President Joe Biden officially declared on Friday that the Equal Rights Amendment is now a part of the US Constitution, moving it into the highest law of the land, a sudden decision that some think could set the stage for reinforcing reproductive rights.
It will likely prompt swift legal challenges – and its future actions remain uncertain as Biden prepares to leave office.
The law, passed by Congress in 1972, guarantees equal rights for women. A change to the US Constitution needs the approval of three-quarters of the states, or 38, to be officially adopted. After being stuck in limbo for many years, Virginia ratified the amendment in 2020, making it the 38th state to do so. President Biden is now stating his opinion that the amendment has been ratified, instructing the US archivist, Dr. Colleen Shogan, to verify and announce the amendment.
“It’s been far too long that the will of American citizens needs to be acknowledged. Follow my oath to the Constitution and to the country, I confirm what nearly three-fourths of the states have ratified: The 28th Amendment is now a law in the United States, ensuring all Americans have equal rights and protections under the law, no matter their gender,” Biden said in a statement on Friday.
The senior Biden administration official stated that Biden is not taking executive action, but is instead expressing his opinion that the plan is ratified.
“He is using his constitutional authority to make it clear that he thinks – and he shares the views of prominent constitutional experts and the American Bar Association – that a 28th Amendment to the Constitution already exists,” the official stated.
It’s not that cut and dry: Ratification deadlines have expired and five states have revoked their approval, according to the Brennan Center for Justice at New York University’s law school, raising questions about the president’s power to ratify the amendment more than 50 years after it first passed.
The senior official said that Biden is relying on the opinion of the American Bar Association (ABA), which points out that the Equal Rights Amendment, as written, doesn’t contain a time limit and notes that the Constitution’s framers deliberately avoided allowing states to rescind their ratification votes at any point.
Alongside Deputy Archivist William Bosanko, it was stated that the amendment “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” pointing to a pair of conclusions from the US Department of Justice’s Office of Legal Counsel in 2020 and 2022 that reaffirmed that ratification deadlines were enforceable.
contacted the National Archives seeking guidance on their plans, and were advised to review the prior statement made by Shogan and Bosanko, which is a “long-standing position” for the Archivist and the National Archives.
“The underlying legal and procedural rules remain the same,” said a spokesperson for the National Archives’ public and media communications department on Friday.
The high-ranking government official couldn’t confirm whether the White House had been in contact with the archivist before the announcement was made on Friday.
Pressed by on that December statement from the archivist, the senior official explained that the archivist’s role is “prescribed by law,” is “entirely administrative,” and “she must publish an amendment once it has become effective.”
In the end, the official admitted, “It will depend on the courts to untangle this and their take on the Equal Rights Amendment.”
overturning Roe v. Wade.
President Biden has taken some executive actions to safeguard abortion rights following the decision, but the White House has essentially depleted its alternatives short of Congress enacting laws to codify Roe’s protections, which remains unlikely.
Gillibrand made her case to the president’s top advisors and outside supporters, including speaking with Biden and the first lady at a holiday party while waiting in line for photos, according to a source close to the situation. She was in touch with the White House counsel’s office, the Council on Women’s Issues, and other officials involved in the matter.
The President is taking sweeping actions through executive orders in the final stretch of their term in office.
To carry out numerous executive actions, push through landmark laws, and solidify his foreign policy, President Obama made a pair of high-stakes decisions on Friday that highlight his efforts to secure his legacy and shield it from President-elect Donald Trump.
When Trump goes back to the White House on Monday, there’s little that can’t be undone. Just like Biden spent his first days in office reversing some of Trump’s biggest decisions, rejoining international agreements and signing executive orders, Trump can do the same to much of what Biden has planned.
For almost 2,500 people convicted of non-violent drug offenses, as well as the stated intention for the Equal Rights Amendment to be ratified, prospects are uncertain in the next administration. Clemency actions can’t be undone, but the ERA’s push forward will inevitably face legal challenges.
This week’s actions join a flurry of recent uses of Biden’s executive authority as his staff follows the lead of Chief of Staff Jeff Zients who urged his team after the election to “run through the tape.”
President Biden’s son, Hunter Biden, who faced sentencing on gun and tax conviction charges, a move receiving criticism from both Republicans and Democrats.
The introduction of new oil and gas drilling across 625 million acres of ocean was a point of contention for Trump. The ban prevents oil companies from leasing waters for new drilling along the entire East Coast, the eastern Gulf of Mexico, the coasts of Washington, Oregon, and California, and parts of Alaska’s Northern Bering Sea. To overturn this action, a change in federal law from Congress would be necessary.
Biden designated two national monuments in California, adding to the country’s total of federally protected land which now reaches 674 million acres, or 1,053,125 square miles, an area roughly four times the size of Texas.
As Trump readies an immigration crackdown, Biden extended protected status to approximately 7.ckptured immigrants from Venezuela, El Salvador, Ukraine and Sudan by delaying their deportation for another 18 months.
The Biden administration took Cuba off the US list of countries that support terrorism, a change that may be undone by Trump’s incoming team.
In the final weeks of his term, President Biden erased student loan debt for an additional 150,000 student loan borrowers, and his staff is working to complete funding for semiconductor chip production to ensure that approved funds are disbursed as soon as possible before President Trump takes office.
A rare area of agreement existed between the US and Japan, as Biden and Trump’s teams worked together to solidify a deal between US Steel and Japan’s Nippon Steel.
The president is also considering giving pardons to some of his allies before he’s sworn into office, a move that is unprecedented. He warned Trump against trying to “settle scores.” According to sources, this decision is expected to be made right before Trump takes his oath of office.
Trump, who attempted to block the transfer of power after losing the 2020 presidential election, claimed in a social media post that Biden was “doing everything possible to make the transition as difficult as possible.” Biden’s executive orders, Trump said in the post, “will all be terminated shortly.”
