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Wonkbook: Do today's oral arguments matter?

at 08:18 AM ET, 03/27/2012

Monday was the warm-up. The Supreme Court was simply hearing arguments over whether it should take the health-care case at all. Both the defenders of the law and the challengers of the law urged the justices to move forward with the arguments. The Court had to appoint an outside lawyer to make the case for backing down. But from the tone of the questioning, it seemed clear the justices had decided already on this question: They weren't going to turn back, not now.


Security personnel stand watch as the sun rises behind the Supreme Court in Washington March 26 as the court began hearing arguments on the constitutionality of President Obama's health care overhaul. (Carolyn Kaster - AP)
But have they already made up their minds on the other questions, too? That is to say, do today's oral arguments, which will attract so much attention and media frenzy, actually matter?

There is, after all, something slightly odd about the idea that the members of the Court are genuinely open to being moved by today's discussion over the precise nature of the individual mandate. For one thing, almost no one else involved in this process seems particularly doubtful about the right answer. The cable news shows and the op-ed pages are full of voices confidently declaring, without a shadow of a doubt, that the mandate is either clearly constitutional or obviously unconstitutional. (FULL DISCLOSURE: I am one of these voices.) What reason is there to believe that, over the past two years, the various justices haven't come to a similarly firm conclusion?

And, even if they had somehow managed to shut down the part of their brain that develops opinions and entrenches biases over these past few years, why would a few hours of theatrical argument be key to their decision-making process? Prior to these arguments, the Court received dozens of briefs laying out the possible arguments for and against every provision at issue in this case. Here's one, for instance, in which a Who's Who of health-care economists and scholars try to persuade the Court that "the decision to forgo insurance is not 'inactivity.' Studies demonstrate the decision to forgo insurance is typically not inadvertent but made on a reasoned and conscious basis: to assume the risk that significant medical costs can be avoided and to rely on the safety net of free care if that assumption proves faulty."

Frankly, every single signatory to that letter is in a better position to assess whether the mandate is or is not necessary to the regulation of a national market than the lawyers currently making arguments before the Court. And that is, of course, not the only brief the Supreme Court has in its possession. You can read the others -- which include submissions from Blue Cross and Blue Shield of Massachusetts, the American Cancer Association, the Cato Institute, Senator Harry Reid, Speaker John Boehner, 104 health law professors, and many more -- here. You can be assured that the Justice's clerks have already read these briefs, and the Justices have likely read the best of them.

You can either take that as evidence that they've thus been exposed to more than enough reasoned argument, from more than enough different directions, to either make up their minds or fortify whichever positions they had already intended to take. Either way, it seems unlikely today's oral arguments will dislodge the justice's conclusions. Indeed, it would seem faintly ridiculous, and possibly even irresponsible, for the justices to permit one lawyer having a particularly bad or good day before the bench to flip such a consequential case. But what do the experts think?

I posed the questions to some legal scholars and reporters. "There is never any way to know," says Erwin Chemerinsky, dean of the law school at the University of California at Irvine. "As a lawyer, I always view oral arguments as my chance to answer concerns from the judge about my position. I want oral arguments and questions and the chance to answer – even if usually they won’t change the outcome."

Jeffrey Toobin, who covers the Supreme Court for the New Yorker, was more skeptical. "Most Justices say their minds are changed by oral arguments a handful of times -- fewer than five -- per year," he e-mailed. "In my experience, the higher profile the case, the less oral arguments matter, because the Justices have strong and longstanding views about major constitutional issues. The Justices mostly use oral argument to talk to, and lobby, each other, through their questions to the lawyers." In other words: The minds the justices are looking to change may not be their own.

That last bit is important, agreed Dahlia Lithwick, who reports on the Court for Slate. Oral arguments are "the first time the Justices get to talk to each other about the case, so it can matter in terms of probing weaknesses and also getting a sense of what types of arguments one would need to deploy to get to five. In that sense it can matter a lot because you can begin to see what you need to do to move your colleagues."

She also made another point worth considering: "Even if it were merely public spectacle it would still matter because in a branch that does everything else in secret, it is the only chance to see them do their jobs."

