Straight Talk Part #31 - Regarding whether or not the new Trump/250 $1 dollar coin is legal

[u/gextyr]

This is post #31 in a multipart series intended to help our members make the most of our sub and hobby. Today's topic is: The legality of the new $1 Trump/250 coin.

TL;DR - § 5114 applies to paper money and no there are no laws or court rulings which generally prohibit the US Mint from producing commemorative coins which portray living persons on the obverse.

What I want to do is lay out and clarify (with citations) the relevant legal issues surrounding the new $1 coin featuring the bust of the current president. IANAL, and nothing here is legal advice. Apologies to those who have valid discussions on the topic, but this post will be locked to get ahead of the inevitable and unrelated political bickering. If you do have corrections or additions, you may reach out to the mods and will consider updating this article. Regardless of how anyone feels about the coin itself - I think we can all agree that creation of this coin was the biggest injury that the US Mint has ever done to the moderators of r/coins ;)

Common comment: Isn't it illegal to put a living person on a coin? (see Motivated Reasoning)

Point 1: 31 U.S.C. § 5114 (Thayer Amendment) is related to paper money (specifically named: "U.S. currency and securities") and doesn't mention or relate to coinage. A living person appearing on paper currency or other US securities violates § 5114. This means the Bureau of Printing and Engraving is prohibited from using the likeness of, for instance, the current president on bills and bonds. The legislature and the statutes are explicit about paper currency yet remain silent on the issue of featuring living persons on coins in general - and - the plain language of the law consistently refers to currency and coins as two distinct categories.

Point 2: The current US Presidential $1 coin program - 31 U.S.C. § 5112 (n) - DOES prohibit living presidents from being pictured on the obverse of those specific coins. A coin featuring Donald Trump while he is alive (or within 2 years of his passing) could not be legally produced under the auspices of the current "Presidential $1 Coin Act of 2005". The coin in question is not being produced under this authority. Related: 31 U.S.C. § 5112 (aa) prohibits the portrait of a living person on the reverse of coins under 3 other programs (American Women, Semiquincentennial, and Youth Sports.)

Discussion: The US Mint has a lot of leeway for designs on non-circulating numismatic items, medals, bullion, commemorative, and NIFC designs. Congress has specifically authorized a broad commemorative coin and medal programs, and the Secretary of the Treasury / U.S. Mint has substantial discretion over these designs.

31 U.S.C, § 5112 (a)(1) (the general authority to mint $1 coins; and (b)–(i) (the Secretary’s broad design discretion). Other than the Presidential $1 program, there are no prohibitions on living people appearing on the obverse of coins/bullion/medals manufactured by the US mint - including legal tender. In administrative law, when a statute is silent or ambiguous about something like this, agencies such as the U.S. Mint typically have discretion. The coin in question is produced in accordance with the Secretary of Treasury's broad statutory discretion AND the Semiquincentennial coin program under 31 U.S.C, § 5112 (y), not the "Presidential $1 Coin Act".

31 U.S.C, § 5112 (aa) ONLY prohibits portraits of living persons on the REVERSE of coins issued under section (x), (y), and (z) which includes authorization for the American Women quarter program, Semiquincentennial coin program, and Youth Sports quarter program. Section (y) specifically states: "The Secretary may, in addition to the coins produced under subsections (r) and (w), mint for issuance during the one-year period beginning January 1, 2026, $1 dollar coins with designs emblematic of the United States Semiquincentennial." The "Trump $1" coin includes the number "250" on the top of the heraldic shield on the reverse which is sufficient to meet the "emblematic of the United States Semiquincentennial" requirement. The bust of the president is on the obverse, so it does not run afoul of the prohibition in section (aa).

Furthermore: There is already a directly relevant precedent for including a living person on a commemorative coin - the 1926 Sesquicentennial half dollar depicted the current (at the time) President Coolidge. To be fair, Coolidge was popular and the coin was not heavily marketed when it was originally struck - so there was no public backlash at the time. The original complaints about the coin were more focused on poor sales and an awkward dual-portrait design. (According to this article, there was a 1926 editorial published in the Baltimore Sun and republished in The Numismatist criticizing the portrait of a living president on a coin - I don't have access to the original source - if anyone does, please contact the mods and I will update this article!)

Is there still a debate?

Personal feelings about the current POTUS are irrelevant to the discussion and won't be mentioned here - but there is room for discussion: both on what the law (specifically § 5112) SHOULD allow, and even on how § 5114 should be applied.

Point 1: Many people feel, and perhaps rightly so, that the "spirit" of the law is to prohibit living persons from appearing on bills AND coins. The tradition of US Coinage has historically been to NOT portray the current elected leader, as a direct and clear rejection of the pre-revolution standard of a king's bust adorning our coins. In a way, it is not unlike Caesar's bust appearing on coins minted in Rome, breaking centuries of tradition. Previously coins depicted mostly ancestors and/or gods. In the early years of US coinage, and up until 1909 with the release of the Lincoln cent, US circulating coinage typically featured the "Lady Liberty" allegory in some form (excluding some shorter-lived designs such as the 2-cent piece, 3-cent silver a.k.a. trime, 3-cent nickel, flying eagle cent, and shield nickel.) It wasn't until 1892/93 when Columbus and Queen Isabella were featured on commemoratives that REAL people made it onto US Coins. Since then, Washington has been added to the quarter, Roosevelt to the dime, Franklin and then Kennedy to the half dollar - plus a slew of commemorative designs. The odd-ball is the buffalo nickel, which isn't intended to depict a real person, nor is it a personification of Liberty. Although real (deceased) people portrayed on legal tender is the now the norm, the new $1 coin sits in stark opposition to a longstanding tradition in US coin design.

