President Biden declared on Friday that he believes that the Equal Rights Amendment has met the requirements of ratification and therefore is now part of the Constitution, but he declined to order the government to finalize the process by officially publishing it.
“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, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” Mr. Biden said in a statement.
Under the Constitution, however, the president has no direct role in approving amendments and his statement has no apparent legal force by itself. The archivist of the United States, a Biden appointee, has until now refused to formally publish the amendment on the grounds that it has not met the requirements to become part of the Constitution.
Aides said that Mr. Biden was not ordering the archivist to reverse her position and publish the amendment, but advocates said they believe it is possible that she will take his public statement as guidance that permits her to do so. The archivist made no immediate comment, leaving the status of the amendment unclear.
Mr. Biden’s decision to weigh in just three days before leaving office on an issue that has divided the country for generations amounts to a remarkable last effort to bring about profound change and shape his own legacy, but it was not clear whether it was just a symbolic act on his part or a move that would lead to action by the archivist.
The Equal Rights Amendment was first proposed more than a century ago and taken a circuitous route to ratification. While it passed Congress in 1972 and over the next few years was ratified by most states, it fell short of the three-quarters required under the Constitution until January 2020 when Virginia became the 38th state to ratify it.
Opponents have argued that a seven-year deadline imposed by Congress and later extended for another three years meant that the ratification was not complete in time while proponents maintain the deadline was invalid. Moreover, some states that originally ratified have tried to rescind their approval, adding another point of legal uncertainty to the situation.
The amendment itself, originally written by the women’s rights activist Alice Paul in 1923 and later modified, essentially is a single sentence: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The rest of the amendment simply says that Congress can pass legislation to enforce it and that it would go into effect two years after ratification.
While the statement of principle seems relatively straightforward on its face at a time when law already prohibits sex discrimination, in fact it has long been an explosive issue. Advocates argue that such a bedrock principle should be built into the Constitution, not just statutory law, while critics contend it would have far-reaching consequences on everything from abortion rights to a military draft for women.
Democrats have been pressing Mr. Biden to order the archivist to publish the amendment. Last month, 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.”
Dr. Shogan and Mr. Bosanko cited various court decisions and memos from the Justice Department in concluding that they “cannot legally publish the Equal Rights Amendment.”
On a conference call with reporters, a Biden administration official was not clear whether the White House expects them to now change their mind because of the president’s statement. If not, it would amount to a symbolic act by a president on his way out the door and possibly anger activists that he did not go further to enforce his view.
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