Effects of TONA today

If TONA Were In Force Today: What Would Change—and Who Would Be at Risk?

TONA EFFECTS

Quick refresher: what TONA says

In 1810 Congress proposed a constitutional amendment that went far beyond the existing “foreign emoluments” ban. TONA’s core rule:

If any U.S. citizen accepts or retains any title of nobility or honor, or—without the consent of Congress—any present, pension, office or emolument “from any emperor, king, prince or foreign power,” that person ceases to be a U.S. citizen and is ineligible for any U.S. office of trust or profit.

Unlike the ordinary Foreign Emoluments Clause (Art. I, §9, cl. 8), which is limited to officeholders, TONA would reach every citizen—including presidents, former presidents, and private citizens.

Collision course with modern constitutional law

TONA’s automatic loss of citizenship would collide with modern Supreme Court doctrine, which requires intent to relinquish citizenship:

If TONA were recognized today, courts would likely either (a) narrow the penalty to require Afroyim/Terrazas-style intent or (b) treat the citizenship-loss language as unenforceable while leaving in place office disqualification for accepting prohibited foreign benefits.

How “consent of Congress” already works (and why it matters)

Since 1966, the Foreign Gifts and Decorations Act (FGDA) has provided standing congressional consent for many gifts and decorations from foreign governments (with strict custody and reporting rules). Text: 5 U.S.C. § 7342 (https://www.law.cornell.edu/uscode/text/5/7342).

Key practical detail: the “minimal value” threshold for small gifts is currently $480 (for 2023–2025), per GSA/OGP and Federal Register materials:

Why this matters under TONA: If a gift/decoration is accepted under FGDA’s terms, it already has Congress’s consent—so no TONA violation. Items over minimal value are U.S. government property and typically go to the National Archives or agency custody (example DoD guidance: https://dodsoco.ogc.osd.mil/Portals/102/Documents/Issuances/SOCO%20Advisories/2023/SOCO%20ADVISORY%2023%2002.pdf).

What about modern presidents and famous “honors”?

Saudi Arabia’s “Collar of Abdulaziz Al Saud”

Nobel Peace Prize (Obama, 2009)

DOJ’s Office of Legal Counsel concluded the Emoluments Clause does not apply because the Nobel institutions are not foreign states; FGDA likewise posed no bar:

Honorary knighthoods (Reagan 1989; George H. W. Bush 1993)

News coverage of honorary British orders after leaving office:

The big gray area TONA would sharpen: money and business

TONA covers any “present, pension, office or emolument” from a foreign power—not just medals. That squarely intersects modern fights about foreign government spending at a president’s private businesses.

Emoluments lawsuits against President Trump were ultimately mooted when he left office; the Supreme Court vacated lower-court rulings and did not reach the merits:

If TONA were operative today:

  • FGDA does not “consent” to commercial revenue. It governs gifts/decorations, not payments to private businesses. (FGDA text: https://www.law.cornell.edu/uscode/text/5/7342.)

  • Payments by foreign states or state-owned enterprises to a president’s businesses would likely require explicit congressional consent—or be avoided entirely.

How TONA would change the presidency—practically

  1. Immediate compliance architecture

  2. Zero tolerance for foreign-state payments

    • Any revenue from foreign governments or their instrumentalities to a president’s private interests would be presumptively prohibited absent specific consent legislation.

  3. Congressional role supercharged

    • Expect targeted consent statutes (narrow waivers) for edge cases that fall outside FGDA’s gift/decoration scheme.

  4. Campaigns and transitions

    • Candidates would preemptively de-risk portfolios—divestitures/blind trusts with hard bans on foreign-state counterparties.

  5. Former presidents

    • Paid speeches to state universities, board seats on state-owned companies, or advisory roles with state entities would face TONA scrutiny, unless covered by explicit consent.

  6. Enforcement and litigation

    • Courts ducked the Emoluments merits before (see links above). TONA’s office-disqualification stakes would pressure courts to reach substantive rulings on what counts as “from a foreign power.”

Would recent presidents have been in trouble?

Five policy shifts you’d feel almost immediately

  1. Routine, narrow consent laws for edge cases outside FGDA.

  2. Hard firewall between presidents and any foreign-state money without a bespoke statute.

  3. Hyper-transparent gift reporting (Federal Register/GSA notices) as de facto TONA compliance logs (e.g., https://www.federalregister.gov/documents/2023/03/13/2023-05093/revision-to-foreign-gift-minimal-value).

  4. Pre-campaign divestitures and contractual bans on foreign-state counterparties.

  5. Litigation with teeth because the remedy (office ineligibility) is so severe—courts more likely to reach the merits.

Bottom line for the presidency

  • Ceremonial honors (orders, collars, medals) stay manageable under FGDA (https://www.law.cornell.edu/uscode/text/5/7342).

  • The real disruptor is money: any material benefit from a foreign power—even at market rates—would be presumptively disqualifying without explicit congressional consent.

  • TONA’s early-republic fear of aristocratic influence maps cleanly onto today’s state-capital entanglements. Recognized today, it would harden constitutional guardrails around the presidency more than any modern statute or norm.

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