In what Harvard law professor Stephen Sachs properly labels an act of “constitutional vandalism,” President Biden today purported to “affirm” that the Equal Rights Amendment proposed by Congress in 1972 “is now the law of the land.” Over the course of several years now, I’ve repeatedly explained why such a claim is wildly unsound, and rather than repeat that explanation here, I’ll just refer you to one of my recent posts.
Just a few additional observation and questions:
Biden’s declaration is legally insignificant. The president has no role in the amendment process. A plaintiff may file a claim under a non-existent provision of the Constitution tomorrow, if she wishes, but she likewise could have done so yesterday.
If, as Biden maintains, Virginia’s ratification of the (long-expired) ERA in January 2020 pushed it over the three-fourths threshold needed for ratification, why did it take Biden nearly the entirety of his sorry presidency to “affirm” that supposed achievement?
On what basis is Biden ignoring the advice of his own Department of Justice’s Office of Legal Counsel? Recall that OLC, after careful consideration, issued an opinion in January 2022 that declined to revise or withdraw the bottom-line conclusion of a 2020 OLC opinion that the deadline for ratifying the ERA expired decades ago.
Will Attorney General Merrick Garland resign in protest over Biden’s blatant disregard of DOJ’s advice?