It would be a really good idea for Democrats, starting with President Joe Biden and Vice President Kamala Harris, to take a civics class before getting into positions of power.
The president, vice president, and a host of Democrats celebrated on Friday the ratification of the “28th Amendment” to the Constitution, the Equal Rights Amendment or ERA, but there is just one minor issue. The Amendment has, in fact, not been ratified, according to several constitutional experts. What’s more, the president does not have the authority to simply declare an amendment ratified.
“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,” the president said in a press release posted to the official White House page.
“On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. 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. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution,” he said.
“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 said.
Harris followed with her own proclamation.
“Equality is a fundamental promise of our democracy. That is why the Equal Rights Amendment belongs in our Constitution. It makes our nation stronger, and it is the law of the land because the American people have spoken in states across our nation,” the vice president said.
“History teaches us that civil rights are fought for and won with every generation. That continues to be true today, which is why I have spent my career fighting for freedoms and to expand opportunities for women and girls. It has always been clear that when we lift up women, we lift up children, families, communities, and all of society. Now, Americans must continue to fight for a more equal and just nation where everyone has the opportunity to realize the promise of America,” she added.
However, despite the proclamations out of the White House, several constitutional experts beg to differ, meaning there will likely be legal challenges if the administration presses the issue before leaving office.
“Ratification deadlines lapsed and five states have rescinded their approval, according to the Brennan Center for Justice at New York University’s law school, prompting questions about the president’s authority to ratify the amendment more than 50 years after it first passed,” CNN reported.
In December, the person who would be responsible for adding it to the Constitution, the archivist of the United States, Dr. Colleen Shogan, issued a press release with Deputy Archivist William Bosanko in which they said that the Amendment could not be added to the Constitution because of “established legal, judicial, and procedural decisions.”
“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” the pair said.
“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 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. 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,” they added.
“The role of the Archivist of the United States is to follow the law as it stands, ensuring the integrity of our nation’s governing institutions. Personal opinion or beliefs are not relevant; as the leaders of the National Archives, we support established legal processes and decisions,” Shogan and Bosanko continued.
On Friday, meanwhile, the National Archives Public and Media Communications staff said that “the underlying legal and procedural issues have not changed” regarding the status of the amendment.
