Nuclear Option

The nuclear option (or constitutional option) is a parliamentary procedure that allows the United States Senate to override a rule - specifically the 60-vote rule to close debate - by a simple majority of 51 votes, rather than the two-thirds supermajority normally required to amend the rules. The option is invoked when the majority leader raises a point of order that only a simple majority is needed to close debate on certain matters. The presiding officer denies the point of order based on Senate rules, but the ruling of the chair is then appealed and overturned by majority vote, establishing new precedent.

This procedure effectively allows the Senate to decide any issue by simple majority vote, regardless of existing procedural rules such as Rule XXII which requires the consent of 60 senators (out of 100) to end a filibuster for legislation, and 67 for amending a Senate rule. The term "nuclear option" is an analogy to nuclear weapons being the most extreme option in warfare.

In November 2013, Senate Democrats used the nuclear option to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments (except for appointments to the Supreme Court). In April 2017, Senate Republicans used the nuclear option to eliminate the exception for Supreme Court nominees, after the nomination of Neil Gorsuch failed to meet the requirement of 60 votes for ending the debate.[1][2]

As of January 2018, a three-fifths majority vote is still required to end debates on legislation.[3]


The 60-vote rule

Beginning with a rules change in 1806, the Senate has traditionally not restricted the total time allowed for debate. In 1917, Rule XXII was amended to allow for ending debate (invoking "cloture") with a two-thirds majority, later reduced in 1975 to three-fifths of all senators "duly chosen and sworn" (usually 60).[4] Thus, although a bill might have majority support, a minority of 41 or more senators can still prevent a final vote through endless debate, effectively defeating the bill. This tactic is known as a filibuster.

Since the 1970s, the Senate has also used a "two-track" procedure whereby Senate business may continue on other topics while one item is filibustered. Since filibusters no longer required the minority to actually hold the floor and bring all other business to a halt, the mere threat of a filibuster has gradually become normalized. In the modern Senate, this means that any controversial item now typically requires 60 votes to advance, unless a specific exception limiting the time for debate applies.

Changing Rule XXII to eliminate the 60-vote rule is made difficult by the rules themselves. Rule XXII sec. 2 states that to end debate on any proposal "to amend the Senate rules...the necessary affirmative vote shall be two-thirds of the Senators present and voting." This is typically 67 senators assuming all are voting. Meanwhile, Rule V sec. 2 states that "[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."[4] Effectively, these provisions mean that the general 60-vote cloture rule in Rule XXII can never be modified without the approval of 67 senators.

Procedure to invoke the option

The "nuclear option" is invoked when a simple majority of the Senate overrides the normal consequences of the rules above. Following a failed cloture vote, the majority leader raises a point of order that Rule XXII should be interpreted - or disregarded on constitutional grounds - to require only a simple majority to invoke cloture on a certain type of business, such as nominations. The presiding officer, relying on the advice of the Senate Parliamentarian, then denies the point of order based upon rules and precedent. But the ruling of the chair is then appealed, and is overturned by simple majority vote. For example, the option was invoked on November 21, 2013, as follows:

Mr. REID. I raise a point of order that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.
(48-52 vote on upholding ruling of the chair)

A new precedent is thus established allowing for cloture to be invoked by a simple majority on certain types of actions. These and other Senate precedents will then be relied upon by future Parliamentarians in advising the chair, effectively eliminating the 60-vote barrier going forward. (Riddick's Senate Procedure is a compilation by Senate parliamentarians of precedents established throughout the entire history of the Senate by direct rulings of the chair, actions relating to rulings of the chair, or direct Senate action.)


The legality of the nuclear option has been challenged. For example, former Senate Parliamentarian Alan Frumin expressed opposition to the nuclear option in 2005.[]It's been reported that a Congressional Research Service report "leaves little doubt" that the nuclear option would not be based on previous precedents of the Senate.[6] However, its validity has not been seriously challenged since being invoked by both parties in 2013 and 2017, at least with regard to invoking cloture on judicial nominations by simple majority vote.


