Last Friday, in one of his parting shots, then-President Joe Biden abruptly proclaimed that the Constitution now has 28 amendments, thanks to the supposed ratification by three-fourths of state legislatures of the 1972 Equal Rights Amendment. For several procedural and substantive reasons, Biden’s attempt to conjure a 28th Amendment will prove futile.

In 1972, Congress passed a joint resolution proposing the ERA to the states. As with several previous amendments, Congress set a seven-year window for ratification by the requisite three-fourths of state legislatures. The Supreme Court has upheld the constitutionality of such deadlines. By 1979, only 35 of the required 38 states had ratified the amendment, prompting Congress and President Jimmy Carter to extend the deadline by three years. No other state ratified the amendment in that period, meaning that, in 1982, the amendment had expired by Congress’s terms. Over the last decade, however, three additional states ratified the amendment, with Virginia in 2020 purporting to become the 38th state to do so. Thus, according to Biden, the ERA passed the necessary three-fourths threshold to become law.

Anticipating that Virginia’s ratification would lead some ERA supporters to declare its validity, the Department of Justice’s Office of Legal Counsel in January 2020 issued an opinion memorandum on the matter. It concluded that “Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.” Two years later, the office (now under the Biden DOJ) reaffirmed its conclusion.

Given Congress’s express deadline, how can Biden plausibly claim the ERA is now supreme law? His supporters could tenuously point to the 27th Amendment’s circuitous ratification. In 1789, Congress proposed the amendment—requiring that changes to federal lawmakers’ compensation not take effect until after an election—but it fell short of the ratification threshold. The proposal languished in relative obscurity until 1982, when Gregory Watson, an undergraduate at UT Austin, rediscovered the amendment and lobbied several state legislatures for its ratification.

Unlike the ERA, however, Congress did not impose a deadline for the passage of what would become the 27th Amendment. Watson posited that it was still active and could become valid upon ratification by three-fourths of the states. Then, as now, questions arose about the validity of the ratification process, but the archivist of the United States didn’t buy those arguments. Following another (likely unnecessary) vote by Congress and the archivist’s certification, the amendment became part of the Constitution in May 1992. By contrast, the current archivist (a Biden appointee) has issued a statement declaring that the ERA’s failure to meet Congress’s deadline means that the amendment cannot be certified.

Further complicating Biden’s gambit are efforts by five states to rescind their ratifications in the decades since the original congressional resolution. For the outgoing president’s theory to have any validity, state ratifications must be permanent and irrevocable. The Supreme Court has never addressed whether states have the power to rescind ratification prior to reaching a three-fourths threshold, and valid arguments exist on both sides. In 1982, however, a federal district court held that Idaho’s rescission was valid. “Until the technical three-fourths has been reached,” the court concluded, “a rescission of a prior ratification is clearly a proper exercise of a state's power.” The decision wasn’t appealed because once Congress’s 1982 deadline had passed, the issue was considered moot.

The Constitution does not give the president a role in the amendment process. In his attempt to bypass Congress’s own terms and the will of several states, Biden risks setting a precedent that undermines the integrity of the Constitution and the rule of law.

Photo by Samuel Corum/Getty Images

Donate

City Journal is a publication of the Manhattan Institute for Policy Research (MI), a leading free-market think tank. Are you interested in supporting the magazine? As a 501(c)(3) nonprofit, donations in support of MI and City Journal are fully tax-deductible as provided by law (EIN #13-2912529).

Further Reading

Up Next