Can Biden Actually Ratify the ERA?

How we got here, why we need it and if Biden has the legal authority to do so

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JANUARY 17 UPDATE

• President Biden issued a statement saying that, “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.”

• He posted on IG (at)POTUS that “The Equal Rights Amendment is Now the Law of the Land"

• The President does not have unilateral authority to publish constitutional amendments, that is the role of the National Archivist. (1 U.S. Code § 106b) Last we heard (Dec 17) the Archivist said she did not think she had authority to do so. The Biden Admin has said they will not instruct the Archivist to do so. She may change her mind.

• Until the Archivist publishes the amendment, it is not part of the constitution.

• If and when she does, there will likely be litigation that will halt implementation.

DECEMBER 17 UPDATE

• Today the National Archivist said she cannot publish the ERA.

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Phyllis Schlafly, leader of “STOP ERA”

One question I’ve gotten a lot over the last couple weeks is can President Biden actually ratify the ERA? You’re probably going to hear about this a lot today because there is a rally and press conference happening outside the Supreme Court today 12/10 calling for ratification.

However, ratification is a bit more legally complicated than the IG posts pushing for it make it seem.

A quick explainer: The Equal Rights Amendment is a proposed amendment to the constitution to enshrine protections based on sex. If it were finalized as part of the constitution it could, among other things, be used to overturn anti-abortion legislation in red states. According to a letter from 46 Senators, “It would establish the premise that sex-based distinctions in access to reproductive care are unconstitutional, and therefore that abortion bans — which single out women for unfair denial of medical treatment based on sex — violate a constitutional right to sex equality.”

In Section 5 of the Constitution the framers outlined the rules for how it can be amended. The Constitution has been amended 27 times. There’s two methods, through constitutional conventions or by being voted on. In the case of the ERA, the process is that the amendment was voted on by a 2/3 majority in Congress, and then it needed to be ratified by 3/4 of State legislatures.

In 1972 Congress first passed the ERA and soon thereafter it was ratified by 35 states. Progress was slowed by conservatives, namely Phyllis Schlafly, the leader of the “STOP ERA” movement. (There is a miniseries about this called Mrs. America.) To become an amendment to the constitution it needed to be ratified by 38 of the states, and Virginia became the 38th state to ratify in 2020. (however there are some hiccups, more below)

You can take a look at the state by state guide here.

Proponents for immediate ERA ratification argue that the only and final step necessary for the ERA to be enshrined as the 28th amendment is for it to be published by the National Archivist. On November 22 of this year, 46 U.S. senators urged President Biden to direct the national archivist to certify and publish the ERA.

One more quick explainer: The National Archivist is the official responsible for overseeing the National Archives and Records Administration (NARA), which maintains federal records, including important documents such as the U.S. Constitution and amendments to it. The Archivist’s job is to certify and publish amendments to the Constitution once they have met the necessary legal and procedural requirements.

If the ERA were published by the National Archivist, it would mark the formal recognition of the amendment as a valid part of U.S. law, assuming all legal conditions for ratification have been met.

But there are two issues:

1. The original legislation passed by Congress in 1972 included a ratification deadline of 7 years, which they even extended once by 3 years. That deadline had long passed by the time the ERA reached the full 38.

2. A couple states have done take-backsies on their ratification. So we only have the necessary 38 states if you think it’s not possible for any of them to rescind. Idaho, Kentucky, Nebraska, South Dakota and Tennessee passed resolutions to rescind their ratifications.

So can Biden actually wave a magic executive wand and make the ERA happen before the end of his term?

In August of this year the American Bar Association (ABA) adopted a resolution saying that Congress can’t create a ratification deadline for the ERA. Therefore, they argue, that piece of the original legislation should just be disregarded. Their argument for this is that Article V of the Constitution does not expressly include an allowance for ratification deadlines.

The ABA also “supports the principle” that states can’t rescind a ratification, saying likewise since it’s not in the constitution it’s not a power that exists. This makes sense, if states could rescind where would the line be? A constitutional provision that’s going hither and dither depending on the current vibe is not exactly a solid foundation of law. There have been three historical instances where a state rescinded its ratification and were ignored.

