McDonald v. City of Chicago puts the Court's conservatives to a choice: Guns or federalism? Today's conservatives say that the Constitution makes both of them important but so far they haven't come up with a decent account of why one or the other should prevail, and I don't think they can.

The Rehnquist Court engaged in a modest "Federalism Revolution," and some conservative scholars were annoyed when the Court went with drug laws instead of federalism in upholding the national ban on the use of marijuana for medical purposes in Gonzales v. Raich. These cases might be described as dealing with national power exercised by Congress, and of course no national statute is involved in McDonald. But when the Court has discussed each of the constitutional provisions available as a basis for striking the Chicago ordinance down, it has noted their implications for federalism. In the Slaughterhouse Cases, the Court rejected an expansive interpretation of the Privileges or Immunities Clause - the one some conservatives are asking the Court to adopt in McDonald - because, it said, such an interpretation would authorize Congress to use the Fourteenth Amendment's fifth section to enforce a new and large set of rights. And, Justice Potter Stewart once described the Due Process Clause as part of a vast expansion of national power - legislative and judicial - during Reconstruction.

Were conservatives truly concerned about federalism, they might want to think twice about their position in McDonald. Winning the case, particularly on Privileges or Immunities grounds, would give Congress a lot more power than they think it ought to have. And it should be obvious, although it hasn't been a major part of the discussion of McDonald that striking down the Chicago ordinance is an example of judicial activism as conservatives usually define it when questioning Supreme Court nominees. (Saying that we shouldn't worry about expanding congressional power by expanding the Fourteenth Amendment because the Court is always ready to strike down congressional statutes on federalism grounds simply reinforces the conclusion that McDonald will expand judicial power - and betrays an odd confidence, from conservatives, in the courts.)

Another definition of activism is tied to Chief Justice Roberts's silly balls-and-strikes metaphor. That metaphor makes the modest sense it does if conservatives mean that judges should be activist and strike statutes down when they really do violate the Constitution, and should be restrained and uphold statutes when they don't. But the very fact that there's a fair amount of disagreement among conservatives about whether the Chicago ordinance is unconstitutional because it violates the Privileges or Immunities Clause or because it violates the Second Amendment as incorporated through the Due Process Clause shows that the Court's not going to be simply calling balls and strikes. Think of how the problem might be posed for two umpires. Both say that the pitch was a strike, but one says that it was a strike because the ball was in the strike zone when it crossed the front edge of the plate and the other says that it was a strike because the ball was in the strike zone when it passed the back edge of the plate into the catcher's mitt. The balls-and-strikes metaphor is supposed to show that judges actually don't exercise judgment when they interpret the Constitution. But the positions urged on the Court by conservatives in McDonald show that judgment can't be avoided.

The widespread judgment - which I share - that the Court will invalidate Chicago's gun control ordinance is interesting because it shows that everyone seems to agree that for conservatives federalism plays second fiddle to substantive concerns. Most conservatives will approve that invalidation if it occurs and will condemn the Court's failure to invalidate it if, surprisingly, the Court does not do so. That, I suggest, sheds some light on what contemporary constitutional conservatism is - a "theory," or more accurately a set of attitudes, about what good public policy is, masquerading as something else. So, when Republicans in Congress say that federalism somehow stands in the way of adopting health care reform (because it lies outside the powers granted to Congress and therefore reserved to the states), we ought to be pretty suspicious.

Throughout constitutional history federalism has been a mask for substantive policy concerns, and it still is. Conservatives like federalism when they can say it prevents the national government from reforming health care. They don't like it when it prevents the government from telling states to keep their hands off regulating businesses whose products harm consumers. They like federalism when it lets each state choose how many guns a person can buy each month. They don't like it when it lets cities choose to restrict gun ownership. The conservative choice of guns over federalism isn't surprising, but it does tell us something about conservatives who invoke federalism to oppose other national initiatives: They don't like the initiatives on policy grounds, and they're hoking up the federalism argument because they think it will play better with the public. 

