D.C. Circuit Refuses to Order Archivist to Certify Ratification of Equal Rights Amendment

From today's D.C. Circuit opinion in Illinois v. Ferriero, written by Judge David Wilkins and joined by Judges Neomi Rao and Michelle Childs:

The States of Illinois and Nevada … filed this mandamus action in the district court, seeking to compel the Archivist of the United States to certify and publish the Equal Rights Amendment ("ERA") as part of the Constitution of the United States. The States argued that the Archivist had a duty to certify and publish the ERA because it was ratified by the requisite three-fourths of the States of the Union as required by Article V of the Constitution.

Alabama, Louisiana, Nebraska, South Dakota, and Tennessee … joined the litigation as intervenor-defendants. Both Intervenors and the Archivist moved the District Court to dismiss the States' case as a matter of law….

The District Court … ruled the States did not show that the Archivist's failure to certify and publish the ERA caused "a concrete injury that could be remedied by ordering him to act," and that his decision to certify and publish amendments "has no legal effect." The District Court also ruled that Plaintiffs had not established that the Archivist had a clear duty to certify and publish the ERA or that their right to relief was clear and indisputable. The District Court did not reach Intervenors' arguments that the ERA had expired under Article V of the Constitution and that five states had validly rescinded their ratifications. …

The grounds on which a district court may grant mandamus relief are narrow, and the demands are austere. Because we agree that the States fail to show their right to relief is "clear and indisputable," we affirm….

The States' first argument is that neither Article V of the Constitution nor 1 U.S.C. § 106b (the relevant statute) permits the Archivist to consider anything other than whether the requisite number of states have ratified the proposed constitutional amendment. Under this view, once the Archivist was provided notice that thirty-eight states (three-fourths of the states of the Union) had ratified the ERA, then pursuant to Article V and § 106b, the Archivist had a clear duty to certify and publish the ERA in the Statutes at Large as a part of the Constitution. In essence, the States argue that the seven-year ratification deadline in the resolution passed by Congress has no legal relevance to the Archivist's certification and publication duties.

The problem for the States is that their interpretation is not the only permissible construction of the relevant statute. The Archivist's certification and publication duties are set forth in § 106b as follows:

Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.

The statute expressly provides that the Archivist's certification shall "specify[ ]" that the ERA "has become valid," which can be reasonably interpreted to give the Archivist authority to decide whether the fact that some of the ratifications occurred after Congress's seven-year deadline affects their validity. This is the interpretation proposed by the Archivist, and based solely on the statutory text, we cannot say that this interpretation is "clearly wrong," and "there is [no] room for an honest difference of opinion." …

The States' contention that Article V prohibits the Archivist from considering the ratification dates on the official notices essentially merges with its second argument, which is that the seven-year ratification deadline is ultra vires. Recall that Article V gives Congress the power to "propose" amendments, which

shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress …

The States submit that because the text of Article V only specifies that Congress can select the "mode of ratification," Congress has no power to place any other limitations on the states when it comes to ratification. According to the States, "mode of ratification" refers solely to the process of ratification either via a constitutional convention or a legislative vote, because those two modalities are expressly mentioned preceding the phrase "mode of ratification." Thus, the argument goes, affixing the timing of ratification falls outside of the plain meaning of "mode of ratification" and is not authorized by Article V. The States also argue that at the time of the founding, several state constitutions included deadlines for the ratification of proposed amendments, and thus the absence of deadlines in Article V was deliberate, rendering any attempt to "rewrite" Article V to include Congressional power to set such deadlines improper.

As a matter of the plain meaning, the States' textual interpretation is not without force. It is certainly plausible to read the word "mode" as only referring to how the amendment may be ratified and not when. The problem for the States is that the Supreme Court has also observed that Article V confers upon Congress an "incident[al] … power" to establish "matters of detail" that flows from its power to designate the "mode of ratification," including the establishment of a reasonable time limit for ratification….

