With polls indicating that the Democrats are poised to win big in the midterm elections, the Trump administration is already attempting to mount legal challenges in certain races and cast doubt on the results.
A post published last month by the Center for Renewing America, an influential right-wing think tank, suggests a more radical strategy, asserting that a number of Democrats could be prevented from holding office even if they win their elections.
The post, titled, “Can Congress Seat a Member-Elect Who Vows to Destroy our Constitution?” argues even winning candidates from what it believes to be a purported “Red-Green Alliance” between “neo-Marxist progressives and anti-Western Muslims,” can and should be kept from being seated in Congress. The post, in effect, claims that Muslim and progressive candidates don’t have to be legally accepted into their elected positions.
“This is another attempt to contort and twist basic norms that have never been used this way for their own partisan purposes,” says Richard Pildes, a professor at New York University’s School of Law.
The CRA was founded by Russell Vought, one of the main architects of Project 2025 and now the director of the Office of Management and Budget. Vought faced criticism for his anti-Muslim comments—he once said that Muslims had a “deficient theology” and “do not know God”—when was nominated for OMB director during the first Trump administration.
The Center for Renewing America (CRA) did not respond to a request for comment.
Though Vought has described himself and allies, including members of the CRA, as “radical constitutionalists,” he has taken several steps that have infringed on the powers of other branches of government to expand the power of the executive branch. Most notably, although Congress is tasked with allocating and approving funds for the operation of the federal government, Vought has impounded, refused, or delayed the disbursement of funds, including billions of dollars that Congress has approved. Last year, Vought put a freeze on $5 billion in foreign aid funding, which was followed up by clawing back more than $800 million this year, a move that may violate the Impoundment Control Act, Maine senator Susan Collins said in late September.
The recent CRA piece—authored by Benjamin Osborne, a Georgetown Law School graduate who is serving as the organization’s legal fellow—argues that the beliefs the organization has imputed to so-called Red-Green politicians are against the US Constitution. Osborne writes that “when someone elected to Congress has personally embraced the destruction of the constitutional order espoused by these groups, he or she cannot truthfully swear to support that order as a condition of taking office.”
According to another CRA publication from earlier this year written by the organization’s executive director, Wade Miller, the so-called Red-Green Alliance includes the “Squad,” the nickname for the group of four progressive women of color who all won seats in Congress in 2018: Alexandria Ocasio-Cortez, Rashida Tlaib, Ayanna Pressley, and Ilhan Omar. It also includes politicians like New York mayor Zohran Mamdani and Michigan senate candidate Abdul El-Sayed. These politicians, the publication claims, are purveyors of “ideology dedicated to destroying capitalism, Christianity, and the Western political tradition.” None of the politicians named in the piece have self-identified as Marxists, though some, including Ocasio-Cortez and Mamdani, are Democratic Socialists.
Corey Brettschneider, a professor of politics and constitutional law at Brown University and host of the The Oath and the Office podcast, says that both posts are “engaged in an attack on the Constitution and then trying to use the law of that as an attack on opponents,” something he believes a court would quickly be able to identify and quash.
Trying to use a Muslim politician’s religion as a reason for them to be disqualified from holding office, says Brettschneider, would likely be even more difficult than taking aim at a certain political group. “The protections I’d say are even stronger against that maneuver because the Constitution is explicit in saying you can’t have a religious test for office,” he says.
El-Sayed’s campaign did not respond to a request for comment about whether they were aware of the Renewing America piece, or what, if any, steps the campaign is taking to prepare for challenges to a possible win.
While any successful legal case based on the logic outlined by the CRA would be unlikely to hold up in court, says Brettschneider, “clearly what they’re doing is floating it to see if it will stick.”
Christian Grose, a professor of political science at the University of Southern California, says that the effectiveness of a strategy like the one outlined by the CRA would likely vary widely depending on the margins of a possible Democratic victory. If the Democrats win one or two seats in the Senate, he says, Republicans could try to dispute results in order to maintain control of the Senate. “But if Democrats win the Senate by something like four seats, I think we will be less likely to see those kinds of things,” he says. “The bigger the margin is on either side, the less likely this will be a viable strategy, and it becomes more preposterous the larger number of winning candidates that someone would try not to seat.”
For members of the House, the outcome could depend on whether Democrats can snag a majority. If Republicans maintain the majority, they could vote to refuse to seat incoming Democrats. In 1967, the House refused to seat Adam Clayton Powell, Jr, a Democrat representative from Harlem and the first Black person from the state of New York to be elected to Congress, due to allegations that he was misappropriating funds.
Grose says that any legal case would risk going unresolved beyond the start of the new Congress in 2027, meaning that whether or not a senator whose win was challenged could be seated would likely be determined by a judge issuing an injunction. “It could become a Congress versus courts showdown,” he says.
Pildes is more direct: “This isn’t going to happen.”
But just because the legal strategy may not work, it doesn’t mean the administration or Republicans wouldn’t make the attempt. Brettschneider noted the administration’s multiple attempts to charge former FBI director James Comey with various crimes, even if prosecutors are unlikely to secure a conviction. “We absolutely need to take it seriously because Trump has been dismantling the guardrails and the norms that are supposed to protect against this, or trying to influence the courts through appointments,” he says. “Even if they don’t get away with it directly, threatening and shutting down opponents creates fear, and makes people worry ‘They might come after me next.’”
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