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Nondelegation doctrine: States with APAs or constitutions that contain separation of powers provisions (2020)

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Disclaimer: The research presented on this page was completed in 2020. It has not been regularly updated since its completion. This page is likely outdated and may be incomplete.

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This page contains information from a Ballotpedia survey about the nondelegation doctrine, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Ballotpedia reviewed all 50 state constitutions and administrative procedures acts (APAs) to determine which states had APAs or constitutions that contain separation of powers provisions as of 2020.

Looking at whether states have separation of powers provisions in their government documents provides insight into how the nondelegation doctrine works at the state level. Limiting the delegation of one branch's authority to another—the nondelegation doctrine—is a constitutional principle key to understanding one of the main areas of debate about the nature and scope of the administrative state.

Some states cite their separation of powers provisions as the statutory source of their respective nondelegation doctrines. For example, on October 2, 2020, the Michigan Supreme Court ruled against Governor Gretchen Whitmer's extension of COVID-19-related executive orders, holding that the orders violated the nondelegation doctrine implied by the state constitution's separation of powers provision.[1]

According to the Ballotpedia survey, 40 state constitutions contained separation of powers provisions as of October 2020. There were no state APAs that contained separation of powers provisions.

You can find the results of another Ballotpedia survey, which recorded explicit prohibitions on the delegation of legislative power to administrative agencies, here.

This page features the following sections:

In 2025, Ballotpedia updated the pillar system used to understand the main areas of debate about the nature and scope of the administrative state. Click here to learn more about this updated structure and to see Ballotpedia's current content related to the administrative state.



Background and methodology

Background

For this survey, Ballotpedia examined whether states have APAs or constitutions that contain separation of powers provisions. Separation of powers provisions divide power among the branches of government. These provisions may support state-level nondelegation doctrines that prohibit delegation of legislative authority to administrative agencies. The nondelegation doctrine holds that lawmakers cannot delegate legislative authority to administrative agencies or to private entities.

Methodology

Ballotpedia examined all 50 state constitutions and Administrative Procedure Acts (APAs) to see whether states have APAs or constitutions that contain separation of powers provisions.

Administrative Procedure Acts (APAs) govern the procedures state administrative agencies must follow to issue regulations and adjudicate disputes. Many state APAs are modeled on the federal APA.

Other state laws might provide for the separation of powers among the branches of state governments, but those are beyond the scope of this survey.

To see the specific legal provisions Ballotpedia used to categorize each state, click here.

Summary of findings

Ballotpedia's survey of state constitutions and APAs produced the following key takeaways (as of October 2020):

  • 40 states had constitutions that contain separation of powers provisions.
  • 10 states had constitutions that did not contain separation of powers provisions.

Results: States that had APAs or constitutions that contain separation of powers provisions

The table below includes each state in alphabetical order and indicates those with specific provisions in their constitutions or APAs that contained separation of powers provisions.

  • Done means that the state APA or constitution contained a separation of powers provision
  • DefeatedA means that the state APA or constitution did not contain a separation of powers provision

Other state laws that might have contained separation of powers provisions are beyond the scope of this survey.

State Constitutions or APAs with separation of powers provisions
Alabama Done
Alaska DefeatedA
Arizona Done
Arkansas Done
California Done
Colorado Done
Connecticut Done
Delaware DefeatedA
Florida Done
Georgia Done
Hawaii DefeatedA
Idaho Done
Illinois Done
Indiana Done
Iowa Done
Kansas DefeatedA
Kentucky Done
Louisiana Done
Maine Done
Maryland Done
Massachusetts Done
Michigan Done
Minnesota Done
Mississippi Done
Missouri Done
Montana Done
Nebraska Done
Nevada Done
New Hampshire Done
New Jersey Done
New Mexico Done
New York DefeatedA
North Carolina Done
North Dakota DefeatedA
Ohio DefeatedA
Oklahoma Done
Oregon Done
Pennsylvania DefeatedA
Rhode Island Done
South Carolina Done
South Dakota Done
Tennessee Done
Texas Done
Utah Done
Vermont Done
Virginia Done
Washington DefeatedA
West Virginia Done
Wisconsin DefeatedA
Wyoming Done

Text of state constitutions with separation of powers provisions

This section features the text of separation of powers provisions in state constitutions.

Separation of powers provisions divide power among the branches of government. These provisions may support state-level nondelegation doctrines that prohibit delegation of legislative authority to administrative agencies.