Finally, the States argue that even if Congress has the power to impose a ratification deadline, the ERA's seven-year deadline is invalid. The States contend that Congress lacks authority to set deadlines outside of the text of the amendment, i.e., in the proposing clause of the amendment, as was done in the ERA. The States point out that Congress placed the seven-year ratification deadline in the Eighteenth Amendment as part of its text. Thus, according to the States, to the extent [an earlier Supreme Court case involving the Eighteenth Amendment] upheld Congress's power to impose the seven-year ratification deadline, the Court's reasoning is confined to deadlines placed in the text of the amendment, rather than in language "separate" from the text. We also find this argument to fall short of the clear and indisputable standard.

Significantly, the States cite no persuasive authority suggesting that Congress is prohibited from placing the mode of ratification—ratification either by convention or the state legislature—in the proposing clause of an amendment. At oral argument, the States conceded that Congress has placed the mode of ratification (ratification by legislature or ratification by convention) in the proposing clause of every constitutional amendment in the nation's history, and the States further concede that Congress's specification of this aspect of the "mode" in the proposing clause does not invalidate any of those amendments. If one aspect of the mode of ratification can be placed in the proposing clause, then why not also the ratification deadline? The States' argument that the proposing clause is akin to the inoperative prefatory clause in a bill is unpersuasive, not just because proposed constitutional amendments are not "ordinary cases of legislation," but also because if that were the case, then the specification of the mode of ratification in every amendment in our nation's history would also be inoperative.

We do not find it clear and indisputable that Congress's consistent placement of the mode of ratification in the proposing clause of every amendment since the founding had no impact on the validity of any of those amendments, while Congress's placement of a ratification deadline in the proposing clause of the ERA (side-by-side with the mode of ratification) renders the deadline invalid (but not the mode)….

Congratulations to Deputy Assistant AG Sarah Harrington, who argued for the appellees.

Comments

[Brett Bellmore]

And appropriately so, the amendment died decades ago.

I'm not sure why they want it, though: The Court has already imposed almost everything the ERA's foes warned it would result in, what's left?

[The Margrave of Azilia]

The final frontier is female draft registration and (later) conscription. My hypothesis is that this will happen with or without an ERA.

[Mr. Bumble]

I don't believe women should be in combat (at least not in infantry positions) but that bridge has pretty much been crossed, so the justification for not having women register for the draft should be moot.
As it stands now, there is no draft and there is unlikely to be one, but maintaining a registry of might make some sense. In the meantime males who fail to register can be denied many benefits.
Hardly seems fair.

[AmosArch]

Its a moot point since increasingly all the actual fighting is done more and more by robots and teams or highly trained male specialists with the eponymous military being turned into a hybrid adult daycare/make work bureaucracy/social justice playground. The major issue of course would be if a full scale war broke out that overwhelms the capability of the relatively small actual combat forces. The most likely course would be after a spate of unnecessary deaths and chaos they'll quietly reverse all the woke policies behind the scenes while still emblazoning all the media with shots of transgender hermaphrodite quadriplegic soldiers. Then go back to business as usual once the war ends (assuming the country and current regime still exists).

[Sarcastr0]

all the actual fighting is done more and more by robots and teams or highly trained male specialists with the eponymous military being turned into a hybrid adult daycare/make work bureaucracy/social justice playground.

The right turning against the troops has been quite a trip.

[AmosArch]

Who said anything about turning against the troops? Just because you talk about failed corporate moves by walmart doesn’t mean you have a problem with checkout employees in general.

[Armchair Lawyer]

"Its a moot point since increasingly all the actual fighting is done more and more by robots and teams or highly trained male specialists with the eponymous military being turned into a hybrid adult daycare/make work bureaucracy/social justice playground."

Not really in the US, not at the troop level. (We'll leave aside the military bureaucracy.) The US did a lot of heavy infantry counter-insurgency fighting in Iraq and Afghanistan.

Now, other countries militaries like Germany, who train with broomsticks instead of real guns. That's a different story.

