What Biden didn’t do on the Equal Rights Amendment is more important than what he did

Legal scholars say President Joe Biden might be right about the Equal Rights Amendment — but his declaration on Friday has no legal significance.

In a surprise move on his way out of office, Biden proclaimed that the amendment has met the requirements for ratification and is now part of the Constitution. The ERA, he said, is the “law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”

But what matters, legal experts say, is what Biden didn’t do: He didn’t order the archivist of the United States to formally publish the amendment. And he didn’t direct the Justice Department’s Office of Legal Counsel to withdraw its written opinion that the deadline for ratification expired long ago.

“The legal opinion from the executive branch says, ‘Don’t do it,’ but Biden is saying, ‘Do it.’ I don’t see how that can be enforced,” said John F. Kowal, a vice president at the Brennan Center for Justice who has written about legal issues surrounding the ERA.

The key source of uncertainty is a seven-year deadline for states to ratify the amendment that Congress included when it passed the ERA in 1972. (The deadline was later extended to 10 years.) Not enough states ratified it before the deadline, but some states continued to ratify it in the decades that followed.

Supporters of the amendment, which seeks to prohibit sex-based discrimination by states and the federal government, say the deadline was always invalid and should be ignored. And they say the amendment finally received the required ratifications of three-fourths of the states in 2020 when Virginia became the 38th state to approve it.

“The moment Virginia ratified the ERA, it met all of the legal requirements to become part of the Constitution,” said Michelle Kallen, a partner at Jenner & Block who was Virginia’s solicitor general and led its litigation effort in support of the ERA.

But that interpretation is contested among constitutional scholars, and it’s far from certain whether the Supreme Court would agree that the amendment’s ratification deadline should be deemed invalid.

Harvard Law School professor Stephen Sachs called the effort to ignore the amendment’s deadline “constitutional vandalism.”

Congress has the power to impose a cutoff time for the ratification of amendments, Sachs argued.

“The implication is that the ERA’s seven-year time limit is valid — and that the ERA is not,” he wrote Friday.

In any event, Biden cannot change the legal landscape merely by expressing his opinion about the amendment’s validity. The federal government’s archivist is responsible for publishing amendments to the Constitution. Archivist Colleen Shogan, a Biden appointee, has previously said that the ERA’s eligibility has expired and therefore can’t be certified or published unless Congress acts.

Shogun has relied on the OLC’s conclusion that the deadline Congress included in the amendment is valid.

A senior administration official on Friday repeatedly declined to say whether the White House had spoken with Shogan about publishing the ERA following Biden’s declaration.

“The president is not going to direct the archivist,” the senior official told reporters, though the official later added that “the archivist is required to publish an amendment once it’s ratified, so the archivist is required to publish this amendment.”

Kallen agreed. Publishing the ERA now, she said, is the “proper thing for the archivist to do.”

Sen. Kirsten Gillibrand (D-N.Y.), who led a congressional effort to enshrine the ERA in the Constitution, said Friday she believes it should now be considered legally valid, and she encouraged legal challenges based on it.

“Now, millions of women living in states with restrictions on their reproductive freedoms can file lawsuits to overturn these unconstitutional laws that discriminate against people based on their sex,” she said. “I urge them to do so, and I know they’ll have abundant support for these efforts.”

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