President Biden on Friday declared that he believes that the Equal Rights Amendment has met the requirements of ratification and is now part of the Constitution, moving just days before leaving office to try to enshrine sex equality as a basic principle.
“In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” Mr. Biden said in a statement.
But it was not immediately clear what the impact of his declaration would be. Under the Constitution, the president has no direct role in approving amendments, and his statement had no legal force by itself.
The archivist of the United States, a Biden appointee, has said she would not publish the amendment, on the grounds that it had not met the requirements to become part of the Constitution. And Mr. Biden declined to order her to finalize the process with the amendment’s publication.
Here’s what his declaration could mean.
The 28th Amendment is still in limbo.
The status of the Equal Rights Amendment was already a matter of dispute. Under the Constitution, adding an amendment requires approval by two-thirds of both houses of Congress, a step that occurred more than 50 years ago. It also takes ratification by three-quarters of the states, which did not happen until 2020, when Virginia became the 38th state to do so.
But there was a wrinkle. When Congress passed the Equal Rights Amendment in 1972, it laid out a seven-year deadline for ratification by the states, which was subsequently extended to 10 years. But by 1982, only 35 states had ratified it.
Democrats have argued that because the Constitution says nothing about a time frame for ratification, the deadline set by Congress can simply be ignored. But critics, including many Republicans, say that the E.R.A. is essentially dead because it was not ratified in time, particularly because some states have since rescinded their approval.
In the past, federal courts have rejected claims that the E.R.A. was ratified.
Senator Kirsten Gillibrand, Democrat of New York, led an effort by lawmakers to persuade Mr. Biden that the E.R.A. is already the law of the land and that all he needs to do was direct the archivist, who is responsible for the certification and publication of constitutional amendments, to publish it as the 28th Amendment.
On Friday, Mr. Biden effectively embraced that argument, asserting that the E.R.A. had passed all the hurdles necessary to make it part of the Constitution.
But it was preemptively rejected by the archivist.
The archivist, Colleen Shogan, and her deputy, William J. Bosanko, issued a statement last month saying that the Equal Rights Amendment “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.”
So it remains to be seen whether others beside Mr. Biden and his allies will recognize the Equal Rights Amendment as the 28th Amendment.
Some Democrats plan to wage a legal fight over the E.R.A.
Proponents say that there is precedent for a president simply declaring a constitutional amendment into existence. They point to the example of Jan. 8, 1798, when President John Adams stated that the 11th Amendment had been adopted by three-fourths of the states and that it should now be deemed to be a part of the Constitution.
They are encouraging women to test the matter by starting to bring lawsuits citing the Equal Rights Amendment, with the goal of ultimately forcing the Supreme Court to decide those cases, and in the process establish whether the amendment itself has any force.
“Any person who was incarcerated because they brought their 10-year-old across state lines for abortion services would have a right of action now,” Ms. Gillibrand said. “Every example we’ve seen in red and purple states across the country where women are being denied the right to privacy, travel, now has a clear right of action, and it will ultimately be decided in the courts.”
The E.R.A. will become a political attack line for the left.
Proponents of the Equal Rights Amendment have long made it clear that their strategy is primarily a political, not a legal one. Their goal is to dare Republicans to challenge the legitimacy of sex equality, and of moving to nullify something as simple as equal rights for women.
“This is a political rather than a legal struggle,” Laurence Tribe, the constitutional scholar and professor emeritus at Harvard Law School, has said. “It would succeed only in a different environment than we have.”
Mr. Tribe argued that the import of Mr. Biden’s move was in the signal it would send to the country.
“The real question is what political message is being sent,” he said. “In a political environment like this, you throw at the wall whatever you can.”
Opponents are all but certain to refuse to recognize it.
During the first Trump administration, the Justice Department’s Office of Legal Counsel issued an opinion that Virginia’s late approval of the Equal Rights Amendment did not count, because it was after the congressional deadline was valid and enforceable. In 2022, Mr. Biden’s Justice Department reaffirmed that ruling, and said the deadline established by Congress for the E.R.A. was valid.
Federal courts have upheld the dismissal of lawsuits that claim the amendment has been ratified and is already part of the Constitution.
And anti-abortion groups, aware of the power it would have if it were considered the law, are primed and ready to fight it at every level.
“The E.R.A. could anchor a supposed right to abortion in the Constitution itself,” Emma Waters, a research associate at the conservative Heritage Foundation, wrote in 2023. She added: “To protect the lives of women and their unborn children, lawmakers must oppose the national Equal Rights Amendment.”
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