WASHINGTON, DC – President Joe Biden made a bizarre declaration Friday that the proposed Equal Rights Amendment (ERA) to the U.S. Constitution has been ratified by 38 states and will become part of the U.S. Constitution. This announcement is completely legally incorrect and a shameful insult. Against the state and the rule of law.
The Constitution requires that an amendment be proposed by both the House of Representatives (290 members) and the Senate (67 members). A majority (50% or more) of the legislatures of three-quarters of the states (38) must then vote to ratify the amendment in order for it to become part of the Constitution. Starting with the Bill of Rights in 1791, something like this has only happened 27 times in American history.
Congress proposed the ERA in 1972 as a top priority for the far left. “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”
Officially, it would ensure equal rights for men and women, but legal scholars and leading Republicans have detailed that it would instead eliminate all kinds of important legal distinctions and protections. . They range from blocking even the mildest restrictions on abortion until the moment of birth, to allowing men to enter women's sports and locker rooms, to marking Father's Day and Mother's Day as holidays on the calendar. This ranges from potentially making it illegal.
However, like several other amendments, such as the 18th Amendment (Prohibition) and the 21st Amendment (Repeal of Prohibition), the Congressional resolution included a seven-year period for states to ratify the ERA. It included a deadline. And with subsequent amendments, Congress continued to insert language regarding this deadline into joint resolutions proposing amendments, as Congress did with the ERA in 1972. In the 1921 decision Dillon vs. Grossthe Supreme Court held that it was constitutional for Congress to impose such a deadline on amendments.
The ERA's seven-year deadline has passed, and only 35 states have ratified the proposal. In fact, during this time, it appears that only 30 states voted to ratify by the deadline, as the five states that originally voted to ratify voted to revoke ratification.
In 1978, Congress passed a bill extending the deadline for an additional three years, until 1982. The U.S. Department of Justice's Office of Legal Counsel (OLC) was under the leadership of liberal Democrats during the administration of President Jimmy Carter. issued an opinion in 1977 stating that Congress could extend the deadline, but once it expires, the ERA could only be reinstated by starting the entire amendment process over again.
This extension was likely unconstitutional – later as OLC in 2020 under President Donald Trump concludedeffectively repealed the 1977 opinion, especially since it was passed by a simple majority of Congress rather than a two-thirds supermajority. However, this makes no difference since no additional states had voted in favor of ratification by 1982. The proposed ERA has ended.
Even liberal lion Justice Ruth Bader Ginsburg, the ERA's foremost public defender, wrote that the ERA proposal had failed and urged lawmakers to restart the process of proposing new ERAs to states. encouraged.
But liberal Democrats continued to press for ratification, arguing that the seven-year deadline was unconstitutional, regardless of what the Supreme Court ruled in 1921. At their urging, three more states voted to ratify this invalid proposal in the following years. Virginia in 2020, a former autonomous territory under the United Democratic Party administration. Some leftists then claimed that the ERA had been ratified by 38 states.
But none of that matters to the federal government, because OLC's 2020 opinion is the executive branch's official interpretation of the law. As part of the executive branch, the National Archives cannot count the final three ratification votes and declare the ERA ratified.
And in fact, even Biden's own O.L.C. I reconfirmed In 2022, the 2020 OLC opinion under the Trump administration reached a legal conclusion that the ERA had not been ratified. The Biden administration's OLC concluded that Congress had the authority to set a seven-year deadline as a condition of ratification, after which the deadline could not be extended. Thus, the 1972 amendment failed to attract the 38 states needed for ratification.
Nevertheless, on January 17, 2025, Biden declared the ERA ratified as part of the Constitution. Rather than formally overturning the OLC's opinion or instructing the OLC to issue a new opinion, the defeated outgoing president simply announced that the supreme law of the land had been changed.
“This is an attack on democracy and the rule of law,” Ambassador Ken Blackwell, senior fellow in human rights and constitutional governance at the Family Research Council, told Breitbart News in an exclusive response. “Biden's hypocrisy knows no bounds, and after a failed presidency and being chased out the door by the American people, he makes this lawless declaration, rejecting the election results, the votes of members of Congress, and the Supreme Court's constitutionality ruling. There is.”
Mr. Trump can rescind Mr. Biden's announcement after he is sworn into office on January 20, but it is just as likely to lead to a lawsuit as if Mr. Biden's announcement had not been rescinded. If that happens, the issue could end up making its way to the Supreme Court within the next few years.
Biden's false declaration marks a low point in his presidency and signals the bitterness with which he ends his four-year term in the White House. This is a shameful affront to the nation and violates Mr. Biden's constitutional obligation to ensure that the law is faithfully executed.
It also likely means people will need to prepare for whatever Mr. Biden will try over the next three days until Mr. Trump takes the oath of office and regains presidential powers.
Breitbart News senior legal contributor Ken Kurkowski is a lawyer who has worked in the White House and the Department of Justice. Follow him on X (formerly Twitter) @kenklukowski.
