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Summary

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1 +Hillary ahead, but Trump has a good shot
2 +Silver, 11-1-16 Nate; Yes, Trump Has a Path To Victory, http://fivethirtyeight.com/features/election-update-yes-donald-trump-has-a-path-to-victory/?ex_cid=538fb
3 +Tuesday was another pretty good day of polling for Donald Trump. It’s also not an easy day to characterize given the large number of polls published. You could cherry-pick and point to the poll that has Trump up 7 percentage points in North Carolina, for example, or the ABC News/Washington Post national tracking poll that has Trump up 1 point overall. And you could counter, on the Hillary Clinton side, with a poll showing her up by 11 points in Pennsylvania, or a national poll that gives her a 9-point lead.1 Our model takes all this data in stride, along with all the other polls that nobody pays much attention to. And it thinks the results are most consistent with a 3- or 4-percentage point national lead for Clinton, down from a lead of about 7 points in mid-October. Trump remains an underdog, but no longer really a longshot: His Electoral College chances are 29 percent in our polls-only model — his highest probability since Oct. 2 — and 30 percent in polls-plus. Whenever the race tightens, we get people protesting that the popular vote doesn’t matter because it’s all about the Electoral College, and that Trump has no path to 270 electoral votes. But this presumes that the states behave independently from national trends, when in fact they tend to move in tandem. We had a good illustration of this in mid-September, when in the midst of a tight race overall, about half of swing state polls showed Clinton trailing Trump, including several polls in Colorado, which would havebroken Clinton’s firewall. This time around, we haven’t seen too many of those polls in Clinton’s firewall states, such as Colorado, Pennsylvania, Wisconsin and Michigan. But that’s misleading, because we haven’t seen many high-quality polls from those states, period! We have seen lots of polls from North Carolina andFlorida — for some reason, they get polled far more than any other states — and plenty of them have shown Trump gaining ground, to the point that both states are pure toss-ups right now. So, should you expect to see polls showing Clinton behind in states like Colorado and Wisconsin? Not necessarily. Clinton probably still leads in those states, and we’d expect her to win them if she wins nationally by 4 points or so, where national polls have the race. Here’s an illustration of that. From a set of simulations the polls-only model ran earlier this evening, I pulled the cases where Clinton won the national popular vote by 3 to 5 percentage points. In other words, we’re positing that the national polling average is about right, and seeing how the results shake out in the states: Trump’s chances are slim-to-none in this scenario. His odds are 10 percent or below in all of the Clinton firewall states except for Maine and New Hampshire — both of which our model considers more uncertain than other states for a variety of reasons. And Maine wouldn’t be enough to put Trump ahead anyway.2 Sure, there’s the chance that the polling in one of the other states could be wacky (maybe there’s an unexpectedly high Gary Johnson vote in Colorado, for instance). But if that happens, Clinton has some backup options in the form of Florida, North Carolina and Nevada. She’d have to get really unlucky to lose the Electoral College with a popular vote lead like the one she has now. But the thing is, this doesn’t really have anything to do with an intrinsic advantage for Clinton in the Electoral College, or Trump’s lack of a path to 270 electoral votes. It’s just saying that if the polls are about right overall — even if they’re off in some individual states — Clinton will win. We agree with that, and that’s why Clinton’s a favorite in our model overall. The polls have her ahead. The question is how robust Clinton’s lead would be to a modest error in the polling, or a further tightening of the race. So here’s a second set of simulations, drawn from cases in which Trump or Clinton win the national popular vote by less than 2 percentage points: This isn’t a secure map for Clinton at all. In a race where the popular vote is roughly tied nationally, Colorado and New Hampshire are toss-ups, and Clinton’s chances are only 60 to 65 percent in Wisconsin, Michigan and Pennsylvania. She has quite a gauntlet to run through to hold her firewall, and she doesn’t have a lot of good backup options. While she could still hold on to Nevada, it doesn’t have enough electoral votes to make up for the loss of Michigan or Pennsylvania. And while she could win North Carolina or Florida if polls hold where they are now, they’d verge on being lost causes if the race shifts by another few points toward Trump. In fact, Clinton wouldprobably lose the Electoral College in the event of a very close national popular vote. It’s true that Trump would have to make a breakthrough somewhere, by winning at least one state in Clinton’s firewall. But that’s why it’s not only reasonable but 100 percent strategically correct for Trump to be campaigning in states such as Michigan and Wisconsin. (I’ll grant that New Mexico is more of a stretch.) Sure, Trump’s behind in these states, but he has to winsomewhere where he’s behind — or he’s consigning himself to four more years in Trump Tower instead of the White House. Michigan and Wisconsin are as reasonable as any other targets: Trump isn’t any further behind in them than he is in higher-profile battleground states such as Pennsylvania, and the demographics are potentially more favorable for him. If you want to debate a campaign’s geographic planning, Hillary Clintonspending time in Arizona is a much worse decision than Trump hanging out in Michigan or Wisconsin. Sure, she could win the state — but probably only if she’s having a strong night nationally. If the results are tight next Tuesday instead, Michigan and Wisconsin are much more likely to swing the election.
