President Joe Biden said Friday that he believes the Equal Rights Amendment, which guarantees equal protections regardless of sex, is the “law of the land” but stopped short of ordering the U.S. archivist to publish the constitutional amendment.
The ERA, which would be the 28th Amendment, began its path to ratification in the 1970s, with progressives waging a pressure campaign on Biden after Virginia became the 38th state to approve it.
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According to the American Bar Association, Virginia’s ratification means the ERA “has cleared all necessary hurdles to be formally added to the Constitution,” but the ratification deadline expired in the 1980s, setting up a dispute with the U.S. archivist.
“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,” Biden wrote in a Thursday statement.
“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,” he added. “I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”
The U.S. archivist has resisted attempts to publish the amendment, stating in December that it cannot be ratified without the president or Congress extending the ratification deadline.
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable,” the archivist’s statement reads. “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid.”
Senior administration officials faced a barrage of questions Friday about the ambiguity of Biden’s announcement. One senior administration official confirmed that Biden was not directly ordering the archivist to publish the amendment.
“She has a clear, statutorily, prescribed ministerial role here. The president has made it very clear that he’s not going to fire her if she doesn’t do what he has made clear she should do because of his view that this amendment has been ratified,” the official said.
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The White House also declined to detail any conversations Biden’s team might have had with the archivist, with one senior administration official saying they “don’t know what she is planning to do or what she believes she should do.”
“The archivist is required to publish an amendment once it’s ratified,” the person continued. “Ultimately, this is going to be decided in court, but I think this statement makes loud and clear this administration and this president’s belief.”
