Whatever the Ruling on Birthright Citizenship, ABA will likely be the Biggest Loser

Below is my column in the Hill on the argument this week in Trump v. Barbara, the birthright citizenship case. There are good-faith arguments on both sides and lawyers are divided on the question. For that reason, the most notable brief may have been the amicus brief of the American Bar Association, which filed a strident defense of birthright citizenship.

Here is the column:

The Supreme Court will soon hear arguments in the historic birthright citizenship case. It is a hearing that has been over 150 years in the making, since the ratification of the 14th Amendment. It is not just a long-debated question that has divided the nation, but it has divided many lawyers as well.

For that reason, there was one brief that stood out before the court: the amicus brief of the American Bar Association.

The ABA filed its “friend of the court” brief to argue that the matter is clear: Anyone who gives birth on our soil, even if here illegally or only briefly, may claim U.S. citizenship for their child.

Most nations on Earth, including many of our European allies, reject birthright citizenship, and many of us in this nation believe that it is a foolish policy. Yet, even as someone who opposes birthright citizenship, I have long believed and argued that there are good-faith arguments on both sides of this debate.

The sponsors of this language clearly disagreed on the issue at the time of its enactment. Some stated at the time that the language did not allow for birthright citizenship.

The debate comes down to six poorly chosen words: “and subject to the jurisdiction thereof.” Those words were not in the original draft, but were inserted by an amendment. Thus, they were not superfluous or casual verbiage, but an intentional condition. They were placed in the middle of an otherwise clear statement that “all persons born or naturalized in the United States … are citizens of the United States.”

For more than a century, many have argued that the words reflect an intent to limit the amendment to citizens and legal residents who are subject fully to the jurisdiction of the United States.

That brings us back to the bar association. Regardless of how one comes out in the fascinating historical and constitutional debate, this is a case one would expect the ABA to sit out. It clearly does not speak for all lawyers on the issue, yet, it filed a strident brief and laid out a parade of horribles about what would happen if the Supreme Court were to reject birthright citizenship.

I found the brief to be one of the least compelling submissions to the court. But, once again, the media will portray the brief as speaking for American lawyers, even though the ABA represents less than two out of every ten attorneys.

I previously wrote a column on these pages on “the rise and fall of the American Bar Association,” exploring how the ABA has alienated many lawyers with its partisan advocacy. When it was founded on August 21, 1878, in Saratoga Springs, New York, the 75 lawyers present from 20 states (and the District of Columbia) wanted an organization to create a national system of standards for “the advancement of the science of jurisprudence, the promotion of the administration of justice.” It was created to focus on professional accreditation, education, and training.

That changed in 1990, when advocates overrode earlier votes to remain neutral on the constitutional interpretations supporting the right to abortion. The adoption of a pro-abortion position shocked many and fundamentally changed the culture at the ABA. (It is worth noting that the very arguments embraced by the bar association were later rejected by the Supreme Court in the Dobbs decision.)

Since that time, the ABA has become fully captive to partisans who use the organization to support liberal and often Democratic Party positions. The result has been a steady decline in membership.

Today, there are roughly 1.3 million lawyers in the U.S. Even if the ABA represented just half of that number, it would have 650,000 members. As recently as 2015, it still had 400,000. But more recently, membership has fallen to 227,000, or just 17 percent of the bar.

Despite complaints that the ABA has become a partisan organization, its leadership has doubled down with positions and programming that are echo chambers for the left. During Trump’s terms, the ABA has uniformly opposed him and his policies.

The ABA brief in favor of birthright citizenship is signed by ABA President Michele Behnke. It simply declares the language and history clear and resolved. It then predicts a virtual meltdown of order and due process in this country if birthright citizenship is not upheld.

The decline of the ABA to the point where it does not speak for most lawyers has followed a familiar model. The media also abandoned neutrality in covering such stories, with many journalism schools now teaching students that they are advocates for social justice. Likewise, academia largely purged its departments of Republicans, conservatives, and libertarians, as it increasingly prioritized advocacy over education.

All three of these groups have one thing in common beyond their liberal ideological bias and advocacy: They are all increasingly unpopular. Higher education and the media have plummeted in public trust to record lows. Like the ABA, which can no longer claim to speak even for most lawyers, there is little indication that the loss of trust is causing the leadership to do any soul-searching.