4 +
5 +Trump uses the plan as an attack on police credibility.
6 +Johnson 15 Jenna; Reporter for The Washington Post; The Washington Post; 12/10/15; “Donald Trump wants the death penalty for those who kill police officers”; https://www.washingtonpost.com/news/post-politics/wp/2015/12/10/donald-trump-wants-the-death-penalty-for-those-who-kill-police-officers/
7 +As Republican candidates have delicately tried to stake a position in the roiling debate over alleged brutality between police officers and minorities, Trump has firmly planted himself on the side of police. Trump has said in previous speeches that while every profession has its "bad apples," police officers have been unfairly criticized at a time when they need to be supported. Trump often responds to questions about the Black Lives Matter movement by saying that "all lives matter" and accusing President Obama of stirring up racial unrest.¶ This police union is the same one that in September urged police officers to boycott a Labor Day breakfast attended by President Obama and union leaders in Boston. At the time, the union head accused Obama of not being supportive enough of police officers.¶ "The police and the law enforcement in this country ~-~- I will never ever let them down, just remember that," Trump said on Thursday. "They've had a hard time. These forces throughout the country have had a hard time: A lot of people killed, a lot of people killed really violently."¶ It was a message that resonated with many officers, including Sgt. Deborah Batista of Middleborough, Mass., who is vice president of the union.¶ "He seems to be a supporter of law enforcement which is something that we have not seen from the current administration," said Batista, 53. "We are not popular of late, law enforcement."
8 +
9 +Trump would use nuclear weapons — there are no checks on an unstable President. This risk is extremely high.
10 +Beres 8/23 — Louis René Beres, Professor Emeritus of Political Science at Purdue University, has served as a consultant for the Department of Defense’s Defense Nuclear Agency, the JFK Special Warfare Center, the Arms Control and Disarmament Agency, the Defense Advanced Research Projects Agency, and the Nuclear Control Institute, former Research Fellow at the Center of International Studies at Princeton University, holds a Ph.D. in Politics from Princeton University, 2016 (“What if you don’t trust the judgment of the president whose finger is over the nuclear button?,” Bulletin of the Atomic Scientists, August 23rd, Available Online at http://thebulletin.org/what-if-you-donE28099t-trust-judgment-president-whose-finger-over-nuclear-button9794, Accessed 08-23-2016)
11 +A Trump presidency may seem increasingly improbable, but it also still remains conceivable. This means, among other things, that a President Trump armed with America’s nuclear codes is still more-or-less plausible. It therefore follows that if this particular conjunction should come to pass on Inauguration Day in January 2017, a number of genuinely urgent issues concerning presidential war authority would require our rivetingly prompt attention.¶ In essence, we Americans would finally have to really ask ourselves: “What if an American president becomes irrational or emotionally incapacitated, and sometimes moves too precipitously toward exercising the military nuclear option?”¶ I have been working on precisely such questions for almost a half-century, usually as an independent scholar, but sometimes also as a consultant to certain appropriate agencies of government. In the late 1970s, I was preparing a book on American nuclear strategy and the corollary risks of a worldwide nuclear war, called Apocalypse: Nuclear Catastrophe in World Politics which caused me to become interested in the command-and-control of US strategic nuclear weapons, especially over questions of presidential authority to order the use of such weapons.¶ Although I quickly learned that there were seemingly reliable safeguards built into all American nuclear command decisions, I also discovered that these redundant safeguards might not apply at the very highest decisional level of all—that is, in the White House.¶ This disjunction didn’t appear to make any sense, especially in a world where leadership has been known to be irrational—including, in the United States, the case of a prominent nuclear-era Secretary of Defense. (After being institutionalized for assorted and serious psychiatric disorders, US Secretary of Defense James V. Forrestal fell to his death from a naval hospital window on May 22, 1949. Following years of documented clinical depression, it is almost certainly the case that his death was a suicide.)