silent no longer.


    “I know what it takes to succeed at the highest levels of our government — intellectual curiosity, the strength of moral purpose and a commitment to selfless service. Broadly speaking, I can personally attest that Americans were very well served by those they elected to fill critical national security positions. There is one important exception to that statement — our current president.

    “I have briefed him up close — and I have seen and felt the effect of his faults on our nation’s security. Out of respect for the confidential nature of Oval Office conversations, I will not provide details. Suffice to say that the person you see presiding over COVID-19 press conferences is the same one in the privacy of his office. He has little patience for facts or data that do not comport with his personal world view. Thus, the conversations are erratic and less than fully thoughtful.

    “While it is natural for there to be tension between the intelligence community and senior policymakers, President Donald Trump’s decision to rely upon the word of dictators like Vladimir Putin is an unprecedented betrayal of his oath to the Constitution. Our current president bases his decisions on his instincts, and his instincts are based upon a personal value proposition — what’s in it for me?

    “As a Commander in Chief, President Trump comes up tragically short. He fails to protect our soldiers when bounties are placed on their heads by his friend Vladimir. And not only does he not respect their service, but President Trump also belittles combat heroes who were taken as prisoners of war.

    “As a nation, we were fortunate that a true crisis did not occur during his first three years in office. Then 2020 happened. This has been an unprecedented year for which many of us were not prepared. In moments of crisis, the American people demand — and deserve — a leader who will put the country first. Full stop. Because the reality and the science of COVID-19 conflicted with his personal views, President Trump knowingly downplayed the pandemic.

    “This is not about the economy, taxes, health care or any other normal ballot considerations. This is about American lives unnecessarily lost. This is about businesses unnecessarily closed. This is about being guided by service to all Americans. This is about centering decisions on a higher morality. President Trump’s actions — and inaction — demonstrates that he is not concerned about any of this.

    “And as damaging as his faulty leadership has been, four more years would be devastating. We must elect a thoughtful, moral, responsible, respectful leader on Nov. 3. Our current president is not that leader.”
    https://www.denverpost.com/2020/09/25/donald-trump-fails-us-national-security-interests/

    The op-ed was written by Robert Cardillo, and at the bottom it says “Robert Cardillo retired as the director of the National Geospatial-Intelligence Agency after 36 years of public service that also included serving as deputy director of the Defense Intelligence Agency and the Acting J2 — a first for a civilian — in support of the chairman of the Joint Chiefs of Staff, Admiral Mike Mullen.”

    An unprecedented number of Republicans and Independents who have worked with Trump up close have been speaking out about his unfitness for office. We should listen to what they’re saying.

    1. Hahahaha right on cue. I was so worried about the country that I waited until the election to warn you guys. Hahahaha. Hey Bob got any bridges for sale?

    2. Harris-Biden are going to win – these criminals are far ahead in the polls.

      Needs To Be Committed doesn’t need to post anything yet she posts frenetically.

      Why is Needs To Be Committed in full panic mode?

      Take a breath, girl.

    3. Wow! News at eleven, there are partisans in the inteligence service.

      BTW the very existance of the NGIA deflates the entirety of this.

      But there is a much better argument – REALITY.

      What is national security ? Is it the decline of tensions and agression worldwide ? Is it confronting those nations like China that are a threat to their neighbors ? As well as building alliances with the nations of agressor states ?

      Or is it the oppinion of some administrative state aparatiches seeking to protect their own power ?

      As President Trump has:

      Increased the peace and stability in the world’s most volatile region – the mid east dramatically.
      Gotten the US out of pointless military confrontations.
      Stood up to beligerant nations such as Iran, North Korea, and China and built alliances to contain them.
      Increased the security of Europe, but weakening the Grip of Russia, Iran, Venezuela on global energy.

      I am hard pressed to think of a modern US president that has improved US national security as much in 8 years as Trump has in 4.

      Reality – oppinion – you are free to make your own choice.
      But the rest of us will pass judgement on you for your choice.

      And thus far CTDHD that judgement of your choices has been poor.