Senator Ted Stevens (R-Alaska) suggested using a ruling of the chair to defeat a filibuster of judicial nominees in February 2003. The code word for the plan was "Hulk". Weeks later, Sen. Trent Lott (R-Miss.) coined the term nuclear option in March 2003 because the maneuver was seen as a last resort with possibly major consequences for both sides.[7][8][9] The metaphor of a nuclear strike refers to the majority party unilaterally imposing a change to the filibuster rule, which might provoke retaliation by the minority party.[10][11]

The alternative term "constitutional option"[12][13][14] is often used with particular regard to confirmation of executive and judicial nominations, on the rationale that the United States Constitution requires these nominations to receive the "advice and consent" of the Senate. Proponents of this term argue that the Constitution implies that the Senate can act by a majority vote unless the Constitution itself requires a supermajority, as it does for certain measures such as the ratification of treaties.[10] By effectively requiring a supermajority of the Senate to fulfill this function, proponents believe that the current Senate practice prevents the body from exercising its constitutional mandate, and that the remedy is therefore the "constitutional option."


Senate rules before 1917

The first set of Senate rules included a procedure to limit debate called "moving the previous question." This rule was dropped in 1806 in the misunderstanding that it was redundant.[15] Starting in 1837, senators began taking advantage of this gap in the rules by giving lengthy speeches so as to prevent specific measures they opposed from being voted on, a procedure called filibustering.

In 1890, Senator Nelson Aldrich (R-RI) threatened to break a Democratic filibuster of a Federal Election Bill (which would ban any prohibitions on the black vote) by invoking a procedure called "appeal from the chair." At this time, there was no cloture rule or other regular method to force an immediate vote. Aldrich's plan was to demand an immediate vote by making a point of order. If, as expected, the presiding officer overrules the point, Aldrich would then appeal the ruling and the appeal would be decided by a majority vote of the Senate. (This plan would not work today because appeals from the chair are debatable under modern rules.)[] If a majority voted to limit debate, a precedent would have been established to allow debate to be limited by majority vote. Aldrich's plan was procedurally similar to the modern option, but it stayed within the formal rules of the Senate and did not invoke the Constitution. In the end, the Democrats were able to muster a majority to table the bill, so neither Aldrich's proposed point of order nor his proposed appeal was ever actually moved.


Early cloture era, 1917-1974


In 1957, Vice President Richard Nixon (and thus President of the Senate) wrote an advisory opinion that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority.[16][13]:236-39 (Nixon made clear that he was speaking for himself only, not making a formal ruling.[17]) Nixon's opinion, along with similar opinions by Hubert Humphrey and Nelson Rockefeller, has been cited as precedent to support the view that the Senate may amend its rules at the beginning of the session with a simple majority vote.[18]

The option was officially moved by Senator Clinton P. Anderson (D-NM) (1963), Senator George McGovern (D-SD) (1967), and Senator Frank Church (D-ID) (1969), but was each time defeated or tabled by the Senate.[13]:249-251

60-vote rule takes hold, 1975-2004



2005 debate on judicial nominations


Minor rules reforms, 2011 & 2013

In 2011, with a Democratic majority in the Senate (but not a supermajority), Senators Jeff Merkley (D-Ore.) and Tom Udall (D-N.M.) proposed "a sweeping filibuster reform package" to be implemented via the constitutional option but Majority Leader Harry Reid dissuaded them from pushing it forward.[19] In October 2011, however, Reid triggered a more modest change in Senate precedents. In a 51-48 vote, the Senate prohibited any motion to waive the rules after a filibuster is defeated,[20][21][22] although this change did not affect the ultimate ability of a 41-vote minority to block final action via an initial filibuster.

