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Sometimes crazy things happen at the end of a presidency. People who maybe shouldn’t be pardoned get pardoned. Presidents flood the zone with executive actions related to things they couldn’t get done legislatively or on dicey subjects they wanted to avoid before an election. And sometimes presidents get senioritis and throw caution to the wind.
But rarely do we see something like this: An outgoing president suddenly declaring there is another amendment to the Constitution.
That’s what President Joe Biden seemingly attempted to do Friday, in his third-to-final full day in office. Biden announced that the 28th Amendment — an amendment guaranteeing men and women equal rights under the law — is the “law of the land.”
“It is long past time to recognize the will of the American people,” Biden said. “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.”
But a 28th Amendment has not suddenly been appended to the Constitution per Biden’s decree — there are still only 27 — nor does there appear to be much hope that it will soon.
It is at best a Hail Mary and at worst a strange political ploy that runs afoul of the rule of law Biden has spent four years pitching as one of his foremost concerns.
Let’s explain.
To start, the Equal Rights Amendment was passed by Congress in 1972. At that point, like all constitutional amendments, it needed to be ratified by three-fourths of the states, or 38 of them.
Since then, 38 state legislatures have ratified it, with Virginia’s becoming the 38th to do so in 2020.
There are two problems, though.
One is the deadline issue. Congress initially passed the amendment with a seven-year deadline for states to ratify it. Congress later extended that deadline by three years, to 1982, but the ERA still came up three states shy. The three additional states came much later.
The second is that, in the 1970s, five states voted to rescind their previous votes to ratify the amendment. In other words, only 35 states ratified it by the deadline, and only 33 states currently want it ratified — at least if you look at their most recent word on the matter.
Some, like Biden, have argued that neither of those things matters. They say the deadline doesn’t really apply and that states can’t legally rescind their ratifications. Ipso facto, they say, it has satisfied the requirements.
And that’s not a totally fringe or completely crazy idea.
Even the American Bar Association has taken the position that the Equal Rights Amendment has cleared all the necessary hurdles and should be implemented. It passed a resolution last year stating that the deadline isn’t legally binding and that states can’t rescind their ratifications, because neither power appears in Article V of the Constitution.
In addition, the deadline appears in what’s known as the “resolving clause” of what Congress passed rather than the text of the amendment. The idea is that since states aren’t voting on the deadline, they shouldn’t be bound by it.
I won’t walk through all the legal ins and outs — my colleague Glenn Kessler did a nice job of that here — but suffice it to say that these issues are far from being settled enough for a president to claim an amendment is law.
Federal judges have repeatedly ruled in ways that suggest the deadline is valid and, in one case, that a state can rescind its vote to ratify. While there might not be much that’s totally definitive from the Supreme Court, the rulings we do have tilt strongly against the Biden position.
And most notably, even those who might seem predisposed to this argument haven’t adopted it.
Then-Supreme Court Justice Ruth Bader Ginsburg, herself a pioneering advocate for the rights of women and the ERA, suggested in 2020 that the argument didn’t make sense.
“There is too much controversy about latecomers [like] Virginia long after the deadline passed,” she said. "Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, ‘We have changed our minds'? "
And even Biden’s own Justice Department has declined to take his position. A 2022 advisory opinion from the Justice Department’s Office of Legal Counsel largely stood by another such opinion from the Trump administration saying that the amendment hadn’t been ratified.
Biden’s move might seem to be a last-ditch effort to apply pressure on the archivist of the United States to certify and publish the amendment. The Biden administration has argued that the archivist’s role is “purely ministerial” — in other words, that it doesn’t have discretion.
But that appears extremely unlikely; the archivist just last month said the amendment “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions."
And even that wouldn’t be the final word. The courts would surely review it even if the archivist did what Biden wanted.
In the end, this appears to mostly be a messaging exercise intended to push an idea that had lurked beneath the surface more out into the open. After all, if this has been ratified since Virginia voted back in 2020, why not say this earlier?
But it’s also remarkable that a president would try to declare something that isn’t clearly the law to be not just the law, but part of the most significant legal document our country has. That at the very least skips over a whole lot of very valid legal issues that have never been settled.
As Columbia University law professors David E. Pozen and Thomas P. Schmidt wrote in the Columbia Law Review in 2021:
Sometimes crazy things happen at the end of a presidency. People who maybe shouldn’t be pardoned get pardoned. Presidents flood the zone with executive actions related to things they couldn’t get done legislatively or on dicey subjects they wanted to avoid before an election. And sometimes presidents get senioritis and throw caution to the wind.
