Biden’s last-minute constitutional amendment legal experts criticize: ‘Cynical and irrelevant’

Legal experts criticized President Biden’s announcement declaring the 28th Amendment “cynical and irrelevant.”

Biden released a statement on Friday saying that the Equal Rights Amendment (ERA) should be considered ratified and a new addition to the US Constitution.

“It is long past time to recognize the will of the American people. In accordance with my oath and duty to the Constitution and the country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the country, guaranteeing all Americans equal rights and protection under the law regardless of their gender,” he said.

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“Biden’s announcement is both cynical and irrelevant,” said former Assistant U.S. Attorney and Fox News contributor Andrew McCarthy. “If he believed what he’s saying, he would have said it when his administration started, not when he’s walking out the door as a failed, one-time president.

“More importantly, the president has no constitutional role in the amendment process, so his point of view carries no weight.”

President Biden released a statement Friday saying the Equal Rights Amendment should be considered ratified and a new addition to the U.S. Constitution. (Kevin Dietsch/Getty Images)

“President Biden seems intent on moving his administration from the disgusting to the absurd,” Jonathan Turley, Fox News contributor and Shapiro Professor of Public Interest Law at George Washington University, told Fox News Digital. “This was an embarrassingly pandering moment for the most extreme elements of his party. It is a position based on a long-rejected and frankly ridiculous basis.”

When asked about the timing of the announcement by reporters, Biden said Friday, “Because I had to get all the facts, and I contacted every constitutional scholar in the world to make sure it was the right decision.”

The ERA will prohibit discrimination based on sex. It was sent to the states for ratification in 1972, with Congress setting a 1979 deadline for three-quarters of state legislatures to ratify the amendment. The deadline was later extended to 1982.

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Virginia became the last state to adopt the amendment in 2020, pushing the final number of states that had adopted the amendment to a total of 38. McCarthy noted that the ERA “was not ratified by the states within the statutorily allotted time frame.”

The National Archives is responsible for making constitutional amendments official. (iStock)

“The only way to get it into the constitution would be to start over,” McCarthy said. “Everybody knows this, including Biden. That’s why the National Archivist hasn’t made it public, nor has Biden had the guts to try to order it to happen.”

Turley also said, “Biden notably stopped short of giving the left what it wanted most: an actual proclamation of ratification. He simply issued a statement and presumably left the matter to the archivist.”

ERA: WHAT YOU NEED TO KNOW ABOUT THE EQUAL RIGHTS AMENDMENT

The National Archives is responsible for making constitutional amendments official. The archivist had previously declined to certify the amendment, citing a 2020 opinion from the Office of Legal Counsel of the DOJ (OLC) that “affirmed that the ratification deadline set by Congress for the ERA is valid and enforceable.”

The archivist had previously declined to confirm the change, citing a 2020 opinion from the Office of Legal Counsel at the DOJ. (Samuel Corum/Bloomberg via Getty Images)

“The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the district and circuit levels have confirmed that the ratification deadlines set by Congress for the ERA are valid,” the National Archives said in a statement in December. “Therefore, the Archivist of the United States cannot legally promulgate the Equal Rights Amendment. As leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework within which we operate.”

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“This is just backwards,” McCarthy said. “It will have no lasting effect.”