Biden’s new constitutional amendment on women’s rights is nothing more than his opinion
Three days before leaving office, President Joe Biden has made a surprising announcement: He declared that a decades-old proposed Constitutional amendment enshrining equal rights on the basis of sex is now “the law of the land.”
Except it isn’t.
A senior administration official told CNN that Biden was not taking executive action but merely “stating an opinion” that the Equal Rights Amendment (ERA) was in effect. The National Archives — the federal government agency that is the official keeper of the Constitution — has stated for years that they cannot legally publish the amendment, because they’re bound by a Department of Justice holding that says they can’t. Plus, Donald Trump is about to take office and will likely express a different opinion.
What’s going on?
The Equal Rights Amendment, which states that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” was overwhelmingly approved by Congress in 1972 and sent to the states for ratification. Congress originally set a deadline of 1979 for ratification; it was later extended to 1982.
That deadline came and went without enough states voting to ratify, and the understanding from the political and legal establishment has generally been that the ERA was dead.
But progressive advocates have for years been trying to use some creative but dubious legal arguments to claim that enough states actually have ratified the ERA and it should go into effect.
Some states voted to ratify the ERA after the deadline passed, and advocates claim that the deadline — as well as the fact that some states also rescinded their ratification — should simply be ignored. An existing DOJ opinion (issued during Trump’s first term) held that the deadline has legal force, but advocates have argued that Biden should simply reject that opinion and say the amendment is law.
With his new announcement, Biden is giving advocates what they want — sort of. Advocates had urged him to instruct the National Archives to publish the amendment and make it officially part of the Constitution, a move that would provoke a legal battle.
But Biden is not going that far. He’s just, his aides claim, stating his opinion. So it’s unclear whether this will lead to anything at all. [Continue reading…]