Biden says Equal Rights Amendment is ratified, kicking off expected legal battle

[dalton99a]

https://www.cnn.com/2025/01/17/politics/joe-biden-equal-right-amendment/index.html

Biden says Equal Rights Amendment is ratified, kicking off expected legal battle as he pushes through final executive actions
By Betsy Klein and Arlette Saenz, CNN
Updated 10:01 AM EST, Fri January 17, 2025

President Joe Biden announced a major opinion Friday that the Equal Rights Amendment is ratified, enshrining its protections into the Constitution, a last-minute move that some believe could pave the way to bolstering reproductive rights.

It will, however, certainly draw swift legal challenges – and its next steps remain extremely unclear as Biden prepares to leave office.

The amendment, which was passed by Congress in 1972, enshrines equal rights for women. An amendment to the Constitution requires three-quarters of states, or 38, to ratify it. Virginia in 2020 became the 38th state to ratify the bill after it sat stagnant for decades. Biden is now issuing 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 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,” Biden said in a statement Friday.

...

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https://www.whitehouse.gov/briefing-room/statements-releases/2025/01/17/statement-from-president-joe-biden-on-the-equal-rights-amendment/

Statement from President Joe Biden on the Equal Rights Amendment

I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women’s full equality once and for all.

On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.

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.

[Irish_Dem]

1. Surely now, it can no longer be a crime to treat dying women.

And women cannot face travel bans.

[TheBlackAdder]

96. Any challenges with be Trump's SCOTUS and Trump's DOJ and he'll own it if the ERA is overturned.

With the current makeup of the SCOTUS, he probably knew what would happen.

It was Trump's SCOTUS from his first term, so he owns the outcome.

[Irish_Dem]

114. He will own it proudly and convince Americans he saved women.

[MichMan]

2. Why did he wait 4 years?

He could have said the same thing as soon as he took office.

[LeftInTX]

7. He doesn't want to deal with ramifications while he's presidenting.

This could go to SCOTUS.

We will see what happens.

I'm sure some state will appeal this.

[MichMan]

9. So, instead of it being defended by his own DOJ, he left it up to the Trump DOJ. n/t

[LeftInTX]

11. It seems that way. Seems like a Hail Mary move.

Sadly, I don't think it will stand and I don't think it would stand if Biden was POTUS. I would love it, if it wasn't challenged.
At worse, it's a wonderful gesture.
Trump will have to devote his precious time appealing it. Maybe it will keep Trump out of trouble for a few days.
It will make Trump look bad.

[Walleye]

32. I agree we should never underestimate Joe. I'm sure he thought it through.

[InAbLuEsTaTe]

101. Agreed.

[W_HAMILTON]

31. And when that happens, will you criticize Trump as much as you have Biden?

There is/was zero chance that this would have stood up given that it would have, at best, had to go through a Republican-hijacked Supreme Court and, at worst, the incoming Trump administration.

At least this way -- just like the TikTok ban -- it will be on Trump and his Republicans.

If anyone ever wonders why we Democrats are so bad at politics, this type of response to Biden's final actions in office is a good reason why.

You just can't win with some people.

[Paladin]

49. Damn good question, damn good comments. Thanks. (nt)

[Roy Rolling]

97. Yes...that's the EXACT reason

Let the T administration be caught up in an extensive legal battle to consume its resources. Let the news repeat how Republicans are actively fighting to legally suppress women.

Make Republicans own the oppression. Brand them as the ones opposing fairness in personal freedoms and employment.

[walkingman]

28. Some State? I would put my money on Texas - Paxton has no shame.

[LeftInTX]

30. Of course he will. Another state could beat him too.

[Dem4life1234]

135. Never underestimate how some women

How some American women in red states will throw women underneath the bus. It is so disgusting.

[EdmondDantes_]

13. Unfortunately I think there's a lot of things that could be said about

I get that there's always competing priorities and levels of political capital, but this feels kind of performative. That said, I hope it works because sadly we probably can't get such an amendment passed in the current political climate.

