Three days before leaving office, President Joe Biden has made a surprising announcement: He declared that a decades-old proposed Constitutional amendment enshrining equal rights on the basis of sex is now “the law of the land.”
A senior administration official told CNN that Biden was not taking executive action but merely “stating an opinion” that the Equal Rights Amendment (ERA) was in effect. The National Archives — the federal government agency that is the official keeper of the Constitution — has stated for years that they cannot legally publish the amendment, because they’re bound by a Department of Justice holding that says they can’t. Plus, Donald Trump is about to 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 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 to 1982.
That deadline came and went without enough states voting to ratify, and the understanding from the political and legal establishment has generally been that the ERA was dead.
But progressive advocates have for years been trying to use some creative but dubious legal arguments to claim that enough states actually have 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the ERA after the deadline passed, and advocates claim that the deadline — as well as the fact that some states also rescinded their ratification — should simply be ignored.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 the amendment is law.
With his new announcement, Biden is giving advocates what they want — sort of. Advocates had urged him to instruct the National Archives to publish the amendment and make it officially part of the Constitution, a move that would provoke a legal battle.
But Biden is not going that far. He’s just, his aides claim, stating his opinion. So it’s unclear whether this will lead to anything at all.
Everyone knows the deadline for approving the Equal Rights Amendment expired decades ago. What this legal argument presupposes is, maybe it didn’t.
For a proposed amendment to go into effect and officially become part of the Constitution, three-quarters of state legislatures — 38 of 50 states — need to ratify it. And, in 2020, Virginia became the 38th state to do so for the ERA.
But there are two problems.
First, only 35 — not 38 — states had ratified the ERA by the time the deadline set by Congress hit in 1982.
Second, five of those states who ratified had subsequently voted (before the deadline) to rescind their ratifications — which, if respected, would cut the number of ratifying states down to 30. (Initially, the amendment had broad bipartisan support, but a backlash from conservatives brewed as the 1970s went on and turned Republicans against it.)
It has long been taken for granted that the deadline killed the ERA. But progressive advocates and legal experts came up with an idea: what if we simply ignore the deadline? (The technical argument is that Congress did not make the deadline part of the amendment’s text, so therefore, it is extraneous and should be ignored despite Congress’s extremely clear intent.) These experts also say states lack the power to un-ratify an amendment they’ve approved.
So in the past few years, two more Democratic state legislatures 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 rescinded approval.
But that year, Trump’s Justice Department’s Office of Legal Counsel issued an opinion that Virginia’s approval didn’t matterbecause the congressional deadline was real and binding. (They did not resolve whether states can rescind ratification.)
The battle to make Biden and his appointees declare the ERA in effect
Once Biden took office, however, progressive women’s rights advocates urged Biden to override that DOJ opinion; but for years, neither Biden nor his DOJ did so. And Biden’s appointee to head the National Archives, Colleen Shogan, said that given the DOJ’s opinion, it would be illegal for her to publish the amendment and make it law.
Kamala Harris’s defeat and Biden’s imminent departure from office spurred a renewed push from activists, who hoped Biden would see this as a legacy-making opportunity and would feel newly emboldened to defy political and legal caution.
Sen. Kirsten Gillibrand (D-NY) took up the charge, arguing that Biden should cement his legacy as a defender of women’s rights by instructing Shogan to disregard DOJ’s guidance and publish the amendment. Advocates have also argued that Shogan should simply do it herself, but last month, Shogan again asserted that it would be illegal for her to do so.
Now, three days before leaving office — and five full years after Virginia became the 38th state to approve the ERA by advocates’ optimistic math — Biden has in one way acceded to progressives’ demands by asserting the ERA is the law of the land. However, importantly, Biden is not directly instructing Shogan to publish the amendment, which is what the advocates were actually asking him to do.
If Biden had actually been serious about fighting and trying to win a legal battle to make this amendment go into effect, he surely would have begun that battle long before the imminent end of his term.
Still, with the announcement, Biden did succeed in passing the hot potato to make Shogan look like the bad guy for trying to follow the law. The pressure is on; already, in December, Kate Kelly of the Center for American Progress told the New York Times that Shogan was “an unelected appointee who is making it her job to keep women and queer people out of the Constitution.”
One way or another, this push seems headed for defeat. Even if Shogan has an about-face and the National Archives made the amendment “official” before Trump came in, a legal fight would soon ensue to determine whether that could stand — a fight that would ultimately be decided by a very conservative Supreme Court. And even if the Court surprisingly let the amendment stand, that same Court would be in charge of interpreting what its broad principle means — and they’d likely define it quite narrowly.
So all this seems like something between an empty stunt and a doomed last stand. There will be many important and meaningful battles ahead to protect women’s rights under the Trump administration — but this isn’t one of them.
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