Two Great Cases: Of Wheat, Weed, and Wickard

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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  1. Avatar Andrew Donaldson
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    Want to start the comments here by publicly thanking Burt for writing this. Not only because it is a great piece, but he had already offered to pinch-hit in Em’s usual Wednesday legal slot this week, and with the death of her sister last night made the timing a blessing. Thank you, Burt.Report

  2. Avatar DensityDuck
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    “amphetamines have been used as stimulants for nearly a century, including, both amusingly and frighteningly, by Adolf Hitler during World War II.”

    People have pointed out that amphetamine use was fairly widespread in the German army before and in the early parts of World War II, meaning that the reason the Blitzkrieg was able to advance so quickly was that the soldiers were all ripped to the absolute tits on meth, and the reason they weren’t as effective later was that the chemical factories had changed from meth to synthetic oil…Report

    • Avatar greginak in reply to DensityDuck
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      Huh. Isn’t that History Channel history? Other countries managed fast advances with nazi meth. We, the brits and russians all had rapid advances only contained by supply problems throughout the war.Report

    • Avatar dragonfrog in reply to DensityDuck
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      I think amphetamines were issued to troops by all belligerents during WWII. The Germans’ use gets more attention (I wonder why…)Report

    • Avatar Burt Likko in reply to DensityDuck
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      I have no knowledge that amphetamines were used to make soldiers go farther or faster in the field. It’s my understanding that they were used by people in leadership positions, pilots, and guards, with the goal of increasing their attention, mental focus, and ability to stay awake. Which I’m sure meth does, at the expense of physical dependence upon continued substance intake, diminishment of impulse control, heightened irritability and emotional volatility, and eventual deterioration of various bodily tissues.

      It’s the idea of wartime leaders suffering the loss of ability to formulate and implement rational judgments which I find most frightening.Report

  3. Avatar Jaybird
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    When you read about the original case of Wickard, you see what was going through the minds of the judges: “if X, then Y! And Y is absurd. Plus, FDR will pack the court. Therefore ~X.”

    And now we’re in this weird place where we’re seeing that if ~X, then ~W. If ~W, then ~V. And ~V sure looks as absurd as heck to me. Well, if Prohibition was absurd, anyway.

    And I’m looking at Y again and seeing that it’s not *THAT* absurd, all things considered.Report

    • Avatar DensityDuck in reply to Jaybird
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      The “Y” in Wickard (Yckard?) makes more sense when agriculture using domestic hand labor is still a big part of the nation’s GDP. The modern equivalent would be, I dunno, a law saying that companies which provide the ability for people to communicate with each other aren’t legally liable if the communication is of illegal material or for an illegal purpose.Report

      • Avatar Jaybird in reply to DensityDuck
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        Maybe so, but he wasn’t feeding the wheat to his domestic hands. Well, horses were hands, I guess.

        But “I made some wheat, I fed it to my horses, it’s not interstate commerce” is, on its face, a true set of statements. And arguing that it’s interstate commerce because it *IMPACTS* interstate commerce makes me wonder if Two People In A Life Partnership engaging in one of the many acts of love is interstate commerce because it arguably impacts sex workers.

        Which would be absurd.Report

      • Avatar Michael Cain in reply to DensityDuck
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        Software. My cartogram software is interstate commerce, even if I’m the only one who uses it, because I use that instead of buying a license for ArcGIS or some other commercial package. Same for all of the open-source tools that went into it: Perl, gcc, the GD library, Mark Newman’s density-equalizing code, PROJ map projection software, POV-Ray, ffmpeg, and no doubt some others I’m forgetting. All interstate commerce under Wickard, as I understand it, because there are commercial equivalents.

        Presumably Congress could make such software illegal tomorrow.Report

    • Avatar DensityDuck in reply to Jaybird
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      One other thing to keep in mind here is that there’s an actual war happening, and nobody wanted to have a court precedent for Doing Things That Let You Avoid Paying Taxes.Report

  4. Avatar PD Shaw
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    Nice piece Burt.

    Personally, I’ve never seen any relevance to the medical use angle here. The ninth circuit finding reads to me as “the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes.” If that’s the case one may as well insert milk, eggs, coca-cola, and machine guns.

