Mired in Dysfunctional Federalism

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It’s no fun being the skunk at the garden party, but amidst the widespread praise of Paul Ryan’s recently announced anti-poverty reforms it appears some criticism is overdue. To be clear, elements of Ryan’s overall plan possess great merit. The main idea of consolidating anti-poverty programs into one stream would seem to make it more accountable to legislators. Allowing it to be spent in ways that are more conducive and particularized to the struggles facing the working poor is smart and compassionate. Increasing the EITC; reducing incarceration for nonviolent offenders; opening up a more a competitive accreditation process for higher education; even attempting to coordinate among federal, state, and local authorities whatever opportunities there may be to reduce regulations (like licensing) that impair economic opportunity for Americans on the lower end of the wage scale—all are good ideas. Of course, details and more details remain to be filled in here.

The plan lacks any proposed cuts in federal spending whatsoever. I suppose, to be fair, that if its goals were achieved, and many were moved into work and the middle class, we would have both more taxpayers and less need for these programs. Maybe. I don’t think that’s how government works, though. However, what is problematic is the plan’s main feature, the so-called “Opportunity Grant” that puts the myriad federal anti-poverty benefits into one benefit and sends it to the states to administer and spend on their citizens. This is really nothing new, it’s a block grant, and it is predicated on cooperative federalism, or what Michael Greve has repeatedly argued is the deconstruction of our constitutional federalism.

Presumably the something new here is that Congressman Ryan’s block grant will permit states “flexibility” and experimentation in how they use it. They will find what works. Not to worry, there will be testing and empirical validation of results in moving recipients into employment and out of poverty. I suppose it’s possible that some good will come of it. I’m also sure the gang in Springfield, Illinois, among other dysfunctional state capitols, can’t wait for this new source of revenue.

But let’s talk competitive federalism first and see what it adds to or detracts from our confidence in the Ryan reforms. Competitive federalism is quite simply our Founders’ federalism: one policy, one sovereignty. This permits accountability because voters clearly perceive how money is being spent and which layer of government is doing the spending. The lines of overlap between federal and state governments are few, as both stick to their respective constitutional roles. There is no practice of states spending money on services that they don’t actually tax their citizens to pay for. Yet, this is precisely what a block grant (“Opportunity Grant”) does.

Good federalism features states competing against each other at the margins on fiscal, labor, social, and educational policies, to name a few areas, while the feds stick to their enumerated powers, and to the extent the latter intervene in areas traditionally regulated by states, they do so in direct ways that avoid empowering the states by sharing a revenue surplus with them.

But what if the feds and the states discover a way to collude and defeat the competitive jurisdictional dynamic of the Constitution? The New Deal, contrary to conservative mythology, was not merely a growth in federal power at the expense of the states. The federal government grew, but it also replaced competitive federalism with cooperative federalism. This federalism of the New Deal was as much about growth in state government spending and size as it was about centralization of power in Washington. The feds wisely recognized that government growth was best achieved by unlocking all aspects of official power—federal and state—so they deeply implicated the states in their projects. Michael Greve in The Upside-Down Constitution writes that

Although federal revenues rose considerably with the onset of the New Deal, an increasingly large share found its way into state and local budgets. . . . Newly enacted grants programs . . . enabled the states to procure federal funds for activities that previously had to be financed from own-source revenues . . . .

The contemporary American policy scene has largely continued this federal-state intergovernmental, cooperative, and overspending scheme. The players all benefit, including, significantly, the states, which offer increased benefits and services to their citizens without actually having to tax them for the benefits provided.

So how might employing cooperative federalism help us think about the “Opportunity Grant” in Paul Ryan’s proposed reforms?

Ryan’s plan does nothing to challenge this dysfunctional system. Instead it wallows in its pathologies. The assumption appears to be that, by wrapping federal anti-poverty funding (food stamps, cash welfare, housing assistance) into one funding stream and sending it to the states to administer, with greater flexibility and creativity mind you, that somehow the poverty curse will be broken. I’m pretty sure the Blue State political entrepreneurs, at all levels, in California, Illinois, and New York salivate at the prospect of applying these funds in the most advantageous ways for their, I mean the people’s, benefit.

