Pro Logica

November 25, 2011

Obama, Boehner and the Constitution

The recent Congressional law concerning appropriations, borrowing and the deficit has pushed the deficit onto a super committee.  Many pundits, myself included, were fairly confident that it would never accomplish its goal especially when the super committee’s members were appointed.  This law required unpleasant cuts in spending for both political parties, hopefully ensuring a failsafe super committee.  However, it did resolve the looming contradiction between Federal spending and borrowing.  One facet of this Congressional mess was the meeting requested by the Speaker of the House, Mr. Boehner, with the POTUS, Mr. Obama.  While I have no objection with the POTUS and members of Congress meeting to talk about policy–Constitutional interpretation is never fixed and particular outcomes of enacted laws may be explored and debated–this meeting was particularly egregiously wrong from the standpoint of the U.S. Constitution.

The pre-history of this meeting was a lengthy discussion/debate in the House dealing with the above concerns.  No workable bill was forthcoming  primarily due to the mulishness of the members of the two major political parties.  With this background and time for action becoming worrisome, (the contradiction between spending and borrowing) Mr. Boehner requested a meeting with the POTUS to get an agreement that would be acceptable to members of both parties. his reasoning probably being that upon reaching an agreement, he would then convince the Republican Party members of Congress to vote for the bill while the POTUS would convince the Democratic Party members of Congress to vote for it and, also, not veto the bill when it comes time for the POTUS’s signature.

The relevant circumstances from the point of view of the Constitution are these:

  • The discussion in the House was stymied.
  • There was very little dissent among the Republican Party members of the House; the dissent was over political party ideologies.
  • The Republican Party had control of the House and could have passed a resolution without any Democratic Party members support.
  • Doing so would assure defeat in the Senate.
  • The Speaker of the House requested a personal meeting with the POTUS expressly and publicly for reaching an agreement between themselves.  This agreement would raise the borrowing limit and specify deficit reductions.

Constitutionally, this last statement was the invalid tactic since it was an actual request by Mr. Boehner to have Mr. Obama set aside his Constitutional duty as POTUS and, instead, use his office as a bully pulpit to convince recalcitrant Democratic Party members of the Senate to vote for a largely Republican Party bill.  This hints at a possibility that Mr. Obama knew he could never convince the Senate Democrats.

Now here is how I would have handled  the situation.

  • First (a no-brainer), I would agree to the meeting and set up a date to meet in the oval office.
  • Second (after the social niceties), I would tell him that I intend to make an initial small speech and will record this meeting beginning with my speech after which he (Mr. Boehner) can decide if he would like to continue the meeting,
  • Third (my initial speech),  “I have been following the proceedings in the House and understand your frustrations and I realize that it is those frustrations which have led you to seek this meeting; so, before anything is discussed between us, I should make clear a most important parameter which will govern my statements during this meeting.  I have been elected by the people of this country as President, and, as such, I have taken an oath to uphold the U.S. Constitution and this is my primary responsibility as President.  In this regard, I would be remiss in my duty to the people of this country if I were to commit myself to signing a bill which has not yet cleared the full Congress.  From this point of view, anything discussed at this meeting is essentially inconsequential  and I can only say that when a proper bill is sent to me from Congress, then and only then will I consider whether it merits either my signature or my veto.  I take this position because you, Mr. Boehner, are only one person.  If the object of this meeting is to discuss aspects of a bill that will be presented to me for my signature, where are the Senate representatives?  the Democratic House members?  Surely, you are not telling me that you represent the Senate and, really, since you cannot represent the Senate, I am more than justified in following the Constitution.  Also bearing upon the content of this meeting is the fact that the House is controlled by the Republican Party.  It is also true that under the current circumstances the House Republicans are not divided and could pass any resolution they desired; the fight you have is with the House Democrats and the Senate.  Let’s delve into the problem just a little deeper and may I point out that the borrowing cap is strictly a legislative problem, not an executive one; to wit, there are two laws on the books, one of which requires me to spend an amount of money which will not be in the treasury. In order for the treasury to obtain this money, I would have to issue a presidential directive authorizing the Treasury Department to borrow the necessary amount, but the other law puts a cap on the amount of money which the Federal Government can borrow and, unfortunately, we are at that limit.  I am left with the choice of enforcing one of these laws while not enforcing the other one.   This is not an executive problem since, in the absence of direction from Congress, I will make a decision on which law to enforce and base it upon my interpretation of the Constitution which I am duty bound to uphold.  Furthermore, the solution to this legislative problem does not impinge on any of the deficit discussions which are causing your frustrations.  Your problem, as I see it, is to solve the legislative contradiction before I am forced to make a decision and deficits have no bearing on that solution.  If you and the Republican Party manage to get a bill through Congress that include provisions to lower the Federal Government’s deficit, I can assure you that it will be vetoed by me unless one of the bill’s provisions authorizes a steeply graduated income tax on incomes above three times the median wage and will last long enough to pay for the cost of both the Afghanistan and Iraq wars while Mr. Bush was President.
  • Fourth, I would then ask Mr. Boehner If he would like to continue this meeting.
  • Fifth, I will make the recording of the meeting available to the public.

