By John Q. Hosedrinker 
President Biden declared the Equal Rights Amendment ratified, asserting that the necessary 38 states had voted in favor, despite past legal challenges and rescinded approvals. This action, intended to enshrine equal rights for women in the Constitution, relies on the American Bar Association’s interpretation that ratification deadlines are unenforceable. However, the Archivist of the United States has previously stated that certification is legally impossible, setting the stage for a likely court battle. The move comes as Biden uses his final days in office to enact numerous executive actions, some of which may be easily reversed by the incoming administration.
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President Biden’s declaration that the Equal Rights Amendment (ERA) is ratified is a bold move, setting the stage for a significant legal battle and injecting a potent dose of drama into the final days of his presidency. His action, directing the Archivist of the United States to certify and publish the amendment, is undeniably a powerful statement, especially given the amendment’s decades-long journey toward ratification. The timing, so close to the end of his term and the incoming administration, is strategically calculated, maximizing the pressure on the opposing party.
This late-stage ratification, however, doesn’t come without significant obstacles. The amendment, initially passed by Congress in 1972, has been mired in controversy for years. While Virginia’s ratification in 2020 appeared to meet the constitutional requirement of three-quarters of states, the question of whether states can rescind their ratification, and the impact of any imposed deadlines on the process, are central to the legal challenge that’s sure to follow. The fact that several states have attempted to withdraw their ratification adds another layer of complexity to the already contentious issue.
The legality of these rescissions remains a hotly debated topic. Some argue that once a state ratifies an amendment, that ratification is irreversible, pointing to historical precedents where states initially opposing amendments later became supporters, and were still counted. Others counter that allowing rescissions is crucial to the democratic process, and that deadlines for ratification are essential to prevent amendments from hanging indefinitely in a state of limbo. This legal uncertainty is the fertile ground upon which the anticipated legal battle will bloom.
Adding to the uncertainty, the Archivist of the United States has previously stated that the amendment cannot be certified due to legal, judicial, and procedural reasons, citing earlier opinions from the Office of Legal Counsel which upheld the enforceability of ratification deadlines. This openly declared stance directly contradicts Biden’s action, creating an immediate impasse and guaranteeing litigation. The incoming administration’s position will be crucial in shaping the course of this legal fight, and it’s far from certain that they will uphold Biden’s decision, particularly given their previous statements and positions.
The political ramifications of Biden’s actions are equally compelling. This late-term maneuver is a clear attempt to put pressure on the incoming administration, forcing them to either defend the ERA’s ratification in court, potentially incurring political costs, or reject it, thus exposing themselves to criticism for opposing equal rights for women. While this action might be viewed as a significant last-minute victory for supporters of the ERA, the reality is that its success hinges entirely on the outcome of the upcoming legal battles. This makes it not just a legal fight but a major political one, with ramifications that will extend far beyond the immediate aftermath of the transition of power.
The broader context of this decision adds another layer of nuance. The timing, so close to a significant political shift, creates an environment where the legal challenges and political fallout will be closely intertwined. Furthermore, the issue of women’s rights remains fiercely contested in the current political climate, lending a charged emotional dimension to the legal process. The fact that the ERA has languished for so long, and is now being pushed through at the very last minute of an outgoing administration, further fuels the controversy and ensures that this will be anything but a straightforward legal matter.
In conclusion, Biden’s declaration that the ERA is ratified is a bold, if somewhat risky, political move. While it may energize supporters of equal rights for women, it also guarantees a prolonged and uncertain legal battle. The success or failure of the ERA hinges on a series of upcoming court decisions, the political will of the incoming administration, and the continued legal scrutiny surrounding the validity of state rescissions and ratification deadlines. It’s a high-stakes gamble, one that could potentially reshape the legal and political landscape of women’s rights for decades to come. The final chapter in this saga remains unwritten, and the legal battle ahead promises to be a fascinating and potentially consequential one.