One prediction of how states will adjust and profit from the Ryan reform: Current state anti-poverty funds and programs will be reduced—meanwhile those recipients and monies are boosted by the federal grants. The state funds are then freed up for other uses by the state. In short, the pathetic fiscal policies of the usual suspects may have just received more ways to behave like spending addicts. What they need is a concrete tank to sober up in, no matter the pain. Instead, they get more walking around money.

This will not represent a breakthrough in lifting poor Americans out of poverty and marginal employment. One thing we can predict is that the plan’s proposed “caseload” management idea for each welfare recipient will equate with a dramatic growth in state-level bureaucracy or increased state contracts for firms that will link with the states to handle this responsibility. I know, I know, this more holistic approach will be more nuanced and personal, instead of treating people as statistics and robotically handing them a check. We need to let those with training in the rehabilitation and uplift of the poor work with them directly.

One thought, again from federalism maestro Greve, takes us back to the “conservative success” of welfare reform in 1996. We were told, and it is claimed by Ryan in “Expanding Opportunity in America,” that the Clinton era reform moved millions out of poverty and off welfare or TANF which replaced the AFDC program. As noted in the Ryan proposal, poverty rates of single mothers fell from 55 percent in 1992 to 39 percent in 2000.

But what if they were just shifted to other forms of government provision? Consider the following passage from Greve:

The 1996 welfare reform, which replaced the traditional system with a block grant for states that adopt welfare-to-work systems of their own design (more or less), is widely and wildly celebrated as a (conservative) federalism model.  Question: why did state welfare bureaucracies welcome the reform? Answer, because states converted cash grants to poor people into labor- and employment-intensive workfare services: drug rehab, employment counseling, day care, etc. (All these people are unionized and vote Democratic. That may be good or bad, but it’s not a success for Republicans.)

Question: what happened to all those people whose cash grants disappeared and who went off the rolls—did they die in the streets? Nope. Did they all find work? Nope. For the most part they migrated to other, federally financed welfare and support systems: food stamps, housing subsidies, Head Start (where unemployed mothers babysit each other’s children), and (as seen) disability. Expenditures for many of these and other programs exploded. The 1996 reform may have been the right thing to do. But its reputation as a model is grossly inflated.

States will, one could predict, welcome this reform plan. It’s a good deal for them, but not for our fiscal sanity. As Greve noted in “Constitutional Moments” in this space, one step that does put us on the right course is to acknowledge that “no good can come from authorizing one government to tax, and another to spend the proceeds.” If we want to get a handle on spending, “we would align taxes and spending and hand Medicaid, education, and most everything else to one or the other level of government but not both.”

Unfortunately, while the Ryan proposal is loaded with great intentions and purposes, it is still very much something borrowed from our dysfunctional spending past and, if implemented, will become our fiscal future. Many have argued that this is serious and innovative policy thinking that conservatives and libertarians should embrace. If so, then give me horse-and-buggy conservatism. Better yet, I’ll take the principles of the Founders’ Constitution.

Richard Reinsch

Richard Reinsch is a fellow at Liberty Fund and the editor of the Library of Law and Liberty.

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Comments

  1. R Richard Schweitzer says

    Well, here we are, back at the constitutionally delineated “functions” of the mechanism of the Federal government (in terms of the inter-mesh with those of States).

    Of course what has happened (and is not being addressed, but augmented) is the creation of a Federal “State,” an additional body of authority – the Federal Administrative State- to accompany the other 50. What is proposed are alterations in the *operations* of that Federal Administrative State, not changes in its perversions of the functions of the constitutionally delineated mechanisms of government.

    Now, altering those FAS operations may reduce some of the continuing expansions of the FAS and ultimately produce some differing perspectives of how it uses the mechanisms of government in those operations. But, the example of Springfield, IL. (et al.) must give us pause as to what to expect.

    This kind of approach does not begin to lay the groundwork for the careful, step by step, dismantling and replacement of the FAS, by absolute transfers back to the states and the citizens thereof of the responsibilities that sustain their freedoms.

    But then, perhaps it comes a generation too soon (or two generations too late).

  2. nobody.really says

    1. No, Ryan’s proposal won’t necessarily lead to reduced federal social spending – but it never purported to achieve that end. Rejection of Ryan’s proposal wouldn’t reduce federal social spending either. So this strikes me as an irrelevant argument.

