SCOTUS Shadow Docket Strikes Again — This Time at Education

John Christie • August 3, 2025


On July 14, by a cryptic unsigned and unexplained order, the Supreme Court cleared the way for President Trump to significantly restructure and radically downsize the Department of Education. Linda McMahon, Secretary of Education v. New York.

 

According to Steve Vladeck, law professor at Georgetown and author of the book Shadow Docket, this is the seventh, different, completely unexplained grant of emergency relief to the Trump administration in just the last ten weeks. It is yet another one that will have massive real-world effects long before the justices ever confront whether what the government is doing is actually lawful.

 

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During his campaign for a second term in office, Donald Trump repeatedly promised to “close up the Department of Education … early in the administration.” Following his election, he asserted that “you can do a lot of things without Congress … including a virtual closure of the Department of Education,” describing the Department’s work as a “big con job.” 

 

Later, when nominating Linda McMahon to head the Department, President Trump said that he had directed her “to put herself out of a job.” Consistent with that directive, on her first day as the new Secretary of the Department, McMahon issued a memorandum explaining that she would lead the Department’s “final mission” and fulfill the President’s “campaign promises.”

 

About one week later, on March 11, McMahon announced a “reduction in force” that would eliminate nearly 50% of the Department’s workforce, slashing the number of employees from 4,133 to 2,183.

 

Those terminations would, in effect, do away with whole offices and teams within the Department. For example, the directive terminated:

  • The entire Office of English Language Acquisition, which Congress tasked with administering the Department’s “bilingual education programs”
  • All employees within the Office of the General Counsel that specialize in K–12 education funding
  • Seven of 12 regional divisions of the Office of Civil Rights
  • Most of the Federal Student Aid office responsible for certifying schools so that their students can receive federal financial aid
  • The entire unit of the Office of Special Education and Rehabilitative Services charged with providing technical assistance and guidance on complying with the Disabilities Education Act (IDEA)

 

McMahon subsequently characterized these staff reductions as only “the first step on the road to a total shutdown” of the Department.

 

Following McMahon’s March 11 announcement and the mass termination of Department employees, a group of 20 States, the District of Columbia, several school districts, and unions sued the Department in the federal district court for the district of Massachusetts.

 

They argued that these reductions in force would “effectively dismantle” the Department and “incapacitate” components of the Department responsible for performing functions mandated by Congress. The plaintiffs assert that this unilateral executive action violates the Constitution’s separation of powers, among other violations of law. 

 

Following the initiation of the litigation, the plaintiffs urged the district court to enter an injunction against implementation of the administration’s plans, including reinstatement of the terminated employees, while the underlying legal issues remain to be litigated.

 

In support, dozens of affidavits from Department officials and federal funding recipients described the mass termination’s effects on schools and students across the Nation.

 

School districts, one such affidavit averred, depend on timely disbursement of federal funds to pay teachers and to purchase materials and equipment throughout the academic year. Even short-term delays in funding can force school districts “to make cuts … to staff and programs, disrupting services for students and families.”

 

Scores of officials who worked at the Department also attested that the agency would no longer be able to carry out many of its Congressionally mandated duties following the mass termination.

 

The administration, for its part, submitted no evidence to rebut the factual record compiled by the plaintiffs. Nor did it argue that the Executive could singlehandedly abolish the Department. Instead, it simply asserted that the mass terminations fell within the President’s authority because it was only part of an effort to “streamline” the Department.

 

District Court Judge Myong J. Joun granted the requested preliminary injunction request. The court found that “the record abundantly reveals that the administration’s true intention is to effectively dismantle the Department without an authorizing statute,” and that the proposed terminations would prevent the Department from “carrying out its statutory functions.”

 

That unilateral executive action, the District Court concluded, likely violated the separation of powers by being beyond the president’s powers without the consent of Congress.

 

Judge Joun also concluded that a preliminary injunction would serve the public interest “because there is a substantial risk that, without it, there will be significant harm to the functioning of public and higher education, particular in plaintiff States. It is well established that an educated citizenry provides the foundation for our democracy.”

