Four Thoughts on Travel Ban 4.0

The new proclamation will likely be upheld by the Supreme Court, and set the stage for future, broader entry bans

|The Volokh Conspiracy |

Yesterday, President Trump signed a new entry ban, which I will refer to as Travel Ban 4.0. I have four tentative thoughts on the new proclamation.

First, Travel Ban 4.0 builds on Travel Ban 3.0, which the Supreme Court upheld in Trump v. Hawaii. Specifically, it articulates specific criteria by which countries would be assessed, and then determines whether a country meets those criteria. This proclamation discusses a lengthy, multilateral process between agencies, that weighed certain domestic and foreign policy considerations. We are far, far away from the slapdash approach of Travel Ban 1.0.

Second, critics of the policy will simply charge, once again, that this elaborate policy is a pretextual ruse. The policy is really motivated by the President's animus towards Islam. The six new nations on the list have substantial Muslim populations: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. And advocates will also rely on allegations that the President referred to certain African nations as "shithole countries." Trump v. Hawaii relied extensively on the President's public statements and tweets about Islam. In contrast, the "shithole" comment was purportedly made in a private meeting, and was reported subsequently by several attendees. FactCheck treats the statement as "disputed." I long ago wrote that federal courts should not be in the business of fact-checking political statements.

Third, Travel Ban 4.0 employs a variegated strategy. With Travel Ban 3.0, the remedy was the same for all countries: nationals were banned entry. But for Travel Ban 4.0, the President chose different punishments. Nationals from all of these countries, who already have visas, will be allowed to use those travel documents. No one will be trapped at airports, like with Travel Ban 1.0. Rather, Nationals from four countries will not be allowed to apply for immigrant visas, which permit some sort of permanent residency: Burma, Eritrea, Kyrgyzstan, and Nigeria. Nationals from these four countries will still be allowed to apply for non-immigrant visas, such as as a tourist visas.  Nationals from two countries will not be allowed to apply for the diversity visa lottery program, also known as the "visa lottery": Sudan and Tanzania. As far as I can tell, nationals from these countries can still apply for immigrant and non-immigrant visas. (I welcome corrections).

Advocates will raise a statutory argument: 8 U.S.C. 1182(f) only allows the President to deny entry. That provision does not allow the President to deny visa applications. I disagree. Trump v. Hawaii largely adopted an argument I advanced since the outset of the litigation: the power to deny entry includes the lesser power to block people from applying for visas. Chief Justice Roberts explained:

In any event, we reject plaintiffs' interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the pool of individuals who are admissible to the United States. . . .

Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which § 1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the "issuance" of "immigrant visa[s]," without mentioning admissibility or entry.

I expect advocates will also argue that this policy is irrational: if these countries cannot verify a person's identity, or are so dangerous, then why allow some nationals to enter on non-immigrant visas? Moreover, what does the diversity lottery have to do with national security? The response: the government need not act reasonably, only rationally. And this term of art, at least in the constitutional context, does not require a meaningful fit between the means and ends. There are enough justifications in this lengthy proclamation for the policy to easily meet constitutional and statutory scrutiny. For example, the proclamation offers this rationale to restrict immigrant visas, but not immigrant visas:

Consistent with the January 2020 proposal, I have prioritized restricting immigrant visa travel over nonimmigrant visa travel because of the challenges of removing an individual in the United States who was admitted with an immigrant visa if, after admission to the United States, the individual is discovered to have terrorist connections, criminal ties, or misrepresented information. Because each of the six additional countries identified in the January 2020 proposal has deficiencies in sharing terrorist, criminal, or identity information, there is an unacceptable likelihood that information reflecting the fact that a visa applicant is a threat to national security or public safety may not be available at the time the visa or entry is approved.

Finally, the proclamation has a severability clause. If any one part is declared unlawful, the remainder will stand.

Fourth, some district court judge somewhere will enter a nationwide, non-party injunction, to block the proclamation as to all nationals of these six countries. And, shortly thereafter, I suspect the Supreme Court will stay the injunction. And the policy will go into effect. If five Justices (including Justice Kennedy) were willing to uphold Travel Ban 3.0, then five Justices (with Justice Kavanaugh) will likely uphold Travel Ban 4.0. And if President Trump is re-elected, I expect to see another, much broader travel ban issued. I suspect many more countries will be excluded from the visa lottery, a long time target of President Trump. That policy may ultimately be gutted entirely. The first step is to exclude a handful of countries from its requirements.

