The national archivist on Tuesday preemptively stated she could not legally certify the Equal Rights Amendment as part of the Constitution, an unusual move that effectively shut down a campaign by Democrats to pressure President Biden to add it before he leaves office.
Senator Kirsten Gillibrand, Democrat of New York, has been leading a charge to press Mr. Biden to rescue his own legacy and the E.R.A., which would explicitly guarantee sex equality. She has argued that he could do so merely by picking up the phone and instructing the archivist, who is responsible for the certification and publication of constitutional amendments, to do so, a step that would almost certainly invite a legal challenge.
Last month, 45 senators, including Chuck Schumer of New York, the majority leader, signed a letter to Mr. Biden calling on him to take action on the amendment. A group of about 100 House Democrats is also expected to send a similar letter to Mr. Biden, urging him to take action in the final days of his presidency.
But on Tuesday, the archivist, Colleen Shogan, and her deputy, William J. Bosanko, issued a statement saying that the Equal Rights Amendment “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.”
Citing court decisions at the district and circuit levels, as well as memos from the Justice Department, Dr. Shogan and Mr. Bosanko said that they “cannot legally publish the Equal Rights Amendment.” During her confirmation process, Dr. Shogan in 2022 told lawmakers that she would not add the amendment to the Constitution, saying that Congress or the federal judiciary would make that determination.
Both houses of Congress approved the amendment in 1972, but it was not ratified by the states within the seven-year time frame Congress provided to add it to the Constitution. It has since been ratified by 38 states, surpassing the required threshold, although some later tried to rescind their ratifications.
Ms. Gillibrand has been pushing a legal theory that the deadline for ratification was irrelevant and unconstitutional. She wants Mr. Biden to use his presidential power while he still has it to force the issue, effectively daring Republicans to wage a legal battle to take away equal rights for women.
Conservatives who fear that an amendment guaranteeing sex equality could provide a new legal basis for protecting abortion after the overturning of Roe v. Wade cheered the archivist for protecting the law. Democrats, in contrast, chided her and argued she was overstepping.
In a statement, Ms. Gillibrand said that Dr. Shogan was “correct that she has a responsibility to uphold the law.” But she added that “by refusing to certify the E.R.A., she is wrongfully inserting herself into a clear constitutional process, despite the fact that her role is purely ministerial.”
Ms. Gillibrand called Dr. Shogan’s arguments “deeply flawed,” adding: “Our argument has strong support from legal experts, 23 attorneys general, and the American Bar Association. I continue to urge President Biden to direct the archivist to certify and publish the E.R.A. and enshrine equality for all in the Constitution.”
Kate Kelly, the senior director of the women’s initiative at the Center for American Progress, who has been working on the issue for a decade, said that Dr. Shogan was “now extra-constitutionally inventing a role for herself — that of an unelected appointee who is making it her job to keep women and queer people out of the Constitution.”
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