As memberships and revenues decline, the use of these institutions for advocacy remains personally beneficial. Behnke is leading an organization that is a shell of its former self, but she (like academics and journalists) is lionized for taking these positions.

Ironically, Behnke has a role in two of these areas, as a board member for the University of Wisconsin Law School and the University of Wisconsin Foundation and Alumni Association Board.

Faced with an ABA doubling down on these controversial positions, various states are moving to do away with its historical role in bar memberships.

The brief reaffirmed for many lawyers that the ABA is no longer a neutral and fair representative for all lawyers. It will continue to represent a dwindling faction of lawyers who look at the association as more of a stridently ideological than a strictly professional organization. That is why, whatever the outcome in Trump v. Barbara, the American Bar Association is likely to be the loser.

Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”

241 thoughts on “Whatever the Ruling on Birthright Citizenship, ABA will likely be the Biggest Loser”

  1. The Birthplace Citizenship question really should begin with a discussion of Citizenship by Derivation, the process by which minor children of immigrants obtain their Citizenship automatically on the same day as their parents become Naturalized.

    This method is spelled out in the very first Nationality Act in 1790. The way it keeps the family of parents and their kids in the same Immigration status by promoting them to Citizenship simultaneously is a blinding stroke of common sense. If there is a problem with the adults or child requiring deportation, the family goes away intact.

    Derivation was the process for immigrant children was standard procedure in 1866. There was no controversy surrounding it as the emancipated slaves were granted US Citizenship by Congress (Article I, Section 8 gives exclusive power to Congress to change Citizenship eligibility rules). Citizenship by Derivation for immigrant children was practiced continuously throughout the post-Civil-War era, for another 30 years until the Wong Kim Ark case in 1898.

    If the 14th Amendment were intending to change the way immigrant children got their US Citizenship, why did nobody know about it at the time? Why didn’t those parents immediately start demanding birthtime citizenships for their newborns right after Ratification? Because that wasn’t the intent of the Amendment as understood by the public.
    That’s not a change the Ratifiers thought they were voting for.

    And when the Wong Kim Ark case was argued, was Citizenship by Derivation found unconstitutional? No. What the Court sloppily did was create a conflicting process — you now had TWO definitions of how and when immigrant children became Citizens — one that kept the family intact, and one that split status. And still, Citizenship by Derivation survived in practice!

    How can you have Congressional law saying children of immigrants must wait until their parents’ Naturalization ceremony to become Citizens, and 1898 SCOTUS, creating its own alternative process citing time and place of birth?….which process is it? You can’t have two.

    1. I am not a lawyer although I have been accused of being one during some local land-use matters. My area of research is Carlisle Indian School football players. While researching Leon Boutwell, I stumbled across citizenship issues for Indians relating to conscription for World War I. Boutwell was a citizen and was drafted, but many others were ineligible for the draft due to being non-citizens.
      I then learned the reason Indians as a group were not made citizens by the 14th Amendment. It was because they were already citizens of other tribes or nations with which the government had established treaties and the 14th Amendment specifically excepted people not “subject to the jurisdiction” of the federal government.
      Legislation was necessary to make all American Indians citizens. The Indian Citizenship Act of 1924 was enacted to achieve that end. It would seem that similar legislation would be necessary to grant citizenship to children born to parents who are citizens of other countries.

      1. Brilliant analysis. It is Congress, and only Congress, that has the power under the Constitution to define Citizenship eligibility. Plaintiffs (e.g., Wong Kim Ark) and Federal Judges DO NOT have that power.

        There is a bill pending in Congress– HR 569 — that clears up 99.999% of the ambiguity in regards to automatic birthplace citizenship. It is an affront to separation of powers and Article I Section 8 for a Federal Court to be interfering with the legislative process when it comes to Citizenship eligibility rule-making.

        A sensible outcome in Trump v. Barbara would be to headline Article I Section 8, and only allow Exec. Orders to temporarily address gray areas left ambiguous by Congress until resolved by Congress, and only allow Federal Courts to decide individual cases left ambiguous by the other two branches. SCOTUS should clearly state that the Federal Courts are NOT empowered by the Constitution to change rules of Citizenship eligibility via cases and controversies — the interpretative function of the Courts is limited to disposition of individual cases. Citizenship policy is assigned to the political branches, with Congress having the ultimate say.

