Biden says ERA is ‘the law of the land’ but next steps unclear: NPR

President Biden said Friday that he considers the Equal Rights Amendment to the Constitution “the law of the land,” a surprising statement that has no formal force of effect but was celebrated by his supporters during a rally in front of Parliament. National Archives.

The amendment would need to be officially published or certified to take effect by the National Archivist, Colleen Shogan – and it’s unclear when or if that will happen.

The executive branch has no direct role in the amendment process, and Biden will not order the recorder to certify and release the ERA, the White House told reporters in a conference call. A senior administration official said the archivist’s role is “purely ministerial” in nature, meaning the archivist is required to publish the amendment once it is ratified.

In response to a question from NPR about whether the archivist would take further action, the National Archives communications staff pointed to a December statement saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.” “

“This is a long-standing position of the Archivist and the National Archives. The underlying legal and procedural issues have not changed,” the archive’s statement said.

Biden’s last-minute decision comes after a campaign by Democratic lawmakers

The 1970s amendment passed by Congress would guarantee men and women equal rights under the law, but it took until 2020 for enough state legislatures to ratify it, falling short by a wide margin. the deadline set by Congress. Supporters of the ERA argued that the deadline was not binding because it was contained in the preamble to the amendment, rather than in the text of the amendment itself.

On Friday, Biden said he believed the ERA had overcome the hurdle of adding the Constitution as the 28th Amendment when Virginia ratified it five years ago. He did not explain why he waited until the final days of his presidency to act – although he said he consulted “dozens of constitutional experts” to weigh his decision.

“The Equal Rights Amendment is the law of the land – now!” » he said in a speech to the United States Conference of Mayors. “It’s the 28th Amendment to the Constitution, now.”

Her decision follows a campaign by Democratic lawmakers, including Sen. Kirsten Gillibrand, D-N.Y., who said it would be a way to protect abortion rights. Gillibrand said she expects the case to end up in the Supreme Court.

There is a long legal controversy over the ERA

The issue has long been the subject of legal controversy. In 2020, the National Archivist – responsible for formalizing constitutional amendments – refused to certify the amendment, citing an opinion from the Department of Justice’s Office of Legal Counsel. The ministry said it considered the ERA to have expired after the 1982 ratification deadline was missed. In 2022, the Office of Legal Counsel issued an opinion confirming this 2020 decision.

Shogan, a Biden appointee and the first female archivist, said during her 2022 confirmation hearing that the Biden administration did not ask her about her position on ratification of the ERA before nominating her. She added that she would respect the advice of the Office of Legal Counsel, saying the fate of the ERA would be decided by the courts or Congress.

Last month, Shogan reiterated that Congress and the courts should take additional steps to lift the deadline for ratification of the amendment – ​​arguing that the Archives could not legally certify and publish the ERA.

Although Biden’s statement does not enshrine the ERA in the Constitution, it raises new legal questions in the ERA push, says Martha Davis, a professor at Northeastern University Law School.

“I think it shakes things up. It makes the arguments a little different than they were, but it doesn’t end the controversy,” Davis said.

“Now the question is whether the president has revoked or clearly disagreed with the opinion of the OLC. So the question is, how much weight does the opinion of the OLC have?” she added. “If the president is right and the archivist bases his refusal on the opinion of the OLC, well, the president has just disavowed it. So the question is on what basis can the archivist refuse to ‘act?’

Davis also said that Biden’s last-minute timing was important — that making this declaration earlier may have been more effective, because it would have given the Biden administration more time to put legal pressure on ratification .

“If this had been done just a few weeks ago, there could have been an injunction to try to compel the archivist, based on the president’s statement,” she said.

ERA supporters wish Biden would move sooner

About 40 ERA supporters gathered outside the National Archives after Biden’s announcement.

“Enshrining the ERA in the Constitution is the first step,” Rosie Couture said at the rally. “And Colleen Shogan, girl, you better sign this real quick, let us in,” Couture said.

Couture, 20, co-founded the Young Feminist Party in Virginia when she was in high school, lobbying for the state to ratify the ERA.

Supporters of the ERA said they wished Biden had acted earlier in his term, but celebrated the move nonetheless.

“I wish he would have acted as soon as he took office, frankly,” said Zakiya Thomas, president and CEO of the ERA Coalition, which championed the amendment. “But I’m going to take it as we have it now, because I think the act itself is more important than the timing.”

Thomas said she agreed with Biden that the archivist’s position is “ministerial.” However, she is under no illusion that the new Trump administration agrees.

“Let’s assume the new administration will try to take it away and say, ‘Oh, that doesn’t count,'” Thomas said. “Then they have to respond to the rest of the country, which says, ‘No, we have this right, this fundamental right.'”

NPR correspondent Bill Chappell contributed to this report.