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President Obama has made it clear that he is determined to continue advancing his "progressive" agenda, regardless of constitutional limitations on his powers. He wants to assert himself by issuing more and more executive orders.
The most ominous sign of things to come came on March 16, 2012, when President Obama signed the bill into law.Executive Order 13603über „Preparation of national defense resources“.
This 10-page document is a blueprint for a federal takeover of the economy that would lessen the impending takeover of Obamacare.Health insuranceBusiness. Specifically, Obama's plan calls for taking control of:
* "All goods and products that can be ingested by humans or animals"
* "All forms of energy"
* "All forms of civil transport"
* "All usable water from all sources"
* "Health resources: medicines, biological products, medical devices, materials, facilities, supplies, services and health equipment"
* Forced labor (or "conscription", as the executive order delicately refers to conscription)
In addition, federal officials would "enact regulations for prioritizing and allocating resources."
Any government bureaucracy "will act as necessary and appropriate".
Certainly much of this language has appeared in the national security executive orders that past presidents have regularly issued since the beginning of the Cold War.
But more than previous executive orders on national security, Obama's 13603 seems to describe a potentially totalitarian regime obsessed with controlling everything. Obama's executive order doesn't go out of its way to justify the destruction of freedom, it doesn't go out of its way to explain how the accumulation of totalitarian control would allow the government to effectively combat cyber sabotage, suicide bombings, chemical warfare, nuclear missiles, or any other possible threat. Responding to threats is likely to be more difficult as totalitarian regimes suffer from the economic chaos, colossal waste, massive corruption and bureaucratic infighting that are the inevitable consequences of extreme centralization. Such problems plagued Fascist Italy, Nazi Germany, the Soviet Union, Communist China, and other regimes. Totalitarian control would likely trigger resistance movements and underground networks like those that developed in Western Europe during the Nazi occupation. Totalitarian control could lead to more political unrest than in the Vietnam War era of the 1960s. There would likely be a serious brain drain if talented people with critical skills escaped to freedom, wherever that might be. Canada?
Executive Order 13603 says nothing about upholding the Constitution or protecting civil liberties.
Obama's executive order seems to assume that the next war will be like World War II or World War I, where huge armies of unskilled recruits fought each other. However, current trends suggest that future conflicts are likely to involve fewer military personnel: highly skilled personnel perhaps thousands of miles from a battlefield, remotely operated drones, unmanned combat helicopters, unmanned ground vehicles, unmanned ships , mobile security robots and others. military technologies.
While Obama's 13603 was no different than previous executive orders on national security, it is more troubling because it was signed into law by the president who pushed Obamacare and rampant spending bills through Congress, racked up $5 trillion in debt, and engaged with hostiles. robust "progressives". "surrounded the private sector and the United States as we know it.
Under what circumstances, one might ask, would a president attempt to execute this bold plan?
Executive Order 13603 says with ominous ambiguity: "across the spectrum of emergencies."
Well, the United States is already in a state of national emergency, declared by President George W. Bush on September 14, 2001 and extended by President Obama last year.
To better understand the potentially explosive implications of his plan, let's take a tour of the shadowy world of executive orders, a type of presidential power most people know little or nothing about.
Many presidents have pushed to extend their powers beyond constitutional limits, especially in times of crisis. The easiest way to do this is to issue executive orders. A president need not propose executive orders that debate issues, hold hearings, or solicit votes. An executive order can be issued in minutes, behind closed doors and away from bright light.
An executive order can be about all kinds of things big and small.
Paul Begala, who was an adviser to President Bill Clinton, is reported to have said, "Painted, law of the land, cool."
And the constitution? It broadly describes the power of the president. There is nothing in the Constitution that authorizes an executive order or restricts what a president can do with it.
The executive orders derive from "implied constitutional and statutory authority," the Congressional Research Service reported. “If issued under a valid claim of authority and published in theFederal registration, implementing regulations may have the force and effect of law.”
The Supreme Court tried to establish some restrictions. It affirmed the principle that (1) an executive order "shall be derived from an act of Congress or the Constitution itself" and (2) "an executive order must not be inconsistent with the express or implied will of Congress."
But many executive regulations find themselves in a twilight zone of questionable constitutional legitimacy, if not outright disregard for the Constitution, especially when it comes to legislation without congressional approval.