In its 2008 decision in District of Columbia v. Heller, a closely divided Supreme Court, applying what the majority characterized as "the original understanding of the Second Amendment," invalidated D.C.'s prohibition on the possession of handguns. Relying on eighteenth-century sources, the Court defined the Second Amendment right to "keep and bear arms" as "the individual right to possess and carry weapons in case of confrontation," and held that a prohibition on handguns was unconstitutional. The Court cautioned, however, that the Second Amendment is only a limitation on the powers of Congress, and reserved decision on the question whether it also applied to state and local governments by virtue of the Fourteenth Amendment. The Court noted that its nineteenth-century decisions had refused to apply the Second Amendment to state and local laws, but added that these cases "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

The Court will now confront the applicability of the Second Amendment to state and local laws in McDonald v. City of Chicago. At issue is the constitutionality of Chicago's handgun ban. Chicago and its amici rely on the approach to incorporation of the first eight amendments within the Fourteenth that the Court has taken for nearly a century - asking whether a particular right is "implicit in the concept of ordered liberty." Under this approach, many of the rights in the first eight amendments have been incorporated within the Fourteenth Amendment's Due Process Clause - but not all.

Chicago and its amici argue that gun control is a classic example of the argument for federalism. Although the benefits of widespread firearm-ownership in terms of sport, self-defense, and other legitimate pursuits are experienced widely, its costs are concentrated in big cities, which face enormous risks of firearms violence. Urban street gangs, for example, frequently establish territorial drug distribution monopolies enforced by the violence. Firearms are essential to gangs in this endeavor - they enable gangs to police their turf and defend themselves against rivals. Indeed, the crime wave that hit major cities in the late 1980s and early 1990s was largely a function of firearms violence produced as gangs competed to control emerging crack cocaine markets. Since then, a series of studies has demonstrated that police crackdowns targeting those who carry firearms at "hot spots" of urban crime are effective at combating violent crime; New York City has been a particularly conspicuous success. Handgun bans in particular inhibit urban gun markets with surprising success. Recognizing a right to keep and bear arms in the central cities, however, could grant gangs effective immunity from these tactics, imperiling efforts to fight urban crime.

The petitioners in McDonald, supported by the National Rifle Association and other amici, spend little time considering the implications of a right to keep and bear arms for the nation's cities. Instead, they focus on evidence that the authors of the Fourteenth Amendment intended to protect the Bill of Rights against the states under the Fourteenth Amendment's Privileges or Immunities Clause, which protects the "privileges or immunities" of citizens. They attack the Supreme Court's 1872 Slaughter-House decision as incorrectly limiting the scope of the Fourteenth Amendment. Many conservatives cheer this proposed reinvigoration of the Privileges or Immunities Clause, hoping that it will produce constitutional protection for nineteenth-century conceptions of freedom of contract and limited government. Many liberals cheer this same proposal, hoping that it will supply textual grounding for unenumerated constitutional rights they favor, such as the right to abortion.

The history of the Fourteenth Amendment is notoriously untidy. Although there is good evidence that a few of its authors intended its Privileges or Immunities Clause to protect the Bill of Rights, most legislators ignored the issue. There is little evidence that the ratifying states understood the Fourteenth Amendment to incorporate the Bill of Rights; the ratification debates focused on discrimination against the newly freed slaves. Leading legal scholars of the era did not understand the Fourteenth Amendment to incorporate the Bill of Rights; nor did the Supreme Court in its Reconstruction-era decisions.

In embracing originalist constitutional interpretation in Heller, the Court explained that what is critical is not the intent of the drafters, but rather "the public understanding of a legal text." Whether the public developed an incorporationist understanding of the meaning of Privileges or Immunities Clause is, however, open to great doubt. Just as the Court in Brown v. Board of Education termed the evidence of the original meaning of the Fourteenth Amendment "inconclusive" when it came segregation, the conflicting historical evidence on incorporation, coupled with nearly a century's worth of precedent taking a nonoriginalist approach to incorporation, may well lead the Court to reject the historical evidence as a basis for decision.

If the Court deems history inconclusive, it will have to decide whether to deem the Second Amendment an aspect of "ordered liberty." Most observers seem to think that the same five justices who embraced a strong conception of firearms rights in Heller will apply those same rights to the states in McDonald. Still, in McDonald, unlike Heller, federalism will come into play. If the Court is convinced that gun control is one of those issues best resolved at the local level, McDonald could produce an outcome strikingly different from Heller.

