Presidents typically spend their final days in the White House taking care of odds and ends: issuing pardons, signing some last executive orders, thanking staff. Joe Biden is doing all of those things—and also trying to change the Constitution on his way out the door.
This morning, Biden declared on X that “the Equal Rights Amendment is now the law of the land.” Well, there you have it: The Constitution has a 28th amendment, and women’s rights have been enshrined across the country.
Or not. Biden can’t change the Constitution, because the Constitution doesn’t allow him to.
The fight for the ERA is older than the 82-year-old president, and it did not end with Biden’s social-media proclamation. The suffragist Alice Paul first proposed an equal-rights amendment in 1923. Nearly a half century later, in 1972, Congress approved and sent to the states a constitutional change summed up in 24 words: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Congress set up a deadline for ratification. By 1982, when time ran out, only 35 states had ratified the ERA—three short of the three-fourths majority needed to add it to the Constitution.
The battle was mostly dormant until 2017, when Nevada became the 36th state to ratify the ERA. Then Illinois (in 2018) and Virginia (in 2020) followed suit, pushing the amendment across the required threshold. But they were nearly four decades too late, and in that span, several states voted to withdraw their ratification.
In the past several years, advocates for the ERA have tried a few avenues to enshrine the amendment. They’ve argued in court that the time limit was unconstitutional, pointing out that many other amendments didn’t have one attached to their text. They’ve lobbied Congress to rescind the deadline. They’ve urged the archivist of the United States—the official charged with formally certifying and publishing amendments—to add the ERA to the Constitution on her own, damn Congress and the courts.
All of their efforts have failed. In 2021, a federal judge dismissed a case brought by two states seeking to have the ERA recognized; two years later, an appellate court affirmed the ruling. Even Ruth Bader Ginsburg, a staunch supporter of the ERA, opposed the effort, saying in 2020 that advocates needed “to start over” because the deadline had elapsed. In 2021, the House passed a resolution to repeal the deadline, but it never cleared the Senate. And just last month, the archivist, Colleen Shogan, and the deputy archivist, William Bosanko, issued a statement saying that they could not legally publish the ERA, citing “established legal, judicial, and procedural decisions.”
As a last resort, ERA backers have urged Biden to simply instruct the archivist to publish it anyway. But the Constitution doesn’t afford the president any role in the amendment process; unlike regular laws, constitutional changes do not go to his desk for a signature or veto. And in his statement, Biden said nothing about the archivist or publishing the ERA. His declaration is likely to have neither force nor effect. Advocates might hope that a friendly federal judge would accept the presidential statement as a formal recognition of the ERA in a case that makes a legal claim under its auspices. But the conservative-dominated Supreme Court would almost certainly shoot down such a ruling.
Still, Biden’s declaration won praise from Democrats this morning. Hillary Clinton, for one, said she was “thrilled.” But it will likely have no more significance than the farewell address he delivered on Wednesday. It is an affirmation of values, an aspirational statement for posterity, but not an actual decree.
As attempts to change the Constitution go, this was pretty half-hearted. By noon, a community note had been added to his X post, as if to underscore the point: “There is no 28th Amendment.”
The post No, Biden Can’t Change the Constitution appeared first on The Atlantic.
