Biden OLC Leaves in Place Opinion Holding that Equal Rights Amendment Expired Decades Ago

On the eve of the date that proponents of the long-ago-expired Equal Rights Amendment contend that it becomes effective, the Department of Justice’s Office of Legal Counsel has issued a curious brief opinion that gratuitously advises that an opinion issued by the Office in January 2020 “is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions.” That advice is gratuitous because it is a truism: OLC opinions bind only the executive branch, not Congress and not the judiciary.

The more significant aspect of today’s OLC opinion is that although it states that some issues addressed in the January 2020 opinion “were closer and more difficult than the opinion suggested,” it does not revise or withdraw that opinion’s bottom-line conclusion, namely:

For the reasons set forth above, we conclude that the ERA Resolution has expired and is no longer pending before the States. 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. In addition, we conclude that when Congress uses a proposing clause to impose a deadline on the States’ ratification of a proposed constitutional amendment, that deadline is binding and Congress may not revive the proposal after the deadline’s expiration. Accordingly, should Congress now “deem [the ERA] necessary,” U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution.

Those conclusions therefore continue to bind the executive branch. And for compelling reason. To summarize briefly:

The seven-year period for ratification that was part of Congress’s proposal of the ERA expired in 1979. Even if one were to assume that Congress lawfully extended the ratification deadline by majority vote in 1978, that extended deadline expired in 1982. Even supporters of the ERA recognized that they needed to start over after the 1982 deadline passed. And by dismissing as moot in October 1982 a case challenging the validity of that deadline extension, the Supreme Court clearly signaled its own judgment that ratification of the ERA had failed.

That’s why even Justice Ginsburg, a leading proponent of the ERA, recognized in September 2019 that the ratification process would need to “start[] over again.”