[This post was co-authored with Professor Seth Barrett Tillman.]
There have been many news reports suggesting that the United States Department of Justice may pursue denaturalization proceedings against Representative Ilhan Omar. These proceedings can take the form of a civil suit under 8 U.S.C. § 1451. The United States may also bring a criminal indictment under 18 U.S.C. § 1425. While the criminal statute has a ten-year statute of limitations, the civil statute does not have any statute of limitation. Moreover, the civil statute requires a lower burden of proof: "clear, convincing, and unequivocal evidence which does not leave the issue in doubt." The civil proceeding also does not afford the defendant a jury trial. USCIS and Congress.gov have published detailed analyses of how denaturalization operates.
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. Instead, we intend to explain what would happen to her congressional seat in light of denaturalization proceedings.
We start with the relevant constitutional 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) 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."
Since the beginning of the Republic, there have been challenges as to whether a member-elect has the requisite years of citizenship. 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:
In the decades after the Founding, both houses of Congress routinely judged the elections, returns, and qualifications of their members. One early and contested instance arose in 1793. The Pennsylvania legislature elected Albert Gallatin to the [United States] Senate. Gallatin, a member of the [Jeffersonian] Democratic-Republican party, was a rival of Alexander Hamilton, a prominent Federalist. Doubts arose about Gallatin's eligibility for the Senate. He was born in Switzerland and had resided in the United States for thirteen years. But it was unclear whether Gallatin had been a U.S. citizen for the requisite nine years. Two Senate committees dominated by Federalists found against Gallatin, and he was barred from the seat. . . .
A[] notorious contest during Reconstruction came from the election of Hiram Revels [in 1870], the first black Senator. 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. 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]. Defenders noted that Revels had previously resided in Ohio, where he had voted in that state and must have been a citizen. In the end, the Senate seated him over the objection of a few 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. 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. Still, absent a final judgment, we sketch out several possible 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? The answer is "yes." The House of Representatives is a coordinate branch of government that can make its own determinations of fact when seating a member. The Constitution empowers the House to determine if a member-elect is a citizen and for how long he has been a citizen. There is no need to wait for a federal court to rule on the matter. No such prior judicial proceedings occurred in the case of Albert Gallatin. That question and its answer, we think, should not be controversial.
Second, could the House of Representatives judge Omar's qualifications in the middle of her elected term? Or, can those qualifications only be judged at the time when she is seated? 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. 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. In these circumstances, a member could simply raise an objection to Omar's qualifications and seek a roll call 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. On the other hand, it might be argued that where a mid-session disqualification vote has the effect of expulsion, then a two-thirds vote is required. We are not aware of any congressional precedents that provide clear analogues or guidance on this point.
Third, what happens at noon on January 3 when the new Congress meets? At that juncture, a member could raise an objection to Omar's qualifications. And under established House precedents, Omar would be asked to "step aside" until her qualifications are settled. The potential chaos that could follow is ably described in an excellent article by Professor Brian Kalt:
Under U.S. House precedent, any member-elect can challenge the right of any other member-elect to take the oath of office at the beginning of a new term. The uncontested members-elect then swear in and decide the fate of those who were forced to stand aside. If the House is closely divided and there are disputed elections at the margins, a minority party could exploit this procedure to try to seize control of the House. This would be outrageous and damaging, even if the effort failed. Contending for ultimate control, both sides could level motions, appeals, and tit-for-tat pre-oath challenges. The proto-House would degenerate into a chaotic mass of votes, meta-votes (about who gets to vote), and meta-meta-votes before anyone has even been sworn in. Instead of the House being controlled by the party that won the most seats in the election, it might go instead to the party that is most disciplined and unified—or, failing that, to the party that is more adept at parliamentary machinations. This nightmare is not completely hypothetical; the House once witnessed a power grab much like this—and it succeeded. But even an unsuccessful attempt could worsen the national partisan divide, weaken the House's legitimacy, and threaten the House's already dangerously low levels of comity. So could an attempt by a majority to bolster its advantage by a seat or two.
If the House splits 217-to-217, and Omar would be the 218th vote giving the Democrats an actual majority, the situation could quickly reach an impasse. Indeed, there may not even be enough votes to select a Speaker until Omar's contest is settled. Likewise, in the absence of any working majority, there may not even be enough support to appoint a committee to look into the matter.
