The waning days of a presidency, particularly one like that of Joe Biden, whose successor seeks to turn back every clock in sight, are inevitably full of last-minute gestures and legacy-security strategies. Convicted felons with a case for mercy lobby for a pardon. Smart lawyers look for ways to prevent the reversal of executive orders. And civil servants seek shelter from expected political purges.
But a sizable group of House Democrats, along with Senator Kirsten Gillibrand of New York, have a far more ambitious last-minute project in mind for Biden: recognizing the Equal Rights Amendment and its guarantee of women’s rights as the 28th Amendment to the U.S. Constitution. The ERA, enacted by Congress after a two-thirds vote in both chambers in 1972, fell short of initial ratification by the requisite three-fourths of the states after a ferocious counterattack led by a conservative movement that was in the process of conquering the Republican Party. The original congressional resolution for the ERA set a 1979 deadline for ratification. This was later extended in 1982, at which time only 35 state legislatures had approved the amendment, three short of the 38 needed (and five state legislatures had taken the legally dubious step of rescinding prior ratifications).
Feminists took a number of different tacks for promoting women’s rights when the drive to ratify the ERA faded, but interest in the amendment was revived after Donald Trump’s victory over Hillary Clinton in 2016. Nevada and Illinois ratified the ERA in 2017 and 2018, respectively; then, Virginia approved it in 2020, crossing the 38th state threshold. These late approvals relied on arguments that the congressional ratification deadlines were themselves unconstitutional. But lower-court judicial rulings denied the validity of post-1982 ratifications, and congressional resolutions to repeal the 1982 deadline died in the Senate thanks to Republican opposition in 2021 and 2023.
ERA backers now argue that the director of the National Archives can simply recognize the ERA as part of the U.S. Constitution based on its ratification by 38 states (the deadlines, they argue, were not part of the Amendment itself and thus never really had any effect). An earlier move to demand recognition of the ERA by the Archives was blocked by the Trump Justice Department’s legal counsel just prior to the end of his term. So Democrats are asking Biden to rescind that ruling and “direct” the Archives to go ahead and accept the ERA.
Unfortunately, on December 17 the Archives office responded with a big thumbs-down on unilateral action, as the Associated Press reports:
In a rare joint statement, the archivist and deputy archivist of the United States said Tuesday that the 1970s-era Equal Rights Amendment cannot be certified without further action by Congress or the courts, as Democrats press President Joe Biden to act unilaterally on its ratification before he leaves office next month.
Congress, say the archivists, must retroactively lift the deadlines or federal courts must rule them invalid.
Unhappy as this position makes ERA backers, it doesn’t really change anything. Had Biden deemed the ERA ratified, MAGA-land would have responded with howls of anger and lawsuits challenging the move’s constitutionality. So now its ERA proponents must go to court and seek affirmation of their view that the congressional deadlines don’t matter.
The issue will ultimately be decided by a U.S. Supreme Court not known for its eagerness to displease Trump and the GOP. Indeed, a big part of the impetus for the renewed ERA push is to find a constitutional countermeasure to the Supreme Court’s its reversal of Roe v. Wade in 2022. Gillibrand claims it might work:
A federal ERA would establish the premise that sex-based distinctions in access to reproductive care would be unconstitutional. Abortion bans would violate a constitutional right to sex equality since such restrictions would single out women for unfair denial of medical treatment based on sex.
Will the current Supreme Court countenance this clever undermining of its Dobbs v. Jackson Women’s Health Organization decision abolishing federal abortion rights? It seems unlikely, but there’s no question judicial review of an ERA ratification claim would cast a spotlight on the continued injustice of discrimination in reproductive health services and many other areas. And if all else fails, maybe a new campaign to enact and ratify the ERA would gain momentum. But it’s out of Joe Biden’s hands now.
