On a chilly Friday morning in Washington, just days before leaving office and hours after attending his farewell ceremony at Joint Base Myers-Henderson Hall, President Biden made an unprecedented constitutional claim.
With a stroke of his pen, he declared a failed 1972 amendment suddenly valid – more than four decades after its ratification deadline expired.
Picture this: You’re remodeling your house, and the contractor shows up three years after the agreed deadline, saying they’re ready to start work. Would you consider that contract still valid? That’s essentially what Biden did by declaring the Equal Rights Amendment part of the Constitution.
Biden said in his statement:
“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.”
Old Man Opines
According to a senior administration official, Biden isn’t taking executive action – he’s merely “stating an opinion that it is ratified.”
The official explained:
“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.”
But Biden’s intention faces an immediate roadblock: the National Archives itself. Just last month, Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko stated firmly that the ERA:
“cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
Biden defended his move, declaring:
“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.”
Facing the Facts
The facts are clear:
Congress set a deadline of June 30, 1982, for states to ratify the ERA. Only 35 states approved it by then – three short of the required 38. While three more states have voted to ratify since 2017 (Nevada, Illinois, and Virginia), that’s like trying to cash a check that expired decades ago.
Making things even messier, five states – Idaho, Kentucky, Nebraska, Tennessee, and South Dakota – actually took back their approval. That’s like having someone cancel their vote after Election Day.
As the National Archives leaders emphasized in their December statement:
“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.”
Constitutional Clarity
Here’s why this matters to everyday Americans:
The Constitution has specific rules for amendments because changing our nation’s founding document is a big deal. Our Constitution already protects women’s rights through the 14th Amendment and numerous federal and state laws.
What’s really at stake is whether we’ll let presidents bypass the rules when they can’t get what they want through proper channels.
The Department of Justice’s own Office of Legal Counsel has twice affirmed – in 2020 and 2022 – that the ratification deadline is valid and enforceable. Any changes would require new action by Congress or the courts.
Looking ahead, this issue is headed straight for the courts. Conservative legal groups are already preparing challenges, and the Supreme Court will likely have the final say.
The bottom line? If Americans want to add an Equal Rights Amendment to the Constitution, there’s a proper way to do it: Start fresh, pass it through Congress, and get 38 states to ratify it within a set timeframe.
Anything else undermines the very constitutional order it claims to improve.
This article was written with the assistance of AI. Please verify information and consult additional sources as needed.