 

The administration subsequently appealed the entry of the injunction to the First Circuit Court of Appeals which left the injunction in place. In an opinion by Chief Judge David Barron, the three-judge appellate panel determined that “we see no basis on which to conclude that the District Court erred in finding that the RIF made it effectively impossible for the Department to carry out its statutory obligations.” 

 

In doing so, the First Circuit faulted the administration for not even contesting the intent behind the proposed reduction in force or “the disabling impact of those actions on the Department’s ability to carry out statutorily assigned functions.”

 

The administration then filed an emergency appeal to the Supreme Court seeking to have the preliminary injunction overturned, the 18th such emergency appeal since the administration arrived in office on January 20.

 

As indicated above, on July 14, the Court granted the motion, allowing the administration to proceed with its plan during however long it takes for the judicial system to ultimately determine the legality of doing so. The Court’s three-sentence order exhibits no indication of the reason(s) behind the majority’s conclusion.

 

Justice Sonia Sotomayor wrote a scathing 19-page dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson. The opinion begins by asserting that Congress had mandated that the Department of Education play a vital role in this Nation’s education system, safeguarding equal access to learning and channeling billions of dollars to schools and students across the country each year. 

 

Federal involvement in education was not a modern phenomenon as, for over 150 years, the Federal Government has played a critical role in supplementing and supporting the education provided by States, localities, and private institutions.

 

However, in 1979, Congress enacted the Department of Education Organization Act to “strengthen the Federal commitment to ensuring access to equal educational opportunity for every individual.” In service of that goal, the Act integrated the Federal Government’s educational programs into a new Cabinet-level agency called the Department of Education.

 

Congress tasked the new agency with administering a broad range of educational programs. For example, the Department runs the federal student financial-aid system, federal grants for higher education institutions, federal work-study program, and federal funding for kindergarten through 12th grade.

 

The scale of these efforts is vast:

  • In June 2025, the Department reported awarding over $120 billion a year in federal student aid to over 13 million students.
  • In 2020–2021, the Federal Government distributed over $100 billion in funding directly to public schools, representing around 11% of all funding for public elementary and secondary schools across the country.
  • Tens of millions of low-income families rely on financial assistance programs administered by the Department.
  • Schools and students in every State rely on federal programs established by Congress and run by the Department.

 

Congress has prohibited the Secretary of Education from “abolishing organizational entities established” in the Department’s basic statute. As for statutory entities later transferred to the Department by Congress, the Secretary may only “consolidate, alter, or discontinue” the entities specifically affected, after providing Congress with 90 days’ advance notice and a “statement of the action proposed … and the facts and circumstances relied upon in support of such proposed action.”

 

The dissenting Justices acknowledged that past presidential administrations have taken different positions on the Department’s value and its proper role in the Nation’s system of education over the years. Presidents Carter and Clinton, for instance, made investing in it a priority. President Reagan, by contrast, submitted a proposal to Congress that would have abolished the Department, though he ultimately withdrew the proposal after it garnered little support in Congress. Until now, however, Presidents have recognized they lack the unilateral authority to eradicate a department that Congress has tasked with fulfilling statutory duties.

 

Undeterred by any limits on executive authority, President Trump has made clear that he intends to close the Department without Congress’s involvement.

 

The dissenters assert that in our constitutional order, Congress “makes laws” and the President “faithfully executes them.” Quoting Justice Robert Jackson in the Youngstown Sheet & Tube Co (1952) case, “the Founders of this Nation entrusted the lawmaking power to the Congress alone,” and “there is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.”

 

The President thus lacks unilateral authority to close a Cabinet-level agency. In short, as the dissenters see it, “Congress created the Department, and only Congress can abolish it.”

 

Justice Sotomayor contends that “when the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it.”

 

Rather than maintain the status quo pending resolution of the underlying legal issues, this Court now intervenes, lifting the injunction and permitting the administration to proceed with dismantling the Department. Sotomayor concludes that decision is “indefensible.” “The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.”

 

Rather than contest these principles, the administration in the lower courts contended that the mass terminations were not part of any planned closure, but instead were simply intended to “cut bureaucratic bloat.”