      You do not seem to care about reality.

  5. “WATCH: Governor Baker expressed his frustration with President Trump’s comments about a peaceful transfer of power in the upcoming presidential election.”
    https://twitter.com/boston25/status/1309192104044892160 (video)

    “It is appalling and outrageous that anyone would suggest for a minute that if they lose an election, they’re not going to leave. Period.”

    Baker is a Republican. He looks pretty ticked off.

    1. Trump never said he would not leave if he lost the election. That is why we don’t see the actual quotes of what Trump said in context but we did hear what Hillary had to say.

      It has been almost 4 years and some democrats still haven’t accepted the loss. Additionally the new FBI releases demonstrate that Hillary was dealing with a Russian agent through intermediaries.

    2. If anyone is wondering what Trump said, I posted it a couple of days ago, but here it is again:

      Reporter: “Win, lose or draw in this election, will you commit here today for a peaceful transferal of power after the election? … Will you commit to making sure that there is a peaceful transferal of power after the election?”
      Trump: “Well, we’re gonna have to see what happens.”
      video here: https://twitter.com/nycsouthpaw/status/1308903171658579970

      He didn’t say “yes,” which is the only acceptable answer in a constitutional democracy.

      Saying “Well, we’re gonna have to see what happens” is not an acceptable answer in our democracy.
      Trump still hasn’t said anything like “Yes, of course I commit to a peaceful transferal of power if I lose.”

      The Senate voted unanimously yesterday on a Resolution that stated the following:
      “Whereas the United States is founded on the principle that our Government derives its power from the consent of the governed and that the people have the right to change their elected leaders through elections;
      “Whereas our domestic tranquility, national security, general welfare, and civil liberties depend upon the peaceful and orderly transfer of power; and
      “Whereas any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people:
      “Now, therefore, be it Resolved, That the Senate–
      “(1) reaffirms its commitment to the orderly and peaceful transfer of power called for in the Constitution of the United States; and
      “(2) intends that there should be no disruptions by the President or any person in power to overturn the will of the people of the United States.”
      https://www.congress.gov/congressional-record/2020/09/24/senate-section/article/S5876-2

      This shouldn’t be a hard thing for the President to agree to.

      1. Indeed. And clearly, he’s never going to agree to it. Or at least that’s what he wants everyone to think. Oddly, I was one of those who never thought Trump would stick around this long. I thought when he realized he was going to lose, he’d resign. But obviously what terrifies him most of all is his legal aftermath in NY state with no statute of limitation on pending charges. Trump’s existence has to be a literal hell on a daily basis, even with a clear deficiency in his character re ability to take responsibility and feel empathy.

        1. I think if he loses, he’ll either resign early after making a deal with Pence to pardon him (in which case I hope Pence reneges on it), or he’ll pardon himself (which he cannot legally do) and proclaim he had the power to do it, and it will lead to another legal case.

          Regardless, he cannot protect himself from the various state suits that are pending: Summer Zervos’s defamation suit, the NY suit about his tax returns, the suit that Mary Trump just filed, …, and the civil suits can move forward even if he wins reelection (whereas a criminal charge would have to wait if NY decides they have evidence of tax fraud).

          “Trump’s existence has to be a literal hell on a daily basis”

          I don’t know. He’s really sick, and I have little insight into how he experiences things other than reports that he angers easily and lashes out at people. But he’s put enough other people through hell. Let him reap what he’s sown.

          1. Referring to Trump “He’s really sick,”

            The question becomes who is really sick? It sounds like CTDHD is the sick one as she weaves tales made of a mixture of lies and half truths. Typical Stalinist type. Jail, commit to mental institutions or kill anyone that disagrees with her.

            Ask people that know him personally. He is quite nice and charming. Look at results. He has been a fantastic President.

            1. The question becomes who is really sick? It sounds like Allan is the sick one as he weaves tales made of a mixture of lies and half truths. Typical Stalinist type. Jail, commit to mental institutions or kill anyone that disagrees with him.