    If medical use is important, then who decides what is a medical use? Well before FDR, the SCOTUS had affirmed the federal government’s power under the Pure Food and Drug Act to regulate drugs and adulterated foods in interstate commerce. Em Carpenter wrote a summary last year of the 1916 Coca-Cola decision in which the SCOTUS held that the addition of too much caffeine rendered the drink dangerous. The thread that would be pulled if the federal government’s decisions about public health and safety are not presumptively determinative will undo either a small or large sweater. Which is why I think the issue regarding any item intended for personal use, and not in interstate commerce, eggs and all, cholesterol good or bad.Report

  5. Avatar Michael Siegel
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    Great article, Burt! At some point, we’re going to have to reign in the commerce clause. Using the Court’s “this is the house that jack built” logic, you can basically extend federal power to anything in existence, as the solicitor general himself admitted in the Lopez arguments.Report

  6. Avatar Damon
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    Someone explain to me why prohibition required a constitutional amendment but no other “ban” of drugs didn’t….Report

    • Avatar LeeEsq in reply to Damon
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      The answer is that nobody believed Prohibition required an amendment. They wanted an amendment. The number of people who used drugs was a lot lower. There were all ready a blanket of state and local dry laws that made getting alcohol very hard throughout most of the United States by the time Prohibition passed. The Drys wanted a Constitutional amendment to get rid of the few Wet strongholds and because they thought it would make Prohibition permanent. They didn’t believe that Prohibition required an amendment. They wanted a constitutional amendment because it is harder to repeal than an ordinary law.Report

      • Avatar PD Shaw in reply to LeeEsq
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        Yeah, constitutions can be amended to cement policy preferences on future generations. I think that’s mostly the case here, alcohol laws waned and waxed for generations, depending on whether Democrats or Whigs/Republicans gained power, even if alcohol wasn’t the primary issue in the election. Getting the issue Constitutionalized was a means of taking this off the table, if your side won.

        But there was also a SCOTUS decision in 1890 (Leisy v. Hardin), which applied the dormant commerce clause to prevent Iowa from enforcing its dry laws against beer shipped from Illinois. The Court held that Iowa couldn’t regulate interstate commerce, so to be a dry state, it could only do so via a uniform national law, which was passed and essentially delegated to Iowa the police powers Iowa thought it already had. This nationalized issues, particularly as some thought that delegation back to the states wasn’t an exercise in uniformity, and others thought that the federal law was a good start.Report

        • Avatar LeeEsq in reply to PD Shaw
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          I think the Wets and Drys were evenly split between the two parties. Both had wet and dry factions. The Anti-Saloon League supported a Democratic candidate for governor in the early 1900s because the popular Republican governor, Myron T. Herrick, refused to support dry laws. It was only after Prohibition passed did it get associated more with Republicans than Democrats.

          It should be noted that excise taxes on alcohol were the largest source of federal revenue before the Income Tax amendment passed in 1913. Even if individual politicians supported prohibition, the federal government itself had a vested interest in keeping alcohol legally on a national level at least until they got an alternative revenue stream.Report

      • Avatar Brandon Berg in reply to LeeEsq
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        There were all ready a blanket of state and local dry laws that made getting alcohol very hard throughout most of the United States by the time Prohibition passed.