¶ Concerned about such a readily apparent and potentially fatal lapse in American nuclear planning, I had reached out to retired Gen. Maxwell D. Taylor, a distinguished former Chairman of the Joint Chiefs of Staff. In response to my query, Taylor very quickly sent me a detailed handwritten letter of reply. Dated 14 March 1976, the letter concluded: “As to dangers arising from an irrational American president, the only protection is not to elect one.”¶ Until now, I had never given any further thought to this informed response, and had simply assumed that “the system,” somehow, would always manage to work. Now, however, with the deeply serious prospect of a President Donald Trump, Gen. Taylor’s 1976 warning takes on a substantially more immediate meaning. It is now at least worth considering that if a President Trump were ever to become unstable or irrational in office, he could then: (1) order the use of American nuclear weapons; and (2) do so with seemingly unassailable decisional impunity.¶ A precedent? Let us be fair. This is arguably not the first time that the actions of a sitting president or aspiring president should have raised such fearful concerns. (Richard Nixon, in his closing days in office, was hardly an exemplar of emotional stability.) But our national task, going forward, must be to focus purposefully on future threats.¶ Nixon is long gone; Trump may, however, still be on the verge of arrival.¶ And there are other considerations.¶ Even if a President Trump were not unstable or irrational, he might still lack the complex analytical requirements needed to render sober strategic judgments, especially in compressed decision-time periods. For example, during one of the early Republican primary debates, Mr. Trump made plain that he had absolutely no understanding or awareness of this country’s strategic “triad.”¶ Now, it might be argued that even a presidential nuclear novice would still have ample professional expertise available to him at all times. But as a matter of simple logic, every American citizen should also expect any new president to be familiar with the barest rudiments of America’s strategic nuclear deployments. ¶ I am not speaking here about arcane or otherwise little-known aspects of nuclear strategizing. I am speaking, rather, about what every American high school student is expected to know before he or she receives a diploma. For example, over the many years that I taught international relations at Princeton and Purdue, I correctly assumed that most of my beginning students already understood the most basic elements of the Cold War and US nuclear deterrence policy.¶ There is more. The United States and Russia are already involved in what amounts to “Cold War 2.0”—a steadily expanding and corrosive development that could complicate any presidential strategic nuclear decisions. Marked by an increasingly bellicose undersea nuclear arms race (submarines), and by accelerating nuclear weapons competition from Moscow, Cold War 2.0 could compel even a well-intentioned and fully-rational President Trump to make ultra high-consequence nuclear decisions in just a few seconds.¶ In such chronologically compressed circumstances—where seconds matter—what precisely should be done by the National Command Authority, if its members should decide to oppose a “confused” presidential order to use American nuclear weapons? Can the Authority properly respond in a seat-of-the-pants, impromptu, and ad hoc fashion? Or should there already be in place certain measures to suitably vet the sitting president’s reason and judgment—measures of the same sort applied at all lower levels of nuclear command authority?¶ In principle, at least, any presidential order to use nuclear weapons, whether issued by an apparently irrational president or an otherwise incapacitated one, would have to be followed. After all, for senior figures in the Nuclear Command Authority to do otherwise, and to in any way actually obstruct such an order, would be illegal on its face. ¶ In this connection, it should be recalled that candidate Trump has several times advised “killing the families” of alleged ISIS terrorists, and also becoming less constrained by orthodox rules of engagement, i.e., the peremptory rules of Humanitarian International Law. In essence, heeding this advice would be tantamount to reversing authoritative Nuremberg Principles concerning the obligatory disobedience of unlawful orders, and could have uniquely dire consequences wherever such orders would involve nuclear weapons.