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  1. “Fourth, some district court judge somewhere will enter a nationwide, non-party injunction, to block the proclamation as to all nationals of these six countries. And, shortly thereafter, I suspect the Supreme Court will stay the injunction.”

    All the more reason for SCOTUS to quickly address national injunction abuse, as Justice Gorsuch eloquently indicated the other day.

    1. I suspect only 2 justices want a per se ban on national injunctions. The others figure that national injunctions can be quickly struck down on appellate review when they are improperly imposed.

  2. Just do like the Feds did with requesting your 2nd Amendment rights be restored after Felony conviction. You apply to an Office with no funding, that does not exist; using a form that does not exist either for Lottery Visa Applications. Problem solved. Kafkaesque, eh? Pure Genius !!!

  3. So . . . bigoted travel bans seem likely to fly until (1) a non-bigoted president is in office and/or (2) the Supreme Court lineup changes, likely by enlargement, to provide less Republican appeasement of bigots.

    Oh, and no need for the Supreme Court to wonder whether to credit reports that Pres. Trump added Nigeria after asking an aide ‘these Nigerians . . . they’re the really dark ones, right?’

    1. Nobody is enlarging the Supreme Court, Rev.

      1. Why? Because you don’t want it to happen? Because you are unfamiliar with the mechanics? Because you haven’t thought about it much? Because you don’t believe it would benefit most Americans — and the better Americans?

        You are welcome to your opinion, but I would wish to know its basis. How much of it is based on extended discussions with people active and influential within the Democratic Party?

        1. Republicans controlled the White House, Senate and House of representatives for two years, 2017-2018, and could have packed the Supreme Court in an afternoon, but did not do it.

          1. Republicans already had a Supreme Court to their liking.

    2. Why does this sub human impute the motive of bigotry to everyone who disagrees with its worldview?

      Why is it allowed to post its hatred and nonsense?

      1. Direct your observation to the Volokh Conspiracy Board of Censors. A right-winger’s objection to liberal-libertarian mainstream content always has a chance in that context. Specify the offensive comment’s language that is critical of movement conservatism to improve your prospects.

        1. Nah….I want you to spew your vile shit for everyone to see, Reverend. Makes it easier.

          You’re due for some visits from your alter egos. Depend on it. 🙂

          1. Prof. Volokh has censored before and, I expect, will censor again.

            Clingers gotta cling.

      2. Because, vile and bigoted as RAK is, no governmental body can be trusted to identify and suppress only the ones like him.

        1. It doesn’t take a governmental body to censor me at the Volokh Conspiracy. Ask Prof. Volokh — or keep your eye on his “ban” finger.

          1. Looky here, Rev KKKirkland is playing the victim card.

            Eat my turd, whiner.

            1. Not a victim. A winner.

              A winner who sees benefit in exposing an ostensible champion of free speech as a downscale viewpoint-controlled censor.

  4. I said in another thread that nobody hates Blackman.

    I’m not so sure any more. The Trump toadyism gets worse.

    1. Or better, if you believe exposing right-wing academics’ paltry natures is worthwhile.

    2. Sigh,

      Is it “toadyism” to make the legal and logical arguments why such a ban might be upheld, even if you don’t personally agree with such a ban? Surely you understand the rationale behind making and exploring such arguments, even if you don’t agree with the policy.

      One can easily oppose rapists, while simultaneously making the arguments why an accused rapists should be defended vigorously in a court of law. And exploring WHY the accused should be defended in a vigorous and substantial manner. There are important reasons to support this, which hopefully you understand.

      There is an unfortunate tendency lately to not only attempt to socially castigate those whose policies one disagrees with, but also the lawyers and other legal professionals who would explore the legal arguments that support the people who promote undesirable policies. That is….problematic.

      1. Is it “toadyism” to make the legal and logical arguments why such a ban might be upheld, even if you don’t personally agree with such a ban?