My guess would be that the meeting would not continue after my speech.


October 17, 2011

Freedom of Speech? Brown v. Entertainment Industries Assn.

The Supreme Court’s (SCOTUS’) ruling in this case is the culmination of a claim made by Entertainment Industries Assn. that a specific California law is unconstitutional because obeying it abridges a video game vendor’s protected free speech.  The law, itself, is only paraphrased in the ruling and I have not spent the effort to read the original wording of the law but the ruling only addresses the case in terms of its paraphrasing.  According to the ruling, the law bans a vendor in California from selling a video game–one which portrays violence as a socially accepted activity in situations where violence is not a socially acceptable activity–to a minor (someone under eighteen years old) without permission from that minor’s parent(s) or guardian(s).  The plaintiff in this case is a legal entity of the State of California–‘Entertainment Industries Association’–and the defendant, while nominally ‘Brown’, is actually the sovereign State of California.  Five justices agreed with the plaintiff (the majority opinion), two justices disagreed with the plaintiff but found the law to be too vague to enforce (a good equity ruling) and two justices agreed with the defendant. Whatever the actual wording of the California law was, the plaintiff’s claim was that the law, by violating their member’s freedom of speech, was unconstitutional and the majority opinion confirmed that claim.

At first, I thought that the majority opinion was ridiculous since it equated one side of a two party contract to an act of protected free speech, i.e., speech not subjected to abridgment by law.  I still do think that that decision is ridiculous and it exposes those five justices as having a lack of both, common sense and wisdom; they are, therefore, unqualified to be justices of SCOTUS.  Article I of the Constitution specifically enjoins Congress from interfering in contract obligations and, sovereign States have the sole power to define those citizens of the State who are eligible to sign contracts.  However, after spending some time reading the relevant sections of the Constitution, Wikipedia, some ‘freedom of speech’ rulings by SCOTUS and some historical documents, I have come to the conclusion that the worst aspect of this ruling is that it exists.  The Constitution flatly denies jurisdiction of this case to the Judicial Branch.

The ‘sins’ of SCOTUS in this case amount to:

  • As mentioned above, treating a sovereign State’s right to determine the eligible signers of contracts as an abridgment of free speech.  The only person having HIS freedom of speech abridged is the minor who is barred from signing a contract allowing HIM to legally purchase a product having certain characteristics unless those responsible for that minor give HIM explicit permission, but there are many prohibitions on minors entering legal contracts.
  • Effectively changing the Constitution (Amendment I) to read, “the sovereign States shall make no law abridging the freedom of speech” instead of “Congress shall make no law abridging the freedom of speech.
  • Effectively changing the Constitution (Article III and the Eleventh Amendment) to allow State defined corporate entities as legal parties to cases heard by SCOTUS–Article III and the Eleventh Amendment are very specific on who these parties may be.  Congress certainly may enact a law which could extend the definition of a person so as to allow such corporate entities, but I believe no such law exists.
  • Assuming jurisdiction over a case which concerns a difference of opinion between a citizen of a sovereign State and HIS State–specifically  banned by the Eleventh Amendment.
  • Ignoring Section 5 of the Fourteenth Amendment–Section 5 states that Congress, not the Judicial Branch, has the authority to implement the amendment.
  • Misusing the principle of judicial precedent.  More than likely, “Feiner v. New York” was the first case in which SCOTUS decided to hear a claim of abridgment of freedom of speech.  Even though the Eleventh Amendment excluded the case from SCOTUS jurisdiction, SCOTUS argued that the Fourteenth Amendment gave it jurisdiction.  The basic problem with the Fourteenth Amendment is that without Congressional laws defining its actual application any state law can be deemed unconstitutional.  This only mocks the term ‘sovereign State’ and could essentially eliminate all State governments contrary to the Constitution which enjoins the Federal government to guarantee a republic government for each State.  Use of the Fourteenth Amendment in this manner has effectively rescinded the Eleventh Amendment.  Sighting an illegal ruling does not justify a continuing illegal jurisdiction.