[LeftInTX]

14. Thanks "performative" is the word.

[live love laugh]

23. Republicans are the performative clowns 🤡.

[EdmondDantes_]

26. I haven't seen anything that would convince me this isn't performative

Biden is human just like the rest of us. I don't put him on a pedestal or think he's flawless. What changed in the last couple of weeks as opposed to the last 4 years? Nothing that I can see.

Just because Republicans do a lot of performative acts doesn't mean Biden can't also do performative acts.

[live love laugh]

27. AND .... bothsiderism rears its ugly head ....

[EdmondDantes_]

57. By that logic here are some other bothsiderisms

Eating, breathing, sleeping, drinking. Gasp, we all do those things so we must all be the same. Or perhaps bothsiderism is just being used to hand wave away something you don't like without engaging on the merits.

You still haven't even attempted to answer why if this was something he believed so strongly wasn't done immediately upon Biden taking office given the blurb only took a few minutes to write and Virginia ratified the amendment before Biden took office. Why did he do it now if he thinks this will make it the law? Why not do it the day the Dobbs decision was leaked or even fully announced? Why only do this days before he leaves office?

[live love laugh]

73. Why didn't he save the fucking world Monday morning QB?

We are on the brink of having the Titanic sink and you want to quibble about the deck chairs.

How about he didn’t do it because he had to clean up a fucking mountain of Trump‘s bullshit just to get to where he is today to do what the fuck he IS doing?

I can’t wait to see your posts on why Trump didn’t do shit.

Who’s perfect? I believe he is doing all he can in the last days that he did not expect would be his last days given all that he had accomplished and given his approval rating up until Stephanopoulos and Clooney and the republican controlled media stabbed him in the back.

Nobody expected the Republican owned and controlled media to do what they did but it happened.

He then for the good of his country stepped down to try to give Democrats the best chance to win and still we did not. Imagine how he felt or even feels as an actual living breathing human being. Imagine the research that had to go into determining what he did to even issue the statement on the ERA. Did you see him on the fucking golf course every day like Trump?

[Walleye]

33. I look at it as a thorn in the side of the new administration

[ShazzieB]

72. Oh, yes.

That's exactly what it will be, and a nice, big, sharp one at that!

[LisaM]

64. No, I think he's pitching a grenade.

Whatever happens, the new administration will have to deal with it, and it could even sow a bit of division in GOP ranks.

This is pretty Dark Brandon, if you ask me. I was hoping he'd pay a bunch of booby traps like this and make the Republicans hoist themselves on their own petard. It will also slow them down from some of their planned antics.

[live love laugh]

22. Ask him.

[msfiddlestix]

78. That's a good question, and there's no good answer

[Blue_Tires]

81. What does it matter?

[MichMan]

82. So it would have already been in place the last 4 years ?

[Blue_Tires]

85. Then Trumpers would have killed it four years ago

and everyone would have completely forgotten about it by now, DU included... Give the people something to remember him by on his final day, and let it get overturned on Donnie's watch instead...

Besides, the way things are going right now we might not see another Dem president in our lifetimes 😔

[ForgedCrank]

87. Because it

is nothing more than posturing really.
While I can appreciate what he has done and why, everyone knows it is just an exhibition of intent and position. I applaud him for doing it too, it brings needed attention back to the issue.
What they should have done was written up a new one in the past 4 years with the same wording that many already signal support for, and then put it up for ratification.
Just my opinion.

[mahatmakanejeeves]

3. With that and four dollars, he'll be able to buy a cup of coffee in Wilmington next week. NT

[Hugin]

4. Nice...

Somewhere, somehow, my dear departed Mom is grinning ear to ear and saluting the misogynistic fuckers with two extended fingers.

:sniff: It brings a tear to my eyes.

[LetMyPeopleVote]

5. Statement of President Joe Biden on the Equal Rights Amendment

Link to tweet

[SickOfTheOnePct]

39. And that

The Office of Legal Counsel of the DOJ has said is not valid.

Nice gesture, means nothing really.

[Amishman]

65. Worse than nothing, I'd bet quite a bit this goes to SCOTUS and torched

ending any chance of finishing it's ratification and ensuring that future efforts have to start at zero all over.

ten out of ten for style, but minus a rather large number for timing and common sense. The start of a Pub administration with a pub SCOTUS is the absolute worst possible time for this fight.

