SCOTUS will throw out the ERA in a NY minute.

[speak easy]

I get it. This is the alternative facts ERA era but ... whatever.

[boston bean]

1. Uh no.

[speak easy]

2. No?

[Hekate]

3. What do you mean by "alternative facts ERA" ? It's the same one as it ever was.

That said, the MAGAGOP will fight it to the last breath.

[speak easy]

6. March 22, 1979 was the ratification deadline for the ERA.

Alternative facts: Deadline, what deadline?

[rampartd]

56. we had 7 years to ratify it

those 7 years were up long ago. long before va ratified it recently.

i would love for the era to become amendment 28, but that is just never going to stand..

[Bluetus]

21. That's the point. They won't have to fight it

The deadline expired a lifetime ago. This should be a 9-0 decision by the SCOTUS. There is no argument for ignoring the deadline.

What the F is Biden doing wasting his time on this when he should be getting Trump enemies pardoned and releasing all the documents from Smith and Mueller?

What a waste this last year has been for Biden.

[wnylib]

23. Biden is stirring up the conversation on making

women's rights the law of the land.

It's his parting gift to both the orange felon and to American women. Biden knows that his statement of belief does not change the status of the ERA, but he's bringing it to public attention again as he leaves office. Let Trump be the one faced with rejecting the amendment.

[Bluetus]

25. Trump won't give it a minute's notice

SCOtUS will shitcan it in a matter of minutes, and they should.

I can think of 1000 things I'd rather see Biden doing with the limited hours left. Is this really all we can expect of him? I've had low expectations the past year, but I have to keep lowering them.

The time for Dems to take a principled stand on the ERA was 1982. I literally have not heard it mentioned once in the last 20 years until recently.

[tritsofme]

29. There's nothing for them to "shitcan"

Biden’s announcement has no real legal value, there’s nothing for anybody to sue over, and federal courts do not provide advisory opinions.

Its only likely to be tested when someone sues claiming violation of the ERA, forcing courts to grapple with the issue.

[Bluetus]

48. Even more basically, the Archivist has not accepted it

and that is based on the DoJ opinion from 2020 after VA passed it. And then Garland's DoJ reiterated the 2020 opinion. Based on that, the Archivist has not added it to the Constitution, so it isn't anything at this point.

I guess somebody can bring a court case based on the argument that it SHOULD have been added to the Constitution in 2020, but that's a waste of time, IMHO.

The central issue is that the Constitution says nothing about any time limits, and the early amendments passed without regard to a specific cutoff date. However, in more recent amendments, it has been customary that the proposing language or the amendment itself state a time limit, usually 7 years. SCOTUS has twice ruled that Congress may set a reasonable deadline for ratification, and because that deadline is considered "dictum", it makes no precedent, and Congress has the power to extend the deadline, even after the legislatures have acted. https://www.equalrightsamendment.org/faq

So, in theory, this could sit forever until we have the votes in Congress to remove the deadline, at which time it could become a valid amendment. I doubt that the MAGA people will do that, so it just amounts to Biden doing some trash-talking 72 hours from his exit.

[sabbat hunter]

54. The archivist

has no official role in saying what amendment is accepted or not.
It is purely ceremonial.

[Bluetus]

61. Actually NARA DOES have an official role

It is described as ministerial, but that does not make it irrelevant.

It is more accurate to say that the PRESIDENT has no role in the ratification of an amendment, other than to attend the ceremony and sign as a witness if he chooses to, as Nixon and LBJ did.

Biden's proclamation has no more weight than if you or I made such a proclamation. The Archivist is the one who manages the process. While "ministerial" it is the official action. As such, the Archivist relies on opinions of the courts and DoJ, which have all been on the side of supporting Congress' right to specify a reasonable deadline, which has customarily been 7 years, and was explicitly stated as 7 years when the ERA was proposed. Of course the Archivist could be overturned by the courts, but at this point, the Archivist, DoJ and SCOTUS are all of the same position, that the 7-year deadline is legit, so the Archivist will not record the amendment until it is either voted again by the states or Congress takes a vote to extend the deadline.

Making matters worse, Congress, did EXACTLY THAT. They extended the deadline from 1979 to 1982, thus making it abundantly clear that they took the deadline seriously.
https://www.archives.gov/federal-register/constitution

We all wish the Amendment were adopted, but we also talk endlessly about the Constitution and the rule of law. We can't have it both ways and expect anybody to take us seriously. We have bigger issues to deal with today. We should not be muddying the waters with issues that are not front-of-mind for the country. Biden's speech was right. We have a BILLIONAIRE PROBLEM that is a clear and present danger. Everything we do must be directed on that central problem of a runaway oligarchy. The good news is that the mostly understands that, and we can gain an advantage if we can just manage to keep ourselves focused on that.