But rarely do we see something like this: An outgoing president suddenly declaring there is another amendment to the Constitution.
That’s what President Joe Biden seemingly attempted to do Friday, in his third-to-final full day in office. Biden announced that the 28th Amendment — an amendment guaranteeing men and women equal rights under the law — is the “law of the land.”
“It is long past time to recognize the will of the American people,” Biden said. “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.”
But a 28th Amendment has not suddenly been appended to the Constitution per Biden’s decree — there are still only 27 — nor does there appear to be much hope that it will soon.
It is at best a Hail Mary and at worst a strange political ploy that runs afoul of the rule of law Biden has spent four years pitching as one of his foremost concerns.
Let’s explain.
To start, the Equal Rights Amendment was passed by Congress in 1972. At that point, like all constitutional amendments, it needed to be ratified by three-fourths of the states, or 38 of them.
Since then, 38 state legislatures have ratified it, with Virginia’s becoming the 38th to do so in 2020.
There are two problems, though.
One is the deadline issue. Congress initially passed the amendment with a seven-year deadline for states to ratify it. Congress later extended that deadline by three years, to 1982, but the ERA still came up three states shy. The three additional states came much later.
The second is that, in the 1970s, five states voted to rescind their previous votes to ratify the amendment. In other words, only 35 states ratified it by the deadline, and only 33 states currently want it ratified — at least if you look at their most recent word on the matter.
Some, like Biden, have argued that neither of those things matters. They say the deadline doesn’t really apply and that states can’t legally rescind their ratifications. Ipso facto, they say, it has satisfied the requirements.
And that’s not a totally fringe or completely crazy idea.
Even the American Bar Association has taken the position that the Equal Rights Amendment has cleared all the necessary hurdles and should be implemented. It passed a resolution last year stating that the deadline isn’t legally binding and that states can’t rescind their ratifications, because neither power appears in Article V of the Constitution.
In addition, the deadline appears in what’s known as the “resolving clause” of what Congress passed rather than the text of the amendment. The idea is that since states aren’t voting on the deadline, they shouldn’t be bound by it.
I won’t walk through all the legal ins and outs — my colleague Glenn Kessler did a nice job of that here — but suffice it to say that these issues are far from being settled enough for a president to claim an amendment is law.
Federal judges have repeatedly ruled in ways that suggest the deadline is valid and, in one case, that a state can rescind its vote to ratify. While there might not be much that’s totally definitive from the Supreme Court, the rulings we do have tilt strongly against the Biden position.
And most notably, even those who might seem predisposed to this argument haven’t adopted it.
Then-Supreme Court Justice Ruth Bader Ginsburg, herself a pioneering advocate for the rights of women and the ERA, suggested in 2020 that the argument didn’t make sense.
“There is too much controversy about latecomers [like] Virginia long after the deadline passed,” she said. "Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, ‘We have changed our minds'? "
And even Biden’s own Justice Department has declined to take his position. A 2022 advisory opinion from the Justice Department’s Office of Legal Counsel largely stood by another such opinion from the Trump administration saying that the amendment hadn’t been ratified.
Biden’s move might seem to be a last-ditch effort to apply pressure on the archivist of the United States to certify and publish the amendment. The Biden administration has argued that the archivist’s role is “purely ministerial” — in other words, that it doesn’t have discretion.
But that appears extremely unlikely; the archivist just last month said the amendment “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions."
And even that wouldn’t be the final word. The courts would surely review it even if the archivist did what Biden wanted.
In the end, this appears to mostly be a messaging exercise intended to push an idea that had lurked beneath the surface more out into the open. After all, if this has been ratified since Virginia voted back in 2020, why not say this earlier?
But it’s also remarkable that a president would try to declare something that isn’t clearly the law to be not just the law, but part of the most significant legal document our country has. That at the very least skips over a whole lot of very valid legal issues that have never been settled.
As Columbia University law professors David E. Pozen and Thomas P. Schmidt wrote in the Columbia Law Review in 2021:
And yet, with three days to go in Biden’s presidency, here we are.“... [O]ne of the very few propositions of Article V law that historical practice has settled is that the President has no legal role in proposing an amendment to the states. In light of this practice, which dates back to the Bill of Rights, it is odd to think that the President would play any sort of significant role at the conclusion of the Article V process. It is odder still to think that such a role would be played by subordinate executive officers such as the Archivist of the United States ...”
