Ilhan Omar’s eviction request cannot be blocked by Powell v. McCormack

President Donald Trump’s effort to oust Rep. Ilhan Omar amid allegations of immigration fraud could spark a constitutional battle, with legal experts telling Fox News Digital that a landmark Supreme Court case involving another well-established Democrat could not stand in the way of Republicans.

Federal investigators are examining whether the Minneapolis Democrat improperly obtained U.S. citizenship through allegedly fraudulent immigration documents involving her late father. Omar has denied any wrongdoing, and no finding that she does not have U.S. citizenship has been made.

Experts have said Omar may not benefit from protections established in the landmark case involving House Speaker Adam Clayton Powell Jr., D-N.Y., in which the Supreme Court blocked an attempt to expel him from Congress.

Powell faced allegations of misusing congressional funds and improperly paying his wife from congressional payroll. Despite his re-election, the House voted to expel him in 1967, but the Supreme Court later ruled that Congress could not deny service to a duly elected member who met the qualifications of the Constitution.

ILHAN OMAR SHOULD BE TAKEN, EXPORTED IF CITIZENSHIP FRAUD IS PROVEN, SAYS TOP HOUSE REPUBLICAN

Rep. Adam Clayton Powell Jr., D-N.Y., is seen in 1969. (Bettmann/Getty Images)

The first potential avenue for Republicans would be to challenge whether Omar meets the Constitution’s citizenship requirements. Former Deputy Attorney General John Yoo and constitutional scholar Cully Stimson told Fox News Digital that the Powell decision does not prevent Congress from applying constitutional qualifications.

“Powell basically means that Congress cannot add to the minimum qualifications set forth in the Constitution,” Yoo said. “(Since citizenship is defined in the text of the Constitution as a qualification, it can clearly be enforced by Congress. Powell would actually support a decision by Congress to oust Congresswoman Omar if she was not in fact a citizen.”

Stimson argued that citizenship itself does not constitute a legal gray area.

“The Powell v McCormack decision did not involve expulsion. It was actually about judging qualifications. It’s a subtle but important difference,” he said.

Stimson envisioned a showdown in January if federal authorities presented evidence challenging Omar’s citizenship before the new Congress convened and House Republicans tried to prevent him from taking his seat. Such a move would likely face a legal challenge from Omar, he said, raising questions about whether Congress could act before his citizenship status is resolved.

The Constitution requires that House members be at least 25 years old, have been U.S. citizens for seven years, and reside in the states they represent when elected. Stimson argued that even if the alleged immigration irregularities came from Omar’s father, Nur Omar Mohamed, the central question would be whether she legally acquired citizenship, whether or not she knowingly participated in wrongdoing.

“It’s like whether you’re pregnant or not,” he said. “You are either wet or dry: you are a citizen or you are not a citizen.”

In numerous public comments, Trump has called for Omar’s resignation or expulsion, specifically citing reports that she used a pseudonym when taking the oath of office and that she “married his brother.”

“Let’s get her out of there,” he said Monday in Alcorn County, Mississippi.

Fox News Digital has reached out to Omar for comment.

COULD TRUMP REVOKE ILHAN OMAR’S CITIZENSHIP FOR AN ALLEGED BROTHER’S MARRIAGE? THE EX-FEDERAL PROSECUTOR FINDS OUT

Rep. Ilhan Omar, D-Minn., is seeking another term in Minnesota’s heavily Democratic 5th Congressional District. (Bill Clark/CQ-Appel/Getty Images)

A second path would be to seat Omar and then proceed to expel him for misconduct, a separate constitutional power requiring a two-thirds vote of the House. Unlike exclusion for non-compliance with constitutional requirements, expulsion is a disciplinary measure that was not at issue in the Supreme Court’s Powell decision.

At least one House Republican has already threatened to pursue this option.

Rep. Randy Fine, R-Fla., said Friday that if Omar is found not to be a citizen, “I will absolutely demand his immediate deportation.”

Omar faces a separate investigation into his financial disclosures, which U.S. Attorney Jeanine Pirro previously confirmed to Fox News. The investigation follows scrutiny of businesses linked to her now-husband, Timothy Mynett, whose reported valuations reached $30 million before Omar altered the documents, citing accounting errors. No financial wrongdoing has yet been established.

Stimson pointed to the 2023 expulsion of former Rep. George Santos, R-N.Y., as an example of the House exercising its disciplinary power over misconduct that began before a member took office.

Former House counsel Michael Stern wrote in a review of the Constitution’s expulsion clause that although Santos’ alleged misconduct largely predated his tenure, House investigators found that his false statements continued while he was in office.

“Thus, acts committed before a Member’s first election may constitute disorderly conduct subject to congressional discipline, at least if the misconduct is related to the election and particularly if it involves misleading the electorate,” Stern wrote.

Stimson said Omar’s case was largely “uncharted territory” but that the Santos case could still be instructive.

“I think the argument would be: Well, his false statements continued during his time in Congress, they would pull a Santos and use the same logic that they used,” he said.

Any federal ruling challenging Omar’s citizenship could trigger a legal battle over whether she meets the constitutional requirements to hold office and what recourse she would have to challenge such a finding, Stimson said.

“The hardest part for her is how to prove a negative result,” Stimson said, adding that blaming her father wouldn’t hold up in court because no one can legally benefit from another’s criminal actions.

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Rep. Ilhan Omar, Democrat of Minnesota, said her U.S.-born son was arrested by Immigration and Customs Enforcement (ICE) agents in Minnesota on December 13. (Anna Moneymaker/Getty Images)

“It’s a harsh world, but it’s a binary situation.”

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A challenge to Omar’s citizenship could also give rise to a separate fight over the evidence and legal procedures needed to establish whether she qualifies under the Constitution.

Pedro Rodriguez-Aparicio of Fox News Digital contributed to this report.