President Trump’s national emergency declaration on the security threat at the border is constitutional, as I explained in a recent op-ed in the Washington Examiner. That’s an important fact, because we trust in our political leaders to obey their oath of office in defending the Constitution. So it might seem troubling if most Americans expect the president’s emergency declaration will be struck down in court, as today’s headline in The Hill proclaimed.
We should be wary of that finding, however. While it’s possible that the people polled misunderstand the law, I suspect a far more common error is the problem.
While the headline (“Most Americans think Trump emergency declaration will be struck down in court”) referred only to the expected court response, the actual poll asked something different. The question was whether respondents thought it was an appropriate use of the president’s emergency powers and if it would be upheld or struck down by the courts—all in one question. Most people are not lawyers and simply do not know how courts will react. But they do know if they think the action is appropriate or not. There was no option in the poll for “inappropriate but likely to be upheld by courts.” Nor was there apparently an “I don’t know” or “I have no opinion” option.
Since the poll participants were forced to make a choice about which they likely have little knowledge, is it any wonder their opinion on the appropriateness of the declaration determined the answer they selected?
Compounding the problem, that crucial shortcoming in the polling questions didn’t even factor into the news headline, which treated the polled question as if it were a pure question on the law.
Another major flaw with the polling is that the pollster seemed to have presumed that all inappropriate actions are going to be struck down by courts. This reminds me of a saying of the late Justice Antonin Scalia: “[V]ery often if you are a good judge you don’t really like the result you are reaching. You would rather the other side had won and it seems to be a foolish law, but in this job it is garbage in garbage out. If it is a foolish law, [a judge is] bound to produce a foolish result.”
Inappropriate or foolish laws and actions are often found to be lawful, because it isn’t the judge’s job to decide on the appropriateness of the law. If this poll had been written with a separate question concerning the appropriateness of the action and what the expected judicial result was—and an “I don’t know” possibility—I suspect a vastly different result would have been reached. Maybe people would still think courts are likely to strike it down, but I suspect most would simply not claim to know.
Instead, what we have is a misleading poll and a misleading news headline. The lesson here is how a carefully worded polling question can be used to make unsupported claims.