| (96-6298), |
[ Rehnquist ]
[ Souter ]
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
AARON LINDH, PETITIONER v. JAMES
P. MURPHY, WARDEN
on writ of certiorari to the united states court of appeals for the seventh circuit
The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, signed into law on April 24, 1996, enacted the present 28 U. S. C. A. §2254(d) (Supp. 1997). The issue in this case is whether that new section of the statute dealing with petitions for habeas corpus governs applications in noncapital cases that were already pending when the Act was passed. We hold that it does not.
Wisconsin tried Aaron Lindh on multiple charges of murder and attempted murder. In response to his insanity defense, the State called a psychiatrist who had spoken with Lindh immediately after the killings but had later and before Lindh's trial come under criminal investigation by the State for sexual exploitation of some of his patients. Although, at trial, Lindh tried to ask the psychiatrist about that investigation, hoping to suggest the witness's interest in currying favor with the State, the trial court barred the questioning. Lindh was convicted.
On direct appeal, Lindh claimed a violation of the Confrontation Clause of the National Constitution, but despite the denial of relief, Lindh sought neither review in this Court nor state collateral review. Instead, on July 9, 1992, he filed a habeas corpus application in the United States District Court, in which he again argued his Confrontation Clause claim. When relief was denied in October 1995, Lindh promptly appealed to the Seventh Circuit. Shortly after oral argument there, however, the federal habeas statute was amended, and the Seventh Circuit ordered Lindh's case be reheard en banc to see whether the new statute applied to Lindh and, if so, how his case should be treated.
The Court of Appeals held that the Act's amendments to chapter 153 of Title 28 generally did apply to cases pending on the date of enactment. 96 F. 3d 856, 863 (CA7 1996). Since the court did not read the statute as itself answering the questions whether or how the newly amended version of §2254(d) would apply to pending applications like Lindh's, id., at 861-863, it turned to this Court's recent decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Landgraf held that, where a statute did not clearly mandate an application with retroactive effect, a court had to determine whether applying it as its terms ostensibly indicated would have genuinely retroactive effect; if so, the judicial presumption against retroactivity would bar its application. The Seventh Circuit concluded that applying the new §2254(d) to cases already pending would not have genuinely retroactive effect because it would not attach "new legal consequences" to events preceding enactment, and the court held the statute applicable to Lindh's case. 96 F. 3d, at 863-867 (citing Landgraf, supra, at 270). On the authority of the new statute, the court then denied relief on the merits. 96 F. 3d, at 868-877.
The Seventh Circuit's decision that the new version of §2254(d) applies to pending, chapter 153 cases conflicts with the holdings of Edens v. Hannigan, 87 F. 3d 1109, 1112, n. 1 (CA10 1996), and Boria v. Keane, 90 F. 3d 36, 37-38 (CA2 1996) (per curiam). In accord with the Seventh Circuit is the §2253(c) case of Hunter v. United States, 101 F. 3d 1565, 1568-1573 (CA11 1996) (en banc) (relying on Lindh to hold certain amendments to chapter 153 applicable to pending cases). We granted certiorari limited to the question whether the new §2254(d) applies to Lindh's case, and we now reverse.
Before getting to the statute itself, we have to address Wisconsin's argument that whenever a new statute on its face could apply to the litigation of events that occurred before it was enacted, there are only two alternative sources of rules to determine its ultimate temporal reach: either an "express command" from Congress or application of our Landgraf default rule. In Landgraf, we said that,
"[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect . . . . If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Landgraf, supra, at 280.
Wisconsin insists that this language means that, in the absence of an express command regarding temporal reach, this Court must determine that temporal reach for itself by applying its judicial default rule governing retroactivity, to the exclusion of all other standards of statutory interpretation. Brief for Respondent 9-14; see also Hunter v. United States, supra, at 1569 (suggesting that Landgraf may have announced a general clear statement rule regarding the temporal reach of statutes).
