President Biden on Friday declared that he considers the Equal Rights Amendment to the Constitution “the law of the land,” a surprising declaration that does not have any formal force of effect, but that was celebrated by its backers in a rally in front of the National Archives.
The amendment would need to be formally published or certified to come into effect by the national archivist, Colleen Shogan — and when or if that will happen is unclear.
The executive branch doesn’t have a direct role in the amendment process, and Biden is not going to order the archivist to certify and publish the ERA, the White House told reporters on a conference call. A senior administration official said that the archivist’s role is “purely ministerial” in nature, meaning that the archivist is required to publish the amendment once it is ratified.
In response to an NPR question about whether the archivist would take any new actions, the National Archives communications staff pointed to a December statement saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
“This is a long-standing position for the archivist and the National Archives. The underlying legal and procedural issues have not changed,” the archives’ statement said.
Biden’s last-minute move comes after a campaign by Democratic lawmakers
The 1970s-era amendment passed by Congress would guarantee men and women equal rights under the law, but it took until 2020 for enough state legislatures to ratify it, missing a deadline set by Congress by a long shot. ERA proponents have argued that the deadline was not binding because it was in the preamble to the amendment, rather than the text of the amendment itself.
On Friday, Biden said he believed the ERA had cleared the hurdle to be added to the Constitution as its 28th Amendment when Virginia ratified it five years ago. He did not explain why he waited until the waning days of his presidency to take action — though he said he had consulted “dozens of constitutional scholars” as he weighed his decision.
“The Equal Rights Amendment is the law of the land — now!” he said in a speech to the U.S. Conference of Mayors. “It’s the 28th amendment to the Constitution — now.”
His move comes after a campaign from Democratic lawmakers, including Sen. Kirsten Gillibrand, D-N.Y., who has said it would be a way to protect abortion rights. Gillibrand has said she expects that the matter will end up in the Supreme Court.
There’s a long legal controversy over the ERA
The issue has long been the subject of legal controversy. In 2020, the national archivist — who is charged with making constitutional amendments official — declined to certify the amendment, citing an opinion from the Justice Department’s Office of Legal Counsel. The department said it considered the ERA to be expired after a 1982 ratification deadline was missed. In 2022, the Office of Legal Counsel released an opinion affirming that 2020 decision.
Shogan, a Biden appointee and the first woman archivist, said in her 2022 confirmation hearing that the Biden administration had not asked her about her position on ERA ratification before nominating her. She added that she would abide by the Office of Legal Counsel’s opinion, saying the ERA’s fate would be decided by courts or Congress.
Last month, Shogan reiterated that Congress and the courts would need to take further action to lift the deadline for the amendment to be ratified — arguing that the Archives could not legally certify and publish the ERA.
While Biden’s statement doesn’t put the ERA into the Constitution, it does raise new legal questions in the ERA push, says Martha Davis, professor at Northeastern University School of Law.
“I think it does move the ball. It makes the arguments a little bit different than they were, but it doesn’t end the controversy,” said Davis.
“Now the question is whether or not the president has revoked or obviously is disagreeing with the OLC opinion. So then the question is, what weight does the OLC opinion have?” she added. “If the president gets it right and the archivist is basing their refusal on the OLC opinion, well, the president has just just disowned it. And so then the question is, well, on what basis can the archivist refuse to act?”
Davis also said that Biden’s last-minute timing matters — that making this statement earlier may have been more effective, as it would have allowed the Biden administration more time to make a legal push for ratification.
“If it had been done even a few weeks ago, there could have been some injunctive relief to try to force the archivist, based on the president’s statement,” she said.
ERA backers wished Biden had moved earlier
ERA proponents wish Biden had acted earlier in his term, but some celebrated the move nonetheless.
“I wish he had acted when he first got into office, quite frankly,” said Zakiya Thomas, president and CEO of the ERA Coalition, which has promoted the amendment. “But I will take this as we have it now, because I think the act itself is more important than the timing of it.”
Thomas said she agreed with Biden, that the archivist’s position is “ministerial.” However, she is under no illusions that the incoming Trump administration agrees.
“Let’s assume that the incoming administration will try to take it away and say, ‘Oh, it doesn’t count,'” Thomas said. “Then they have to answer to the rest of the country, who says, ‘No, we have this right, this foundational right.'”
