Biden announces that the Equal Rights Amendment is the law of the land

Three days before he leaves office, President Joe Biden has made a surprise announcement: He declared that a decades-old proposed constitutional amendment ensure equal rights on the basis of gender is now “the law of the land”.

A senior official told CNN Biden did not take executive action but merely to “state an opinion” that the Equal Rights Amendment (ERA) was in effect. The National Archives — the federal government agency that is the official custodian of the Constitution — has said for years that it cannot legally publish the amendment because it is bound by a Justice Department holding who say they can’t. Additionally, Donald Trump is about to take office and will likely express a different opinion.

The Equal Rights Amendment, which states that “equal rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” was overwhelmingly approved by Congress in 1972 and sent to the states for ratification. Congress initially set a 1979 deadline for ratification; it was later extended to 1982.

That deadline came and went without enough states voting to ratify, and the understanding from the political and legal establishment has generally been that the ERA was dead.

But progressive advocates have tried for years to use some creative but dubious legal arguments to argue that enough states have indeed ratified the ERA and it should go into effect.

Some states voted to ratify the ERA after the deadline passed, and advocates argue that the deadline — as well as the fact that some states also withdrew their ratification — should simply be ignored. An existing opinion from the DOJ (issued during Trump’s first term) determined that the deadline has legal force, but advocates have argued that Biden should simply reject that opinion and say the change is law.

With his new announcement, Biden is giving advocates what they want — sort of. Lawyers had urged him to instruct the National Archives to publish the amendment and make it officially part of the constitution, a move that would provoke a legal battle.

But Biden doesn’t go that far. He’s just speaking his mind, his aides claim. So it is unclear whether it will lead to anything at all.

Everyone knows that the deadline for approval of the Equality Amendment expired decades ago. What this legal argument assumes is, maybe it didn’t.

For a proposed amendment to take effect and officially become part of the Constitution, three-quarters of state legislatures—38 out of 50 states—must ratify it. And in 2020, Virginia became the 38th state to do it for ERA.

But there are two problems.

First, only 35—not 38—states had ratified the ERA by the time the deadline set by Congress hit in 1982.

Second, five of the states that ratified had subsequently voted (before the deadline) to withdraw their ratifications—which, if honored, would reduce the number of ratifying states to 30. (Initially, the amendment had broad bipartisan support, but a backlash from conservatives brewed as the 1970s continued and turned the Republicans against it.)

It has long been taken for granted that the deadline killed the ERA. But progressive lawyers and legal experts came up with an idea: what if we just ignore the deadline? (The technical argument is that Congress did not make the deadline part of the amendment’s text, so it is irrelevant and should be ignored despite Congress’ extremely clear intent.) These experts also say that states lack the power to ratify an amendment, which they have approved.

So in the last few years, two more Democratic state legislatures have gradually approved the amendment. And in 2020, Virginia became the 38th to do so, bringing it to the magic number — if you again ignore the deadline and the five states that withdrew approval.

But that year, Trump’s Justice Department’s Office of Legal Counsel issued an opinion that Virginia’s approval didn’t matterbecause the congressional deadline was real and binding. (They did not decide whether states can revoke ratification.)

The fight to get Biden and his appointees to declare the ERA in effect

When Biden took office, progressives advocate for women’s rights urged Biden to overrule that DOJ statement; but for years neither Biden nor his DOJ did. And Biden’s appointee to head the National Archives, Colleen Shogan, said that given the DOJ’s opinion, it would be illegal for her to publish the change and make it law.

Kamala Harris’ defeat and Biden’s impending departure from office spurred a renewed push from activists who hoped Biden would see this as a legacy-building opportunity and would feel emboldened to defy political and legal caution.

Late. Kirsten Gillibrand (D-NY) took up the charge, arguing that Biden should cement his legacy as a defender of women’s rights by instructing Shogan to disregard the DOJ’s guidance and publish the change. Lawyers have also argued that Shogan should simply do it himself, but last month, Shogan asserted again that it would be illegal for her to do so.

Now, three days before I leave the office – and five full years after Virginia became the 38th state to approve the ERA by advocates’ optimistic math — Biden has in one way acceded to progressives’ demands by asserting that the ERA is the law of the land. Importantly, however, Biden does not directly instruct Shogan to publish the amendment, which is what the spokespeople actually asked him to do.

If Biden had actually been serious about fighting and trying to win a legal battle to get this amendment enacted, he certainly would have begun that battle long before the imminent end of his term in office.

Still, with the announcement, Biden managed to send the hot potato to make Shogan look like the bad guy for trying to follow the law. The pressure is on; as early as December, Kate Kelly of the Center for American Progress told the New York Times that Shogan was “an unelected appointee who makes it his job to keep women and queer people out of the constitution.”

Somehow this push seems to be headed for defeat. Even if Shogan has a reversal, and the National Archives made the change “official” before Trump came in, a legal battle would soon ensue to determine whether it could pass — a battle that would ultimately be decided by a very conservative Supreme Court. And even if the court surprisingly upheld the amendment, that same court would be responsible for interpreting what its broad principle means—and they would probably define it quite narrowly.

So this all seems like something between an empty stunt and a doomed last stand. There will be many important and meaningful battles ahead to protect women’s rights under the Trump administration — but this is not one of them.