                  1. Anonymous the Stupid, this reply to CTDHD is what you are acting Stupid about. Try dealing with the issues rather than your own Stupidity.

                    Referring to Trump “He’s really sick,”

                    The question becomes who is really sick? It sounds like CTDHD is the sick one as she weaves tales made of a mixture of lies and half truths. Typical Stalinist type. Jail, commit to mental institutions or kill anyone that disagrees with her.

                    Ask people that know him personally. He is quite nice and charming. Look at results. He has been a fantastic President.

                    1. Allan the Stupid, the question becomes who is really sick? It sounds like you are the sick one as you weave tales made of a mixture of lies and half truths. Typical Stalinist type. Jail, commit to mental institutions or kill anyone that disagrees with you.

                    2. Anonymous the Stupid, try responding to the content rather than acting Stupid. You make your comments in support of CTDHD and others but all you are accomplishing is a repetition of what I said further embarrassing CTDHD (if that is possible) along with the others I replied to. On the other hand go ahead and act Stupid.

                      Anonymous the Stupid, this reply to CTDHD is what you are acting Stupid about. Try dealing with the issues rather than your own Stupidity.

                      Referring to Trump “He’s really sick,”

                      The question becomes who is really sick? It sounds like CTDHD is the sick one as she weaves tales made of a mixture of lies and half truths. Typical Stalinist type. Jail, commit to mental institutions or kill anyone that disagrees with her.

                      Ask people that know him personally. He is quite nice and charming. Look at results. He has been a fantastic President.

                    3. Allan, the best way to point out your ongoing trash talk is to repeat it back to you. You want me to respond to other. content, but that is not my goal.

                      Go ahead and act Stupid.

                      The question becomes who is really sick? It sounds like Allan is the sick one as he weaves tales made of a mixture of lies and half truths. Typical Stalinist type. Jail, commit to mental institutions or kill anyone that disagrees with him.

                    4. “Allan, the best way to point out your ongoing trash talk is to repeat it back to you. ”

                      Anonymous the Stupid, a Stupid person like yourself doesn’t start out teaching others. You first need to learn the things you know little about. You are trashy along with being Stupid and you are a bad example. That Stupidity and Cowardice is why you hide under an anonymous label. That tells a lot about you and you self worth.

                    5. “Allan, the best way to point out your ongoing trash talk is to repeat it back to you. ” Said by Anon at around 5:30 pm today.

                      True.

                      Sadly, though, he still doesn’t get it. Allan’s thick as a brick.

                    6. Anonymous the Stupid, you have repeated all of this before. Based on all your postings you must have a vocabulary of less than 200 words.

      2. “He didn’t say “yes,” which is the only acceptable answer in a constitutional democracy.”

        With the possibility and even likelihood of rampant voter fraud (which we are already seeing, any candidate who claims he would accept a fraud based loss is not worthy of the job. And it was your famous “loser” Hillary Clinton who told Biden to “not concede under any circumstances”. That aside Trump said he would accept the results of a fair election. How could anyone have a problem with that?

        What I really find amusing is you Liberals again believing your silly polls. The amazing effects of the “silent” Trump voter will again be felt and this time with an even greater response by them now that they have seen what he has actually done and will do again in his next 4 years.

        Elections are all about enthusiasm and when you compare Trumps rallies averaging over 10,000 wildly enthusiastic supporters with slojoes “rallies” which have more press in attendance than thy do supporters it is quite obvious how this will turn out.

        But hey, you keep hoping, wishing and fantasizing that America will elect a child groping Alzheimer patient to be president.

        SEe you in November…..Liberal.

        1. But rampant voter fraud *isn’t* likely. Just a month ago in the court case Donald J. Ttrump for President Inc. v. Boockvar, the Trump campaign was compelled to submit evidence of voter fraud and could barely find any examples, and none of fraud via mail-in ballots.

          As for “Clinton … told Biden to ‘not concede under any circumstances,’” she was talking about on election night if a lot of votes hadn’t been counted yet, and she isn’t the candidate, so what she says is just her personal opinion and has no bearing on what actually happens.