        Hold on a second. The constitution was an obstacle to federal prohibition, not state and local prohibition. Was there a federal prohibition law prior to the 18th Amendment? The Volstead Act wasn’t passed until several months after ratification.Report

        • Avatar LeeEsq in reply to Brandon Berg
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          I don’t think the Constitution was an obstacle to federal prohibition. The interstate and international trade in alcohol could have been easily stopped under the most conservative readings of the Commerce Clause. As Justice Holmes pointed out in his dissent in Hammer v. Dagenhert. The Drys sought an amendment for stategic purposes rather than legal purposes. They wanted the strongest ban possible. That required a constitutional amendment.Report

        • Avatar LeeESq in reply to Brandon Berg
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          The Drys already got alcohol banned on federal property like army bases before the Volstead Act by the way. The failure to pass anything like the Volstead Act before Prohibition wasn’t due to constitutional limitations. It was because they didn’t have the votes in Congress or the President on their side. It was political limitation.Report

          • Avatar Brandon Berg in reply to LeeESq
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            Congress already had power to regulate federal property. Furthermore, I don’t see how they could have passed an amendment without having enough votes to pass a law enforcing nationwide prohibition. The amendment passed 65 to 20, which would have been enough to override a presidential veto of a regular bill. They had the votes to ban alcohol nationwide right then, but they waited two years for ratification first.

            Everything you’re saying is 100% consistent with Congress wanting to enact prohibition earlier, but recognizing that they didn’t have the authority to do so without a constitutional amendment.Report

            • Avatar PD Shaw in reply to Brandon Berg
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              The Congressional vote count is the same for a Constitutional Amendment and for overriding a Presidential veto. The former also requires approval of two-thirds of state legislatures, which was accomplished in about a year.

              They are not the same vote though. Voting to send a Constitutional Amendment is not a dispositive vote, but a vote that can minimized as letting the country decide. But more importantly, an Amendment cannot be repealed except by two-thirds of the same bodies, so it has much more permanence. (The minimalization of the vote’s effect, coupled with a maximal outcome might be seen as contradictory, and maybe they are but individual Congressmen can choose their own rationales independently)Report

              • Avatar Michael Cain in reply to PD Shaw
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                Two-thirds of the state legislatures to call a convention to propose amendments. Three-quarters of the state legislatures to ratify amendments, even those proposed by a convention. Don’t suppose we’re likely to see a test case, but post Arizona v. Arizona initiative states can presumably ratify an amendment by initiative without the elected legislature doing a thing.Report

              • Avatar PD Shaw in reply to Michael Cain
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                Oops, you’re right. Three-quarters of the states needed to ratify. Admittedly some of this is post hoc analysis, but getting 36 states to ratify in 13 months is pretty incredible given states have their own process and calendar issues. In fact, 8 more states ratified within weeks of meeting the goal, so this makes it seem like an amendment was easier to get approval among the states than in Congress.Report

              • Avatar Michael Cain in reply to PD Shaw
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                Congress seldom sends out an amendment unless it is already quite popular. The Senate finally approved the 17th when the call for a convention needed only a single additional state.

                State legislative session “season” is traditionally from January to May/June. The 17th was submitted to the states in mid-May, 1912. Three states ratified it by the end of June, 1912. Then nothing until the 1913 “season”, when 33 more ratified it between Jan 15 and Apr 8.

                The 26th was submitted on March 23 — still relatively early in the “season” — and ratified in a bit over three months.Report

              • Avatar Michael Cain in reply to PD Shaw
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                …but getting 36 states to ratify in 13 months is pretty incredible…

                Ignoring the initial set of amendments submitted to the states, nine of 16 were ratified in less than a year. Five of those nine before the 18th, four after. Amendments that get to the ratification stage are pretty darned “ripe”.Report

  7. Avatar greginak
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    Wouldn’t the rise of internet commerce lead to a Wickard type concept over the last 20 years. Maybe wheat wasn’t interstate commerce back then. But every single object known to humanity if on sale on amazon or etsy or one those places now. Isn’t everything interstate commerce now. Also see credit cards which are by their nature interstate and international.Report

    • Avatar Brandon Berg in reply to greginak
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      Interstate commerce is a characteristic of specific transactions, not goods. The fact that a good is sometimes sold across state lines does not magically imbue all instances of that good with interstate commerciality. Only the specific transactions across state lines are interstate commerce.Report

