The ERA is not the "law of the land"
The president can't amend the Constitution through a press release.
On his last Friday in office, President Joe Biden took on the role of deciding when a proposed constitutional amendment succeeds. He declared that “The Equal Rights Amendment is Now the Law of the Land.”
The President of the United States has a lot of power. But he can’t amend the Constitution through a social media post or press release.
For a proposed amendment to become part of the Constitution, it must be ratified by three-fourths of the states. The Equal Rights Amendment (ERA) was sent to the states for ratification in 1972 with a 7-year deadline.
The ERA reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” While supporters championed the ERA as a means to fight sex discrimination, opponents raised serious concerns that it might leave women worse off in practice.
Supporters failed to secure the required number of states even after extending the deadline to 1982, with only 35 states ratifying it. In 2017, Nevada voted to ratify the ERA, with Illinois following in 2018, and Virginia in 2020. (Some states, however, have voted to rescind their ratifications.) Proponents of the ERA argue that the ratification period remained open, so the ERA should be adopted because 38 states have ratified it.
The Archivist of the United States is responsible for publishing constitutional amendments. In a December 17, 2024 Media Alert, the Archivist and Deputy Archivist of the United States stated, “At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid.”
While Biden lost on this issue, he ignored his defeat.
ERA supporters tried to make Biden’s action seem mainstream. A Georgetown Law professor posted the following in a statement, “President Biden’s carefully considered decision to recognize the Equal Rights Amendment’s status as the 28th Amendment to the Constitution brings the White House in line with the legal academy and profession.” Just because professors think the ERA should be part of the Constitution doesn’t make it so. Worse is that the Georgetown Law X account shared the statement as if it was ordinary with a congratulatory note.
Senator Kirsten Gillibrand embraced Biden’s action, posting that “This is an incredible moment for reproductive freedom, and a historic day for equality.”
Vice President Kamala Harris also issued a press release, “Equality is a fundamental promise of our democracy. That is why the Equal Rights Amendment belongs in our Constitution. It makes our nation stronger, and it is the law of the land because the American people have spoken in states across our nation.”
One of Biden’s last acts as president was to try to fool the American people about the ERA. The American people are onto him and won’t be fooled.
I wanted to discuss the ERA with Dr. Colleen Shogan, the Archivist of the United States at the time Biden made his declaration. I invited her to join me on The Conservative Woman’s Guide podcast. You can listen to our conversation here.