          Trump is President.
          It is wholly unacceptable for the President of the United States — a constitutional democracy — to refuse to commit to a peaceful transfer of power if he loses the election.

          He was asked “Win, lose or draw in this election, will you commit here today for a peaceful transferal of power after the election? … Will you commit to making sure that there is a peaceful transferal of power after the election?,” and his response was “Well, we’re gonna have to see what happens.”

          Even the Senate was willing to “reaffirm[] its commitment to the orderly and peaceful transfer of power called for in the Constitution of the United States.” This shouldn’t be a hard thing for the President to agree to.

          “Trump said he would accept the results of a fair election”

          Link to the video.

          Two days ago, WH Press Secretary Kayleigh McEnany said “The president will accept the results of a free and fair election.” But she isn’t Trump.

    3. Worth noting….. We are all still waiting for the peaceful transfer of power from 2016. Just sayin’.

      Why is it always the racist that screams “racist,” the unpatriotic that sees a lack of patriotism, the untruthful that complain of lies, the hateful that yell of lives mattering, the privileged that accuse of privilege, the one who demands to be heard protests to keep you silent…..? The virtue signaling by Dems this cycle is off the hook.

      1. The transfer of power in 2016 *was* peaceful. Obama left without violence, and Trump was inaugurated without violence.

        Again: Gov. Baker is a Republican, and he objected to what Trump said. The Senate unanimously passed a Resolution “reaffirm[ing] its commitment to the orderly and peaceful transfer of power called for in the Constitution of the United States.” This isn’t “virtue signaling by Dems.” This is something that every patriotic American should be able to commit to, regardless of party.

        So why won’t Trump say that he commits to that too?

  6. Hey, hey, hey. Let’s limit the terms in congress and the educational system first. Then, we’ll see how that works.

  7. The lifetime tenures are very unfortunate. The life expectancy for American men in 1790 was only 34 years. The framers didn’t know what they were getting us into. Also, why does the tenure have to be permanent to insulate judges from political pressure? It seems that it would only have to be fixed, with a one term limit. Any length would do.

  8. arrest, try, and execute pelosi, schumer, biden, harris, clintons, obamas, waters, green, lynch, jarrett, srice, strzok, nadler, schiff, feinstein, omar, aoc, tlalib, mueller, comey, brennan, mccabe……end page one of ten.

  9. “‘You Bet Your Ass I’ve Got Regrets.’ As Election Day Nears, More of Trump’s Former Officials Are Speaking Out Against Him”
    https://time.com/5892948/trump-former-officials-speak-out/
    The author tweeted “Never in recent history have so many senior former US officials publicly attacked the @POTUS they served—or the decisions he’s made—as the ranks lining up to say Trump put himself & his re-election ahead of the country, thereby threatening its security.”

    Trump is unfit to serve. I hope that he is overwhelmingly defeated in November.

  10. In other legal news today:

    “House Democrats can sue to force President Trump’s former White House counsel Donald McGahn to comply with a congressional subpoena, a federal appeals court ruled Friday. In a 7-2 decision, the full U.S. Court of Appeals for the D.C. Circuit affirmed Congress’s oversight powers and said the House has a long-standing right to compel government officials to testify and produce documents. … The court sent the case back to the initial three-judge panel, which had ruled against the House, to consider McGahn’s other challenges to the subpoena. The timeline makes it unlikely that the case will be resolved before Congress adjourns in January and the subpoena expires. The opinion also cleared the way for a second House lawsuit, finding that lawmakers are not barred from going to court to challenge the Trump administration to block the diversion of billions of dollars to build the president’s signature southern border wall. …”
    https://www.washingtonpost.com/local/legal-issues/house-can-sue-to-force-testimony-from-former-white-house-counsel-donald-mcgahn/2020/08/07/6301a7f2-b0c8-11ea-8758-bfd1d045525a_story.html

    1. My mistake. That article is from August. What’s news today is that “a D.C. Circuit panel has unanimously sided with House Democrats in their lawsuit challenge @realDonaldTrump’s border wall spending” (Ann Marimow, one of the authors of the above article). I don’t know when the panel will rule on the McGahn subpoena.