As I have recently reviewed many of SCOTUS’ rulings, I find that a majority of them seem to commit as least one type of these ‘sins’.

In spite of my conclusions, I do think that a citizen’s freedom of speech is essential for all republican governments and prior to the civil war it was the State’s obligation to define when abridgment to freedom of speech applied.  The Thirteenth Amendment, outlawing Slavery in the U.S. and all sovereign States required something like the first section of the Fourteenth Amendment but it also stated unequivocally that the U.S. Congress was the branch specifically authorized to spell out the amendment’s details.  While the Fourteenth Amendment talks about the privileges and immunities of the citizens and their equal protection of the laws it specifically enjoins Congress to define these properties.  Our country does not have a problem with its constitution but with a power hungry Judicial Branch and an exceptionally weak Legislative Branch which refuses to chastise and/or expel judges from the Judicial Branch when they act unconstitutionally.

With these unconstitutional acts by SCOTUS, I have often wondered why states have not asserted their sovereignty and just ignore those SCOTUS rulings which are not constitutional.  The only risk is that POTUS might agree with SCOTUS and withhold much needed funds graciously granted by the Federal government.  Pity, pity, pity!

June 18, 2011

Stupidity in Congress?

Filed under: Politics — Tags: , , , , , — Ron Toczek @ 6:31 pm

There appears to be a letter sent by twenty-one Representatives given to the POTUS asking him to sign the extension of the Patriot Act.  The facts, as I understand them, are thus:

Congress passed a bill extending the Patriot Act and sent it to the POTUS, but he was out of the country at the time and would not be back in time to sign the bill into law before the existing Patriot Act expires.  The POTUS then signed the bill into law through the use of an autopen (surrogate?).

Whatever the actual mechanics of this procedure, the POTUS did not actually sign the bill and this procedure was used by Bush during his presidency even though there were objections.

While these Representatives correctly cited the Constitution’s requirement for the POTUS’ signature, they must not have read the entire section.  Further on, in the same paragraph, it states that if the POTUS does not veto the bill within ten days of its submission, the bill becomes law if Congress be in session at that time or does not become law if Congress is not in session.  Nowhere in the letter is this latter provision of the Constitution mentioned.

Now, I don’t know the date on which this bill was sent to the POTUS nor do I know whether Congress was in session ten (does time of day matter?) days later, but if Congress was in session at the end of ten days then the POTUS’ signature is redundant and not necessary for enactment of the law and the POTUS does not have to answer the letter.  If Congress was not in session then there could be a question at to the legality of the law, but in this case there is precedence for the process.

Clearly, the situation is one which is not explicitly covered by the Constitution and if these Congressmen are concerned about the process used to sign the bill into law, they should, as the Constitution instructs, pass a bill which prescribes the lawful method with which the POTUS can sign bills into law under impracticable circumstances.

As I see it, the situation is so straightforward that the authors of this letter are either stupid or can be accused of political grandstanding.  I sure hope it is not the former.

September 4, 2010

Hypocrisy and the Obama Administration

The last section of my last blog reminded me of my first letter to the editor wherein I stated that Obama, if he were to become president would probably be the biggest hypocrite to ever hold that position.  That prophecy seems to have a chance of being fulfilled.

We start with the presidential Oath of Office which must be taken before the president-elect takes office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and to the best of my Ability, preserve, protect and defend the Constitution of the United States.

We also note that the beginning of Article II states:

The executive Power shall be vested in a President of the United States.

