(WASHINGTON) — President Joe Biden on Friday said the Equal Right Amendment should be considered ratified, but is stopping short of taking any action on the matter in his final days in office.
“I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex,” Biden said. “We, as a nation, must affirm and protect women’s full equality once and for all.”
Biden said he agreed with the American Bar Association, which has said the amendment cleared the necessary hurdles to be added to the Constitution after Virginia in 2020 became the 38th state to ratify it even though that was well past the deadline for ratification.
“It is long past time to recognize the will of the American people,” Biden said. “In keeping with my oath and duty to 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.”
Political debate around the ERA, which was first introduced in 1923, ramped up after the Supreme Court overruled Roe v. Wade in 2022 and again after the 2024 election.
In December, more than than 120 congressional Democrats called on Biden to officially ratify the amendment before ceding power to President-elect Donald Trump.
“Solidifying your legacy on equal rights with a final action on the ERA would be a defining moment for the historic Biden-Harris administration and your presidency,” they said in their letter to Biden.
The move prompted a rare statement from the leaders of the National Archives, who contended the amendment couldn’t be certified without action from Congress or the judicial system because states did not meet the deadline established by Congress for ratification.
Lawmakers had set a seven-year deadline in 1972 for state ratification, though later extended it by an additional three years. Efforts by Democrats in recent years to remove the deadline have failed.
“Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid,” the archivists wrote. “Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment.”
Though Biden renewed his call for the ERA to become law of the land, he is not taking any action on the matter before he departs the White House on Monday, according to a senior administration official.
When pressed by reporters whether any steps would be taken in addition to Biden’s messaging, the official “he is using his power of the presidency to make it clear that he believes and he agrees with leading constitutional scholars,” but said he wasn’t taking any specific action.
When asked why the announcement came now, the official said that Biden has supported the amendment for decades but said that he felt strongly about making this push before he leaves office.
If Biden had taken any action to force ratification, it would have likely resulted in a legal fight, experts said.
“At that point, there would be further litigation,” Wilfred Codrington III, a constitutional law professor at Cardozo Law, previously told ABC News. “But really that would just become a question or a conflict between the president and Congress.”
“If Congress is not doing something to suggest that the amendment is ratified, then that’s kind of where the ball is going to end,” Codrington said. “Congress is ultimately the gatekeeper when it comes to amendments.”
The ERA is unlikely to be a priority in the incoming administration or new Congress, where Republicans control the House and Senate. Republicans have argued in the past that the amendment is unnecessary and duplicative.
“That doesn’t seem to be where the Republicans are going,” Codrington said. “But it is notable that states are also another avenue that advocates can look to.”
Codrington pointed to New York voters approving Proposition 1, a measure akin to the Equal Rights Amendment that also includes safeguards to abortion access, during the 2024 election.
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