¶ The readily imaginable prospect of a Trump presidency is now the most visible manifestation of a deeper structural problem. It follows that any doubts one might currently have about a President Trump armed with the nuclear codes should also be framed as part of a more fully generic discussion of American presidential authority. For example, when faced with a presidential order to use nuclear weapons—and not offered sufficiently appropriate corroborative evidence of an impending existential threat—would the sitting Secretary of Defense or the Chairman of the Joint Chiefs be willing to disobey? And if willing, would one or the other (or some third party) be capable of enforcing any such apparently well-founded expressions of disobedience?¶ We must finally inquire: Are these important national decision-makers trained or encouraged to exercise private expressions of decisional will? And could they effectively do so without immediately becoming complicit in what would amount to an unwitting American coup d’état?¶ Significantly, such important questions are merely the tip of the American nuclear command iceberg. Looking ahead, even more specific and detailed questions will need to be asked and answered. If these questions were to be simply avoided, or ignored altogether, we could sometime discover that remediation is already long past due, and that the supposed “only protection” against an irrational American president—“not to elect one,” as Gen. Maxwell Taylor wisely advised—had been too casually disregarded.¶ Back in the 1960s, a popular movie genre was centered on the assorted risks of nuclear war. Films such as Dr. Strangelove and Fail Safe (both 1964) presented ominous scenarios of an inadvertent nuclear war caused by military command failure, or by mechanical and computer malfunctions. At that time, however, there was never any hint that the critically weak link in the nuclear decision chain could ever be the American president himself.¶ Now it is conspicuously this highest link that warrants our special concern and appropriately corrective action.¶ No aspect of the current presidential campaign could possibly be more urgent.
12 +
13 +Also turns case—x-apply our Reuters evidence—Trump will push for aggressive police tactics like stop and frisk and reverse police accountability measures—he’s campaigned on it and would have a mandate as the “law and order” candidate.
14 +
15 +
16 +Positive Hillary approval ratings key to get Garland confirmed before the election.
17 +Steed 7/29 Jason; extensive experience representing clients in both state and federal appellate courts, including the Supreme Court of Texas, the Supreme Court of California, the Supreme Court of Alaska, and the Supreme Court of the United States; former English professor and award-winning writer; Forma Legalis; 7/29/16; “How Garland Gets Confirmed Before the Election”; https://formalegalis.org/2016/07/29/how-garland-gets-confirmed-before-the-election/; JLB (8/3/2016)
18 +My theory: If we get deep into August and the polls are showing not only a strong lead for Clinton but also promising leads in enough of those senate races, it will take only credible whispers of withdrawing Garland’s nomination to make the Republicans nervous enough to go ahead and confirm him before the election. And how do you create a credible threat of withdrawal? By taking the stage before millions of viewers for a week to talk about goals and priorities, and the importance of the Supreme Court, without mentioning Garland. There was an effort to rally Democratic voters behind the importance of appointing the right people to the Supreme Court—but no effort to rally Democratic voters behind Garland. Why? Because absenting Garland from the DNC was a signal. The Party didn’t commit itself to Garland. Clinton didn’t commit herself to Garland. Even Obama didn’t push for Garland. The signal: after this week, the possibility of withdrawing Garland on November 9 is real.
19 +So watch the polls. Senate Republicans are already holding pro forma sessions throughout the summer, to prevent Obama from recess-appointing Garland without them. If they get nervous enough about the polls, it won’t be too hard to pull together an actual session to vote on Garland. They don’t even need hearings, which aren’t required—because everyone already knows Garland is supremely qualified for the job. All they need is a simple majority present to vote. And it could happen before the Court begins its October Term.
