President Joe Biden, just days before he will exit the White House, announced on Friday that the Equal Rights Amendment, which would enshrine in the U.S. Constitution equal rights for women, is now the 28th Amendment and “the law of the land.” Although he has some legal scholars backing this declaration, experts say there are still legal hurdles and a legal battle to overcome.
“Today I’m affirming what I have long believed 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,” President Biden wrote. “I have supported the Equal Rights Amendment for more than 50 years and have long been clear that no one should be discriminated against based on their sex. We must affirm and protect women’s full equality once and for all.”
“On January 27, 2020,” President Biden explained in his statement on the White House website, “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.”
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“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.”
CNN calls Biden’s announcement “a last-minute move that some believe could pave the way to bolstering reproductive rights.”
“It will, however, certainly draw swift legal challenges – and its next steps remain extremely unclear as Biden prepares to leave office.”
The news network also credits U.S. Senator Kirsten Gillibrand (D-NY) with “making a major push for certification, saying in a memo to interested parties that it would give Biden a way to ‘codify women’s freedom and equality without needing anything from a bitterly divided and broken Congress’ in the aftermath of the 2022 Supreme Court decision overturning Roe v. Wade.”
In 2020, after Virginia became the 38th state to ratify the ERA, the necessary requirement of three-fourths ratification may have been met.
As The Brennan Center for Justice noted just days later, “there are still hurdles in the ERA’s path. The ratification deadlines that Congress set after it approved the amendment have lapsed, and five states have acted to rescind their prior approval. These raise important questions, and now it is up to Congress, the courts, and the American people to resolve them.”
Congress could try to waive the deadline and try to ignore the states that rescinded their ratification.
President Biden did not order the National Archivist to certify the ERA as the 28th Amendment. Some have suggested neither has the legal authority to do so at this point.
But some have also suggested the deadline was unconstitutional.
The Associated Press called President Biden’s declaration “a symbolic statement that’s unlikely to alter a decades-long push for gender equality,” and “unlikely to have any impact.”
“Presidents do not have any role in the amendment process. The leader of the National Archives had previously said that the amendment cannot be certified because it wasn’t ratified before a deadline set by Congress,” the AP added. It noted that the National Archives said, “the underlying legal and procedural issues have not changed.”