With just days left in office, President Joe Biden on Friday declared that the Equal Rights Amendment, known as the ERA, has been ratified and is the law of the land despite significant questions about his ability to unilaterally recognize it and the legality of the move. 

It comes one month after the archivist of the United States, who is tasked with certifying and publishing new amendments, said that Biden does not have the power to do so alone. 

What You Need To Know

  • With just days left in office, President Joe Biden on Friday declared that the Equal Rights Amendment, known as the ERA, has been ratified and is the law of the land 
  • It comes one month after the archivist of the United States, who is tasked with certifying and publishing new amendments, said that Biden does not have the power to do so alone
  • The ERA — which seeks to establish an equality of rights that cannot be denied on the basis of gender — cleared both chambers of Congress more than five decades ago but fell short of getting enough support from states required for a new amendment within an initial seven-year deadline that was then extended to 1982; That requirement was officially met nearly 40 years after the extension in 2020, when Virginia became the 38th state to ratify the amendment
  • It comes as some Democrats on Capitol Hill have been pushing Biden for such a move

“It is long past time to recognize the will of the American people,” Biden said in a statement Friday. “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.”

The ERA — which seeks to establish an equality of rights that cannot be denied on the basis of gender — cleared both chambers of Congress more than five decades ago but fell short of getting enough support from states required for a new amendment within an initial seven-year deadline that was then extended to 1982. 

That requirement was officially met nearly 40 years after the extension in 2020, when Virginia became the 38th state to ratify the amendment. 

On a call with reporters, a senior administration official pointed to arguments by the American Bar Association and other “leading constitutional scholars” that the ERA has “cleared all necessary hurdles,” making it a part of the Constitution. The official noted that no time limit was included in the text of the amendment presented to states and that the Constitution does not allow states to change a ratifying vote “at any time.” 

“He's using his power of the presidency to make it clear that he believes and he agrees with leading constitutional scholars and the American Bar Association, not that it should be, but that it is the 28th Amendment of the Constitution,” a senior administration official said, adding that there is no action involved from Biden in this move and he his is declaring an opinion that it is ratified. 

It is unclear, however, what the statement means in practice and any next steps. 

Last month, the archivist, Colleen Shogan, made clear in a statement that neither her office nor the White House have the authority to publish the amendment unilaterally. Congress or the courts, she argued, would have to lift the 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," she wrote. “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.”

“Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate,” she added. 

In the face of such questions, senior administration officials on the call Friday argued that the archivist’s role in such matters is “purely ministerial” and said the president is not directing the archivist of anything. 

“Once an amendment is ratified, the archivist is required to publish that amendment,” the official said. 

“So he is doing what is legally permissible, and what he believes is his duty,” the official later added of Biden. 

It comes as some Democrats on Capitol Hill — including a group of 120 lawmakers who sent Biden a letter last month — have been pushing the president to use his final weeks in office to ensure the ERA is enshrined as law into the U.S. Constitution.

“We urge you to take this final, transformative step toward ensuring the full promise of equality for every person in the United States,” the group of House members, led by Democratic Reps. Cori Bush of Missouri and Ayanna Pressley of Massachusetts, wrote. 

The lawmakers note that despite the existence of other legal protections against sex discrimination — such as Title VII of the Civil Rights Act — such laws are not stated in the Constitution. Establishing the ERA as the 28th Amendment, they write, would be “unambiguous."