Earlier today, as his term in office comes to a close, President Biden took it upon himself to issue an official statement that blatantly disregards the rule of law, the separation of powers, and every modicum of good government. The radical statement declares the failed 1972 Equal Rights Amendment (ERA) to now be our Constitution’s 28th Amendment. President Biden stated”
“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….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.”
This radical statement should raise many questions and serious concerns.
First, Americans should question why President Biden began his statement by referencing Virginia’s passage of the ERA in 2020 (during President Trump’s first administration) as though it happened recently–not five years ago. If Virginia’s passage marked the finish line for the amendment process, why is this news today? The fact is, when the US Congress introduced the ERA in the 1970’s and put the measure before the states to ratify, they set a deadline. The final deadline for ratification was June 30, 1982. The state of Virginia missed the deadline by 38 years, and the original congressional action initiating the amendment died decades ago. Even the left-leaning Supreme Court Justice Ruth Bader Ginsburg, during remarks at Georgetown University Law Center on September 12, 2019, just months before the Virginia vote, stated that the, “ERA fell three States short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of States to ratify it.” However, the amendment never was put back in the political hopper. Instead, throughout all four years of the Biden administration, this president has grasped for any means by which he might resuscitate this dead proposed amendment. That brings us to his strange remarks about the American Bar Association.
The second questions citizens should ask is whether the President’s statement follows the Constitutional prescription for amendment. Article V provides only two ways to amend our Constitution, and spoiler alert–neither involve recognition from the American Bar Association, or even the issuance of a presidential statement. Rather, the Constitution specifies that either two-thirds of both houses of Congress or three-fourths of state legislatures must adopt a proposed amend, and states that the”Mode of Ratification may be proposed by the Congress.” When Congress set the deadline on the ERA, and when they later extended the deadline to 1982, they were exercising their power under Article V. When it comes to amendments, there is no clause in the Constitution empowering the ABA or the President to override the voice of the lawmakers elected by the American people.
This raises the question of how a President can utterly disregard the separation of powers and checks and balances between the branches of government. A recent joint press release by Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko explain the matter simply:
“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. 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.”
Simply put, President Biden’s statement flies directly in the face of Congress, the Courts, and other officials in the executive branch who are faithfully upholding the rule of law. A statement from the President that a failed piece of public policy is now the supreme law of the land simply does not make it so. His actions beg the question why, now, during his last days in office, he would issue such a statement. Is it a symbolic gesture or one intended to cause political confusion and chaos? Does he actually in expect people to accept his statement as some type of dictate from on high, and act as though it had the weight of law (which is does not)? Is it clumsy mistake or an action with more sinister intent?
Finally, women should be especially concerned by President Biden‘s statement falsely claiming that the ERA “guarantees” equal rights and protection without regard to sex. The ERA is anything but what its name suggests, and while its sponsors tout that the proposal would ensure equal protection for women, the reality is that it devalues women and stands to undo decades of real human progress and equality. This is the very reason initial support for the ERA waned in the 1970s, and why 5 of the states that initially ratified it withdrew their support after a closer look. Rather than protecting women, if passed, the ERA could seriously endanger them in same-sex spaces like dressing rooms, rest rooms, and locker rooms, sex-based segregation protects women from sexual predators with nefarious intentions. The 14th Amendment already offers equal protection to women and men based on their personhood. To suggest that the 14th Amendment does not protect women, or anyone other group of people, is to suggest they are not persons, which is the worst form of bigotry and deserves to be called out for what it is. Additionally, the ERA sneeks in a constitutional right to abortion and puts taxpayers on the hook to pay for murder of the unborn. A real “Equal Rights” policy would defend the life of the baby as well as the woman and rightly value them as individual persons, each worthy of equal protection under the law. Read more about the false claims of the ERA in our 2023 analysis, when the matter was pending before congress and the federal judiciary.
The ERA was bad public policy 53 years ago when it was introduced, and it remains bad public policy today. President Biden’s presumptuous statement that a failed proposal can become the law of the land becasue he declares it so is one of the worst and most dangerous neglects of the rule of law this country has ever seen.
Such malfeasance cannot stand if our Republic is to survive.
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