Biden says ERA ratified, but Supreme Court gets final say

Pro-ERA protesters at the National Archives before Biden declared it ratified.
Photo: Celal Gunes/Anadolu/Getty Images

In one of them why the hell not? moves open to a president down to his last weekend in office, Joe Biden declared the equality amendment ratified and thus the 28th amendment to the US Constitution.
A host of feminists and Democratic politicians have called for this move since the moment Biden took office, based on three recent state ratifications (Nevada in 2017, Illinois in 2018, and Virginia in 2020) executed despite a 1982 congressional deadline that ERA proponents could not meet (35 of the 38 required ratifications had occurred by then). Indeed, the House formally repealed the 2021 ratification deadline, rejecting as legally ineffective actions by five conservative state legislators to revoke earlier ratifications. But the Senate never acted, leaving the entire issue in legal limbo.

From a technical standpoint, the National Archivist has the power to recognize ratified constitutional amendments by officially publishing them, and Biden called on this obscure official to do so with the ERA. But in December, anticipating this action, the archivist denied that she had the power to do it. She cited past legal precedents suggesting the 1982 deadline was indeed valid, not to mention ongoing litigation over the Virginia ratification. That’s not likely to change, especially since Biden didn’t formally order the archivist to bend the knee, as New York Times observes:

Aides said that Mr. Biden did not order the archivist, Colleen Shogan, to reverse her position and publish the change, as advocates have urged him to do. Asked for comment Friday, the archivist’s office referred back to previous statements refusing to publicize the change, indicating she would not change her position.

Still, advocates argued that Mr. Biden’s imprimatur gives the amendment additional credibility for any future court battle over whether it actually has the force of law. Biden and his allies are actually daring opponents to go to court to argue that women do not have equal rights.

While there have already been rallies at the National Archives to dramatize the issue, there is every indication that the entire dispute will end up at the Supreme Court, whose conservative majorities are not particularly inclined to redeem the decades-long push for an ERA. But Biden’s action will revive the topic and all the underlying issues of long-delayed equality until the Supreme Court acts.

It is also something of a vindication for the junior US senator from New York, notes CNN:

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 ” i the aftermath of the Supreme Court decision in 2022 overturns Roe v. Wade…

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.

If the ERA is ever recognized as “the law of the land,” Biden can add his small role in its revival to his legacy.