Christopher Schroeder was confirmed as assistant attorney general for the Department of Justice’s Office of Legal Counsel—a good sign for the Equal Rights Amendment.
On Thursday, the Senate confirmed Christopher Schroeder as assistant attorney general for the Department of Justice’s Office of Legal Counsel (OLC). Nominated by President Joe Biden in April, Schroeder was approved by the Senate in a 56-41 vote. He previously worked in the OLC under both the Clinton and Obama administrations. And he could play a key role in the adoption of the 28th U.S. constitutional amendment: the Equal Rights Amendment.
During a historic hearing on the Equal Rights Amendment (ERA) last week, Rep. Carolyn Maloney (D-N.Y.)—the first woman to chair the House Committee on Oversight—argued the ERA has met all the requirements needed for ratification. “Thirty-eight state legislators have voted to ratify the ERA, meeting the constitutional requirement, but the ERA still does not appear in the Constitution,” she said. “This has to change.”
The holdup to ERA ratification stems from the Trump presidency: In January 2020, then-Attorney General William Barr wrote a memo dictating that the time line for ratification expired in 1979, so the three latest ratifications—Nevada, Illinois and Virginia—were invalid.
But during Thursday’s House hearing, Victoria Nourse—a law professor and the director of the Center for Congressional Studies at Georgetown University Law Center—said the Trump-era memo “is not binding legal precedent.” Article V, the article in the Constitution that sets forward the procedure for amending the Constitution, vests this power solely to Congress.
“We have met the standard of the Constitution,” Nourse later reiterated.
Now, within the Justice Department, Attorney General Merrick Garland has the authority to instruct Schroeder to rescind the previous administration’s memo and tell the archivist to immediately certify the ERA—meaning the stage is set for the ERA to finally become the 28th constitutional amendment.
The ERA Coalition has coordinated a public petition urging Attorney General Garland to direct the OLC to withdraw the January 2020 memo from Barr. Supporters of the ERA are encouraged to sign on to the ERA Coalition’s letter, the entirety of which is below:
We are urging Attorney General Merrick Garland to take the immediate action of directing his Office of Legal Counsel to withdraw the January 6, 2020 opinion memo from the Attorney General Barr Department of Justice.
When Virginia became the 38th state to ratify the ERA on January 27, 2020, all constitutional requirements for the ERA to become the 28th Amendment to the U.S. Constitution were satisfied. Yet, the ERA has not been published by the Archivist, who is deferring to the opinion issued by the previous Administration’s Office of Legal Counsel.
Attorney General Garland has the unique opportunity to correct this error and let history be made.