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To: Minnesota Supreme Court
From: Gary Gross, President, Uppity Peasants Brigade
Subject: Do your damned jobs, aka Gov. Dayton’s line-item veto

Several weeks ago, you had the opportunity to settle a pretty straightforward case. You blew it by stating the obvious without doing anything. This can’t continue. At issue were 2 constitutional provisions. First was the line-item veto. The other was whether Minnesotans had the constitutional right to 3 fully-functioning branches of government.

Since nobody disputed whether the line-item veto was part of Minnesota’s constitution, the only question was whether there were limits on its usage. Gov. Dayton’s attorney insisted that there weren’t any limitations on how or when he could use it. He was paid to say that. I’d question whether he believed that. It appears as though you don’t think that a governor has the right to use the line-item veto. The problem is that you didn’t state that emphatically. Instead, you punted, hoping that the political branches would work things out.

They won’t and they shouldn’t. It’s your job to determine constitutional questions. That isn’t a political question. It has political ramifications but it isn’t a political question.

The other issue you had to determine was whether the people of the state of Minnesota had the constitutional right to 3 fully-functioning branches of government. You said in your ruling that they have that constitutional right. You also said that Gov. Dayton didn’t have the right to use a constitutional tool to obtain “an unconstitutional result”, presumably referring to the shutting down the legislative branch.

This is where you blew it. It’s like a math question. It’s like the teacher asked you what 2+2 is. It’s like you replied 2+2 equals insufficient information to give an answer. It’s clear that you’d rather invite a colony of ants to your picnic than resolve this straightforward case. That’s tough. You accepted the job. Now it’s time to fulfill your responsibility.

When the Legislature and Gov. Dayton don’t resolve this issue, it’s time for you to decide this lawsuit in the only logical manner possible. Rule that governors can’t disable other branches government with their line-item veto authority.

Finally, in your ruling, you questioned whether the judicial branch had the authority to appropriate money. That isn’t relevant. It isn’t important to decide that question because Gov. Dayton signed the bill that appropriated money to operate the legislature. By ruling that Gov. Dayton couldn’t use his line-item veto to disable another branch of government, you could then legitimately rule that the entire bill appropriated the money to run the legislature. You’d solve 2 constitutional questions with 1 ruling plus you’d fund the legislature.

If you don’t get this right, understand that I will lead a campaign to defeat each of you cowards the next time you’re up for re-election. That’s a threat you can take seriously.

The US Senate must abolish their tradition of giving blue slips to senators in a judicial nominee’s home state. It must happen ASAP, too. This article illustrates how this quaint tradition is getting abused.

According to the article, “Scott Cottington lives and has been working in Minnesota as a political consultant for several years. When I asked for his opinion, as an observer of politics and Minnesotan he told me on the phone, ‘This is partisanship pure and simple. If you look at what Franken did to Gorsuch, between Gorsuch and Stras, he’s being intellectually so dishonest and he’s doing it for partisan posturing purposes.'”

Let’s be honest. Al Franken is a political hatchet man. He isn’t a man of integrity. Back when he hosted a radio talk show, he got embroiled in a most unsavory scandal. According to the article, “A month ago Al Franken claimed ignorance of the transfers. ‘I didn’t know anything about this until late last week,’ he told Air America listeners on Aug. 8. The network’s brass echoed this: Air America CEO Danny Goldberg told the New York Sun this week that the ‘on-air talent’ has ‘never had any responsibility for this loan.’ This seemed plausible at the time, since no one expects the talent to be arranging finances, so in our Aug. 3 editorial on the subject, we gave Mr. Franken a pass. Regrettably, it appears we shouldn’t have. In light of documents that surfaced last week, it looks to be the case that as of November 2004, and possibly earlier, Mr. Franken knew the amount of money, the money’s origins and the dates the transfers occurred. This came to light after a settlement agreement between former and current owners of Air America, a document which details the Gloria Wise transfers, was leaked to Michelle Malkin and Brian Maloney, who promptly posted the document on their Web sites. The document shows that Mr. Franken signed off on the settlement, and did so in the presence of a notary public, no less.”