Fourth, let us consider whether Omar could be arrested or detained at the start of immigration proceedings. She could be arrested and then incarcerated if indicted under the criminal denaturalization statute. The Constitution's Privilege from Arrest Clause (Article I, Section 6, Clause 1) provides "Senators and Representatives . . . shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same." It is clear enough the criminal denaturalization offense is a felony. The clause would not immunize her against arrest for allegedly violating this statute.
There is a separate issue whether this clause would prohibit the government from seizing and then detaining Omar in civil immigration facilities under the civil denaturalization statute. We do not take a position whether the allegations made in this civil proceeding would amount to a "breach of the peace" under the clause. One might believe that this constitutional provision would preclude arrest of a Representative based on ongoing civil denaturalization proceedings, but because the Constitution's "breach of the peace" language lacks substantial development from the courts, we, at this juncture, take no position on this issue.
We raise two other issues that do not have settled answers. First, there is some authority for believing that the scope of the constitutional privilege against arrest extends to members-elect, and not merely just to seated members. So even if the House "sets aside" Omar during an election contest based on qualifications, she would still enjoy the same privilege against arrest that seated members enjoy. Second, there is an open question about when, during the House's two-year constitutional term, the privilege applies. The clause applies "during [a member's] Attendance at the Session of their respective Houses, and in going to and returning from the same." In light of NLRB v. Noel Canning, we have doubts this clause applies during intersession recesses longer than three days. During a period of time when the clause does not apply, neither Omar nor any other member (or member-elect) would enjoy any privilege against arrest.
Fifth, let us assume that a federal court issues a final judgment denaturalizing Omar, and all of her appeals and opportunities to seek reconsideration are exhausted. At that moment, she would no longer be a citizen of the United States. But the Constitution does not expressly require that a person presently be a citizen. The text provides:
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.
The citizenship requirement is phrased in the past tense: "been seven Years a Citizen." Once a person has held U.S. citizenship for seven years, that person will have satisfied the citizenship qualification for the rest of their life—even if, as an adult, they subsequently voluntarily, intentionally, and knowingly renounce their U.S. citizenship, and even if they do so while actually serving as a member. The text does not clearly require that a person have seven years of citizenship in the seven immediate years before he was elected. Under a literal reading of the text, a person who has held U.S. citizenship for seven years, followed by a renunciation of his citizenship while an adult (arguably) should be allowed to serve in Congress, even if he would not be able under federal law to vote for himself in any federal election. Admittedly, this literal reading of the Constitution's House Qualifications Clause is counter-intuitive. In our prior scholarly writings, we have repeatedly emphasized Dixonian strict legalism as the appropriate method of interpretation of constitutional text involving qualifications in order to maximize voter choice. That is the Democracy Canon.
Sixth, if Omar were denaturalized in 2027, one must still ask was she a citizen of the United States for seven years? Was she ever a citizen? In other words, is the effect of denaturalization to simply withhold citizenship and its benefits from that person going forward post-adjudication, or is the effect to create a legal fiction such that the person was never a citizen in the first place? Is denaturalization retroactive? By way of analogy, some have argued that Donald Trump ceased being President at some point on or after January 6, 2021, and all actions taken in the final two weeks of his administration were ultra vires. They argue that Mike Pence was, in fact, the real President! This position resembles the arguments that Hiram Revels was not a citizen before the ratification of the Fourteenth Amendment, in light of Dred Scott. We addressed this point in our article on Amendment XIV, Section 3:
Is it really that implausible to think that Section 3 could apply retroactively to a person who was already out of office? Retrospective law-making is an American tradition. Consider the case of Senator Hiram Revels, who was the first black person elected to the United States Senate. His Senate term began in 1870. At the time, did he meet the requirements of being a citizen for seven years? After all, stretching from 1857 to 1863, Dred Scott was still the law of the land, and the Fourteenth Amendment was only ratified in 1868. Some senators argued that Revels was not qualified [arguing that Revel's citizenship only existed after the Fourteenth Amendment went into effect]. But the Senate administered the oath to Revels, in effect retroactively applying Section 1 of the Fourteenth Amendment's citizenship provision. Prior to 1868, Revels might not have experienced life as an American citizen for seven years. Under Dred Scott (1857), he was not a citizen. But the Fourteenth Amendment changed all that. Section 1 apparently retroactively made Revels a citizen for the time period he had experienced life as a non-citizen. And the Senate seated Revels.