    True, Ryan might well prefer to cut social spending. But he’s not trying to win a medal for ideological purity; he’s trying to win the White House. So he’s picking his fights.

    2. I don’t understand Greve’s objection to block grants. Yes, the public needs to have recourse against entities with the power to tax. But the public does have recourse against Congress and the president.

    Yes, it makes sense to keep government policies as local as practical given the purposes of the policy. We could ask border states to bear the full cost of border defenses – but that would not be consistent with the purpose of having border defenses provided for the benefit of the nation as a whole.

    Similarly, social programs as designed to promote the welfare of the nation’s neediest people as a whole. This generally involves wealth redistribution. And states with the largest percentage of needy people are not states with the largest percentage of rich people. Thus it is entirely consistent with the design of social programs to collect funds on a national level even if they then get spent on a local level.

    True, a citizen of Mississippi might object to being taxed at the federal level and having dollars then spent by local government officials. He might bristle at his inability to eliminate the taxation by voting local officials out of office. But would he be better off if the feds administered the social programs instead? Or if the feds simply redirected the funds to some other state? If your beef is with federal taxation for social programs, then the fact that the dollars fund a block grant program is pretty much incidental.

    3. Contrary to Reinsch’s assertion, I’d expect Red States to be more enthusiastic about Ryan’s proposal than Blue States. Blue States are dominated by liberals. Social programs are already focused on promoting goals that liberals favor. Eliminating these programs and converting them to block grants will often result in writing large federal checks to conservative states – where governors will then use the funds to finance fundamentalist religious programs that will drive liberals crazy. Indeed, since conservative states tend to have the greatest social need, I expect that this would be the predominant effect of Ryan’s plan. Why would Blue State liberals support that?

    4. I share Greve’s skepticism about the success of Clinton’s Welfare-to-Work plan. Sure, lots of plans can work within the context of unprecedented prosperity: it a tornado, even turkeys can fly. Once the economy returned to normal, some percentage of the population continued to require economic assistance – just as before.

    5. Contrary to Reinsch’s assertion, it’s damn fun to be the skunk at the garden party — just ask Wart in The Sword in the Stone. Don’t knock it ’til you’ve tried it.

    • gabe says

      “Eliminating these programs and converting them to block grants will often result in writing large federal checks to conservative states – where governors will then use the funds to finance fundamentalist religious programs that will drive liberals crazy”

      Goodness, Nobody, there are other TV channels than MSNBC!!!!

      And while blue states may be dominated by liberals, I can assure you that lurking within the bureaucracies of red states are just a few little libs, don’t ya tink???

  3. R Richard Schweitzer says

    “states with the largest percentage of needy people are not states with the largest percentage of rich people”

    You might want to check the facts on that

    • nobody.really says

      Can’t put my finger on a ranking of states by rich people. But here’s Wikipedia’s list of US states by poverty rate (sortable by four different measures) and by median household income (sortable by six measures).

      The short version: Southern states are at the top of the first list and bottom of the second. Were you expecting some different outcome?

  4. Rudy Hernandez says

    In addition, to the dangers of cooperative federalism in the article, more thought should be given to the section of the Ryan proposal that allows providers to make a life plan for recipients. It is the great feature of charities that they can distinguish between the undeserving poor and the deserving poor, but it might not be so great to give such discretion to state government agencies. Robotically handing people checks means bureaucrats are at least following rules, rather than “crafting a life plan” for recipients and that is much safer. If we are going to continue to redistribute wealth to the poor– it ought to be done in a way where state governments don’t run their lives.

    • nobody.really says

      It is the great feature of charities that they can distinguish between the undeserving poor and the deserving poor….

      DOOLITTLE. ….I’m one of the undeserving poor: that’s what I am. Think of what that means to a man. It means that he’s up agen’ middle class morality all the time. If there’s anything going, and I put in for a bit of it, it’s always the same story: “You’re undeserving; so you can’t have it.” But my needs is as great as the most deserving widow’s that ever got money out of six different charities in one week for the death of the same husband. I don’t need less than a deserving man: I need more. I don’t eat less hearty than him; and I drink a lot more. I want a bit of amusement, cause I’m a thinking man. I want cheerfulness and a song and a band when I feel low. Well, they charge me just the same for everything as they charge the deserving. What is middle class morality? Just an excuse for never giving me anything. Therefore, I ask you, as two gentlemen, not to play that game on me. I’m playing straight with you. I ain’t pretending to be deserving. I’m undeserving; and I mean to go on being undeserving. I like it; and that’s the truth. Will you take advantage of a man’s nature…? Is five pounds unreasonable? I put it to you; and I leave it to you.

