President Biden, the ERA, and Constitutional Vandalism
Three days from the end of his term, President Biden just announced that he has “long believed” the Equal Rights Amendment to be valid law:
I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women’s full equality once and for all.
On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. 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. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
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.
Although nothing has changed legally for the ERA since 2020, Biden has never taken this position before. He isn’t ordering the Archivist of the United States to publish the amendment (which she has said she cannot lawfully do), and under his Administration the Department of Justice declined to assert the ERA’s validity and defended the decision not to publish it.
One way to explain this hesitancy to endorse the ERA as lawful is that, well, it isn’t. As I’ve discussed here before, Congress can and has placed legally operative language in amending resolutions, not just in proposed article text. The implication is that the ERA’s seven-year time limit is valid—and that the ERA is not. Or, as I argue in forthcoming draft work:
The Twelfth Amendment and the ERA
Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. Should Congress or the Executive ignore the deadline, the ERA’s doubtful validity could provoke a minor constitutional crisis.
But there may be a clear legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen,
Article from Reason.com
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