Very few of the thousands of executive orders have been legally challenged.
Members of Congress don't always seem to know a lot about them. At one point, for example, they were surprised to discover that there were executive orders giving the president enormous reserve powers that could be implemented on the spot.
Sometimes a president would issue executive orders to bypass Congress if his party did not control it. But Franklin Delano Roosevelt issued more executive orders than any other president, starting in his early years when he was most popular. Executive orders often looked like they were issued because a president was in a hurry, and often with unfortunate consequences. An executive order is not a reliable cure for serious problems.
Executive orders date back to the beginnings of our country, although they weren't called that. They were usually called proclamations.
Until the early 20th century, executive orders were generally not documented. They were addressed to a specific government agency that had the only copy. No one seemed to know how many executive orders there were. Back in the 1930s, there was a report published in theNew York Times, and stated that "there are no readily available means of determining the true texts and history of a thousand or more executive orders issued since March 4, 1933."
In 1907, the Department of State began compiling and numbering executive orders dating back to Abraham Lincoln's on October 20, 1862. This became known as the Executive Order1. As of this writing, the most recent is Obama's Executive Order 13603.
President George Washington's first proclamation was on October 3, 1789. He said, "I have been requested by both houses of Congress, through their joint committee, to recommend to the people of the United States a day of public thanksgiving. " Congress
Washington's declaration of neutrality was not approved by Congress. Issued on April 22, 1793, it declared that the United States would be neutral in the war between France and Great Britain that had begun two months earlier. Cabinet members in Washington, including Secretary of State Thomas Jefferson, agreed that the United States was too fragile to engage in another war.
Abraham Lincoln expanded the president's powers through proclamations and executive orders. He did so in the name of suppressing the rebellion rather than waging war, as the Constitution gave Congress the power to declare war.
Lincoln upheld habeas corpus, the legal action that demands the release of a prisoner if authorities do not immediately press charges and proceed to a jury trial, giving the defendant a chance to prove his innocence.
In April 1861, a Maryland militia officer named John Merryman was arrested at Fort McHenry in Baltimore. He is said to have damaged Union facilities and trained Confederate soldiers. His attorney obtained a writ of habeas corpus from Chief Justice Roger B. Tawney, who ordered George Cadwalader, commander of Fort McHenry, to bring Merryman in and explain the facts and legal basis of the arrest. Cadwalader refused, saying that Lincoln had suspended habeas corpus. Tawney cited him for contempt, but a police officer was unable to enter the fort to serve the contempt citation. Tawney wrote what became known asjuerguista ex parteAn opinion which reads in part that "if the authority which the Constitution has entrusted to the Department of Justice can be usurped on any pretext by military power, the people of the United States no longer live under a government of law."
Lincoln went to Congress, offered a shaky defense of his action, and expressed his hope that Congress would "ratify" his action. Pulitzer Prize-winning historian Mark E. Neely, Jr. noted that "the president seemed to agree that the legislature was the proper body to suspend habeas corpus". On September 24, 1862, Lincoln issued a proclamation officially suspending habeas corpus, which meant the government could detain people indefinitely. Lincoln "managed the home front in part", Neely wrote, "through military arrests of civilians, thousands upon thousands of them".
Lincoln issued executive orders to expand Union territory under military control, particularly in southern Illinois, Indiana, and Ohio, where the "Copperheads" operated. In 1864, the Union Army arrested Lambdin Milligan and four others in southern Indiana. They were accused of conspiring to free Confederate prisoners of war. A military court sentenced the men to death, but they appealed their constitutional right to habeas corpus. After the Civil War in 1866, the Supreme Court ruled that Indiana had not been invaded and that the civil courts were functioning, giving Milligan and the others the right to a jury trial. Justice David Davis wrote, "The Constitution of the United States is a law of rulers and people, both in war and peace, and protects all classes of people at all times and in all circumstances."
Historian James G. Randall said: “No president has exercised the power of executive order and executive order, independent of Congress, to the extent [Lincoln]. It wouldn't be easy to say what Lincoln saw as the limit of his power."