Wisconsin's reading, however, ignores context. The language quoted disposed of the question whether the practice of applying the law as it stands at the time of decision represented a retreat from the occasionally conflicting position that retroactivity in the application of new statutes is disfavored. The answer given was no, and the presumption against retroactivity was reaffirmed in the traditional rule requiring retroactive application to be supported by a clear statement. Landgraf thus referred to "express command[s]," "unambiguous directive[s]," and the like where it sought to reaffirm that clear statement rule, but only there. See Landgraf v. USI Film Products, supra, at 263 ("unambiguous directive" is necesssary to authorize "retroactive application"); id., at 264 (statutes "will not be construed to have retroactive effect unless their language requires this result") (internal quotation marks and citation omitted); id., at 272-273 ("Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application"); id., at 286 (finding "no clear evidence of congressional intent" to rebut the "presumption against statutory retroactivity"); id., at 286 (Scalia, J., concurring in judgment) (agreeing that "a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary").
In determining whether a statute's terms would produce a retroactive effect, however, and in determining a statute's temporal reach generally, our normal rules of construction apply. Although Landgraf's default rule would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case), as Lindh argues the recognition of a negative implication would do here. In sum, if the application of a term would be retroactive as to Lindh, the term will not be applied, even if, in the absence of retroactive effect, we might find the term applicable; if it would be prospective, the particular degree of prospectivity intended in the Act will be identified in the normal course in order to determine whether the term does apply to Lindh.
The statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases). Title I of the Act stands more or less independent of the Act's other titles [n.1] in providing for the revision of federal habeas practice and does two main things. First, in §§101-106, it amends §2244 and §§2253-2255 of chapter 153 of Title 28 of the United States Code, governing all habeas corpus proceedings in the federal courts. [n.2] 110 Stat. 1217-1221. Then, for habeas proceedings against a State in capital cases, §107 creates an entirely new chapter 154 with special rules favorable to the state party, but applicable only if the State meets certain conditions, including provision for appointment of postconviction counsel in state proceedings. [n.3] 110 Stat. 1221-1226. In §107(c), the Act provides that "Chapter 154 . . . shall apply to cases pending on or after the date of enactment of this Act." 110 Stat. 1226.
We read this provision of §107(c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act. The significance of this provision for application to pending cases becomes apparent when one realizes that when chapter 154 is applicable, it will have substantive as well as purely procedural effects. If chapter 154 were merely procedural in a strict sense (say, setting deadlines for filing and disposition, see 28 U. S. C. A. §§2263, 2266 (Supp. 1997); 110 Stat. 1223, 1224-1226), the natural expectation would be that it would apply to pending cases. Landgraf, 511 U. S., at 275 (noting that procedural changes "may often be applied in suits arising before their enactment without raising concerns about retroactivity"). But chapter 154 does more, for in its revisions of prior law to change standards of proof and persuasion in a way favorable to a state, the statute goes beyond "mere" procedure to affect substantive entitlement to relief. See 28 U. S. C. A. §2264(b) (Supp. 1997), 110 Stat. 1223 (incorporating revised legal standard of new §2254(d)). Landgraf did not speak to the rules for determining the temporal reach of such a statute (having no need to do so). While the statute might not have a true retroactive effect, neither was it clearly "procedural" so as to fall within the Court's express (albeit qualified) approval of applying such statutes to pending cases. Since Landgraf was the Court's latest word on the subject when the Act was passed, Congress could have taken the opinion's cautious statement about procedural statutes and its silence about the kind of provision exemplified by the new §2254(d) as counseling the wisdom of being explicit if it wanted such a provision to be applied to cases already pending. While the terms of §107(c) may not amount to the clear statement required for a mandate to apply a statute in the disfavored retroactive way, [n.4] they do serve to make it clear as a general matter that chapter 154 applies to pending cases when its terms fit those cases at the particular procedural points they have reached. (As to that, of course, there may well be difficult issues, and it may be that application of Landgraf's default rule will be necessary to settle some of them.)
