Biden says ERA is ‘law of the land,’ but next steps unclear: NPR

Protesters urge ratification of the Equal Opportunity Amendment during a rally on September 28, 2022 in Washington, DC

Jose Luis Magana/AP

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Jose Luis Magana/AP

President Biden declared Friday that he believes the Equal Rights Amendment to the Constitution is “the law of the land,” a surprise declaration that has no formal effect but is being celebrated by its backers, who plan to rally. today in front of the National Archives.

The change must be formally published or certified to take effect by National Archivist Colleen Shogan — and when or if that will happen is unclear.

The executive branch does not have a direct role in the amendment process, and Biden will not order the archivist to certify and publish the ERA, the White House told reporters on a conference call. A senior administration official said the archivist’s role is “purely ministerial,” meaning the archivist is required to publish the amendment once it is ratified.

The 1970s amendment passed by Congress would guarantee men and women equal rights under the law, but it took until 2020 for enough state legislatures to ratify it, missing a deadline set by Congress. ERA supporters have argued that the deadline was not binding because it was in the preamble to the amendment rather than the text of the amendment itself.

On Friday, Biden said he believed the ERA had cleared the hurdle of being added to the Constitution as its 28th Amendment when Virginia ratified it five years ago. He did not explain why he waited until the waning days of his presidency to act.

“It is long past time to recognize the will of the American people. In accordance with my oath and duty to the 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 country and guarantee all Americans equal rights and protection under the law regardless of their gender,” Biden said in a brief written statement.

His move comes after a campaign by Democratic lawmakers, including Senator Kirsten GillibrandDN.Y., which has said that it would be a way to protect abortion rights. Gillibrand has said she expects the case to end up in the Supreme Court.

The issue has long been the subject of legal controversy. In 2020, the archivist – who is charged with making constitutional amendments official – refused to certify the amendment, citing an opinion from the Ministry of Justice’s Office of Legal Counsel. The department said it considered the ERA to have expired after a 1982 ratification deadline was missed. In 2022, the Office of Legal Counsel issued a statement confirms this decision from 2020.

Shogun, a Biden appointee and the first female archivistsaid in her 2022 confirmation hearing that she would abide by the Office of Legal Counsel’s opinion that said the ERA’s fate would be decided by the courts or Congress. Last month, Shogan repeated that Congress and the courts would have to take further steps to lift the deadline for the amendment to be ratified—arguing that it could not legally certify and promulgate the ERA.