This is the man that’s holding up a confirmation hearing of Justice David Stras? It’s frightening enough that he’s a US senator. It’s disgusting that he essentially holds a one-man veto power over a highly qualified jurist. It’s time for the Senate to rethink some of its traditions.

What’s the value of consulting senators from a judicial nominee’s home state? What information can they provide that isn’t already known by the Judiciary Committee? Another important question is whether blue slips are being used too frequently for purely partisan purposes. In this instance, it’s clearly being used for purely partisan purposes. This video illustrates how dishonest and mean-spirited Sen. Franken is:

At one point, Sen. Franken, the man who lied about knowing about a loan he signed off on, accuses a judicial nominee of lying. At another point, he accused the judicial nominee of letting her religious faith direct her judicial rulings:

This is why Senator Al Franken, (D-MN), asked Barrett about speaking honorariums she received from the religious-liberty nonprofit Alliance Defending Freedom, comparing the group to the late Cambodian leader Pol Pot. (The group was recently smeared by the Southern Poverty Law Center as a hate group for pursuing religious-freedom cases in court.) “I question your judgment,” the former star of Stuart Saves His Family lectured the ‘mother of seven.

It’s disgusting that a liar would question a person’s judgment. Personally, I’ve questioned Sen. Franken’s character for years. It’s been proven that he’s lied about loans he’s signed off on. He’s an admitted cokehead:

He then he says that in his book, he writes “pretty frankly” about the fact that drugs were a regular part of life on the show, at least in those early years. Franken reveals how he did acid at Grateful Dead concerts and smoked dope and snorted cocaine.

But with regard to his own drug use, including of cocaine, Franken explained that he was careful to never abuse it, unlike cast mates such as Belushi, who died in 1982 of a drug overdose.

But I digress. Asking questions about a person’s religious beliefs is prohibited by the Constitution:

Since Durbin inquired in the form of a question, we can only assume that Barrett’s answer was pertinent to the confirmation. That is problematic, considering that the Constitution explicitly states that no religion, not even a belief in orthodox liberalism, should be a prerequisite for holding a federal office.

It’s apparent that the Constitution is just a set of suggestions to DC Democrats. It’s time to drain the swamp.

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After reading Briana Bierschbach’s MinnPost article, it’s clear that the justices who voted to give Minnesota governors virtually unlimited negotiating powers should be impeached.

In a section titled “The governor just got more power”, Bierschbach quoted Steven Schier, “a political science professor at Carleton College,” as saying that “the Supreme Court is setting a precedent that will allow all future governors to veto legislative budgets to continue negotiations.”

That’s certainly the majority opinion was amongst the media and punditry but that isn’t the entire story. As Ms. Bierschbach notes from the ruling, “Our Constitution requires ‘three distinct departments: legislative, executive and judicial. Minnesotans may soon be deprived of their constitutional right to three independent branches of government.”

According to the ruling, the Supreme Court said that governors can’t use a constitutional tool to “achieve an unconstitutional result.” It’s indisputable that the people have “a right to three fully functioning branches of government.”

That brings me to my main point, which is that the Supreme Court should have ruled that, while the line-item veto is constitutional, its application in this instance produced an unconstitutional result. Remember, Gov. Dayton didn’t veto the state government finance bill. He just line-item vetoed the legislature’s operational funding.

If my understanding is right, and I’m 99+ percent certain it is, this paragraph is irrelevant:

“We are unaware of any authority that allows the Judicial Branch to authorize spending simply because parties ask a court to do so,” the ruling reads. “In fact our cases suggest that the Judicial branch does not have the inherent power to appropriate money.”

If the Supreme Court rules that Gov. Dayton’s application of the line-item veto was improper, they can simply strike it, which means that the bill that the governor signed and that the legislature passed will take effect. There wouldn’t be a need for the Court to appropriate money.