  2. I haven’t been an ABA member in many years. The state bar associations are, in the few cases I know of, are even more partisan. It doesn’t bother me that much as these are voluntary clubs, so I can choose to belong. I guess this shouldn’t really surprise anyone, two of the largest democrat donors are legal associations. Where I have a problem, is that the actual Bars in these states are also completely controlled by leftists. I would prefer, maybe(??), to see a national Bar with board members that are elected by all licensed attorneys. It would be great if lawyers were not limited to practice in only one state. Fortunately, some states like NY allow broad reciprocity, but many others do not.

    1. Anonymous has a good point. I just read the ABA brief. In their opening paragraph they mistake the law in stating “birth in the US confers U.S. citizenship. ” this is , it would seem, the product of partisan thinking, which is understandable since attorneys are advocates. But for a profession like the bar association that deals with all the varieties of behavior that this culture produces to take an invariant and absolute position such as this is to reveal the unscientific mindset that this constitution was designed to prevent. That can not be the mindset of most of the attorneys of the union. The pathology at the American Bar Association is not in the nature of its members, but in the office that claims to represent its members. This is unfair to the members.

  3. As a now eighty-two year old lay American male I have often wondered why the federal government doesn’t prevent aliens, whom it has no “jurisdiction” over, from removing newborn citizens from the constitutional protections afforded them in the US without “due process of law?” I think to do so might not only be a little cruel the child, who could then be adopted by American citizens wanting to adopt, but also very discouraging to others who want to take unlawful advantage of a nation with a superior constitution, the real reason America is such a magnet to aliens from all over the globe. Charles G. Shaver

  4. so if a pregnant women breaks into a house and has a baby there…they can stay forever?

  5. I take ABBA more seriously than I take the ABA. All I can say is mama mia, these dancing queens need to make sure Fernando doesn’t get to be a citizen by just being born here or else it will be our Waterloo and we’ll have to signal SOS.

  6. For most of my nearly 53 years as a lawyer I have been either a solo-practitioner or in a small firm. Long ago, I cancelled my membership in the ABA. My belief was and remains that this organization is in no way representative of the interests of most attorneys. Membership (which has become increasingly over-priced). The continuing education programs offered are also too expensive and rarely cover topics of interest to the great majority of the Bar. In my opinion it has become an elitist organization representative of the interests of only the largest firms and legal staffs of large corporations. I’ve encouraged young attorneys not to waste their money on joining this association as it will offer them little or not benefit.

    1. Same here. I’ve been a lawyer for 50 years, all of it as a solo practitioner and was never a member of the ABA. Their issues and concerns were no mine.

  7. “The debate comes down to six poorly chosen words: “and subject to the jurisdiction thereof.” Those words were not in the original draft, but were inserted by an amendment. Thus, they were not superfluous or casual verbiage, but an intentional condition. They were placed in the middle of an otherwise clear statement that “all persons born or naturalized in the United States … are citizens of the United States.”

    For more than a century, many have argued that the words reflect an intent to limit the amendment to citizens and legal residents who are subject fully to the jurisdiction of the United States.”

    That is the entire case, right there. Turley contradicts himself because he clearly has a personal preference that birthright citizenship remain. If those words were deliberately added by amendment after the document was originally drafted, they were obviously carefully, not “poorly” chosen, whether or not Turley or anyone else likes it. And since they were deliberately added, the only cogent and rational conclusion is what that phrase clearly indicates was the will of the ratifiers: that only those immigrants meeting appropriate standards of jurisdictional status are to be considered citizens. Everyone else can GTFO, immediately.