      • Avatar greginak in reply to Brandon Berg
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        But aren’t pretty much all the transactions of web businesses inherently interstate. It seems like having a simple purchase be with a credit card in one state with a business incorporated in another state fulfilled in 1 or more states and shipped to a different state is pretty interstatey.Report

        • Avatar Jaybird in reply to greginak
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          Greg, the Supreme Court ruled that California plants grown in California soil with California seeds and watered using California water that were then *GIVEN*, not sold, to Angel Raich in California counted as “Interstate Commerce”.Report

          • Avatar greginak in reply to Jaybird
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            Yeah, that doesn’t really address the point i’m asking about.Report

            • Avatar Jaybird in reply to greginak
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              I would think that the point you’re asking about is completely and totally subsumed by the point that I pointed out.

              Let me demonstrate:

              Greg, could you name three things that are *NOT* Interstate Commerce (according to the standards that the Supreme Court appear to have set as legal precedent)?

              Keep in mind, Wickard established that growing a tomato in your back yard and giving it to your spouse on a salad that you grew in your back yard was interstate commerce and CJ points out above that making the bouncy-bouncy is interstate commerce.

              What isn’t?

              And then we can get back to whether using your credit card to buy something from Amazon might be.Report

              • Avatar greginak in reply to Jaybird
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                Well assuming i have point it’s that everything is interstate commerce now. If we didn’t have a wickard way back then we probably would have got something like it in the last couple decades. Maybe wickard was brought about time travelers from now setting up a legal framework in the past.Report

              • Avatar DensityDuck in reply to greginak
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                greg

                greg

                greg

                greg

                greg

                you’re talking to jaybird like he’s spinning crazy stupid theories about bullshit things that nobody would ever ever ever ever ever ever ever ever actually do

                he’s talking about legal interpretations that actually exist

                the fact that you don’t know about these things doesn’t mean they don’t exist

                “but those things sound stupid!” yes! you are right! you are absolutely right!Report

              • Avatar greginak in reply to DensityDuck
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                I know about those things. I’m asking about the current internet commerce/ credit card model. It seems to me that all that is interstate commerce and nobody is really addressing my question.Report

              • Avatar dragonfrog in reply to greginak
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                Wildly speculating – of Wickard didn’t exist, and interstate commerce actually were treated as commerce across state lines – there would exist today a greater range of options for strictly intrastate commerce.

                More businesses with a web presence would accept orders by postal mail from in-state customers. Intrastate payment methods such as state-specific credit cards would exist. Etc. Because there would be some benefit to them.Report

              • Avatar greginak in reply to dragonfrog
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                But would that happen. I can’t see many businesses wanting to operate an envelope and actual paper as opposed to a neat clean always perfectly functions internet/app ( well mostly perfectly functioning) I think some state, hi Delaware, will always craft their laws to become home to credit cards which gets back to using a financial instrument based in a tiny mid Atlantic coast state seems to make everything interstate commerce.Report

              • Avatar DensityDuck in reply to dragonfrog
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                odd thought: what if national-level businesses were, in fact, enabled by Wickard, in the sense that if the Federal Government could assert that its authority stretched even to private activity then there was no reason to not be that way?

                That is, if everything I do is subject to Federal regulations, then there’s no added cost to me offering my products for sale nationwide; I already have to comply with Federal Government rules, so I’m not having to increase my costs in order to sell things to other states.

                On the other hand, if there’s Federal rules that I don’t have to comply with so long as I stay in the state, then there is a cost to getting bigger, and I might not be able to pay it (sort of like a craft brewery or cottage-license baker trying to grow beyond a certain amount of sales.)Report

              • Avatar Jaybird in reply to greginak
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                everything is interstate commerce now

                Yes.

                This includes growing a tomato in your back yard and eating it.

                This includes having sex with your wife.

                And, if asked for a single example of something that is *NOT* interstate commerce, we cannot come up with a single example.