      * * *

      HIGGINS. I suppose we must give him a fiver.

      PICKERING. He’ll make a bad use of it, I’m afraid.

      DOOLITTLE. Not me, Governor, so help me I won’t. Don’t you be afraid that I’ll save it and spare it and live idle on it. There won’t be a penny of it left by Monday: I’ll have to go to work same as if I’d never had it. It won’t pauperize me, you bet. Just one good spree for myself and the missus, giving pleasure to ourselves and employment to others, and satisfaction to you to think it’s not been throwed away. You couldn’t spend it better.

      HIGGINS [taking out his pocket book and coming between Doolittle and the piano] This is irresistible. Let’s give him ten. [He offers two notes to the dustman].

      DOOLITTLE. No, Governor. She wouldn’t have the heart to spend ten; and perhaps I shouldn’t neither. Ten pounds is a lot of money: it makes a man feel prudent like; and then goodbye to happiness. You give me what I ask you, Governor: not a penny more, and not a penny less.

      George Bernard Shaw, Pygmalion (1916), Act II.

  5. gabe says

    Professoreee!

    Very nice piece!

    I think the real value of Greve’s arguments is that it shows how a creative, yet destructive, political machine ( Dems) can in time win over its “alleged” opponents even if those opposed to the particular scheme vociferously object to it – i.e., present day “conservatives” whose policy prescriptions often call for the same mechanisms of re-distribution and legerdemain.

    Additionally, it is this particular form of “federalism” that gives sustenance and enables the modern day and inflated notion of “compelling state interest.” The two are inseparable. As we have expanded the notion of legitimate state intervention in both the economy and our daily lives, we now have a vehicle suitable to this purpose – and what the heck, those dumb hick voters will never know that they are actually being taxed by a different taxing authority for this particular scheme. Hey, the Feds are giving it to us – it must be free money!!!

    Yet, does anyone expect that those charged with administering / providing the bevy of state services is going to subsequently and voluntarily forego the monies that they were previously receiving from state taxation for this purpose. “Not so fast, my friend. We have many other services that we can provide to you plebes and you can be certain that we will provide them.” Of course, as our fellow commenter R. Richard is apt to remark there is no “state” interest” but rather an aggregate of people with given predilections, biases and economic interests and ambitions. Amazing how agencies grow when a little “surplus” is available.

    Greve also makes mention of the results of the Master Settlement Agreement (the Big Tobacco “FIX”). Another Rico eligible scheme, to my mind, and one in which the States in this case were able to enlist private business interests in “levying & collecting” a highly regressive tax for state enjoyment. In my state, very little of this money went to those for whom it was purportedly intended. There is one phone line for smoking cessation – yep, that’s it – wish I was that phone operator, my salary must be $25 million or so a year.
    No guys, Ryan’s scheme, as so many others, will simply result in more state spending. It is regrettable that such a “clever” fellow has swallowed the “cooperative federalism” methodology so completely.

    And yes, anyone who has not read Greve’s great book, “The Upside Down constitution” should rush to amazon and get it!!!!!

    • nobody.really says

      Greve also makes mention of the results of the Master Settlement Agreement (the Big Tobacco “FIX”). Another Rico eligible scheme, to my mind, and one in which the States in this case were able to enlist private business interests in “levying & collecting” a highly regressive tax for state enjoyment. In my state, very little of this money went to those for whom it was purportedly intended.

      For whom was this money intended — and under what theory would you make this assertion?

      States sued tobacco firms on the theory that state healthcare programs had to incur additional costs due to the adverse effects of smoking. That is, the party harmed by the tobacco firms were state taxpayers who were stuck with a larger bill than necessary. Thus, the parties to be compensated were state taxpayers. And, at least in my state, they have been: settlement dollars have flowed into the state’s general fund, offsetting the need for other sources of revenues (i.e., taxes).

      • Gabe says

        No!!

