President Biden Declares Equal Rights Amendment Ratified, Igniting Legal Controversy

President Joe Biden has sparked a political and legal firestorm with his recent announcement declaring the Equal Rights Amendment (ERA) as ratified and officially part of the U.S. Constitution. The announcement, made late in his term, has drawn widespread criticism from legal experts who argue that Biden’s declaration is symbolic at best and legally meaningless at worst.

In a statement, Biden said, “It is long past time to recognize the will of the American people. In keeping with my oath and duty to the Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”

While his message appeals to advocates of gender equality, critics argue that his announcement holds no legal significance, as the ERA’s original ratification deadline expired decades ago.

The History and Purpose of the ERA

The ERA, first introduced in 1923, was designed to guarantee equal rights under the law regardless of sex. It gained momentum in the 1960s and 1970s during the women’s rights movement. Congress approved the amendment in 1972 and set a seven-year deadline for three-fourths of state legislatures (38 states) to ratify it.

By 1979, only 35 states had ratified the ERA, falling three states short of the required number. Congress extended the deadline to 1982, but no additional states approved the amendment during that time. Decades later, renewed efforts led Virginia to become the 38th state to ratify the ERA in 2020, reigniting the debate over its validity.

Legal Challenges to the ERA

Despite Virginia’s ratification, significant legal obstacles remain. The original deadlines set by Congress in 1979 and 1982 have long expired, and experts argue that the amendment cannot be added to the Constitution without restarting the process.

The National Archives and Records Administration (NARA), responsible for certifying constitutional amendments, has declined to recognize the ERA as valid. The Office of Legal Counsel (OLC) at the Department of Justice issued a 2020 opinion affirming that the ratification deadline was legally enforceable. Both district and circuit courts have upheld this position, stating that any changes to the deadline or ratification process must come from Congress or the courts.

Biden Faces Backlash From Legal Experts

President Biden’s announcement has faced intense scrutiny from legal scholars and political commentators. Former Assistant U.S. Attorney Andrew McCarthy called the move “cynical and irrelevant,” accusing Biden of making a political statement without any legal basis.

"If he believed what he is saying, he would’ve said it when his administration started, not when he is on his way out as a failed, one-term president," McCarthy said. He also emphasized that the president has no formal role in the constitutional amendment process, making Biden’s declaration legally meaningless.

Historical Context of the ERA

The ERA was first introduced in 1923, aiming to ensure that rights under the law would not be denied or abridged on account of sex. It gained significant traction during the 1970s women's rights movement. In 1972, Congress approved the amendment and set a seven-year deadline for ratification by three-fourths (38) of the state legislatures. By 1979, only 35 states had ratified the amendment, leading Congress to extend the deadline to 1982. Despite these efforts, the ERA did not achieve the necessary state ratifications within the extended timeframe.

Legal Expert Reactions

The President's declaration has been met with skepticism from various legal experts. Former Assistant U.S. Attorney Andrew McCarthy described the move as "cynical and irrelevant," noting that the President lacks a constitutional role in the amendment process. He argued that such a declaration, especially at the end of a presidential term, carries no legal weight.

On January 17, 2025, President Biden issued a statement asserting that the ERA should be considered ratified, emphasizing the importance of recognizing equal rights regardless of sex. He stated, "It is long past time to recognize the will of the American people... I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land."