In the final analysis, the Supreme Court dodged its responsibility. They might get this right yet but, if they do, it’ll be luck, not principle, that will be the deciding factor. They should’ve ruled that Gov. Dayton’s use of the line-item veto was improper because it eventually leads to an unconstitutional result. Instead of using sound judicial principles, these 6 justices essentially said that they didn’t want to make a decision.

We don’t need justices with straw spines and a moist finger in the air. We need justices who use impeccable judicial principles in making the right decisions. At this point, that’s asking too much of these justices. They’ve shown that they aren’t principled jurists with a titanium spine.

That’s why impeachment is the right path to take. I know that there aren’t enough votes to convict. Still, it would highlight the fact that these jurists aren’t fit for office. That might be enough to defeat some of them in next November’s elections.

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During Amy Coney-Barrett’s confirmation, Dianne Feinstein and Al Franken did something offensive. They questioned Prof. Barrett’s faith. Princeton University President Christopher Eisgruber sent a letter to Sen. Charles Grassley, the chairman of the Senate Judiciary Committee, and Sen. Dianne Feinstein, the ranking member of the Committee.

First, a little background is required. During her questioning, Sen. Feinstein stated “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for, for years in this country.” Sen. Feinstein’s mention of dogma refers to Prof. Barrett’s Catholic faith.

According to Princeton University President Eisgruber’s statement, that’s off-limits. In his letter, President Eisgruber said “I write, as a university president and a constitutional scholar with expertise on religious freedom and judicial appointments, to express concern about questions addressed to Professor Amy Barrett during her confirmation hearings and to urge that the Committee on the Judiciary refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views. Article VI of the United States Constitution provides explicitly that ‘no religious test shall ever be required as a qualification to any office or public trust under the United States.'”

Sen. Feinstein has been a member of the Senate Judiciary Committee for years. There’s no reason for her not to know that part of the Constitution. In fact, I’d be surprised if Sen. Feinstein didn’t just ignore Article VI. It isn’t an accident that our institutions aren’t functioning properly. When politicians like Sen. Franken and Sen. Feinstein ignore constitutional protections to drive their obstructionist agenda, everyone suffers.

Sen. Feinstein essentially said that she’s skeptical that devout Christians are capable of serving in government. That is a religious test, which the Constitution prohibits. In principle, that isn’t any different than Republicans disqualifying people who don’t take their faith seriously.

Feinstein and Franken are ignoring the Constitution that they swore to uphold. That makes them unfit for the offices they hold.

This afternoon, the Minnesota Supreme Court punted rather than make a constitution-based decision in the lawsuit filed by the legislature against Gov. Dayton. According to the article, “The Minnesota Supreme Court said Friday that Gov. Mark Dayton was within his authority to line-item veto funding for the House and Senate. But justices ordered the parties engage in mediated negotiations to come up with a workable solution.”

First, the injustice done with this ruling is stunning. Rather than rule that there are sensible limits on the executive branch, the Supreme Court essentially ruled that there aren’t limits on the use of the line-item veto. They’ve essentially given the governor unlimited power!

According to the article, Chief Justice Lorie Gildea wrote for the court, saying “The other branches should resolve these doubts through the political process. Thus far, they have not done so. As a result, Minnesotans may soon be deprived of their constitutional right to three independent branches of government.”

That’s stunning. Chief Justice Gildea admitted that the Supreme Court had the opportunity to guarantee that people would have the right of 3 functioning branches of government but that the Supreme Court declined to protect the people’s rights.

Further, the Supreme Court ordered the other co-equal branches into mediation rather than fulfilling their responsibility of applying the Constitution. Where in the Constitution does it give the Supreme Court the authority to tell the other branches what to do? A: It isn’t in there.

If I were advising Speaker Daudt and Senate Majority Leader Gazelka, I’d advise them to refuse to participate in mediation. I’d issue a statement saying that they won’t participate in extra-constitutional activities that the Court doesn’t have the authority to require or enforce.