20 +
21 +Garland will allow the EPA latitude to regulate CO2
22 +Page 3-16 Samantha; Think Progress, Merrick Garland Knows He’s Not a Scientist, http://thinkprogress.org/climate/2016/03/16/3760853/garland-environmental-record/ DOA: 3-16-16
23 +How do you judge a judge? In the case of Judge Merrick Garland, who President Obama nominated for the Supreme Court on Wednesday, there is not much evidence for or against his environmental record. But as cases against the EPA’s Clean Power Plan and other regulatory actions head to the courts, it’s important to glean what we can. By and large, Garland has a reputation for allowing agencies to do the work they set out to do — and that’s usually a good thing for the environment. Albert Lin, a professor at UC Davis specializing in environmental and natural resources law, clerked for Garland at the U.S. Court of Appeals for the D.C. Circuit and said the judge was thorough and open-minded. “I don’t think he expressed a specific view towards the EPA, per se, but he recognized that government agencies have a role,” Lin told ThinkProgress. “They should have some discretion as to how they function — but he also wasn’t going to give them a free pass.” In 1985, during his time at the Washington, D.C. firm Arnold and Porter, Garland wrote an article for the Harvard Law Review in favor of allowing agencies to have some discretion over how they carry out Congress’ intents. According to Bloomberg, Garland has practiced what he preached. On the D.C. Circuit bench, which is responsible for hearing most administrative cases, such as the recent Clean Power Plan challenge, a third of Garland’s dissents have been over challenges to agency decision-making. In all of those dissents, Garland sided with the agency. And with a deadlocked Congress, further action on the environment is going to continue to come from executive actions intended to protect American’s air, water, and climate under existing frameworks, said Erich Pica, president of Friends of the Earth. Bringing that to a contemporary context, in the Clean Power Plan challenge, one critical issue comes down to whether, under the Clean Air Act, the EPA has the authority to regulate carbon emissions from coal-fired power plants. In fact, there are two conflicting amendments regarding that authority on the books. So, it’s important in this case that the the judges look not only at the Congress’ wording — which is contradictory — but at the intent of the law. This is where Garland presents a possible victory for environmentalists. “He will not just consider the plain language, but what’s the statute trying to accomplish,” Lin said. That means that the judge does not always side with the administration — he sides with what the law is trying to accomplish. Sometimes, that also works out for the environment. In 2004, Garland wrote the majority opinion that ruled against the EPA’s approval of a Washington, D.C. plan to reduce smog that didn’t bring the area into compliance. “We agree with Sierra Club’s principal contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today,” Garland wrote of the Bush-era approval. In a 2012 case Garland again sided with an agency, that time the DEA. Although medical marijuana advocates decried the final decision, during the argument, Garland said something that might cheer environmentalists. “Don’t we have to defer to their judgment?” Garland asked about the agency. “We’re not scientists. They are.” After years of ridiculing the conservative talking point that it’s reasonable to reject the scientific consensus around climate change because “I am not a scientist,” it’s refreshing to hear someone say, I am not a scientist, and therefore we have to listen to scientists. Of course, there are other ways the court can influence environmental policy. “We will see ongoing challenges to money in politics, whether it’s state ballot initiatives, redistricting — there is a whole slew of things that are electorally related that will undoubtedly make their way up to the Supreme Court,” Pica said. Having an Obama-appointed justice “gives us some hope that the Supreme Court can undo some of those terrible rulings that were championed by Scalia on the conservative side of the bench.” As news hit of Garland’s nomination Wednesday, environmental groups called for the Senate to go forward with the confirmation process — something GOP leadership has pledged not to do.
24 +
25 +Clean Power Plan necessary to meet international climate targets.
26 +Fulton 16 Bydeirdre "Nothing Less Than Fate of Planet Hinges on Next Supreme Court Nominee", 2-18-2016, Common Dreams, http://www.commondreams.org/news/2016/02/17/nothing-less-fate-planet-hinges-next-supreme-court-nominee, DOA: 2-18-2016
27 +As Washington, D.C. gears up for a Supreme Court showdown, experts this week are predicting that the person chosen to fill Justice Antonin Scalia's seat on the high court bench will have a huge impact on the fate of the planet.
28 +Common Dreams previously reported that several high-profile cases hang in the balance in the wake of Scalia's death. But perhaps none will be as closely watched as the case that pits fossil fuel giants and Republicans against environmentalists and the Obama administration.
29 +"In dying," science journalist John Upton wrote on Sunday, "Scalia may have done more to support global climate action than most people will do in their lifetimes."
30 +That's because, as Upton explained in a separate piece, Scalia's death "means it is now more likely that key EPA rules that aim to curb climate pollution from the power industry will be upheld."
31 +And those rules—namely the Clean Power Plan (CPP), which aims to reduce carbon pollution from power plants—are necessary for the United States to deliver on the promises made at the COP21 climate summit in Paris in December. Without the CPP, Upton argued, "the U.S. would be left without a credible plan for fulfilling its pledge to reduce its climate pollution by a little more than a quarter in 2025 compared with 2005 levels."