                This is absurd.Report

              • Avatar Oscar Gordon in reply to Jaybird
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                Exactly, under the logic of Wickard, the only reason X is not currently regulated by the federal government is because the federal government has not seen fit to enact regulation of X.

                This is the problem with expansive definitions of government power, at some point, government is going to use it in a manner that someone finds irksome at best, and a rank injustice at worst.

                Wickard is a decision that needs fixing, and the court, right or left, seem uninterested in fixing it.Report

              • Avatar Jaybird in reply to Oscar Gordon
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                It’s worse than that. We don’t have a populace that believes that there’s anything wrong with this state of affairs.

                Whenever I recommend something like Federalism For Real This Time, you wouldn’t believe the strange bedfellows that show up to explain to me that Trump *SHOULD* have the power he’s wielding.Report

              • Avatar greginak in reply to Jaybird
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                Again you aren’t answering the question i raised about Amazon, credit cards and internet commerce.Report

              • Avatar Jaybird in reply to greginak
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                I could easily see how someone in Colorado, buying a product from someone in Texas, using a credit card from Delaware, using a product from the internet using a company with its main bank of servers in Washington, would count as Interstate Commerce, yes.

                I mean, in a debate, I’d much rather be on the side arguing that it was than on the side arguing that it wasn’t.

                Which brings me back to the question:
                Is a farmer growing wheat in his own fields and feeding it to his own horses Interstate Commerce?Report

              • Avatar greginak in reply to Jaybird
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                Well that is my point. Regardless ( or irrgardless if you are a barbarian) of 90 years ago things changed with the internet to the point where almost everything is interstatey. In some ways wickard is irrelevant given the present.Report

              • Avatar Jaybird in reply to greginak
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                You use the word “irrelevant” where I would use the phrase “established precedent”.Report

              • Avatar greginak in reply to Jaybird
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                You think i’m talking mostly about Wickard when i talking about now. I’m not asking about precedent. I’m talking about our current enviro, not grinding my gears on wickard. I’m not getting into the legal bits just offering an observation about the current economy.Report

              • Avatar Jaybird in reply to greginak
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                Unfortunately, the present exists as it does because it is built upon the foundation of the past.Report

              • Avatar greginak in reply to Jaybird
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                SMH….yeah i watch Dr Who, i know how time works.Report

              • Avatar Jaybird in reply to greginak
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                Then the claim that we don’t have to take Wickard into account for how stuff is now because, probably, the same stuff would have happened is, at best, an extraordinary claim and the burden of proof for this claim is on you. You don’t just get to assume it.

                Wickard, for example, was mentioned during Gonzales v. Raich.

                We can’t pretend Wickard doesn’t matter anymore.Report

              • Avatar Jaybird in reply to greginak
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                Dragonfrog addressed this particular point above.

                And did a really good job, might I add.Report

  8. Avatar CJColucci
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    If the interstate commerce power allows everything to be regulated, explain Sebelius, the Obamacare case.Report

    • Avatar Jaybird in reply to CJColucci
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      “Judicial Activism”.Report

    • Avatar Michael Cain in reply to CJColucci
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      IANAL, so the usual caveats apply… Wickard says producing and consuming a thing for which there is an interstate market — wheat — is participation and can be regulated. Sebelius says that neither producing nor consuming a thing — medical insurance — is not participation, so can’t be regulated on Commerce Clause grounds.

      My suspicion is that Wickard arose, as others have mentioned, due to a combination of special circumstances — the Great Depression, WWII, and a federal government that still depended on “command and control” regulatory strategies. The last one is important. Today we (attempt to) stabilize wheat prices by paying farmers to take land out of production, with payments set to an implicit desired wheat price. Assuming the market is indeed a distributed optimization algorithm, the amount of land in production should yield a market price equal to the implicit price in the payments. Idle-land payments put us back in another part of Sebelius — Congress can spend its money on whatever it chooses.Report

    • Avatar Burt Likko in reply to CJColucci
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      Sebelius is not a Commerce Clause case. It is an interpretation of the Religious Freedom and Restoration Act.Report

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