Biden Says We Have Another Amendment

Multiple members of Congress, including Sen. Gillibrand (NY), lobbied President Biden to announce that the Equal Rights Amendment was ratified. 

Somewhat surprisingly, he has. Various constitutional scholars and the American Bar Association agree with him. It isn't just an idiosyncratic statement. 

It is long past time to recognize the will of the American people. In keeping 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, guaranteeing all Americans equal rights and protections under the law regardless of their sex. 

He, however, is not instructing the National Archivist to formally announce it is ratified. CNN (see link) reached out and she reaffirmed her statement from last month. It isn't ratified. It's in the hands of Congress and the courts. The president does not have a role in the amendment process. 

Biden's statement is advisory. It is also in my view wrong.  I have talked about this here and elsewhere multiple times. Let's take a summary view. 

Simply put, the original deadlines were appropriate to ensure that the proposal and ratification of amendments were timely. See, e.g., Coleman v. Miller. Congress has the power (but it would be bad policy) to extend it. Art. V and the Necessary and Proper Clause provide the suitable constitutional authority.  

The Trump OLC (Office of Legal Counsel) disagreed. The Biden OLC didn't repeal that statement but noted it was debatable. And, ultimately, it said Congress could still act regardless of what it said on the matter.  It is after all an executive advisory group.

The ERA does not simply guarantee equality based on sex. Its wording is broader than the Equal Protection Clause. It was understood by many to have a broad reach. The true reach of the ERA, contrary to its symbolic meaning, is rarely discussed. 

The matter remains symbolic since Biden's statement does not mean -- like some sort of Easter Egg -- the Constitution was amended while most of the nation was not aware. It is not how we should run a railroad.

The statement --- even without formal instruction to the archivist -- will likely be fodder for litigation. For instance, Merrick Garland has determined that the current drug used for executions is not safe enough. The Trump Justice Department will -- safe to say -- have a different view. OTOH, the finding will influence challenges to state protocols. 

I think an open-ended view of equal protection is warranted. Like Ainsley Hayes on West Wing, at the very least, I think the current Constitution applies equal protection based on sex and gender. Trying to force the ratification of a fifty-year-old amendment through the back door is not a good way to do it.  

Anyway, NPR and others have more.