[Image via Al_HikesAZ.]

As Americans, we often revel in the strengths and virtues of our democratic system. True, we often revile the politicians, their many antics, and the political penumbra that surrounds our nation's capitol, but we take great pride in our democratic system and its carefully constructed balance of power created by the foresight of our founding fathers. We've often called our democracy our greatest export. We've fought wars to bring it to other countries. We believe it is the highest state of enlightened political evolution.

And to a certain extent we are correct. But our pride makes us believe our democracy is some indestructible concept that will continue to function for all eternity by virtue of its initial ingenuity. Unfortunately, we fail to recognize one critical ingredient that has been a constant necessity for the continuity of our democratic system: Respect. Respect for our democracy. The history of our Constitution is a cornucopia of political conflict incensed by deeply emotional commitment to juxtaposed moral values - slavery, civil rights, and abortion, just to name a few. Nevertheless, our democracy endured these nation-splitting conflicts because the players involved knew that the foundations of our democracy were not in the words of our laws, but in the actions of those in power. They knew that blind adherence to procedural rules in the unrelenting pursuit of political victory must give way at some point to the recognition that an unyielding pursuit of power will ultimately disturb the delicate balance at the center of our democracy.

The respect for that imperative delicate balance of power has been significantly eroded by the overuse of the procedural filibuster by the Republican minority. The Senate was formed as a compromise between large populous states, and the smaller states in the union. The intention was smaller states would be given equal power in the Senate by virtue of the fact that every state had two representatives, regardless of population. Consequently, while more populous states would be able to force legislation through the House due to their population advantage, they would have to garner the cooperation of the smaller states to achieve passage of legislation in the Senate by a simple majority. The flagrant use of the filibuster significantly alters this dynamic. Now, instead of having to achieve a simple majority vote, Senators are forced to achieve a three-fifths majority (60 votes) to pass any legislation that the minority is vehemently opposed to. Requiring a three-fifths majority on landmark legislation is arguably an acceptable threshold, but requiring it for numerous Senate actions is another matter entirely. The Republicans have used the filibuster over a 100 times this year, meaning that the Republicans have taken a procedural tool and used it an exorbitant amount of times to frustrate the original intended structure of the Senate, which was to pass legislation with a simple majority.

The abuse of the filibuster reflects a dangerous trend growing in American politics, the entrance of a zero-sum game mentality into our partisan political system. Before, flagrant procedural abuse of this nature was far rarer due to the simple pragmatic reality that it was not wise to take a no-holds-barred approach to advancing one legislative issue because your opponent on this issue may be your ally on another. This dynamic is fast disappearing from American politics. Instead, we now have the zero-sum game mentality. There is Us, and there is Them. And a win for Them, is a loss for Us. This mentality is what allows the current Senate minority to advance its political agenda as if they were engaged in a procedural extreme fighting bout without regard to the future alliances they may be threatening. They no longer see any future alliances with Democrats, just more zero-sum battles, allowing them to ignore the intent and spirit of the Constitution in exchange for a Pyrrhic legislative victory that erodes the essential foundations of our democracy.

[image via Grundlepuck] 

Some opponents of health care reform, especially the mandate that all citizens buy health care insurance, are inaccurately claiming Congress is on the verge subverting the rights of states, says constitutional scholar and law professor Robert A. Schapiro.

In a column for The Atlanta Journal-Constitution, Schapiro, professor of law at Emory University School of Law, explains that supporters of the health care provisions are actually the "true standard bearers of federalism," and the plans being considered in Congress "build on the interaction of state and federal power that is central to federalism."

Schapiro continues:

Constitutional doctrine clearly gives Congress the authority to decide whether to enact the mandate. Congress has the power to regulate interstate commerce, which includes buying and selling insurance. In the Raich [Gonzales v. Raich] case in 2005, the U.S. Supreme Court clarified the scope of the commerce power and reaffirmed the core principle that dissident states cannot thwart national policy.

Raich concerned a California program that legalized the use of marijuana for medical purposes. The California plan clashed with a federal law that criminalized private possession. In Raich, the court upheld the congressional ban by a vote of 6-3.