The ABA is a legal body with gravitas, but their resolution is not a binding decision by any means, it’s the opinion of the professional organization for lawyers in this country.

So who does have an opinion that matters? The Office of Legal Counsel at the Department of Justice is an advisory body, but one with a role closer to the action. On January 6, 2020 the Office of Legal Counsel at the then-Trump DOJ issued a memorandum analyzing the legal path forward for the ERA. It said that Congress does have the authority to impose a deadline for ratifying the ERA, and because that deadline wasn’t met - the ERA is no longer pending. On January 25, 2022 the Biden Office of Legal Counsel issued an opinion that agreed with that conclusion.

For a long time ERA advocates have been pushing in Congress for bills that extend or nullify the ratification deadline, and a joint resolution lifting the deadline was even passed by the House of Representatives in 2021 (though it did not pass the Senate).

The 2020 Office of Legal Counsel memo went further than merely saying the deadline was in place, arguing that “Congress may not revive a proposed amendment after the deadline has expired.” Under Trump administration policy, ERA advocates would need to start at square one again. However, the 2022 opinion issued by the Biden Office of Legal Counsel said that Congress can act to amend or remove the ratification deadline, “As a co-equal branch of government, Congress is entitled to take a different view on these complex and unsettled questions.”

Office of Legal Counsel memorandums are not binding law, however they do reflect the views of the administrative apparatus.

The National Archives has an official policy on the ERA on their website “NARA defers to DOJ on this issue and will abide by the OLC opinion, unless otherwise directed by a final court order.”

Has anyone sought a court order? Yes, but they didn’t succeed. In January of 202O, ERA advocates filed a case in Massachusetts. The case was dismissed in August of that year and on Oct 13, 2020 the writ of certiorari to the Supreme Court was denied. The Attorneys General of Virginia, Nevada, and Illinois brought a similar case that was also dismissed, finding the states did not show the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA.

There’s one major piece of the puzzle that I have seen left out of most of the recent conversations about the ERA ratification deadline.

The ratification issue has been litigated already. In 1921 the Supreme Court decided that Congress does have the power to institute a ratification deadline in Dillon v. Gloss. In that case the court found that Congress had the authority to institute a seven-year time limit on ratification on the Eighteenth Amendment establishing Prohibition.

In 1939 the Supreme Court heard a case about the proposed “Child Labor Amendment” to the constitution and decided that Congress holds the power to control how the constitution is amended. The ratification deadline is not a historical anachronism, it is something with judicial precedent. I don’t think ERA ratification is the clear-cut legal slam dunk that a lot of us are hoping for, especially as women’s rights are continually being eroded in both the courts and in American culture.

Legally, I think it’s pretty clear the Congressional ratification deadline is law and therefore needs to be extended in order to ratify the ERA. There is a political argument here to push for ratification, and even to steamroll Biden into doing this to force Trump’s hand picked Supreme Court to overturn it (under Trump’s watch). This could create a galvanizing moment for further political organizing.

The problem is that this isn’t who Joe Biden is. He isn’t someone who will do something contravening Supreme Court precedent and I don’t think this is the issue he is going to evolve for.

So should we keep marching on, as the musical Suffs proclaims? Visibility always matters. But more than marching, we need to build a comprehensive plan for tackling the current problems facing ERA ratification: we need the political power.

I want the ERA to be ratified, but we need Congress and the courts to make it happen.

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Post-script: (added December 20)

- The more I’ve thought about this the more I’ve realized what a terrible strategic move this idea was. If Biden were to force the Archivist to publish the ERA, it would have gotten litigated and gone to the majority-conservative Supreme Court. They would undoubtedly overturn the decision, and in doing so would likely make arguments similar to those we saw in the 2020 Trump OLC memo. They would give us a binding decision that Congress can’t fix the ratification deadline. The actual result of this would be to make it nearly impossible to ever get the ERA as an actual part of the Constitution. This strategic mess is emblematic of the leadership we’ve seen from feminist organizations who oversaw the fall of Roe, legally, politically and optically flawed.