Rejecting court rulings, Biden says Equal Rights Amendment is part of the Constitution

Rejecting court rulings, Biden says Equal Rights Amendment is part of the Constitution

Judges have concluded that the Equal Rights Amendment was never ratified and is not part of the Constitution. President Biden disagrees. “President Biden asserted the Equal Rights Amendment (ERA), which prohibits discrimination on the basis of sex, is part of the Constitution, arguing Friday it had met the criteria to be added as the 28th Amendment,” reports The Hill:

Biden in a statement said the ERA “is the law of the land” because it was passed by a two-thirds majority in Congress, and three-quarters of the states have ratified it. But he stopped short of instructing the archivist to add the amendment to the Constitution, making it unclear what effect the outgoing president’s statement will have and likely inviting legal challenges.

“The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment,” Biden said. “I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”  A senior administration official said Biden was not going to direct the archivist to add it to the Constitution…

Congress approved the ERA in 1972. The congressional approval came with a seven-year deadline for states to sign onto the law as a constitutional amendment, but it wasn’t until 2020 that Virginia became the 38th state to ratify it.

But judges don’t agree with Biden’s position. For example, a judge appointed by President Obama previously ruled that the ERA has not been ratified by enough states, and is not part of the Constitution. So Biden’s position is in defiance of the courts, as former high-ranking Justice Department lawyer Ed Whelan has explained here and here.

As Whelan notes,

Even supporters of the ERA recognized that they needed to start over after the hotly disputed “deadline extension” expired in June 1982. That’s why they attempted to have Congress re-propose the ERA, but their attempt fell short of the required two-thirds vote on the House floor on November 15, 1983.

In February 2020, Ruth Bader Ginsburg, a leading proponent of the ERA, declared the plain reality that Virginia’s purported ratification of the ERA the previous month came “long after the deadline passed.” She similarly stated in September 2019 that she hoped that Congress would “some day” again propose an Equal Rights Amendment (“put [it] back in the political hopper”) and that, if it did, “we’ll be starting all over again collecting the necessary states to ratify it.” In an exit interview with C-SPAN on May 1, 2022, retiring Archivist of the U.S. David Ferriero said, “I can tell you that Ruth Bader Ginsburg twice told me, in this building, we need to start over” on the ERA….In March 2021, in a case brought by three states seeking certification of the ERA as part of the Constitution, a federal district judge appointed by Barack Obama ruled that the deadline for ratifying the ERA expired decades ago. In February 2023, a unanimous D.C. Circuit panel, in an opinion written by another Obama appointee (and joined by appointees of Biden and Trump), “affirm[ed] the District Court’s dismissal” (on the ground that the states’ claim wasn’t even a matter within the court’s jurisdiction). In the course of doing so, the D.C. Circuit archly observed that the states’ position that a ratification deadline is inoperative if Congress places it in the proposing clause of an amendment would mean that Congress’s “specification of the mode of ratification in every amendment in our nation’s history would also be inoperative.”

The Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko explained in December that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”

“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable,” Shogan and Bosanko explained. “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.”

LU Staff

LU Staff

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