Even Justice Antonin Scalia, no fan of expansive claims of federal power, voted to affirm Congress' authority. Justice Scalia explained, ‘Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.'

See Schapiro's entire article here. Also for additional analysis of the constitutionality of health care reform see Professor Erwin Chemerinsky's recent columns here and here.

Today, the U.S. Supreme Court announced it would consider McDonald v. Chicago, a case involving the scope of individuals' Second Amendment rights. Speaking with ACSblog about the case, the Constitutional Accountability Center's Doug Kendall said that an intriguing question regarding the cases is, if the Second Amendment is incorporated to the states, whether the justices would consider incorporation through Privileges or Immunities Clause of the Fourteenth Amendment. Watch the interview below or download a podcast of it here.

Professor Orin Kerr, 2007 recipient of the conservative Federalist Society's Paul M. Bator Award, identifies a recent piece by Andrew Napolitano as a prime example of when an op-ed is "filled with so many errors, misstatements, and plainly weak claims that the mere number of those becomes far more interesting than the argument of the op-ed itself."

Here's FOX News's Napolitano in his own words:

[I]t's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century. 

From the other side of the political spectrum, Anonymous Liberal digs deeper into Napolitano's claims:

Napolitano writes that "the delivery of medical services occurs in one place and does not move across state lines." I suppose that's true in some sense (at least most of the time). But the same is true of buying groceries or guns or just about anything else. And all of these things are clearly within the reach of the Commerce Clause.

It's one thing to argue for a crackpot interpretation of the Constitution. Everyone is free to do that. But you can't just blatantly misrepresent what the current state of the law is. You can't just assert that Roe v. Wade means the opposite of what it actually means. The reality is that if Napolitano's interpretation of [Commerce Clause jurisprudence] was correct, virtually the entire post World War II regulatory state would be unconstitutional. If he was correct, Medicare and Medicaid would be unconstitutional. Needless to say, the Supreme Court never intended to suggest anything of the sort in Lopez.

Polyphonic Federalism

Toward the Protection of Fundamental Rights

By Robert A. Schapiro, Professor, Emory University School of Law Director, Center on Federalism and Intersystemic Governance

[Available Here]

Federalism is back, but it is not your grandparents' federalism.

Over the past 30 years, there has been a resurgent interest in federalism in the United States. Ronald Reagan campaigned on it, but Bill Clinton embraced federalism, as well. The current United States Supreme Court has given renewed emphasis to constitutional principles of federalism.

This revival of interest in federalism presents a puzzle. Federalism has traditionally been understood as allowing each state to pursue its own distinctive and unique path: Let Massachusetts be Massachusetts, and let Texas be Texas. Yet the past 30 years also have witnessed an increasing homogenization of politics, culture and society in the United States. Country Music star Garth Brooks plays in Central Park. NASCAR drivers race in Chicago. Fans eat bagels while watching ice hockey in Dallas. Go to the mall, grab a Venti Cappuccino, then head to the Banana Republic. You could be anywhere. Even politics has become nationalized. House Speaker Tip O'Neill famously intoned, "All politics is local." But Tip died in 1994 and so did his mantra. The elections in 1994 were a national referendum on Bill Clinton, and the elections in 2002, 2006, and 2008 were national referendums on George W. Bush and the Republican Party.

What are we to make of the renewed interest in federalism at a time when the States are becoming ever more United? That is the puzzle that led me to write Polyphonic Federalism. The answer, I argue, lies in understanding the changing nature of federalism. Federalism is no longer a necessary strategy for peaceful co-existence among states that differ on fundamental values. Rather, federalism is about harnessing the power of decentralized and overlapping nodes of authority. When you think federalism, do not think Bull Connor and the Confederate States of America. Think Wikipedia; think of the move from the mainframe to the PC.

I term the contemporary version of federalism, "polyphonic," to emphasize that it operates through the interaction of many voices of authority. Polyphonic federalism, I argue, offers a descriptively more accurate and normatively more attractive alternative to outmoded dualist theories of federalism, which seek to divide state and federal realms. Polyphonic federalism promotes the values of plurality, dialogue and redundancy. The interconnection of multiple regulators allows experimentation and learning and thus facilitates innovation, while providing a fail-safe mechanism should one level of governmental protection fail.