The 40 states listed below had separation of powers or vesting clauses in their state constitutions. Alaska, Delaware, Hawaii, Kansas, New York, North Dakota, Ohio, Pennsylvania, Washington, and Wisconsin did not have constitutions with specific separation of powers clauses.

Alabama

See also: Alabama Constitution and Alabama Administrative Procedure Act

Article III of the Alabama Constitution is a separation of powers provision:

(a) The powers of the government of the State of Alabama are legislative, executive, and judicial.


(b) The government of the State of Alabama shall be divided into three distinct branches: legislative, executive, and judicial.

(c) To the end that the government of the State of Alabama may be a government of laws and not of individuals, and except as expressly directed or permitted in this constitution, the legislative branch may not exercise the executive or judicial power, the executive branch may not exercise the legislative or judicial power, and the judicial branch may not exercise the legislative or executive power.[2]

Arizona

See also: Arizona Constitution and Arizona Administrative Procedure Act

Article III, Section 1 of the Arizona Constitution is a separation of powers provision:

The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.[3]

Arkansas

See also: Arkansas Constitution and Arkansas Administrative Procedure Act

Article IV, Section 2 of the Arkansas Constitution is a separation of powers provision:

No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.[4]

California

See also: California Constitution and California Administrative Procedure Act

Article III, Section 3 of the California Constitution is a separation of powers provision:

The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.[5]

Colorado

See also: Colorado Constitution and Colorado Administrative Procedure Act

Article III of the Colorado Constitution is a separation of powers provision:

The powers of the government of this state are divided into three distinct departments,­­the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.[6]

Connecticut

See also: Connecticut Constitution and Connecticut Administrative Procedure Act

Article II of the Connecticut Constitution is a separation of powers provision:

The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.[7]

Florida

See also: Florida Constitution and Florida Administrative Procedure Act

Article II, Section 3 of the Florida Constitution is a separation of powers provision:

Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.[8]

Georgia

See also: Georgia Constitution and Georgia Administrative Procedure Act

Article I, Section 2, Paragraph III of the Georgia Constitution is a separation of powers provision:

The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.[9]

Idaho

See also: Idaho Constitution and Idaho Administrative Procedure Act

Article II, Section 1 of the Idaho Constitution is a separation of powers provision:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.[10]

Illinois

See also: Illinois Constitution and Illinois Administrative Procedure Act

Article II, Section 1 of the Illinois Constitution is a separation of powers provision:

The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.[11]

Indiana

See also: Indiana Constitution and Indiana Administrative Procedure Act

Article III, Section 1 of the Indiana Constitution is a separation of powers provision:

The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.[12]

Iowa

See also: Iowa Constitution and Iowa Administrative Procedure Act

Article III, Section 1 of the Iowa Constitution is a separation of powers provision:

The powers of the government of Iowa shall be divided into three separate departments--the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.[13]

Kentucky

See also: Kentucky Constitution and Kentucky Administrative Procedure Act

The Distribution of the Powers of Government section of the Kentucky Constitution is a separation of powers provision:

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.[14]


No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.[14]

Louisiana

See also: Louisiana Constitution and Louisiana Administrative Procedure Act

Article II, Section 2 of the Louisiana Constitution is a separation of powers provision:

Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.[15]

Maine

See also: Maine Constitution and Maine Administrative Procedure Act

Article III of the Maine Constitution is a separation of powers provision:

The powers of this government shall be divided into 3 distinct departments, the legislative, executive and judicial.


No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.[16]

Maryland

See also: Maryland Constitution and Maryland Administrative Procedure Act

Article 8 of the Declaration of Rights in the Maryland Constitution is a separation of powers provision:

That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.[17]

Massachusetts

See also: Massachusetts Constitution and Massachusetts Administrative Procedure Act

Articles XX and XXX of Part the First of the Massachusetts Constitution contain a separation of powers provision:

XX: The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.


XXX: In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.[18]

Michigan

See also: Michigan Constitution and Michigan Administrative Procedure Act

Article III, Section 2 of the Michigan Constitution is a separation of powers provision:

The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.[19]

Minnesota

See also: Minnesota Constitution and Minnesota Administrative Procedure Act

Article III, Section 1 of the Minnesota Constitution is a separation of powers provision:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.[20]

Mississippi

See also: Mississippi Constitution and Mississippi Administrative Procedure Act

Article 1 of the Mississippi Constitution is a separation of powers provision:

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.


