In a rare joint statement, the archivist and deputy archivist of the United States said Tuesday that the 1970s-era Equal Rights Amendment cannot be certified without further action by Congress or the courts, as Democrats press President Joe Biden to act unilaterally on its ratification before he leaves office next month.
The five-decade push to amend the Constitution to prohibit discrimination based on sex remains stalled. Congress sent the amendment, which guarantees men and women equal rights under the law, to the states in 1972 and gave states seven years to ratify it, later extending the deadline to 1982. But the amendment wasn't ratified by the required three-quarters of states before the deadline.
Four years ago, however, Virginia lawmakers voted to ratify the amendment, becoming the 38th and final state needed — albeit nearly four decades after the congressionally mandated deadline for ratification.
More than 120 House Democrats, led by Representatives Cori Bush and Ayanna Pressley, called on Biden on Sunday to direct the archivist to certify and publish the amendment despite the missed deadline.
"Solidifying your legacy on equal rights with a final action on the ERA would be a defining moment for the historic Biden-Harris administration and your presidency," they wrote to Biden.
But the archivist, Colleen Shogan, and her deputy, William J. Bosanko, who are responsible for certifying and publishing new amendments once they meet the required ratification threshold, say neither they nor Biden can act without Congress or the courts lifting the deadline.
"In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable," they said in a joint statement. "The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid."
They added: "Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate."
Congress tried last year in the latest push to lift the deadline to allow for the amendment's ratification, but the measure didn't reach the required 60-vote threshold in the Senate.
Sen. Kirsten Gillibrand, who is leading the effort among Democrats in the Senate, insisted in a statement that the archivist's analysis was flawed and said she was "wrongfully inserting herself into a clear constitutional process, despite the fact that her role is purely ministerial."
She encouraged Biden to ignore the OLC memo and certify the ERA anyway. "OLC memos are advisory in nature and can easily be disregarded by the current administration," she said.
The Biden White House has been discussing the possibility with lawmakers and in internal meetings, according to a person familiar with the matter, but believes the best path forward is for Congress to lift the deadline and thereby eliminate the risk of a legal challenge to the amendment.
White House spokesperson Kelly Scully said: "President Biden has been clear that he wants to see the Equal Rights Amendment definitively enshrined in the Constitution."
"Senior administration officials have and will continue to engage with key Congressional leaders and other stakeholders on this issue in the weeks ahead," she added. "It is long past time that we recognize the clear will of the American people."