        In isolation, it isn’t.

  5. I don’t expect a broader travel ban on re-election. This one seems to fit the goal of denying possible terrorists a home here. How would a broader ban accomplish it better? And why wouldn’t that get enacted now?

    Hopefully some of these countries start doing more to share information so they can get off the list.

    1. So why isn’t Saudi Arabia on that list? It seems they have supplied more terrorists to the US than any other country.

      1. You expect Conspiracy- and Trump-class clingers to turn against people who put bonesaws to Washington Post writers?

      2. I’d assume it’s some combination of their being perceived as essential allies if peace is every going to be achieved in the Middle East, and the State Department not having yet been purged of their supporters from previous administrations.

        1. You figure Trump’s affection for Saudi Arabia derives from government holdovers, you bigoted sticks-dweller?

        2. the State Department not having yet been purged of their supporters from previous administrations.

          That’s ridiculous.

  6. Keep in mind that Obama has animus towards Islam as well. So he rejected the religion of his father’s family while embracing Christ as his savior. So Obama clearly believes Christianity is superior to Islam.

    In addition Obama prohibited members of ISIS from entering America based on their practice of their religion. Obama even famously tried to explain to the brown foreigners how they were incorrectly practicing Islam and that they should listen to the superior Americans because we know what’s best for everyone else in the world.

    1. Obama is as much a Christian as Michelle is a female.

      1. Unlike Trump’s daughter Obama didn’t kick Christ to the curb.

  7. “The six new nations on the list have substantial Muslim populations: ”

    As I’ve remarked before, it’s just a brute fact that state sponsors of terrorism and failed states are predominantly Muslim. Any rational travel restrictions are going to exhibit this sort of distribution.

    The real shame here is that these states are also often engaged in genocide against non-Muslims, and the litigation has made it infeasible to allow the targets of such genocide special accommodations; It would be interpreted by the courts as proving the policy grounded in religious animus!

    1. The desire of progressives for more Muslim Americans, even when Muslims tend to oppose liberal social values, is further proof that the primary motivation of modern progressivism is animus for white Christians and a weakening of America. So the original progressives opposed immigration and advocated assimilation to WASP values because they believed that was the best path to further their economic goals.

      So the El Paso shooter was a progressive/environmental activist that actually had a coherent ideology in that the best way to achieve progressive economic and environmental policies is by reducing immigration. So immigration increases divisiveness in the short term while in the long term immigrants adopt our gluttonous lifestyle which is destroying the planet. So the El Paso shooter wanted Latinos to stay in Mexico because Mexicans have a much smaller carbon footprint than Americans, and with fewer immigrants dividing our country Americans would be more likely to adopt UBI and M4A.

        1. Yep. Read his Manifesto like CNN told you to do…you will discover he was a progressive activist/environmental activist. And his ideology is more coherent than the Squad’s ideology which is nothing more than animus for white straight Christian Americans disguised as progressivism.

          And let’s take a look at Tlaib’s and Omar’s Islam—they both support same sex marriage and abortion and Omar’s favorite show is RuPaul and Tlaib believes Allah is a woman! So they are the two least mainstream Muslims on the planet and yet they are celebrated because they are Muslim?!? So why doesn’t Tlaib go to her precious Palestine and tell everyone that Allah is a woman…or better yet say Allah is a transgender female that tucks. I mean why can’t Allah be a transgender female that tucks if Allah can be a woman?? Let’s see how that plays over in Palestine.

      1. It is true that if you look at the hodge podge of contradictory things modern western leftists support, the ONLY possible interpretation for what they’re really thinking is: White people are evil, and must be held down or destroyed… And we need to weaken and divide every western nation to that end.

        Nothing else makes sense. If they were truly socially “liberal” they would be shit talking Muslims like CRAZY. They’re like evangelical Christians times 1,000. If they really cared about the working class here, they wouldn’t be supporting importing millions of unskilled people to lower their wages. Etc etc etc. None of it makes sense unless their goal is to weaken/destroy western civilization.

        1. Open wider, vek. Your betters aren’t done with you.

          As always, your lifelong compliance with the preferences of your betters is appreciated.