 

According to Justice Sotomayor, the record in the case “unambiguously” refutes that account. Neither the President nor Secretary McMahon, she contends, made any secret of their intent to ignore their constitutional duties. “That the majority of this Court sees fit to repay that obfuscation with emergency equitable relief is troubling.”

 

Justice Sotomayor also contends that the relative harms to the parties are “vastly disproportionate.” While the administration will, no doubt, suffer pocketbook harms from having to pay employees that it sought to fire as the litigation proceeds, the harm to this Nation’s education system and individual students is of a far greater magnitude. 

 

Lifting the District Court’s injunction in her opinion will unleash untold harm, delaying or denying educational opportunities without the federal resources Congress intended. “The majority apparently deems it more important to free the Government from paying employees it had no right to fire than to avert these very real harms while the litigation continues. Equity does not support such an inequitable result.”

 


John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.

 

Common Sense for the Eastern Shore

By John Christie March 3, 2026
Just up the road from Maryland’s Eastern Shore lies Independence National Historical Park in Philadelphia. Administered by the National Park Service (NPS), the park is dedicated to the preservation of historical structures and properties associated with the American Revolution and the founding and growth of the United States. The centerpiece of the park is Independence Hall, where the Declaration of Independence and the United States Constitution were debated and adopted by America's Founding Fathers in the late 18th century. Nearby is the Liberty Bell, an iconic symbol of American independence, displayed in the Liberty Bell Center. In the park as well is what’s called the President’s House, an exhibit on the site of the first official residence of the president of the United States. President Washington occupied the Philadelphia President's House from 1790 to 1797. His successor, John Adams, lived there from 1797 to 1800. Although the original structure no longer exists, the exhibit includes a view of the foundation of the house where our first two presidents lived with their families. Research has turned up information about nine enslaved Africans owned by Washington and brought to Philadelphia’s presidential residence during his time there. To commemorate the lives of those slaves, their names are etched in a wall in the exhibit: Oney Judge, Austin, Christopher Sheels, Giles, Hercules Posey, Joe Richardson, Moll, Paris, and Richmond. The site includes exhibits on how their struggles for freedom represented this country’s progress away from the horrors of slavery and into an era where the founding ideals of “Life, Liberty and the pursuit of Happiness” could be achieved for every American. An intended theme of the President’s House exhibit is “Liberty: The Promises and Paradoxes.” “The promises of liberty and equality granted in the founding documents present a paradox: not only were they ideals to strive for but they were unfulfilled promises for people who struggled to be fully included as citizens of our nation.” ------------------------------------------------------------ On March 27, 2025, President Trump signed Executive Order 14253, “Restoring Truth and Sanity to American History.” EO14253 stated in part: “Over the past decade, Americans have witnessed a concerted and widespread effort to rewrite our nation's history, replacing objective facts with a distorted narrative driven by ideology rather than truth.” In order to “restore truth in American history,” EO14253 directed the Secretary of the Interior to ensure that all public monuments, memorials, or similar properties within the Department of the Interior's jurisdiction do not contain descriptions or other content that “inappropriately disparage” Americans past or living (including persons living in colonial times) and instead focus on the greatness of the achievements and progress of the American people. In response to this order, on January 22, 2026, the NPS suddenly removed 34 educational panels and video exhibits that referenced slavery and provided information about the individuals enslaved at the President’s House. The day these exhibits were removed, the City of Philadelphia filed a lawsuit in the federal district court in Philadelphia against Secretary of the Interior Doug Burgum, the Department of the Interior, Acting Director of NPS Jessica Bowron, and the NPS itself, claiming that the removal of the displays was unlawful agency action. On February 16, Judge Cynthia Rufe ordered the Trump administration to restore the slavery-related exhibits at the national park site, holding that NPS lacked the power “to dissemble and disassemble historical truths.” In court, the government asserted it alone had the power to erase, alter, remove, and hide historical accounts on taxpayer and local government-funded monuments within its control. According to Judge Rufe, to claim that “truth is no longer self-evident, but rather the property of the elected chief magistrate and his appointees