Ratification of the ERA now depends on Trump’s Supreme Court

The final days of a presidency, especially that of Joe Biden, whose successor seeks to turn back the clock, are inevitably filled with last-minute moves and inherited security strategies. Convicted felons with clemency records lobby for pardons. Smart lawyers are looking for ways to prevent decrees from being overturned. And civil servants are seeking shelter from the expected political purges.

But a large group of House Democrats, along with Sen. Kirsten Gillibrand of New York, have a far more ambitious last-minute plan in mind for Biden: recognizing the Equal Rights Amendment and its guarantee of women’s rights as the 28th Amendment to the US Constitution. . The ERA, enacted by Congress after a two-thirds vote in both houses in 1972, was not initially ratified by the required three-quarters of the states after a fierce counterattack by a conservative movement in conquering the Republican Party. Party. The original congressional resolution for the ERA set a deadline for ratification of 1979. This was later extended to 1982, by which time only 35 state legislatures had approved the amendment, three short of the 38 needed (and five state legislatures had taken the legally dubious step of rescinding prior ratifications).

Feminists took different approaches to promoting women’s rights when push to ratify the ERA faded, but interest in the amendment was revived after Donald Trump’s victory over Hillary Clinton in 2016. Nevada and Illinois ratified the ERA in 2017 and 2018, respectively; then, Virginia approved it in 2020, crossing the threshold into the 38th state. These late approvals were based on arguments that Congress’s ratification deadlines were themselves unconstitutional. But lower court rulings have denied the validity of post-1982 ratifications, and congressional resolutions to repeal the 1982 deadline died in the Senate thanks to Republican opposition in 2021 and 2023.

Supporters of the ERA now argue that the director of the National Archives can simply recognize the ERA as part of the U.S. Constitution based on its ratification by 38 states (deadlines, they claim, were not part of the the amendment itself and therefore never really had any effect). ). An earlier move to demand recognition of the ERA by the Archives was blocked by Trump’s Justice Department legal counsel just before his term ended. So Democrats are calling on Biden to reverse this decision and “ask” the archives to move forward and accept the ERA.

Unfortunately, on December 17, the Archives office responded by rejecting any unilateral action, as reported by the Associated Press:

In a rare joint statement, the archivist and deputy archivist of the United States said Tuesday that the 1970s-era Equal Rights Amendment cannot be certified without additional action by Congress or the courts, while Democrats were pressing President Joe Biden to act unilaterally on its ratification before he leaves office next month.

Congress, archivists say, must retroactively lift the deadlines or federal courts must declare them invalid.

As unfortunate as this position makes ERA supporters, it really doesn’t change anything. Had Biden considered the ERA ratified, MAGA-land would have responded with angry howls and lawsuits challenging the constitutionality of the decision. So now ERA supporters must go to court and seek to confirm their view that the deadlines set by Congress don’t matter.

The question will ultimately be decided by a US Supreme Court little known for its eagerness to displease Trump and the Republican Party. Indeed, much of the impetus for the new ERA push is to find a constitutional countermeasure to the Supreme Court’s reversal of the Supreme Court’s decision. Roe deer v. Wade in 2022. Gillibrand says it could work:

A federal ERA would establish the principle that sex-based distinctions in access to reproductive care would be unconstitutional. Banning abortion would violate a constitutional right to gender equality, as such restrictions would target women by unfairly denying them medical treatment based on their sex.

Will the current Supreme Court accept this clever attack on its rights? Dobbs v. Jackson Women’s Health Organization decision abolishing the federal right to abortion? This seems unlikely, but there is no doubt that judicial review of a request to ratify the ERA would highlight the continuing injustice of discrimination in reproductive health services and many other areas. And if all else fails, perhaps a new campaign to enact and ratify the ERA would gain momentum. But that is now no longer in Joe Biden’s hands.