          1. LOL

            We’ll see how it all plays our Rev. Somehow I don’t think the illogical, limp dick, cowardly, communists are going to win this one in the end. Not enough people are THAT stupid. And the total collapse of civilized society because of all their horrible policies is just making more and more people realize what a fail all those ideas are.

            1. Collapsed civilized society?

              Why do half-educated right-wing racists hate modern America?

              1. Mainly because it’s a dysfunctional disaster that offers its citizens far less freedom than it used, or could again?

    2. Are you for police profiling as well, Brett? What other sorts of collective guilt do you support?

      1. You best remember that comment when the subject of affirmative action or slavery reparations comes up again.

        1. It’s almost as though those policies have reasons for them other than collective guilt.

          1. It’s hard to see how slavery reparations is anything but collective guilt when you have the people who weren’t slavers paying the people who weren’t slaves.

          2. You have it backwards, it is only through the collective guilt that we had the policy that the travel ban seeks to undo.

      2. For those neither citizens nor already legally extended residency, entry into the country isn’t a right. And so denial of it isn’t denial of a right. No matter what the basis of the denial.

        Here the basis is simply that the information necessary to make individual determinations is either unavailable or unreliable, so what options are left but statistical generalizations?

        1. Collective guilt isn’t a thing other people need to have a right not to have applied to them, it’s a bad moral act by any non-collectivist metric.

          Things are hard so you don’t bother to act morally. Way to go.

          1. You don’t get the information necessary to make an individual determination magically, on mere account of needing it. And these decisions have to be made anyway.

            This isn’t a matter of guilt or innocence, because telling someone with no right to come here that they can’t come here isn’t a punishment. It’s a decision not to extend a privilege.

      3. The basic flaw in your comment is that keeping someone from immigrating into the U.S. is not a pronouncement of “guilt.” It is simply a judgment of whether that person is someone that will likely be positive or negative to the country. That he hails from a country where terrorist groups are rampant, and where the local government lacks control or basic identification data, increases the chances that he is likely to be a negative to the country. And since entry into the United States is a privilege, not a right, the United States is entitled to assess the chances as best it can based on the facts, including the country of origin.

        It is not different than preferring immigrants who have marketable skills or education vs. those who are unskilled. The former are more likely to be a net positive to the nation’s economy than the latter.

        In short, it is in no way a pronouncement of “guilt” and hence not collective guilt.

      4. There’s nothing wrong with profiling IMO. When 90% of global terrorism is committed by a certain group, it is reasonable to give that group extra scrutiny. Just as it was reasonable for the British to profile Irish people back when the IRA was active, so too it is reasonable to profile Muslims, ESPECIALLY if they come from the Muslim nations that produce the most terrorists.

        None of this is to say that’s a blank check to lock every single one up in Gitmo or whatever… But extra scrutiny, that’s clearly the most logical thing to do.

  8. Hey? Didn’t you write an op-ed for the NYT?

  9. Could the federal courts strike down a congressional declaration of war, or a presidential invasion order pursuant to it, if the judges think going to war with a country lacks a rational basis?

    If not, why is an immigration ban different?. Why is it rational to think that a law or order to kill a country’s citizens would be immune from judicial review, but not the much lesser sanction of an immigration ban?

    Rational basis review implies the existence of a due process right. But foreigners have no more due process rights to enter this country than fetuses have due process rights to be born. They can be excluded for reasons judges think arbitrary and capricious. That’s what sovereignty, autonomy, freedom of choice, means.

    1. “But foreigners have no more due process rights to enter this country”

      THIS. The idea that EVERY PERSON ON EARTH has due process rights under US law is absurd. I’ve read up on some of the case law that supposedly conferred such rights in the past, and it’s basically all just bullshit. That entire concept needs to be overturned in terms of case law, and the few actual statutes that were built up around that assumption.

      When some asshat shows up demanding to come in illegally at our border, there should be no process other than throwing them out 2 hours later, and telling them there will be more dire consequences if they’re ever caught again. It’s nuts.

  10. Of course, Josh doesn’t know anyone from Nigeria, or Kyrgyzstan, or Myanmar, or Eritrea, Sudan or Tanzania. In fact he appears not to know any dark-skinned people at all, or Muslims, except perhaps as people he gives orders to at restaurants. This is probably true of most of the VC’ers. It’s certainly true of most of the commenters.

