President Biden sort of ratified the Equal Rights Amendment, maybe

Phyllis Schlafly is rolling in her grave: President Joe Biden declared on Friday that he was making the Equal Rights Amendment official. “It is long past time to recognize the will of the American people,” he said in his announcement (via the Associated Press). “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.”

Adding an amendment to the Constitution is a big, exciting move in theory, but a lot more complicated and frankly less viable in practice. The truth is, turning the ERA into law isn’t really something Biden can speak into existence, despite urging from his fellow Democrats to do so in recent months. There’s a process for certification of an amendment that hasn’t technically been followed here, which makes it unclear if Biden’s declaration has any actual power or if it’s just a symbolic show of support. 

The ERA has been languishing since the 1970s. As dramatized in the 2020 miniseries Mrs. America, the law enjoyed popular support but faced an organized campaign from anti-feminist opponents (including, perhaps most prominently, Schlafly) that ultimately sabotaged its chances. The law missed the 1982 deadline in which three-quarters of the states had to ratify it. Nevertheless, the ERA persisted in the political landscape; in 2020, Virginia ratified the amendment, becoming the last state required for that three-quarter majority. 

Even then the ERA couldn’t be made official because the ratification came, y’know, 40 years after the deadline. There was a push in Congress to retroactively lift the deadline that failed to meet the required 60-vote threshold in the Senate. And without the proper procedure, the Archivist of the United States couldn’t legally publish the ERA as the 28th Amendment. But with a second Donald Trump presidency looming ever closer, Democrats like Senator Kristen Gillibrand encouraged Biden to ignore the archivists and certify the amendment himself, citing abortion protections as one of the reasons the ERA should be made law. Even if a Republican administration came in and tried to undo it, at least it would take a lot of time and resources to do so. 

The problem is, Biden didn’t actually direct the archivist to certify the law, an insider told the AP. And the National Archive doesn’t plan on doing the certification, as “the underlying legal and procedural issues have not changed.” Much as Biden may “affirm” the ERA, there’s not actually any action behind it, so… there won’t even be anything for a Republican administration to undo. Somewhat similarly, he gestured at reigning in tech oligarchy in his farewell address but ultimately chose not to enforce the TikTok ban he signed into law, leaving behind another ambiguous decision for the next admin to figure out if it actually means anything. 

TL;DR: The ERA seems to be in the same position it has been for half a century now. Guess Phyllis Schlafly can rest easy after all.