Biden declaring the ERA to be properly ratified has no legal effect. But whether it’s this Congress or a future one, Congress still can—and should—take the ERA over the finish line.
Former President Joe Biden’s statement that the Equal Rights Amendment has been ratified and should be deemed part of the Constitution is welcome and correct as to the law. But it also is likely to engender great confusion and unfortunately has no legal effect. (The statement has now been removed from the White House website, but you can read it in full below.)
In fact, the law is clear: It is for Congress to decide whether an amendment has been properly ratified—not the president, not the archivist, and not the courts.
The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Article V of the Constitution provides that amending the Constitution requires approval of two-thirds of both houses of Congress and ratification of three-quarters of the states. That has happened for the ERA.
The House of Representatives overwhelmingly passed the ERA in 1971 and the Senate in 1972. In accordance with the Constitution, it then went to the states for ratification. In 2020, Virginia became the 38th state to ratify the amendment. Thus, Biden is correct: The requirements for the ERA to be deemed the 28th Amendment have been met.
But it is more complicated than that. Five states that ratified the ERA—Nebraska, Tennessee, Idaho, Kentucky and South Dakota—have rescinded their ratification. Without counting them, the requirement for approval of three-quarters of the states is not met.
Also, when the ERA was passed, it was accompanied by a joint resolution that it had to be ratified within seven years. When the seven years was about to expire in 1979, with only 35 states having ratified the ERA, Congress extended the time period for three years. No additional states ratified it during this time. It was only many years later that Nevada, Illinois and Virginia approved it and made it 38 states.
There are strong legal arguments that neither of these concerns should keep the ERA from being deemed properly ratified. As to the rescissions, the 14th Amendment was deemed properly ratified, despite the fact that two states had rescinded their ratification. As to the time period, it is crucial that unlike some other amendments, the time limit is not in the text of the amendment itself—which is what was approved by Congress and ratified by the states.
But Biden declaring the ERA to be properly ratified has no legal effect. The law is clear that the president has no role to play in the constitutional amendment process. Nothing is different as to the legal status of the ERA after his pronouncement compared to before it.
Congress, as it did for the 14th Amendment, should pass a resolution deeming the ERA to be part of the Constitution. No court then can question its being the 28th Amendment.
It is for Congress to decide whether an amendment has been properly ratified.
In Coleman v. Miller, in 1939, the Supreme Court discussed the amendment process in considering a proposed constitutional amendment to prohibit child labor. The Court reviewed the dispute over whether the 14th Amendment had been properly ratified. The Court’s conclusion was that since Congress deemed it to be part of the Constitution, that was sufficient and conclusive.
Indeed, the Court said that the judiciary was to play no role in deciding whether an amendment is properly ratified. Justice Hugo Black wrote that Congress has “sole and complete control over the amending process, subject to no judicial review.” He said that Article V “grants power over the amending of the Constitution to Congress alone. … The process itself is political in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point.”
Under this, the determination of whether the ERA has been properly ratified is not resolved by Biden, who plays no role in the ratification process, or even by the courts. Congress, as it did for the 14th Amendment, should pass a resolution deeming the ERA to be part of the Constitution. No court then can question its being the 28th Amendment.
Congress, in 2020, after Virginia’s ratification, should then have passed a resolution that the ERA had been approved. Sadly, that did not happen because of partisanship over something that should be basic to the Constitution: Equality of rights under the law shall not be denied on account of sex.
But whether it’s this Congress or a future one, Congress still can and should deem the ERA to be properly ratified. It then unquestionably will be part of the Constitution. Unfortunately, Biden’s proclamation, though laudable, makes no legal difference.
Read Biden’s full statement on the ERA below:
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.