President Joe Biden announced that he would be affirming the ratification of the Equal Rights Amendment and claims it cleared all the hurdles to be added to the Constitution as the 28th Amendment. His statement confused many because the deadline for states to ratify the ERA was over 40 years ago, and it didn’t get enough votes. So why is Biden suddenly saying it’s the “law of the land?”
Biden says Equal Rights Amendment is ratified despite having no authority to do so
The Equal Rights Amendment, passed by Congress in 1971, would guarantee all Americans equal rights regardless of sex. However, it wasn’t ratified by enough states before the seven-year deadline hit in 1979. The deadline was extended once to 1982, but once again failed to get enough votes. Since then, there’s been a confusing back-and-forth about whether the deadline and extension were valid. Additionally, several states have both ratified the ERA and revoked their ratifications over the years.
In an early US Supreme Court case, Hollingsworth v. Virginia, the court ruled that the President has no role in amending the United States Constitution. So, Biden has no authority to make a legal decision on whether the ERA should be formally published as the 28th Amendment.
In a statement to Politico, the National Archives said it has no plans to formally add the ERA to the Constitution. This policy is consistent with comments from National Archivist Colleen Shogan made in 2022 that Congress or the courts would have to take action to lift the deadline for the amendment to be ratified.
Additionally, five of the 38 states that have ratified the ERA later rescinded their approval. Article V of the Constitution doesn’t say whether states have that right. If they do, then the ERA wouldn’t have the required votes necessary to become an amendment.
Biden’s statement is vague and carries no force of law. As such, many readers will likely believe it’s an official declaration when it’s just an affirmation of the outgoing president’s beliefs. Regardless of whether the American Bar Association or “legal constitutional scholars” think the ERA should become the 28th Amendment, it’ll likely take an act of Congress, not the president, to make that a reality.
