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I had another argument with my conservative co-worker today, and I had a realization about the debate over the individual mandate and the lawsuits against it: While the individual mandate can be presented in a manner that sounds questionable, it is, in fact constitutional, and I think that the lawsuits against it are doomed to failure.

Let's be clear, there are really two attacks against the individual mandate that get phrased in the same way. The phrasing: "The government does not have the right to force me to buy something from a private corporation" is used by both the right and the left, but it means two different things.

From the left, the sentiment is usually with regards to insurance companies being less than reputable. I see this as less an argument against an individual mandate and more an argument for a public option, and is a legitimate concern. I will disagree with my fellows who hold this belief only in terms of tone and utility, not on substance.

From the right, this argument is more insidious, to the point of being nearly a red herring. The goal here is not to destroy the individual mandate as such, but to use its destruction as a tool to destroy some of the other key provisions of the healthcare bill, and to create an excuse to drive prices (and therefore profits) even higher by blaming healthy people who "don't buy insurance because they're healthy". Opening the door to letting people "choose" not to buy health insurance allows corporations to "encourage" people to make that "choice". I can imagine the sales pitch now, a collections company offering to use the same tactics to get sick people off of an insurer's rolls.

It is the attacks from the right that spawned this lawsuit, and it is those attacks that I am addressing here.

But back to the core issue of the constitutionality of the individual mandate:

The federal government has the authority to tax individuals. A tax to ensure the availability of, say, emergency medical services is constitutional, at least conceptually. (Though I am sure there is an unconstitutional way to go about it). There are costs to the government associated with requiring hospitals to provide care to people in an emergency room who cannot pay.

What the government is doing, with the individual mandate, is essentially imposing a flat "right to available healthcare" tax.

Individuals who choose to avail themselves of a private insurance plan that will pay for emergency room visits, and other kinds of care, receive what is effectively a tax deduction for the burden they do not place on the government.

But it gets better!

Since almost all Americans are expected to avail themselves of health insurance, it would be a needless administrative waste for the government to collect the tax on all Americans and then give them their tax money back as part of their rebate each year. SO rather than waste taxpayer money, the government will simply collect this 'tax' on a per-exception basis.

Last but not least, in the language of the bill itself, the mandate is presented as "the right to decline to participate in health insurance". Don't want to participate in health insurance? No problem, just reimburse uncle sam for the money you'll cost him using the emergency room eventually.

Just thought I'd share these thoughts with you, and give my implied prediction on the result of the silly-suit being used as political theater.

Originally posted to PiRierran on Fri Oct 01, 2010 at 12:25 PM PDT.

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Comment Preferences

  •  Founding Father's Socialized Healthcare System (3+ / 0-)

    I do remember reading some opinions by lawyers about it being constitutional, but you might enjoy this tidbit -- I did.

    Our Founding Father's Socialized Healthcare System

    The merchant mariner's job was physical and difficult, leaving them prone to injury. General illness, tropical diseases, wretched backs, sprained wrists, ankles and broken bones could leave a captain without enough crew to man the ship.

    Our Founders realized that a healthy work force was essential to our economic health and growth. It was for this reason that, in July of 1798, Congress passed, and President John Adams signed into law an act “For the Relief of Sick and Disabled Seamen,” establishing the Marine Hospital Service.

    This Federal government socialized healthcare insurance was funded by a tax that was withheld from the sailor’s pay, and then turned over to the government by the ship’s owner. This first payroll tax amounted to slightly over 1% of the sailor’s wages. An injured or sick sailor would make a claim, his record of payments would be confirmed, and he would be given a “chit” for admission to the local hospital. Some of these healthcare facilities were private, but in the larger ports Federal maritime hospitals were built.


    I can't change the direction of the wind, but I can adjust my sails to always reach my destination. ~Jimmy Dean

    by ParkRanger on Fri Oct 01, 2010 at 12:46:02 PM PDT

    •  I've read that before, how shocking that our (2+ / 0-)
      Recommended by:
      ParkRanger, mashed potatoes

      anti-corporation Founders (see: The East India Company) would have set up Universal Healthcare for sailors in the 18th Century.