The next point that is significant for our purposes is that everything we have just observed about chapter 154 is true of changes made to chapter 153. As we have already noted, amended §2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases.
Nothing, indeed, but a different intent explains the different treatment. This might not be so if, for example, the two chapters had evolved separately in the congressional process, only to be passed together at the last minute, after chapter 154 had already acquired the mandate to apply it to pending cases. Under those circumstances, there might have been a real possibility that Congress would have intended the same rule of application for each chapter, but in the rough and tumble no one had thought of being careful about chapter 153, whereas someone else happened to think of inserting a provision in chapter 154. But those are not the circumstances here. Although chapters 153 and 154 may have begun life independently and in different Houses of Congress, [n.5] it was only after they had been joined together and introduced as a single bill in the Senate (S. 735) that what is now §107(c) was added. [n.6] Both chapters, therefore, had to have been in mind when §107(c) was added. Nor was there anything in chapter 154 prior to the addition that made the intent to apply it to pending cases less likely than a similar intent to apply chapter 153. If anything, the contrary is true, as the discussion of §2264(b) will indicate.
The insertion of §107(c) with its different treatments of the two chapters thus illustrates the familiar rule that negative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted. See Field v. Mans, 516 U. S. ___ (1995) (slip op., at 16) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects . . ."). When §107(c) was added, that is, a thoughtful member of the Congress was most likely to have intended just what the later reader sees by inference.
The strength of the implication is not diminished by the one competing explanation suggested, see Brief of Respondent 11-12, which goes as follows. Chapter 154 provides for expedited filing and adjudication of habeas applications in capital cases when a State has met certain conditions. In general terms, applications will be expedited (for a State's benefit) when a State has made adequate provision for counsel to represent indigent habeas applicants at the State's expense. Thus, §2261(b) provides that "[t]his chapter is applicable if a State establishes . . . a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners . . ." 110 Stat. 1221-1222. There is an ambiguity in the provision just quoted, the argument runs, for it applies chapter 154 to capital cases only where "a State establishes. . .a mechanism," leaving a question whether the chapter would apply if a state had already established such a mechanism before chapter 154 was passed. The idea is that the present tense of the word "establishes" might be read to rule out a State that already had "established" a mechanism, suggesting that when §107(c) was added to provide that the chapter would apply to "cases pending" it was meant to eliminate the ambiguity by showing that all pending cases would be treated alike.
This explanation of the significance of §107(c) is not, however, very plausible. First, one has to strain to find the ambiguity on which the alternative explanation is supposed to rest. Why would a Congress intent on expediting capital habeas cases have wanted to disfavor a State that already had done its part to promote sound resolution of prisoners' petitions in just the way Congress sought to encourage? It would make no sense to leave such States on the slower track, and it seems unlikely that federal courts would so have interpreted §2261(b). Second, anyone who had seen such ambiguity lurking could have dispatched it in a far simpler and straightforward fashion than enacting §107(c); all the drafter would have needed to do was to insert three words into §2261(b), to make it refer to a State that "establishes or has established . . . a mechanism." It simply isn't plausible that anyone so sensitive as to find the unlikely ambiguity would be so delphic as to choose §107(c) to fix it. Indeed, §107(c) would (on the ambiguity hypothesis) be at least as uncertain as the language it was supposed to clarify, since "cases pending" could be read to refer to cases pending in States that set up their mechanisms only after the effective date of the Act. The hypothesis of fixing ambiguity, then, is too remote to displace the straightforward inference that chapter 153 was not meant to apply to pending cases.