    1. JT “clearly has a personal preference that birthright citizenship remain.”

      I think you misread his column:

      “. . . as someone *who opposes birthright citizenship*, I have long believed and argued . . .” (JT, emphasis added)

  8. Professor, I am ashamed of you. You misquote that critical sentence by leaving out the last 7 words!

    All the attention given to “and subject to the jurisdiction thereof” misses an even more determinative phrase. The Amendment reads:”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”The last 7 words are routinely ignored but they are the key, since they set a precondition to the birthright citizenship and that precondition is that the “person” must “reside” in a State. Each State has its own residency laws and if an alien does not meet that law and is not a legal “resident” of any State he/she is not entitled to birthright citizenship.Very clear and logical. The authors of the 14th Amendment clearly did not intend that a baby whose mother slipped across the border for a few hours, or the baby of a pregnant tourist, was an automatic US citizen. Nothing in the legislative history even hints at that and neither does U.S. v Wong Kim Ark. On the other hand, the freed slaves, obviously the intended beneficiaries of that sentence, were all “[residents] of the State wherein they resi[ded]”.

    I hope at least one of the advocates in that case at the Supreme Court saw that and made it a point in their brief.

    1. Wiseoldlawyer, nope.

      “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

      All persons born OR naturalized in the United States, and subject to the jurisdiction thereof… means every single person, every single one with one written exemption, those who are diplomats meaning they are representatives of a foreign nation. The phrase, “and subject to the jurisdiction thereof, means and subject to the laws of the land including the constitution AND the state where they live. It’s pretty obvious what they meant.

      It’s the bigots and racists who are trying to redefine what the 14th amendment says by trying to redefine a few key words out of context.

      1. George – nope! There you go again, making up stuff.

        I thought you claimed impeccable comprehension skills? Seems that skill has failed you again. Please tell us Google is not your info source.

        I was wondering is you would share you educational skills and background in Constitutional law with the audience. Thank you.

    2. Wise old lawyer makes a very good point that identifies language that has been neglected. Good observationWOL. This may be a point of reference that gives resolution to the problem, or at least is worthy of consideration. I too hope that the justices discuss this in assessing who makes the final decision. The pragmatics of state involvement serve the nation well and may serve to improve the current problems created by the dependent general public on mother fed. they may learn to think for themselves. they may learn to take care of the problems in their own back yard and stop expecting the king to protect them. The English had it going in the right direction when the conditions that attend the relationship between the independent civilian and the sovereign were a matter of contract; that a person had to demonstrate allegiance to the sovereign in exchange for the benefits of membership in the community. Since we do not need a king here, since the electorate is fairly informed, the terms and conditions of that contract can be handled locally.

    3. WiseOldLawyer,
      That is a very interesting point. Perhaps we could use IRS tax laws as a means of establishing residency?

  9. The Citizenship Clause was sold to the country as a way to lock in what the Civil Rights Act of 1866 had already said in plain English about who is not subject to any foreign power. If the framers really meant to track that rule instead of quietly rewriting it, they could have carried both sides of the thought straight into the Constitution, saying that those born here are subject to the jurisdiction of the United States and not subject to the jurisdiction of any foreign power.

    Because they did not do that, later generations of lawyers stepped into the gap, stretched those looser words to cover scenarios the Reconstruction Congress never debated, and organizations like the ABA have turned that stretched reading into a kind of lawfare project, using their credentials to tell courts that a highly contestable, policy‑heavy interpretation is just “what the law says” and that only bad motives could justify reading the text any other way.

    1. You are completely wrong. Most of what you wrote in made up.
      The so called framers ca. 1878 were not concerned with citizenship issues. All were welcome. Except Chinese and Irish. Politicians raised it in the 1860’s.
      You really need to read American history.

      1. Your timeline is off by a decade. The citizenship fight I am talking about is the Civil Rights Act of 1866 and the Fourteenth Amendment proposed in 1866 and ratified in 1868, both of which open by defining who is a citizen.

        Whatever ‘1878’ history you have in mind, it is not the framing of the Fourteenth Amendment’s Citizenship Clause. If you want to argue about some other era, that is your project, but do not pretend you are correcting someone who is actually talking about the text and dates that are before the Court in this case.

        That was your one opportunity and again you blew it.

        1. As usual you just make stuff up man, and you’re a pathological liar. All the time.
          You are not knowledgeable at all.
          Read instead of react you manchild.

      2. Olly, you want to debate, then use provable facts, then source it. I’ve seen here how you post information that is outright wrong or insert opinion as fact.
        The people here are not as stupid as you think, a condescending attitude doesn’t win debates. And lets stop the nonsense with your excuse, prove me wrong.
        If winning an anonymous interaction is that important to you , so be it.

