President Biden announced Friday that he believes the Equal Rights Amendment has met ratification requirements and is therefore now part of the Constitution, but he declined to order the administration to formally publish the amendment to complete the process.
“In fulfillment of my oath and duty to the Constitution and our country, I affirm my belief and what three-quarters of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights under the law and protection, regardless of their gender,” Mr. Biden said in a statement.
However, under the Constitution, the president has no direct role in ratifying the amendment and his statement itself has no legal effect. The Biden-appointed Archivist of the United States declined to formally release the amendment, arguing that it did not meet the requirements to become part of the Constitution.
Thomas Jipping, Senior Legal Researcher A spokesman for the conservative Heritage Foundation said Biden’s statement was nothing more than his personal beliefs. He noted that Biden’s Justice Department defended the archivist in a legal opinion and said it had not identified “relevant legal authority” to prove that the amendment was passed after a congressional deadline.
“If he personally wants to believe that, that’s fine, but it has no legal effect and all the evidence shows he’s wrong,” Mr. Gippon said. “It’s like talking to thin air – it has absolutely no impact other than symbolism.”
Aides said Biden did not order archivist Colleen Shogan to change her position and publish the amendment, as supporters had urged him to do. Asked for comment on Friday, the archivist’s office recalled its previous statement refusing to publish the amendment, indicating Dr Shogan would not change her position.
Even so, supporters argue that Biden’s endorsement gives the amendment more credibility in any future court battles over whether it actually has the force of law. In fact, Biden and his allies are encouraging opponents to take to the courts to argue that women do not have equal rights.
The amendment would guarantee women equality in all aspects of life, such as pay, and provide constitutional safeguards against sex discrimination. After the Supreme Court overturned Roe v. Wade, congressional Democrats renewed efforts to add the amendment to protect women’s rights.
Democratic Sen. Kirsten Gillibrand of New York, who led the charge that Biden unilaterally enacted the amendment, said the president’s statement replaced the archivist and she was “no longer relevant.”
Gillibrand said Biden’s announcement obligates states to enforce the amendment and gives people the right to take legal action.
“I call on the plaintiffs to sue,” Ms. Gillibrand said in an interview. “I think it’s very important. Win or lose on the Supreme Court, this moment has to be documented. That’s the archivist’s job. She refused to do that. President Biden documented this moment in time.
Biden’s decision to speak out on an issue that has divided America for generations, just three days before leaving office, amounts to a belated effort to effect profound change and shape his legacy without taking real action. .
The Equal Rights Amendment was first proposed more than a century ago and has gone through a tortuous ratification process. The bill easily passed both houses of Congress in 1972 with the required two-thirds vote and was approved by most states in the following years. But until Virginia became the 38th state to ratify the bill in January 2020, it still fell short of the three-quarters of states required by the Constitution.
Opponents argued that the seven-year deadline imposed by Congress (later extended by three years) meant that approval was not completed in time, while supporters argued that the deadline was invalid. Additionally, several states that originally ratified the amendment have attempted to revoke their ratification, adding another layer of legal uncertainty to the situation.
In a statement on Friday, Biden said he agreed with legal groups such as the American Bar Association and constitutional scholars who believed the amendment “clears all necessary hurdles to be formally incorporated into the Constitution as the 28th Amendment.” In an address to mayors across the country on Friday, the president said he “consulted with dozens of constitutional scholars to make sure everything was within the scope of his powers.”
“It’s long past time to acknowledge the will of the American people,” Biden said.
The amendment was originally written by women’s rights activist Alice Paul in 1923 and was later revised to essentially consist of one sentence: “Equality of rights under the laws shall not be denied or abridged by the United States or by any state on account of sex.” The rest of the amendment simply says that Congress can pass legislation to implement the amendment and it will take effect two years after ratification.
Although the amendment’s text appears relatively simple on the surface at a time when federal law already prohibits sex discrimination, in fact it has long been an explosive issue. Supporters argue that such a fundamental principle should be explicitly incorporated into the Constitution rather than just statutory law, while critics argue that it would have far-reaching consequences for everything from abortion rights to women’s military conscription.
Democrats have been pressuring Biden to order archivists to release the amendment. Last month, Dr. Shogan and her deputy William J. Bosanco issued a statement saying that “due to established legal, judicial and procedural decisions, the Equal Rights Amendment cannot be certified as part of the Constitution.”
Citing various court decisions and Department of Justice memorandums, Dr. Shogan and Mr. Bosanco concluded that they “could not legally issue the Equal Rights Amendment.”
But the former Democratic senator from Wisconsin and president of the American Constitution Society, a progressive advocacy group who has pushed archivists to release the amendment, said Biden’s statement made sense, even if she didn’t think so.
“It’s completely historic that the president of the United States said it was enshrined in the Constitution,” Feingold said in an interview. “I believe, and a lot of people believe, it doesn’t matter whether the archivist proves it or not.”
That represents a reversal from more than two years ago, when he said the matter was indeed important and advanced a strategy to force archivists to release the case as a way to finally declare the amendment part of the Constitution. Feingold said the role of the archivist is now “just a ministerial one” and the president’s input is more meaningful.
“Getting the president to acknowledge that this is a legal issue is something we’ve been working on for years,” he said. “This is an important moment 100 years later.”
