Joe Biden announced on Friday that the Equal Rights Amendment should be considered a ratified addition to the US constitution, inserting himself into a long-running legal battle over gender equality just days before he is set to leave office.
“It is long past time to recognize the will of the American people,” Biden said in a statement. “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.”
However, it is unclear if his statement will have any impact, as under the constitution, presidents do not have any role in the amendment process. And the head of the National Archives has said that the amendment cannot be certified because it was not ratified before a deadline set by Congress.
A senior Biden administration official, speaking on the condition of anonymity to discuss the White House’s plans, told the Associated Press that Biden was not directing the archivist, Dr Colleen Shogan, to certify the amendment.
A senior Biden administration official also told the Wall Street Journal that Biden was stating an opinion that the amendment had been ratified.
“Ultimately this is going to be decided in court,” the official told the Journal. “But I think this statement makes loud and clear this administration and this president’s belief.”
A rally including members of Congress was set for outside the National Archives later in the morning.
The archivist has not made an immediate comment, according to the New York Times, leaving the amendment’s status unclear.
The Equal Rights Amendment, which would prohibit discrimination based on gender, was sent to the states for ratification in 1972. Congress set a deadline of 1979 for three-quarters of state legislatures to ratify the amendment, then extended it to 1982.
But it wasn’t until 2020 that Virginia lawmakers passed the amendment, becoming the 38th state todo so and igniting a legal debate. The archivist has said that either Congress or the courts must change the deadline to consider the amendment as certified.
In early January 2020, just before Virginia ratified the agreement and during the first Trump administration, the justice department’s office of legal counsel issued an opinion stating that the deadline set by Congress was “binding” and that the Equal Rights Amendment was “no longer pending before the states”.
In 2022, the same office did not modify the earlier memo’s conclusion but added that nothing in that earlier memo was an “obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions”.
Last year, the American Bar Association’s (ABA) policymaking body approved a resolution in support of installing the Equal Rights Amendment as the 28th amendment to the US constitution.
after newsletter promotion
In his statement on Friday, Biden referenced the ABA’s action.
“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” Biden said. “I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”
Last month, the national archivist stated that she lacked the legal authority to recognize the ERA’s ratification and said that it “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions”.
In response, the Democratic New York senator Kirsten Gillibrand, who has been urging Biden to add the Equal Rights Amendment to the constitution, said that by releasing that statement, the archivist was “wrongfully inserting herself into a clear constitutional process, though her role is purely ministerial”.
In response to Biden’s announcement on Friday, Patrick Gaspard, president and CEO of the Center for American Progress, a liberal thinktank, said: “[Biden] made clear, as did the American Bar Association, that the ERA has cleared all the required legal hurdles to become a permanent constitutional amendment.”
The Associated Press contributed reporting
