What happens when the Virginia legislature ratifies the Equal Rights Amendment

Politics & Elections
81

The 13th amendment (abolition of slavery) certainly did.

The scope of the ERA would be what the Supreme Court says.

And if a state, or Congress, makes a law regarding pregnancy leave in private businesses, the ERA probably would have an impact - hard as it is to predict.

82

Except when they do, example,

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

~Max

83

Just read up on this. The legal argument for ratification is pretty poor.

  • The seven year deadline for ratification is explicitly stated in the joint resolution for the amendment that was passed by Congress. The idea that the joint resolution is constitutional, but the clause setting the deadline is unconstitutional, seems absurd.
  • Congress’s ability to extend the original 1979 deadline by a simple majority vote was ruled “an unconstitutional exercise of congressional authority” in federal court in 1981, in Idaho v. Freeman . The ruling stated “Congress is under no obligation to set a time limit on the ratification process. But once it does, ‘Congress is not at liberty to change it.’”. That ruling effectively decided that the deadline had passed.
  • That ruling was initially stayed by the Supreme Court, but the appeal was later declared moot because the 1982 extended deadline had passed. So there’s implicit recognition from the Supreme Court of the deadline’s validity.
  • Five states that ratified the ERA later rescinded their ratifications. The process by which a state ratifies a constitutional amendment is a power of the state. So the ability to rescind ratification, so long as the amendment has not become part of the Constitution, seems to belong to the state. Therefore the number of states that have ratified the ERA is 33, not 38. (Or maybe 32, West Virginia has now also rescinded their ratification.)
  • The executive branch has no part in the constitutional amendment process. “Completing” a constitutional amendment by an executive appointment would be a breach of the separation of powers.

Fact source: https://www.washingtonpost.com/politics/2022/02/09/era-us-archivist-anatomy-false-claim/

Beyond the above, the US Archivist’s role in certifying a constitutional amendment is a procedural formality. Is the move to get the present US Archivist, or make it a prerequisite for a future US archivist, to certify the ERA despite its lack of legal validity the left’s version of Trump trying to get VP Pence not to certify the 2020 presidential election results?

84

Why wouldn’t they be able to change it? It’s not like they passed legislation that they were not longer allowed to pass legislation. I’m sure that the legal eagle types here could come up with many examples where congress reversed themselves.

85

Article 5 of the US Constitution requires 2/3 of each house of Congress to approve an amendment before Congress can submit it to the states for ratification.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution.

In the 1978 ERA deadline extension, only majority votes were used to extend the deadline to 1982.

In 1978, the House and Senate, acting by simple majorities, adopted a resolution extending the deadline for the ERA’s ratification. 92 Stat. at 3799.

The votes in the House and Senate were 233–189 and 60–36. 124 Cong. Rec. 26264, 34314 (1978).
https://www.justice.gov/olc/file/1232501/download p.8 (PDF)

One of the questions answered in Idaho vs Freeman was whether the simple majority of each house of Congress was sufficient, or if a 2/3 majority was required.

In any event, while the general power of Congress to change its prior proposal may be argued, it is more than clear that in this instance Congress’ promulgation of the extension resolution was in violation of the constitutional requirement that Congress act by two-thirds of both Houses when exercising its article V powers.

In it’s answer to this question the court concluded:

Congress can set an arbitrary yet reasonable time period in order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.

In other words, the court upheld that Congress can set a deadline for constitutional amendments.

So even if ERA activists are able to convince the US Archivist to proclaim that the ERA has been ratified, he’d be doing so in opposition to a federal court ruling that the deadline for ratification in the resolution was legal, and that deadline has passed. Likewise, if Congress votes via a 50% majority to abolish the deadline, they’d be doing so in defiance of that court ruling that a 2/3 majority would be required to do so.

86

Gotcha. So technically congress could remove the deadline with a 2/3 majority? But in this day of rancorous politics that’s pretty much not going to happen.

Thanks for the cited reply.