As President Joe Biden approaches the twilight of his presidency, he has chosen a peculiar and legally questionable hill to stand on: the resurrection of the long-dead Equal Rights Amendment (ERA). On January 17th, Biden issued a statement proclaiming the ERA as the “28th Amendment” to the Constitution, despite its ratification having expired 43 years ago. This move, accompanied by the assertion that the amendment is now the “law of the land,” has ignited a firestorm of debate and criticism.

For a president who has spent years emphasizing the importance of the “rule of law,” this declaration appears not only frivolous but also an alarming departure from constitutional norms. Critics argue it demonstrates either a fundamental misunderstanding of constitutional processes or a deliberate attempt to undermine them for political gain.

The ERA was designed to ensure that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” At first glance, this language may seem harmless, even commendable. However, the implications of the amendment-if it were ever to be enacted-extend far beyond its surface appeal.

Proponents of the ERA have long argued that it would solidify gender equality in areas such as pay, education, and employment. Opponents, however, warn that its sweeping language could erase necessary and reasonable distinctions between men and women in law and policy. For instance, the ERA could dismantle protections for pregnant and nursing mothers in the workplace, eliminate sex-segregated spaces such as bathrooms and locker rooms, and even challenge the exemption of women from the military draft.

One of the most controversial potential consequences of the ERA would be its use to enshrine abortion rights in the Constitution. Advocates argue that denying abortion access constitutes sex discrimination because only women face the physical and societal burdens of pregnancy. This interpretation could lead to a nationwide mandate for abortion rights, overriding state laws and voter preferences.

Moreover, thanks to the Supreme Court’s decision in Bostock v. Clayton County (2020), which expanded the interpretation of “sex discrimination” to include “gender identity,” the ERA could further entrench policies forcing the integration of biological males into women’s sports, shelters, and other female-only spaces. The judicial precedent set by Bostock ensures that the ERA’s adoption would have far-reaching and contentious implications.

The ERA’s journey to constitutional purgatory began in 1972 when Congress passed the amendment and sent it to the states for ratification. At the time, Congress imposed a seven-year deadline for the requisite three-fourths of state legislatures (38 states) to ratify the amendment. As the deadline approached, only 35 states had ratified the ERA. In a desperate bid to save it, Congress extended the deadline to 1982, but even then, the amendment fell short.

After its failure, the ERA lay dormant for decades. However, in 2017, Nevada decided to “dust off” the expired amendment and ratify it retroactively. Illinois and Virginia followed suit, bringing the total number of ratifying states to 38-but decades too late to meet the congressional deadline. Legal scholars and constitutional experts have repeatedly affirmed that the ERA’s ratification deadline was valid and enforceable, rendering these latecomer actions symbolic at best. Nevertheless, activists have continued to push for recognition of the ERA, hoping to bypass procedural hurdles through sheer political will.

Enter President Biden. In a written statement on January 17th, Biden asserted that the ERA is now part of the Constitution, claiming that “three-fourths of the states have ratified” the amendment. This declaration, however, flies in the face of established legal precedent and the opinion of the Department of Justice. The Office of Legal Counsel (OLC) has twice affirmed-in 2020 and 2022-that the ERA’s ratification deadline is valid and enforceable. Without a new congressional resolution restarting the process, the ERA cannot legally become part of the Constitution.

Even the National Archives, the federal agency responsible for certifying constitutional amendments, has refused to declare the ERA ratified. In 2020, after Virginia became the 38th state to “ratify” the expired amendment, the Archives declined to act, citing the OLC’s guidance. A subsequent lawsuit by ERA proponents was dismissed in federal court, reaffirming that the amendment’s ratification period had expired decades ago.

Despite these legal realities, Biden’s statement appears to be a symbolic nod to his progressive base, many of whom continue to advocate for the ERA’s recognition. The White House even admitted that the declaration “won’t have the force of law,” further underscoring its futility.

The implications of Biden’s declaration extend beyond the ERA itself. By attempting to bypass established constitutional processes, the president sets a dangerous precedent. The US Constitution is clear about the process for amendments: they must be proposed by a two-thirds majority in Congress and ratified by three-fourths of the states within any stipulated timeframe. If a president can unilaterally declare an amendment ratified despite failing to meet these criteria, it undermines the rule of law and weakens the constitutional framework.

This move is particularly jarring given Biden’s repeated emphasis on respecting democratic norms and institutions. Critics argue that his declaration is not only legally baseless but also hypocritical, revealing a willingness to bend the rules when it suits his political agenda.

Biden’s announcement about the ERA raises questions about his motivations. Is this a genuine, albeit misguided, attempt to champion gender equality? Or is it a cynical political maneuver designed to rally progressive voters ahead of the 2024 elections? Either way, the statement accomplishes little beyond highlighting the president’s departure from constitutional norms.

As Biden’s presidency draws to a close, his focus on the ERA-an amendment long deemed dead-appears to be a Hail Mary attempt to leave a progressive legacy. However, instead of advancing meaningful change, his actions risk further polarizing the nation and eroding public trust in the rule of law.

The Equal Rights Amendment has been a contentious issue for nearly a century, and its recent revival-despite its expired ratification-has reignited debates about gender equality and constitutional integrity. President Biden’s decision to declare the ERA “law of the land” without legal backing is a troubling overreach that undermines democratic principles. While the ERA’s goals may be laudable to some, the means of achieving them must respect the constitutional framework. Biden’s bizarre gambit not only fails to advance the ERA but also risks tarnishing his presidency with a legacy of legal frivolity.

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