When seating Revels, Reconstruction-era Republicans argued that Revels was a citizen for nine years (as is required for senators) even if he did not enjoy or experience any of the incidents of citizenship prior to 1868. By contrast, today, Republicans may argue that Omar was never a citizen, much less a citizen for seven years, even though she had all of the incidents of citizenship prior to January 2027.
The civil statute provides that denaturalization "shall be effective as of the original date of the order and certificate." In other words, the process relates back. If this understanding of our law is correct, even though Omar clearly spent more than seven years living in the United States as a citizen with a passport and even served in Congress, she would have never actually become a citizen. She may be viewed as something akin to a "de facto officer." (We use "akin" as we do not think rank-and-file members of Congress are "officers".) It appears that the law here may be unsettled. We expect that if a final judgment were reached by the courts denaturalizing Omar, and if Omar had exhausted all opportunities for reconsideration and appeal, then the House would rely on that finding. We do not say that the House would be strictly bound to rely on that final judgment. And again, if the federal courts only so concluded after Omar was sworn in and seated as a member, it is unclear what vote—a mere majority or two-thirds—would be needed to unseat and/or expel her.
Seventh, what happens to any actions, including votes, taken by Omar if a court rules that she was not a citizen at the time she served in the House? To make the hypothetical more useful, imagine that she was the deciding vote that gave the House a majority to pass a bill. Had her vote not been counted, the House would have deadlocked 217-to-217, and the President would not have been able to sign it into law. If the vote took place under a prior Congress, such legislation would be insulated against judicial review inquiring into the qualification of members by Chief Justice Chase's decision in Griffin's Case. If the vote took place in the current Congress Congress, such legislation would be insulated against judicial review inquiring into the qualification of members by the enrolled bill rule, which establishes that the authentication of a bill by the House's presiding officer should be viewed as conclusive evidence that all constitutional procedures for bill approval were complied with. So any legislation Omar had voted on was and would remain as valid as it ever was.
Eighth, and finally, what happens if the federal district court rules that Omar is denaturalized, and in reliance on that final judgment, she is expelled from the current House or not seated in a new House, but that judicial ruling is subsequently reversed by a higher federal court, e.g., the United States Supreme Court? Here we quote from our article on Section 3 of the Fourteenth Amendment:
A prominent example may illustrate this principle: the case of Representative Victor L. Berger. In November 1918, Berger, a socialist, was elected to represent a House district for Milwaukee, Wisconsin in the 66th Congress. In February 1919, Berger was convicted in federal district court proceedings for violating the Espionage Act of 1917. When the 66th Congress met on May 19, 1919, Berger was free on bail. Faced with this conviction, the House proceeded to exclude Berger by resolution on November 10, 1919. The standard narrative is that his exclusion was based upon his antiwar agitation during World War I—in other words, his exclusion was purportedly founded upon Section 3 of the Fourteenth Amendment. However, the legal standard or rationale on which the House refused to seat Berger is far from clear.
Berger's seat was declared vacant. A new election was held, in which Berger was a candidate, and notwithstanding his re-election to the seat, the 66th House refused to seat him a second time. In November 1920, Berger ran yet again in the general election for a seat in the 67th House. He was not excluded from the ballot. Berger did not prevail in that election. In January 1921, before the 66th House expired, the Supreme Court overturned his conviction. After the Supreme Court's ruling, Berger ran, and prevailed in, three subsequent elections. He was seated in the 68th, 69th, and 70th Houses.
[Professors] Baude and Paulsen write that "curiously, after the convictions were reversed the House allowed Berger to sit in the sixty-eighth through seventieth Congresses." They do not explain why this seating was "curious." The Supreme Court's decision vacating a conviction under the Espionage Act could have no legal effect on a Section 3 disqualification. Only Congress can relieve that disability by a 2/3 vote of each house. And no such vote took place.
In short, if Omar was undenaturalized—or maybe better to say she was never denaturalized in the first place—a future Congress could seat her. Alternatively, even if a federal court denaturalizes Omar, our view is that members of Congress could independently determine that Omar was and is a citizen for purposes of the House Qualifications Clause. At that point, the tension would not be between the House and the President, but between the House and the federal judiciary.
The relationship between citizenship and qualifications is a tale as old as the Republic. Denaturalization would add a new twist to this old drama.
The post What Happens to Representative Ilhan Omar's Congressional Seat if the United States Files Suit to Denaturalize Her? appeared first on Reason Magazine.
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