and delegees, at his whim to be scraped clean, hidden, or overwritten” comes right out of George Orwell’s 1984. In her opinion, no government agency can “arbitrarily” decide what is true, “based on its own whims or the whims of the new leadership.” “It is not disputed that President Washington owned slaves.” Moreover, Judge Rufe determined the removed displays were not mere decorations to be taken down and redisplayed; rather, they were a memorial to the “men, women, and children of African descent who lived, worked, and died as enslaved people in the United States of America.” Each person who visits the President’s House and does not learn of the realities of founding-era slavery receives a false account of this country’s history. Removal of the crucial interpretive materials strips the site of that truth and deprives the public of educational opportunities designed to be free and accessible. For Judge Rufe, the abrupt elimination of historically significant educational material is like “pulling pages out of a history book with a razor.” John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
By CSES Staff March 3, 2026
Last month, Megan Outten, candidate for Wicomico County Council District 7, was endorsed by Run for Something (RFS), a national organization that recruits and supports the next generation of progressive leaders for state and local office. The organization’s slate of newly endorsed candidates includes young, diverse progressives from across the country who are ready to lead in their communities. Outten said, “This campaign has always been powered by our community. By parents, teachers, small business owners, and neighbors who know we can do better. Run for Something’s endorsement affirms what we already know here in Wicomico: when everyday people step up to lead, we change what’s possible. Together, we’re building the kind of local government that plans ahead, listens first, and puts families at the center of every decision.” “Bold leaders like Megan are at the forefront of the fight for our rights and freedoms at a time when they have never faced greater threats,” said Amanda Litman, Co-Founder and President of Run for Something. “Run for Something is proud to endorse Megan Outten as part of our latest class of young leaders working to secure lasting change in their communities.” Outten’s platform is rooted in real data and shaped by direct community engagement. With Wicomico now the fastest-growing school system on Maryland’s Eastern Shore, and 85% of students relying on additional resources, she points to the county’s lagging investment as a key area for action. “Strong schools lead to strong jobs, thriving industries, and healthier communities,” Outten said. “Our schools and infrastructure are at a tipping point. We need leadership that stops reacting after things break — and starts investing before they do.” About Run for Something: Amanda Litman and Ross Morales Rocketto launched RFS in January 2017 with a simple premise: to help young, diverse progressives run for state and local offices in order to build a bench for the future. RFS aims to lower the barriers to entry for these candidates by helping them with organization building, connecting them with a robust community, and providing access to the trainings they need to be successful. Since its founding, RFS has helped elect over 1,600 candidates across the country — including 43 candidates in red-to-blue seats in the 2025 election cycle. Today, RFS has the largest database of any Democratic organization, with nearly 80,000 people reaching out since November 2024 with interest in running for office. In total, over 250,000 young people from across the country have signed up to run and gained access to RFS’s resources since the organization launched — a powerful signal that a new generation is showing up to lead.
By Liam Bowman, Capital News Service March 3, 2026
The Trump administration is still arresting immigrants in D.C. without warrants or probable cause despite a judge’s previous ruling that the practice was unlawful, a coalition of immigrant rights groups alleges in a recent court filing. A federal judge ruled in December that the administration’s use of warrantless immigration arrests likely violated federal law and issued a preliminary injunction prohibiting such arrests without probable cause. The ruling was in response to a lawsuit filed by immigrant rights groups and four migrants who were arrested without warrants last year during President Donald Trump’s law enforcement surge in the capital. But federal immigration officials in D.C. are failing to comply with that order, continuing to make warrantless arrests “without the required probable cause determinations,” according to the Feb. 19 motion by plaintiffs. The lawsuit alleges immigration authorities began operating under an “arrest first, ask questions later” policy to comply with arrest quotas imposed after Trump took office last year — and started to ignore the probable cause requirements under immigration law. Click here to read the rest of the article , on the Capital News Service website. The article also details the arrest stories of the plaintiffs who were tricked, and concerns about D.C. police cooperation with immigration authorities. Capital News Service is a student-powered news organization run by the University of Maryland Philip Merrill College of Journalism. For 26 years, they have provided deeply reported, award-winning coverage of issues of import to Marylanders.