[wnylib]

49. If course Trump will ignore it. And of course SCOTUS

will rule against it, if it ever gets to them.

But why do you say that SCOTUS should rule against it? For legal reasons regarding the deadline date or because you don't support an equal rights amendement?

You have not heard about it for decades because of the time limit. People have considered it dead. So you can let up on the Biden trashing over something that died before he was inaugurated.

Biden brought it up now because, as he's leaving office, there is pressure from several groups regarding things for him to address. One is the ERA. He knows that he cannot certify it by executive order. He knows that SCOTUS would reject its acceptance. But he supports women's rights, so he spoke on the subject.

And look how many threads and posts that there are on the topic here. Looks like he has succeeded on getting attention to the subject, at least among Dems.

[electric_blue68]

66. But an important portion of the America Public hears this as sort of bookend to Biden's term...

I think it's still a majority (even if close) of women, men who believe in Full Equality for women.

It's a reverberation of the issue. Especially, after Kamala ran even with losing by a mix of factors, events etc

[Macrophylla]

31. It's all optics setting a narrative

What people can be PROGRAMED to think if you just keep saying it is...

The republican appointed supreme court rules against women's rights completely.

We all just saw that Americans in general are clueless to facts but highly susceptible to anything they hear repeatedly.

It's about time we learn that and practice that.
My opinion anyway yours may differ

[Bluetus]

52. This is the wrong hill to die on right now.

I agree about messaging and repetition.

This ain't the right battle. Nobody has even mentioned this thing for 30 years.

The battle we face today is economic. Biden touched on that in his farewell speech. We have a BILLIONAIRE PROBLEM -- a big one. And the country is very much in an "eat the rich" mood. We don't have to convince them that Elon Musk is a dick and the he and his oligarch friends are stealing wealth from working Americans. It doesn't take much persuasion to convince millions of Americans that the people lining up to give Trump hundreds of millions of dollars to carve up departments of our government are planning to get fat by taking resources that should be going to the taxpayers.

This is a winning message. Stick to the winning message.

[Bluetus]

64. I completely agree with repetition.

This is not the issue to be repeating. Nobody has even mentioned the ERA for 30 years. Why are we bringing it up now?
Biden's farewell speech was clear and true. We have a BILLIONAIRE PROBLEM and it is taking our entire system down faster than anybody can realize. THAT is what we should be spending our repetition on. Not abortions. Not bathrooms. Not a Constitutional amendment. We really have to have a clear-minded focus if we are going to serious challenge the fascism that is taking hold.

Are you aware that Donald Trump takes office again in less 62 hours?

[sabbat hunter]

53. There is nothing in the constitution

that says a proposed amendment is allowed to have a time limit to when it can be ratified.

[SickOfTheOnePct]

58. Very true

But there is a previous Supreme Court ruling saying that they can impose a ratification time limit.

Of course any subsequent court can overturn that, but there currently is a precedent in place.

[JohnSJ]

4. On what grounds? The required number of states ratified it in 2020.

“ President Biden made official a reality that many Americans failed to recognize at the time: that Article V of the Constitution expressly makes any proposed Amendment to that document “Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” Nothing in Article V makes the Constitution’s binding contents depend on any further official action by any branch of the federal government, whether Congress or the Judiciary or indeed the Executive.”

From the Contraian

[speak easy]

7. March 22, 1979

The extended deadline, deadlined.

[spooky3]

14. The ABA argues the deadlines make no difference

and that states can’t revisit ratification.

https://www.democraticunderground.com/?com=view_post&forum=1002&pid=19913617

Here is the resolution and report:

https://www.americanbar.org/content/dam/aba/administrative/women/2024/res-601-adopted.pdf

[MichMan]

15. Well then it is settled

[Igel]

50. Truly, the ABA is actually the rulers.

They say it's the law, then who are mere Constitutional institutions to ever dare propose the idea of quibbling.

Sort of like tripping and slamming your outstretched hand down on the tip of a spear to break your fall.

[speak easy]

16. "The ABA argues ...

and SCOTUS will decide ... Nyet."'

I mean, really ... this is legal masturbation. A college student arguing the ERA was alive in the1990s would have been run out of class.

[spooky3]

17. There is no role for SCOTUS in the constitutional amendment

Process. See ABA documents and Prof. Lawrence Tribe’s writings.

If you are not a constitutional law attorney and expert, you might want to explore what those who are have said.

I’m not an attorney.

[speak easy]

18. So the executive can simply declare an amendment ratified,

Last edited Fri Jan 17, 2025, 06:08 PM - Edit history (1)

without legal challenge, whether or not any states had ratified at all?

