President Donald Trump’s campaign to remove Democratic Representative Ilhan Omar from Congress over allegations of immigration fraud could lead to a constitutional dispute, as legal experts argue that a landmark Supreme Court ruling may not prevent Republicans from challenging her eligibility to serve.
Federal investigators are reportedly examining whether Omar, who represents Minnesota, obtained United States citizenship through allegedly fraudulent immigration documents involving her late father. However, Omar has denied any wrongdoing, and no official finding has established that she is not a US citizen.
Legal experts who spoke to Fox News Digital said the Supreme Court’s 1969 decision in Powell v. McCormack may not protect Omar from efforts to remove her from the House.
The case concerned former Democratic Representative Adam Clayton Powell Jr. of New York, who faced allegations of misusing congressional funds and placing his wife on the congressional payroll improperly.
Although Powell won re-election in 1966, the House voted in 1967 to exclude him. The Supreme Court subsequently ruled that Congress could not deny a duly elected representative a seat if the individual met the qualifications specified in the Constitution.
Former Deputy Assistant Attorney General John Yoo and constitutional scholar Cully Stimson argued that the ruling does not prevent Congress from enforcing the eligibility requirements set out in the Constitution.
Yoo explained that the Powell decision stopped lawmakers from introducing additional requirements beyond those provided by the Constitution. However, he maintained that citizenship is already one of the constitutional conditions for serving in the House.
“Powell essentially means that Congress cannot add on to the minimum qualifications set out in the Constitution,” Yoo said. Since citizenship is set out in the text of the Constitution as a qualification, it clearly can be enforced by Congress. Powell, in fact, would support a congressional decision to oust Congresswoman Omar if she was, in fact, not a citizen.”
Stimson also distinguished between the circumstances surrounding Powell’s case and a possible challenge to Omar’s eligibility.
“The Powell v. McCormack decision did not involve expulsion. It actually was to judge qualifications. That’s a subtle but important difference,” he said.
He suggested that a confrontation could emerge in January if federal authorities presented evidence questioning Omar’s citizenship before the next Congress begins and Republicans moved to prevent her from taking her seat.
Such an action could prompt Omar to challenge the decision in court, potentially raising questions about whether lawmakers could deny her a seat before her citizenship status was conclusively determined.
Under the US Constitution, members of the House of Representatives must be at least 25 years old, have been American citizens for seven years, and reside in the states they represent when elected.
Stimson said the central issue would be whether Omar legally acquired citizenship, even if any alleged immigration irregularities were connected to actions by her father, Nur Omar Mohamed.
“It’s like you’re either pregnant or you’re not,” he said. “You’re either wet or dry. You’re a citizen, or you are not a citizen.”
Trump has repeatedly called for Omar to resign or be removed from Congress, referring to allegations that she used a pseudonym during her swearing-in and that she “married her brother.”
“Let’s get her the hell out of there,” he said on Monday during an appearance in Alcorn County, Mississippi.
A separate option available to Republicans would be to allow Omar to take her seat and subsequently pursue her expulsion over alleged misconduct. Unlike exclusion based on constitutional eligibility, expulsion is a disciplinary measure that requires the support of two-thirds of the House.
Republican Representative Randy Fine of Florida has already indicated that he would pursue that route if Omar were found not to be a citizen.
“I absolutely will demand expulsion immediately,” Fine said on Friday.
Omar is also facing scrutiny over her financial disclosures, in a separate investigation previously confirmed to Fox News by US Attorney Jeanine Pirro.
The inquiry followed questions surrounding businesses associated with her current husband, Timothy Mynett. Their reported valuations had reached as high as $30m before Omar amended her financial disclosures, attributing the changes to accounting errors. No financial wrongdoing has been established.
Stimson cited the 2023 expulsion of former Republican Representative George Santos of New York as an example of Congress exercising its disciplinary powers over misconduct that occurred both before and during a lawmaker’s time in office.
Former House counsel Michael Stern, in an examination of the Constitution’s expulsion clause, noted that although much of the alleged misconduct involving Santos predated his election, House investigators found that some of his misrepresentations continued after he entered Congress.
“Thus, acts committed before a member’s first election may constitute disorderly behavior subject to congressional discipline, at least if the misconduct relates to the election and particularly if it involves deceiving the electorate,” Stern wrote.
Stimson said the Santos case could provide a basis for Republicans seeking to build an expulsion argument against Omar, particularly if they contend that alleged misrepresentations continued while she was serving in Congress.
“I think the argument would be, ‘Well, her misrepresentations continued during the time in Congress.’ They would pull a Santos and use the same logic that they used,” he said.
He added that any federal finding challenging Omar’s citizenship could lead to further litigation over her constitutional eligibility and the legal steps available to her to dispute such a determination.
“The hard part for her is ‘how do you prove a negative’,” Stimson said, adding that blaming her father would not necessarily provide a legal defence because individuals cannot benefit from another person’s criminal acts.
A challenge to Omar’s citizenship could therefore develop into a wider legal battle over the evidence and procedures required to determine whether she meets the constitutional conditions for serving in the House.