The nuclear option was raised again following the congressional elections of 2012, this time with Senate Democrats in the majority (but short of a supermajority).[23] The Democrats had been the majority party in the Senate since 2007 but only briefly did they have the 60 votes necessary to halt a filibuster. The Hill reported that Democrats would "likely" use the nuclear option in January 2013 to effect filibuster reform,[24] but the two parties managed to negotiate two packages of amendments to the Rules concerning filibusters that passed on January 24, 2013, by votes of 78 to 16 and 86 to 9,[25] thus avoiding the need for the nuclear option.[26]

In the end, negotiation between the two parties resulted in two packages of "modest" amendments to the rules on filibusters that were approved by the Senate on January 24, 2013, without triggering the nuclear option.[27] Changes to the standing orders affecting just the 2013-14 Congress were passed by a vote of 78 to 16, eliminating the minority party's right to filibuster a bill as long as each party has been permitted to present at least two amendments to the bill.[27] Changes to the permanent Senate rules were passed by a vote of 86 to 9.[27]


Use in 2013 & 2017

2013: nominations except Supreme Court

On November 21, 2013, the Senate voted 52-48, with all Republicans and three Democrats voting against, to rule that "the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote,"[30] even though the text of the rule requires "three-fifths of the senators duly chosen and sworn" to end debate.[31] This ruling's precedent eliminated the 60-vote requirement to end a filibuster against all executive branch nominees and judicial nominees other than to the Supreme Court.[32] The text of Rule XXII was never changed.[31] A 3/5 supermajority was still required to end filibusters unrelated to those nominees, such as for legislation and Supreme Court nominees.[33]

Rationale for change

The Democrats' stated motivation for this change was expansion of filibustering by Republicans during the Obama administration, in particular blocking three nominations to the United States Court of Appeals for the District of Columbia Circuit. Republicans had asserted that the D.C. Circuit was underworked,[34] and also cited the need for cost reduction by reducing the number of judges in that circuit.[35] At the time of the vote, 59 executive branch nominees and 17 judicial nominees were awaiting confirmation.[34]

Prior to November 21, 2013, in the entire history of the nation there had been only 168 cloture motions filed (or reconsidered) with regard to nominations. Nearly half of them (82) had been during the Obama Administration,[36] but those cloture motions were often filed merely to speed things along, rather than in response to any filibuster.[37] In contrast, there were just 38 cloture motions on nominations during the preceding eight years under President George W. Bush.[38] Most of those cloture votes successfully ended debate, and therefore most of those nominees cleared the hurdle. Obama won Senate confirmation for 30 out of 42 federal appeals court nominations, compared with Bush's 35 out of 52.[38][39]

Regarding Obama's federal district court nominations, the Senate approved 143 out of 173 as of November 2013, compared to George W. Bush's first term 170 of 179, Bill Clinton's first term 170 of 198, and George H.W. Bush's 150 of 195.[38][40] Filibusters were used on 20 Obama nominations to U.S. District Court positions,[41] but Republicans had allowed confirmation of 19 out of the 20 before the nuclear option was invoked.[42]

2017: Supreme Court nominations

On April 6, 2017, Senate Republicans invoked the nuclear option to remove the Supreme Court exception created in 2013. This was after Senate Democrats filibustered the nomination of Neil Gorsuch to the Supreme Court of the United States, after the Senate Republicans had previously refused to take up Merrick Garland's nomination by President Obama in 2016.[43][44]

Proposed use for legislation

Following elimination of the 60-vote rule for nominations in 2017, senators expressed concerns that the 60-vote rule will eventually be eliminated for legislation via the nuclear option.[45]

Donald Trump

President Donald Trump has spoken out against the 60-vote requirement for legislation on several occasions. On January 21, 2018, President Trump said on Twitter that if the shutdown stalemate continued, Republicans should consider the "nuclear option" in the Senate.[46]

Policy arguments


Policy debates surrounding the nuclear option - a tool to implement a rule change - are closely related to arguments regarding the 60-vote requirement imposed by Rule XXII. Issues include:

  • whether the Constitution mandates either threshold.