At the very least, SCOTUS can rule on whether a State can rescind a ratification.

[spooky3]

28. He has no formal role, either. He simply made a statement.

https://www.law.cornell.edu/constitution-conan/article-5/role-of-the-president-in-proposing-an-amendment

[speak easy]

34. ... then who has standing?

It is just commonly accepted by the populace that a Constitutional amendment has been ratified?

A State that has rescinded ratification will petition SCOTUS. The court will accept the case and strike down ERA ... yes?

[spooky3]

35. The states ratified the ERA, according to the ABA.

The hold up has been that the archivist (who is not a lawyer) refused to publish the amendment.

https://www.npr.org/2025/01/17/nx-s1-5264378/biden-era-national-archivist-constitution

[speak easy]

38. A State that has rescinded ratification will petition SCOTUS.

They will then rule on jurisdiction. And I have no doubts about the result. Stare decisis? - LOL

[spooky3]

42. I guess we will see. Nt

[speak easy]

44. I am not looking forward to it.

[Igel]

51. Consider the TikTok case.

The corporation's legal defender framed it as a free speech case.

But the Congress framed it as a national security issue. I said at the time that SCOTUS would adopt that framing since that's the basis of the law--speech is incidental--and the defense was tangential.

A state will bring it up as an issue about rescinding ratification and SCOTUS will say that that point is moot because it failed to pass by the deadline, so what difference would it make if it was ruled to have failed by one additional state?

[Wiz Imp]

63. There is a strong legal argument that rescinding a ratification is unconstitutional 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.

[Seeking Serenity]

57. So the American Bar Association, a private organisation, hath decreed it. We must bow low before our new rulers

[spooky3]

62. Who claimed that? The point is that, contrary to what has been asserted in this thread, it

is not at all clear that SCOTUS has the authority to decide whether a constitutional amendment has been ratified, and if it does, that it would definitely decide that the ERA was NOT ratified.

If the primary professional association, whether it's in the legal profession, medical profession, etc., has voted on a position, that says something pretty strongly.

https://www.americanbar.org/about_the_aba/

In case it matters to you, Pres. Biden said he consulted with a number of constitutional legal scholars over time, before making his statement today.

[SickOfTheOnePct]

65. SCOTUS

wouldn't be deciding whether or not a Constitutional amendment has been ratified, they would be deciding a) whether or not Congress has the Constitutional authority to set a deadline for ratification and based on that decisions b) whether or not a state can rescind a previous ratification if they do so before final ratification.

If they rule that Congress can't set a deadline (which would overturn a previous Supreme Court ruling, which is not out of the question), then they would need to decide the second question about whether or not rescinding a previous ratification is possible. If they say states can't rescind, then the amendment would be considered ratified. If they decide states can rescind ratification, the amendment would not be ratified.

If they rule based on precedent, i.e., Congress has the Constitutional authority to set a deadline, the amendment would not be ratified, and the second question would be moot.

Wanting to ensure that we are following the Constitution, unlike the other side, does not mean that one opposes ratification of the ERA (not saying that you believe that, but some on this issue have made that leap).

[MichMan]

19. You mean people like RBG when she said the process needed to start over?

Tribe also said that the Colorado law removing Trump from the ballot was a slam dunk. The SC ruled otherwise 9-0

[SickOfTheOnePct]

24. There is role

for them to decide the Constitutionality of the deadline and the rescinding of the ratifications.

[onenote]

32. Do you think there aren't any constitutional law experts who disagree with Tribe?

The ratification of the amendment has been litigated several times and no court, including the DC Circuit, has concluded it was successfully ratified. Moreover, the idea that there is no role for SCOUS in interpreting the Constitution is absurd. As a practical matter, if a case is brought alleging that a particular law or action violates the terms of the ERA, the courts can and will, as an initial matter, decide if the amendment is in effect. Who can tell them otherwise? Who can issue an order finding that the amendment has been violated?

[spooky3]

33. Of course some may disagree, but it's not just Tribe; it's also the ABA.

What I object to in this thread is the blanket statement that appears to argue that it’s a settled matter that SCOTUS has the authority to weigh in and that they will rule against the ERA.

But when the major professional association takes a position, that should carry a lot of weight. It doesn’t mean that there are no dissenters.

[Wiz Imp]

60. Many constitutional law scholars disagree with the second part of your statement.

(A college student arguing the ERA was alive in the1990s would have been run out of class.) A legitimate constitutional law professor would have done nothing of the sort.

[Shrek]

22. Dillon v. Gloss

https://supreme.justia.com/cases/federal/us/256/368/

Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule, the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require, and Article V is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.

[Shrek]

45. Related case

Judge is an Obama appointee.

