Washington
CNN
—
President Joe Biden on Friday announced a major decision to ratify the Equal Rights Amendment, enshrining its protections in the Constitution, a last-minute move that some say could pave the way for strengthening reproductive rights .
However, it is sure to draw swift legal challenges — and its next steps remain extremely unclear as Biden prepares to leave office.
The amendment, adopted by Congress in 1972, enshrines equal rights for women. An amendment to the Constitution requires that three-quarters of the states, or 38, ratify it. Virginia in 2020 became the 38th state to ratify the bill after it stagnated for decades. Biden now gives his opinion that the amendment is ratified, directing the Archivist of the United States, Dr. Colleen Shogan, to certify and publish the amendment.
“It is high time to recognize the will of the American people. In accordance with my oath and my duty to the Constitution and the country, I affirm what I believe and what three-quarters of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans the rights and equal protections under the law, regardless of their circumstances. their gender,” Biden said in a statement Friday.
Biden, a senior administration official said, is not taking executive action but is “expressing the view that it is ratified.”
“He is using his presidential power to make clear that he believes – and he agrees with leading constitutionalists and the American Bar Association – not that this should be the case, but that it is 28th Amendment of the Constitution,” the official added. .
But legal experts say it’s not that simple: Ratification deadlines have expired and five states have rescinded their approval, according to the Brennan Center for Justice at New York University Law School, raising questions about the president’s authority to ratify the amendment for more than 50 years. after its first visit.
Biden is relying on the advice of the American Bar Association, the senior official said, which “emphasizes that no time limit was included in the text of the Equal Rights Amendment” and “emphasizes that the framers of the Constitution wisely avoided the chaos that would have resulted if states could withdraw ratification votes at any time.
Shogan, who would be responsible for publishing the amendment, said in a December statement alongside Deputy Archivist William Bosanko that the amendment “cannot be certified as part of the Constitution due to legal rulings , Judicial, and Procedural Establishments,” highlighting two findings in 2020 and 2022 from the U.S. Department of Justice’s Office of Legal Counsel that affirmed the ratification deadlines were enforceable.
CNN contacted the National Archives for advice on what the archivist plans to do and was directed to Shogan and Bosanko’s earlier statement, calling it “a long-standing position for the archivist and the National Archives.”
“The underlying legal and procedural issues have not changed,” the National Archives’ public and media communications staff said Friday.
The senior official was unable to say whether the White House had been in contact with the archivist before Friday’s announcement.
Pressed by CNN about the archivist’s statement in December, the senior official said the archivist’s role is “prescribed by law,” is “purely ministerial” and “she is required to issue an amendment once once it has actually been ratified.
Ultimately, the official conceded, “it will be up to the courts to interpret that and their views on the Equal Rights Amendment.”
Sen. Kirsten Gillibrand, Democrat of New York, made a major push for certification, saying in a memo to interested parties that it would give Biden a way to “codify women’s freedom and equality without the need for anything from a bitterly divided and broken Congress.” » following the Supreme Court’s 2022 decision overturning Roe v. Wade.
Biden took some executive actions to protect abortion rights following that decision, but the White House has essentially exhausted its options before Congress codifies Roe’s protections, which remains unlikely.
Gillibrand made her case to the president’s top aides and outside allies, including a call to Biden and the first lady during a Christmas party photo shoot, according to a source familiar with the interaction. She was in contact with the White House Counsel’s office, the Gender Policy Council and other officials involved in the matter.
Biden used his final days in office to pass numerous executive actions, implement key laws and shore up his foreign policy, announcing two high-stakes decisions on Friday that underscore his efforts to shore up his legacy — and protect it from the president . elect Donald Trump.
Yet when Trump returns to the White House on Monday, there is little that cannot be undone. Just as Biden spent his first hours in office reversing some of Trump’s most important decisions, rejoining international pacts and signing executive orders, Trump can also undo much of Biden’s agenda.
Biden’s latest actions — clemency for nearly 2,500 nonviolent drug offenders and a stated view that the Equal Rights Amendment is ratified — have mixed durability in the next administration. Clemency actions cannot be overturned, but the ERA’s decision will certainly invite legal challenges.
Friday’s moves add to a flurry of recent use of executive power by Biden as his team works to follow Chief of Staff Jeff Zients’ post-election call for his team to “walk the tape.”
Since the November election, Biden has leveraged his presidential pardon powers, pardoning 39 people convicted of nonviolent crimes, commuting the sentences of 1,500 nonviolent offenders and commuting 37 federal death sentences to life in prison. Biden also pardoned his son, Hunter Biden, who was convicted on gun and tax-related convictions, a move that drew criticism from Republicans and Democrats.
He issued an executive action banning new oil and gas drilling on 625 million acres of ocean, a move that drew Trump’s ire. The ban will prevent oil companies from leasing waters for new drilling along the entire East Coast, eastern Gulf of Mexico, Washington, Oregon and California coasts, as well as parts of the northern Bering Sea, Alaska. This action would require a change in the law by Congress for Trump to overturn it.
In another environmental legacy initiative, Biden designated two national monuments in California, bringing the total area of federally protected lands to 674 million acres, or 1,053,125 square miles – a area of land and ocean nearly four times the size of Texas.
As Trump prepares to crack down on immigration, Biden extended temporary protected status to nearly a million immigrants from Venezuela, El Salvador, Ukraine and Sudan, protecting them from deportation for 18 additional months.
The Biden administration removed Cuba from the U.S. list of state sponsors of terrorism, a decision that will likely be reversed by Trump’s new team.
In the final days of his term, Biden canceled the student debt of an additional 150,000 student loan borrowers, and his team pushed to finalize subsidies for semiconductor chip manufacturing to ensure the approved money was disbursed as Trump prepares to take office.
But there are a few fronts where Biden and Trump are on the same page. The president blocked the sale of US Steel to Japan’s Nippon Steel, a rare deal between two men. The Biden and Trump teams were also neck and neck as they raced to secure a ceasefire and hostage release deal between Israel and Hamas.
The president is also considering possible preemptive pardons for some of his political allies, an unprecedented move as he has warned Trump against trying to “settle scores.” According to some sources, this decision will likely be known before Trump is sworn in.
Trump, who tried to block the transfer of power when he lost 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 message, “will all be repealed shortly.”