      Everything old is new again... eventually.

    •  A NHS style system for sailors (1+ / 0-)
      Recommended by:

      CHAP. LXXVII – An Act for the Relief of Sick and Disabled Seamen

      the master or owner of every ship
      pay to the said collector, at the rate of twenty cents per month for every seaman so employed; which sum he is hereby authorized to retain out of the wages of such seamen.
      it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the Secretary of the Treasury;

      and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or
      disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States
      when, in his opinion, a sufficient fund shall be accumulated, he is hereby authorized to purchase or receive cessions or donations of ground or provision for buildings, in the name of the United States, and to cause buildings, when necessary, to be erected as hospitals for the accommodation of sick and disabled seamen
      the President of the United hereby authorized to nominate and appoint...directors of the marine hospital of the United States
      said directors shall render an account of the monies received and expended by them, once in every quarter of a year, to the Secretary of the Treasury, or such other person as the President shall direct; but no other allowance or compensation shall be made to the said directors, except the payment of such expenses as they may incur in the actual discharge of the duties required by this act.

      full text at:

  •  Con Law 101 (1+ / 0-)
    Recommended by:
    Bob Love

    I don't understand why you are talking about this without discussing any Commerce Clause case law.  It's just weird.  You can't answer these question in an armchair from first principles.

  •  Link to an article re lawyers (0+ / 0-)

    I would think lawyers have weighed in on this topic since then, but I had bookmarked this from March 31st.  Maybe this will give you some talking points:

    College debate organizers unable to find any law professors to argue health reform is unconstitutional.


    esterday, the University of Washington held a debate about the constitutionality of the recently passed health care reform bill. The Seattle Times reports that none of the panelists at the debate argued that the bill was unconstitutional because the organizers of the event couldn’t find any law professors who held that view

    Even John McKay, the former Republican U.S. attorney for Western Washington (who was forced out in 2006 under contentious circumstances) said that while he sympathized with some of the political issues in play, he thought the lawsuits lacked merit. In fact, he questioned the timing and thrust of the cases: “One way to say it is, that this has to be seen as a political exercise,” he said.

    My favorite though is the John Adams information in my comment above.  I use that one a lot with conservatives and they always blink and don't say anything in reply.  It gets them thinking.

    I can't change the direction of the wind, but I can adjust my sails to always reach my destination. ~Jimmy Dean

    by ParkRanger on Fri Oct 01, 2010 at 12:52:38 PM PDT

  •  I sincerely doubt that even this SCOTUS (0+ / 0-)

    could find that a mandate to purchase a private product is equivalent to a federal tax enacted under the commerce clause (Which is the basis for the current HCR law enacted 2010)

    US Constitution, Article I, Section VII, Clause III
    To regulate commerce with foreign nations, and among the several states, and with the Indian tribes

    If the HCR law had created a Federal Government Agency which provided access to healthcare to all citizens, and funded it via General Revenues, then the funding would have been a tax.

    That is not the scenario. The HCR law created a set of regulations for the private healthcare insurance industry, one of those regulations being a mandate upon all citizens to participate by way of purchasing a private product/service.

    I'm a very liberal Progressive, and this my view of the HCR and the Individual Mandate.

    While I applaud the good results from this legislation, what it was mainly supposed to address was the ever-expanding cost of healthcare, which it simply ignores.

    •  Actually, a new government agency is not required (1+ / 0-)
      Recommended by:

      nowhere in the constitution is a 'direction' requirement for taxes. The government is not required to trace a particular tax to a particular purpose, with rare exceptions.

      And if you read the words of the bill, there is no mandate. The opt out is to either pay the tax, or to file for one of any number of exemptions.

