In a controversial move, President Joe Biden declared the Equal Rights Amendment (ERA) ratified as the 28th Amendment to the U.S. Constitution, sparking a wave of criticism from legal experts.
Fox News reported that legal experts criticize President Biden's declaration of the ERA as the 28th Amendment due to procedural and timing concerns. The push for the Equal Rights Amendment began in 1972, aiming to guarantee equal legal rights for all American citizens regardless of sex.
The amendment was initially given a ratification deadline by Congress until 1979, which was later extended to 1982.
Despite the expiration of this deadline, Virginia became the 38th and final state to ratify the ERA in 2020. This marked a significant step toward what many supporters hoped would be the formal adoption of the amendment.
However, the National Archivist did not certify the amendment, adhering to a Department of Justice Office of Legal Counsel opinion from 2020. This opinion reinforced the view that the ERA's ratification deadline had expired and remained enforceable, thus blocking formal recognition.
President Biden chose to make his declaration despite well-known procedural barriers and prior court decisions that have upheld the ratification deadline, preventing the amendment from being officially published.
"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," said Biden.
Legal scholars and critics, however, swiftly challenged President Biden's assertion. Andrew McCarthy, a noted legal commentator, described Biden's move as "cynical and irrelevant," highlighting the lack of constitutional authority the president holds in the amendment process.
"If he believed what he is saying, he would’ve said it when his administration started, not when he is on his way out the door as a failed, one-term president," McCarthy commented further, indicating that the timing of Biden's announcement could have political motivations.
Jonathan Turley, another respected legal scholar, chimed in with sharp criticism, labeling the president's declaration "an embarrassingly pandering moment" aimed at appeasing extreme factions within his party.
"This was based on a long-rejected and frankly ridiculous foundation," Turley added, noting that President Biden notably did not issue an executive order, thus leaving the ultimate decision up to the archivist.
Responding to questions about the timing of his announcement, President Biden explained, "Because I had to get all of the facts and I contacted every constitutional scholar in the world to make sure it was the right decision." Despite these claims, critics argue that the gesture was largely symbolic.
"Everybody knows this, including Biden. That is why the national archivist has not published it, nor has Biden had the temerity to try to order that that be done," McCarthy pointed out, emphasizing the limited impact of Biden's declaration.
"This is just pandering. It will have no lasting significance," McCarthy concluded, reflecting a sentiment echoed by several legal analysts.
The aftermath of President Biden's declaration has catalyzed a broader debate on the constitutional mechanisms surrounding the amendment process and the symbolic versus legal value of such presidential declarations.
With the legal standing of the ERA's ratification highly questionable and the subject of ongoing legal scrutiny, the path forward remains complex and ensnared in procedural and legal challenges.