[Blue_Tires]

84. So liberal bloggers and pundits have been demanding this

During the lame duck session and now that Biden's come through it's now the worst thing ever, because reasons... 😐

[Quiet Em]

6. Thank you President Biden

You are a great man.

This is a fight worth having.

[MichMan]

8. What happens if the Archivist doesn't publish it ?

Will she face jail time?

[tritsofme]

10. Seriously?

[DetroitLegalBeagle]

17. This doesn't appear to be an order to publish it

Only an opinion statement. Will have to see if anything more concrete follows, but if it just this statement, then legally it does nothing.

[MichMan]

20. He just directed her to publish it

Biden is now issuing his opinion that the amendment is ratified, directing the archivist of the United States, Dr. Colleen Shogan, to certify and publish the amendment

.

She has already gone on record stating the ratification was not done per the deadline and wouldn't . Now what?

[bucolic_frolic]

21. What would Trump do? Fire her and appoint a replacement to publish it. /nt

[DetroitLegalBeagle]

25. The National Archives is an independent agency

She can refuse. The President cannot directly order the National Archives or the Archivist to do anything since they are independent. Biden could fire her, as her position is appointed, but at this point, that wouldn't matter much since the position is Senate confirmed and she is likely going to be fired under trump anyway.

[Polybius]

50. That's good to know

Thanks for the info, I did not know that.

[Walleye]

34. Who the hell put a time limit on passing this anyway? I just don't know.

[DetroitLegalBeagle]

36. Congress did

Deadlines for ratification has been on several Amendments so far.

[MichMan]

37. Congress, when it was passed 50 years ago

Just like every other amendment since prohibition

[Polybius]

53. I think the Founding Fathers should have set every proposed Amendment to 10-15 years

And set it in stone that states can rescind if they change their minds before ratification.

[Kaleva]

111. Nothing happens. Biden just expressed a personal opinion

A president doesn't have a role to play in the ratification of a proposed amendment.

[Shrek]

133. She already won a court case affirming her position

Filed against her by three states and defended by the Biden DOJ.

[tritsofme]

12. This will be interesting, it's not immediately clear this is anything other than Biden's opinion.

[LeftInTX]

15. It's not an EO?

[DetroitLegalBeagle]

16. Its not an EO

It looks just to be an opinion statement, which means nothing legally.

[AllyCat]

86. Another one. Sheesh. It's an Amendment.

[pandr32]

18. Thank you, President Biden.

It has been long in coming, but I am not sure our incoming criminal administration will allow this to gain a foothold.

[FBaggins]

19. I don't see how it kicks off a legal battle

The legal battle was already there. Anyone who wanted to challenge a law or policy that violates the ERA would go to court and claim that the law violates the constitution. The other side would say it doesn’t because the amendment was never ratified.

The only change is that now the moving party can claim that a president agreed with them.

[TheRickles]

24. Apparently the deadline for approval by the states was 1982(!), so this is all for show.

Some relevant comments appear on another thread: https://www.democraticunderground.com/100219912438|
But so far I've seen nothing definitive w/r/t sourcing of that deadline date.

[Walleye]

35. I'm just wondering how this deadline got set? I'll check out the link.

[TheRickles]

42. Here's more info, from today's Boston Globe (behind a paywall)

"The Equal Rights Amendment, which would prohibit discrimination based on gender, was sent to the states for ratification in 1972. Congress set a deadline of 1979 for three-quarters of state legislatures to ratify the amendment, then extended it to 1982.

But it wasn’t until 2020, when Virginia lawmakers passed the amendment, that 38 states had ratified it. The archivist said Congress or the courts must change the deadline to consider the amendment as certified."

So Biden's statement is an opinion with no legal weight.

[SickOfTheOnePct]

43. Not to mention the states that rescinded their ratifications

No decision has ever been rendered on whether or not those states count towards the 38 states required.

[Polybius]

56. It's an interesting debate

I get that as long as it's not ratified yet, I don't see why a state can't change their mind. But then why can't a person who votes early change their mind before the election?