    My elderly Nigerian neighbors, whose nieces and nephews will no longer be able to visit them, or my Tanzanian IT friend, ditto, have different feelings about this travel ban. Yet another instance of gleeful cruelty by our Bigot in Chief.

    (P.S. Not only did he call black African countries “sh**hole countries”, he also said that Nigerians live “in huts”. Nigeria, of course, is Africa’s richest country.)

    1. Tourist visas are allowed for all the affected countries. So no cruelty, gleeful or otherwise.

    2. Amazing. How did you gain this god-like knowledge of the private lives of everyone here? It’s unchallenged except for the MSM’s seeming ability to capture bits of secure conversations in the White House, unheard by the actual participants.

      Anyway, Nigeria: Per capita GDP of about $2K nominal. Adjusting for lower local prices, (PPP) brings that up to about $5.3K

      Poorest US state: Mississippi, at about $31K.

      Bottom line? Africa is such a shit hole that it’s richest country, even accounting for lower prices, is about 5 times poorer than America’s poorest state.

      Worse, Nigeria has a typical sub-Saharan Africa level of income inequality, which means that almost all of that per capita GDP is enjoyed by only a tiny fraction of the population. The situation of most Nigerians is even worse than that average suggests.

      captcrisis, outside of the 1st world, most of the world is a shit hole by US standards. That’s just the truth.

      1. Nigeria isn’t Africa’s richest country… IIRC every single North African country is richer. Which is to say the countries that have Arabs there, not black Africans, are far wealthier. Also, South Africa is vastly richer too. South Africa of course being pulled up in its average by having the largest white population in Africa, as well as a lot of Indians and others from former British colonies.

        But yeah, by any decent standards every country in Africa is a shithole. Even SA is a disastrous mess compared to Mexico, and it’s the best country there is in that neck of the woods.

      2. Most of the underdeveloped world has a skewed income distribution. In fact we are well on our way to the same situation.

        1. Most of the underdeveloped world is saddled with government that has enough power to dominate every other institution, instead of being kept in check by competing power centers. Income inequality is almost always in the government’s interest, it simplifies tax collection, makes it easier to collect graft, too.

          Basically you can tax the wealthy, the wealthy can give your kids lucrative no-show jobs. The poor represent a cheaply bought power center in any democracy.

          But the people in the middle? Not poor enough to be grateful for a handout, not wealthy enough to be a source of kickbacks, they’re basically a waste of skin so far as government is concerned.

          Income inequality is driven by the government because it’s in government’s interest, and as our government gets stronger, it gets better able to impose it here, too.

      3. Matthew 7:20

        Of course I know.

    3. You know, we can deny entry to foreign nationals for any reason, or no reason at all. Get over it.

      I would love to have 5MM people coming here legally every year. Only the very best and brightest from around the world. Scientists, biologists, physicist, geneticists, chemists, mathematics geniuses, etc….Those are the people who will build the America of the future. Lawyers and landscapers and busboys and the indigent; not so much – they can stay where they are.

      1. Yup.

        One of the things I have frequently said to people is this: A country can really only accept so many immigrants without tearing itself apart. Even if you believe everybody will eventually assimilate (which I believe is incorrect, you’re really just creating ever lasting internal ethnic blocks who will infight until the end of time), you can only take in so many at once… Imagine the difference between letting in 10 million $100,000 a year people, and 10 million $20,000 a year people

        The 100K folks will create a massive net reduction in tax burden for all current Americans… The 20K crowd will increase the burden because one needs to make $50-60K a year just to be break even on being a net tax payer.

        The crime rates will be far lower than the national average for the 100K crowd, and far higher for the 20K crowd. On and on and on.

        By any metric you use we could be actively making the country better… Or making it shittier. Why would we want to make it shittier?

        The only problem with foreigners, including Europeans, is that they’re all big government loving commies. So mass immigration without an ideological test, or lack of voting for the 1st generation or something, will surely destroy everything that makes America good. IMO I’d rather have more freedom than random foreigners that might lower my taxes a few percent in theory, but in reality would vote to raise my taxes anyway!

