Three days before leaving office, President Joe Biden made a surprise announcement: He announced that a decade-old proposed constitutional amendment Ensuring equal rights on the basis of gender Now the “law of the land”.
Except it doesn’t.
A senior administration official told CNN Biden was not taking executive action But only “expressed an opinion” that the Equal Rights Amendment (ERA) was in effect The National Archives — the federal government agency that is the official custodian of the Constitution — has said for years that it cannot legally release the amendments, because they are bound by the judiciary. Who says they can’t. Also, Donald Trump is about to take office and will likely express different views.
What’s going on?
The Equal Rights Amendment, which states that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” was overwhelmingly approved by Congress in 1972 and sent to the states for ratification. Congress originally set a deadline of 1979 for ratification; It was later extended till 1982.
That deadline came and went without enough states voting for ratification, and the political and legislative establishment understood that the ERA was dead.
But progressive advocates have been trying for years to use some creative but dubious legal arguments to claim that enough states have indeed ratified the ERA and it should go into effect.
Some states voted to ratify the ERA after the deadline passed, and advocates claim that the deadline — as well as some states that have revoked their ratification — should be ignored. An existing DOJ opinion (issued during Trump’s first term) held that the deadline has legal force, but advocates have argued that Biden should simply reject that opinion and say that the amendment is law.
With his new announcement, Biden is giving advocates what they want — sort of. Lawyers urged him to order the National Archives to release the amendment and make it officially part of the constitution, a move that would have sparked a legal battle.
But Biden isn’t going that far. He was right, his aides claimed, in voicing his opinion. So it’s unclear if it will lead to anything at all.
Everyone knows the deadline for ratifying the Equal Rights Amendment expired decades ago. As this legal argument assumes, it may not have happened.
For a proposed amendment to take effect and officially become part of the Constitution, three-quarters of state legislatures—38 of the 50 states—must ratify it. And, in 2020, Virginia became the 38th state To do so for ERA.
But there are two problems.
First, only 35 — not 38 — states ratified the ERA by the deadline set by Congress in 1982.
Second, five of the ratifying states subsequently voted (before the deadline) to withdraw their ratification — which, if honored, would bring the number of ratifying states down to 30. (Initially, the amendment had broad bipartisan support, but one A backlash from conservatives ensued In the 1970s and Republicans turned against it.)
It has long been accepted that the deadline killed Iraq. But progressive advocates and legal experts have come up with an idea: What if we just ignore the deadline? (The technical argument is that Congress did not make the time limit part of the text of the amendment, therefore, it is extraneous and should be ignored despite Congress’ very clear intent.) These experts also say that states do not have the power to un-ratify an amendment. approved
So in the last few years, two more Democratic state legislatures have gradually approved the amendment. And in 2020, Virginia became the 38th to do so, bringing it to the magic number — if, again, you ignore the deadline and the five states that repealed the authorization.
But that same year, Trump’s Justice Department’s Office of Legal Counsel issued such an opinion Virginia’s endorsement doesn’t matterBecause Congress’ deadlines were real and binding. (They did not address whether states could revoke authorizations.)
Biden and his appointees battle to enact the ERA
Once Biden took office, however, a progressive supporter of women’s rights Biden urged Biden to override that DOJ opinion; But for years, neither Biden nor his DOJ did. And Biden’s appointee to head the National Archives, Colin Shogan, said that given the DOJ’s opinion, it would Publication of his amendment is illegal And make it law.
Kamala Harris’ defeat and Biden’s impending departure from office created renewed pressure from activists, who hoped Biden would see it as an opportunity to build a legacy and feel newly emboldened to defy political and legal warnings.
Sen. Kirsten Gillibrand (D-NY) took over, arguing that Biden should cement his legacy as a defender of women’s rights. Ordering Shogun to ignore the DOJ’s instructions and publish the amendment. Advocates have also argued that the shogun should simply do it himself, but last month, Shogun insisted again It would be illegal for him to do so.
Now, three days before leaving office—and Five years after Virginia became the 38th state Endorsement of ERA by Advocates’ Optimistic Math – Biden has in a way accepted the claim of progressives that the ERA is the law of the land. Importantly, however, Biden is not directly instructing Shogun to release the amendment, which lawyers actually asked him to do.
If Biden was really serious about fighting to enact this amendment and trying to win the legal battle, he would have started that battle long before the impending end of his term.
Still, with the announcement, Biden succeeded in passing the hot potato to make Shogun look like the bad guy for trying to follow the law. The pressure is on; Meanwhile, in December, Kate Kelly of the Center for American Progress told the New York Times that the Shogun “An unelected recruiter who is making it his job Keeping women and people out of the Constitution.”
One way or another, this push seems headed for defeat. Even if the shogun had mouth about it and the National Archives “officialized” the amendment before Trump arrived, a legal battle would soon begin to determine whether it could stand — a battle that would ultimately be decided by the ultra-conservative Supreme Court. And even if the Court surprisingly upholds the amendment, those same courts will be responsible for interpreting what its broad principles mean—and they will. Perhaps define it quite narrowly.
So this all seems like something between an empty stunt and an apocalyptic last stand. There will be many important and meaningful battles ahead to protect women’s rights under the Trump administration — but this is not one of them.