32 +One of Scalia's final acts as a Supreme Court justice was to vote in favor of an unprecedented stay on the CPP until it has been reviewed by the U.S. Court of Appeals for the District of Columbia Circuit, with arguments set for June 2.
33 +The D.C. Circuit is likely to issue a decision on the Clean Power Plan this fall, which would put the rule back in front of the Supreme Court in spring 2017.
34 +"What happens then will depend on whether the court's now vacant ninth seat has been filled and, if so, by whom," Jack Lienke, a lawyer with the Institute for Policy Integrity at New York University School of Law, wrote on Tuesday. "But in most of the possible scenarios, the EPA faces considerably better odds than it did with Scalia on the bench."
35 +There's something in the air...
36 +If a new justice is confirmed before President Barack Obama leaves office, "it does seem fair to assume that an Obama appointee will be more likely to join with the four liberals to uphold the Clean Power Plan than to vote with the four remaining conservatives to strike it down," Lienke said. The shakiest scenario would be if Obama's successor were to get Scalia's replacement through the Senate in time to weigh in on the CPP. That would be good news for environmentalists if the next president is a Democrat. But even if a Republican wins in November and gets a conservative nominee onto the bench, "the EPA would be no worse off than it was in the immediate aftermath of the stay," Lienke continued. "The court would once again be made up of five conservatives and four liberals, and EPA's best bet would once again be to convince Kennedy or Roberts to break ranks." Or, Lienke concluded: Finally, it's possible that Scalia's seat will still be vacant when the Clean Power Plan reaches the Supreme Court. In that scenario, the most likely result is an even split between the four liberals and four remaining conservatives. And a 4-4 vote results in an automatic affirmance of the decision below, which, in this case, would be the DC Circuit's. Of course, the DC Circuit hasn't made its decision yet, and we can't know for sure what it will be. But the panel of judges assigned to the case is generally viewed as favorable to the EPA, because two of the three were appointed by Democrats—one by President Clinton and the other by Obama himself. Furthermore, the New York Times wrote on Tuesday, "If the Senate were to confirm whomever President Obama nominates to succeed Justice Scalia, one of the most conservative justices on the bench, the Supreme Court would probably become more sensitive to the imperative to combat climate change. That’s not just good news for the Clean Power Plan. It could open the door to more aggressive policies." Given these stakes, it's not surprising that green groups are applying heavy scrutiny to potential nominees, such as federal appellate court judge Sri Srinivasan, who has emerged at the front of the pack of possible Scalia replacements. The 48-year-old Indian-American has an "inspiring biography," Politico reports on Wednesday. But, reporter Elana Schor continues, "his history of representing large corporations runs the risk of alienating Obama allies looking to gauge his still-developing record on key liberal priorities." Srinivasan's work on cases "in which he defended ExxonMobil and the mining company Rio Tinto have raised particular objections from environmentalists," Politico writes. "He also represented that enduring symbol of corporate excess, former Enron CEO Jeff Skilling, in the appeal of the executive’s fraud and conspiracy convictions." Jamie Henn, of 350.org, told Politico that Srinivasan's work for Exxon was a "deeply disturbing" aspect of a "mixed" resume. Jane Kleeb, of Bold Nebraska, put it more starkly. "Any judge that sides with Big Oil over the American people has no place on our Supreme Court," she said in an email to the publication. Still, as Todd Aagaard, vice dean and professor at Villanova University School of Law, told Environment and Energy Publishing, "While all of the nominees would give environmental advocates a fair shot, I doubt any of them would automatically incline to favor the 'pro-environmental' side in a case." Yet "if you look closely at Scalia’s legacy on climate change, it’s hard to picture his replacement (even a Republican appointee!) harboring a more willful disregard for science," Eric Holthaus, a meteorologist and staff writer at Slate, wrote on Monday. "Climate activists, who are increasingly a major part of the electorate, now have a big boost to push for bolder promises from Hillary Clinton and Bernie Sanders," Holthaus continued. "Backed by a Supreme Court that would presumably place greater value on the planet’s health, there’s nowhere to go but full-speed ahead in the race to reduce humanity’s carbon footprint."
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