President Joe Biden announced Friday that Americans should consider the Equal Rights Amendment to be “the law of the land.” However, the last-minute effort to enshrine the 28th Amendment into the Constitution is unlikely to actually go anywhere due to its legal hurdles.
“It is long past time to recognize the will of the American people,” the White House statement said. “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.”
The amendment would need to be formally signed and certified by National Archivist Colleen Shogan in order to become law. According to NPR, supporters of the ERA are expected to protest in front of the National Archives office, urging Shogan’s signature. She has previously stated that she will follow the opinion of the Office of Legal Counsel, which suggests that the courts or Congress must decide the amendment’s fate.
To lift the 1982 deadline for ratification, Shogan said that further action is needed—with Republicans now controlling all three branches of government, prospects for that seem bleak.
Supporters of the ERA, however, believe that the amendment should have become law of the land after Virginia ratified it, making it three-fourths of states to pass it. Because of the obscurity of how to proceed, the amendment is expected to either face a long legal battle or to simply die at the hands of a GOP-led Congress.
A senior Biden administration official told CNN that the president is not taking executive action but is “stating an opinion that it is ratified,” which was one crucial hurdle Shogan said needed to be cleared before signing it.
“He is using his power of the presidency to make it clear that he believes—and he agrees with leading constitutional scholars and the American Bar Association—not that it should be, but it is the 28th Amendment of the Constitution,” the official said.
Sen. Kirsten Gillibrand, Democrat of New York and a leader in the ERA movement, posted on X Friday in support of ratification.
“President Biden’s official notice to the nation today follows clearly established precedent dating back to President Adams in 1798. The ERA is a valid part of our Constitution,” she said.
If the ERA is signed by Shogan, it would enshrine protections for women and trans people who will be vulnerable during Donald Trump’s second term.
But for now, the odds of it moving forward seem slim.
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