Three days before leaving office, President Biden announced that the Equal Rights Amendment is the law of the land, about five years after it was ratified by the mandatory three-quarters of states - but after a long period of no action.
He admits that he doesn’t really have any power to force the archivist to enshrine the amendment into law.
Apparently he’s doing this as a last-gap method to protect abortion rights. In which case I have to say, what the hell took you so long, man?
From the article;
IOW, this declaration means nothing and will be completely forgotten about three days from now.
I am sure that the current Supreme Court would not interpret the ERA to protect abortion rights.
ERA opponents said, before Roe, that the amendment would be used to support then-unpopular causes including legalization of abortion and same-sex marriage. But AFAIK the proponents of the amendment, when it passed the House and Senate, were not claiming that.
In 2028, Democratic candidates will be asked if they think the ERA is the law of the land. Whatever answer they give will hurt them with one voter group or another.
Will it? I can imagine that a certain orange-haired politician might find interesting the idea that the Constitution can be altered via social media post.
Biden is an ass for doing this 3 days before Trump is President.
Will doing so piss off and perhaps distract Trump? I think so and if Biden thought so as well, more power to him.
Not my language, but I have a hard time disagreeing.
What are the 2028 Democratic candidates going to say when asked if the ERA is part of the constitution? During the primary season, politics says to say yes. But in the general election season, politics says to say no. This adds up to a mess.
P.S. Progressives may have a hard time seeing any problem, at any time, with answering yes. My thinking is that the seven year ratification limit is real and will convince swing voters who know about it that Democrats who say the ERA was ratified are overreaching.
For the seven year limit, see:
What confuses me is how the archivist has any authoirty whatsoever to not have published it promptly once it was properly ratified / etc.
If there was/is a legit procedural question whether all the Is are dotted and Ts crossed, that should have resulted in the archivist making prompt court filings for a resolution. Not just sitting on it forever.
If there is no such procedural issues, then somebody needed to be firing archivists until one was willing to do their job.
The Archivist has a statutory duty to proclaim amendments that have been duly ratified, but apparently it is customary for the Archivist to wait for both Houses of Congress to review the ratification records and agree that an amendment has been ratified. That makes sense to me. It’s a major political / constitutional decision, and leaving it to the judgment of the Archivist puts an awful lot of weight on an unelected official.
The statute in question says that the Archivist is to proclaim it when they have received “official notice” of ratification, but doesn’t say what “official notice” means. Resolutions by both Houses of Congress agreeing that an amendment has been duly ratified seems a good explanation of “official notice”.
The Archivist took a lot of flak when he declared that the 27th Amendment had been duly ratified, without waiting for any resolutions from Congress.
Ahh, thank you for an awesome backgrounder.
So Congress inserted itself into the certification chain a couple hundred years ago without any actual constitutional language to support that insertion.
Then events 30 years ago more or less ratified that insertion.
And as to the ERA, Congress today is disinclined to acknowledge the States’ ratification, so they have put in on indefinite pocket veto, despite there being zero Constitutional support for the idea they have the right to stall it beyond the normal course of business.
Got it.
Kinda the same as the Senate deciding it will ignore any and all confirmation efforts for appointees coming from an executive branch of the 'wrong" party.
The more I learn about the founding Fathers, the more I think they were lousy at the constitution-writing stuff.
Whatever, Joe.
A lot of the issues around the ERA amendment are the seven-year deadline, and the extension of the deadline, which can be laid at Congress’s feet, not the Framers.
Previous amendments have included a deadline for ratification in the text of the amendment itself.
Not so the ERA; the 7 year deadline was included in a preamble, but is not part of the text sent to the states. Then, when it became clear that the deadline would not be met, the House purported to extend the deadline, by a House resolution, that did not gain a 2/3 vote.
Constitutional amendments need a 2/3 vote by each house of Congress; can the House extend a deadline that is not in the amendment, by a simple majority vote? That deadline issue has triggered a lot of litigation.
There is a question that can be attributed to the Framers:
can a state rescind a ratification, or is it a one and done thing? Several states have rescinded their ratifications.