Top stories

1) DAY 1: The Court seemed unlikely to pass on the healthcare case. "The Supreme Court opened its historic review of the national health-care overhaul Monday with an indication that it will be able to decide the constitutional question of whether Congress exceeded its powers despite arguments that the challenge was brought too soon. The court began the first of three days of oral arguments on the 2010 law by examining a statute that keeps courts from hearing tax challenges before they go into effect. But the justices’ questions indicated skepticism that the penalties prescribed for those who do not buy health insurance by 2014 amount to taxes under the 1867 law forbidding tax challenges...The court had asked Washington lawyer Robert A. Long to present the argument that the obscure 19th-century law -- the Anti-Injunction Act -- meant that lawsuits brought by 26 states and a private business organization were premature." Robert Barnes in The Washington Post.

LITHWICK: Monday was SCOTUS at its finest. "The court actually did what it does best this morning—reading complex old statutes (when Kennedy asked Long why the wording of the Anti-Injunction Act was so weird, Long basically replied that’s how people wrote back in 1867), asking practical questions, and reaching what looked to be nearly universal agreement that they’ll hear the case this year. While protestors outside were hollering about religion and freedom, the justices were boring those of us inside almost senseless with statutory construction. And sometimes, check that, most of the time, boring is what the justices do best." Dahlia Lithwick in Slate .

Did John Roberts tip his hand? "In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments. For over a year now, observers and experts have assumed that the court’s final decision will hinge on the extent of Congress’ power to regulate interstate commerce. But the justices could also upend that conventional wisdom, and in a worrying sign for the plaintiffs on Monday, Roberts unexpectedly highlighted one way they could do that. In an exchange with a plaintiffs attorney, Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power." Brian Beutler in Talking Points Memo.

LISTEN: The full audio of Monday's oral argument.

READ: The full transcript of Monday's oral argument (PDF).

PROFILE: Longtime anti-mandate crusader Georgetown Law Professor Randy Barnett.

@sarahkliff: Everyone coming out of the Court is expressing a lot of skepticism about the justices delaying a ruling because of Anti-injunction Act.

@AdamSerwer: So basically for better or worse, we'll most likely know the fate of Obamacare before 2012 ballots are cast.

NEXT UP: The mandate. "As the Supreme Court moves Tuesday to the heart of the challenge to President Obama’s signature health-care law, there is a curious twist: The case largely rests on the constitutionality of a provision that originated deep in Republican circles. The individual insurance mandate, which requires virtually all Americans to obtain health coverage or pay a fine, was the brainchild of conservative economists and embraced by some of the nation’s most prominent Republicans for nearly two decades. Yet today many of those champions -- including presidential hopefuls Mitt Romney and Newt Gingrich -- are among the mandate’s most vocal critics. Meanwhile, even as Democratic stalwarts warmed to the idea in recent years, one of the last holdouts was the man whose political fate is now most closely intertwined with the mandate: President Obama." N.C. Aizenman in The Washington Post.

@JeffreyToobin: Tomorrow is the most important day at the Supreme Court since Bush v. Gore. Pay attention, folks.

The mandate memo: How Obama changed his mind on the individual mandate

2) More encouraging housing data. "The number of contracts signed to buy homes in February eased slightly from January but posted another strong gain from a year ago--the latest sign that demand for homes is up from the depressed levels of the previous 18 months. A report Monday by the National Association of Realtors showed the index of pending home sales, reflecting deals that have gone into contract but haven't yet closed, rose 9.2% last month from a year earlier, continuing a rise largely fueled by investors' purchases of foreclosed properties. The index fell by 0.5% from January...Analysts say that housing demand appears to be stronger than at any point in the past year. Low prices are luring investors who can convert properties into rental units and make double-digit returns. More first-time buyers could face added urgency to move as landlords begin to raise rents and mortgage rates rise from record lows." Nick Timiraos in The Wall Street Journal.

3) The short-term highway bill is falling apart. "House Republican plans to pass a three-month extension of the surface transportation law fell apart Monday as it became clear that the leadership didn't have the votes to move the bill...GOP leaders had set up a vote Monday requiring two-thirds of voting members to approve the extension. But Democratic leaders had urged their members to oppose the bill -- nearly 50 Democrats would have to break ranks for the bill to have passed. Likely leadership will regroup and instead use a rule to bring the bill to the floor, which requires a simple majority to pass. But bringing it up later in the week isn’t a sure thing either...Democrats have rallied against the 90-day extension as they try to force House leaders into taking up a bipartisan two-year bill approved by the Senate several weeks ago." Adam Snider and Kathryn Wolfe in Politico.