[DonP]

That will come as a surprise to the Marines that had to clear Fallujah house by house in some neighborhoods, unless of course their "robots" and "drones" were carefully disguised as M4s with fixed bayonets.

[ReaderY]

Events in Ukraine suggest that notwithstanding new technologies, what soldiers actually do in combat is pretty far from just kids playing remote video games. The much-talked-about death of historical military strategy, tactics, fitness and training has been greatly exaggerated.

Also, Putin banked on claims that Western lifestyles would render their soldiers fragile, pushovers compared to soldiers with manly traditional family values. To the extent evidence matters in these sorts of debates, those claims don’t seem to have held much water either.

[SMP0328]

If the ERA became the 28th Amendment, it might restore a right to abortion; one that might go beyond Roe and Casey. The ERA would also effectively Constitutionalize Bostock v. Clayton County (2020).

[AmosArch]

Theres nothing inherently discriminatory about abortion restrictions if you subscribe to contemporary leftist gender philosophy. If men happened to become pregnant they are just as bound as women would be.

[SMP0328]

That's why I said "might." Nobody knows what the ERA would do regarding abortion. This was being discussed in the '70s and the conclusion is the same now as it was then: the only way to know the answer is to add the ERA to the Constitution followed by SCOTUS interpreting it relating to abortion.

[Bored Lawyer]

Which turns SCOTUS into the Oracle of Delphi. What a completely backwards way of Constitutional Popular Sovereignty.

[John F. Carr]

Another fear in the 1970s was that single sex restrooms would be banned by the ERA. As it happened they were banned even without the ERA.

[Brett Bellmore]

If the SC doesn't like an amendment, they can pretty thoroughly moot it; The 14th amendment until Brown, or more recently the 27th amendment.

OTOH, if they really like a proposed amendment, they can moot the states' refusal to ratify, by reading its substance into some other part of the Constitution. This is what they've largely done with the ERA, read the 14th amendment to accomplish what the states thought they'd defeated.

[Dr. Ed 2]

Two words -- child support.

[Rossami]

I don't think either one of those are true.

There is nothing in the text of the ERA that even hints at a right to abortion. Nor was that argued by any of the proponents of the ERA at, well, any point in its history that I can find, going all the way back to it's first proposals in 1921.

Bostock hinges on the definition of "sex", a term that the text of the ERA does nothing to clarify.

[SMP0328]

I doubt the Supreme Court would interpret "sex" differently in the ERA than it did in Bostock regarding the Civil Rights Act.

[Brett Bellmore]

"Nor was that argued by any of the proponents of the ERA at, well, any point in its history that I can find, going all the way back to it’s first proposals in 1921."

Well, duh: They wanted it ratified! Even today you couldn't get a right to abortion amendment ratified, back then it would have been hilariously doomed.

They didn't say it would lead to SSM, either. Yet here we are, on the basis of the Court reasoning as though it had been ratified.

[Dr. Ed 2]

Goodridge v. Dept. of Public Health, 798 N.E.2d 941, the MA SJC decision that gave us gay marriage, was based on the MA State ERA which was passed in the mid ’70s when no one even dreamed of gay marriage.

It was NOT based on due process like the rest of the cases/suits, but on the state ERA.

NB: I’m not saying it is a well-written or even really logical decision, but it you tear it apart and try to figure out what she was saying, the only thing possible (other than her political agenda) is the ERA clause that replaced “all men” with “all persons.”

And the dissents -- all written by Democrat-appointed justices -- are priceless. It was the Republican-appointed justices who gave us gay marriage.

[David Nieporent]

And the dissents — all written by Democrat-appointed justices — are priceless. It was the Republican-appointed justices who gave us gay marriage.

Why do you lie like this?

The dissents were all written by Republican-appointed justices.

Also, the claim that in the mid-1970s "no one even dreamed of" gay marriage is false; a case seeking to have it legalized made it all the way to the U.S. Supreme Court in 1971. (It lost, but the fact that it got that far shows that lots of people were dreaming of it.)