      •  Plus, states have the right to opt out... (0+ / 0-)

        as long as they provide their own system that achieves the same coverage results. For example, Massachusetts could opt out, based on its system.  Other states can design their own and opt out.

      •  it's only a tax if you owe it to a government or (0+ / 0-)

        a governmental agency.

        Where do you pay this "tax"?

        To a private insurance company.

        Calling it a tax does not make it one.

        If the US Congress had desired that a Tax fund this service, then the Law would have reflected that and labeled the Individual Mandate a tax liability.

        Additionally, one cannot 'opt out' of a tax. At least, I've never found one that I can 'opt out' of.

    •  Two different issues: (0+ / 0-)

      Constitutionally, there are two bases for Congress' power to enact the HCR act:

      1.  The Commerce clause,which you quote.
      1.  The power to tax.

      The power to tax does not derive from the Commerce clause.

      And Angie, you are not correct in saying that HCR "ignores" the ever-expanding cost of healthcare.  In fact, it has major provisions addressing it (which is one of the reason the CBO says it will save the government $100 billion). These weren't talked about much by liberals, because we were so focused on the public option, but they include:

      1. Financial and infrastructure incentives shifting care from specialists to primary care providers.
      1.  Bundling of costs; rather than billing per procedure, providers will have incentives to work together to treat your condition.  This can eliminate the situation (of my Dad) who had the same test three times, once by his nephrologist, once by his oncologist, and once by his primary care doctor.
      1. Accountable Care Organizations... you'll hear a lot about them in the future.  Groups of physicians who agree to be accountable for results, rather than just procedures, will receive financial incentives.
      1.  Virtual elimination of the "charity cases" expense for hospitals, who now must treat most emergency room patients without compensation.  When 90% of people have insurance, that huge cost will be gone.

      There are more... you need to read about them.  Cost containment was the main reason the Senate spent so much of its time and effort on things other than insurance provisions. Liberals didn't like the politics of that, but they are going to like the results.

      •  i dunno about the tax argument. (2+ / 0-)
        Recommended by:
        GeeBee, mashed potatoes
        It seems less like an income excise tax than an unconstitutional per capita tax.
      •  let me be more precise (1+ / 0-)
        Recommended by:

        when I say HCR reform 'ignored' cost-containment, I meant that it did nothing to stop the rising cost of actual care (provider billings, hospital charges).

        While the reform bill addressed some institutional costs (co-ordination of care to: reduce repeat or unecessary testing; duplication of paperwork/healthcare records) - it has no regulation on the cost of actual care.

        They could have regulated the number of MIR and CT imaging machines in a municipal area, one of the foremost leaders in the rising cost of care. Why?

        Hospitals, clinics and even individual physican practices are buying more and more medical diagnosis machinery, enabling them to provide a One-Stop-Shopping experience for the medical services consumer, who can now go to her Primary Caregiver and get her X-ray or MRI scan without leaving the building.

        The downside?

        Each one of these machines is horrendously expensive - and each one will be under-utilized by a significant factor. Every office that buys one if forced to charge upwards of $2000-3000 per scan -because they have to charge enough to pay it off before the warranty expires.

        If the number of such diagnostic machinery in a municipal area was regulated by HHS, then the medical providers of that area would have to discuss where they were best sited to provide the best use and cost for the entire population.

        If this type of regulation were instituted, the bloated costs of a lot of modern diagnostic machinery would drop enough to affect the overall cost of care for the nation to a substantial level.

        No, I'm not doing the math - I did it once, here, in a diary last year. I used HHS and regional hospital data for population numbers of a hypothetical city population and utilization rates of current MRI machinery vs a robust efficiency utilization rate.

        Most people have no clue as to why medical costs are rising so high, so fast.  I've worked in healthcare, I know why.

