Outgoing President Joe Biden appears to be writing his own constitutional law these days, claiming that the Equal Rights Amendment (ERA) has somehow been ratified and is now the “law of the land.” Never mind the legal hurdles or the inconvenient fact that it didn’t meet the ratification requirements decades ago. Biden’s announcement has reignited the long-running debate surrounding the ERA, which has been bouncing around the political stage almost as long as Biden himself. Passed by Congress in 1972, the amendment’s central promise of equality under the law regardless of sex has faced its share of both bipartisan support and criticism, particularly over concerns about its potential to undermine traditional gender roles and women’s protections.
The president declared that Virginia’s 2020 ratification of the ERA pushed it across the finish line, conveniently ignoring some critical legal roadblocks. In a statement dripping with self-assured certainty, Biden claimed that the amendment has “cleared all necessary hurdles” and is now part of the Constitution. He even invoked the American Bar Association and some unnamed legal scholars to bolster his argument. According to Biden, it’s “long past time” for the ERA to be recognized, and in his view, three-fourths of the states have officially done their part to enshrine it into law. Bold words, but as they say, reality begs to differ.
The Archivist of the United States and the National Archives were quick to throw cold water on Biden’s claims. According to these legal authorities, the ERA can’t just waltz into the Constitution without adhering to established procedures, which include meeting a ratification deadline that expired back in 1979. The Department of Justice’s Office of Legal Counsel (OLC) reaffirmed this position in 2020 and 2022, stating that any attempt to revive or extend the deadline would require congressional or judicial action. Court rulings at multiple levels have backed up this conclusion, leaving the ERA in a kind of constitutional limbo. In other words, Biden’s proclamation doesn’t hold water, at least not legally.
Critics argue that Biden’s ERA pronouncement is less about advancing equality and more about scoring political points in the waning days of his presidency. By framing the amendment as already ratified, Biden bypasses the messy reality of legal and procedural hurdles, opting instead for a symbolic win that plays well with certain audiences. The ERA, once a topic of bipartisan debate, is now another pawn in the broader culture war, with both sides accusing each other of bad faith. For conservatives, Biden’s unilateral declaration is yet another example of overreach from an administration that has consistently prioritized optics over substance.
As Biden prepares to leave office, his ERA stunt adds another chapter to his legacy of lofty rhetoric paired with questionable execution. While his supporters may cheer the move as a progressive victory, legal scholars and critics alike are left shaking their heads. If the ERA is to become part of the Constitution, it will require more than a presidential statement; it will demand actual legal action, something Biden seems content to leave for someone else to figure out. For now, the amendment remains a political football, and Biden’s attempt to spike it in the end zone only highlights the dysfunction of his administration’s closing act.
Today I'm affirming what I have long believed and what three-fourths of the states have ratified:
— President Biden (@POTUS) January 17, 2025
The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex. pic.twitter.com/oZtS6Q89zG