4) EPA will issue the first greenhouse gas limits on power plants. "The Environmental Protection Agency will issue the first limits on greenhouse gas emissions from new power plants as early as Tuesday, according to several people briefed on the proposal. The move could end the construction of conventional coal-fired facilities in the United States. The proposed rule -- years in the making and approved by the White House after months of review -- will require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. The average U.S. natural gas plant, which emits 800 to 850 pounds of CO2 per megawatt, meets that standard; coal plants emit an average of 1,768 pounds of carbon dioxide per megawatt...The rule provides an exception for coal plants that are already permitted and beginning construction within a year. There are about 20 coal plants now pursuing permits; two of them are federally subsidized and would meet the new standard with advanced pollution controls." Juliet Eilperin in The Washington Post.

Top op-eds

1) KLEIN: We can't afford another 18 years of drift on healthcare. "The Clinton plan wasn’t perfect. It was, however, a start. It would have taken this mess that we call a health-care system, ironed out some of its worst inefficiencies, and created a structure for cost control. As time went on, Some parts of the law would have worked and some others would have blown up in our faces. We could then have learned from those experiences and improved the law by doubling down on the successes and removing or reforming the failures. We could, in other words, have begun the messy, long, but necessary process of building a better health-care system...Like the Clinton plan, the Affordable Care Act is an imperfect compromise...But unlike the Clinton plan, it’s been passed into law, and is a platform on which to build a better health-care system. The question now is whether we repeat the multi-trillion dollar mistake we made more than a decade ago and, rather than moving forward, settle back into the costly, inhumane status quo. Can we really afford another 18 years of drift?" Ezra Klein in The Washington Post.

2) COHN: Getting the mandate to the Supreme Court is a big win for the right. "Nobody knows what the Supreme Court will say about the Affordable Care Act, or exactly what a decision striking down part of the law would mean for the health care system. But one thing is clear already: Just by getting this case to the high court, which resumes hearings on Tuesday, the far right wing has already won something. As recently as three years ago, the idea of an individual mandate (the requirement that most people get insurance or pay a penalty) was largely uncontroversial, not only within the Democratic Party but within the Republican Party as well. As late as the spring of 2009, prominent Republican lawmakers like Charles Grassley, ranking minority member of the Senate Finance Committee, publicly embraced the idea of the mandate as part of health care reform. If he or any other leaders of the GOP thought the mandate was an unholy violation of liberty, they kept it to themselves." Jonathan Cohn in The New Republic.

3) BROOKS: Decentralization is the best way to control health costs. "American history can be seen as a series of centralizing events -- the Civil War, World Wars I and II, the Progressive Era, the New Deal and the Great Society...The Obama health care law represents another crucial moment in the move toward centralization...I think the Obama administration made a disastrous error in centralizing so many of the cost-control elements of the new health care system. I don’t care how many comparative effectiveness research studies are commissioned, there is no way centralized dirigistes can keep up with a complex, innovative system. There is no way government can adapt quickly to failure...Let’s have another round in the debate about how centralized American government should be...But remember there has always been a Hamiltonian alternative: centralize the goals, but decentralize the means people take to get there. Universal coverage is a worthy goal. Decentralized competition is the way to make it affordable." David Brooks in The New York Times.

4) GLAESER: The JOBS Act isn't enough to boost entrepreneurship. "Last week, with broad support, the Senate passed an amended version of the Jumpstart Our Business Startups Act (or the JOBS Act)...We shouldn’t kid ourselves that this will be a magic bullet; American entrepreneurship needs new ideas more than new financing mechanisms...The JOBS Act is not the solution that its supporters would wish it to be, and it carries costs as well as benefits. Even though investors have strong incentives to investigate before hazarding their money on some new startup, there will still be more fraud with fewer regulations. Yet America’s need for added entrepreneurs is sufficiently great that we should be willing to take that risk. We should not, however, think that the JOBS Act will solve our entrepreneurship gap, and we should continue working on education and immigration policies that will increase America’s stock of entrepreneurs." Edward Glaeser in Bloomberg.