Polyphonic Federalism provides a guide to understanding the New Federalism, a federalism that builds on overlapping spheres of authority so as to advance goals that are widely shared throughout the United States, such as safeguarding fundamental rights, ensuring adequate education, protecting workers and consumers, promoting innovation, and preserving the environment. I develop this account by reference to a variety of important policy issues, such as gay marriage, the death penalty and the No Child Left Behind Act, and I analyze recent controversies, including the fate of Terri Schiavo, the armed stand off in Ruby Ridge, Idaho, Confederate flags flying over state Capitols and the decades-long clash over crosses on public land in San Diego.

Unfortunately, a majority of the current United States Supreme court remains mired in the dualist conceptions of the old federalism. The Court seeks to draw boundaries between state and federal power, to divide the "truly local" from the "truly national." In the contemporary United States, such categories have no clear social referent; the lines must remain arbitrary. The Court's project of recreating a federalism that corresponds to a society that no longer exists produces many unfortunate consequences. In the name of federalism, the Court limits federal power to protect women (United States v. Morrison (2000)), the environment (Rapanos (2006)), and the disabled (Garrett (2001)). At the same time, the Court uses its preemption doctrine to curtail state power to compensate victims of defective medical devices (Riegel (2008)) and unsafe cars (Geier (2000)).

Instead of attempting to build Maginot lines between state and federal enclaves, the courts and other institutions should recognize the values promoted by the polyphonic brand of federalism that currently exists in the United States. Federalism is not realized through Supreme Court decisions striking down federal or state laws, but through the dynamic interaction of governments. California and the federal government can both develop automobile emission standards and learn from each other about the benefits of each approach. If the federal government is unwilling to address climate change, the states can step into the breach. When a federal agent allegedly commits homicide during the siege in Ruby Ridge, Idaho, the state can bring a criminal prosecution against him.

These federalism solutions may not be ideal. If we knew the right answer before hand, we could just designate a single authority to implement the correct policy. However, in the real world, perfection remains elusive; adaptability, flexibility, experimentalism, and redundancy are the best we can hope to attain. These are the characteristics promoted by polyphonic federalism-as long as the courts do not get in the way.

It has been a good spring for federalism. In recent years, the doctrine of preemption has stood as a prime enemy of federalism and an obstacle to state efforts to promote health, safety and environmental protection. For that reason, President Barack Obama's May 20 memorandum limiting federal assertions of preemption comes as welcome news. That memo, along with an important Supreme Court decision in March, signals a turn away from an aggressive policy of administrative agency preemption and recognition of the value of concurrent state and federal regulatory initiatives.

The basic principle of preemption, that state laws cannot interfere with the operation of the federal government, is an important and uncontroversial feature of our constitutional system. However, over the past 25 years, preemption has become a weapon to defeat state regulations aimed at improving health and safety, as well as state tort suits seeking to compensate victims of malfeasance. Back in 1992, the United States Supreme Court issued a fractured opinion in the Cipollone case, holding that federal regulation of cigarette labeling preempted some state tort actions against tobacco companies. In the succeeding years, the Supreme Court has found that law suits relating to seat belts, medical devices and other products must be tossed out because of federal regulation in the area.

Some assertions of preemption have succeeded. Others have failed. The judicial doctrine has not been clear. In this confusing area, the position of the President and his administration has proved significant.

The administration of President George W. Bush frequently urged courts to find state suits preempted based on the theory that they posed obstacles to agency regulations. Courts would often listen. In addition to filing legal briefs, federal agencies added preemption provisions to regulatory preambles. This practice wrote the preemptive language into the Federal Register, without the need for the more formal review process normally associated with the promulgation of regulations. Commentators labeled the practice, "silent tort reform," as it had the effect of barring various state law personal injury actions without the need for explicit congressional legislation.

The new memorandum from the Obama administration should spell the end to this kind of stealth preemption. The memo declares that regulatory preambles should not include preemptive statements, unless the underlying regulation contains a preemption provision. The memo further urges caution in promulgating regulations with preemptive language. Finally, the memo orders a review of preemptive statements issued by agencies within the past 10 years. Preemption will remain an essential component of our federal system, but the memo seeks to ensure that preemption provisions reflect a transparent and participatory administrative process.

