Biden Declares Equal Rights Amendment Passed, No Certification Action Taken

President Biden Declares Equal Rights Amendment as Part of the Constitution, Calls for Action

On Friday, President Joe Biden asserted that the Equal Rights Amendment (ERA) has fulfilled the necessary requirements for ratification, asserting its status as part of the Constitution. However, he stopped short of directing the government to formalize this recognition by publishing it officially.

In a statement reflecting his commitment to the Constitution and the nation, President Biden stated, “In keeping with my oath and duty to 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.” Despite this proclamation, the president’s declaration lacks legal authority. The U.S. Constitution dictates that the executive branch does not have a direct role in the amendment process, leaving the Archivist of the United States, a Biden appointee, in a position to determine publication.

The current archivist, Colleen Shogan, has refused to publish the ERA, contending that it has not met the constitutional criteria for being incorporated into the Constitution. Reportedly, aides mentioned that President Biden was not instructing Shogan to change her position, a move that has been sought by advocates of the amendment. When approached for comments regarding the president’s statement, Shogan’s office referred back to prior pronouncements consistently refusing to publish the amendment, suggesting that her stance would remain unchanged.

Despite the archivist’s position, supporters of the amendment argue that President Biden’s endorsement lends significant weight to their cause, potentially bolstering their position should a legal battle arise concerning the ERA’s status. By asserting the amendment’s validity, Biden and his allies are effectively challenging opponents to legally refute their claim that women do not enjoy equal rights under the law.

Biden’s intervention comes at a crucial moment, occurring just three days before the end of his administration—a strategic move likely aimed at cementing his legacy on a divisive issue that has persisted for generations. Though his declaration symbolizes a commitment to profound change, critics point out that it does not translate into tangible action.

The Equal Rights Amendment, first proposed over a century ago, has a long and complex history. It passed both houses of Congress with the requisite two-thirds majority in 1972 and seemed on track to be ratified by enough states. However, despite its initial momentum, the amendment fell short of the required three-quarters majority until Virginia’s ratification in January 2020 marked it as the 38th state to do so.

Opposition to the ERA revolves around concerns regarding a seven-year deadline imposed by Congress for ratification, which was later extended by an additional three years. Critics argue that the attempt to ratify the amendment beyond this timeframe invalidates its acceptance. Furthermore, some states that initially ratified the amendment have attempted to rescind their approval, thereby adding to the existing legal ambiguities surrounding its status.

The language of the ERA, initially drafted by women’s rights advocate Alice Paul in 1923 and subsequently amended, is succinct: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The amendment also stipulates that Congress has the power to enforce it through legislation, and it would become effective two years post-ratification.

While the amendment appears straightforward, its implications resonate with contentious legal debates. Proponents assert that embedding such a fundamental principle in the Constitution is necessary to safeguard against potential rollbacks of existing protections against sex discrimination, which are currently upheld by statutory law. Critics, on the other hand, warn of possible unintended consequences that the ERA might precipitate, affecting issues ranging from abortion rights to military conscription for women.

Proponents of the ERA have actively encouraged President Biden to compel Shogan to publish the amendment. Last month, Shogan and her deputy William J. Bosanko issued a joint statement affirming that the ERA “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.” They referenced various court rulings and Justice Department memos to conclude that their hands are tied legally in publishing the amendment.

However, individuals like former Senator Russ Feingold, president of the American Constitution Society, a progressive advocacy group, argue that Biden’s recent assertion carries weight even if the archivist does not officially recognize the amendment. Feingold remarked, “It’s completely historic to have the president of the United States say it’s already in the Constitution,” emphasizing that regardless of the archivist’s decision, public acknowledgment from the president is significant.

This perspective illustrates a shift from Feingold’s earlier stance, which emphasized the necessity of the archivist’s publishing the amendment for it to gain acceptance. Now, he suggests that the archivist’s role in this matter has become merely administrative, placing the onus of legal recognition on the president’s declaration, which he views as a milestone after prolonged advocacy for equal rights.

As President Biden prepares to leave office, his affirmation of the Equal Rights Amendment as part of the Constitution stands as a pivotal moment in American history, one that advocates hope will transform the landscape of gender equality in the nation.