[SickOfTheOnePct]

60. An interesting debate to be sure

My guess, and it's only a guess as I'm neither a lawyer nor any kind of scholar, legal or otherwise, is that when this gets to the Supreme Court, the question around the rescinding of a previous ratification will come down to the current majority relying on the 10th Amendment to rule that if the Constitution doesn't call it out, it's left to the states to decide.

Will be interesting, to say the least.

[Polybius]

63. It might even be 9-0 or close to it

I know that RGB came out against it still being able to be ratified, but that was because of the timeline.

Ruth Bader Ginsburg says deadline to ratify Equal Rights Amendment has expired: ‘I’d like it to start over’

[MichMan]

66. I imagine because it's not feasible to go find someone's ballot once it is submitted

Aren't they removed from the outer envelopes and thus no longer traceable to an individual voter?

[Polybius]

67. Early voting is a whole new topic

I know it's embraced by both sides now, but Trump had such a devastating final two weeks that I think some of his early voters may have taken it back, especially after his MSG rally. Not a lot maybe, but 2-5% could tip it in some close states.

[valleyrogue]

89. Rescinding is not legal.

There is no provision in the Constitution for it.

The time limit was always bullshit. That is not in the Constitution. There is no time limit to ratify constitutionally.

Why the time limit wasn't done away with in 1982 or why ratification efforts were abandoned is a complete mystery to me and I was alive then.

ETA: Time limit WAS done away with per 1982 USSC decision, National Organization for Women v. Idaho. Time limits are advisory and not legally binding.

[SickOfTheOnePct]

91. We really don't know

if rescinding is illegal or not, as it's never been determined.

The time limit (for a previous amendment) was ruled Constitutional by SCOTUS (in the early 1900s I believe), so while the current SCOTUS certainly could overrule that finding, there is no guarantee they would do so.

If the time limit remains Constitutional, the rescinding issue is moot.

[Midwestern Democrat]

104. It certainly seems to me a deadline for ratification is reasonable. What if the 18th Amendment - prohibiting

the sale and manufacture of alcohol - had fallen short of ratification by one state in the 1920s and then 100 years later some state decided to ratify it? A state like California or New York is suddenly being told "Don't complain - you voted for prohibition - well, long dead ancestors of yours who admired the Women's Christian Temperance Union did 100 years ago, but it's still binding".

[Wiz Imp]

105. The 27th amendment became part of the Constitution 202 years after it was first proposed.

In 1992, the Twenty-Seventh Amendment, which addressed the effective date of congressional pay raises, became part of the Constitution more than 202 years after it was proposed. At the time, the Department of Justice’s Office of Legal Counsel (OLC) advised that the amendment became part of the Constitution once the Archivist of the United States certified that the requisite number of states had ratified the amendment. Rejecting dicta to the contrary in Dillon, the OLC stated that, in the absence of a congressionally proposed deadline, an amendment remains pending before the states.

https://constitution.congress.gov/browse/essay/artV-4-2-1/ALDE_00013054/

[Polybius]

109. IMO, that's a flaw in the Constitution

It should be 10-15 years maximum for every Amendment passed. The 27th was unnecessary anyway, and should have been left for dead 200 years ago.

[SickOfTheOnePct]

115. I agree with

your premise, but also that it’s moot now, as I’m betting any future prospective amendments will include a deadline for ratification, as that seems to be the norm since the early 20th century.

[Walleye]

55. So if the Democrats win Congress in the midterms, could they retroactively change the deadline I wonder

[SickOfTheOnePct]

68. Perhaps

If they are able to overcome a guaranteed filibuster in the Senate.

[Polybius]

69. You can change a deadline before it happens, but how do you change it after the date?

Like how is that fair?

[TheRickles]

44. It's from the Associated Press, so maybe it's posted elsewhere without the Globe's paywall.

Here's the link to the Globe article: https://www.bostonglobe.com/2025/01/17/nation/biden-equal-rights-amendment

[Wiz Imp]

48. There is nothing in the Constitution saying there can be a deadline for ratification

so proponents of the ERA like Biden will argue that the deadline itself was unconstitutional.