Constitutional provisions

The U.S. Constitution does not explicitly address how many votes are required for passage of a bill or confirmation of a nominee. Regarding nominations, Article II, Section 2, of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges...."[47] The Constitution includes several explicit supermajority rules, including requiring a two-thirds majority in the Senate for impeachment, confirming treaties,[48] expelling one of its members,[49] and concurring in the proposal of Constitutional Amendments.[50]

Arguments for simple majority

Constitutional argument


From this, supporters argue that a simple-majority rule would bring current practices into line with the Framers' original intent - hence supporters' preferred nomenclature of the "constitutional option". They argue that the filibuster of presidential nominees effectively establishes a 60-vote threshold for approval of judicial nominees instead of the 51-vote standard implied by the Constitution.[52][53][54] A number of existing Judges and Justices were confirmed with fewer than 60 votes, including Supreme Court Justice Clarence Thomas (confirmed in a 52-48 vote in 1991).[55][56]



Majority rule

In 2005, pro-nuclear option Republicans argued that they had won recent elections and in a democracy the winners rule, not the minority.[59] They also argued that while the Constitution requires supermajorities for some purposes (such as 2/3 needed to ratify a treaty), the Founders did not require a supermajority for confirmations, and that the Constitution thus presupposes a majority vote for confirmations.

Arguments for 60-vote rule

Constitutional arguments




Majority rule


Ensuring broad support


Of the 9 U.S. Supreme Court Justices seated as of May 2005, 6 were confirmed with the support of 90 or more Senators, 2 were confirmed with at least the support of 60 senators, and only 1 (Thomas) was confirmed with the support of fewer than 60 Senators, however, since John G. Roberts was confirmed, no candidate has gotten more than 68 votes. Conservative nominees for Appellate Courts that were given a vote through the "Gang of 14" were confirmed almost exclusively along party lines: Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45.

Public opinion

In 2005, polling indicated public support for an active Senate role in its "advise and consent" capacity. An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt.[62] The agreement to stave off the "nuclear option" reached by 14 moderate Senators supports a strong interpretation of "Advice and Consent" from the Constitution:[63]



Some fear that removing the 60-vote rule for judicial nominations would allow the courts to be "packed" by a party that controls the other two branches of the government. As of November 2013, Republican presidents have appointed five of the nine justices on the Supreme Court and all four of the chief justices since the Truman administration.

In 1937, Franklin Delano Roosevelt, a Democrat, sought to alter the court through the Judiciary Reorganization Bill of 1937 (a.k.a. "the court-packing plan"). Noting that the Constitution does not specify a number of Supreme Court justices, the bill would have added a seat for every justice over the age of 70½, creating a new majority on the Court. Roosevelt allowed the bill to be scuttled after Justice Owen Roberts began upholding the constitutionality of his New Deal programs.[]

Elimination of the 60-vote rule is a significantly less drastic strategy, only allowing the majority to fill existing vacancies on the Court. However, if the two strategies are combined, a party that controls the Presidency and has a simple majority in the Senate, as FDR's Democrats did in 1937, could quickly gain control of the Court as well.



Examples of opportunism abound. In 2005 Republicans pointed out that several Democrats once opposed the filibuster on judicial nominees, and only recently changed their views as they had no other means of stopping Bush's judicial appointees.[64][65][66]

However, Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. Republicans continued to support the filibuster for general legislation - the Republican leadership insisted that the proposed rule change would only affect judicial nominations. According to the Democrats, arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a three-fifths majority. Republicans stated that there is a difference between the filibustering of legislation - which affects only the Senate's own constitutional prerogative to consider new laws - and the filibustering of a President's judicial or executive nominees, which arguably impinges on the constitutional powers of the Executive branch.

Other uses of "nuclear option"

Beyond the specific context of U.S. federal judicial appointments, the term "nuclear option" has come to be used generically for a procedural maneuver with potentially serious consequences, to be used as a last resort to overcome political opposition. In a recent legal ruling on the validity of the Hunting Act 2004[67] the UK House of Lords used "nuclear option" to describe the events of 1832, when the then-government threatened to create hundreds of new Whig peers to force the Tory-dominated Lords to accept the Reform Act 1832. (Nuclear weapons were not theorized until the 20th century, so the government's threat was not labeled as "nuclear" at the time.)

