Equal Rights Amendment: Refusal Of Archivist To Certify Previously Ratified Amendment Goes Against Precedent – Senator Gillibrand
Equal Rights Amendment: Refusal Of Archivist To Certify Previously Ratified Amendment Goes Against Precedent, Based On Inaccurate Conclusions
Editor’s note:We’ve previously covered the American Bar Association’s support for certification of the Equal Rights Amendment to make it part of the Constitution. We’ve also shared the discussion by ProPublica about the real-life increases in maternal deaths across the country, particularly focused in states that have recently banned abortion.
Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko released the following statement on the Equal Rights Amendment and the constitutional responsibilities for administering the ratification process (to which Senator Gillibrand responds below):
“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.
“The role of the Archivist of the United States is to follow the law as it stands, ensuring the integrity of our nation’s governing institutions. Personal opinion or beliefs are not relevant; as the leaders of the National Archives, we support established legal processes and decisions.
“We will continue to serve with transparency and integrity as we move forward in addressing this and all matters related to our Constitution.”
GILLIBRAND STATEMENT IN RESPONSE TO NATIONAL ARCHIVIST’S REFUSAL TO CERTIFY THE EQUAL RIGHTS AMENDMENT
“The archivist is correct that she has a responsibility to uphold the law. Unfortunately, by refusing to certify the ERA, she is wrongfully inserting herself into a clear constitutional process, despite the fact that her role is purely ministerial.
The archivist’s arguments on the ratification process for the Equal Rights Amendment are deeply flawed in multiple ways.
First, the 2022 Office of Legal Counsel memo did not affirm that a deadline was valid and enforceable; rather, it said that the deadline remained an open legal question. Furthermore, it should be obvious that the Trump administration’s 2020 OLC memo was a political document, given its departure from prior OLC opinions and its problematic reliance on superseded and invalid precedent. Clearly, it was issued as an attempt to kill the ERA after it had met the necessary requirements for certification. Finally, the simple truth is that OLC memos are advisory in nature and can easily be disregarded by the current administration.
Second, the statement mischaracterizes the district and circuit court decisions, which did not affirm that the ratification deadlines set by Congress were valid. In reality, the district court found that the parties lacked standing, and the circuit court found that the standard for injunctive relief was not met.
Third, there is no shortage of precedent demonstrating that so-called deadlines in the preamble of legislation—not in the text itself—are inoperative. In fact, the Constitution does not grant Congress the power to set ratification deadlines for amendments at all, nor does it include any timeliness requirement of its own. A previous archivist certified and published an amendment written more than two hundred years before its ratification.
Our argument has strong support from legal experts, twenty-three attorneys general, and the American Bar Association. I continue to urge President Biden to direct the archivist to certify and publish the ERA and enshrine equality for all in the Constitution.”
Following is Senator Gillibrand’s Op-Ed in the New York Times prior to the preceding statement:
Make the Equal Rights Amendment part of the Constitution
Kirsten Gillibrand | December 15, 2024
With Republicans set to take unified control of government, Americans are facing the further degradation of reproductive freedom.
Fortunately, Mr. Biden has the power to enshrine reproductive rights in the Constitution right now. He can direct the national archivist to certify and publish the Equal Rights Amendment. This would mean that the amendment has been officially ratified and that the archivist has declared it part of the Constitution.
The amendment is concise: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The amendment would make discrimination on the basis of sex — like restrictions on reproductive care that single out women — unconstitutional, including, in my view, abortion. We’ve seen the potential of this approach; courts in several states with E.R.A.s have cited those amendments in striking down state prohibitions on Medicaid-funded abortion care.
The E.R.A. has met the requirements for certification — it passed two-thirds of Congress in 1972 and was ratified by three-quarters of the states as of 2020. Only a flawed Trump Justice Department memo prevented its certification as a constitutional amendment. The memo contended that the E.R.A. is no longer valid because it failed to meet the seven-year deadline that Congress initially set and then, when the ratification effort fell three states short, extended until 1982.
But the deadline was meaningless. The Constitution says nothing about a deadline for amending it.
No doubt this would be argued in the courts; right-wing legal challenges would follow the archivist’s certification and publication. But there is strong legal backing for our position. Mr. Biden should act now to protect reproductive rights and make the E.R.A. the law of the land.
Kirsten Gillibrand, a Democrat, is a United States senator representing New York.
Rosie the Riveter. Image Credit – PublicDomainPictures
Banner Image: Rosie the Riveter. Image Credit – PublicDomainPictures
I am a proud woman and I want the ERA now!
Gen Alpha here. My Moms is typing for me.
You elders really let things slip. Women you were more concerned with dating than your rights.
Shame on you. Don’t worry. We will do better.
Yours truly,
Denise
WOMANPOWER