In February 2024, the American Bar Association (ABA) passed resolution 601, supporting implementation of the ERA. The ABA urges implementation because a deadline for ratification of an amendment to the U.S. Constitution is not consistent with Article V of the Constitution and that under Article V, states are not permitted to rescind prior ratifications.

The rescission of a prior ratification of a Constitutional amendment has occurred previously for the Fourteenth and Fifteenth Amendments. For each, states voted to rescind their ratifications, similar to the case for the ERA. Regardless, these states were counted when the federal government tallied the total states that had ratified the Amendment, thus declaring that it was officially part of the Constitution.

Researchers at Columbia Law School point out that "[t]he Constitution says nothing about whether a state can rescind or revoke its ratification of a Constitutional Amendment, either before the ratification process has been completed or after." Advocates and scholars dispute whether ratification is a one-time event, once done it cannot be undone as the Constitution only provides for ratification, not unratification.

I would expect the current Supreme Court to not uphold Biden's declaration, but there is a very strong legal argument in Biden's favor and he did the right thing.

For people to inject negativity into this is ridiculous. Biden's action should be celebrated even if it doesn't hold.

[Polybius]

76. If the deadline is unconstitutional, then the entire Amendment might be invalid

I don't see any way that this becomes the 28th.

[Wiz Imp]

79. Some Very smart legal scholars disagree and think it should stand.

However, if we're counting on this Supreme Court to do the right thing, it's hard to have a positive outlook. Regardless, Biden's action was still the right thing and should be celebrated even if it doesn't stick.

[Polybius]

88. I respect you tremendously, but we disagree on this

I believe doing the "right thing" would be the Supreme Court striking it down, and I believe that it would be 9-0. There are multiple grounds to strike it down:

1) Can states rescind before it's ratified? If not, why?
2) It was passed with a deadline of 1982. How can that deadline be changed after the date?
3) Even if that deadline is declared illegal, remember this: states passed the Amendment with the deadline in mind. Perhaps they wouldn't have passed it if there had been no deadline, at least that's what they could sue for. This argument is very valid.

You would have to go 3 for 3 to win in court. It's not happening imo.

[Wiz Imp]

90. There are strong legal arguments on the first two points.

The third is nonsense which should be laughed out of court. Why would someone ratify because there is a deadline but not do it if there was not a deadline? How is that argument very valid? It makes no sense.

As for 1) The rescission of a prior ratification of a Constitutional amendment has occurred previously for the Fourteenth and Fifteenth Amendments. For each, states voted to rescind their ratifications, similar to the case for the ERA. Regardless, these states were counted when the federal government tallied the total states that had ratified the Amendment, thus declaring that it was officially part of the Constitution.

That seems like precedent to me. Once a state ratifies, it is counted as having ratified even if they later rescind that ratification.

2)In February 2024, the American Bar Association (ABA) passed resolution 601, supporting implementation of the ERA. The ABA urges implementation because a deadline for ratification of an amendment to the U.S. Constitution is not consistent with Article V of the Constitution and that under Article V, states are not permitted to rescind prior ratifications.

Sorry, but I don't know how anyone could argue that doing the right thing would be to ignore the fact that the required number of states had ratified the amendment to make it part of the constitution. Unquestionably, the correct thing to do is to consider it the law of the land moving forward, though I expect that will likely not happen.

[SickOfTheOnePct]

95. Serious question

No snark intended, I would really like your opinion...

Do you believe that the opinion of the ABA overrides the existing SCOTUS precedent that Congress may impose a time limit on ratification?

[Wiz Imp]

98. No. But it is a valid opinion by the ABA. And this Supreme Court has already shown that they are more than willing

to ignore precedent if it conflicts with the way they want to rule on a case. So it would be hypocritical of this court to use precedent as the reason for ruling a certain way.

[SickOfTheOnePct]

100. Thanks for your response n/t

[Polybius]

108. Thanks for the detailed reply, and here's mine

1) In addressing the initial aspect, it may appear illogical to you; however, from a legal standpoint, it is not. If an agreement is established between two parties and the language is altered, the contract may be rendered invalid. They could convincingly assert that their actions were motivated by the necessity of completing it prior to 1982, as their state shifted politically thereafter and would not endorse such an agreement in the current era (it is highly unlikely that several of those states would do so). This could potentially be the strongest of the three arguments against it.

