President Joe Biden made a surprising announcement three days before leaving office. He declared that a decades-old proposed constitutional amendment enshrining equal rights on the basis of gender is now the “law of the land.”
A senior administration official told CNN that Biden has not taken any executive action, only “stating his opinion” that the Equal Rights Amendment (ERA) is in effect. The National Archives (the federal agency that officially administers the Constitution) is bound by Justice Department precedent that says it cannot lawfully publish proposed amendments. I've said this for many years. Moreover, Donald Trump will soon take office and will likely express a different opinion.
The Equal Rights Amendment, which states that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex,” was overwhelmingly approved and ratified by Congress in 1972. sent to each state for the purpose. Congress originally set a 1979 deadline for ratification. It was later extended until 1982.
The deadline passed without enough states voting for ratification, and the general understanding in the political and legal establishment was that the ERA was dead.
But progressive advocates have long tried to use creative but questionable legal arguments to argue that, in fact, enough states have ratified the ERA and that it should go into effect.
Although some states voted to ratify the ERA after the deadline passed, advocates argue that the deadline and the fact that some states withdrew their ratifications should simply be ignored. There is. An existing Justice Department opinion (issued during President Trump's first term) says the deadline has the force of law, but supporters say Mr. They argue that the proposal should be declared a law.
With his new announcement, Biden is giving his supporters what they want — in a sense. Advocates are asking him to instruct the National Archives to publish the amendments to formally make them part of the Constitution, a move that could trigger a legal battle.
But Biden hasn't gone that far. His aides insist he is simply expressing his opinion. So it's unclear whether this will lead to anything.
We all know that the Equal Rights Amendment passed decades ago. The premise of this legal argument is that it probably wasn't.
The amendment would need to be ratified by three-quarters of state legislatures (38 out of 50 states) to take effect and officially become part of the Constitution. And in 2020, Virginia became the 38th state to earn an ERA.
But there are two problems.
First, only 35 states ratified the ERA by the deadline set by Congress in 1982, instead of 38.
Second, five of the ratifying countries subsequently voted (before the deadline) to revoke their ratification. If this is respected, the number of ratifying countries will be reduced to 30. (Although the amendment initially had broad bipartisan support, it also faced opposition as the 1970s progressed, growing among conservatives and turning Republicans against it.)
It has long been taken for granted that deadlines hurt ERAs. But progressive advocates and legal experts have come up with the idea of what would happen if we simply ignored the deadline. (The technical argument is that because Congress did not make the deadline part of the amendment's text, it is irrelevant and should be ignored, despite Congress's very clear intent.) These experts say states do not have the power to unratify the amendment. Approved.
So over the past few years, two additional Democratic state legislatures have gradually approved the amendment. And in 2020, Virginia became the 38th state to do so, reaching the magic number if you ignore the five states that once again ignored the deadline and rescinded approval.
But that year, the Trump administration's Justice Department Office of General Counsel issued an opinion saying Virginia's approval was not an issue because Congress' deadlines were realistic and binding. (The question of whether countries could revoke ratification was not resolved.)
The fight to get Biden and his appointees to declare the ERA effective
But after Biden took office, progressive women's rights advocates urged him to reverse the Justice Department's opinion. But for years, neither Biden nor the Justice Department did so. Colleen Shogan, Biden's pick to head the National Archives, also said that the Justice Department's opinion would make it illegal for her to publish the amendment and make it law.
In the wake of Kamala Harris' defeat and Biden's impending departure, activists hoped that Biden would see this as an opportunity to leave a legacy and gain new courage to ignore political and legal precautions. This spurred their new movement.
Sen. Kirsten Gillibrand (D-N.Y.) took up the accusations, saying that Biden was calling out her role as a champion of women's rights by directing Shogan to ignore guidance from the Justice Department and release the amendment. He argued that we should solidify our track record. Advocates say Shogan should have done it himself, but last month Shogan again claimed it was illegal to do so.
Three days before leaving office, and a full five years after Virginia became the 38th state to approve the ERA due to supporters' optimistic calculations, Biden insists the ERA is the law of the land. In a sense, it complied with the demands of progressives. But importantly, Biden was not directly directing Shogan to release the amendment, which is what his supporters were actually asking him to do.
If Biden was actually serious about pursuing and winning a legal battle to put this amendment into effect, he would have started it long before the end of his term.
Still, with this announcement, Biden managed to pass the hot potato of making Shogan appear to be a bad guy trying to uphold the law. The pressure is on. Already in December, Kate Kelly of the Center for American Progress told the New York Times that Shogan is “an unelected appointee whose job it is to keep women and homosexuals out of the Constitution.”
Either way, this push appears to be headed for defeat. Even if Mr. Shogan changes his tune and the National Archives makes the amendment “official” before President Trump takes office, a legal battle will soon begin to determine whether it becomes law. Ultimately, the ultra-conservative Supreme Court will decide. And even if the court surprisingly upheld the amendment, that same court would be responsible for interpreting what that broad principle means, and would likely define it quite narrowly.
So all this seems like something between an empty stunt and a fateful last stand. There are many important and meaningful fights ahead for women's rights under the Trump administration, but this is not one of them.