By taking the Oath the POTUS promises to execute and enforce all Congressional laws unless, in his/her judgment, that particular law is deemed unconstitutional.  Rational and reasonable governance dictates that, in the case of disagreement of constitutionality the two sides would get together and resolve their difference with Congress changing the law to satisfy the constitutionality disagreement.  If either side is adamant the result could be the removal of the POTUS through the impeachment process or the repeal of the law in question by either resolution or de facto means (leaving the law on the books and not removing the POTUS).

Leaving aside the details of good governance and getting to the hypocrisy assertion, there have been four instances in the news recently which have charged the POTUS of not enforcing particular Congressional laws: funding embryonic stem cell research; not enforcing “don’t tell, don’t ask”; spending money for promoting Kenya’s new constitution; and funding pro-abortion organizations.  The charge of hypocrisy of the Obama administration stands since there has been no attempt to justify these four violations of Congressional law.  We can only wonder how many other laws have been flouted by this administration.

August 4, 2010

What’s wrong with the U. S. Constitution?

I.  Complaints.

Many news articles over recent years have bemoaned the low standing of the Federal Government in the eyes of its citizens and Congress fares the worst where only about 25 to 30 per cent of the people polled feel that Congress can be trusted to do its job effectively; this has dropped to 11 per cent recently.  Some have even proposed a constitutional convention.  Now, a constitutional convention is a serious undertaking and in my opinion should not be attempted for  petty reasons; it is warranted only for a change in the type of government–like going from a republic to a constitutional monarchy, a rearrangement of governmental functions–like going from a separation of powers system to a parliamentary system, or for simplifying its language after multiple amendments make some of the sections confusing or even contradictory.  I don’t believe that our American system is in need of any major overhaul yet; so the answer to this post’s topical question is  “nothing”.

Let’s examine the complaints a bit further.

The major complaint seems to center on Congress’s inability to operate effectively.  Consider  health reform.  Most everyone knows that our current system is inefficient, overly expensive and abused by many of its participants, i.e., highly in need of reform, and it has been this way for many years.  When the Democrats had control in 1992, health reform was attempted but was primarily blocked by the Republicans, and the same is happening this time; however, the Democrats persuaded all but a few of their cohorts to vote for a health bill and enacted the same–no Republican voted for the bill.  Personally, I believe this bill is currently unacceptable for many reasons even though some Republican ideas have been incorporated.   The real problem is not the form of government but the inability of the two parties to negotiate and compromise and come up with an effective bill for the good of the country.  I have often wondered why our two major parties never consider the fact that the American voters hardly ever let the President and Congress be controlled by the same party for any length of time–could it be that they don’t believe that either party has their country’s welfare at heart.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–Whomsoever the voters elect can be recalled by those voters.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–whomsoever the voters elect can be recalled by those voters.

The major complaint about the Judicial Branch is that it makes law–“Roe vs. Wade” is a good example (the ruling’s  conclusion might be stated as “No state of the United States of America shall prevent any female citizen from having an abortion).  I have outlined the general status of a Supreme Court (SC) ruling in an earlier blog on the basis of the separation of powers between the branches, but let’s  review what the U.S. Constitution says about the SC.  As explicitly stated therein the SC resolves disputes (Article III, Section 2 and Amendment XI–cases of law and equity arising under  the Constitution, its Laws and ratified treaties; since “equity” in this context cannot refer to its financial meaning, it must refer to fairness of treatment which poses the problem of the necessity of the ” equal protection of the laws” clause of the 14th Amendment).  Due to their equal status, a SC ruling can become a legitimate Congressional law in only one of two ways: Congress passes a law which, in effect, requires the Executive Branch to enforce the ruling or Congress does nothing and the Executive Branch does enforce the ruling.  In the situation where the SC ruling declares a law to be unconstitutional, if Congress does not rescind the law and the President of the United States of America (POTUS) continues to enforce the law, the SC ruling is essentially nullified until the POTUS (the same one or someone different) at some later time decides to enforce the ruling or Congress (the same one or a different set of law makers) decides to pass a law legitimizing the ruling.  POTUS Obama was thoroughly convinced that the SC’s McCain-Feingold ruling was wrong but he could have said, “As the President of the United States of America, I disagree with the ruling of the Supreme Court for these reasons…(states his reasons)…and until Congress changes or rescinds this law, I will continue to enforce it as it is written”, a statement that is fully constitutional.   The kingpin in this process is Congress since it has the power to impeach the  POTUS and keep impeaching successors until it gets one to do its bidding.  Incidentally, if Congress thought that the SC ruling was egregiously unconstitutional, it could impeach those justices who concurred in that ruling.  Unfortunately, our two-party system has a tendency to under use the threat of impeachment as a governing tool.  When the SC ruling involves a state law and the ruling declares that law to be unconstitutional the same mechanics can still happen but what if the State does not accept the SC ruling and Congress does not pass a law legitimizing that ruling and the POTUS cannot effectively enforce the ruling or even decides not to enforce the ruling.  Again a SC ruling can be effectively nullified, at least for the time being.   One might raise the question, “What about those Federal marshals who carry out the judges orders?”  Remember, the Judicial Branch has no enforcement powers, those Federal marshals are employed by the Executive Branch and under the orders of the POTUS.  He has the power to prevent them from carrying out any orders given by the judges.

