# Biden says Equal Rights Amendment is the law of the land **URL:** \ **Category:** Politics & Elections\ **Created:** [January 18, 2025, 12:29am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093 "2025-01-18T00:29:32Z")\ **Posts on this page:** 19\ **Page:** 1
**Author:** ![ekedolphin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ekedolphin/32/10003_2.png) [@ekedolphin](https://boards.straightdope.com/u/ekedolphin)\ **Post date:** [January 18, 2025, 12:29am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/1 "2025-01-18T00:29:32Z")
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. > **[Biden says the Equal Rights Amendment is law. What happens next is unclear](https://www.npr.org/2025/01/17/nx-s1-5264378/biden-era-national-archivist-constitution)** > > To come into effect, the constitutional amendment would need to be formally published or certified by the national archivist, who has declined to do so in the past. What happens now is unclear. 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? ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 18, 2025, 12:57am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/2 "2025-01-18T00:57:35Z")
From the article; > [@](#): > > The executive branch doesn’t have a direct role in the amendment process, and Biden is not going to order the archivist to certify and publish the ERA, the White House told reporters on a conference call. > > In response to an NPR question about whether the archivist would take any new actions, the National Archives communications staff pointed to a December statement saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.” IOW, this declaration means nothing and will be completely forgotten about three days from now. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [January 18, 2025, 1:29am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/3 "2025-01-18T01:29:06Z")
> [@ekedolphin](#): > > 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? 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. ---
**Author:** ![3AxisCtrl](https://avatars.discourse-cdn.com/v4/letter/3/ecd19e/32.png) [@3AxisCtrl](https://boards.straightdope.com/u/3AxisCtrl)\ **Post date:** [January 18, 2025, 2:48am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/4 "2025-01-18T02:48:35Z")
> [@Smapti](#): > > … this declaration means nothing and will be completely forgotten about three days from now. 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. ---
**Author:** ![Dewey\_Finn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dewey_finn/32/4222_2.png) [@Dewey\_Finn](https://boards.straightdope.com/u/Dewey_Finn)\ **Post date:** [January 18, 2025, 2:50am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/5 "2025-01-18T02:50:39Z")
Will doing so piss off and perhaps distract Trump? I think so and if Biden thought so as well, more power to him. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [January 18, 2025, 3:33am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/6 "2025-01-18T03:33:35Z")
> [@3AxisCtrl](#): > > Biden is an ass for doing this 3 days before Trump is President. 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: > **[STATUTE-86-Pg1523.pdf](https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg1523.pdf)** > > 254.94 KB ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [January 18, 2025, 2:50pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/7 "2025-01-18T14:50:52Z")
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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 18, 2025, 2:57pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/8 "2025-01-18T14:57:49Z")
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. > [@](#): > > ### Affirmation of ratification > > [[edit](https://en.wikipedia.org/w/index.php?title=Twenty-seventh_Amendment_to_the_United_States_Constitution&action=edit§ion=6)] > > On May 19, 1992, the Twenty-seventh Amendment’s certificate of ratification, signed by the Archivist of the United States, [Don W. Wilson](https://en.wikipedia.org/wiki/Don_W._Wilson), on May 18, 1992, was printed and published in the _[Federal Register](https://en.wikipedia.org/wiki/Federal_Register)_.[[37]](https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution#cite_note-37) > > In certifying that the amendment had been duly ratified, the Archivist of the United States had acted under statutory authority granted to his office by the Congress under [1 U.S.C.](https://en.wikipedia.org/wiki/Title_1_of_the_United_States_Code) [§ 106b](https://www.law.cornell.edu/uscode/text/1/106b), which states: > > > Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. > > The response in Congress was sharp. [Senator](https://en.wikipedia.org/wiki/United_States_Senate) [Robert Byrd](https://en.wikipedia.org/wiki/Robert_Byrd) of West Virginia scolded Wilson for certifying the amendment without congressional approval. Although Byrd supported congressional acceptance of the amendment, he contended that Wilson had deviated from “historic tradition” by not waiting for Congress to consider the ratification’s validity, given the extremely long time since the amendment had been proposed.[[33]](https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution#cite_note-Michaelis-1423-33) [Speaker of the House](https://en.wikipedia.org/wiki/Speaker_of_the_United_States_House_of_Representatives) [Tom Foley](https://en.wikipedia.org/wiki/Tom_Foley) and others called for a legal challenge to the ratification. > > On May 20, 1992, under the authority recognized in _Coleman_, and in keeping with the precedent established by [the ratification of the Fourteenth Amendment](https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution#Adoption), each house of the 102nd Congress passed its own version of a [concurrent resolution](https://en.wikipedia.org/wiki/Concurrent_resolution) agreeing that the amendment was validly ratified, despite the more than 202 years the task took. The Senate’s approval of the resolution was unanimous (99 to 0) and the House vote was 414 to 3.