No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.[21]

Missouri

Article II, Section 1 of the Missouri Constitution is a separation of powers provision:

The powers of government shall be divided into three distinct departments—the legislative, executive and judicial—each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.[22]

Montana

See also: Montana Constitution and Montana Administrative Procedure Act

Article III, Section 1 of the Montana Constitution is a separation of powers provision:

The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.[23]

Nebraska

See also: Nebraska Constitution and Nebraska Administrative Procedure Act

Article II of the Nebraska Constitution is a separation of powers provision:

The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.[24]

Nevada

See also: Nevada Constitution and Nevada Administrative Procedure Act

Article 3, Section 1 of the Nevada Constitution contains a separation of powers provision:

1. The powers of the Government of the State of Nevada shall be divided into three separate departments,—the Legislative,—the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.


2. If the legislature authorizes the adoption of regulations by an executive agency which bind persons outside the agency, the legislature may provide by law for:

(a) The review of these regulations by a legislative agency before their effective date to determine initially whether each is within the statutory authority for its adoption;
(b) The suspension by a legislative agency of any such regulation which appears to exceed that authority, until it is reviewed by a legislative body composed of members of the Senate and Assembly which is authorized to act on behalf of both houses of the legislature; and
(c) The nullification of any such regulation by a majority vote of that legislative body, whether or not the regulation was suspended.[25]

New Hampshire

See also: North Dakota Constitution and North Dakota Administrative Procedure Act

Article 37 of Part First of the New Hampshire Constitution is a separation of powers provision:

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.[26]

New Jersey

See also: New Jersey Constitution and New Jersey Administrative Procedure Act

Article III of the New Jersey Constitution is a separation of powers provision:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.[27]

New Mexico

See also: New Mexico Constitution and New Mexico Administrative Procedure Act

Article III of the New Mexico Constitution contains a separation of powers provision:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted. Nothing in this section, or elsewhere in this constitution, shall prevent the legislature from establishing, by statute, a body with statewide jurisdiction other than the courts of this state for the determination of rights and liabilities between persons when those rights and liabilities arise from transactions or occurrences involving personal injury sustained in the course of employment by an employee. The statute shall provide for the type and organization of the body, the mode of appointment or election of its members and such other matters as the legislature may deem necessary or proper.[28]

North Carolina

See also: North Carolina Constitution and North Carolina Administrative Procedure Act

Article I, Section 6 of the North Carolina Constitution is a separation of powers provision:

The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.[29]

Oklahoma

See also: Oklahoma Constitution and Oklahoma Administrative Procedure Act

Article IV of the Oklahoma Constitution is a separation of powers provision:

The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.[30]

Oregon

See also: Oregon Constitution and Oregon Administrative Procedure Act

Article III, Section 1 of the Oregon Constitution is a separation of powers provision:

The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.[31]

Rhode Island

See also: Rhode Island Constitution and Rhode Island Administrative Procedure Act

Article V of the Rhode Island Constitution is a separation of powers provision:

The powers of the government shall be distributed into three separate and distinct departments: the legislative, executive and judicial.[32]

South Carolina

See also: South Carolina Constitution and South Carolina Administrative Procedure Act

Article I, Section 8 of the South Carolina Constitution is a separation of powers provision:

In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.[33]

South Dakota

See also: South Dakota Constitution and South Dakota Administrative Procedure Act

Article II of the South Dakota Constitution is a separation of powers provision:

The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.[34]

Tennessee

See also: Tennessee Constitution and Tennessee Administrative Procedure Act

Article II, Sections 1 and 2 of the Tennessee Constitution contain separation of powers provisions:

1: The powers of the government shall be divided into three distinct departments: legislative, executive, and judicial.


2: No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.[35]

Texas

See also: Texas Constitution and Texas Administrative Procedure Act

Article 2 of the Texas Constitution is a separation of powers provision:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.[36]

Utah

See also: Utah Constitution and Utah Administrative Procedure Act

Article V of the Utah Constitution is a separation of powers provision:

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.[37]

Vermont

See also: Vermont Constitution and Vermont Administrative Procedure Act

Section 5 of the Delegation and Distribution of Powers in the Vermont Constitution is a separation of powers provision:

The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others.[38]

Virginia

See also: Virginia Constitution and Virginia Administrative Procedure Act

Article III of the Virginia Constitution is a separation of powers provision:

The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time; provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe. Provisions may be made for judicial review of any finding, order, or judgment of such administrative agencies.[39]