        1. Folks, Olly’s sole educational credential is a associates degree from an community college in NY. Since closed. 33 years ago.

    2. Olly, you’re incorrect. The 14th amendment was written to SUPERSEDE the 1866 act. The change in wording from “not subject to any foreign power” to “subject to the jurisdiction thereof” was not a “quiet rewrite” or a mistake; it was an intentional shift to a broader, geographic standard known as jus soli (right of the soil).

      “subject to the jurisdiction” means being physically present and required to obey U.S. laws. Even those in the country illegally are “subject to the jurisdiction” because they can be arrested, tried, and taxed under U.S. law. That’s why those born here become US citizens automatically according to the 14th amendment.

      During the 1866 debates, opponents specifically raised concerns that the clause would grant citizenship to the children of Chinese immigrants and “Gypsies.” It was during a time when we needed the Chinese to help build railroads and when they weren’t needed we tried to kick them out.

      Even the amendment’s sponsors, such as Senator Jacob Howard, affirmed that the clause would indeed apply to everyone born on U.S. soil, regardless of their parents’ status, as long as they weren’t diplomats or untaxed Indians.

      Judging by the rules originalists and textualist use to interpret the Constitution it’s going to be pretty hard to interpret it the way those opposed to birthright citizenship want to.

      1. X, the Fourteenth Amendment did not wipe out the 1866 Act, it was written to lock the same basic idea into the Constitution in tighter language. The Act said citizens are people born here who are not under a foreign power; the Amendment turned that into ‘subject to the jurisdiction’ of the United States, but nobody in 1866 said ‘from now on, every child of every foreigner who happens to be standing on our dirt is automatically one of us.’ Critics did toss out Chinese and Gypsy examples and got quick answers, but that is a long way from a serious decision to give automatic citizenship to the kids of illegal crossers and fly‑in, fly‑out birth tourists and pretend that allegiance, domicile, and the Indian carve‑out never mattered.

      2. “That’s why those born here become US citizens automatically according to the 14th amendment.”

        Why weren’t the American Indians considered Americans?

        1. Perhaps because each Nation at the time was considered sovereign unto itself by treaties with the US? (Just thinking out loud.)

  10. A child born to diplomats in the United States are not automatically citizens. There is clearly a limit already in the law. The question is where, exactly, does that limit end. That the ABA would take sides is just another embarrassment for the organization. They have no credibility on any matter anymore. In fact, an endorsement by the ABA is now an argument for disqualification.

    1. Good one.

      Children born in the United States to foreign diplomatic officers with full diplomatic immunity are not automatically U.S. citizens. This exception to the 14th Amendment’s birthright citizenship applies because these children are not considered “subject to the jurisdiction of the United States” due to the diplomatic immunity held by their parents under international law.

      However, these children may voluntarily register as Lawful Permanent Residents (LPRs) from the time of their birth. To do so, they must file Form I-485 and, if they still hold diplomatic immunity, submit Form I-508 to waive certain rights and privileges.

      Crucially, this rule does not apply to all foreign government employees. Children born to consular officials or staff listed on the State Department’s “White List” (who do not have full diplomatic immunity) are considered U.S. citizens at birth because they are subject to U.S. jurisdiction.

  11. Melvin Belli, the “King of Torts” once famously said, ““Being rejected from the Bar Association is kind of like being kicked out of the Book of the Month Club.” Amen, Brother.

  12. Some wealthy pregnant foreigners come here to birth their babies solely to obtain US citizenship for the child. Twenty years later the child is considered a US citizen who can lawfully vote in elections and use the family wealth to donate to political candidates, create PACs, NGOs, etc.

    Makes exactly no sense to anyone who is mentally stable.

    1. Yep, one million Chinese babies are safe back home with us passports on hand. That what 14A was meant for?

      WCGW.

  13. It is curious how these left-leaning organizations are aiding in their own destruction.

    A. Education is fostering activism and turning out battalions of teachers who no longer teach subjects without injecting politics. The result is that newly graduated students arrive at college fully unprepared. In part, this also drives many students toward non-degree professions instead.

    B. The Media has made opinion its core product, and there are now many thousands of “news agencies” devoted to opinion journalism.

