President Biden Declares Equal Rights Amendment “Law of the Land,” Raising Legal Questions
On Friday, President Biden declared the Equal Rights Amendment (ERA) to the Constitution as “the law of the land.” While the statement carries no formal legal effect, it was celebrated by ERA advocates at a rally outside the National Archives.
For the ERA to take effect, it would need to be formally published or certified by the national archivist, Colleen Shogan. However, when or if this will happen remains uncertain. The White House clarified that the executive branch does not play a direct role in the amendment process, and Biden will not instruct the archivist to certify the ERA. A senior administration official emphasized that the archivist’s role is “purely ministerial,” meaning the amendment must be published once legally ratified.
When asked by NPR if the archivist would take any new action, the National Archives referenced a December statement affirming that the ERA "cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions." They maintained that the underlying legal and procedural issues remain unchanged.
A Long Legal Journey
The ERA, a 1970s-era amendment aimed at guaranteeing equal rights under the law regardless of sex, was passed by Congress but fell short of ratification by its 1982 deadline. By 2020, enough states had ratified the amendment, but proponents argued that the congressional deadline, included in the preamble and not the amendment text, was nonbinding.
On Friday, Biden asserted that the ERA cleared its final hurdle in 2020 when Virginia became the 38th state to ratify it. He proclaimed the ERA as the 28th Amendment in a speech to the U.S. Conference of Mayors, saying, “The Equal Rights Amendment is the law of the land — now!”
This declaration follows lobbying from Democratic lawmakers like Sen. Kirsten Gillibrand (D-N.Y.), who advocates for the ERA as a means to protect abortion rights. Gillibrand anticipates the issue will ultimately reach the Supreme Court.
Legal and Procedural Hurdles
In 2020, the national archivist declined to certify the ERA based on a Justice Department opinion that the amendment had expired due to the missed deadline. The Office of Legal Counsel reaffirmed this position in 2022. Archivist Colleen Shogan, appointed by Biden, has indicated she will abide by the Justice Department’s stance, leaving the amendment’s fate to Congress or the courts.
Constitutional scholars, like Martha Davis of Northeastern University, suggest Biden’s statement introduces new legal questions. “If the president is now disagreeing with the OLC opinion, what weight does that opinion still hold?” Davis asked, adding that Biden’s timing, late in his presidency, limits the administration’s ability to push for ratification.
Mixed Reactions and Continued Advocacy
About 40 ERA supporters gathered outside the National Archives following Biden’s announcement. Advocates, including Zakiya Thomas, president of the ERA Coalition, welcomed the president’s support but expressed frustration at the delay. “I wish he had acted when he first got into office,” Thomas said. “But the act itself is more important than the timing.”
The ERA’s future remains uncertain, with proponents vowing to continue their fight for recognition, even as legal and political battles loom.
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