If Mssrs. Daudt and Gazelka decide to participate in mediation, then I’d advise them to tell Gov. Dayton that he’ll have to give up some things in the budget that Republicans agreed to that they didn’t want. Further, I’d issue a statement saying that Gov. Dayton will have to renegotiate things that the GOP agreed to. Here’s how I’d word that statement:

We have agreed to mediation because Minnesotans need 3 functioning branches of government. Because Gov. Dayton wants to renegotiate parts of the GOP Tax Relief Bill that he agreed to, it’s only fair that he prepare to renegotiate parts of the budget that we didn’t like. If Gov. Dayton isn’t willing to give up things that he wanted, then it’s obvious that he won’t negotiate in good faith. We won’t negotiate where we do all the giving and Gov. Dayton does all of the taking.

This shows why judges should be elected, not appointed. This ruling shouldn’t have happened. This court made up new rules rather than apply the Constitution.

This ruling happened because DFL jurists sided with Gov. Dayton because of their political beliefs rather than based on longstanding constitutional principles. As such, they should be seen as constitutional freeloaders.

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If self-described Socialist Sen. Bernie Sanders is out-of-touch with Americans, it’s about the so-called campus rape crisis. In this recent tweet, Sanders said “Secretary DeVos made an outrageous announcement that she plans to overturn an Obama initiative that protected women.” President Obama’s initiative overprotected women by trampling male students’ rights on campus.

In the opening paragraph of their WSJ op-ed, KC Johnson and Stuart Taylor said “Education Secretary Betsy DeVos has made clear her intention to correct one of the Obama administration’s worst excesses—its unjust rules governing sexual misconduct on college campuses. In a forceful speech Thursday at Virginia’s George Mason University, Mrs. DeVos said that ‘one rape is one too many’ but also that ‘one person denied due process is one too many.’ Mrs. DeVos declared that ‘every student accused of sexual misconduct must know that guilt is not predetermined.'”

A few paragraphs later in their op-ed, Johnson and Taylor wrote “But as Boston College’s R. Shep Melnick has noted, that was ‘just a minor part of the OCR’s procedural requirements.’ Worse were ‘the agency’s rules on cross-examination and appeals; its informal pressure on schools to institute a ‘single-investigator model’ that turns one person appointed by the school’s ‘Title IX Coordinator’ into a detective, judge, and jury; and the intense pressure for schools to show they are ‘getting tough’ on sexual assault.'”

Compare Johnson and Taylor’s op-ed with Sen. Sanders’ official statement on the matter:

Today, Secretary DeVos made an outrageous and unfortunate announcement that she plans to overturn an Obama initiative than protected women on college campuses from sexual assault. Campus sexual assault is a major problem, and it must be dealt with. We must do everything possible to make sure our campuses are safe for all students. This decision does a disservice to those who have worked hard to address sexual violence. Congress must now act to undo another terrible decision from the Trump administration.

First, Congress won’t act on this. Further, they shouldn’t act on Sen. Sanders’ silliness. Finally, if they were to pass a law codifying President Obama’s Title IX assault, it wouldn’t be implemented because a judge would slap a TRO on it prohibiting its implementation because it violates students’ civil liberties. Specifically, it would violate students’ Fifth Amendment and Fourteenth Amendment rights. The Fifth Amendment says “No person shall … be deprived of life, liberty, or property, without due process of law…”

Sen. Sanders isn’t the only Democrat that’s out in left field on this. During Mrs. DeVos’s confirmation hearing, Sen. Bob Casey, (D-PA), stated “To say that it’s an epidemic is also understatement.” I won’t challenge Sen. Casey’s later statement that one in five female college students has been sexually assaulted. Rather, I’d question Sen. Casey and Sen. Sanders if stripping male students of their Constitution-given rights would make female students safer. I’d submit it wouldn’t.

Johnson and Taylor also said this:

Second, it would allow the department to implement Title IX policy through new, carefully considered regulations after a period of public notice and comment. The FIRE study identifies provisions that would be necessary to achieve a minimum of fairness in campus tribunals—the presumption of innocence, clear notice of alleged violations, sufficient time for the accused student to prepare his defense, impartial fact-finders, access to all relevant and exculpatory evidence, the right to cross-examine the accuser, a meaningful right to legal representation, and a meaningful right to appeal.