And, there is an agreement made by the Archivist in response to some of the litigation, summarised by Wikipedia in the article on the ERA:
On February 27, 2020, the States of Alabama, Louisiana and South Dakota entered into a joint stipulation and voluntary dismissal with the Archivist of the United States. The joint stipulation incorporated the Department of Justice’s Office of Legal Counsel’s opinion; stated that the Archivist would not certify the adoption of the Equal Rights Amendment and stated that if the Department of Justice ever concludes that the 1972 ERA Resolution is still pending and that the Archivist therefore has authority to certify the ERA’s adoption … the Archivist will make no certification concerning ratification of the ERA until at least 45 days following the announcement of the Department of Justice’s conclusion, absent a court order compelling him to do so sooner."[149] On March 2, 2020, Federal District Court Judge L. Scott Coogler entered an order regarding the Joint Stipulation and Plaintiff’s Voluntary Dismissal, granting the dismissal without prejudice.[150]
This particular amendment is a right mess.
I’m inclined to give the Framers a pass. The US Constitution was the first federal constitution with an amending formula. Sure, there are problems with it, but when you’re doing Constitution 1.0, you’re working without a net, and can’t easily foresee what might happen two centuries later. Heck, Tom Jefferson thought that constitutions normally shouldn’t last more than a few decades before being outmoded and replaced.
He was probably right.
What most people seem to be forgetting about the ERA: It does not take effect until two years after it has been ratified. The second question, after “was it ratified or not?”, will be, “Exactly when was it ratified?”
The third question will probably be, “The amendment says that Congress shall have the power to enforce the provisions of this article by appropriate legislation - does that mean Congress decides exactly what ‘equality of rights under the law’ means?”
Eventually, the question will be, “Exactly what rights does this amendment provide that did not already exist under, say, the 14th Amendment?”
I’ve often heard that if ratified the ERA would change the standard for sex discrimination from intermediate scrutiny to strict scrutiny, but what would that mean in practice? Also the ERA references sex, not gender. Has the Supreme Court ever ruled on what exactly the definition sex is or if it’s immutable?
I presume there was a letter sent from Washington DC, in 1972, by either certified or registered mail, to the relevant state authorities. But I have not been able to find it googling. Does anyone have a copy of this 53 year old letter?
I’m guessing that they included, in the envelope, a document, signed by congressional leadership, and the only one I can find is this:
https://catalog.archives.gov/id/7455549
Preamble is included.
Not saying you are wrong, but it seems strange to me that they wouldn’t send all of what Congress passed.
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Oh, they probably sent it to the States. The point is that prior amendments that had time limits, included the time limit in the text of the amendment themselves. See the 22nd Amendment, for instance.
What is the status of a timeline that is not part of the text of the amendment? Dunno.
Can Congress impose a time limit without including it in the amendment? Dunno.
Can the House extend the time limit by simple majority vote, rather than two-thirds? Dunno.
Ripe for litigation.
I am reminded of a baseball manager’s famous lament as his team fell apart mid-game:
Can’t anybody here play this game?!?
The deadline is in what they passed. Once ratified, there is no reason for the deadline to become part of the Constitution, so putting it in a preamble was aesthetically correct. There was no good reason not to do it that way all along.
The first extension (1979 to 1982) did not result in ratification, so that one is moot. The second extension was not passed by the Senate, so that’s moot as well.
Anyone can sue anyone for anything. I wouldn’t be surprised if a man, charged with not registering for the draft, will now litigate. I would be extremely surprised if the Supreme Court takes up the case.
Then there’s the rescinded ratifications. You could fairly argue against those before the deadline being invalid. But to argue the deadline is irrelevant, but rescinded ratifications after it are also irrelevant, seems to me a bit inconsistent. With that logic, you could get an amendment ratified that only one or two states still want. Does not seem fair.
Admittedly, I’m coming at this as an ERA skeptic. The reason I’m an ERA skeptic is that it is written in a way making it impossible to know how it is likely to change things. Proponents most frequently say it would protect abortion rights. I’m sure it would not. This kind of objection was in the original debates on the ERA. And you could argue against much of the Bill of Rights on the same grounds of vagueness. I would not have been in favor of vague parchment promises in 1787 either.
The ERA says “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” So it probably is not self-executing. Given the current Supreme Court I guess that’s a plus.
In a way, it already did, in Rostker v. Goldberg (1981). The court ruled that a “male-only” draft did not violate the Due Process clause because it was discriminatory. I don’t see anything in the ERA that would make this any different.