The New York Times reports that Senator Kirsten Gillibrand of New York is “on a mission” to “convince” President Biden that he can “rescue his legacy” by adding the Equal Rights Amendment to the Constitution “as a way to protect abortion rights in post-Roe America.” All Biden has to do, Gillibrand maintains, is “direct the national archivist … to publish the E.R.A. as the 28th Amendment.”
The NYT article identifies some of the deep defects in Gillibrand’s mission, but it badly understates them.
1. It’s not just “[c]onservative opponents” of the ERA who recognize that the binding deadline on ratification elapsed decades ago.
Even supporters of the ERA recognized that they needed to start over after the hotly disputed “deadline extension” expired in June 1982. That’s why they attempted to have Congress re-propose the ERA, but their attempt fell short of the required two-thirds vote on the House floor on November 15, 1983.
In February 2020, Ruth Bader Ginsburg, a leading proponent of the ERA, declared the plain reality that Virginia’s purported ratification of the ERA the previous month came “long after the deadline passed.” She similarly stated in September 2019 that she hoped that Congress would “some day” again propose an Equal Rights Amendment (“put [it] back in the political hopper”) and that, if it did, “we’ll be starting all over again collecting the necessary states to ratify it.” In an exit interview with C-SPAN on May 1, 2022, retiring Archivist of the U.S. David Ferriero said, “I can tell you that Ruth Bader Ginsburg twice told me, in this building, we need to start over” on the ERA.
2. It’s not just the “Trump administration’s Justice Department [that] instructed the archivist to take no action on the E.R.A.” following Virginia’s purported ratification. Urged to revisit that conclusion, the Office of Legal Counsel in the Biden administration instead declined to revise or withdraw OLC’s bottom-line conclusion in 2020 (and instead threw zombie-ERA advocates the bone of stating that some issues addressed in the 2020 opinion “were closer and more difficult than the opinion suggested”).
OLC exercises authority delegated by the Attorney General to say what the law is. So if Biden were to follow Gillibrand’s advice, he would be acting illegally, according to his own Justice Department.
3. The article makes no mention of the unfavorable reception that Gillibrand’s legal position has received in court. In March 2021, in a case brought by three states seeking certification of the ERA as part of the Constitution, a federal district judge appointed by Barack Obama ruledthat the deadline for ratifying the ERA expired decades ago. In February 2023, a unanimous D.C. Circuit panel, in an opinion written by another Obama appointee (and joined by appointees of Biden and Trump), “affirm[ed] the District Court’s dismissal” (on the ground that the states’ claim wasn’t even a matter within the court’s jurisdiction). In the course of doing so, the D.C. Circuit archly observed that the states’ position that a ratification deadline is inoperative if Congress places it in the proposing clause of an amendment would mean that Congress’s “specification of the mode of ratification in every amendment in our nation’s history would also be inoperative.”