Finally, we should speak to the significance of the new §2264(b), which Lindh cites as confirming his reading of §107(c) of the Act. While §2264(b) does not speak to the present issue with flawless clarity, we agree with Lindh that it tends to confirm the interpretation of §107(c) that we adopt. Section 2264(b) is a part of the new chapter 154 and provides that "[f]ollowing review subject to subsections (a), (d), and (e) of §2254, the court should rule on the claims [subject to expedited consideration] before it." 110 Stat. 1223. As we have said before, §2254 is part of chapter 153 applying to habeas cases generally, including cases under chapter 154. Its subsection (a) existed before the Act, simply providing for a habeas remedy for those held in violation of federal law. Although §2254 previously had subsections lettered (d) and (e) (dealing with a presumption of correctness to be accorded state court factual findings and the production of state court records when evidentiary sufficiency is challenged, respectively) the Act eliminated the old (d) and relettered the old (e) as (f); in place of the old (d), it inserted a new (d) followed by a new (e), the two of them dealing with, among other things, the adequacy of state factual determinations as bearing on a right to federal relief, and the presumption of correctness to be given such state determinations. 110 Stat. 1219. It is to these new provisions (d) and (e), then, that §2264(b) refers when it provides that chapter 154 determinations shall be made subject to them.
Leaving aside the reference to §2254(a) for a moment, why would Congress have provided specifically in §2264(b) that chapter 154 determinations shall be made subject to §§2254(d) and (e), given the fact that the latter are part of chapter 153 and thus independently apply to habeas generally? One argument is that the answer lies in §2264(a), which (in expedited capital cases) specially provides an exhaustion requirement (subject to three exceptions), restricting federal habeas claims to those "raised and decided on the merits in the State courts. . ." 110 Stat. 1223. See 96 F. 3d, at 862-863. The argument assumes (and we will assume for the sake of the argument) that in expedited capital cases, this provision of §2264(a) supersedes the requirements for exhaustion of State remedies imposed as a general matter by §§2254(b) and (c). [n.7] The argument then goes on, that §2264(b) is explicit in applying §2254(d) and (e) to such capital cases in order to avoid any suggestion that when Congress enacted §2264(a) to supersede §§2254(b) and (c) on exhaustion, Congress also meant to displace the neighboring provisions of §2254(d) and (e) dealing with such things as the status of State factual determinations. But we find this unlikely. First, we find it hard to imagine why anyone would read a superseding exhaustion rule to address the applicability not just of the other exhaustion requirement but of provisions on the effect of State factual determinations. Anyone who did read the special provision for exhaustion in capital cases to supersede not only the general exhaustion provisions but evidentiary status and presumption provisions as well would have had to assume that Congress could reasonably have meant to leave the law on expedited capital cases (which is more favorable to the States that fulfill its conditions) without any presumption of the correctness of relevant state factual determinations. This would not, we think, be a reasonable reading and thus not a reading that Congress would have feared and addressed through §2264(b). We therefore have to find a different function for the express requirement of §2264(b) that chapter 154 determinations be made in accordance with §§2254(d) and (e).
Continuing on the State's assumption that §2264(a) replaces rather than complements §2254's exhaustion provisions, we can see that the function of providing that §§2254(d) and (e) be applicable in chapter 154 cases is, in fact, supportive of the negative implication apparent in §107(c). There would have been no need to provide expressly that (d) and (e) would apply with the same temporal reach as the entirely new provisions of chapter 154 if all the new provisions in both chapters 153 and 154 were potentially applicable to cases pending when the Act took effect, as well as to those filed later. If the special provision for applying §§2254(d) and (e) in cases under chapter 154 has any utility, then, it must be because (d) and (e) might not apply to all chapter 154 cases; since chapter 154 and the new sections of chapter 153 unquestionably apply alike to cases filed after the Act took effect, the cases to which (d) and (e) from chapter 153 would not apply without express provision must be those cases already pending when the Act took effect. The utility of §2264(b), therefore, is in providing that when a pending case is also an expedited capital case subject to chapter 154, the new provisions of §2254(d) and (e) will apply to that case. The provision thus confirms that Congress assumed that in the absence of such a provision, §§2254(d) and (e) (as new parts of chapter 153) would not apply to pending federal habeas cases.