Lincoln's most famous executive order was the Emancipation Proclamation. He hoped to spark a slave rebellion in the Confederacy and make it easier for the Union to win the Civil War. So, on September 22, 1862, he issued a preliminary Emancipation Proclamation. It applied to any state that had not returned to the Union by January 1, 1863. No state returned. It was at this point that Lincoln issued the historic Emancipation Proclamation. It applied to Confederate slaves, territory the Union did not control. It did not abolish slavery or extend citizenship to former slaves, but it did make the abolition of slavery an objective of war.
The expansion of federal power in peacetime began with Theodore Roosevelt, who issued 1,006 executive orders, the most of any previous president. They performed a variety of administrative functions, notably the disposition of state lands.
TR emphatically rejected the view that "what was necessary for the nation could not be done by the president unless he found specific authorization to do it ... it was not only [the president's] right, but also his duty to do so. it." . whatever is necessary required by the Nation, except where such action is prohibited by the Constitution or by-laws”.
TR also said, "I think [the presidency] should be a very powerful position, and I think the president should be a very strong man who doesn't hesitate to use whatever power the position gives him." He continued, "I believe in a strong leader. I believe in power."
According to biographer Henry Pringle, “it rarely occurred to Roosevelt that the duty of the executive branch was to carry out the mandates of the legislature. As far as possible, he reversed the theory. Congress, he said, must obey the president. He wanted the Supreme Court to obey him. Roosevelt acknowledged: "I greatly expanded the use of executive power."
At times, TR seemed drunk with power as he commented, "I don't think there's any harm in concentrating power in one man's hands."
Woodrow Wilson issued 1,791 executive orders. For example, Executive Order 1810 (August 7, 1913) prohibited anyone from piloting a flying machine or balloon over the Panama Canal Zone. Wilson issued Executive Order 1860 (11 November 1913) to dictate interest rates for the Canal Zone; a surprising number of Wilson's executive orders concerned the administration of this small territory.
Most of Wilson's executive orders were issued during World War I. For example, on April 14, 1917, he issued Executive Order 2594 establishing the Committee on Public Information—War Propaganda. On April 28, he issued Executive Order 2604 to censor messages sent over transatlantic cables. Executive Order 2679-A (August 10, 1917) established the Food Administration. Executive Order 2697 (September 7, 1917) required any person wishing to export coins, bullion, or currency to submit an application in triplicate to the nearest Federal Reserve Bank. Executive Order 2736 (October 23, 1917) authorized the Administrator of Food, Herbert Hoover, to requisition food. Executive Decree 2953 (September 12, 1918) authorized the disposal of assets seized by the Trade with the Enemy Law.
Franklin D. Roosevelt issued 3,723 executive orders. In his inaugural address, he said, "I will ask Congress for the only tool left to deal with the [depression] crisis: broad executive authority to wage war in emergencies as great as the power I would be given if they were actually ambushed. by a foreign enemy.
On March 6, 1933, Roosevelt issued Proclamation 2029, citing Wilson's "Dealing with the Enemy Act" to justify closing banks for a national bank holiday.
Roosevelt sent his emergency banking bill to the House of Representatives and it passed after just 38 minutes of debate, apparently without members reading it.
In 1933, FDR issued Executive Order 6102, which made it illegal for Americans to own gold bars or certificates, even though gold has historically offered the best protection against inflation and currency crises. Violators faced a fine of up to $10,000 or up to 10 years in prison.