        *Very expensive Diagnostic machinery (many at >$1 Million each) under-utilized (driving individual use rates sky high).
        *Explosion of medical diagnostic and therapy machinery which has become a 'covered' Medicare and/or Medicaid benefit. (not that many of these items are not useful, but there is little or no reporting on overall efficacy as a it relates to improved population healthcare ranking - we as a nation are sadly more sick than our European counterparts with Universal Access to healthcare and preventative care)
        *Unregulated hourly charges by phsyicians and surgeons. Yes, there are often extensive years of unique training which come at the cost of home/family life. Yes, dedicated and talented medical providers deserve compensation which reflects that time and effort. But in an industry in which the consumer is oftimes in no position to so much as inquire as to the cost of the service they are about to receive, it seems only reasonable that the industry would have some fiscal regulation - if only to protect vulnerable consumers, who are purchasing at a moment of emotional and/or phyisical impairment.

        These are the sorts of things to which I was referring, when saying the HCR was an Insurance Regulation Reform, and that it was intended, at least inititally, to curb the rising cost of healthcare services - which it did not. Notice the current years rising premium costs to consumers? Yeah, that sort of cost, which is absolutely visible to consumers, while reduction in institutional costs is invisible, and for the most part will not even be introduced into the system until 2013-2014.

        As for the oft-repeated, and completely unfounded claim that:

        ... the "charity cases" expense for hospitals, who now must treat most emergency room patients without compensation...

        While I do know that there are significant costs to ERs across the nation for uncompensated care, the other part of your claim "who must treat most emergency room pations" is not correct.

        Here is the information on EMTALA from CMS (Centers for Medicare and Medicaid)

        In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.

        [emphasis added]

        As you can see, what hospitals are required to do is:
        *Exam anyone who presents with a claim of EMC
        *Provide stabilizing treatment
        *If such treatment is beyond the ability of the facility (or if the patient requests it), they should transfer the patient to an appropriate facility.

        So, unless you have an actual issue which is compromising your life (you are not medically stable), all they are required to do is examine you and then refer you to "appropriate" care.

        In ERs today, this means, as an example, that the poor and/or uninsured present at a hospital with a child with an ear infection, they are likely to be referred to a local Free Clinic, a local Federal Community Healthcare facility or a nearby Urgent Care clinic.

        There is no "care" provided to these people, other than the exam and referral.

        It bothers me to no end that the level of knowledge about this is so lacking in what should be the 'educated' portion of the Electorate.

      •  The costs that the government will "save" (0+ / 0-)

        are going to be passed onto consumers. This will escalate the rate of increase in the cost of health care in the US, when you consider all the people who are going to be paying $10K for insurance and deductible in order to get that first penny of reimbursement. It's like a candy store for the insurance companies.

        Millions of people who could neither afford insurance nor healthcare will suddenly become able to pay for it. Right.

        Get serious. The estimates also assumed that people would keep the jobs they had and have pay increases. They are way off.

        "Too big to fail" is not too big to jail.

        by Angela Quattrano on Fri Oct 01, 2010 at 05:13:51 PM PDT

        [ Parent ]

    •  You can't just quote the Commerce Clause... (0+ / 0-)

      to know what it means.  You need to look at how the Supreme Court has interpreted it.  I don't know why Americans act as if the Supreme Court suddenly sprang into existence yesterday.  It's exceedingly lazy.  You need to read Lopez, read Morrison, read Gonzales v. Raich, etc...  

      •  I know enough to understand that the US Congress (0+ / 0-)

        could, and likely should have, crafted the bill with more clear language.

        I've read the entire Constitution, more than once. I've read at least the precis of a number of legal decisions, usually via - a truely wonderful source for those without a legal education.

        My basis for my claim that this SCOTUS failing to find an equivalency is based on the current makeup of the court and the legal difference between a tax and a mandate to purchase.

        A tax is to impose a financial charge or other levy upon a taxpayer (an individual or legal entity) by a state or the functional equivalent of a state such that failure to pay is punishable by law

        An Individual Mandate to purchase is a regulation on citizens requiring they interact with another party, either public or private, for a particular purpose.