This analysis is itself consistent, in turn, with Congress's failure in §2264(b) to make any express provision for applying §§2254(f), (g), (h), or (i). Subsections (f) and (g) deal with producing state court evidentiary records and their admissibility as evidence. Congress would obviously have wanted these provisions to apply in chapter 154 pending cases, but because they were old provisions, which had already attached to "pending" capital habeas cases (only their letter designations had been amended), Congress had no need to make any special provision for their application to pending capital habeas cases that might immediately or later turn out to be covered by chapter 154. Subsections (h) and (i), however, are new; if Congress wanted them to apply to chapter 154 cases from the start it would on our hypotheses have had to make the same special provision that §2264(b) made for subsections (d) and (e). But there are reasons why Congress need not have made any special provisions for subsections (h) and (i) to apply to the "pending" chapter 154 cases. Subsections (h) and (i) deal, respectively, with the appointment of counsel for the indigent in the federal proceeding, and the irrelevance to habeas relief of the adequacy of counsel's performance in previous post-conviction proceedings. See 110 Stat. 1219-1220. There was no need to make subsection (h) immediately available to pending cases, capital or not, because 21 U.S.C. § 848(q)(4)(B) already authorized appointment of counsel in such cases. And there was no reason to make subsection (i) immediately available for a State's benefit in expedited capital cases, for chapter 154 already dealt with the matter in §2261(e), see 110 Stat. 1222. There is, therefore, a good fit of the §2264(b) references with the inference that amendments to chapter 153 were meant to apply only to subsequently filed cases; where there was a good reason to apply a new chapter 153 provision in the litigation of a chapter 154 case pending when the Act took effect, §2264(b) made it applicable, and when there was no such reason it did no such thing.
There is only one loose end. Section 2254(a) was an old provision, without peculiar relevance to chapter 154 cases, but applicable to them without any need for a special provision; as an old provision it was just like the lettered subsections (f) and (g). Why did §2264(b) make an express provision for applying it to chapter 154 cases? No answer leaps out at us. All we can say is that in a world of silk purses and pigs' ears, the Act is not a silk purse of the art of statutory drafting.
The upshot is that our analysis accords more coherence to §§107(c) and 2264(b) than any rival we have examined. That is enough. We hold that the negative implication of §107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective. Because Lindh's case is not one of these, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
1 The other titles address such issues as restitution to victims of crime (Title II), various aspects of international terrorism (Titles II, III, IV, VII, VIII), restrictions on various kinds of weapons and explosives (Titles V and VI), and miscellaneous items (Title IX). See 110 Stat. 1214-1217.
2 Section 103 also amends Rule 22 of the Federal Rules of Appellate Procedure. 110 stat. 1218.
4 In United States v. Nordic Village, Inc., 503 U.S. 30, 34-37 (1992), this Court held that the existence of "plausible" alternative interpretations of statutory language meant that that language could not qualify as an "unambiguous" expression of a waiver of sovereign immunity. And cases where this Court has found truly "retroactive" effect adequately authorized by a statute have involved statutory language that was so clear that it could sustain only one interpretation. See Graham & Foster v. Goodcell, 282 U.S. 409, 416-420 (1931) (holding that a statutory provision "was manifestly intended to operate retroactively according to its terms" where the tax statute spelled out meticulously the circumstances that defined the claims to which it applied and where the alternative interpretation was absurd); Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 184 (1957) (finding a clear statement authorizing the Commissioner of Internal Revenue to correct tax rulings and regulations "retroactively" where the statutory authorization for the Commissioner's action spoke explicitly in terms of "retroactivity"); United States v. Zacks, 375 U.S. 59, 65-67 (1963) (declining to give retroactive effect to a new substantive tax provision by reopening claims otherwise barred by statute of limitations and observing that Congress had provided for just this sort of retroactivity for other substantive provisions by explicitly creating new grace periods in which otherwise barred claims could be brought under the new substantive law). Cf. Seminole Tribe of Fla. v. Florida, 517 U. S. ___ (1996) (slip op., at 9-11) (finding a clear statement of congressional abrogation of Eleventh Amendment immunity where the federal statute went beyond granting federal jurisdiction to hear a claim and explicitly contemplated "the State" as defendant in federal court in numerous provisions of the Act).