With economic fascism popular in the early 1930s, Roosevelt issued executive orders suspending antitrust laws and establishing German-style cartels in dozens of industries, restricting overall industrial production, allocating market shares, and setting wages and prices above market price. . Above-market wages discouraged employers from hiring, and above-market prices discouraged consumers from buying. By virtue of these application rules:
* 6204-A, for rayon fabric
* 6205-C, for the silk industry
* 6216, for the shipbuilding and repair industry
* 6242-B, for electrical fabrication
* 6248, for corset and bra industry
* 6250, for theaters
* 6253, for the fishing tackle industry
* 6254, for the steel industry
* 6255, intended for the forest products industry
* 6256, was for the oil industry
* 6543-A, for the drapery and upholstery industry
With executive orders, Roosevelt multiplied the number of government bureaucracies. He established the Civilian Conservation Corps by issuing Executive Order 6101. The Public Works Administration followed with Executive Order 6174. Then came these Executive Orders:
* 6225, Central Statistics Office
* 6340, da Commodity Credit Corporation
* 6420-B, building administration
* 6433-A, National Emergency Board
* 6470, Public Works Emergency Housing Company
* 6474, Federal Bureau of Alcohol Control
* 6514, Electric Homes and Farms Authority
* 6581, Export-Import Bank of Washington
* 6623 Federal Institute for Labor Stabilization
* 6632, das National Recovery Review Board
* 6770, from the Industrial Emergency Committee
*6777, National Resource Board
* 7027, the Resettlement Administration
*7034, construction progress management
When one reflects on the executive regulations of FDR's New Deal, one thing seems clear: while some of the programs provided relief to desperate people, they failed to bring about a sustained revival of job creation in the private sector. In fact, aid spending was the main reason why government spending doubled and taxes tripled during the New Deal era (1933-1940). Where did the tax revenue come from? The federal government's biggest source of revenue was the federal tax on cigarettes, beer, soft drinks, gum, and other cheap indulgences consumed disproportionately by low- and middle-income people. This means that the cost of assistance programs for low- and middle-income people has been borne predominantly by low- and middle-income people. In May 1939, FDR's Treasury Secretary Henry Morgenthau complained, "We're spending more than ever and it's not working. After eight years of this administration, we have the same level of unemployment as when he took office."
Post-New Deal unemployment averaged 17% and did not decrease significantly until the government began pulling over 10 million men out of the civilian workforce through World War II conscription.
In 1974, the Senate Committee on National Emergencies and Delegated Emergency Powers announced that “Since March 9, 1933, the United States has been under a declared national emergency. There are now effectively four states of emergency declared by the president. In addition to the national emergency declared by President Roosevelt [during the Great Depression], there is also the national emergency declared by President Truman on December 16, 1950 during the Korean conflict, and the national emergencies declared by President Nixon on December 23, 1950. March 1970 and August 15, 1971
“These proclamations enforce 470 federal statute provisions that give the president extraordinary powers, normally exercised by Congress, that affect the lives of American citizens in many general ways... The president can confiscate property, organize and control the means of production. , seize goods, confiscate goods, send military forces abroad, impose martial law, seize and control all transportation and communications, regulate the operations of private companies, restrict travel, and in countless ways control the lives of all Americans . ”
As a result of these revelations, Congress passed the National Emergencies Act in 1976. It limited the emergency declared by a president to two years, renewable.
A commentary on two important Nixon executive orders.
On August 15, 1971, he announced his New Economic Policy, which turned out to be what Bolshevik firebrand Vladimir Lenin cited as one of his misadventures. Nixon issued Executive Order 11615, which stated, "To stabilize the economy, reduce inflation, and minimize unemployment, it is necessary to stabilize prices, rents, wages, and salaries." single digits in the 1970s, and caused chronic shortages, rationing and business interruptions, making it difficult to create jobs in the private sector. At the same time, by keeping prices below the market, the controls encouraged producers to offer less and consumers to ask for more. Hence the bottlenecks.
Although this price control experiment was a failure, Nixon decided to try again. On June 13, 1973, he signed Executive Order 11723, calling for a price freeze while continuing to control wages, salaries and rents.
Nixon's executive orders made a bad situation worse. For example, its head of price controls, C. Jackson Grayson, confessed: “Timber controls began to lead to artificial middlemen, black markets and sawmill closures. Companies with low base period profit margins began to consider selling those with higher base periods, sending capital abroad, or reducing efforts. Cases of false job updates, which were actually "raises" in disguise, have been reported. To avoid markup controls, companies considered discontinuing products where costs, and therefore prices, had increased. And there were shortages of certain commodities (such as molasses and fertilizers) because artificially suppressed domestic prices allowed higher world prices to draw domestic supplies abroad.
In 1999, Bill Clinton went to war with executive orders. He issued Executive Order 13088, which declared that the governments of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Republic of Serbia posed "an exceptional threat to the national security and foreign policy of the United States". national emergency." He ordered the seizure of properties in the United States from those governments and prohibited Americans from doing business with those governments. Clinton's Executive Order 13119 declared the region a war zone. Executive Order 13120 required military units set aside for the active service.
None of this was approved by Congress. Instead, Congress voted against a resolution declaring war. Congress would not "authorize" the air war. Clinton bypassed Congress and kept America at war. When NATO announced that it had ended on June 10, 1999, Clinton ordered American soldiers to serve in the Kosovo Force. There are still some American soldiers in danger.
