Is President Trump violating the Constitution?
Spoiler alert: No.
Among the attacks on the new President as he proceeds to do what he promised, two surface from both sides of the aisle:
that he is violating the ‘emoluments’ clause by creating a bitcoin; and
that he is violating the 14th Amendment by canceling birthright citizenship.
Neither is true.
Let’s start with the financial complaint.
Did he suddenly, as president, unlawfully make fifty billion dollars appear in his bank account, in violation of Article II, Section 1, Clause 7? No.
Here’s what the Constitution says:
The President shall, at stated Times, receive for hs Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that period any other Emolument from the United States, or any of them.
Translation:
he will get a salary, decided ahead of time and not changed while he is in office;
and neither the federal government nor any State will add to that salary.
It says nothing about what business interests a president may have before taking office, and the $TRUMP bitcoin endeavor was launched while he was still a private citizen. All of his business interests will be managed by others, while he is in office. 1
He has been personally stripped of many millions of dollars worth of legal fees by ongoing fraudulent political lawsuits. If he can start a new business before he is inaugurated, and have some new income to look forward to after his term of office, I certainly do not begrudge him that!
For more discussion about how to think about “bitcoin,” please see Appendix A below.
Is he violating the 14th Amendment by rejecting birthright citizenship?
Again, no.
Here’s what the Amendment says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
As explained by the Heritage Guide to the Constitution,
“The 14th Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves.” 2
There are two requirements for citizenship:
place of birth
allegiance
As the Guide explains, based on the discussions at the time of the Amendment, “subject to the jurisdiction thereof” means “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.” 3
“Subject to the complete jurisdiction” does not mean subject to arrest over a traffic violation. It means primary, overriding national allegiance.
The earlier issue of the Indian tribes was considered resolved by that phrasing; tribal members, although born within the bounds of the United States, did not inherit US citizenship since their primary allegiance was to the tribe.
In 1884 Elk v. Wilkins determined that even revoking prior Indian tribal citizenship did not by itself convey US citizenship; neither American Indians individually, nor a tribe as a whole, could become US citizens “of their own will”. 4
The 1898 case of United States v. Wong Kim Ark “conferred birthright citizenship on a child of legal residents of the United States” 5, not visitors, illegal immigrants, or other non-citizens.
My sister was born on a military base in Japan. Is she a Japanese citizen? No, because neither she nor her parents were ever subject to the jurisdiction of Japan.
Is the child of a Honduran illegal immigrant a US citizen, because the mother was in the US at the time of birth? No, he is the child of a Honduran citizen, subject to the jurisdiction of that country just like his mother.
https://www.reuters.com/technology/trumps-new-crypto-token-jumps-ahead-his-inauguration-2025-01-20/
The Heritage Guide to the Constitution, Edwin Meese III, Matthew Spalking, and David Forte, editors. © 2005 The Heritage Foundation. Page 384.
Ibid.
Ibid, Page 385.
Ibid.
Appendix A: Bitcoin
It appears Mr. Trump created a new business venture offering “ownership” of ID numbers we call “bitcoins”, with an agreement that only so many of these ID numbers will ever be offered. His business launched this before he became President, so he did it as a private citizen. Ownership of the ID numbers offered so far are being traded like stock shares.
You could do exactly the same thing. Do the technical and legal work to create a new “coin,” ie, a new series of ID numbers on one of the blockchain platforms, call it by your family name, and offer some of them for sale. If you have millions of people who love you and would like to help the effort, great. It’s called ‘free enterprise’.
Think of it this way. Do you own stock, maybe in your retirement account? If you have shares in various companies worth, say, $1000, do you have $1000?
No. You could have $1000, minus taxes, if you immediately sold it all, but until then, you have zero.
The same is true of Mr. Trump’s new “coin.” If no one wants any, he has generated zero dollars. If twenty people want one, and are willing to pay a dollar each, he has generated twenty dollars. Those who want to buy them are creating the “wealth”. They could be worth zero tomorrow, whatever you think they are worth today.
Bitcoins are somewhat like baseball cards, except less physical — there’s no piece of cardboard to pass around. They are only worth what the next buyer is willing to pay, and their anticipated value depends in part on how many exist, or will exist in the future.
Mr. Trump has made his living by creating successful businesses; this is just one more. It is selling a popular product, and when he leaves the presidency, he can pick up management of this and his other interests. Until then, others will look after them, as Reuters reported (1).
Does he have to “divest”, ie, sell, all his businesses to become President, as some have suggested?
Would you have to sell your family business in town when you became mayor, at whatever price could suddenly be found? And then have no business to return to, after your term?
Of course not.
If you are unhappy about his bitcoin venture, don’t buy any. Create your own, and become famous.
First in line for some $HENDERSON coins…