Biden Attempts To Ratify the Equal Rights Amendment by Blog Post

Outgoing President Joe Biden announced today that he believes the Equal Rights Amendment (ERA) met ratification requirements and is now the official 28th amendment to the Constitution—a statement that has no legal force since the amendment remains unpublished.

“I agree with the [American Bar Association] and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution,” Biden said in a statement released by the White House. “It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.” 

Biden’s comments are not an executive order requiring the national archivist to publish the amendment, but rather a statement of belief that contradicts the current legal opinion of the Justice Department and the archivist. The president has no constitutional role in the amendment process.

“Absent action by the Archivist that withstands the scrutiny of the courts, Joe Biden’s advisory opinion that he thinks the Equal Rights Amendment ratified is empty, vain, given to the winds,” says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.

Congress passed the ERA, which bans discrimination on the basis of sex, and sent it to the states for ratification in 1972, along with a 10-year deadline. But when that 1982 deadline passed, the ERA was three states short of the required 38, and several other states had attempted to rescind their ratification votes.

Nevertheless, the ERA reemerged during the first Trump administration, and three more states voted to ratify it, with Virginia becoming the 38th state to do so in 2020. Democrats, led by Sen. Kirsten Gillibrand (D–N.Y.), have been pressuring Biden to recognize the ERA, arguing that the deadline imposed by Congress was unconstitutional.

The national archivist, Colleen Shogan, rejected that position in December and issued a statement saying she would not certify the ERA. Shogan cited court rulings and Justice Department opinions. In 2020 and again in 2022, the Justice Department’s Office of Legal Counsel “concluded that Congress had constitutional authority to impose that deadline and that, because 38 states had not ratified the proposed amendment before that deadline’s expiration, the ERA is not a part of the United States Constitution and the Archivist of the United States may not certify it as such.”

There is a legitimate argument that deadlines for ratification are inconsistent with Article V of the Constitution, but wishcasting the ERA into the Constitution is bad constitutional process and will further muddy the legal waters. The fact that Biden only announced he believes the ERA is the “law of the land” five years after it allegedly became so—and in the final days of his term—but declined to ever do anything to enforce or publish it, says everything about the seriousness of his position and the seriousness of his presidency.

Congress and the judiciary have the clear power to resolve the status of the ERA, and that is where it will be appropriately decided, not in blog posts from a historically unpopular president.

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