The term is also used in connection with procedural maneuvers in various state senates.[68][69][70][71][72]


See also




  1. ^ http://www.foxnews.com/politics/2017/04/06/republicans-go-nuclear-bust-through-democratic-filibuster-on-gorsuch.html
  2. ^ http://abcnews.go.com/Politics/senate-approves-nuclear-option-fight-gorsuch-supreme-court/story?id=46608672
  3. ^ Jackson, David (February 1, 2017). "Trump: Go 'nuclear' and abolish filibuster on Gorsuch vote if needed". USA Today. Retrieved 2017. 
  4. ^ a b "Rules of the Senate". U.S. Senate Rules & Administration Committee. Retrieved 2018. 
  5. ^ "Congressional Record (daily ed.)" (PDF). November 21, 2013: S8417-18. Retrieved 2018. 
  6. ^ Geoff Earle (2005-04-13). "Parliamentarian would oppose 'nuclear option'". The Hill. Retrieved . 
  7. ^ VandeHei, Jim (2005-05-29). "From Senator's 2003 Outburst, GOP hatched 'nuclear option'". Washington Post. 
  9. ^ Radelat, Ana (2003-05-23). "Lott aims to change filibuster rules: Senator says stalling of Pickering's nomination, others "cannot stand"". The Clarion-Ledger. 
  10. ^ a b Jeffrey Toobin (2005-03-07). "Blowing Up the Senate: Will Bush's judicial nominees win with the "nuclear option"?". The New Yorker. Retrieved . 
  11. ^ Alexander Bolton (2012-11-13). "Dems short on votes for filibuster reform". The Hill. Retrieved . Supporters call it the constitutional option, but it is well-known as the "nuclear" option for the meltdown in partisan relations that it could affect. 
  12. ^ Noah, Timothy (2010-01-25). "Going Nuclear: A risky (but justifiable) path to passing health care reform". Slate. 
  13. ^ a b c d e f Gold, Martin B.; Gupta, Dimple (Fall 2004). "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster" (PDF). Harvard Journal of Law & Public Policy, vol. 28, p. 205. Sets forth the history of the constitutional option in the U.S. Overview of the Senate rules governing debate; History of the filibuster 
  16. ^ See 103 Cong. Rec. 178-79 (1957) (statement of Vice President Nixon).
  17. ^ Betsy Palmer, Changing Senate Rules: The "Constitutional" or "Nuclear" Option, Congressional Research Service report no. RL32684, updated April 5, 2005, p. CRS-4.
  18. ^ See Christopher M. Davis and Betsy Palmer, Proposals to Amend the Cloture Rule, CRS Report RL32149 (Feb. 17, 2005), at 5-6 PDF.
  19. ^ MANU RAJU (2012-11-25). "GOP warns of shutdown over filibuster". Politico. Retrieved . 
  20. ^ Karoun Demirjian (2011-10-06). "Harry Reid changes arcane U.S. Senate rules to make a point". Las Vegas Sun. Retrieved . 
  21. ^ Manu Raju & Scott Wong (2011-10-06). "Dems change rules; Senate in chaos". Politico. Retrieved . 
  22. ^ Alexander Bolton (2011-10-06). "Reid triggers 'nuclear option' to change Senate rules, end repeat filibusters". The Hill. Retrieved . 
  23. ^ Alan Fram (2012-11-11). "Dems, GOP fight brewing over curbing filibusters". Chicago Tribune. Associated Press. Archived from the original on 2012-11-14. Retrieved . 
  24. ^ Alexandra Jaffe (2012-11-15). "Warren pledges to lead filibuster reform". The Hill / Ballot Box: The Hill's Campaign Blog. Retrieved . 
  25. ^ Jeremy W. Peters (2013-01-24). "New Senate Rules to Curtail the Excesses of a Filibuster". New York Times. Retrieved . 
  26. ^ "Senate approves bipartisan deal clamping modest restrictions on filibusters". Washington Post. Associated Press. 2013-01-24. Archived from the original on 2013-01-31. Retrieved . 
  27. ^ a b c Karoun Demirjian (2013-01-24). "Senate approves modest, not sweeping, changes to the filibuster". Las Vegas Sun. Retrieved . 
  28. ^ Bresnahan, John. "Senate heads toward 'nuclear option'". Politico. Retrieved 2013. 
  29. ^ "McCain claims Senate leaders have deal to avert showdown over Obama nominees". FoxNews. 2013-07-16. Retrieved 2013. 
  30. ^ "Congressional Record: Senate, Nov. 21, 2013" (PDF). www.congress.gov. Retrieved . 
  32. ^ "Vote on "Nuclear Option"". Propublica. 
  33. ^ Ryan Grim; Michael McAuliff (2013-11-21). "Senate Votes For Nuclear Option". Huffingtonpost.com. Retrieved 2013-11-21.
  35. ^ "GOP's existential test: Why they're really escalating a nuclear option crisis". Salon.com. 
  37. ^ Kessler, Glenn. "Has Mitch McConnell 'blocked the Senate' over 400 times?", The Washington Post (October 29, 2013):