5) PONNURU: Mitch McConnell intends to take the lead against Obamacare Obamacare. "The Supreme Court is much on Mitch McConnell’s mind these days. The Senate minority leader, a Kentucky Republican, just finished reading Jean Edward Smith’s biography of the great Chief Justice John Marshall. The book...reminded McConnell that disagreement over the scope of the congressional power to regulate commerce among the states 'goes back to the beginning of the country.'...Signing the health-care legislation was probably the most consequential action Obama has taken, yet it seems likely that both major presidential candidates will be hesitant to talk about it. Obama will avoid the topic because it’s unpopular, while his probable challenger, Mitt Romney, will do the same because the health-care law he himself signed as governor of Massachusetts bears an embarrassing resemblance to it. McConnell faces no such constraints. He is going to do what he can to keep the issue alive, whatever the Supreme Court decides." Ramesh Ponnuru in Bloomberg.

California rock interlude: Best Coast plays "Boyfriend" live on WBEZ.

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Still to come: The Fed is committed to low interest rates; secondary-payer reform is stuck; an attempt to reduce drunk driving has sparked controversy; the Senate will kick off a debate on tax breaks for oil companies; and two parakeets discuss philosophy.

Economy

The prospects of the long-term unemployed are grim. "In February, 3.5% of the U.S. work force was unemployed for more than six months, compared with 4.0% in February of 2010, a smaller decline than in the overall jobless rate. The average unemployed worker has been jobless for 40 weeks, a mark that has barely budged in the past six months. The diverging fortunes of the long and short-term unemployed worry many economists because it suggests the emergence of deeper, structural problems that could persist long after the rest of the economy recovers. Rather than returning to work as the economy recovers, as they have after past U.S. recessions, the long-term unemployed could effectively break off from the normal job market, ultimately forming an underclass of the more or less permanently unemployed...Economists call this grim prospect 'hysteresis,' a term borrowed from chemistry meaning that the past affects the present." Ben Casselman in The Wall Street Journal.

A review of the literature on hysteresis: http://bit.ly/GSJQ0P

@altmandaniel: For non-economists: hysteresis happens when you stretch something so much that it doesn't spring back anymore

The Fed is sticking with its commitment to low interest rates. "Federal Reserve Chairman Ben Bernanke said the central bank's easy-money policies are still needed to confront deep problems in the labor market, moving to reinforce his plan to keep interest rates low for years. His comments, at a conference near Washington of the National Association for Business Economics, were striking after several months of improvement in the jobs market. The comments also ran counter to a view that has emerged in financial markets recently that the Fed could back away from its low-interest-rate policies by next year...One question Mr. Bernanke didn't answer: Whether the Fed will launch another bond-buying program, known as quantitative easing, to push long-term interest rates even lower...Mr. Bernanke's comments Monday suggested another round of bond buying is still on the table if the economy slows or unemployment starts rising again, but it's not a sure thing." Jon Hilsenrath and Kristina Peterson in The Wall Street Journal.

The Ryan budget voids a disaster aid deal. "Reopening a bitter fight over disaster aid, the new House Republican budget plan seeks to void a provision in the August debt accords intended to encourage more orderly funding for such emergency costs. The agreement last summer had the blessing of leaders in both parties and was designed to allow Congress to respond quickly as long as the appropriations were under a prescribed cap reflecting the 10-year rolling average for disaster aid. In the current 2012 budget, for example, total discretionary spending is capped at $1.043 trillion but up to $11.4 billion in additional spending is allowed in the event of disasters. The goal is to build in some flexibility but also guard against ad hoc runaway spending. The compromise -- enacted into law as part of the Budget Control Act -- helped to expedite assistance last fall for victims of Hurricane Irene and remains a sensitive point not just for the White House and Democrats, but many Republicans as well." David Rogers in Politico.