2) Regarding whether a state has the authority to rescind, you reference precedents related to the 14th and 15th Amendments; however, I am not aware of any Supreme Court decision that has addressed this issue. Additionally, it is quite perplexing that you place such emphasis on precedent concerning rescindment while overlooking the precedents established in "Dillon v. Gloss" and "Coleman v. Miller," both of which affirm that deadlines are constitutional.

3) The American Bar Association may articulate their views on this matter as extensively as they wish; however, their stance is incorrect, and they possess no authority regarding this issue.

4) What do you believe the perception of the American public would be if they observed that a measure was enacted with a deadline, only to be disregarded afterward? I do not wish to achieve victory in such a manner. More significantly, RGB indicated that a fresh start is necessary due to the deadline. That is satisfactory to me. The ruling will be unanimous at 9-0, as it ought to be.

Ruth Bader Ginsburg says deadline to ratify Equal Rights Amendment has expired: ‘I’d like it to start over’

[valleyrogue]

94. Wrong.

The original deadline, which itself was legally dubious, was extended in 1979 for three more years. It should have been scrapped. We have had amendments ratified long past seven years. It is not in the amendment itself and is dubious legally.

[SickOfTheOnePct]

99. I'm still curious

as to whether you believe that existing SCOTUS precedent that says time limits on ratifications are Constitutional is valid.

[valleyrogue]

103. The "deadline" was always bullshit.

Last edited Sat Jan 18, 2025, 04:19 PM - Edit history (2)

We have had amendments ratified long after any seven years.

It is not in the amendment. There is nothing in the Constitution about any "seven year" deadline.

Contrary to some people who think they know what they are talking about, there is NO provision--repeat NO provision--in the Constitution that states can "rescind" ratifications.

Amazing people think women's rights are up for debate. Insane.

BTW, 1982's National Organization for Women v. Idaho by the USSC rendered the "time limit" as advisory and not binding. People need to know this because the media didn't report this at all.

The ERA is law.

[RandomNumbers]

128. Your last line, 1000%. (We shouldn't need an ERA. FULL STOP.)

"Amazing people think women's rights are up for debate. Insane."

And in fact - if indeed it is rewritten - it should not refer to gender at all. All human beings must be understood to have the same rights, irrespective of their chromosomes. (In other words - XX, XY, YY, XXX, XXY, XYY ... and so forth ... not sure if all of those occur but I know there are more than XX and XY).

Science knows a lot more today, than when the ERA was originally written. I'd be ecstatic for the ERA to be accepted as part of the Constitution, per Biden's statement - but if it becomes clear it must be rewritten, I sure hope they make it completely neutral with respect to the sex chromosomes.

[SheltieLover]

29. Thank you, Joe

[CousinIT]

38. The "Christian" Taliban will never let that stand. nt

[calimary]

40. It's About Damn Time!!! Do it, Joe!

Just DO It. You’re still President! Use the power that you STILL HAVE! It would be the BEST “lovely parting gift” to America.

[Hekate]

45. I am so confused. This is the effing 11th Hour of Biden's administration, not TGIF...

Is one-half the human race waiting for our version of Juneteenth?

[mn9driver]

46. It's a short amendment. Link below.

https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg1523.pdf

The time limit for ratification was 7 years, and is specified in the amendment itself. The amendment was submitted by Congress in March, 1972, which started the clock.

It’s nice that Joe did this, but I don’t think SCOTUS is going to buy it. I would be happy to be wrong.

What this gesture might do is to draw attention to it and start a drive to pass it—again—and make THIS Congress go on record as being for it or against it.

[Polybius]

47. Biden is a great guy, so he's allowed to be wrong sometimes

This is one of them, as it's not the law of the land.

[MichMan]

54. VP Harris also concurs that it is now the law of the land

https://www.democraticunderground.com/?com=view_post&forum=1002&pid=19913066

[Polybius]

59. Then she's wrong too, because at this moment, it isn't

It's not on an official government list of Amendments. I think they are just giving their opinions.

