Q: Did former President Joe Biden issue a statement saying that he thought the Equal Rights Amendment should be considered part of the Constitution?
A: Yes. On his last full day in office, Biden published a statement supporting the ERA, but it has no legal effect.
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FULL ANSWER
In one of his final acts before leaving office, former President Joe Biden issued a statement asserting that the Equal Rights Amendment should be considered part of the Constitution.
The ERA — which would add a 28th amendment to the Constitution saying, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” — has now amassed more than a century of history, often reflecting the culture of the moment.
It was first proposed in 1923 following the success of the women’s suffrage movement and was revived in the 1970s with the rise of the women’s rights movement. In 1972, it passed a two-thirds majority of Congress, but then faltered on the other requirement for becoming enshrined in the Constitution — ratification by three-quarters of the states.
It arguably reached that threshold — ratification by 38 states — in 2020, but that was decades after a congressionally set 1982 deadline had passed. In recent years, the ERA has taken on urgency from both supporters and opponents for its potential to impact abortion rights.
In his Jan. 17 statement, Biden said, “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 caused confusion on social media, with some understanding it to mean that the ERA had been officially added to the Constitution, and it prompted one reader to ask us, “Is this real?”
Yes, the statement from Biden is real. But it has no practical effect.
It’s easy to think that the statement — which says, “I agree with the [American Bar Association] and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution” — could mean that some action would be taken to establish the amendment as part of the Constitution. But the president doesn’t have the authority to do that.
In fact, Article V of the Constitution — which lays out the amendment process — doesn’t assign any role to the president, legal experts explained to us.
“While presidents have a lot of power, they’re conspicuously absent from Article V,” Wilfred Codrington, a professor at Cardozo School of Law at Yeshiva University, told us in a phone interview.
Julie Suk, a professor at Fordham University’s School of Law who has written a book on the ERA, made the same point in an email to us. She also said, “Constitutional law experts have reasonable disagreements about whether or not the ERA’s unique and unprecedented ratification trajectory makes it a valid amendment under Article V.”
We’ll lay out the context for Biden’s statement amid the ERA’s complicated path to ratification.
Do Deadlines Matter?
As Biden noted, the American Bar Association is among the organizations that have endorsed the implementation of the ERA as the 28th Amendment. But others, including the conservative Heritage Foundation, oppose its implementation, citing the expiration of the 1982 deadline and the further complication that at least five states rescinded their ratifications.
On the timing issue, the joint resolution adopted by Congress in 1972 that proposed the ERA as an amendment said that it would be valid “when ratified by the legislatures of three-fourths of the several States within seven years.” That would have been in 1979. But by 1977, only 35 states had ratified the amendment — three states short of the requirement — so Congress extended the deadline to 1982.
No states ratified the ERA in those intervening years. But from 2017 to 2020, Nevada, Illinois and, lastly, Virginia ratified it. That brought the total number of states to 38, which meets the constitutional requirement that three-quarters of the states must ratify an amendment — albeit 38 years after the extended deadline set by Congress.
But those who support the passage of the ERA argue that there is nothing in the Constitution that limits the time frame for ratification. The ABA’s resolution noted the extraordinary case of the 27th Amendment, which became law in 1992 and tempers the ability of members of Congress to increase their pay, that took more than 200 years to be ratified by three-quarters of the states.
However, Congress has imposed a seven-year deadline on every proposed amendment (except for the 19th) since the 18th Amendment. And, in a 1921 opinion, the Supreme Court upheld Congress’ authority to do so.
Adding to the ambiguous legal landscape for the ERA is the fact that at least five states have rescinded their ratifications. Idaho, Kentucky, Nebraska, South Dakota and Tennessee had each rescinded their ratifications by 1978, according to a Congressional Research Service report. In 2021, North Dakota’s Legislature rolled back its ratification, passing a resolution that specified its ratification was valid only through March 22, 1979 — the original deadline set by Congress.
Whether or not those states can still be counted among the 38 for passage of the ERA remains an open question. A federal court in 1981 ruled that Idaho could rescind its ratification, concluding that the founding fathers intended for the will of the people to be reflected in the choice of whether or not to amend the Constitution.
“Until the technical three-fourths has been reached,” the judge wrote, referring to the constitutional rule that three-quarters of states must ratify an amendment, “a rescission of a prior ratification is clearly a proper exercise of a state’s power granted by the article V phrase ‘when ratified.’”
But that ruling was vacated by the U.S. Supreme Court the following year, and the case was dismissed as moot since the 1982 deadline had then passed.
The question of whether or not states can rescind ratification hasn’t been settled since.
The Supreme Court has, though, indicated that it’s a political question for Congress to address, rather than the courts.
In a 1939 opinion, the court noted an earlier example — the adoption of the 14th Amendment, for which three states had first rejected and later ratified and two states had ratified and later rescinded.
The 14th Amendment was added to the Constitution in 1868, including the ratifications from the two states that had rescinded.
“We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress,” the court wrote.
Those who support the passage of the ERA argue that since there is no provision in the Constitution that mentions rescission, it doesn’t matter that some states have rescinded.
“Article V refers to ratification but says nothing about rescission, and there is no implied power to rescind,” the ABA wrote.
But there is no conclusive answer to either the deadline or rescission issue.
Why Now?
Biden’s statement followed a push from Democratic lawmakers for him to act before the end of his term.
“With Republicans set to take unified control of government, Americans are facing the further degradation of reproductive freedom,” Sen. Kirsten Gillibrand of New York wrote in a Dec. 15 op-ed published in the New York Times. “Fortunately, Mr. Biden has the power to enshrine reproductive rights in the Constitution right now. He can direct the national archivist to certify and publish the Equal Rights Amendment.”
Under federal law, the archivist of the United States — who is in charge of the National Archives and Records Administration — is tasked with publishing and certifying new amendments to the Constitution.
Letters from both House and Senate Democrats in late November and mid-December urged Biden to direct the archivist to complete the process and publish the ERA as the 28th Amendment.
But the archivist, Colleen Shogun, issued a statement with her deputy on Dec. 17 saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
She cited two opinions from the Justice Department’s Office of Legal Counsel that found the deadline set by Congress was valid.
What’s Next?
“I don’t think much has changed practically,” Codrington, the professor from Cardozo School of Law, told us. “Amending the Constitution is inherently a political endeavor,” he said, since Congress is the gatekeeper and state legislatures must ratify.
So the political climate can, at times, be welcoming, or not. “After this election, it’s hard to imagine that the climate is any warmer for the ERA,” Codrington said.
Given Biden’s statement, we emailed the White House to ask about President Donald Trump’s position on the ERA, but we didn’t receive a response.
Even if the ERA is not recognized in the Constitution, though, it has already had an effect, said Suk, the Fordham University professor.
“On the ground, the ERA has already shaped constitutional law, even without being formally pronounced as ‘the law of the land’ by anyone,” she said. “In 1973 the Supreme Court changed the way it approached women’s rights and sex equality in its Fifth and Fourteenth Amendment jurisprudence, deriving legitimacy from the fact that Congress had adopted the ERA and many states had ratified it.”
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