        Having followed this case, I definitely remember the State Ag’s, in particular, that loathsome Christine Gregoire of Washington, making specific reference on a number of occasions as to how the monies were to be used – and one of the principal ones was for smoking cessation programs.

        Additionally, the basic premise of the case was false – that there was readily apprehensible difference between the costs of “STATE” provided” medical expenses for smokers as opposed to non-smokers.

        Also, if you like one day< I will take you through the B.S. of the second hand smoke study(ies) as there were actually 24 such studies and the results as published to the uninitiated were such that in order to reach their conclusions they had to eliminate the generally accepted standard of .05 significance and change it to .20 – not to mention that when one went into the details one finds in order to accept their claims of harm had to non-smokers, one also had to accept that he who watches a building burn from across the intersection is liable to suffer more lung damage than the poor bugger residing in the inferno.

        Check it out!!!!!!

      • R Richard Schweitzer says

        Nobody,

        “States sued tobacco firms on the theory that state healthcare programs had to incur additional costs due to the adverse effects of smoking”

        Well, of course they so claimed. That argument has always been intriguing.
        Did they **have to** ? Or, was there political motivation to provide benefits to, or ameliorate burdens of, those who smoked (and continued to smoke.

        If so, how did this become an obligation of any particular state?
        They simply made a political decision to create political benefits; and those benefits cost money because they were created to cost money.

        And under their “police powers” did said states do anything to halt smoking that was causing such damage to the state? Were any smokers sued?

        The “settlements collusions were more likely all about limiting repeated individual claims against producers of tobacco products. What had been individual remedies were submerged in the interest of state revenues.

        • nobody.really says

          The settlements collusions were more likely all about limiting repeated individual claims against producers of tobacco products. What had been individual remedies were submerged in the interest of state revenues.

          If the purpose of the settlement was to preclude individuals from filing claims, someone’s got some ‘splaining to do.

    • R Richard Schweitzer says

      Gabe,

      “Additionally, it is this particular form of “federalism” that gives sustenance and enables the modern day and inflated notion of “compelling state interest.” ”

      Not quite the same thing in this context.

      There is a compelling interest **within** the FSA (Federal Administrative State) it is the interest of the administrators and managers of the operations of that State. Managers do have an interest (usually compelling) to attain efficiencies, and by doing so here to preserve continuity (a crucial interest) and expansion. These kinds of proposals to make the FSA more efficient by creating other functions and connections for the managers will not diminish the perverted uses of the mechanisms of the federal government – and will only prolong the conditions caused by the FSA and by its uses of those mechanisms.

      • gabe says

        Richard;

        Once again, you are on point. My issue is that with this agency motivation to be more efficient, we end up with a more centralized administrative state. I don’t think we disagree – I guess I was simply not being my usual sardonic self.

  6. Mike Greve says

    Richard’s tremendous post gives me WAY too much credit, and I’d be happy to simply follow and learn from the thread–but for “nobody'”s submission: it’s wrong at so many different levels, you don’t know where to begin or end.

    For starters, the “theory” that tobacco firms caused “unnecessary” health care expenditures for states is flat-out wrong, and was known to be so at the time. Like it or not, cigarettes kill people who would otherwise spend years or decades in retirement homes, with dementia or other very expensive afflictions. (Take one look at Medicaid or Medicare accounts: this is where all the money is.) On net, the product saves many billions of Medicaid expenses. The litigating states eviscerated that perfectly plausible and traditional common law defense by legislating it out of existence–not across the board but for tobacco litigation alone; not ex ante but during the pendency of the lawsuits. Let’s hear it for the rule of law.

    Next, the “unnecessary” expenditures weren’t incurred by the states alone; depending on the state, the federal government had paid upwards of 50 or 60 percent. When President Clinton had the nerve of claiming those funds, the states threw a fit and Congress amended the Medicaid statute, for the explicit purpose of leaving states with a gargantuan windfall.

    What did they do with it–reduce tax rates? Build roads? Plug budget holes? Nah: for the most part, they pumped the proceeds back into Medicaid–ostensibly, because that’s where the money belonged; actually, because every windfall dollar so invested produced yet another dollar-plus in federal transfers. Paid for by–nobody.

    That’s the true genius of “cooperative federalism”: even attentive citizens will never know that they’ve been had, or how many times.