Landgraf suggested that the following language from an unenacted precursor of the statute at issue in that case might possibly have qualified as a clear statement for retroactive effect: "[This Act] shall apply to all proceedings pending on or commenced after the date of enactment of this Act." Landgraf, 511 U. S., at 260 (emphasis added; internal quotation marks omitted). But, even if that language did qualify, its use of the sort of absolute language absent from §107(c) distinguishes it. Cf. United States v. Williams, 514 U.S. 527, 531-532 (1995) (finding a waiver of sovereign immunity-unequivocally expressed" in language granting jurisdiction to the courts over "[a]ny civil action against the United States for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected") (emphasis in Williams) (internal quotation marks omitted); id. at 541 (Scalia, J., concurring) ("The [clear statement] rule does not . . . require explicit waivers to be given a meaning that is implausible . . .").
5 See 96 F. 3d 856, 861 (CA 7 1996). Lindh concedes this much. Brief for Petitioner 23, n. 15.
6 Amendment 1199, offered by Senator Dole on May 25, 1995, added what was then §607(c) and now is §107(c). See 141 Cong. Rec. S7553, S7567 (May 25, 1995). A comparison of S.735 as it stood on May 1, 1995 and S. 735 as it passed the Senate on June 7, after the substitution of Amendment 1199, reveals that the part of the bill dealing with habeas corpus reform was substantially the same before and after the amendment in all ways relevant to our interpretation of §107(c).
7 There are reasons why the position that §2264(a) replaces rather than complements §§2254(b) and (c) is open to doubt: Lindh argues with some force that to read §2264(a) as replacing the exhaustion requirement of §§2254(b) and (c) would mean that in important classes of cases (those in the categories of three §2264(a) exceptions), the State would not be able to insist on exhaustion in the state courts. In cases raising claims of newly discovered evidence, for example, the consequence could be that the State could not prevent the prisoner from going directly to federal court and evading §2254(e)'s presumption of correctness of state court factual findings as well as §2254(d)'s new, highly deferential standard for evaluating state court rulings. It is true that a State might be perfectly content with the prisoner's choice to go straight to federal court in some cases, but the State has been free to waive exhaustion to get that result. The State has not explained why Congress would have wanted to deprive the States of the §2254 exhaustion tools in chapter 154 cases, and we are hard pressed to come up with areas on, especially considering the Act's apparent general purpose to enhance the States' capacities to control their own adjudications. It would appear that the State's reading of §2264(a) would also eliminate from chapter 154 cases the provisions of §2254 that define the exhaustion requirement explicitly as requiring a claim to be raised by any and every available procedure in the State, 28 U.S.C. § 2254(c), that newly authorize federal courts to deny unexhausted claims on the merits, 28 U.S.C. § 2254(b)(2), and that newly require a state's waiver of exhaustion to be shown to be express, 28 U.S.C. § 2254(b)(3). No explanation for why Congress would have wanted to deny the states these advantages is apparent or offered by the parties, which suggests that no such effects were intended at all but that §2264(a) was meant as a supplement to rather than a replacement for §2254(b) and (c).
Nevertheless, as stated in the text, we assume for the sake of argument that the State's understanding of §2264(a) as replacing rather than complementing the chapter 153 exhaustion requirements for chapter 154 is the correct one. Forceful arguments can be made on each side, and we do not need to resolve the conflict here.