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Biden Declares the Equal Rights Amendment as the Law of the Land: A legal Perspective

Image Highlights from the Rally

Caption: Demonstrators urging the ratification of the Equal Rights Amendment during a rally in Washington, D.C. on September 28, 2022. Credit: Jose Luis Magana/AP

On March 31, 2023, President Biden made headlines when he declared his belief that the Equal Rights Amendment (ERA) is now "the law of the land." Although this declaration does not have any formal legal standing, it was met with enthusiastic applause from supporters at a rally organized in front of the National Archives. The speech was celebrated by advocates as a significant moment in the long history of the movement to secure gender equality.

The Need for Formal Certification

Despite the presidential declaration, the legal standing of the ERA remains precarious. For the amendment to become effective, it must be formally published and certified by the National Archives. Colleen Shogan, the national archivist, holds this responsibility, yet it is unclear when this will happen, particularly given the complexities surrounding the certification process and existing legal precedents.

The executive branch traditionally does not interfere directly in the constitutional amendment process, and the White House has explicitly ruled out any direct orders from President Biden to Shogan regarding the ERA certification. According to administration officials, the archivist’s role is largely “ministerial,” which implies the duty to publish the amendment once it has been ratified.

In light of these developments, resolving the legal intricacies surrounding the ERA’s certification could be greatly aided by AI-driven legal tools. The AI legalese decoder is particularly well-suited for breaking down complex legal language and helping individuals and organizations understand the implications of legal deliberations. By analyzing case histories, providing clarity on procedural norms, and offering educated predictions regarding potential legal outcomes, this AI tool can empower activists and lawmakers to better navigate the landscape around the ERA.

The Legality of the Amendment Process

In response to an inquiry from NPR about any potential actions the archivist might take regarding the ERA, the National Archives referred to a previous official statement made in December. This statement articulated that the ERA cannot currently be certified due to established legal precedent and various procedural decisions. These decisions date back to prior uncertainties surrounding the amendment, including its ratification deadline which came and went without sufficient legislative approvals.

While the 1970s-era ERA aimed to guarantee equal rights under the law for both genders, the ratification process faced numerous hurdles, ultimately missing a deadline set by Congress. Proponents of the amendment have continued to argue that this deadline holds no validity as it was only located in the preamble of the amendment rather than its main text.

The Political Nuances of Biden’s Declaration

President Biden shared his belief that the ERA was effectively ratified when Virginia took action five years ago, yet he did not clarify why he waited until the twilight of his presidency to act. During a speech at the U.S. Conference of Mayors, he confidently proclaimed the amendment to be the 28th Amendment to the Constitution.

Democratic lawmakers, including Senator Kirsten Gillibrand, have lent their support to Biden’s statements. They assert that codifying the ERA is crucial in safeguarding reproductive rights, forecasting that the matter will eventually reach the Supreme Court for deliberation.

legal Controversies Surrounding the ERA

Historically, the ERA has been embroiled in legal disputes, especially following the national archivist’s refusal to certify the amendment in 2020 based on a Justice Department opinion asserting that the ERA’s ratification had expired after a miss on the 1982 deadline. This sentiment was reaffirmed by the Office of legal Counsel in 2022, complicating prospects for the ERA.

Shogan, the newly appointed archivist and the first woman to hold the role, stated during her confirmation hearings in 2022 that the Biden administration had not consulted her about her views on ERA ratification prior to her nomination. Furthermore, she is expected to uphold the Office of legal Counsel’s opinion, making it clear that Congress and the courts ultimately hold the fate of the amendment.

The Impact of Biden’s Timing and the Way Forward

Experts, such as Martha Davis, a law professor at Northeastern University, have noted that while Biden’s statement adds new momentum to the push for the ERA, it does not resolve the surrounding controversy. Davis suggests that earlier action by Biden could have allowed for legal measures to be implemented more effectively, promoting potential injunctive relief to urge the archivist to act in accordance with the president’s declaration.

About 40 supporters of the ERA rallied outside the National Archives following Biden’s announcement, expressing both hope and frustration. Many wished Biden had taken steps earlier in his term to consolidate the ERA’s position within constitutional law.

Ownership of the ERA by the current administration does not guarantee a successful outcome, as the specter of opposing administrations looms.

Conclusion: Navigating the legal Labyrinth with AI Tools

In summary, while President Biden’s declaration positions the Equal Rights Amendment as a key issue in contemporary discussions on gender equality, numerous legal hurdles remain. Understanding the intricacies of the situation can be complex, but tools such as the AI legalese decoder can demystify the legal language and clarify the implications of past decisions and actions. As advocates persist in their fight for the ratification of the ERA, leveraging technology could play a crucial role in shaping legislative and judicial strategies moving forward.

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