        Now, there are any number of people who have claimed that the Individual Mandate is a de-facto tax, but that does not make the claim true. If the US Congress had desired that a Tax fund this service, then the Law would have reflected that and labeled the Individual Mandate a tax liability.

        How can the SCOTUS fail to recognize and address this issue if it comes before them as it looks like it might sometime next year?

        •  Read Gonzales v. Raich (0+ / 0-)

          or at least the Wikipedia article, and tell me how there is a weaker argument for commerce clause authority in the case of health care than in growing your own marijuana at home.  For one thing, the purchase of health care is economic activity, and economic activity that has substantial effects on the national health care market.

  •  It's a tax (2+ / 0-)
    Recommended by:
    N in Seattle, chrismorgan

    The mandate is constitutional because it is a tax. If you have insurance, you get a tax break. If you don't, you have to pay it. There is nothing unconstitutional about taxing. And none of the lawsuits based on that argument will go anywhere.

  •  The mandate stinks... (0+ / 0-)

    It forces people to pay a high price for a lousy product.  The subsidies for those of middle incomes are way too low.  The insurance companies will win big if the mandate comes into force in 2014.  I would love to see it repealed or declared unconstitutional, even though I think it unlikely,

    •  I agree (0+ / 0-)

      but it is still constitutional. Let's get a public option and fix the underlying trouble.

      •  After midterm election, public option is dead. (0+ / 0-)

        At best, the Dems will hold razor thin majority in both houses of Congress.  Since only a handful of conservadems have to vote no on a public option, it will have no chance of passage.  So public option is not going to happen in the foreseeable future.  

        While Rethugs talk about repeal of health insurance reform, I doubt that they would vote against a mandate that is a huge giveaway to the insurance companies.  The only people who really win are those who will be newly eligible for Medicaid due to higher income qualifications.  

    •  Um, no... (0+ / 0-)

      Throw out the mandate, and the entire reform plan unravels.  Paul Krugman has addressed this issue numerous times in the past two years -- you need to force the healthy to buy into the system, otherwise, the insured population will skew heavily towards those who are expensive to insure, driving up the cost of insurance ever higher.

      While keeping the prohibition on discriminating against those with preexisting condtions but eliminating the mandate sounds nice, the result would be a sort of insurance death spiral.  And while some might argue that as being a good thing over the long run, the more immediate effect would be all manner of suffering.

      Political Compass: -6.75, -3.08

      by TexasTom on Fri Oct 01, 2010 at 09:48:55 PM PDT

      [ Parent ]

  •  This debate wouldn’t even exist if (2+ / 0-)
    Recommended by:
    GeeBee, mashed potatoes

    HCR had a public option, because there would be no mandate to buy a private product, only a mandate to participate in a government program (public option), and such a mandate already exist (Social Security). Actually under those circumstances, private health insurance would be the "option".

  •  Playing devil's advocate ... (1+ / 0-)
    Recommended by:
    mashed potatoes

    The government does not have the power to tax for any purpose it pleases, only in support of those specific powers enumerated in the Constitution.

    So where is the enumerated power to provide health care for everyone?  Given the existing case law, I expect the courts will find it in the commerce clause, but there are an awful lot of people who strongly disagree with that.

    Tropical weather info and discussion at

    by jrooth on Fri Oct 01, 2010 at 01:17:24 PM PDT

    •  in the Preamble (0+ / 0-)

      "to promote the general welfare"

      grok the "edku" -- edscan's "revelation", 21 January 2009

      by N in Seattle on Fri Oct 01, 2010 at 02:20:25 PM PDT

      [ Parent ]

    •  Taxing and Spending Clause (0+ / 0-)

      The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

      In United States v. Butler, 297 U.S. 1 (1936), the Court held that:

      The clause confers a power separate and distinct from those later enumerated [,] is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. ... It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

      Why the diarist made this taxation argument but failed to cite United States v. Butler I do not understand.