  40. ^ McMillion, Barry. "President Obama's First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan", Congressional Research Service (May 2, 2013).
  43. ^ Berman, Russell (6 April 2017). "Republicans Abandon the Filibuster to Save Neil Gorsuch". Retrieved 2017. 
  44. ^ http://www.cnn.com/2017/04/06/politics/senate-nuclear-option-neil-gorsuch/
  45. ^ Bolton, Alexander (3 April 2017). "Senators fear fallout of nuclear option". The Hill. Retrieved 2017. 
  46. ^ "Trump Says GOP May Need to Use `Nuclear Option': Shutdown Update". Bloomberg. Retrieved 2018. 
  47. ^ "U.S. Constitution - FindLaw". 
  48. ^ LII: Constitution.
  49. ^ LII: Constitution.
  50. ^ LII: Constitution.
  52. ^ Hutchison, Kay Bailey (May 7, 2003). "Nominations of Justice Priscilla Owen and Miguel Estrada". Archived from the original on 2003-10-06. 
  53. ^ Mellman, Mark (March 16, 2005). "Why not require 60 votes?". Archived from the original on 2005-04-05. 
  54. ^ Long, Wendy E. (April 14, 2005). "Filibuster myth-busters". Archived from the original on 2012-10-20. 
  55. ^ "Not found". Oyez. Archived from the original on 2003-10-24. 
  56. ^ "ConfirmThem". 
  57. ^ Congressional Record - 108th Congress (2003-2004) - THOMAS (Library of Congress). Thomas.loc.gov (2003-09-30). Retrieved on 2013-11-21.
  58. ^ Judicial nominee logjam? Change the rules.. CSMonitor.com. Retrieved on 2013-11-21.
  60. ^ Home | Al Gore 2008 Draft Campaign.
  61. ^ Democratic Leader Harry Reid's Letter to Bill Frist.
  62. ^ Lester, Will (May 20, 2005). "Poll: Most Want Assertive Senate on Judges". Archived from the original on 2005-05-23. 
  63. ^ "Memorandum of Understanding on Judicial Nominations" (PDF). United States Senate. Archived (PDF) from the original on September 15, 2005. 
  64. ^ [1] Archived September 3, 2005, at the Wayback Machine.
  65. ^ www.senate.gov - This page cannot be found
  66. ^ "Opinion & Reviews - Wall Street Journal". 
  68. ^ Dennis Cauchon (2011-03-09). "Wis. Republicans vote without Dems". USA Today. Retrieved . 
  69. ^ Mark Trumbull (2011-03-09). "Did Wisconsin Senate choose nuclear option in collective-bargaining fight?". The Christian Science Monitor. Retrieved . 
  70. ^ David Usborne (2011-03-11). "Wisconsin Republicans 'exercise nuclear option' to pass union-busting law". The Independent. London. Retrieved . 
  71. ^ Andrew Thomason (2011-05-30). "Workers' comp bill dies in Illinois House, 'Nuclear' option looms". FOX Illinois.com. Retrieved . 
  72. ^ "Bradley:Workers' comp overhaul still alive". The Southern Illinoisan. AP. 2011-05-31. Retrieved . Bradley says that so-called "nuclear option" is still a possibility. The Illinois Senate could vote on it Tuesday, the final day of the legislative session. 
  74. ^ Guess, Steven (2009-08-22). "The reconciliation option". London: guardian.co.uk. 

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