  11. The Democrats want to abolish the US Constitution and do whatever the frack they desire. is this new information to anyone?

    News reports are indicating that the governor of Virginia and his wife have the sniffles (tested positive for COVID).

    “Governor Northam is experiencing no symptoms. First Lady Pamela Northam is currently experiencing mild symptoms. Both remain in good spirits. ”
    https://www.governor.virginia.gov/newsroom/all-releases/2020/september/headline-860594-en.html

    With their continual lying about COVID deaths, would that it were only true so that VA would have 2 less brownshirts terrorizing from within the VA Governor’s Mansion. Note to Nancy Pelosi: go visit your friend Ralph ASAP, and bring Biden with you

    1. Joe G is the regular blog troll with a new name. New readers should know that half the comments on these threads are posted by the same nerdy loser.

  12. America must find a way to correct the judicial branch en masse – appropriate impeachment and conviction has not been implemented.

    The judicial branch has no power to legislate, as it has for multiple decades.

    The judicial branch is the very definition of “overreach,” usurping the power of the legislative and executive branches and “legislating and executing from the bench.”

    Liberals and conservatives know well of this egregious violation but refuse to respond commensurately and appropriately.

    The judicial branch has but one charge, to assure that actions comport with statute and fundamental law, not false and insidious, ideological “interpretation,” but its manifest tenor.
    ____________________________________________________________________________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  13. about this bill from the democrats. I like it but it necessarily must be a constitutional amendment

    I would absolutely support term limits on all federal judges to 18 years, across the board. 100% but yes you would need to amend article III

    1. I would absolutely support term limits on all federal judges to 18 years, across the board.

      Why? Why not 12 or 24 or 36? I’d recommend term limits for Congress before considering term limits for Justices. And regardless of whatever amendments are made, it’s still not going to address the root problem of voter civics ignorance, apathy and dependency.

      1. I’d recommend term limits for Congress before considering term limits for Justices.

        Embrace the power of ‘both’ and ‘and’.

      2. 18 is a lucky number that’s why. a luckier number than “LIFETIME TENURE”

        The SCOTUS and article III courts are the most un-democratic institutions in America– and yet we here their bastid cousins in mass media every day say the real threat is from Republicans or Russia or whatever– anybody besides the very institution that wields a judicial fiat vetoing whatever laws they don’t like

        to some extent “democracy” is most strongly in play precisely where and when the POTUS and Senate are doing their work picking new federal tyrants to exercise their judicial fiat over us. and Trump and the Senate have that democratic power in hand now and WILL use it. Even though the Dem cheerleaders want to riot and intimidate against it.

        1. Well, technically the motivation for term limits exists because other checks on abuse of power aren’t available or exercised. Activist judges can be impeached, but rarely are. Members of the Legislative branch can lose reelection for not exercising their check on the courts, or for any other reason, but they rarely are. The following is just one excerpt of a great speech McKinley gave that addresses this subject:

          But it is not results and effects so much as sources and causes that I believe it is even more necessary constantly to contemplate. Ours is a government of the people. It represents their will. Its officers may sometimes go astray, but that is not a reason for criticizing the principles of our institutions. The real heart of the American Government depends upon the heart of the people. It is from that source that we must look for all genuine reform. It is to that cause that we must ascribe all our results.
          https://teachingamericanhistory.org/library/document/speech-on-the-occasion-of-the-one-hundred-and-fiftieth-anniversary-of-the-declaration-of-independence/

          1. Judge Learned hand said words to the effect that if the spirit of liberty is not written on the hearts of the people, no paper can save it

            we passed that milemarker a long ways back Im afraid. but we can’t turn back.

            only we can save oursevles, together

            the law ever was and always will be what the living decide it is now

      3. It was Democrats who began removing Civics in schools, back in the 70’s.
        Their reasoning?
        If the peons don’t know their rights, they won’t fight for them.

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