Here’s yet another obstacle to Senator Kirsten Gillibrand’s foolish campaign to persuade President Biden to direct the Archivist to certify the zombie Equal Rights Amendment: The Archivist has committed in federal court (1) to abide by the Department of Justice’s 2020 OLC opinion that the ERA deadline expired decades ago and (2) further, in the event that DOJ were ever to reverse its position, to “make no certification concerning ratification of the ERA until at least 45 days following the announcement of the Department of Justice’s conclusion.”
Archivist David S. Ferriero made these commitments in exchange for termination of litigation brought by the states of Alabama, Louisiana, and Kentucky over whether the Archivist has authority to certify the zombie ERA. Because he made these commitments in his official capacity, they are binding on his successor Colleen Shogan (who, by all accounts, has been stalwart in resisting pressure to act unlawfully). The attorneys general of Alabama, Louisiana, and South Dakota today sent a letter to Biden and Shogan that reminds them of the Archivist’s commitment.
As I’ve explained, after careful consideration, the Office of Legal Counsel in the Biden administration declined to revise or withdraw its 2020 opinion. In the highly unlikely event that the Department of Justice were to reverse its position today, the 45-day period in which the Archivist has committed to make no certification would run on January 30, 2025. Joe Biden will of course no longer be president then.