The Volokh Conspiracy
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Biden's Dubious Declaration that the Equal Rights Amendment has Been Duly Ratified
I support the ERA. But Biden's claim that it has been properly ratified goes against court decisions, and is almost certainly wrong.
Today President Biden declared that the Equal Rights Amendment, which states that "Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex," has been duly ratified and is now part of the Constitution. Like Biden, I support the ERA and want it to be part of the Constitution. But his statement that it has been properly ratified is at odds with relevant court decisions, and is almost certainly wrong. Here is Biden's statement in full:
I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women's full equality once and for all.
On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.
For reasons laid out in a 2007 article on the subject, I too support the ERA. Some of the points I made in 2007 are now moot. For example, the ERA is no longer needed to ensure a right to same-sex marriage, because the Supreme Court ruled in favor of such a right on other grounds in Obergefell v. Hodges (2015). Similarly, the Pentagon has already opened up nearly all combat positions in the military to women, making that issue moot, as well (though enactment of the ERA could protect against backsliding). But the ERA would still lead to invalidation of all or most remaining forms of state-sponsored sex discrimination, such as male-only draft registration, and affirmative action preferences for women in some education programs and government contracting. It's possible that it would also ban state discrimination against transgender people (whether the latter qualifies as sex discrimination is disputed, though I think it does). I would be happy to see those effects happen, though the affirmative action one may not be welcomed by some of the ERA's more left-wing supporters.
Thus, I wish I could support Biden's conclusion that the ERA has been duly ratified. Sadly, I cannot. Scott Bomboy of the National Constitution Center has a helpful article laying out the controversy over the ERA's ratification. As he notes, Congress passed the ERA in 1972, but included a seven year deadline for the requisite ratification by three-fourths of the states. Congress eventually extended that deadline by another three years, till 1982. But, as of the extended deadline, only 35 states had ratified, three short of the required supermajority.
More recently, three more states claimed to ratify the amendment, the most recent being Virginia in 2020. Biden and other supporters of the idea that the ERA is now law want to count these post-deadline ratifications along with the others. Their position rests on the claim Congress's ratification deadline is unconstitutional.
Unfortunately for Biden, the Supreme Court ruled in Dillon v. Gloss (1921) that Congress does have the power to impose ratification deadlines, as it had done with the Eighteenth Amendment (which imposed alcohol prohibition). As the unanimous Court put it, "[w]e do not find anything in the article which suggests that an amendment, once proposed, is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary…. Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt."
More recently, the US Court of Appeals for the DC Circuit reached a similar conclusion regarding the ERA itself, in Illinois v. Ferriero (2023), a case in which two state governments sought to compel the Archivist of the United States to certify that the ERA has been duly ratified and is now the law. For what it's worth, the DC Circuit ruling was authored by Judge Robert Wilkins, a liberal Obama appointee, and joined by fellow liberal J. Michelle Childs (a Biden appointee), as well as conservative Neomi Rao (appointed by Trump).
I think the reasoning of these decisions is compelling. But even if Biden disagrees, he and other government officials have a duty to adhere to the courts' resolution of these constitutional issues. Defiance of such judicial decisions is wrong when promoted by Trump and J.D. Vance, and it is wrong for Biden, as well.
In fairness, Biden's declaration does not, by itself, violate any judicial ruling. That would only happen if the administration takes meaningful steps to enforce the ERA. Since Biden only has about three days left in office, he may be unwilling or unable to do anything along these lines. The incoming Trump Administration is likely to reject Biden's position.
It is somewhat strange that Biden only took this step on his way out the door. After all, Virginia's supposed ratification took place in 2020, and Biden could have adopted the position that the ERA has been ratified at any time during his term. Had he done so in, say, 2021 or 2022, it would have had a much bigger effect, likely triggering a prolonged legal battle.
For the moment, therefore, Biden's declaration is just a dubious symbolic step that probably won't have much effect. But I worry that it will lead a future Democratic administration to take the same position, thereby setting the stage for an unnecessary constitutional conflict.
Co-blogger and Harvard law Prof. Steve Sachs offers additional criticisms of Biden's position here.