[still-prayin4rain]

51. Thanks, President Biden! 🫶

[Martin68]

52. It is about time. I hope it survives in court.

[Kaleva]

112. It wont

Biden just expressed a personal opinion. The Constitution doesn't give a sitting president a role to play in the ratification of an amendment.

[Martin68]

122. My understanding is that there is a gray area involved in the ratification process. The required of states required

have ratified it. The question is whether there was a deadline that had to be met. Biden's action could force the courts to rule on the question.

[SickOfTheOnePct]

123. And the courts will rule

once someone files a lawsuit based on the “28th Amendment “

[Shrek]

130. Biden's action won't force anything

The only way the courts get involved is if someone brings a suit claiming a violation of a right protected by the amendment.

Such a suit could be filed regardless of a presidential opinion.

[HereForTheParty]

58. It's worth a shot

Good job, Joe!

[LaMouffette]

61. Thank you, again, President Joe Biden! You are the best president of my lifetime.

[AllyCat]

62. I believe this is what I am MOST excited to hear about!

This is AMAZING!!

[LAS14]

70. What are the legal arguments that could be brought against it?

And why wasn't there a big story when the 38th state ratified it?

[SickOfTheOnePct]

71. Two legal arguments

First, and most obvious, is that it missed the ratification deadline by almost 40 years. Second, and more complicated, are the five states that rescinded their ratifications prior to the deadline for ratification.

[LAS14]

74. Huh. Maybe I should have asked what the legal arguments are FOR ratification... nt

[Polybius]

75. None n/t

[Wiz Imp]

107. The main argument for implementation is that the arguments against are invalid

as they are not referenced in the Constitution itself.

The rescission of a prior ratification of a Constitutional amendment has occurred previously for the Fourteenth and Fifteenth Amendments. For each, states voted to rescind their ratifications, similar to the case for the ERA. Regardless, these states were counted when the federal government tallied the total states that had ratified the Amendment, thus declaring that it was officially part of the Constitution.

In February 2024, the American Bar Association (ABA) passed resolution 601, supporting implementation of the ERA. The ABA urges implementation because a deadline for ratification of an amendment to the U.S. Constitution is not consistent with Article V of the Constitution and that under Article V, states are not permitted to rescind prior ratifications.

Researchers at Columbia Law School point out that "[t]he Constitution says nothing about whether a state can rescind or revoke its ratification of a Constitutional Amendment, either before the ratification process has been completed or after." Advocates and scholars dispute whether ratification is a one-time event, once done it cannot be undone as the Constitution only provides for ratification, not unratification.

[valleyrogue]

92. Baloney.

Rescinding a ratification is not legal, and the time limit was total bullshit to begin with. There is no seven year anything in the amendment itself or the Constitution. The deadline had already been extended once and should have been scrapped.

[SickOfTheOnePct]

93. We don't now that rescinding is illegal

as it hasn't been ruled on.

I agree the time limit should have been scrapped, but it wasn't, and there is current SCOTUS precedent that time limits on ratification are Constitutional. Current SCOTUS can overturn that ruling, but I wouldn't count on it.

[Wiz Imp]

106. It was a big story when the 38th state ratified (Virginia in 2020)

https://www.npr.org/2020/01/15/796754345/virginia-ratifies-the-equal-rights-amendment-decades-after-deadline

Virginia Ratifies The Equal Rights Amendment, Decades After The Deadline

Virginia became the pivotal 38th state to ratify the Equal Rights Amendment after its Senate and House of Delegates voted Wednesday to approve the change to the U.S. Constitution.

The ERA's provisions include a guarantee that "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 Virginia Senate voted 28-12 and the House of Delegates 59-41 to approve the ERA," NPR's Sarah McCammon reports.

Under the U.S. Constitution, amendments become law when they're ratified by at least three-fourths of U.S. state legislatures — or 38 out of 50. However, the ERA's original deadline for ratification expired in the 1980s, putting its future on uncertain legal ground. That didn't stop backers in Virginia from welcoming a long-awaited day.

[rampartd]

77. thre was a 7 year deadline for ratification - ending in the early 1980s

the supreme court will quash it.