  •  Simple Answer (1+ / 0-)
    Recommended by:
    mashed potatoes

    From a Progressive viewpoint, the Commerce Clause grants unlimited absolute power to the government to do anything it wants. The rest of the Constitution is an interesting anachronism.

  •  How things change-but still remain the same (0+ / 0-)

    I thought Obama swore it was not a tax and got unbridled at suggestions that it was back when he fighting to get it passed.

  •  There isn't much precendent to guide us.. (1+ / 0-)
    Recommended by:
    mashed potatoes

    and the Constitutionality of the mandate is far from a slam dunk.

    Especially when you consider that there are, right now, four solid votes on SCOTUS to reduce the scope of the Commerce Clause, and at least one (Thomas) who would restrict it to the literal meaning of "commerce between the several States."

    And, so far as I know, this is the first time a Federal statute has required every single citizen yo purchase a private product. While one can argue that this is merely an extension of the current understanding of Congress' powers, it is new.

    Nobody really knows anything right now. SCOTUS will rule, and then we will know.


    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
    "Dissent is patriotic. Blind obedience is treason." --me

    by Leftie Gunner on Fri Oct 01, 2010 at 05:10:35 PM PDT

  •  This part (0+ / 0-)

    What the government is doing, with the individual mandate, is essentially imposing a flat "right to available healthcare" tax.

    I can't imagine where you got that from. Having paid probably $5K to an insurance company per person (which is what it's looking like it will be in 2014) doesn't mean you'll get any healthcare at all. You have no right to go to the doctor and get treatment at that point. You can only go if you can afford to pay all of it (except for a few narrowly-defined services) yourself out of your own pocket until you reach that deductible. People who were previously unable to afford healthcare or insurance will now be even less able to afford health care.

    I looked myself up on an insurance company's calculator. If my income is $20K in 2014, I will be required to pay $1500 out of my own pocket, and the remaining $9K will be a tax credit for me. But I won't have $9K in taxes to be credited back. I don't pay that much in taxes. Please explain to me how that is going to get me anything.

    Considering that unemployment is continuing to increase, real wages are falling, and costs are skyrocketing, it really is moot whether the Constitution permits them to tell us to throw half our income into a brown paper bag and give it to the insurance companies and get nothing in return. This is just going to be a disaster for health care and consumers in this country because nobody will be able to afford to buy insurance.

    "Too big to fail" is not too big to jail.

    by Angela Quattrano on Fri Oct 01, 2010 at 05:26:29 PM PDT

  •  some case law (0+ / 0-)

    Paul v. Virginia, 75 U.S. 7 Wall. 168 (1869)

    Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different States. The policies do not take effect -- are not executed contracts -- until delivered by the agent in Virginia. They are, then, local transactions, and are governed by the local law. They do not constitute a part of the commerce between the States any more than a contract for the purchase and sale of goods in Virginia by a citizen of New York whilst in Virginia would constitute a portion of such commerce.

    Adair vs. U.S. (1908)

    It is not within the functions of compel any person in the course of his business and against his will, to accept or retain the personal services of another.

    Justice John Marshall Harlan
    209 U.S. 161

    The Great Quotations page 444

    It also should be remember that Justice Roberts is bound by a Stare decisis pledge.

    •  "bound by a stare decisis pledge" ... ? (0+ / 0-)

      Unenforceable. Supposedly, every justice is bound by stare decisis ... that just means that whoever writes the opinion has to get convoluted and distinguish the current case from precedent in some way - but that "way" doesn't even have to pass the laugh test. And when Scalithomas is writing, it often doesn't pass - on days when one of their decisions is delivered, incredulous laughter sounds o'er the land.

    •  These cases are no longer good law (0+ / 0-)

      That's a completely different era in terms of Commerce Clause jurisprudence.  I don't know why you think either case is still of any relevance.  You can't just cite any case law and assume that it's still good law.  In particular, the Supreme Court explicitly overruled Paul v. Virginia in United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944).

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