By John Christie February 17, 2026
These are the words from Emma Lazarus’ famous 1883 sonnet “The New Colossus” inscribed on a bronze plaque on the pedestal of the Statue of Liberty. In 1990, Congress reaffirmed this vision of America by establishing the Temporary Protected Status program. TPS is designed to provide humanitarian relief to foreign nationals in the United States who come from disaster-stricken countries. In its present form, the TPS legislation gives the Secretary of the Department of Homeland Security responsibility for the program. However, the legislation prescribes the kind of country conditions severe enough to warrant a designation under the statute, the specific time frame for any such designation, and the process for periodic review of a TPS designation which could culminate in termination or extension. All initial TPS designations last from six to eighteen months. Before the expiration of a designation, the statute mandates that the Secretary shall review the conditions in the foreign state to decide if the conditions for the designation continue to be met, following consultation with appropriate agencies of the government. Extension is the default; the designation “shall be extended” unless the secretary affirmatively determines that conditions are “no longer met.” ------------------------------------------------------------- A massive earthquake devastated Haiti in January 2010, and precipitated an unprecedented humanitarian crisis. Shortly after, then-DHS Secretary Janet Napolitano, after consultation with the State Department, designated Haiti for TPS due to “extraordinary conditions.” Haitian nationals in the United States continuously as of January 12, 2010, could thus apply for TPS, and obtained the right to remain and work in the U.S. while Haiti maintained its TPS designation. Napolitano set the initial TPS designation for 18 months. As Haiti’s deterioration worsened, successive DHS secretaries have extended this program. Gang violence and kidnappings have spiked. In 2021, a group of assailants killed Haiti’s then-President Jovenel Moïse. In 2023, another catastrophic earthquake hit Haiti. In 2024, in response to these conditions, then-DHS Secretary Alejandro Mayorkas once again extended and redesignated Haiti for TPS, this time effective through February 3, 2026. During the 2024 election cycle, the GOP candidate, Donald Trump clearly indicated that time had not tempered his views on Haiti, characterized by him as a “shithole country” during his first term. He stated that when elected, he would “absolutely revoke” Haiti’s TPS designation and send “them back to their country.” On December 1, 2025, Kristi Noem, DHS secretary in the second Trump administration, announced, “I just met with the president. I am recommending a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies. Our forefathers built this nation on blood, sweat, and the unyielding love of freedom, not for foreign invaders to slaughter our heroes, suck dry our hard-earned tax dollars, or snatch the benefits owned to Americans. We don’t want them, not one.” So says the official responsible for overseeing the TPS program. And one of those (her word) “damn” countries is Haiti. Three days before making the above post, Secretary Noem announced she would terminate Haiti’s TPS designation as of February 3, 2026. Five Haitian TPS holders filed suit in federal court in Washington initially seeking an injunction against the termination of the Haitian TPS program pending the completion of the litigation. These plaintiff TPS holders are not “killers, leeches, or entitlement junkies.” They are instead a neuroscientist researching Alzheimer’s disease, a software engineer at a national bank, a laboratory assistant in a toxicology department, a college economics major, and a full-time registered nurse. The case was assigned to district court judge Ana Reyes who granted the plaintiffs’ injunction request on February 2, 2026, by way of an 83-page opinion. The plaintiffs charge that Secretary Noem preordained her termination decision because of hostility to non-white immigrants. According to Judge Reyes, “This seems substantially likely. Secretary Noem has terminated every TPS country designation to have reached her desk — twelve countries up, twelve countries down.” Judge Reyes also decided that Noem’s conclusion that Haiti (a majority non-white country) faces only “merely concerning” conditions cannot be squared with the “perfect storm” of “suffering and staggering” humanitarian toll described in page after page of the record in the case. In Judge Reyes’ view, Noem also ignored Congress’s requirement that she review the conditions in Haiti “after consulting with appropriate agencies.” Indeed, the record indicates she did not consult other agencies at all. Her “national interest” analysis focuses on Haitians outside the United States or here illegally, ignoring that Haitian TPS holders already live here and legally so. And