ERA Declared Part Of Constitution To States By President Biden As One Of Last Presidential Acts (Similar To 11th Amendment): Senator Gillibrand

GILLIBRAND STATEMENT ON PRESIDENT BIDEN DECLARING THE ERA AS THE LAW OF THE LAND

Editor’s note: We previously covered Senator Gillibrand’s discussion of how President Biden could direct the archivist to publish the Equal Rights Amendment, as their boss.  The archivist has not updated the statement that was published in our previous article on this topic. Many of the arguments in that statement are not based on Article V of the Constitution which disallows any time limits or other limitations on ratification of an amendment by the states, and also does not allow for states to withdraw their ratification.  This in particular has been borne out in case law time and again. 

As the Senator mentions, this certification by a president is not without precedent.  In fact, the 11th Amendment was certified in a similar way by John Adams, where his declaration before Congress that the 11th Amendment had been ratified was sufficient to place it in the Constitution.  Since the archivist’s role is simply announcing the reality to the states, the president can do this as well.  From Congress’ website regarding the 11th Amendment: 

“Official announcement of ratification was not made until January 8, 1798, when President John Adams in a message to Congress stated that the Eleventh Amendment had been adopted by three-fourths of the states and that it may now be deemed to be a part of the Constitution.”

Washington, D.C. – U.S. Senator Kirsten Gillibrand issued the following statement regarding President Biden declaring that the Equal Rights Amendment has been ratified and is the law of the land:

“I want to praise President Biden for declaring that the Equal Rights Amendment is now a valid part of the Constitution. I am in full agreement with his argument, given that the ERA has met every requirement laid out in Article V of the Constitution. This fact, together with the president’s proclamation and the backing of numerous legal experts, makes it clear that the ERA must now be considered the law of the land. This is an important day for reproductive freedom and a historic day for equality.

Now, millions of women living in states with restrictions on their reproductive freedoms can file lawsuits to overturn these unconstitutional laws that discriminate against people based on their sex. I urge them to do so, and I know they’ll have abundant support for these efforts.

Our opponents will doubtless challenge us in court. But there is strong legal backing for our position, including from the American Bar Association, which has urged federal, state, local, territorial, and tribal governments to implement the 28th Amendment. The time for procedure is over—we must now move to implementation.”

Senator Gillibrand has been leading the effort to enshrine the Equal Rights Amendment in the Constitution. Throughout 2024, Gillibrand met with top officials in the Biden administration pushing the president to take action on the ERA. In November, she led a group of forty-six senators in a letter to President Biden, urging him to seize the initiative on the issue. Last month, Gillibrand penned a piece in the New York Times laying out the theory behind her arguments. The New York Times podcast “The Daily” published an episode last month recounting her efforts.

A full library of ERA resources, including expert analysis from top legal scholars, the ABA resolution, and amicus briefs from nearly two dozen attorneys general, can be found at gillibrand.senate.gov/eranow.

Banner Image: Senator Gillibrand ERA Now Conference. Image Credit – Senator Gillibrand 

Senator Kirsten Gillibrand