    C. The ABA, by adopting solidly left-leaning positions, has driven away a substantial portion of its potential membership. At the same time, law schools are now teaching activist jurisprudence, which produces lawyers and judges who issue decisions that other lawyers must then litigate to resolve.

    D. The Democratic Party, by embracing all these unpopular positions, is driving voters away, thus requiring it to adopt even more damaging policies simply to generate votes.

  14. Birthright in the US currently allows for an entire large, deep and wide family tree of a foreign country to establish legal rights here. This right, in turn, allows for an exponential cycle of immigration that drowns the entire nation with expatriates, leading to colonies of outsiders who have no idea of American culture nor care for American values. In short, it gives the country away to whomever wants to take it. Plain lunacy. Only a lawyer could twist this Amendment to mean this, when we all know exactly why and how the amendment was created.

    1. Only a lawyer could twist this Amendment to mean this, when we all know exactly why and how the amendment was created. … then why is the supreme court involved?

      1. I’m guessing its a matter of semantics. A liberal interpretation and a conservative one based on 6 words. What it will come down to is the personal politics of the justices. Barrett will side with the left, Roberts too. and the 3 liberals. 5:4 for liberalism.

  15. As with almost everything the original intention becomes misconstrued as time passes. The writers of the 14th amendment could not have foreseen a time in which a pregnant female would illegally enter the US for the purpose of giving birth and claiming American citizenship for the child. The original intent was to protect the children of freed slaves from racist people who might try to claim the children didn’t belong here. The Supreme Court needs to end birthright citizenship as it is being used today.

      1. Read the authors comments and debate by contemporaries at the time the 14th amendment was written. Google it. Im not a constitutional scholar. I can on read what is available and form my opinion on what I read.

  16. Dr. Turley’s article highlights how the USA’s population is uniquely disunited at this time in history. It’s people do not mix, like iron does not mix like iron does not mix with clay is the description given of the 4th &final ‘divided’ “kingdom” predicted to rise sequentially after Babylon before being destroyed by god’s kingdom! Daniel 2:31-44. Babylon & the first 3 major kingdoms that followed were the dominant world powers of their eras. Prez/congress are requuired to issue decrees/laws meeting the criteria of divided rule as predicted. God’s kingdom will elimate sickness & death (Rev.21:3-5, with billions being resurrected.-Daniel 12:2!

  17. The American Bar Association (ABA) officially describes itself as a non-partisan, voluntary membership organization that does not endorse candidates or maintain a Political Action Committee (PAC), yet it is frequently accused of maintaining a left-of-center bias in its policy positions and judicial evaluations.

    Political Stances and Advocacy Despite its non-partisan claims, the ABA has adopted a left-of-center agenda on key issues including criminal justice reform, immigration, abortion rights, LGBT issues, and gun control.

    The organization has lobbied for the legal status of nearly all illegal immigrants, the repeal of mandatory-minimum sentencing laws, and taxpayer-funded abortions for low-income Americans.
    InfluenceWatch notes that the ABA frequently files amicus briefs supporting left-of-center policy outcomes in politically contentious Supreme Court cases.
    The ABA has also advocated for Diversity, Equity, and Inclusion (DEI) policies, including changes to law school accreditation standards to focus on “equal access” following the SFFA v. Harvard decision.

  18. No country in it’s right mind let’s illegals in and then makes their babies citizens. Of course this country lost it’s mind under Joe Biden. Birthright citizenship was about one thing, making sure the newly freed blacks of the south’s children where citizens.

      1. The time required for an immigrant to obtain EU citizenship by naturalization typically ranges from 3 to 11 years, depending on the specific country and the applicant’s circumstances.

        Naturalization Timelines by Country The duration is primarily determined by the legal residency requirement, which varies significantly across member states. Some countries offer faster pathways for specific groups, such as spouses of citizens or nationals from former colonies.

        1. Take a look at the Dawes Act of 1887 and Jndian Citizenship Act of 1924. Neither would have been necessary if the framers of the 14th Amendment had intended on unlimited, unconditional citizenship for everyone born ih the US.

          antonio

        1. or maybe people just don’t want to move there. Try moving to Australia and working there?

          9 of those 10 countries WILL NOT GIVE free healthcare to illegals! The USA is the ONLY one!
          The average GP in the USA makes $300k….Canada $110k…all things are not equal

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