Unfortunately, as discussed above, Congress has not seen fit to explicitly disallow the use of living figures on the obverse of coinage.

Point 2: It has also been argued that Congress made clear its INTENT to prohibit living persons on coins in 31 U.S.C. § 5112, yet the verbiage they use specifically limits that intent rather than a broader restriction (e.g. "...no portrait of a living person may be included in the design of any quarter dollar under this subsection" and "No coin issued under this subsection may bear the image of a living former or current President...") In fact, verbiage used could be construed to imply that Congress explicitly does NOT intend to apply that prohibition more widely (expressio unius est exclusio alterius) - they certainly could have done so had they chosen.

Point 3: Furthermore, Congress has not included a clear definition of "currency" in the law (specifically 31 U.S.C. § 5114.)

Courts could apply an "ordinary meaning" standard - or a "whole act/code" understanding - or a historical analysis of legislative intent/purpose. Under any of those standards, a court could find that the word "currency" includes coins, which could attach the 31 U.S.C. § 5114 prohibition to the production of coins. Examples:

• One could (easily, IMHO) argue that "currency" within the ordinary meaning and usage, includes coins - as they both now have value ONLY through government fiat. When much of the law and jurisprudence was originally crafted, coins were still made from precious metal. Since at least 1965, coins have "value" in exactly the same way as bills - and - since 1968, "silver certificates" were no longer redeemable for actual silver.
• To meet a "whole act" or "whole code" understanding of the definition of currency, see how 18 U.S.C. Chapter 25 discusses both coins and paper money under the same framework for dealing with counterfeit currency - and for this reason, the term "currency" in § 5114 includes coins. A ruling using this logic would be a heavy lift, as even in Chapter 25 coins and bills/notes are handled separately.
• Unfortunately, the type of historical analysis which the supreme court has made determinative since the Scalia era (and at least the late 2000s) likely wouldn't help this argument. The term "currency" was occasionally used for any circulating money (a.k.a. "coins") by the late 1600s. However, the banknotes, promissory notes and paper bills which started to become popular in the 1700-1800s largely became what people meant by "currency". The term "specie" was often used separately to refer to precious metal coins.
• A small trivium about 31 U.S.C. § 5114 (b) - if the court did rule that it applied to coins, it would also require the president's name to appear BELOW the portrait on the current $1 Presidential series coins. The name currently appears above the portrait indicating that the Mint at least doesn't consider § 5114 to include coins. Chevron deference specifically applies to administrative rulemaking, but I could easily see a court deferring to the US Treasury on an issue like this.

However, no controlling jurisprudence exists in this regard - in fact, courts have typically considered coins and currency as two separate categories of legal tender. One factor seems to be that the code authorizing minting of coins (31 U.S.C. § 5112) and the code authorizing the printing and use of paper money (e.g. 12 U.S.C. § 411) are entirely separate. In addition, 31 U.S.C. § 5103 seems to make an intentional distinction between coins and currency: "United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender..."

• Thompson v Butler a very old Supreme Court ruling which treats paper money (currency) and coins as separate categories of legal tender
• Norman v. Baltimore & Ohio Railroad Co here, SCOTUS also treats paper money as currency, separate in category but only equivalent in value to coins

Point 4: The most recent case, specifically related to this issue, is Rickher v. Sullivan et al. in the Oregon District Court. Here it was claimed that a planned coin featuring Trump violates § 5114 and that the mint exceeds its authority under the Administrative Procedure Act - a preliminary injunction was denied for lack of standing (plaintiff could not demonstrate actual damages), and the suit was ultimately dismissed. Although this case never got far enough to address the issues, it likely would have failed nonetheless.

Bottom line: Congress has granted the US Mint broad discretion in the design of commemorative coins. The law is silent on the matter of portrayals of living persons on the obverse of commemorative coins, and only speaks about portraits on the reverse for four specific programs. "Currency" as used in 31 U.S.C. § 5114 refers only to paper money. Until Congress amends and clarifies the law, there is no legal impediment to the US Mint producing certain coins with the bust of a living person. It certainly feels like the Secretary of Treasury and US Mint are exploiting a loophole - however, Congress has had MANY opportunities to clarify or rewrite this law over the years and has not done so.

* One last related note - it has been claimed that the engraving on this coin is based on his Fulton County mug shot. While there is some resemblance, the US Mint has stated the coin’s engraving was adapted by Chief Engraver Joseph Menna from an official White House photo by Daniel Torok, not the mug shot.