President Joe Biden and Vice President Kamala Harris declared on Friday that the Equal Rights Amendment (ERA) is “the law of the land.” It isn’t, as Biden and Harris do not have the authority to approve constitutional amendments, their statements carry no legal weight, and the U.S. archivist tasked with certifying the amendment has repeatedly determined the ERA was not legally ratified.
Biden nonetheless tweeted that the ERA “is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.” Harris followed suit hours later, tweeting, “The Equal Rights Amendment is the 28th Amendment, and it is the law of the land.”
Congress first introduced the amendment in 1923, though it didn’t gain steam until nearly five decades later. At that point, in 1972, lawmakers passed the amendment with the required two-thirds majority, sending it to the states, 38 of which needed to ratify it on a deadline first set at 7 years and later extended to 10 years.
That deadline came and went without the necessary support, prompting activists and lawmakers to concede defeat—until three states, Nevada, Illinois, and Virginia, voted to ratify the amendment more than 30 years later, in 2017, 2018, and 2020, respectively. While those votes pushed the number of states in support to 38, they did so well after the extended ratification deadline. Lawmakers in Nebraska, Tennessee, Idaho, Kentucky, and South Dakota, meanwhile, voted to rescind their support, prompting ERA advocates like former Supreme Court justice Ruth Bader Ginsburg to say that the ratification process needed to start over.
“There’s too much controversy about a latecomer Virginia ratifying long after the deadline passed,” the justice told an audience at Georgetown Law in 2020.
“Plus, a number of states have withdrawn their ratification,” she continued. “If you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?” The Trump Justice Department issued a memo that came to the same conclusion in January 2020, and the Biden DOJ affirmed the memo two years later.
The White House’s push to nonetheless declare the amendment “law” came as activists planned a rally in front of the National Archives, the agency tasked with certifying and publishing the amendment.
Shortly after the declaration, left-wing “legal scholars” like Harvard Law School’s Laurence Tribe argued that Biden’s tweet had indeed amended the constitution in a piece for former Washington Post columnist Jennifer Rubin’s new Substack, the Contrarian. MSNBC’s Joy Reid argued that Biden’s tweet gave “the required notice to the states himself. So it’s done.” The New York Times called Biden’s move “largely a symbolic gesture” and noted that the president “has no direct role in approving amendments and his statement has no legal force by itself.”
