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Biden’s Last-Minute Constitutional Change
President Biden recently declared the Equal Rights Amendment (ERA) as the 28th Amendment to the U.S. Constitution, despite legal experts criticizing the move as “cynical and irrelevant.” Biden’s announcement emphasized the need to recognize the will of the American people and ensure equal rights and protections under the law regardless of sex.
Legal Experts’ Criticism
Legal experts, including former Assistant U.S. Attorney Andrew McCarthy and Fox News contributor Jonathan Turley, have slammed Biden’s announcement. They argue that the president has no constitutional role in the amendment process, making his declaration meaningless. McCarthy pointed out that if Biden truly believed in the ERA, he would have pushed for it earlier in his administration.
The ERA’s History and Ratification Issues
The ERA, which aims to prohibit discrimination based on gender, was sent to the states for ratification in 1972. Congress initially set a 1979 deadline, later extended to 1982. Virginia became the last state to pass the amendment in 2020, bringing the total number of ratifying states to 38. However, McCarthy noted that the ERA was not ratified within the statutorily allotted timeframe.
The Role of the National Archivist
The national archivist is responsible for making constitutional amendments official. The archivist previously declined to certify the ERA, citing a 2020 opinion from the Office of Legal Counsel of the DOJ, which affirmed that the ratification deadline set by Congress is valid and enforceable. As a result, the archivist cannot legally publish the ERA without new action from Congress or the courts.
Biden’s Declaration and Its Impact
Biden’s declaration has been criticized as pandering to his party’s extreme elements. Turley noted that Biden stopped short of issuing an executive order on the ratification, leaving the matter to the archivist. Legal experts believe Biden’s announcement will have no lasting significance, as the ERA cannot be added to the Constitution without restarting the ratification process.