[[13]](https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution#cite_note-dean-13) > **[Twenty-seventh Amendment to the United States Constitution](https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution#Affirmation_of_ratification)** > > The Twenty-seventh Amendment (Amendment XXVII, also known as the Congressional Compensation Act of 1789) to the United States Constitution states that any law that increases or decreases the salary of members of Congress may take effect only after the next election of the House of Representatives has occurred. It is the most recently adopted amendment but was one of the first proposed. > The 1st Congress submitted the amendment to the states for ratification on September 25, 1789, along with 11 ... ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [January 18, 2025, 3:44pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/9 "2025-01-18T15:44:28Z")
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. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [January 18, 2025, 3:58pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/10 "2025-01-18T15:58:42Z")
Whatever, Joe. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 18, 2025, 4:08pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/11 "2025-01-18T16:08:51Z")
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]](https://en.wikipedia.org/wiki/Equal_Rights_Amendment#cite_note-150) On March 2, 2020, Federal District Court Judge [L. Scott Coogler](https://en.wikipedia.org/wiki/L._Scott_Coogler) entered an order regarding the Joint Stipulation and Plaintiff’s Voluntary Dismissal, granting the dismissal without prejudice.[[150]](https://en.wikipedia.org/wiki/Equal_Rights_Amendment#cite_note-151) 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. > **[Equal Rights Amendment](https://en.wikipedia.org/wiki/Equal_Rights_Amendment#Alabama_lawsuit_opposing_ratification)** > > The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that would explicitly prohibit sex discrimination. It is not currently a part of the Constitution, though its ratification status has long been debated. It was written by Alice Paul and Crystal Eastman and first introduced in Congress in December 1923. With the rise of the women's movement in the United States during the 1960s, the ERA garnered increasing support, and, after being reintroduced by Represe... ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [January 18, 2025, 5:18pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/12 "2025-01-18T17:18:34Z")
> [@Northern\_Piper](#): > > Heck, Tom Jefferson thought that constitutions normally shouldn’t last more than a few decades before being outmoded and replaced. He was probably right. ---
**Author:** ![That\_Don\_Guy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/that_don_guy/32/538_2.png) [@That\_Don\_Guy](https://boards.straightdope.com/u/That_Don_Guy)\ **Post date:** [January 18, 2025, 8:58pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/13 "2025-01-18T20:58:39Z")
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?” ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [January 19, 2025, 9:18pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/14 "2025-01-19T21:18:40Z")
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? ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [January 19, 2025, 10:05pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/15 "2025-01-19T22:05:47Z")
> [@Northern\_Piper](#): > > the 7 year deadline was included in a preamble, but is not part of the text sent to the states. 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](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. . ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 19, 2025, 10:14pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/16 "2025-01-19T22:14:44Z")
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. > **[Twenty-second Amendment to the United States Constitution](https://en.wikipedia.org/wiki/Twenty-second_Amendment_to_the_United_States_Constitution)** > > The Twenty-second Amendment (Amendment XXII) to the United States Constitution limits the number of times a person can be elected to the office of President of the United States to two terms, and sets additional eligibility conditions for presidents who succeed to the unexpired terms of their predecessors. Congress approved the Twenty-second Amendment on March 21, 1947, and submitted it to the state legislatures for ratification. That process was completed on February 27, 1951, when the requis... ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [January 19, 2025, 10:22pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/17 "2025-01-19T22:22:55Z")
I am reminded of a baseball manager’s famous lament as his team fell apart mid-game: > Can’t anybody here play this game?!? ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [January 20, 2025, 12:34am UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/18 "2025-01-20T00:34:41Z")
> [@Northern\_Piper](#): > > Can Congress impose a time limit without including it in the amendment? Dunno. 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. > [@Northern\_Piper](#): > > Can the House extend the time limit by simple majority vote, rather than two-thirds? Dunno. 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. > [@Northern\_Piper](#): > > Ripe for litigation. 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. ---
**Author:** ![That\_Don\_Guy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/that_don_guy/32/538_2.png) [@That\_Don\_Guy](https://boards.straightdope.com/u/That_Don_Guy)\ **Post date:** [January 20, 2025, 2:13pm UTC](https://boards.straightdope.com/t/biden-says-equal-rights-amendment-is-the-law-of-the-land/1013093/19 "2025-01-20T14:13:30Z")
> [@PhillyGuy](#): > > 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. In a way, it already did, in [Rostker v. Goldberg](https://www.law.cornell.edu/supremecourt/text/453/57) (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.