Senate Democrats are pushing a small business tax cut. "Senate Democrats on Monday introduced a $25 billion tax cut to spur hiring among small businesses that is intended to counter a different offer by House Republicans. The two-pronged proposal will give small businesses a 10 percent tax cut in exchange for hiring new workers or raising employee pay, and will allow businesses to fully deduct the cost of significant investments made this year...The tax credit to businesses that increase payroll would cost $16 billion to $17 billion. It is similar to the Hatch-Schumer Hire Act that passed the Senate with bipartisan support two years ago. The tax credit would amount to 10 percent of payroll costs, giving employers tax relief if they raise workers’ pay. It would be capped at $500,000 per employer. The bonus depreciation plan would cost about $8 billion. It is an extension of policy that was in effect last year. Republicans had sought to add bonus depreciation to the extension of the payroll tax holiday." Alexander Bolton in The Hill.

The White House and congressional Democrats are divided over the JOBS Act. "White House allies are in an uproar over pro-business legislation embraced by President Obama, exposing a new rift in his relations with Democratic lawmakers and supporters amid his efforts since the fall to mend those ties. The bill is designed to make it easier for growing companies to raise money and reduce the cost of complying with securities laws. But critics warn it would allow firms to avoid disclosing crucial financial information and elude government oversight, opening the door to fraud and investor abuse. The measure is set to pass Congress on Tuesday...The Senate voted on the legislation, although half of the chamber’s Democrats voted against passage. Congressional aides said the White House’s enthusiastic support for the bill left some Democratic senators feeling boxed in." Zachary Goldfarb in The Washington Post.

YGLESIAS: Talking differently can boost the economy. "When faced with a recession and high unemployment, advanced economies ask the central bank to cut interest rates. Lower rates spur interest-sensitive purchases, primarily in vehicles for both consumer and business-investment purposes, and in physical structures like housing, offices, warehouses, and storefronts. This helps reduce unemployment in highly cyclical sectors and helps stabilize the economy by bolstering incomes. Conversely, if inflation is too high, the central bank does the reverse and raises interest rates. But economists have long observed that the short-term rates the Fed controls can’t really impact decisions about longer-term investment and durable goods. The relevant issue for those decisions is longer-term interest rates. These long-term rates are driven by expectations about the future. So even though the Fed does not set long-term rates, how the Fed talks shapes expectations about what that future will be." Matthew Yglesias in Slate.

Oversized objects interlude: A giant paper airplane is launched into the sky.

Health Care

States are preparing backup plans in case the Court strikes down the mandate. "State officials and insurance executives are devising possible alternatives to the coming federal requirement that most Americans buy health insurance, even as the Supreme Court hears arguments about the constitutionality of the mandate. The options being discussed include imposing state requirements that people get insurance, penalties for people who delay and automatic coverage enrollment. While it is unclear which way the court will rule, state officials and insurance executives say they have no choice but to prepare their options before the proposed mandate goes into effect in 2014...Although unlikely, given the political opposition and current unpopularity of the federal mandate, some states, following the example of Massachusetts, could authorize their own mandates requiring people to buy coverage or pay a penalty." Reed Abelson in The New York Times.

The individual mandate wouldn't affect most Americans. "The fight over the individual mandate has been so loud that people may think it will hit nearly everyone, whether they can afford health insurance or not. But what’s usually overlooked is that the health reform law has so many exemptions that millions of Americans are likely to be off the hook, including a wide range of middle-class Americans. Most Americans already have coverage that satisfies the mandate. And for the rest, the law would create rich subsidies that would help pay for coverage, even for families earning more than $90,000 a year. In fact, the mandate would be most likely to hit about 25 million people when it takes effect in 2014 -- many of whom are younger, healthier people who were taking the chance of going without health insurance even though they might have been able to afford it -- according to MIT economist Jonathan Gruber. That’s out of 272 million nonelderly people." Lester Feder in Politico.

Efforts to reform Medicare's secondary-payer process are struggling for attention. "A loose coalition of K Street types that includes trial lawyers, the U.S. Chamber of Commerce and advocates for seniors wants to breathe life into a congressional effort to pass legislation that would streamline the Medicare secondary-payer process -- a tedious name for a billion-dollar headache. Basically, all concerned agree that when an insurer other than Medicare -- think auto insurance or liability -- is responsible for medical bills, they should pay them. But Medicare’s clumsy system for calculating and obtaining those payments is driving everyone nuts and often drags out attempts to reach settlements and avoid courtroom clashes. Legislation to fix it, known as the SMART Act -- Strengthening Medicare and Repaying Taxpayers Act -- has been introduced in both the House and the Senate. They’ve picked up bipartisan support, but it’s still not clear they have the momentum to get something enacted this year." Matt Dobias in Politico.

