Bench Memos

Law & the Courts

The Zombie-ERA Farce Continues

There was no more ardent advocate of the Equal Rights Amendment than the late Ruth Bader Ginsburg. But Justice Ginsburg had the elementary honesty to acknowledge the simply reality that Congress’s deadline for ratification of the ERA expired decades ago and that any effort to adopt the ERA would therefore require “starting over again.”

Unfortunately, despite their own recent professions about their oaths to the Constitution, Democratic senator Ben Cardin and Republican senator Lisa Murkowski announced last week that they are again cosponsoring a joint resolution that purports to retroactively override Congress’s deadline and somehow resurrect the long-dead ERA. (Nearly 200 House members are sponsoring the same resolution.)

Let’s review the relevant history and law:

1. In 1972, when Congress proposed the Equal Rights Amendment to the states for ratification, it specified a seven-year period for ratification. That seven-year period expired on March 22, 1979. As of that date, only 35 states had ratified the ERA (and four or five of those 35 had rescinded their ratifications).

Congress’s authority to impose deadlines on ratification has long been recognized. In its unanimous ruling in Dillon v. Gloss (1921), the Supreme Court held that Congress had the power to include a seven-year period for ratification in the 18th Amendment: “Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt.” Every amendment but one that Congress has proposed since then has included a seven-year period for ratification. (For the 20th, 21st, and 22nd amendments, that time period was set forth in the text of the amendment; for the 23rd, 24th, 25th, and 26th amendments, as for the ERA, the time limit was in Congress’s proposing clause.)

2. In October 1978, before the original deadline passed, Congress purported to extend the deadline until June 30, 1982. It did so by majority vote of each House, not by the 2/3 vote needed for proposing amendments. No additional states acted to ratify the ERA before that supposed new deadline expired.

3. In 1981, a federal district court ruled that Congress could not lawfully extend the ratification deadline. On review in the Supreme Court afterthe extended deadline of June 30, 1982, had passed, the Solicitor General’s Office advised the Court that the states’ failure to ratify the ERA by the extended deadline rendered the matter moot. In October 1982, the Court entered an order dismissing the case as moot. That dismissal clearly signaled the Court’s judgment that ratification of the ERA had failed. (The Democratic leadership of the House reached the same conclusion, as it made approval of a start-over ERA a top priority in 1983, only to see it go down to defeat on the House floor.)

4. A year ago, the Department of Justice’s Office of Legal Counsel—which has been delegated the authority to issue legal advice that binds the executive branch—issued an opinion concluding that the ERA proposed in 1972 long ago expired and that, in the event that a supposed 38th state were to purport to ratify that amendment, the National Archives should not and could not certify the ERA to be part of the Constitution.

In sum: There’s ample cause to believe that the ERA expired in March 1979; that Congress lacked the authority to extend the initial deadline; and that even if it had such authority, it would have needed a 2/3 vote, rather than simple majority, to exercise it. But even if you believe that the original deadline might have been lawfully extended, that deadline expired in June 1982, as the Supreme Court itself recognized. Further, it’s one thing to purport to extend a deadline before the deadline has expired and quite another to do so after it has expired—indeed, decades after.

Then there is the additional fact—a source of discord on the Left, as the last two paragraphs of this post of mine from a year or so discuss—that zombie-ERA advocates would count in their total the five or so states that have rescinded their ratifications of the ERA. So their claims depends further on the dubious proposition that a state can’t rescind its ratification of a pending proposed amendment.

On top of all this is the OLC opinion authoritatively setting forth the position of the executive branch that the ERA is long dead. It would be quite remarkable if OLC in the Biden administration were to reverse that straightforward position. Among other things, I have too much regard for Attorney General nominee Merrick Garland to believe that he would allow such a lawless caper.

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