No, Biden cannot change the Constitution

Presidents typically spend their final days in the White House taking care of odds and ends: issuing pardons, signing some final orders, thanking staff. Joe Biden is doing all of these things — and is also trying to change the Constitution on his way out the door.

This morning, Biden declared on X that “The Equality Amendment is now the law of the land.” Well, there you have it: the Constitution has a 28th amendment, and women’s rights have been enshrined across the country.

Or not. Biden cannot change the Constitution because the Constitution does not allow him to.

The fight for the ERA is older than the 82-year-old president, and it didn’t end with Biden’s proclamation on social media. Suffragist Alice Paul first proposed an Equal Rights Amendment in 1923. Nearly half a century later, in 1972, Congress approved and sent to the states a constitutional amendment summed up in 24 words: “Equal rights under the law shall not be denied or abridged by the United States or by any state because of sex.Congress set a deadline for ratification.By 1982, when time ran out, only 35 states had ratified ERA – three short of the three-fourths majority needed to add it to the Constitution.

The battle was mostly dormant until 2017, when Nevada became the 36th state to ratify the ERA. Then Illinois (in 2018) and Virginia (in 2020) followed suit, pushing the amendment over the required threshold. But they were nearly four decades too late, and in that time several states voted to withdraw their ratification.

Read: Did Virginia Just Amend the Constitution?

Over the past several years, ERA advocates have tried a few avenues to enshrine the amendment. They have argued in court that the deadline was unconstitutional, pointing out that many other amendments did not have one attached to their text. They have lobbied Congress to lift the deadline. They have called on the archivist of the United States — the official tasked with formally certifying and publishing amendments — to add the ERA to the Constitution on his own, Congress and the courts be damned.

All their efforts have failed. In 2021, a federal judge dismissed a lawsuit brought by two states seeking to have the ERA recognized; two years later, an appeals court confirmed the ruling. Even Ruth Bader Ginsburg, a staunch supporter of the ERA, opposed the effort, saying in 2020 that advocates had to “start over” because the deadline had passed. In 2021, the House passed a resolution to lift the deadline, but it never cleared the Senate. And just last month, Archivist Colleen Shogan and Deputy Archivist William Bosanko issued a statement saying they could not legally publish the ERA, citing “established legal, judicial and procedural rulings.”

As a last resort, ERA supporters have urged Biden to simply instruct the archivist to release it anyway. But the Constitution gives the president no role in the amendment process; unlike ordinary laws, constitutional amendments do not go to his desk for a signature or veto. And in his statement, Biden said nothing about the archivist or the release of the ERA. His declaration is unlikely to have any force or effect. Advocates might hope that a friendly federal judge would accept the president’s declaration as a formal recognition of the ERA in a case making a legal claim under its auspices. But the conservative-dominated Supreme Court would almost certainly shoot down such a ruling.

Still, Biden’s statement won praise from Democrats this morning. Hillary Clinton, for one, said she was “thrilled”. But it will probably have no more significance than the farewell speech he gave on Wednesday. It is an affirmation of values, a hopeful statement for posterity, but not an actual decree.

As attempts to change the constitution go, this was pretty half-hearted. By noon, a community note had been added to his X post, as if to emphasize the point: “There is no 28th amendment.”