@afrakt: The SCOTUS ACA case may be interesting, but I found the development of the law itself far more captivating.

Domestic Policy

A debate over DUI technology is heating up. "Safety advocates and alcohol interests are squaring off over legislation intended to reduce alcohol-related traffic deaths through the use of devices that prevent drunken drivers from starting their cars. Tucked into the Senate’s transportation bill is a provision that directs the National Highway Traffic Safety Administration to study 'more widespread deployment of in-vehicle technology' that would prevent drunken driving. The research will be carried out by the Driver Alcohol Detection System for Safety, a collaboration between NHTSA and the automobile industry. The idea is to develop some kind of nonintrusive technology based around touch or breathing that would be able to sense when a driver is drunk and disable the car. Technology on the market now -- called 'ignition interlocks' -- require a driver to blow into a Breathalyzer device attached to the car’s dashboard and then wait 30 seconds until the sample is analyzed. Only then will the car start." Kathryn Wolfe in Politico.

The FTC wants stronger consumer privacy regulation. "The government’s chief consumer protection agency said on Monday that it intended to take direct aim at the vast industry that has grown up around the buying and selling of information about American consumers. The agency, the Federal Trade Commission, called on Congress to enact legislation regulating so-called data brokers, which compile and trade a wide range of personal and financial data about millions of consumers from online and offline sources. The legislation would give consumers access to information collected about them and allow them to correct and update such data. The agency also sent a cautionary signal to technology and advertising companies regarding a 'Do Not Track' mechanism that allows consumers to opt out of having their online behavior monitored and shared...The recommendations, part of a sweeping set of guidelines in an F.T.C. report on Monday, represent the government’s latest move to address the issue of consumer privacy." Tanzina Vega and Edward Wyatt in The New York Times.

Adorable animals being adorable interlude: Two parakeets have a conversation about the mysteries of life.

Energy

The Senate will start debate on repealing tax breaks for oil. "The Senate voted 92-4 Monday to begin an election-year floor debate over Democratic legislation to repeal oil industry tax breaks, a plan that’s unlikely to ultimately pass but provides a platform for partisan warfare over gasoline prices. The procedural vote advanced Sen. Robert Menendez’s (D-N.J.) plan that would raise billions of dollars by removing incentives for the largest oil-and-gas companies, and also extend several green energy and energy efficiency tax breaks. Further votes are expected later this week. Most Republicans oppose the bill but GOP members voted Monday for a motion that allows debate to proceed, a tactical move that shows they believe the fight will be beneficial politically...Democrats - who are using the bill to paint Republicans as allies of 'big oil' - say giants like Exxon and Chevron don’t need tax breaks, especially at a time of high oil and gasoline prices and handsome profits." Ben Geman and Andrew Restuccia in The Hill.

Two new planned pipelines would rival Keystone XL. "Two major energy companies are planning to build new pipelines that will move as much as 850,000 barrels of crude oil a day from Canada to refineries along the Gulf Coast by mid-2014, in the latest effort to cope with a surge of oil production in North America. The separate projects, planned by Houston-based Enterprise Products Partners LP and Enbridge Inc. of Calgary, will compete with TransCanada Corp.'s proposed Keystone XL pipeline...The Enterprise and Enbridge projects don't face the same hurdles as Keystone XL, like a U.S. State Department review, because the cross-border portions of their pipelines are already built, experts say. But the new pipelines will require approval from the U.S. Federal Energy Regulatory Commission, which oversees how much pipeline owners can charge for moving products, and the U.S. Army Corps of Engineers, which must review the engineering and environmental plans." Tom Fowler in The Wall Street Journal.

@drgrist: "All of the above" makes sense as a way to achieve our energy goals only so long as we leave those goals undefined. Rorschach as policy.

Wonkbook is compiled and produced with help from Karl Singer and Michelle Williams.

 
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