President Biden Proclaims the Equal Rights Amendment to Be Part of the Constitution

Don't start celebrating yet

This morning (Friday, January 17, 2025) President Joe Biden said it was his opinion that the Equal Rights Amendment is ratified.

• “It is long past time to recognize the will of the American people. 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.”

The 28th Amendment to the Constitution. which prohibits discrimination on the basis of sex, was passed by Congress in 1972.

An amendment to the Constitution requires three-quarters of states, or 38, to ratify it. In 2020, Virginia became the 38th state to ratify the bill after it sat stagnant for decades.

A senior administration official told CNN that the President Biden was leaning on the American Bar Association’s opinion, which “stresses that no time limit was included in the text of the Equal Rights Amendment” and “stresses that the Constitution’s framers wisely avoided the chaos that would have resulted if states were able to take back the ratifying votes at any time.”

However, it’s significant to note that the opinion did not formally direct the Archivist of the United States to add the ERA to the constitution.

Since ratification deadlines lapsed and five states have rescinded their approval, legal experts are questioning the president’s authority to ratify the amendment more than 50 years after it first passed.

Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko issued an opinion one month ago, stating that the Equal Rights Amendment (ERA) could not be certified as part of the Constitution due to established legal, judicial, and procedural decisions.

• “In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid.

President Biden’s statement comes after Democratic lawmakers and advocates have been urging him for weeks to take action on the amendment before leaving office. More than 120 House Democrats, led by former Missouri Rep. Cori Bush and Massachusetts Rep. Ayanna Pressley, wrote a letter to the president in December calling on him to recognize it as a constitutional amendment.

A New York Times report added that New York State Sen. Kirsten Gillibrand has been lobbying Biden to affirm the ERA, arguing it would be a way to enshrine abortion rights after the Supreme Court struck down Roe v. Wade in 2022. Sen. Gillibrand has said she expects that the matter will end up in the Supreme Court.

The decades-long delay in certifying the Amendment will likely to be basis for legal widely anticipated challenges from opponents, though the Constitution does not make any reference to a deadline for states to ratify an amendment.

In 2020, the National Archivist – who is charged with making constitutional amendments official – declined to certify the amendment, citing an opinion from the Justice Department's Office of Legal Counsel. The department said it considered the ERA to be expired after a 1982 ratification deadline was missed. In 2022, the Office of Legal Counsel released an opinion affirming that 2020 decision.