President Biden's recent proclamation that the Equal Rights Amendment (ERA) is now the 28th Amendment, despite its failure to achieve ratification decades ago, has sparked controversy and disbelief. This unilateral declaration, made just before leaving office, has been met with criticism from legal experts and even some who once supported the amendment. Biden's claim rests on a dubious interpretation of the Constitution, disregarding established legal processes and precedents.
The ERA's journey to ratification has been long and fraught with challenges. It failed to meet the original 1979 deadline, and subsequent attempts to revive it have been unsuccessful. Several states even rescinded their prior ratifications, further complicating the issue. Legal experts, including the late Justice Ruth Bader Ginsberg, have acknowledged the amendment's defunct status. Archivist Colleen Shogan has also affirmed that neither the White House nor her office possesses the authority to unilaterally publish the amendment or bypass the ratification deadline. This reinforces the long-standing legal understanding that amending the Constitution requires adherence to established procedures.
Biden's declaration, while championed by some within the Democratic Party, is seen by many as a political maneuver rather than a legitimate constitutional action. Critics argue that it undermines the rule of law and disregards the established amendment process. The Justice Department and various judges have also affirmed the ERA's non-ratified status. Furthermore, a federal district court ruled in 1981 that Congress lacked the authority to extend the ERA's ratification deadline. This ruling, along with subsequent legal opinions, casts further doubt on the validity of Biden's declaration.
Biden's decision not to issue an executive order on the matter suggests an awareness of the legal challenges such an order would face. Instead, he chose a symbolic declaration, which, while lacking legal force, serves as a political gesture to appease certain segments of his base. This move has been criticized as a desperate attempt to bolster his legacy in the face of low approval ratings. Ultimately, Biden's declaration on the ERA raises serious questions about his respect for constitutional processes and the rule of law.