As four Harvard law professors— Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet and Nancy Gertner —argued in a recent article, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decisionmakers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX. So too had 16 University of Pennsylvania law professors, as well as the American Council for Trial Lawyers.

It’s important that the Obama administration’s guidance be scrapped. Still, it’s important that the system protect students’ safety without trampling other students’ civil rights.

This post by Powerline’s Scott Johnson predicts a sad outcome in the lawsuit filed by the legislature against Gov. Dayton. In his post, Johnson, an attorney, wrote “Based on the oral argument, it seems clear to me that the Supreme Court is poised to reverse Judge Guthmann’s ruling and remand the case to Judge Guthmann for an order funding the legislature’s core functions beyond October 1 for as long as necessary. If and when Governor Dayton prevails on appeal, he can be expected to call a special session of the legislature specifically limited to revisiting provisions of the state government finance bill that he found objectionable. Governor Dayton appointed four of the Minnesota Supreme Court’s seven justices. The playing field is tilted in his favor.”

God help us if Scott’s prediction is right. I don’t want to sound to dramatic but a ruling in Dayton’s favor is a ruling against checks and balances and a ruling that would essentially obliterate the concept of co-equal branches of government. Harold Hamilton summarizes things perfectly in his weekly commentary:

During oral arguments, Chief Justice Gildea cut right to the heart of matter by asking this question of Dayton’s lawyer: If the line-item veto power has no limits or qualification, is the governor not empowered to veto or threaten to veto funding for the judicial branch if he doesn’t like the way a court rules a case?

Dayton’s lawyers engaged in some verbal gymnastics before simply stating that such a question “isn’t before the court today.”

This is the tell-tale question.

For Dayton’s view to prevail, it must be admitted that the line-item veto has no limits. It means that the governor can threaten to veto funding to operate the legislature or the courts to leverage political outcomes. In short, it means that the governor can threaten the integrity of the courts and the legislature.

Scott is right. Gov. Dayton has successfully stacked the Court. If Gov. Dayton’s appointees rule in his favor, Republicans will use that ruling to eviscerate DFL candidates at all levels.

Imagine if you’re Dan Wolgamott, running against Jim Knoblach in HD-14B. Further, imagine having to defend the governor from your party essentially claiming that he should have the ability to negotiate in bad faith and get everything he wants from the legislature and the courts through the stroke of a pen.

That isn’t what a constitutional republic looks like. It’s what a third-world dictatorship looks like. It’s what totalitarianism looks like.

If Gov. Dayton’s appointees rule in his favor, that’ll be proof that Gov. Dayton’s appointees are Democrats first and constitution-minded jurists second. Minnesotans need to ask themselves if that’s what they want. Do they really want Democrats anywhere near the levers of power in St. Paul?

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Rachel Stassen-Berger’s article highlights what’s at stake when the Minnesota Supreme Court hears oral arguments in the case officially titled “the Ninetieth Minnesota State Senate and the Ninetieth ­Minnesota State House of Representatives vs. Mark B. Dayton.” This epic lawsuit was required because Gov. Dayton vetoed funding for the legislature, thereby violating the latest constitutional amendment, not to mention the Separation of Powers Clause of the Constitution.

Ruling that the governor’s line-item veto is constitutional would essentially end the basis of government being made up of 3 “co-equal branches of government” because it would give the governor the ability to renegotiate bills he’d already agreed to signing.

It isn’t that far-fetched to think that a governor could reach a budget agreement with legislative leaders that included things that the legislature didn’t want and things that the governor didn’t want. Once the legislature passed the bills that the governor wanted, he’d be in position to sign those bills, then veto the bills that he didn’t want.

Actually, that’s what happened. After Gov. Dayton signed the bills he liked, he vetoed the bill funding legislative operations in an admitted attempt to renegotiate a tax relief package he didn’t like. Siding with Gov. Dayton on this lawsuit would end the principle of co-equal branches of government, not to mention the fact that it would prevent the legislature from doing its job.

