The Wages of Playing for Time: Avoidance Doctrines and Interpretive Method in National Security and Foreign Relations Cases

61 Pages Posted: 3 Sep 2009 Last revised: 24 Sep 2015

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: August 31, 2009


Courts often say that they practice deference to avoid prediction. While judges have frequently invoked deference to deal with national security and foreign relations cases, few courts have practiced deference with the aggression that typifies the Roberts Court. Although Boumediene v. Bush, which protected access to habeas corpus, stands as an exception, in other cases such as Ashcroft v. Iqbal, Winter v. NRDC, and Medellin v. Texas the Roberts Court has disfavored claimants such as detainees, criminal defendants, and environmental activists, and curbed efforts to enhance government accountability. The Court has supported its holdings with dire predictions, but has devoted far less attention to the costs of its decisions. I call this gap in assessing future costs predictive asymmetry.

Recent decisions demonstrate this asymmetry in risk assessment. For example, in barring liability in Iqbal for senior officials who turn a blind eye toward detainee abuse, the Court warned that legal accountability would chill timely responses to terrorist threats. In Medellin, Chief Justice Roberts warned that enforcing the judgment of the International Court of Justice on consular notification for criminal defendants would risk the wholesale invalidation of criminal convictions and federal law. However, the Court has discounted the other side of the ledger. In Medellin, for example, the Chief Justice dismissed the uncertainty in foreign relations law caused by Medellin’s search for a clear statement of enforceability in treaties not drafted to satisfy the Court’s demand.

Predictive asymmetry is a departure for conservative courts. The prudential tradition, refined by Justices Frankfurter, Powell, and O’Connor, preferred more modest steps. Prudentialists recognized that courts too eager to second-guess the political branches could become free riders, exercising power while paying no concrete cost for chilling official discretion. However, they also understood that deference has its own risks, enhancing the moral hazard that encourages executive overreaching. Practicing avoidance, prudentialists played for time. For example, the Cold War Court tempered congressional investigations of alleged subversives by narrowly reading the scope of investigators’ authority. However, as the Court’s early post-September 11 habeas decisions showed, the prudentialists had no answer when a persistent crisis prompted ongoing encroachments by the political branches.

Responding to predictive asymmetry’s headlong rush toward moral hazard and prudentialism’s more subtle drift, this Article recommends an iterative approach that views each branch as a player in a cooperative game. Courts using an iterative approach seek to reduce defections from the game, including the free riding of needlessly intrusive judicial intervention and the moral hazard prompted by unduly relaxed standards of review. For example, the iterative approach requires courts practicing avoidance to predict the likelihood that Congress will override their decisions. To decide this issue, a court may consider party control of the Congress and the executive, as well as the track record of the political branches. When an override is likely in a case raising fatal constitutional doubts, the Court should issue a straightforward constitutional ruling. By reducing defections, the iterative approach hopes to maximize deliberation in national security and foreign relations cases.

Suggested Citation

Margulies, Peter, The Wages of Playing for Time: Avoidance Doctrines and Interpretive Method in National Security and Foreign Relations Cases (August 31, 2009). Roger Williams Univ. Legal Studies Paper No. 79, Available at SSRN: or

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

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