    • Gabe says

      Prof Greve:

      Absolutely loved your book!

      I would only add that so many of the “tobacco afflicted” were covered by private insurance and cost the states nothing. You are absolutely correct in terms of the net effect on benefit costs vs. expenses for the remainder of smokers.
      And in the private sector, it may interest our readers to know that a Univ of Minneapolis study found that smokers were actually more productive than non-smokers in terms of their productivity at work- of course, this study also found that this was due to their “addictive” personality” – but what the heck.
      Life ain’t so simple as we would like to believe!

      • nobody.really says

        I would only add that so many of the “tobacco afflicted” were covered by private insurance and cost the states nothing.

        Great — so your argument is that you know better than the tobacco industry about the merits of settling their litigation, and the tobacco industry acted foolishly. Perhaps so; I don’t count myself as being more knowledgeable about this matter than the litigants.

        But, wisely or not, the DID settle. Deal with it.

        • gabe says

          On the contrary – I claim no such exclusive knowledge. I recognize, as apparently do you, that there was / is need for some “splaining” – the hook for the tobacco companies was the provision preventing smokers from suing.
          If I recall correctly, only one tobacco company (was it Brown & Williamson or J. P. Lorrilard?) was not part of the settlement. Review, if your would, last weeks news in which we find that a florida jury awarded the widow of a lifelong smoker,- now get this- $23 BILLION dollars – and the widows name did not sound anything like Gates or Buffett. Thus, it is pretty clear why the tobacco companies “agreed” (compelled, perhaps) to the MSA. Were I CEO of one of these companies, I would have signed with a golden pen.

    • nobody.really says

      For starters, the “theory” that tobacco firms caused “unnecessary” health care expenditures for states is flat-out wrong, and was known to be so at the time. Like it or not, cigarettes kill people who would otherwise spend years or decades in retirement homes, with dementia or other very expensive afflictions. (Take one look at Medicaid or Medicare accounts: this is where all the money is.) On net, the product saves many billions of Medicaid expenses. The litigating states eviscerated that perfectly plausible and traditional common law defense by legislating it out of existence–not across the board but for tobacco litigation alone; not ex ante but during the pendency of the lawsuits. Let’s hear it for the rule of law.

      I’d actually heard something like this.

      Yet my argument stands: The theory upon which states sued was a theory that tobacco companies had cost the state extra money. I don’t mean to argue that I know this theory to be valid. I mean to argue that this was the theory upon which the cases were filed. Thus, I know of no basis for for oft-repeated suggestion that the tobacco settlement dollars should be spent for some specific tobacco-related purpose.

    • nobody.really says

      What did they do with it–reduce tax rates? Build roads? Plug budget holes? Nah: for the most part, they pumped the proceeds back into Medicaid….

      You may want to Google “tobacco settlement securitization.” State after state is opting to cash out their right to receive future funds, allegedly to fill budget shortfalls arising from the recession.

  7. Richard Reinsch says

    I think this comment thread is quite good. I think Schweitzer has his hand on the pulse of this thing with his comments on the Fed Admin State, it truly finds a way to increase its value and control with a scheme like the present one. Nobody.really again outdoes himself. Fundamentalist crazies in state bureaucracies? I think what is more likely is that talented governors in red states and their political-appointed administrators will find a way to leverage this in their favor by claiming new tax cuts or spending constraints while greasing the skids with this money. Greve’s response really nails the game being played here. You never know, John Q. citizen, just what you’re paying for. You aren’t being treated like a citizen, you may as well be a nobody, really.

    • nobody.really says

      Nobody.really again outdoes himself. Fundamentalist crazies in state bureaucracies? I think what is more likely is that talented governors in red states and their political-appointed administrators will find a way to leverage this in their favor by claiming new tax cuts or spending constraints while greasing the skids with this money.

      Great. And this would make liberals like Ryan’s policy — why?

      Again, I don’t mean to argue that conservative governors WOULD use the funds to finance fundamentalists. I mean to argue that Washington liberals — people who really care that social programs deliver resources to poor people — will fear that this would be the result of converting federal social programs (over which they exercise a modicum of control) into state block grants (over which they would exercise little control). Unless you self-identify as a Washington liberal, the fact that you don’t share these concerns has no relevance to this argument.

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