Constitutional lawsuits often come down to identifying limiting principles. In other words, they’re often decided because ruling otherwise would tip the balance of power too far in one direction or another. That’s why it’s appalling to see Gov. Dayton’s team insist that his line-item veto authority is absolute. In gray areas like this, absolutism doesn’t exist.

That’s why I expect the Supreme Court to rule in the people’s and the legislature’s favor. To do otherwise would end our system of government as it exists.

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According to this article, Chicago’s Democrat Mayor Rahm Emanuel will file a lawsuit against the Trump administration on Monday.

According to the article, Mayor Emanuel said “We are not going to be put in a position of choosing who we are as a welcoming city and strengthening our police dept. These are exactly the kind of training and technology you want to be investing in right now and also do it in a way that the community’s involved.” While it’s possible to find sympathetic judges who will side with Mayor Emanuel, it isn’t possible to a constitutional footing that permits cities to set immigration law.

Article I, Section 8 of the U.S. Constitution lists that one of the federal government’s responsibilities is to “establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” Nowhere in the Constitution does it give mayors of U.S. cities the authority to establish immigration or naturalization policy. Notice that the clause says its goal is to “establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.”

Financially, Emanuel can’t afford to lose these federal grants. Politically, Emanuel can’t afford to upset Chicago’s Hispanic population. Emanuel’s problem is that he doesn’t control the federal budget. If he wants that money, he’ll have to follow the federal government’s rules.

Emanuel is hoping for a favorable ruling by the Supreme Court or, short of that, to appear to have fought the good fight. At least then, he can spin it that ‘Hey, I tried maintaining law and order but the federal government, especially the Trump administration, wouldn’t give us any grants.’

Emanuel is essentially caught in a Catch-22 situation. If he doesn’t bring street violence under control, he’ll lose the support of peace-loving Chicagoans. If he doesn’t appease Chicago’s immigration activists, though, he’ll lose their support. It’s essentially a lose-lose situation for Emanuel. Having surrogates like Todd Schulte isn’t helping Emanuel’s fight:

Todd Schulte’s dishonest replies suggests that he’s as willing to spin immigration issues as Jim Acosta. He’s right in saying that the term ‘sanctuary cities’ is a political term. After that, Schulte’s claims are mostly dishonest. Schulte wasn’t being honest when he said that police chiefs aren’t choosing to not enforce federal immigration laws. That’s precisely what they’re doing. The U.S. Constitution requires the federal government to establish a “uniform Rule of Naturalization.” Sanctuary cities make it impossible to establish a uniform rule of naturalization across the nation.

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It’s frightening to see how constitutionally ignorant U.S. senators are. In this Hill article, Sen. Jeff Flake, (R-AZ), shows his ignorance to the Constitution. It’s a frightening sight.

Quoting the article, Sen. Flake told MSNBC anchor Andrea Mitchell “I think that if he were to be removed, however it’s done by the assistant attorney general or a new one, Congress would assert its prerogatives. That would mean hiring a special prosecutor, and that might even be Bob Mueller.”

That’s frightening stuff coming from a liberal’s mouth. To hear it coming from a Republican is doubly frightening. Hint to Sen. Flake: take a look at a organizational chart of the executive branch. Next, compare that with an organizational chart of the legislative branch. The Justice Department, the FBI and the U.S. attorneys are found on the organizational chart of the executive branch, not the organizational chart of the legislative branch.

The article continues, saying “Flake has become one of Trump’s most prominent Republican critics. He recently said that Republicans were in denial about Trump’s first few months in office, calling members of Congress to speak out against the president’s policies that stray from the conservative agenda.” Based on Sen. Flake’s limited understanding of the Constitution, it’s difficult for me to think of Sen. Flake as a conservative. By contrast, it isn’t difficult to picture Sen. Flake as a moron after watching this video:

It isn’t possible to be thought of as a principled conservative if you don’t have a basic understanding of the U.S. Constitution or principles like separation of powers or the different branches of government. Apparently, Sen. Flake isn’t aware of these foundational principles. Apparently, Sen. Flake graduated from the John McCain School of Constitutional Law. (Think McCain-Feingold.)

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