The SC ruling in the case “Roe vs. Wade” is just one example of many cases where the SC has been accused of legislating.  The current Chief Justice has stated in his confirmation proceedings that “‘Roe vs.Wade’  is settled law” and he is correct since all States have acquiesced to that ruling, Congress appropriates money to support the abortion activities of Planned Parenthood  and similar organizations, and the POTUS has dispersed funds to Planned Parenthood.  Yes, “Roe vs. Wade” is settled law but it is not Congressional Law since there has been no bill passed by Congress espousing this particular ruling.  A puzzling aspect in this picture is the presence of the Hyde Amendment.  If it does say what it is purported to say, how can Congress and the POTUS justify their give-away of Federal funds to an organization like Planned Parenthood, which, in fact, do perform elective abortions?

The legitimacy of elective abortion is an example of a de facto law, in English, a law in fact but not explicitly written as a law.  Some States still retain their criminal abortion statues and it might be interesting to see what would happen if one of them actually challenged the Federal Government for I can envision many obstacles to Federal enforcement.  Back to the point, the SC cannot legislate but they can be the source of de facto laws.  Those who oppose particular de facto laws originating in the SC must either win the support of the other two branches or wait for a reversal ruling from the SC itself.

In summary and only on a procedural basis, a SC ruling can become a de facto law only with the cooperation of a second branch of government and without opposition from the third branch.  Of course, this process does not pronounce any judgment as to the worthiness or unworthiness of the law itself.  Historically, the world is and has been rife with bad laws   and will probably continue to have them far into the future.

There are two major complaints  concerning the executive branch but they are usually directed against the POTUS; not enough emergency powers and too much overall power.  It shouldn’t be difficult to see how the executive branch complaints can be resolved within the Constitutional dictate of the separation of powers.  The Executive Branch of the Federal Government is the only branch having the authority to enforce all the provisions of the U. S. Constitution, in fact, the POTUS is the only member of the Federal Government required by the Constitution to take an oath in defense of the Constitution and its Republic.

As to the POTUS not having any emergency powers. this clam is patently false, since the Executive Branch is fully independent from the other two.  The POTUS can write presidential directives with the full expectation that they will be carried out by his/her employees, even if they do not follow a strict reading of the U. S. Constitution.  Proper manners indicate that a declaration of some sort be presented to the other two branches stating the precise reasons for the POTUS’s action in order to facilitate a unified government response, but there is no constitutional requirement for it.

So, what happens next?  If the SC agrees with the POTUS, they can refuse to hear any case that questions the enforcement or the constitutionality of that directive, and if they disagree they can hear such a case and render their disagreement in a ruling.  Congress, being totally independent from the other two branches can also act independently.  If they agree with the POTUS they need to do nothing, thus nullifying a possible SC ruling to the contrary; however, if they disagree to the extent that something different must be done, they must do something positive, even if the SC has ruled against the POTUS.