Once again we find ourselves in an indefinite national emergency that was declared on September 14, 2001 and has since been extended. President Obama told Congress that he would renew it again. That means the president still has reserve powers for hundreds of statutes.
Well, how can an executive order be revoked?
First, a writ of execution can be revoked by another writ of execution. All presidents are likely to revoke some of their predecessors' executive orders.
For example, Bill Clinton's Executive Order 12919 of June 3, 1994 addressed national security. He fully or partially repealed more than a dozen executive orders issued between 1939 and 1991.
President Obama revoked Executive Orders 13258 (2002) and 13422 (2007), both issued by George W. Bush, and amended Executive Order 12866 (1993), issued by Bill Clinton. These executive orders had to do with regulatory processes.
While executive orders are irresistible to presidents because they can be issued quickly, they can also be quickly revoked.
Second, an executive order can be repealed by law. A 1999 congressional hearing on executive orders before the House Rules Committee, the subcommittee on legislative and budgetary procedures, found that every president since Grover Cleveland had amended or repealed some of their executive orders through legislation.
The Congressional Research Service cited several recent examples: “In 2006, Congress repealed part of an executive order dated November 12, 1838, reserving certain public lands for lighthouse purposes. Congress has also specifically repealed executive orders in their entirety, such as the Energy Policy Act of 2005, which repealed an executive order dated December 13, 1912, creating Naval Petroleum Reserve Number 2." An executive order by President George H.W. Bush's plan to establish a human fetal tissue bank for research was rescinded when Congress declared that "the provisions of Executive Order 12806 shall have no legal effect."
In addition, Congress has denied the necessary funds to implement several executive orders.
When a president's opponents have a veto-proof majority in Congress, the threat of passing legislation can prevent a president from issuing a controversial executive order. For example, Christopher J. Deering and Forrest Maltzman of the University of Washington noted: “In 1993, President Clinton quickly backed off an executive order prohibiting the military from banning gay men when it became clear that Congress was overturning a legislative order. decision. measures."
In recent decades, however, Congress has sanctioned the expansion of arbitrary presidential powers. For example, since the Japanese bombing of Pearl Harbor more than seven decades ago, Congress has not used its power to declare war, even though the United States was involved in a number of wars during that period.
Congress passed the War Powers Resolution (1973) after the undeclared Vietnam War. The law required the president to obtain Congressional approval before going to war and to keep Congress informed of what was going on. Presidents continue to engage in undeclared and unauthorized wars.
Third, an executive order can be overturned by a federal appeals court or the Supreme Court.
However, both the courts and Congress generally bowed to the president's expanded powers.
For example, during World War II, FDR issued Executive Order 9102 (1942), establishing the War Relocation Authority to forcibly relocate Japanese Americans from the Pacific Coast to "relocation camps" during the war. Second World War. Isso was confirmed by the Supreme Court with a score of 6:3Korematsu vs United States, 323 US 214 (1944). Judge Hugo Black wrote the majority vote. He stated that protection against potential Japanese espionage was more important than protecting Fred Korematsu's individual rights.
Also in recent times, the Supreme Court has generally left executive order cases to the president. In 1979, Iranian revolutionaries captured 52 Americans working at the US embassy in Tehran and held them hostage for over a year. President Jimmy Carter issued an executive order declaring a national emergency and blocking Iranian assets in the United States. Dames & Moore, a US contractor that owed more than $3 million for work done in Iran, filed suit seeking payment. After Ronald Reagan was sworn in as president, he signed an executive agreement with Iran, bypassing the Senate, which had constitutional authority to ratify treaties. The executive agreement stated that the hostages would be released if US court trials against Iran were suspended. On February 24, 1981, Reagan signed Executive Order 12294 suspending such trials.
Dames & Moore filed another lawsuit alleging that the President lacked the authority to do so. In Dames & Moore v. Regan, 453 US 654 (1981), the Supreme Court implicitly asserted the President's authority to negotiate executive agreements and expressly asserted his authority to issue an executive order suspending court proceedings. Chief Justice William Rehnquist cited the statute "indicating congressional approval of broad scope for executive action in circumstances such as those presented in this case... . approved the President's action, it cannot be said that the President does not have the power to arbitrate such claims."
