Biden says Equal Rights Amendment ratified, kicking off expected legal battle as he pushes through final executive actions

Washington
CNN
—

President Joe Biden made a big statement Friday that the Equal Rights Amendment has been ratified and its protections enshrined in the Constitution, a last-minute move that some say could pave the way for strengthening reproductive rights.

However, it is sure to prompt legal challenges — and its next steps remain extremely unclear as Biden prepares to leave office.

The amendment, passed by Congress in 1972, establishes equal rights for women. An amendment to the Constitution requires three-quarters of the states, or 38, to ratify it. In 2020, Virginia became the 38th state to ratify the bill after it had been dormant for decades. Biden now issues his statement that the amendment has been ratified, and directs the Archivist of the United States, Dr. Colleen Shogan, to certify and publish the amendment.

“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 land that guarantees all Americans equal rights and protections under the law, regardless of their gender,” Biden said in a statement Friday.

Biden, a senior administration official said, is not taking executive action but is “stating a position that it is ratified.”

“He’s using his power of the presidency to make it clear that he believes — and he agrees with leading constitutional scholars and the American Bar Association — not that it should be, but that it is the 28th Amendment to the Constitution,” the official added. .

But legal experts fight it’s not that simple: Ratification deadlines have passed and five states have withdrawn their approval, according to the Brennan Center for Justice at New York University’s Law School, raising questions about the president’s authority to ratify the amendment more than 50 years after it was first adopted.

Biden is leaning on the American Bar Association’s opinion, the senior official said, which “emphasizes that no term limit was included in the text of the Equal Rights Amendment” and “emphasizes that the framers of the Constitution wisely avoided the chaos that would have resulted, whose states could withdraw the ratifying votes at any time.”

Shogan, who would be responsible for the amendment’s publication, said in a December declaration along with Deputy Archivist William Bosanko, that the amendment “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions,” and points to a pair of conclusions in 2020 and 2022 by the Office of Legal Counsel at the US Department of Justice , which confirmed that ratification deadlines were enforceable.

CNN contacted the National Archives for guidance on what the archivist plans to do and was referred to Shogan and Bosanko’s earlier statement, calling it a “long-term position for the archivist and the National Archives.”

“The underlying legal and procedural issues have not changed,” National Archives Public and Media Communications staff said Friday.

The senior official was unable to say whether the White House had been in contact with the archivist prior to Friday’s announcement.

Pressed by CNN on the December statement by the archivist, the senior official said the archivist’s role is “prescribed by law,” is “purely ministerial,” and “she is required to publish a change once it has been effectively ratified.”

Ultimately, the official admitted: “It will be up to the courts to interpret this and their view of the equality amendment.”

Late. Kirsten Gillibrand, Democrat of New York, has made a major push for certification, saying in a memo to interested parties that it would give Biden a way to “codify women’s freedom and equality without needing anything from a bitterly divided and fractured Congress ” in the wake of the 2022 Supreme Court decision that overturned Roe v. Wade.

Biden has taken some executive action to protect abortion rights after the decision, but the White House has essentially exhausted its options barring Congress codifying Roe’s protections, which remains unlikely.

Gillibrand pressed her case to the president’s top aides and outside allies, including an appeal to Biden and the first lady during a holiday party photo shoot, according to a source familiar with the interaction. She was in contact with the White House counsel’s office, the Gender Policy Council and other officials involved in the case.

Biden has spent his final days in office pushing through several executive actions, implementing key laws and cementing his foreign policy, announcing a pair of high-stakes decisions on Friday that underscore his efforts to strengthen his legacy — and protect it from President-elect Donald Trump Trump.

Still, when Trump returns to the White House on Monday, there is much that cannot be undone. Just as Biden spent his first hours in office reversing some of Trump’s biggest moves, joining international pacts and signing executive orders, so too can Trump undo much of Biden’s agenda.

Biden’s recent actions — clemency for nearly 2,500 nonviolent drug offenders and a stated position that the Equality Amendment has been ratified — have mixed durability in the next administration. Clemency actions cannot be reversed, but the ERA movement will certainly bring legal challenges.

Friday’s move joins a wave of recent uses of Biden’s executive power as his team works to heed Chief of Staff Jeff Zients’ post-election call for his team to “run through the tape.”

Since the November election, Biden has leaned into his presidential pardon powers, pardoning 39 people convicted of non-violent crimes, commuting the sentences of 1,500 non-violent offenders and commuting 37 federal death sentences to life behind bars. Biden also pardoned his son, Hunter Biden, who was facing sentencing on gun and tax convictions, a move that drew criticism from both Republicans and Democrats.

He issued an executive action banning new oil and gas drilling across 625 million acres of ocean, a move that drew Trump’s ire. The ban would prevent oil companies from leasing water for new drilling along the entire East Coast, the eastern Gulf of Mexico, the Washington, Oregon and California coasts and parts of Alaska’s northern Bering Sea. The act would require a legislative change from Congress for Trump to reverse.

In another environmental move, Biden designated two national monuments in California, bringing the total amount of federally protected land to 674 million acres, or 1,053,125 square kilometers — an area of ​​land and sea nearly four times the size of Texas.

As Trump prepares an immigration crackdown, Biden extended temporary protected status to nearly 1 million immigrants from Venezuela, El Salvador, Ukraine and Sudan, shielding them from deportation for another 18 months.

The Biden administration removed Cuba from the US list of state sponsors of terrorism, a move likely to be reversed by Trump’s incoming team.

In his waning days in office, Biden canceled student loan debt for 150,000 more student loan borrowers, and his team has been pushing to finalize subsidies for semiconductor chip manufacturing to ensure approved money gets out the door as Trump prepares to take office.

But there are a few fronts where Biden and Trump are on the same page. The president blocked the sale of US Steel to Japan’s Nippon Steel, a rare area of ​​agreement between the two men. The Biden and Trump teams were also in lockstep as they raced to secure a cease-fire and hostage-release deal between Israel and Hamas.

The president is also weighing potential preemptive pardons for some of his political allies, an unprecedented move as he warned Trump against trying to “settle scores.” That decision, sources say, is likely to stall before Trump takes the oath of office.

Trump, who sought to block the transition when he lost the 2020 presidential election, claimed in a social media post that Biden is “doing everything to make the TRANSITION as difficult as possible.” Biden’s executive orders, Trump said in the post, “will all be terminated shortly.”