though Noem states that the analysis must include “economic considerations,” Judge Reyes concluded Noem ignored altogether the billions that Haitian TPS holders contribute to the economy. The administration’s primary response in the litigation has been to assert that the TPS statute gives Secretary Noem “unbounded” discretion to make whatever determination she wants, any way she wants. Yes, Judge Reyes acknowledges, the statute does grant Noem some discretion. But, in Judge Reyes’ opinion, “not unbounded discretion.” To the contrary, Congress passed the TPS statute to standardize the then ad hoc temporary protection system; in Judge Reyes’ words, "to replace executive whim with statutory predictability.” The administration also argued that the harms to Haitian TPS holders were “speculative” if they are forced to return to Haiti. Because the State Department presently warns, “Do not travel to Haiti for any reason,” the administration asserts that harm is “speculative” only because DHS “might not” remove them. However, according to Judge Reyes, this argument fails to take Secretary Noem at her word: “We don’t want them. Not one.” The public interest also favors the injunction, in the opinion of Judge Reyes. Secretary Noem complains of the strains that unlawful immigrants place on our immigration-enforcement system. Noem’s answer is to turn 352,959 lawful TPS Haitian immigrants into unlawful immigrants overnight. Noem complains of strains to our economy; her answer is to turn employed lawful immigrants who contribute billions in taxes into the legally unemployable. Noem complains of strains to our health care system. Noem’s answer is to turn the insured into the uninsured. “This approach is many things – but the public interest is not one of them,” according to Judge Reyes. The opinion of Judge Reyes concludes: “Kristi Noem has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants. Secretary Noem, however, is constrained by both our Constitution and the law to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that. The administration has already appealed. John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
By Office of the Governor February 16, 2026
Gov. Wes Moore signed legislation on February 17, 2026, to prohibit State and local jurisdictions from deputizing officers for federal civil immigration enforcement activity. The law, created under SB 245/HB 444 , is effective immediately. “In Maryland, we defend Constitutional rights and Constitutional policing — and we will not allow untrained, unqualified, and unaccountable ICE agents to deputize our law enforcement officers,” Moore said. “This bill draws a clear line: we will continue to work with federal partners to hold violent offenders accountable, but we refuse to blur the lines between state and federal authority in ways that undermine the trust between law enforcement and the communities they serve. Maryland is a community of immigrants, and that's one of our greatest strengths because this country is incomplete without each and every one of us.” “As an immigrant, this bill is deeply personal to me,” said Lt. Gov. Aruna Miller. “Immigrants make Maryland stronger every day, and our communities are safer when everyone feels protected and valued. This legislation ensures that our law enforcement resources remain focused on keeping Marylanders safe, not on actions that create fear in our neighborhoods. I thank the bill sponsors and Governor Moore for their leadership in ensuring Maryland remains a place where dignity and opportunity go hand in hand.” U.S. Department of Homeland Security Immigration and Customs Enforcement, also known as ICE, established its 287(g) program to authorize local law enforcement officials to perform federal civil immigration enforcement functions under ICE’s oversight. Under SB 245/HB 444, State and local jurisdictions in Maryland are prohibited from engaging in such agreements. Any local jurisdictions with standing 287(g) agreements must terminate them immediately. The legislation does not: Authorize the release of criminals Impact State policies and practices in response to immigration detainers that are issued by the U.S. Department of Homeland Security Prevent the State or local jurisdictions from continuing to work with the federal government on shared public safety priorities, including the removal of violent criminals who pose a risk to public safety Prevent State or local jurisdictions from continuing to notify ICE about the impending release of an individual of interest from custody or from coordinating the safe transfer of custody within constitutional limits State and local law enforcement will also maintain the ability to work with the federal government on criminal investigations and joint task forces unrelated to civil immigration enforcement. Any individual who is charged with a crime is entitled to due process and, if convicted, must serve their sentence.
By Sarah Boden and Drew Hawkins, Gulf States Newsroom February 16, 2026
And now, the enhanced Affordable Care Act subsidies that many Americans, including farmers, relied on to purchase health insurance are gone, having expired at the end of December.
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