There seem to have been only two cases where a court overturned an executive order.
This happened with Harry Truman's Executive Order 10340 of 1952, which instructed the Secretary of Commerce to break a steelworkers' strike by seizing privately owned steel plants. Truman insisted that a prolonged strike would undermine the government's ability to fight an unreported "police action," as the Korean War was dubbed.
The confiscations of the steel plants were contestedYoungstown Sheet & Tube por Sawyer, 343 US 579 (1952).
The Attorney General of the United States has stated that Article II, Section 2 of the Constitution "constitutes a grant of all executive powers of which the Government is capable".
Supreme Court Justice Robert Jackson was incredulous. He said: "The example of such unlimited executive power which must have most impressed the forefathers was the prerogative of King George III. The description of his crimes in the Declaration of Independence makes me doubt that they created their new executive power at their own discretion. image. The examples from continental Europe were no more attractive. And if we look for instructions from our time, we can only compare them with the executive powers of governments we scornfully call totalitarian. I cannot accept the view that the clause is an integral part of the granting all conceivable executive powers.
In a 6-3 decision, the Supreme Court rejected all arguments advanced in support of Truman's seizure: "The Executive Order is not authorized by the Constitution or the laws of the United States and cannot be maintained... expressly or implicitly authorizes the President to take possession of this property as he did here... In considering the Taft-Hartley Act in 1947, Congress refused to authorize administrative seizure of property as a method of preventing work stoppages and resolving labor disputes... The President's authority to impose such an order in the circumstances of this case cannot be enacted implied in the sum of his powers under Article II of the Constitution...Order cannot be maintained as an exercise of the military power of the President as Commander-in-Chief of the Armed Forces...Nor can order be maintained under o various provisions of Article II of the executive power vested in the President... The power to be exercised here is the legislative power which the Constitution confers exclusively upon Congress, in good times as in bad... the power of the president to see that the laws are faithfully carried out, refutes this notion, he will be a lawgiver”.
President Clinton's 12954 was the other instance of an executive order known to have been overturned by a court. Clinton prohibited the federal government from hiring contractors to replace strikers. He argued that strikers could turn violent if replaced, so it would be better to appease strikers and support union monopolies in the workplace by banning replacement workers. Attorney Charles T. Kimmett, writes inYale Law Review, defended the president's position, but recognized union violence. “As the striking Greyhound workers were permanently replaced,” he wrote, “replacement bus drivers and conductors became targets for sniper fire. Likewise, the Hormel Company's decision to permanently hire advanced replacements was met with such violence that the Governor of Minnesota called out the National Guard."
United States Court of Appeals for the DC Circuit Clinton's Executive Order at General onChamber of Commerce v. Rich,74 F.3d 1322 (DC Cir. 1996). This was an important case, as there have been over a hundred executive orders regulating private employment over the last seven decades, and legal challenges have been rare.
Clinton's Executive Order 12954 conflicted with a 7-0 decision by the US Supreme Court.NLRB contra Mackay Radio & Telegraph Company, 304 US 333 (1938), . In part, this court ruled that "[the employer] is not obliged to dismiss contractors to fill strike positions".
D.C. District Judge Laurence Silberman said, "We find it untenable to conclude that there are no court-enforceable limitations on presidential actions [which allow the president] to circumvent numerous statutory limitations on the powers of government."
As all this experience suggests, executive orders make it easier for presidents to consolidate more power and harder for anyone to stop it. People expect a president to do good, but when he or she does bad (remember, there is no reliable way to keep bad or incompetent people out of power), Americans will turn to them in a very bad way.
Let's hope that President Obama never tries to implement his Executive Order 13603, the plan to take control of our economy and our lives. But the plan is ready and waiting for the right moment. Americans may wake up one morning to the news that Obama is suddenly activating the plan because of cyber sabotage, a terrorist attack, a nuclear crisis in Pakistan, a war with Iran, or some other state of emergency, perhaps what he extended last year. . Or maybe the president just decides he needs an "October surprise" to win the fall election.
jim powellA senior fellow at the Cato Institute, he is the author of FDR's Folly, Bully Boy, Wilson's War, Greatest Emancipations, Gnomes of Tokyo, The Triumph of Liberty, and other books.