[This post was co-authored with Professor Seth Barrett Tillman.
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- → co → Tillman
]
There have been many news reports suggesting that the United States Department of Justice may pursue denaturalization proceedings against Representative Ilhan Omar.
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Department → suggest → Omar
These proceedings can take the form of a civil suit under 8 U.S.C. § 1451.
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proceedings → take → §
The United States may also bring a criminal indictment under 18 U.S.C. § 1425.
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States → bring → §
, the civil statute does not have any statute of limitation.
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statute → have → limitation
Moreover, the civil statute requires a lower burden of proof: "clear, convincing, and unequivocal evidence which does not leave the issue in doubt."
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which → require → doubt
The civil proceeding also does not afford the defendant a jury trial.
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proceeding → afford → trial
USCIS and Congress.gov have published detailed analyses of how denaturalization operates.
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denaturalization → publish → analyses
Here, we do not opine on the merits of a potential civil or criminal denaturalization proceeding against Omar, or what sorts of procedures and defenses she would have access to.
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she → opine → access
Instead, we intend to explain what would happen to her congressional seat in light of denaturalization proceedings.
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what → intend → proceedings
We start with the relevant constitutional text.
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We → start → text
Article I, Section 5, Clause 1 provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (emphasis added)
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emphasis → provide → Members
And Article I, Section 2, Clause 2 provides that "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
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he → provide → which
Professor Derek Muller's entry in The Heritage Guide to the Constitution (3d) on the Judge of Elections Clause explains two historically noteworthy challenges to qualifications:
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entry → explain → qualifications
In the decades after the Founding, both houses of Congress routinely judged the elections, returns, and qualifications of their members.
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houses → judge → members
One early and contested instance arose in 1793.
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instance → contest → 1793
The Pennsylvania legislature elected Albert Gallatin to the [United States] Senate.
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legislature → elect → Senate
Doubts arose about Gallatin's eligibility for the Senate.
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Doubts → arise → Senate
He was born in Switzerland and had resided in the United States for thirteen years.
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He → bear → years
Two Senate committees dominated by Federalists found against Gallatin, and he was barred from the seat.
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he → dominate → seat
A[] notorious contest during Reconstruction came from the election of Hiram Revels [in 1870], the first black Senator.
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contest → come → 1870
Opponents first charged that his election was improper because the governor of Mississippi who signed his certificate of election was only the provisional governor and therefore not authorized to certify the legislature's selection of Revels.
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who → charge → Revels
Challengers also claimed that Revels was not "nine years a citizen" because he was not a citizen under the Supreme Court's decision in Dred Scott until the ratification of the Fourteenth Amendment in 1868 [and so Revels was only a citizen between 1868 and 1870].
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Revels → claim → 1868
Defenders noted that Revels had previously resided in Ohio, where he had voted in that state and must have been a citizen.
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he → note → state
In the end, the Senate seated him over the objection of a few Democrats.
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Senate → seat → Democrats
For the sake of argument, let us assume that the United States initiates civil denaturalization proceedings before the new Congress meets in January 2027.
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Congress → let → January
This procedure would certainly take some time, and it may not even reach a final judgment (up to the resolution of certiorari) during the duration of Omar's (likely) elected two-year term.
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it → take → term
Still, absent a final judgment, we sketch out several possible issues.
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we → sketch → issues
First, could the House of Representatives determine that Omar lacks the qualifications to be a member of Congress (i.e., a citizen for seven years) in the absence of some judicial finding by a federal district court?
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Omar → determine → court
The House of Representatives is a coordinate branch of government that can make its own determinations of fact when seating a member.
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that → make → member
The Constitution empowers the House to determine if a member-elect is a citizen and for how long he has been a citizen.
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he → empower → House
There is no need to wait for a federal court to rule on the matter.
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court → be → matter
No such prior judicial proceedings occurred in the case of Albert Gallatin.
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proceedings → occur → Gallatin
That question and its answer, we think, should not be controversial.
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we → think → ?
Second, could the House of Representatives judge Omar's qualifications in the middle of her elected term?
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House → judge → term
Or, can those qualifications only be judged at the time when she is seated?
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she → judge → time
We think it is reasonable to suggest, based on the text, that qualifications should only be determined at the outset of the new Congress, or when a member is first admitted and allowed to take her oath, but we admit there is no definitive answer here.
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we → think → oath
The alternative view is that a member must have the requisite qualifications over the entire course of her elected term, and her house always retains the ability to adjudicate those qualifications if an objection is raised by another member.
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objection → have → member
In these circumstances, a member could simply raise an objection to Omar's qualifications and seek a roll call vote.
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member → raise → vote
If determinations about qualifications continuously require a mere majority, as they do at the start of a two-year congressional term, then a mere majority might effectively "expel" Omar.
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majority → require → term
…and 98 more, not listed.
The Aporia