[Brett Bellmore]

Sure, that's why "It would mandate SSM" was such a killer argument against the ERA; Because it WAS entirely plausible that it would be used to do that.

[David Nieporent]

Bostock does not hinge on the definition of sex. It hinges on the definition of "because of."

[SMP0328]

Would the Supreme Court find a meaningful difference between "because of" (Civil Rights Act) and "on account of" (ERA)? They seem the same to me: sex can't be the reason for the subject action.

[John F. Carr]

The archivist is in the executive branch. If the president wanted the amendment to pass he could have found an archivist who was willing to say it passed. The president could have told the Department of Justice to lose the case. Like DC statehood, the ERA may be more politically useful as something to complain about not having.

The nominal defendant here is an Obama appointee. The office is not considered a political job and Trump did not replace him.

[Mr. Bumble]

"....and Trump did not replace him."
That worked out well.

[Area Man]

I’ve always thought the Necessary & Proper Clause gives Congress the power to set a deadline. Considering the things the Supreme Court has said the N&P Clause allows, I don’t see why it wouldn’t let Congress condition altering our foundational law on a reasonable timeframe.

And since nothing prevents states from rescinding their ratifications before final ratification, then the Tenth Amendment clearly lets them do so.

[SMP0328]

[S]ince nothing prevents states from rescinding their ratifications before final ratification, then the Tenth Amendment clearly lets them do so.

Not disagreeing with you, but the Supreme Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), ruled that the Tenth Amendment could reserve only those powers the States had prior to the Constitution's adoption. Under that ruling, the Tenth Amendment has nothing to say regarding the States' authority under Article V.

[Area Man]

That’s a good point. Assuming the Supreme Court would extend Thornton’s logic to this context, I guess my argument would be that rescinding a ratification before final ratification is sufficiently akin to repealing a state law, which the states have obviously retained.

And, unlike in Thornton, rescinding a ratification doesn’t add to or contradict something actually in the Constitution. That is, in Thornton, there were specific qualifications outlined for congressional office, and Arkansas was (ostensibly) trying to add to those (not really, of course, as Arkansas still allowed someone to stand as a write-in candidate, but SCOTUS reimagined the no-name-on-the-ballot provision as adding a qualification). Here, however, the rescinding states weren’t standing between the federal government and the People; instead, they are weighing in on what they are specifically allowed to weigh in on, namely, ratification of a constitutional amendment.

[AmosArch]

If like ERA supporters insist it has an infinite deadline and only ratifications count and not revocations Congress could theoretically amend the Constitution to its hearts desire as long as it waited out the changing political climates in the states.

[Brett Bellmore]

That's precisely the contrary argument. You could imagine an amendment that was ratified by one state after another; In each state at the next election the voters turned out the legislators who'd ratified it, and the newly elected legislature rescinded. This would be the most decisively democratically rejected amendment ever, and under this theory it could still end up ratified.

When these amendments are originated by Congress, the time limit is originated with the same supermajority vote, not voted on separately; It's one act of Congress. Not putting the time limit in the body of the amendment is just an effort to avoid junking up the Constitution with extraneous text.

It IS somewhat worrisome that the ERA could one day be imposed on us just by a President picking the wrong Archivist.

[bernard11]

Right.

If you don't have one or the other then all amendment that pass Congress will, in the limit, be ratified.

But rescission has some problems too. Imagine an amendment that is close to ratification. Now you have a race between ratifiers in one state and rescinders in another to see whether it makes it or not.

My preference is for a time limit with no rescission. Or allow rescission but require that rescinding state do it twice, at least two years apart.

[Area Man]

"Or allow rescission but require that rescinding state do it twice, at least two years apart."

Would there be a tolling on final ratification during that two-year period? That is, if a state rescinded, but then during the two years enough states ratified, would the rescinding state's first ratification count, or is it on hold until it gets to vote on rescission first?

