Well, this is pretty dictator-like of Biden:
Today I'm affirming what I have long believed and what three-fourths of the states have ratified:
— President Biden (@POTUS) January 17, 2025
The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex. pic.twitter.com/oZtS6Q89zG
This is not the first time Democrats have tried to engage in underhanded tactics to cause this amendment to be deemed ratified. We wrote about a previous attempt by Democrats in the Senate to try to do so, here. We went into a lot more detail in that post, but we will hit the highlights, here.
First, the proposed Equal Rights Amendment says the following:
SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification.
This proposed amendment was sent to the states after two thirds of both houses of Congress approved of it, but they did so with a requirement that it is not ratified unless it received the appropriate approval of three fourths of the states within seven years. That period expired in the 1970’s without the amendment receiving a sufficient number of state ratifications.
Since then, additional states have purported to ratify it and, crucially, other states have withdrawn their ratification. In 2020, Virginia purported to be the final state to ratify it, except that is only true if you believe 1) Congress can’t limit how long it takes for an amendment to be ratified and 2) no state can withdraw approval before final ratification. As we said the last time they tried this nonsense:
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Whatever one feels about the ERA, this is wrong. In the view of the advocates for the ERA no time limit is valid and no vote to rescind any ratification is allowed. By that logic, Article V of the Constitution, which is supposed to make it difficult to amend the Constitution, is turned into an almost inevitable process once an amendment is proposed. After all, if America lasts one thousand years, then it is almost inevitable that any proposed amendment will become part of the Constitution, however ill-advised. After all, you would only need thirty-eight states to say ‘yes,’ once in that thousand-year period.
It is also fundamentally unfair. How many state politicians voted to ratify the amendment not because they actually believed in it, but because they correctly estimated that it would never be ratified in seven years and therefore it was safe to pretend they supported it? Would the resolution even make it out of Congress without the time limit on ratification?
In other words, there are good reasons to oppose this move that have nothing to do with whether you want to see this amendment ratified.
We would also note that our prior post also analyzed whether or not the amendment was a good idea. This author thinks it is a terrible idea, at least as it is written, particularly because (among other things) it would probably be read to abolish separate restrooms, locker rooms, sports leagues and so on, for men and women, and because it might even be read as making abortion a Constitutional right. As they say, read the whole thing (please).
In any case, returning to Biden’s post on Twitter/X (or, more likely, Biden’s intern’s post), we will note that sometimes we see a Community Note that notes the obvious legal problems with anyone claiming the Equal Rights Amendment to be ratified. We would further add that Article V of the Constitution doesn’t give the President any official role in deciding if an amendment is ratified or not. It is either ratified or not.
Further, the fact that Joe Biden is attempting to do this creates another legal problem. As we wrote here, there is a real question of whether or not Biden is competent to do anything as president at any given moment, given his obvious mental decline. If Biden was an ordinary citizen and he purported to sign a contract or to create a will, those documents would be subject to challenge based on the theory that he was not mentally competent to take those actions and we don’t see why his actions as President should be treated differently.
Additionally, Biden has put out a press release stating that the American Bar Association (ABA) agrees with him:
The @POTUS has just announced that he affirms that the Equal Rights Amendment has been ratified by enough states to be part of the Constitution. pic.twitter.com/FT95OAlGU5
— Andrew Leyden (@PenguinSix) January 17, 2025
And we checked, and, yes, they seem to have done so. Bear in mind, however that the ABA is just a voluntary lawyers club with no official power. Don’t get this confused with an actual government agency such the Virginia State Bar which actually controls who has the right to practice law and regulates the professional conduct of lawyers.
As usual, Turley is on it:
President Biden seems intent on moving his administration from the odious to the absurd. He just declared that the Equal Right Amendment is ratified: "In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have…
— Jonathan Turley (@JonathanTurley) January 17, 2025
The cut off text:
‘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.’
...After attempting to remove Trump from ballots and pack the Court, many on the left simply wanted Biden to declare the ERA part of the Constitution. It is another example of using any means to achieve outcomes, even having a unilateral declaration of a rejected constitutional…
— Jonathan Turley (@JonathanTurley) January 17, 2025
The cut off text:
It is another example of using any means to achieve outcomes, even having a unilateral declaration of a rejected constitutional amendment...
...However, Biden notably stopped short of giving the left what it wanted most: an actual executive order on the ratification. He simply made a declaration and presumably left the matter up to the archivist.
— Jonathan Turley (@JonathanTurley) January 17, 2025
But, of course, we expect there to be a lawsuit very soon claiming that the Equal Rights Amendment is indeed part of the Constitution. So, at the very least, the American people will have to foot the bill for at least one frivolous suit.
Social media posts do not amend the U.S. Constitution.
— Nick Weston (@realNickWeston) January 17, 2025
Presidents can't just declare the failed Equal Rights Amendment as the law of the land.
This is illegal & adds a new layer of silliness, unseriousness & subversion of democracy to President Biden's legacy. https://t.co/GVEuMh1KIn
DEMOCRACY? With just days in office Joe Biden has decided he isn't bound by the constitution unilaterally ratifying The Equal Rights Amendment. The executive branch doesn't have a direct role in the amendment process and the 28th Amendment wasn't ratified by the deadline. pic.twitter.com/Pd2hqwW7A9
— @amuse (@amuse) January 17, 2025
Our own Calvin also shares this amazingly clueless discussion from the West Wing:
Where is Ainsley Hayes when you need her? https://t.co/VpN1iwGHFU pic.twitter.com/vSNW4gYKoj
— Grateful Calvin (@shoveitjack) January 17, 2025
When we say this discussion is clueless, we don’t just mean that the ultra-liberal liberals who wrote for the West Wing don’t understand the conservative view on this. That is to be expected. We mean that they don’t understand the difference between laws and Constitutional Amendments. For instance, equal pay in the private sector would not be affected by this proposed amendment—the proposed amendment would apply only to government action. Furthermore, when the blond woman is speaking, she doesn’t know there is an equal protection clause in the Fourteenth Amendment that applies to women. Honestly, the clip made our brain hurt.
In any case, this a breaking news story, and surely there will be more commentary as we go on.
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