[LAS14]

80. So Biden is just dumping a legal fuss into Trump's lap to show his misogyny. nt

[William769]

83. I can't wait to hear the challenges.

[Kaleva]

113. Might not be any challenges as a president has no part in ratification

[William769]

116. I mean the challenges to the ERA becoming law.

You know this is going to have the far right foaming at the mouth. I hope I'm making sense.

[SickOfTheOnePct]

117. It won't be

the far right that brings this to court, IMO. It will be a woman who has been denied an abortion or a job or a pay raise, and they will sue based a violation of the purported 28th Amendment.

Or, and you may be right about the far right bringing it to court, but from a different angle…a man who has been denied a job or a pay raise or something else that was given to a woman instead…then they sue based on the purported 28th Amendment in order to settle the matter once and for all.

[William769]

118. Thanks for a good explanation.

[prodigitalson]

102. this seems huge

[Kaleva]

110. A president doesn't have a role in the process of ratification

[niyad]

119. This is going to get very interesting.

[SickOfTheOnePct]

120. I agree

it's all going to be fascinating to watch...who will bring the first case, and what will it be based on?

[niyad]

121. Popcorn???

[valleyrogue]

124. The reporters and some lawyers still continue with myths about ERA and ratification.

There was no "expiration" of the ERA because the USSC decided in 1982 those "advisory" resolutions were not binding in the case of National Organization For Women v. Idaho. This decision is why Congress didn't extend the deadlines further; they were not valid. The three-year advisory resolution extending the ratification deadline ended in 1982. There was no need to put in another "deadline" because the USSC had already decided the matter.

The American Bar Association and constitutional scholar Laurence Tribe who ARGUED the court case in front of the USSC, know of what they speak. The media do not.

Lots of lies spewed by the media and the political right, the latter KNOWING they lost the ERA issue in the long term, peddling the nonsense the amendment had "expired" and the whole process had to be done over again. Lots of lies have been spewed about insurance industry-financed, right-wing hack Phyllis Schlafly and her Eagle Forum army of "housewives" having "won" the battle. They didn't win shit. They knew it, too, but perception is everything, so many people thought ERA was "dead." LOL!!!!

[tritsofme]

125. That doesn't sound like an accurate description of NOW v Idaho. The case was dismissed as moot

Because the deadline imposed by Congress had already passed by the time they heard the case, this is an implicit recognition by the Court that Congress is able to set deadlines for ratification.

Was RGB peddling “right wing nonsense” when she agreed the process must be started over?

[SickOfTheOnePct]

126. Exactly

The case was moot because the deadline had passed, not because the deadline was invalid.

[Callie1979]

127. Meaningless. Time limit has expired.

[SickOfTheOnePct]

129. Prepare

To be told the deadline is invalid (although existing SCOTUS precedent says deadlines for ratification are valid), that SCOTUS ruled specifically in 1982 that the deadline for the ERA was invalid (although they actually dismissed the ERA ratification case as moot because the deadline had passed), and that because John Adams declared the 11th Amendment as ratified in 1798, that means President Biden can do the same now (even though the 11th Amendment had no ratification deadline) .

Oh, and also I was told yesterday that RBG’s opinion that the ERA died in 1982 because of the deadline was irrelevant because she’s dead…Tribe knows more that RBG…

[Callie1979]

132. So your opinion is invalid if you die?? Thats a new one!

We're gonna have a real problem with a lot of historical opinions!!

[Midwestern Democrat]

134. As a lifelong Democrat, I'm frankly appalled by a lot of the current liberal thought that's emerged in the blogosphere

era. We're supposed to be the intellectual party and yet a lot of the current liberal thought on the blogosphere seems to be completely emotional - pretending facts they don't like don't exist and embracing frankly chilling positions (like disregarding due process) in order to take down a Republican without seeming to give a second thought that that same chilling position could be used against a Democrat.

What Biden did deeply disappointed me - I thought he was the old school, serious statesman who would be above indulging this kind of nonsense - the most charitable explanation is that he's following the advice of younger advisers who are fully invested in "Please the Base at all costs - facts be damned"

[Hekate]

131. For any who missed it, here's a complete & comprehensible explanation...

https://www.democraticunderground.com/100219915969