48th POTUS

Almost nobody thinks I'm right about what I've written today. Let's see how wrong I can be!

Today at noon, former President Trump becomes President Trump once again.

Congratulations to Mr. Trump and his supporters. As an American, I hope and pray that our country during the second Trump term will be stronger, more just, and more prosperous.

That said, I'm going to focus us for a minute on the 2028 election—and the unexpected candidate that I am convinced has between a 10 and 30 percent chance of standing in Trump’s shoes four years from now.

That would be Elon Musk.

Photo by René DeAnda on Unsplash

Wait, some might say. Elon Musk can't be president! The Constitution says so!

He's not a natural-born citizen. He was born in Pretoria in 1971 to South African and Canadian parents (& naturalized in 2002).

In fact, just to make sure we're all on the same page, I'll quote the relevant section right here:

Art II. S1. C5. 1 Qualifications for the Presidency

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Even though most people who have opined on this seem to think it's ironclad, I'm pretty sure Musk has a path to run. Frankly, I’ve become a bit obsessed — as some friends and colleagues of mine can attest (including almost everyone I know with a law degree, that I’ve asked to critique this).

Moreover, if Musk were willing to put billions of dollars into the effort, he’d have a decent shot at winning the election.

Here's how it works. I’m certainly not endorsing Musk, and I don’t think I’ve come up with anything that his legal team couldn’t do in about an hour if he wanted. Musk’s strategy would be fairly simple, and it would hinge on two factors:

• First, the “natural born Citizen” provision is not self-enforcing. The Constitution doesn’t say what the remedy would be if someone who wasn’t a “natural born Citizen” was elected, and while Congress has literally had 200+ years to address this, it hasn’t done anything.

• Second, there’s a legal concept called the “political question doctrine,” in which some cases are so inherently political — and beyond the expertise of courts — that judges will decline to issue a ruling. Classic examples include reviewing impeachment of a president, or most things having to do with treaties and foreign policy.

So, Musk’s goal would be to get the courts (most likely eventually, the U.S. Supreme Court), to take the teeth out of the “natural born Citizen” requirement by deciding that a challenge based on that requirement is a non-justiciable political question, and that they don’t have any power to enforce it.

Here’s how he’d do that in three steps:

1. He’d put a few billion dollars over the next 24 months into the 2026 and 2028 races — becoming the #1 U.S. political donor by far, and creating a “Draft Elon!” movement in the process. His goal would be to get a big chunk of Americans and elected officials saying: “You know, Musk would be an amazing president! It’s too bad we have that stupid, archaic ‘natural born Citizen’ rule.”

2. Next, Musk would make a fig leaf legal argument that he actually is or should be considered a "natural born Citizen." Details on this below, but the claim would be based on the fact that Musk had an American-born grandfather. Even better for him, he’d get law professors and friendly state attorneys general make the argument.

3. Finally, while this would clearly wind up in the courts, Musk would get to choose which court. Then, the judge (and appellate courts) would have three choices: (a) buy into Musk’s “fig leaf” argument, or (b) disqualify him during the height of the 2028 cycle, or (c) declare the whole thing a political question—saying that it’s up to Congress, not the courts, to find a way to enforce “natural born Citizen” if it’s really so important.

I should devote a short bit to Musk's “fig leaf” claim to U.S. citizenship at birth.

It starts with the fact that his maternal grandfather was born in the United States before moving to Canada, where Musk's mother was born, before moving on to South Africa, where Musk himself was born. It’s pretty clear that Musk's mother was an American citizen via her father, but she couldn’t pass U.S. citizenship to her son because she hadn't lived in the United States long enough beforehand.

But, the law changed years later, so that a baby born now in the same situation could arguably "reach back" in many cases to a grandparents’s U.S. citizenship.

Musk would argue that this means Congress has created two classes of U.S. citizenship, and that under the 14th Amendment's equal protection clause, the courts have to review that decision skeptically — under a "strict scrutiny" standard.

Would this be a winning argument? I admit that it’s pretty thin — but again, it doesn’t matter. The whole point is that Musk doesn't have to win. He just has to raise the argument and then not lose, by getting the courts, and eventually, a Supreme Court majority, to decide not to decide.

For what it’s worth, there is not much case law on “natural born Citizens.” It doesn’t come up often, and when it does, courts have been quick to look for ways to avoid deciding anything.

(Examples: lots of dismissals for lack of standing in cases involving candidates like John McCain and Ted Cruz, both born abroad to US parents).

There are some law review articles suggesting that maybe “political question” is the answer, but they’re far from decisive.

We also need to remember that Musk’s wealth and power would have been unimaginable to the founding fathers. In fact, based on his increase in net worth last year alone (from $229 billion to $443 billion), if Musk were a country, he’d rank around 56th in world GDP:

• 54. Hungary, $245 billion

• 55. Qatar, $226 billion

• 56. Elon Musk, $213 billion

• 57. Nigeria, $195 billion

• 58. Ukraine, $190 billion

The point is that almost nobody else on the planet would have this unique combination of a U.S. grandparent, a potential desire to become president, and literally untold billions of dollars to devote to the effort.

As I mentioned above, I ran this whole idea by several lawyer friends before sharing it with you. Most of them were very skeptical, although nobody told me they thought it was flat-out impossible.

One suggested I should drop the whole thing into an AI engine and see what the likelihood of success was.

So, I decided to go with Grok, which is Musk's own AI.

Bottom line, having reviewed everything above, Grok gave Musk a 10% chance of becoming the next president if he were dedicated to the task—but then bumped up to 30% if he were able to get Trump's support in the quest.

Bookmark this for four years from now, so you can tell me how I did.

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7 other things worth knowing today

• President-elect Trump launched his a cryptocurrency Friday night, which as of Sunday appeared to have made him more than $50 billion on paper before falling off (but still: billions). The stunning launch of $TRUMP caught the entire industry off-guard. On Sunday evening, former and and about-to-be First Lady Melania Trump joined him with her own coin launch, $MELANIA, which was worth more than $5 billion within a couple hours. (Axios)

• Trump will be sworn in on Monday inside the U.S. Capitol, in a break from tradition due to record cold temperatures. (CBS News)

• Among his plans for Inauguration Day: signing more than 200 executive actions —a massive, first wave of policy priorities focused on border security, energy, reducing the cost of living for American families, ending DEI programs across the federal government, and more. The sheer scope of orders is supposed to feel like “shock and awe.” (Fox News)

• TikTok said it was in the process of restoring operations in the U.S. Sunday, after Trump promised to issue an executive order allowing it to function despite a U.S. Supreme Court ruling on Friday that it had to be shut down. Americans reported being able to regain access, and a new message from the app greeted all users. "Welcome back! Thank you for your patience and support. As a result of President Trump's efforts, TikTok is back in the U.S.!" (Fox Business)

• Israelis celebrated the return Sunday evening of the first wave of hostages from the Gaza Strip, hours after Israel and Hamas' long-awaited ceasefire went into effect. Many hope the hard-fought reprieve will usher in a permanent end to the 15 months of fighting that has left more than 46,800 Palestinians dead. (NBC News)

• Republicans gearing up for new jobs in the second Trump administration are being advised to buy a form of legal insurance that would provide them with attorneys if needed. “It’s edging into absolute requirement territory,” said a former Trump White House official. “It would be reckless if you have any assets to protect — the house, college funds, whatever.” (Yahoo News)

• Finally, President Biden has not taken my advice on pardons. He did pardon five people on Sunday, including the late civil rights leader Marcus Garvey, who died in 1940. (Reuters)