And just what are the positive things that Congress can do?  First, they would probably try to discuss their differences with the POTUS in order to resolve their disagreement and have a common understanding of the needed action, probably involving the rewording or cancellation of the concerned directive or the passage of a law or some combination.  In this discussion, Congress can use the threat of impeachment as a tool for persuading a president to change or cancel his/her directive.  It was interesting to note the Republican Party Congressional members’ complaints about President Bush’s memos on how he planned to enforce some particular laws passed by Congress; many members stated that he was subverting Congress’s intent.  Did any of them suggest impeachment?

Similarly, if Congress thinks that the  POTUS is wielding too much power they can pass a bill limiting that power.  Since the POTUS  would probably not sign the bill, the bill will become law after ten days or if the POTUS veto the bill, Congress could then override the veto. In either case the bill limiting presidential power becomes law and then the POTUS could then be impeached for not enforcing the law.

II.  A short summary of the basic rules of operation of the Federal Government.

1) The U. S.  Constitution authorizes three independent branches of the government.  Congressional bills, presidential directives and SC rulings are limited only by the Preamble to the Constitution when there is no specific wording which directly applies.

2) The SC cannot initiate any rulings unconnected to a dispute brought before it and has no power of enforcement for any of its rulings.

3) While Congress is the only branch which is authorized to write laws, a presidential directive by itself or enforcing a SC ruling can become a de facto law when Congress does nothing to stop that enforcement.

4) Congress trumps the other two branches by having the authorization to remove a president and can keep removing them until they get a president who enforces their laws.  They also can impeach any member of the judicial branch–good behavior can certainly be defined by the legislative branch.

5) As the amended U. S. Constitution now states, the American people vote for the members of Congress and, therefore, control its make-up.

6) States, having limited sovereignty but, nevertheless, a sovereignty recognized by the U.S. Constitution, can challenge any Federal action that does not pertain to expressly written provisions in the Constitution.

III.  So, what’s wrong with the U.S. Constitution?

As stated at the beginning of this essay, there is nothing wrong with the U.S. Constitution as it is written but what is wrong is:                                                                                                    1) The U.S. citizen’s and politician’s understanding of how it is supposed to work and acting as if their wrongful interpretations are constitutionally correct.                                                 2) Political parties prioritizing power over the good of the country.                                             3) Political fanatics, both left and right, who know positively what’s good for the American people.  Unfortunately, these are the people who do the most preaching, and yes, it is almost a religion to them.                                                                                                                     4) Dare I say it but voter incompetence.  I must confess that when voting for a candidate who has very little background to judge any of his future congressional behavior, a voter may not know what to expect, but when voters keep electing the same incompetents election after election something is wrong.                                                                                      The only constitutional change that could possibly avoid these wrongs would be a one party dictatorship (of which a monarchy is an example) simply because they could rule without needing the support of its people.  Need I say more.

February 17, 2010

Presidential Prerogatives

Filed under: U. S. Government — Tags: , , — Ron Toczek @ 4:33 am

The February 17 on-line edition of the Washington Post had a guest blogger, Clement Fatovic, who expounded on the concept of presidential prerogatives, gave examples and delved into the thinking of the founders. As interesting as the info was, he did not explain how congressional laws are written so as to give the president leeway in interpreting them nor how the founders have incorporated this concept into the US Constitution for directives not permitted by any specific law or constitutional provision.

For the first case, consider the Reagan directive banning grants to organizations promoting abortions and operating in a foreign country. This directive was rescinded by Clinton, reinstated by Bush and then rescinded by Obama again. What exists are congressional laws giving the president authority to support organizations providing health services in foreign countries without any provision about abortion: hence, by not saying anything about abortion, Congress has given the president unstated authority to implement the law according to his belief about abortion being a health service or not.

Lincoln would be the best example of the second case since he suspended the writ of habeas corpus and instituted a special tax to pay for the war, neither of these acts were constitutionally permitted.  So how was he  able to enforce these directives?

To answer the question we must look at what the Constitution does not say and also at what is does say.  The Constitution does not give any executive authority or legislative authority to the judicial branch; it also does not give any executive authority or judicial authority to the legislative branch except in the sole process of impeachment.  Since the judicial branch never decided a dispute invalidating these directives and since Congress never passed a law denying the president the authority to enforce these directives nor did Congress impeach the president for enforcing these directives, both of these branches tacitly okayed the directives as legitimate.  Since they were rescinded in short order, there was no need for any action by the other two branches.

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