West Virginia

See also: West Virginia Constitution and West Virginia Administrative Procedure Act

Article V of the West Virginia Constitution is a separation of powers provision:

The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.[40]

Wyoming

Article II of the Wyoming Constitution is a separation of powers provision:

The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.[41]

See also

Footnotes

  1. ↑ Michigan Supreme Court, "Midwest Institute of Health, PLLC v. Governor," October 2, 2020
  2. ↑ Alabama State Legislature, "Alabama Constitution," accessed September 23, 2019
  3. ↑ Arizona State Legislature, "Arizona Constitution," accessed March 26, 2014
  4. ↑ Text of Arkansas Constitution, Article 4, Section 2
  5. ↑ California Legislature, "California Constitution, Article III," accessed January 9, 2020
  6. ↑ Lexis Nexis, "Colorado Constitution," accessed March 26, 2014
  7. ↑ Connecticut State Library, "Connecticut Constitution," accessed March 26, 2014
  8. ↑ Florida Senate, "Constitution of the State of Florida," accessed January 9, 2020
  9. ↑ Georgia State Senate, "Georgia Constitution," accessed June 27, 2023
  10. ↑ Idaho State Legislature, "Idaho Constitution," accessed March 28, 2014
  11. ↑ Illinois General Assembly, "Illinois Constitution," accessed March 28, 2014
  12. ↑ Indiana.gov, "Indiana Constitution," accessed March 30, 2014
  13. ↑ Iowa.gov, "Iowa Constitution," accessed March 28, 2014
  14. ↑ 14.0 14.1 Kentucky Legislature, "Kentucky Constitution," accessed March 28, 2014
  15. ↑ Louisiana State Senate, "Louisiana Constitution," accessed March 28, 2014
  16. ↑ Maine.gov, "Constitution of the State of Maine," accessed March 28, 2014
  17. ↑ Maryland.gov, "Constitution of Maryland," accessed March 28, 2014
  18. ↑ Massachusetts State Legislature, "Constitution of the Commonwealth of Massachusetts," accessed March 28, 2014
  19. ↑ Michigan State Legislature, "Michigan Constitution," accessed March 28, 2014
  20. ↑ Minnesota State Legislature, "Constitution of the State of Minnesota," accessed March 28, 2014
  21. ↑ Mississippi SOS, "Mississippi Constitution" (HTML), accessed March 28, 2014
  22. ↑ Missouri General Assembly, "Missouri Constitution," accessed March 30, 2014
  23. ↑ Montana Judicial Branch, "Montana Constitution," accessed March 30, 2014
  24. ↑ Nebraska State Legislature, "Nebraska Constitution," accessed March 30, 2014
  25. ↑ Nevada State Legislature, "Nevada Constitution," accessed March 30, 2014
  26. ↑ NH.gov, "New Hampshire State Constitution," accessed March 30, 2014
  27. ↑ New Jersey State Legislature, "New Jersey State Constitution," accessed March 30, 2014
  28. ↑ FindLaw, "New Mexico Constitution Art. III, § 1. Separation of powers," accessed September 24, 2019
  29. ↑ North Carolina Legislature, "North Carolina State Constitution," accessed September 24, 2019
  30. ↑ Oklahoma Supreme Court, "Oklahoma Constitution, Section: Article 4 section 1," accessed September 24, 2019
  31. ↑ Oregon State Legislature, "Constitution of Oregon," accessed March 30, 2014
  32. ↑ State of Rhode Island General Assembly, "Constitution of the State of Rhode Island and Providence Plantations," accessed September 25, 2019
  33. ↑ South Carolina State House, "Article I: Declaration of Rights," accessed September 25, 2019
  34. ↑ South Dakota Legislature, "Article II," accessed September 25, 2019
  35. ↑ State of Tennessee, "Tennessee Constitution," September 25, 2019
  36. ↑ Texas Constitution and Statutes, "Texas Constitution," accessed March 30, 2014
  37. ↑ Utah.gov, "Utah Constitution," accessed March 30, 2014
  38. ↑ Vermont State Legislature, "Constitution of Vermont," accessed March 30, 2014
  39. ↑ Virginia's Legislative Information System, "Constitution of Virginia," accessed March 30, 2014
  40. ↑ West Virginia Legislature, "West Virginia Constitution," accessed March 30, 2014
  41. ↑ Wyoming State Legislature, "Wyoming Constitution," accessed March 30, 2014
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