Biden unlawfully declares 28th Amendment
Joe Biden unilaterally declared the Equal Rights Amendment (ERA) the 28th Amendment to the US Constitution on Friday despite having no authority to do so.
Background
A constitutional amendment is only officially recognized once it is certified and published by the Archivist of the United States. For that to happen, it must first be proposed by Congress and then ratified by at least 38 states. When proposing an amendment, Congress usually sets a deadline for the states to ratify it, after which it fails to become an amendment if it misses the 38-state threshold. The purpose of a deadline is to ensure the amendment reflects the contemporary views of the American people, which shift over time.
The ERA was first proposed in 1923 as an equal rights clause for women. It states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” However, many fear the ERA could be used to challenge laws that grant special protections to women. There are even greater concerns that with the rise of gender ideology, the ERA could be weaponized to allow men into women’s sports, showers, and other spaces. Proponents of the ERA, such as Reps. Cori Bush (D-MO) and Ayanna Pressley (D-MA), have confirmed that the ERA will be used for “LGBTQ folks.”
When Congress passed the ERA in 1972, lawmakers attached a seven-year deadline which they later extended to 1982. By then, however, only 35 states had ratified the ERA — and that was before five of them rescinded their ratifications. It was only between 2017 and 2020 that three states — Virginia, Illinois, and Nevada — ratified the ERA. That brought the total to 38 states, but it was decades past the 1982 deadline set by Congress and thus was not certified by the National Archivist.
Biden usurps authority
Nevertheless, one of Joe Biden’s last acts before exiting the White House Monday was to declare the ERA the Constitution’s 28th amendment — a power the president does not have.
“Today, I affirm the Equal Rights Amendment to have cleared all the necessary hurdles to be added to the U.S. Constitution now,” Biden said at a press conference Friday. “The Equal Rights Amendment is the law of the land now. It’s the 28th Amendment to the Constitution, now!”
In a press release, the White House said:
On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
It is long past time to recognize the will of the American people. 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.
National Archivist and DOJ disagree
However, National Archivist Dr. Colleen Shogan and Deputy Archivist William J. Bosanko have refused to certify the ERA, saying it has not satisfied the legal and procedural criteria.
“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law,” they said in a statement last month. “At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
The Justice Department’s Office of Legal Counsel (OLC) has backed the National Archivist’s refusal to certify the ERA.
“[W]e conclude that the ERA Resolution has expired and is no longer pending before the States,” OLC Assistant Attorney General Steven Engel wrote in a legal opinion. “Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C. § 106b.”