This spring, the Supreme Court also expressed skepticism about preemption by administrative preamble. Wyeth v. Levine arose out of the tragedy suffered by Diana Levine. A professional musician, Levine received an injection of the drug Phenergan. The Phenergan infiltrated her artery, causing gangrene and the eventual amputation of her arm. She sued the manufacturer, Wyeth, alleging a failure to provide adequate warnings of the dangers of certain injection methods. A jury agreed with Levine and awarded her over $6 million in damages.

On appeal to the United States Supreme Court, Wyeth argued that the Federal Food and Drug Administration's approval of the drug's label had the effect of preempting Levine's suit. In support of its assertion, Wyeth pointed to the preamble to the FDA regulation, which included preemptive language added in 2006. The Bush Administration filed a brief urging the court to find Levine's claims preempted.

In a 6-3 decision, the Supreme Court rejected the preemption argument. Writing for the majority, Justice John Paul Stevens noted the value of concurrent state and federal approaches to the drug safety problem. In specific, the Court refused to defer to the regulatory preamble. Noting that the agency had not promulgated the preemptive language as part of the regular rulemaking process, the Court declared, "The agency's views on state law are inherently suspect in light of this procedural failure."

Taken together, the preemption memo and the Wyeth decision recognize the benefits of overlapping state and federal regulations and the concomitant peril of preemption. The memo and Wyeth emphasize the importance of protecting the values of federalism by providing adequate procedural safeguards. Congress of course retains the power to preempt by express language, but there are often good reasons not to preempt state law. Agencies should not rush in where Congress feared to tread.

In the words of Justice David Souter, there has been an "ebb of the commerce power [which] rests on error." Since 1937, the Supreme Court charted a path of expansively interpreting Congress's power to regulate under the Commerce Clause. However, the Supreme Court began to curb this authority, striking down congressional acts under a less deferential reading of the clause, in 1995.

"How much power Congress has under the Commerce Clause is one of the areas in which a Justice Sonia Sotomayor ... could alter the workings of the Supreme Court," according to legal blogger and ACS contributor Chris Geidner. "But it's an area in which we don't have much insight into her thoughts on the matter."

With Souter's retirement ... the question we're left to consider is two-fold: (1) Would a Justice Sotomayor come down on the same side of the issue as Souter, and, if so, (2) would Sotomayor carry on Souter's legacy of vigorously fighting for congressional power in the Commerce Clause area?

Unfortunately, we don't have much to go on from Judge Sotomayor's rulings from the bench. Of the five cases in which Judge Sotomayor has participated where challenges were brought to various statutes following Lopez, none shed any real light on her view of the Commerce Clause because there are so few. More, those that exist do not present any significant issue in which her interpretation of the Commerce Clause, when freed from the constraints of the Circuit Court, could be gleaned.

This ACSblog post is the sixth in a series sharing analyses of Judge Sotomayor's opinions. Her decisions on race and civil rights are considered here; Judge Sotomayor's record on appeal is discussed here; an overview of her opinions in civil law cases is here; her decisions regarding media law are examined here; and Sotomayor's jurisprudence on reproductive rights is considered here. 

In a memo released by the White House press secretary's office, President Barack Obama has announced his administration's policy "that preemption of State law by executive departments and agencies should be undertaken only with full consideratin of the legitimate prerogatives of the States and with a sufficient legal basis for preemption." The Obama administration's move today was urged by Prof. David C. Vladeck in his January, 2008 ACS Issue Brief "The Emerging Threat of Regulatory Preemption."

The announcement signals a clear break with the Bush administration's more heavy-handed policy. As explained by the Constitutional Accountability Center, who scooped the story on their blog Text & History:

In an assault on federalism and our Constitution, the Bush Administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens. Today the Obama Administration recognized that states serve as "laboratories of democracy" and often are the most aggressive defenders of public health, safety, and the environment.

Today's action follows yesterday's decision to adopt California's automobile emissions standards at the national level-a perfect example of how our country benefits when states act as policy innovators. The states led, the nation followed, and the broad coalition of industry leaders, state officials, and environmental advocates assembled at the White House yesterday showed our country at its best.