Biden threw fight for the Equal Rights Amendment into chaos on his way out the door | Opinion
With one last, desperate gasp, outgoing President Joe Biden declared Friday the long-contested Equal Rights Amendment — which would enshrine gender equality in law — should be considered a ratified addition to the U.S. Constitution.
Biden should have declared it National Ice Cream Day while he was at it, for all the same legal water it’ll hold now that the Once and Future President, Donald Trump, has taken his second oath of office.
Biden could have made this a reality at any point in the last four years, but he chose instead to do it in the last 72 hours of his presidency, knowing that it would punch with all the force of a wiffle ball bat.
The White House acknowledged on Friday that Biden’s announcement has “no immediate force of law.” A senior Biden administration official, speaking to the Associated Press on the condition of anonymity, said Biden was not directing the national archivist, Colleen Shogan, to certify the amendment, and the National Archives has officially announced it has no plans to add the ERA to the Constitution.
All former President Biden has done with this announcement is throw constitutional experts and ERA supporters into a state of confusion.
In his official statement on the White House website, Biden wrote that he has “supported the Equal Rights Amendment for more than 50 years,” and has “long been clear that no one should be discriminated against based on their sex.” If that was truly his stance, then why didn’t Biden start the necessary work from the moment he took office in 2021?
Asked why he waited until the end of his term before speaking about it, Biden said he “needed all the facts.”
But the only pertinent fact is that he didn’t want to do it before now; gender equality for 168 million American women was not a priority for for the Biden Administration.
But now, having grasped at the few, rapidly-shortening straws left to him in the waning days of his disappointing presidency, Biden turned a serious issue for millions of people into a performative punchline.
Biden can’t simply declare ratification… right?
From the beginning of his term four years ago, Biden could have used the bully pulpit of the Oval Office to push for the ratification of the ERA, yet he chose not to.
Ratification required (and still does) the support of at least 38 states. In 1972, despite there being no mention of a ratification timeline in Article V of the U.S. Constitution, the ERA was given a seven-year deadline by politicians who sought its failure for either misogynistic or political reasons. (Mind you, the states did not get to vote on this new rule.)
By the time the arbitrary deadline came for the ERA in 1978, no additional states had opted to ratify the proposed amendment, and the proposal was left to decay on Congress’ backroom shelves. The amendment has been on hold ever since, even though in 2020, Virginia became the final, necessary 38th state to ratify the ERA.
At that point then-President Trump declined a request from the National Archives to publish the ERA as an amendment, citing the previous — and unjustifiable — ratification deadline that had long passed and has never since been enforced. That was a position Shogan herself supported in a statement last December. (Shogan, by the way, is also the nation’s first female national archivist. So much for solidarity.)
Chaos among celebrations
Ratifying the ERA now could be done if the former president directed Shogan to certify it, but he refused to do that on Friday. Is it now an amendment simply because he said so? No one’s really sure.
When asked by reporters, the National Archives communications staff pointed to a December statement saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.” The incoming administration would likely make the amendment’s implementation a legal mess that could call into question the nation’s separation of powers, and will surely be contested by a future court case, citing Biden’s pronouncement.
The issue will drag through the courts for years until it presumably will land in the lap of the Trump-friendly Supreme Court — probably the very same justices who ended the protections offered to women by Roe v. Wade in 2022.
The Biden Administration was obviously not prepared to induce such a fight, despite the injection of legal oxytocin provided by the American Bar Association in October, when it announced its official support for the implementation of the ERA.
Further bolstering came from New York senator Kristin Gillibrand in a New York Times op-ed published last month. Yet even with such high-profile supporters, Biden chose again to merely perform allyship, rather than commit the necessary resources to get the job done.
“It is long past time to recognize the will of the American people,” Biden wrote in his short statement on Friday.
That’s true. But when has that ever mattered to the men in the White House?
“Ratifying” the ERA on the last day of the job, without enough time to get it properly recognized is merely the last in a long list of symbolic moves by a president and party clearly more concerned with their virtue signaling than their success.
I would rather the ERA continue to languish on dusty Senate shelves than be made an object of ridicule by men who would use it to burnish their crusty epitaphs.
