Biden announces the ERA as national law — though it probably won't have an effect
The White House recognizes that the action will not carry legal authority.
TroibNews 
On Friday, President Joe Biden announced his belief that the Equal Rights Amendment (ERA) is the law of the land, as part of a concerted effort to establish a 28th Amendment to the U.S. Constitution aimed at safeguarding women's reproductive rights.
However, Biden's declaration may hold little legal weight, as the White House acknowledged its lack of immediate enforceability. The National Archives also informed PMG that it has no plans to formally incorporate the amendment into the Constitution.
“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,” Biden expressed in a statement. “We, as a nation, must affirm and protect women’s full equality once and for all.”
While Biden asserts that the ERA has met all requirements for ratification, the actual impact of this claim hinges on judicial rulings, a concern even White House officials admitted when making the announcement.
If successful, this bold move would add a dramatic chapter to the decades-long campaign for sex-based equality in the Constitution and enhance Biden’s policy legacy. As Biden prepares to hand over the Oval Office to President-elect Donald Trump, whose Supreme Court appointees contributed to the reversal of Roe v. Wade in 2022, his statement on the ERA presents a final chance to oppose laws enacted in various states limiting or criminalizing abortion.
Despite Biden's declaration, the National Archives quickly stated that it does not intend to act on his interpretation.
U.S. Archivist Colleen Shogan has previously noted that the timeframe for the ERA’s eligibility has expired, meaning it could not be added now without congressional action. Given that Congress is controlled by Republicans, such action is improbable.
"This is a long-standing position for the Archivist and the National Archives," the Archives stated. "The underlying legal and procedural issues have not changed."
A senior administration official on Friday refrained from confirming whether the White House had contacted Shogan about publishing the ERA or pressured her to reconsider her position.
"The president is not going to direct the archivist," the senior official told reporters, but later added: "The archivist is required to publish an amendment once it's ratified, so the archivist is required to publish this amendment."
The ERA aims to prohibit sex-based discrimination, including restrictions on abortion by states. Last month, Sen. Kirsten Gillibrand argued in a New York Times op-ed that the amendment should be formally directed for publication by the national archivist, asserting that it has fulfilled all requirements for certification. It passed two-thirds of Congress in 1972 and was ratified by three-quarters of the states in 2020 after a long dormancy.
However, Donald Trump’s Justice Department previously contended that the ratification process was too lengthy and that the states had missed the deadline. Shogan supported this perspective in a statement last December. Although Biden disagrees, he stopped short of taking the action Gillibrand advocated, which was to instruct the archivist to proceed.
“On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment,” Biden’s statement noted. “The American Bar Association 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.”
Concluding his statement, Biden emphasized: “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's announcement is likely to receive acclaim from advocates who have long championed the ERA's formal recognition. Nonetheless, the timing—coming just three days before he exits office—raises questions regarding why a president who reportedly has held this opinion for years did not take action sooner.
The senior official explained that Biden felt compelled to act last year when the American Bar Association asserted the amendment's validity. "He's using his power of the presidency to make it clear that he believes and he agrees with leading constitutional scholars," the senior administration official stated. "We supported Congress taking action. This Congress didn't do that, and nothing in the statement changes their ability to take whatever action they would like."
Sanya Singh contributed to this report for TROIB News
However, Biden's declaration may hold little legal weight, as the White House acknowledged its lack of immediate enforceability. The National Archives also informed PMG that it has no plans to formally incorporate the amendment into the Constitution.
“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,” Biden expressed in a statement. “We, as a nation, must affirm and protect women’s full equality once and for all.”
While Biden asserts that the ERA has met all requirements for ratification, the actual impact of this claim hinges on judicial rulings, a concern even White House officials admitted when making the announcement.
If successful, this bold move would add a dramatic chapter to the decades-long campaign for sex-based equality in the Constitution and enhance Biden’s policy legacy. As Biden prepares to hand over the Oval Office to President-elect Donald Trump, whose Supreme Court appointees contributed to the reversal of Roe v. Wade in 2022, his statement on the ERA presents a final chance to oppose laws enacted in various states limiting or criminalizing abortion.
Despite Biden's declaration, the National Archives quickly stated that it does not intend to act on his interpretation.
U.S. Archivist Colleen Shogan has previously noted that the timeframe for the ERA’s eligibility has expired, meaning it could not be added now without congressional action. Given that Congress is controlled by Republicans, such action is improbable.
"This is a long-standing position for the Archivist and the National Archives," the Archives stated. "The underlying legal and procedural issues have not changed."
A senior administration official on Friday refrained from confirming whether the White House had contacted Shogan about publishing the ERA or pressured her to reconsider her position.
"The president is not going to direct the archivist," the senior official told reporters, but later added: "The archivist is required to publish an amendment once it's ratified, so the archivist is required to publish this amendment."
The ERA aims to prohibit sex-based discrimination, including restrictions on abortion by states. Last month, Sen. Kirsten Gillibrand argued in a New York Times op-ed that the amendment should be formally directed for publication by the national archivist, asserting that it has fulfilled all requirements for certification. It passed two-thirds of Congress in 1972 and was ratified by three-quarters of the states in 2020 after a long dormancy.
However, Donald Trump’s Justice Department previously contended that the ratification process was too lengthy and that the states had missed the deadline. Shogan supported this perspective in a statement last December. Although Biden disagrees, he stopped short of taking the action Gillibrand advocated, which was to instruct the archivist to proceed.
“On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment,” Biden’s statement noted. “The American Bar Association 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.”
Concluding his statement, Biden emphasized: “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's announcement is likely to receive acclaim from advocates who have long championed the ERA's formal recognition. Nonetheless, the timing—coming just three days before he exits office—raises questions regarding why a president who reportedly has held this opinion for years did not take action sooner.
The senior official explained that Biden felt compelled to act last year when the American Bar Association asserted the amendment's validity. "He's using his power of the presidency to make it clear that he believes and he agrees with leading constitutional scholars," the senior administration official stated. "We supported Congress taking action. This Congress didn't do that, and nothing in the statement changes their ability to take whatever action they would like."
Sanya Singh contributed to this report for TROIB News
