If we want the ERA to be ratified, Congress needs to make it happen.
This story originally appeared on Substack by Emily Amick, the newsletter destination for the Emily in Your Phone Instagram community.
One of the questions I’ve gotten a lot in recent weeks is whether President Joe Biden can actually ratify the ERA.
You’ve probably heard a lot about this, as a rally and press conference calling for ratification was held outside the Supreme Court on December 10th. However, ratification is legally a bit more complicated than seeing an Instagram post asking for ratification.
Simply put, the Equal Rights Amendment is a proposed amendment to the U.S. Constitution that provides protections based on sex. If it is finalized as part of the constitution, it could be used to overturn anti-abortion laws in red states, among other things.
According to the letter from 46 senators, “it establishes the premise that sex-based distinctions in access to reproductive health care are unconstitutional, and thus single out women for unjustified denial of sex-based health care.” Banning abortion would violate the Constitution.” Equal rights for men and women. ”
In Article 5 of the Constitution, the Framers outlined the rules for how to amend the Constitution. (The Constitution has been amended 27 times.) There are two ways. Either through a constitutional convention or by vote.
In the case of the ERA, amendments passed with a two-thirds majority of Congress and then required approval by three-quarters of state legislatures.
Congress first passed the ERA in 1972. Shortly thereafter, 35 states ratified it. Progress was slowed by conservatives, including the Stop ERA movement led by Phyllis Schlafly. (There’s a miniseries about this called “Mrs. America,” which, according to Gloria Steinem and Ellie, depicts the fight over the ERA “not as a battle between the ERA and economic interests, but as a feud between women.”) (I made a big mistake) and it stinks. )
To become a constitutional amendment, the ERA must be ratified by 38 states, and Virginia became the 38th state to do so in 2020. (However, there are some issues, more on that later).
Supporters of immediate ratification of the ERA argue that the only and final step necessary for the ERA to become enacted as the 28th Amendment is for it to be published by the national archivist.
On November 22 of this year, 46 U.S. senators called on Biden to direct the National Archives Administrator to certify and release the ERA.
Another quick explanation: a national archivist is the official responsible for overseeing the National Archives and Records Administration (NARA), which manages federal records, including important documents such as the U.S. Constitution and its amendments. The archivist’s job is to authenticate and publish constitutional amendments that meet the necessary legal and procedural requirements.
When the ERA is published by the National Archives, it means that the amendments have been formally recognized as a valid part of U.S. law, assuming all legal conditions for ratification have been met.
However, there are two problems:
The original bill passed by Congress in 1972 included a seven-year ratification deadline, which was once extended by three years. By the time his ERA reached 38, that deadline had long passed. Several states revoked ratification. Therefore, if you consider it impossible to revoke any state, you only need 38 states. Idaho, Kentucky, Nebraska, South Dakota, and Tennessee passed resolutions to revoke ratification.
So can Biden actually wave his magic executive wand and make the ERA happen before the end of his term?
In August of this year, the American Bar Association (ABA) adopted a resolution stating that Congress cannot set a deadline for ratification of the ERA. Therefore, they argue, parts of the original law should be ignored. Their argument in this regard is that Article 5 of the Constitution does not explicitly contain any provision regarding the deadline for ratification.
The ABA also “supported the principle” that states cannot revoke ratification, and similarly argued that ratification is not an existing power since it is not provided for in the Constitution. This is natural. If states could be revoked, where would the boundaries be?Constitutional provisions that move back and forth depending on the prevailing mood are hardly the foundation of a rigid law. There are three instances in history where countries withdrew their ratifications and were ignored.
Although the ABA is a legal entity with gravity, its resolutions are by no means binding decisions. That is the opinion of the professional organization of lawyers in this country.
So who has an opinion that matters?
The Department of Justice’s Office of Legal Counsel (OLC) is an advisory body, but its role is more litigious.
On January 6, 2020, the then-Trump Justice Department’s OLC issued a memorandum analyzing the future legal direction of the ERA. He said Congress has the power to set deadlines for ratifying the ERA, but because those deadlines were not met, the ERA is no longer on hold. On January 25, 2022, Biden’s OLC issued an opinion concurring with that conclusion.
ERA supporters have long urged Congress to pass legislation to extend or override the ratification deadline, and in 2021 a joint resolution to lift the deadline was passed in the House of Representatives (but not in the Senate). ).
The 2020 OLC memo not only stated that a deadline had been set, but asserted that “Congress cannot reinstate the amendment after the deadline expires.” Under the Trump administration’s policies, ERA supporters would have to start from square one again.
However, a 2022 opinion released by Biden’s OLC said Congress could modify or rescind the ratification deadline, saying, “As co-equal branches of government, Congress differs on these complex and unresolved issues.” “I have a right to my opinion,” he said.
The OLC Memorandum of Understanding is not legally binding. However, they reflect the views of the executive branch.
The National Archives’ official policy on the ERA is posted on its website: “Unless otherwise directed by a final court order, NARA will defer to the judgment of the Department of Justice and the opinion of the OLC on this matter.”
Has anyone sought a court order? Yes, but they were not successful.
In January 2020, ERA supporters filed a lawsuit in Massachusetts. The case was dismissed in August of the same year, and the writ of certiorari to the Supreme Court was denied on October 13, 2020. Similar lawsuits were filed by the attorneys general of Virginia, Nevada, and Illinois, but those lawsuits were also dismissed, requiring states to require archivists to certify and release the ERA, or for Congress to impose a deadline on the proposed provisions. It concluded that it did not have the authority to establish such a law. ERA’s.
In most of the recent conversations about the ERA ratification deadline, one big piece of the puzzle I see is missing. That means the ratification issue has already been litigated.
In 1921, the Supreme Court ruled that Congress had the power to set deadlines for ratification. In Dillon v. Gross, the court found that Congress had the power to impose a seven-year deadline for ratification of the Eighteenth Amendment, which established Prohibition. In 1939, the Supreme Court heard a case concerning the child labor constitutional amendment and ruled that Congress had the power to control how the Constitution was amended.
The ratification deadline is not an anachronism in history, but rather has legal precedent. I do not believe that ratification of the ERA is the clear legal decision that many of us would like, especially as women’s rights continue to be eroded both in the courts and in American culture.
Legally, I think it’s clear that Congress needs an extension to ratify the ERA because the deadline for ratification is set by law. There is a political argument here to push for ratification and even try to force Biden to ratify in order to get the Supreme Court chosen by President Trump to overturn it (under President Trump’s watch). This could create an energizing moment for further political organizing.
The problem is, this is not Joe Biden. He’s not the kind of person who would do anything that violates Supreme Court precedent, and I don’t think this is an issue that he’s trying to evolve into.
So should we keep marching, as the musical Suffus proclaims? Visibility is always important. But we need to do more than just march, we need to develop a comprehensive plan to address the current issues facing ERA ratification. So we need political power.
I would like to see the ERA ratified, but we need Congress to make that happen.