        1. Racism fits very well in the Reason comment section. You don’t even have to pretend to hide it any more. And as always, based on non-facts.

          1. Name one thing in there that isn’t a fact retard?

            Look, I’m part Mexican myself dickwad. But the fact is the hordes of LOW SKILL Hispanic immigration have been shit. They’ve burdened the hell out of all the places they’ve gone, because none of them make enough money to pull their own weight in a country with as much spending as we have at the government level.

            Poor immigrants burden the native born, high income immigrants lessen it. That’s just reality. And they DO all vote to the left too, whether high or low income, white, brown, or purple. America is the most libertarian leaning country on earth, sad as that may be, hence all immigrants take us farther away from that. Including ones from Europe.

      2. “Scientists, biologists, physicist, geneticists, chemists, mathematics geniuses, etc….Those are the people who will build the America of the future. Lawyers and landscapers and busboys and the indigent; not so much – they can stay where they are.”

        . . . says just about every on-the-spectrum right-wing incel.

        1. Reverend, I just care about talent and ability. All the other stuff is irrelevant. We need people with advanced skills, higher intelligence to come, stay here, and become one of us (American). Why? Because it is our only hope to compete against China, India, etc in the future.

          In POTUS Trump-speak, we should use the blessings of our country as an incentive and a huge carrot to offer legal immigrants with advanced skills. We want them….MILLIONS of them every year for the next 25 years.

          1. “I just care about talent and ability”

            Lawyers — and writers and historians, and teachers and plumbers, and firefighters and singers, and electricians and social workers –have talent and ability, although some (especially some who focus myopically on mathematics and certain sciences, often for unattractive reasons) either can’t apprehend this or won’t acknowledge this.

    4. I’ve known some real deal Africans… In a lot of ways they’re better than American born blacks, because they’re not as spoiled or brainwashed with a victims complex…

      But the fact is most of them are still not great additions to a 1st world nation. Sure, they have doctors we could poach or whatever, but the bulk of them are low skill and low education. 1st world economies don’t need hordes of people with middle school educations in the 21st century.

      Also, is it really right for us to be poaching the best and brightest from countries that could REALLY use their help back home?

    5. Are you trying to challenge RAK’s record as the most bigoted commenter here? The comment above is a good start but you’ll have to work harder to unseat the Rev.

      1. Keep sticking with that ‘liberals are the real racists’ argument, guys. It will make it easier for your betters to give you the treatment you deserve.

        How many years before whites no longer constitute a majority in America?

        #GoodTimesForClingers

        1. No, I’m not saying that all liberals are bigots, just that you are.

    6. Are you saying the Volokh Conspiracy is strikingly white? Odds-defyingly male?

      Not all of the Conspirators are Muslim-hating, gay-bashing, misogynistic racists, though. They just associate with plenty of bigots and have worked closely with a misogynist or two without objecting to the shabby treatment of women.

      #WhoAmIToJudgeMyMentor

    7. You’re so enlightened! How special and precious you are!

      1. Just another member of the liberal-libertarian American mainstream that shapes American progress.

  11. Let’s add on a short bit about “Substantial Muslim Populations”.

    The NYT says all the countries have substantial Muslim populations. But….

    Burma is 4.3% Muslim. 4.3%. Let’s put this in context. France is 8.8% Muslim. The UK is 4.4% Muslim. So…..

  12. Why is this even news? Every other country in the world heavily polices immigration. Why is it a surprise that we want to do so and not be the international dumping ground for undesirables?

    1. Quebec uses immigration to perpetuate its French language/culture. So because the NYTimes is pro immigration they for some reason published an article about a French woman being denied legal status in Quebec because they believed she was insufficiently French. So the NYTimes would never support America requiring immigrants to speak English but for some reason they care about Quebec?!? This is further proof progressives are motivated by animus towards white Christian Americans.

  13. “…the President referred to certain African nations as “shithole countries”…

    Read the BBC World coverage of Africa and see if you can honestly say Trump wasn’t right.

    1. Racism fits very well in the Reason comment section. You don’t even have to pretend to hide it any more. And as always, based on non-facts.

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