By fixating on archivists and the president, we lose sight of the real obstructionists: the Republican leadership and its anti-women supporters who are blocking the ERA.
As time passes in the current Congress, we find ourselves on the brink of both dissatisfaction and hope. For those committed to the Equal Rights Amendment (ERA) and equality, we want to provide an update and outline next steps.
Congress did not pass a joint ERA resolution to ratify the ERA and eliminate arbitrary deadlines. But…let’s not mistake the end of this session for the end of this fight. His defensive rating hasn’t declined. Rather, it takes on new urgency given the 2024 election results.
As the 118th Congress concludes in early January, we must honor those who advocated for equality: the 214 House Democrats who signed the ERA discharge petition. Only four Republicans were needed to vote on the ERA. We are closer than ever to enshrining the ERA into the Constitution, and we believe failure is impossible.
This Republican absence looms large, and the reactionary shadow cast by those opposed to gender equality prevents anything from being fair and just. We must hold Republican politicians accountable. So we’re going to work now to help voters remember November 2026 and act accordingly.
ERA’s current situation is engulfed in confusion and risk
In recent weeks, I’ve read countless emails, sat in on heated meetings, and cried for action to President Joe Biden to order archivists to certify and publish the Constitution’s ERA. I heard it. I can understand the desire for a decisive blow. However, I believe this path is a trap tangled with legal barbs, dangerous and fraught with risks.
After careful consideration and consultation with leading constitutional experts, I believe Congress should pass a joint resolution to approve the ERA and eliminate arbitrary deadlines.
The evidence is unshakeable: Biden has no role in this amendment process.
Congress has clear authority to modify, extend, or eliminate the ratification deadline set forth in the preamble to the Equal Rights Amendment.
His intervention could set off a chain reaction, giving ERA opponents an opportunity to challenge the amendment in court. A judicial impasse with President Trump-appointed judges risks erasing decades of progress and forcing us to start over and wrestle Congress through reversals. In Congress, a two-thirds vote in both chambers is required, and ratification by three-quarters of state legislatures is required. There are no new fixes.
In January 2022, Biden issued a statement on the House ERA resolution, expressing his support for the ERA “loudly and clearly.” His statement continued:
We must recognize the clear will of the American people and clearly enshrine the principle of gender equality in our Constitution. It is long past time for us to clear all doubts. I am calling on Congress to act immediately to pass a resolution authorizing ratification of the ERA. As the recently published Office of the General Counsel memorandum makes clear, there is nothing to prevent Congress from doing so.
As the Columbia Law School ERA Project points out, Congress has clear authority to modify, extend, or eliminate the ratification deadline set in the preamble to the Equal Rights Amendment. I believe that Congressional action is the only viable means to ensure that the ERA is part of the Constitution.
Article 5 of the Constitution is clear. The power to amend it lies only with Congress and the states. It is Congress that must act to eliminate the deadline and approve ratification of the ERA by 38 states. The era of half-hearted measures has passed.
Together, we have an opportunity to build a grassroots movement focused on key congressional districts and states, weaving a web of support that no opponent can unravel.
Archivists also occupy a liminal space, a space between boundaries. During her Senate confirmation hearing, archivist Dr. Colleen Shogan was asked whether archivists have the authority to certify the ERA. Her accompanying written response was enlightening and thoughtful.
After ratification by three-fourths of the states, the Archivist of the United States shall, in accordance with statute, identify the ratifying states, publish the proposed amendment, and certify that the proposed amendment has become part of the Constitution of the United States. Masu.
As I understand it, the Equal Rights Amendment (ERA) has been ratified by 38 states. However, three ratifications occurred after the Congress-imposed deadline of June 30, 1982. The question is whether Congress has the power to set a deadline for ratifying constitutional amendments. The Constitution is silent on this issue. But Congress has set such deadlines since Prohibition, and that authority has been upheld by the Supreme Court.
Two legal memorandums written by the Department of Justice’s Office of Legal Counsel (OLC) during the previous (Trump) and current (Biden) administrations support this interpretation. Additionally, the 2022 OLC Memorandum states, “The 2020 OLC Opinion does not preclude the House or Senate from taking further action with respect to ratification of the ERA.” As co-equal branches of government, Congress is entitled to differing views on these complex and unresolved issues. ”
I also understand that this issue is pending in Virginia v. Ferriero and is currently under appeal. Ultimately, this is a question to be resolved by Congress and the courts.
On December 17, the National Archives issued a statement regarding the Equal Rights Amendment ratification process, updating its previous statement and stating that “OLC believes that extending or eliminating the deadline would require new action by Congress or the courts.” I have come to a conclusion,” he said.
Although the D.C. Circuit dismissed Illinois v. Ferriero for cause, the issue remains a tortuous maze between Congress and the judiciary. And remember, the National Archives and Records Administration (NARA) is an independent agency. Under the law, archivists have broad powers regarding records management, facilities, grants, agreements, and general agency management. Overall, the president has no authority over policy development or the actions of independent agencies, including NARA.
I understand the urgency, the call for action, and the demand that the ERA be granted now. But by fixating on archivists and the president, we risk losing sight of the real blockers: the Republican leadership and its extremist, anti-women supporters who are blocking the ERA. They are the ones who must be held accountable.
I’m not going to rest in this fight. And I know you won’t either. Together, we have an opportunity to build a grassroots movement focused on key congressional districts and states, weaving a web of support that no opponent can unravel.
As long as we channel our frustration into successful strategies and our anger into action, failure is impossible.
I want to thank everyone who has worked with me and others over the past year to write to members of Congress on House joint resolutions and expulsion petitions. It was a close second, so next time I will cross the finish line with renewed determination.
The only way to get things done is for both sides to come together. That’s the truth.
I hope that in the next Congress, women and men from Republicans, Democrats, and independents can find a way to work together.
Not for myself, but for something bigger. For equality. equality of opportunity. Equality in the economy. Equality for women is enshrined in the constitution to which it belongs.
Simple. Be frank. Unwavering.
Over the next two years, we must organize and elect enough representatives and senators to Congress to ensure that the ERA is recognized, publicized, and protected from judicial challenge. We hope that you will take part in this initiative. Spend a few hours each week or month dedicated to this purpose. Become an ERA Champion by emailing [email protected]. We’ll give you action steps you can take right away.
Together, we will build the foundation for a future where equality is enshrined in our Constitution. This is a legacy that no court can overturn.