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv0242-117

As mentioned earlier, the Supreme Court held in Dillon that Congress can attach a deadline to a proposed amendment “as an incident of its power to designate the mode of ratification.” 256 U.S. at 376. That means that Congress’s power to set a ratification deadline comes directly from Article V. See U.S. Const. art. V (providing for ratification by state legislatures or conventions “as the one or the other Mode of Ratification may be proposed by the Congress”); see also United States v. Sprague, 282 U.S. 716, 730 (1931) (“The choice . . . of the mode of ratification, lies in the sole discretion of Congress.”). The Archivist’s assessment of whether a proposed amendment “has been adopted[] according to the provisions of the Constitution,” 1 U.S.C. § 106b, should therefore include confirmation that the states ratified the amendment in accordance with any properly imposed ratification deadline. Because Congress derives its power to set a ratification deadline from Article V, it would be just as absurd for the Archivist to ignore such a deadline as it would be for him to ignore a violation of one of the conditions stated expressly in Article V. Contrary to Plaintiffs’ contention, the Archivist does not have to accept their ratifications as valid merely because they told him to.

[MichMan]

12. And five of them rescinded n/t

[onenote]

36. Right. Importantly those rescissions occurred before the 38th state ratified.

Clearly, a rescission after the requisite number of states have ratified would be of no effect. But until the requisite number of ratification has occurred, the ratification is not final and there is no compelling reason for not allowing the state to reverse its decision. I for one can imagine the time coming where we might want a different outcome on whether ratification of an amendment can be withdrawn.

[hlthe2b]

5. Apparently that would make a lot of people posting quite happy. I assume they never thought it would become law

so now it is a source of satisfaction that they be "right" (in the sense of "proven correct--certainly not RIGHT any more than treating any non-white, non-male American as second-class citizens and being content for that to remain the case)

[speak easy]

10. I was a libertarian in the 1970s.

I supported and campaigned for the ERA in OH. I did not want to see it fail.

By the 1980s, when I was becoming a Dem , we knew it was gone. Rewriting history will not work if the black letters are printed on a page.

[edhopper]

8. SCOTUS has do say on what is in

or not in the Constitution. Their job is interpretation.

[speak easy]

9. "SCOTUS has do say on what is or not in the Constitution"

LOL!

[edhopper]

11. Is there something in the Constitution

where it says SCOTUS decides which amendments are there that I am unfamiliar with?
Which Article gives them the power to rule on a new Amendment?

[speak easy]

13. Is there something in the Constitution

where it says that a President is immune from criminal prosecution?

The gloves are off.

[edhopper]

40. I do realize

this Court no longer follows the Constitution.

[speak easy]

27. "SCOTUS decides which amendments ... "

Of course not. The executive can simply declare that 38 States have ratified an amendment, and it is beyond legal challenge

At the very least SCOTUS can decide whether a state can rescind a ratification. Yes?

[onenote]

37. Is there some thing in the Constitution that says the court can declare a law unconstitutional

The power of the Court to interpret the Constitution is well settled and i'm pretty sure that there are a lot of decisions doing so that you would no t want undone.

[edhopper]

39. They can declare a law unconstitutional

they CANNOT declare a Constitutional Amendment unconstitutional. Big difference.

[onenote]

43. They can interpret the provisions of the constitution that describe the amendment process.

The resolution accompanying the amendment is not part of the amendment itself. It reads: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress[/b

The Court clearly has the authority to interpret that provision.

[nolabear]

20. There's been quite a few developments re sex/gender.

I wonder how that’s going to figure into things.

[elleng]

26. I don't think they get the chance to do so.

[speak easy]

30. So the executive can declare an amendment to be ratified

with no legal oversight whatsoever ever? Because we say so?

At the very least, SCOTUS can decide whether a State can rescind a ratification.

[edhopper]

41. Yes, they may do that

But the Court is not involved with the passage of new Amendments. Again which Article says they have any say in this?

[fishwax]

46. I do hope that this withstands the legal challenges, but in this era I can hardly be confident

I agree that, ultimately, the legitimacy of the seven-year deadline will wind up going to the Supreme Court, and I would expect that this SCOTUS will decide that the deadline is legitimate and that therefore the ERA has not actually been ratified.

I'd love to be wrong about that, but I'll be quite surprised if I am.

[SickOfTheOnePct]

47. I agree

And I don’t think it will be along ideological lines either.

[JustAnotherGen]

55. Yep

But Biden is making them do it.

[SickOfTheOnePct]

59. It will have to get to the court first

I'm very curious to see what type of case will be used to get it to SCOTUS...I'm guessing a case from a state that has place severe limitations on abortion, like Alabama or Florida.

Or possibly someone suing the archivist for not publishing the amendment.