[Brett Bellmore]

The goal here, presumably, is to demonstrate that the relevant supermajority of states exists all at one time. Time limits act as an informal way of excluding ratifications which may have expired in terms of support, even if no vote to rescind took place. Rescission is the more formal proof of expiration.

So, I see no problem with allowing rescission, and even re-ratification, so long as it's the running total that matters. If we're going to require double rescission, might as well require double ratification while we're at it, with a requirement that an election have intervened. I believe some states already do that for state constitutional amendments?

[bernard11]

I see that the double rescission idea leads to some complications I didn't think through.

I'd say, now, that just having a time limit with no rescissions is better.

[Brett Bellmore]

It's better than the complications of double rescission, but still has the downside of counting ratifications that are democratically repudiated well before the magic number has been reached.

Running totals aren't all that complicated to keep track of.

[Gasman]

The deadline is within the amendment itself. If ratified, then so too is the clause voiding the amendment.

It is almost like having the sole text of an amendment being: "Upon ratification, this amendment is void."

[The Margrave of Azilia]

If there’s no deadline to constitutional amendments, other than what’s specified in the text of the proposed amendment itself, then the states can still ratify the Corwin Amendment, proposed in 1861:

“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

https://slaverylawpower.org/corwin-amendment-1860/

And there's also this one:

"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them."

https://constitution.congress.gov/browse/essay/appx-3/ALDE_00000026/

[David Nieporent]

The Corwin amendment by its own terms wouldn't have any effect. It doesn't purport to re-legalize slavery (obviously, since slavery was still legal when it was proposed); it prevents Congress from, in the future, amending the constitution to abolish slavery. But since the 13th amendment already did that, Congress would have no need to do so again.

[Brett Bellmore]

I wouldn't say it wouldn't have any effect; It wouldn't have an effect on slavery, true, because the 13th amendment has already been accomplished.

But slavery is hardly the only thing that could be classified as "the domestic institutions thereof". In fact, the Corwin amendment could have huge implications going forward on what constitutional amendments could actually accomplish, depending on how that phrase was interpreted.

[The Margrave of Azilia]

Plus, what if they try to repeal the Corwin Amendment? Would this defeat the whole point of an unamendable amendment?

Congress could simply resolve that the Civil War and 13th Amendment mooted the Corwin Amendment by removing the occasion for considering it, thus no future ratifications would be valid.

Yet under the plaintiffs' theory this would be unconstitutional, and the Corwin Amendment must be perpetually up for ratification.

[Magister]

Which state will be the first to ratify a pro-slavery amendment from before the Civil War? Sort of the same question about electing Senators; states can appoint them without a direct election, but what state is going to dare to do that?

[The Margrave of Azilia]

We’re dealing with hypotheticals – specifically a reductio ad absurdam for the ERA advocates’ argument.

The Supreme Court lets Congress specify ratification deadlines and even to decide after the fact whether the ratification was done in time.

This seems perfectly correct, since Congress is responsible for proposing amendments, and the could well decide it's necessary and proper to set rules for ratification in areas where there's ambiguity - what's the deadline, can a state rescind a ratification, etc.

Of course, you can point to the Congressional Pay Amendment, the 27th, which Congress proclaimed in 1992 to be duly ratified, even though the ratification process stretched from 1789 through the late 20th century.

If the amendment *hadn’t* limited Congressional pay, and Congresscritters weren’t worried about the “optics” of opposing such an amendment, then I suspect Congress wouldn’t have been so quick to declare the amendment ratified.

[Magister]

So if some state wanted a pro-slavery amendment, they could ratify that one without waiting for Congress to submit another? What state would want to do that?

The time limit is not a bad thing in general; 200 years to ratify an amendment seems like the first state to ratify it could have all but forgotten it did so. No need to drag in something from the dustbin of history for a reductio ad absurdum about time limits.

