Biden’s Affirmation of the ERA
Biden’s declaration is not an executive order, but rather an “opinion” from the president himself, according to a senior Biden administration official. “It is long past time to recognise the will of the American people. In keeping with my oath and duty to the 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,” Biden said in his statement.
The administration official clarified that Biden is “stating an opinion that it is ratified,” and emphasised that the president’s position aligns with the views of leading constitutional scholars and the American Bar Association. “He is 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 it is the 28th Amendment of the Constitution,” the official added.
Legal Challenges and the National Archivist’s Stance
Despite Biden’s assertion, legal experts point out significant challenges surrounding the ERA’s ratification process. The amendment’s path to certification is complicated by expired deadlines and the rescission of approval by five states. According to the Brennan Center for Justice at New York University’s law school, these issues raise serious questions about the president’s authority to declare the ERA ratified.
The National Archivist, Dr. Colleen Shogan, who is tasked with certifying amendments, issued a statement in December 2024, affirming that the ERA cannot be certified due to established legal and procedural decisions. Shogan, alongside Deputy Archivist William Bosanko, explained that ratification deadlines are enforceable, based on conclusions by the U.S. Department of Justice’s Office of Legal Counsel in 2020 and 2022. Shogan also referred to the “long-standing position for the Archivist and the National Archives” in rejecting the certification of the ERA.In response to Biden’s recent statement, the National Archives referred to the prior statement, reiterating that the “underlying legal and procedural issues have not changed.” The senior Biden official explained that the archivist’s role is “prescribed by statute” and is “purely ministerial,” meaning that once an amendment has been ratified, it is the archivist’s duty to publish it. The official, however, acknowledged that it would ultimately be up to the courts to interpret the legality of the ERA’s ratification.
Senator Kirsten Gillibrand’s Advocacy for the ERA
Senator Kirsten Gillibrand of New York, a vocal advocate for the ERA, has long pressed for its certification. She argues that recognising the ERA would guarantee women’s freedom and equality, especially in light of the U.S. Supreme Court’s decision to overturn Roe v. Wade in 2022. Gillibrand’s efforts include encouraging Biden to take action, as she believes it would circumvent a “bitterly divided and broken Congress.”
In a memo to supporters, Gillibrand noted that Biden’s certification of the ERA could serve as a critical step in advancing gender equality without needing approval from Congress. The Senator has been actively engaging with top aides at the White House and urging for the ERA’s certification, seeing it as a vital move for protecting women’s rights in the face of legal setbacks.
The ERA has had a long and contentious history. Initially proposed in 1923, the amendment passed Congress in 1972 but struggled to gain sufficient state ratifications to secure its place in the Constitution. The original deadline for ratification expired in 1982, with only 35 states approving the amendment. However, in 2020, Virginia became the 38th state to ratify it, reigniting the debate about whether the ERA should be included in the Constitution.
Despite this, opponents of the ERA have argued that the deadline for ratification had passed, while supporters contend that the Constitution does not specify a time limit for amendments. In 2023, the U.S. Senate blocked a proposal to remove the deadline, failing to garner enough votes to overcome the filibuster. Critics of the ERA also point to its lack of immediate practical impact, while supporters believe it is essential to protect against sexual discrimination and ensure equal pay for women.
What’s Next for the Equal Rights Amendment?
As Biden prepares to leave office, it remains unclear what practical effect his statement will have. Legal challenges are expected to follow, and it is possible that courts will be called upon to decide whether the ERA meets the constitutional requirements for ratification. For now, Biden’s declaration adds a new layer of complexity to the ongoing debate, which will likely continue to unfold in the courts for the foreseeable future.
In his final days as president, Biden has been pushing through various executive actions to secure his legacy, including granting clemency to nonviolent offenders and implementing significant environmental protections. His move on the ERA, however, stands out as one of his most contentious decisions, one that will undoubtedly shape the political and legal landscape in the coming years.