If the ERA could only be "expired" from possible ratification by explicit action of Congress, would it have ever done so? I expect that if Congress were to spare the time to consider it, you could get a two-thirds majority to throw out that Corwin amendment. They don't because nobody thinks it's going to go anywhere. If it contains some states rights kernel unrelated to slavery that might get enough support now, Congress can propose a new amendment now.

[The Margrave of Azilia]

To be fair, there *is* the case of the 27th Amendment:

https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution

Going forward, if they ever bother to propose a constitutional amendment again, there should be a 7-year time limit to ratification codified in the text – a sort of self-destruct button if it’s ratified too late.

[Kazinski]

The 27th Amendment was proposed by the 1st Congress in 1789, and was ratified more than 200 years later without any further action by Congress.

It obviously did not have a time limit.

[The Margrave of Azilia]

As I mention, Congress passed a joint resolution that it had been duly ratified, and I think it was within their discretion to do that. We can make an educated guess that they weren't going to reject an amendment which restricted Congressional pay raises - the voters wouldn't stand for such perceived self-dealing. (Plus the current arrangement for pay raises seems to me to bypass the 27th Amendment, so it's no skin off their nose).

There wasn't a time limit in the text or the resolution of ratification, from which I draw the conclusion that Congress, under its necessary and proper powers, can decide whether to recognize a late-ratified amendment or not.

[Dr. Ed 2]

I don’t really see what the argument is — there STILL haven’t been enough states to ratify it, even with the extension.

Is this the same thing as what Trump wanted Mike Pence to do? And if so, aren’t we being a little bit hypocritical here asking the archivist to do it?

And as to states rescinding it -- doesn't it have to be a supermajority of states CONCURRENTLY ratifying it?

[David Nieporent]

I don’t really see what the argument is — there STILL haven’t been enough states to ratify it, even with the extension.

There have been, if rescissions aren't effective.

Is this the same thing as what Trump wanted Mike Pence to do?

No. This has been yet another episode of Simple Answers to Stupid Questions.

And as to states rescinding it — doesn’t it have to be a supermajority of states CONCURRENTLY ratifying it?

I have no idea what this question means.

[John F. Carr]

Whether by law or by custom, the archivist has a little more discretion than Pence. People used to challenge the 16th amendment (income tax) on the grounds that ratification documents were defective in some way. The courts ruled that the decision of the responsible official to accept them would not be reviewed. The courts did not rule he was obliged to overlook differences in punctuation. Having chosen to overlook the differences, he could declare the amendment in effect.

[Dilan Esper]

In addition to the substantive problems here, I'm not even sure this is the right way to seek this relief.

Why can't a party simply assert in a case that the ERA is part of the Constitution and supplies the substantive rule, and then, when the argument is denied, take that issue up to the Court of Appeals? Why bring the Archivist into it. If it really did get ratified (I don't think it did, but let's assume the plaintiffs are right about it), isn't it just part of the Constitution and you can just interpose it in a legal case?

[John F. Carr]

I agree there are better parties to claim the ERA exists. The District Court found the states did not have standing. The Appeals Court wrote "Because the issue of whether the States have Article III standing is a close and complex question, we turn first to the relatively easier evaluation of whether the States have met the stringent requirements for mandamus relief."

[ReaderY]

Following the defeat of the ERA, the Supreme Court not only concluded the 14th Amendment covers just about everything proponents of the amendment wanted, but quite a few things proponents of the amendment had assured opponents were rediculous parade-of-horribles propaganda poster things that of course would absolutely never happen.

[Brett Bellmore]

I think they were actually more diligent about realizing the parade of horribles...

[SMP0328]

ERA proponents want it to become the 28th Amendment to lock-in their wins at SCOTUS. They know what SCOTUS giveth, SCOTUS can taketh away. Dobbs confirmed this and Justice Thomas’s concurrence in that case scared the Hell out of them.

Also, ERA would likely eliminate all the recently enacted State laws regarding trans-females (biological males) and girls’/women’s sports.