President Joe Biden’s assertion that the Equal Rights Amendment (ERA) is now “the law of the land” has ignited significant debate, highlighting a fundamental misunderstanding of the constitutional amendment process. Despite his proclamation, constitutional amendments cannot be enacted by presidential decree. Instead, they require a rigorous and clearly defined legislative process.
Biden’s Bold Declaration
In a post shared on X (formerly Twitter), Biden announced that the ERA had officially become part of the U.S. Constitution, marking a major milestone in the fight for gender equality. However, while the declaration drew praise from some advocates of the amendment, it also raised questions about its legality and practicality. As Biden prepares to leave office, his statement has sparked a flurry of political and legal discussions about what the announcement means—and whether it holds any weight.
How Constitutional Amendments Work
The process for amending the Constitution is detailed in Article V, which outlines two primary pathways:
- Congressional Proposal: Two-thirds of both the House and Senate must approve the amendment, after which it is sent to the states for ratification. Three-fourths (38 states) must ratify the amendment for it to become part of the Constitution.
- Constitutional Convention: Two-thirds of state legislatures can call for a convention to propose amendments, which then require ratification by three-fourths of the states.
The president’s role in this process is notably absent. While a president can advocate for or support an amendment, they lack the authority to unilaterally enact constitutional changes.
The Controversy Surrounding the ERA
The ERA, first proposed in 1923 and passed by Congress in 1972, aimed to guarantee equal legal rights regardless of sex. However, its path to ratification has been fraught with delays and disputes. The original deadline for ratification expired in 1982, with only 35 states approving the amendment—three short of the required number. In recent years, a renewed push saw Virginia become the 38th state to ratify the ERA in 2020, but the process remains contentious due to questions about the expired deadline and legal challenges.
The President’s Limited Authority
While Biden’s declaration underscores his support for gender equality, his statement carries no legal authority. The National Archivist, tasked with certifying constitutional amendments, has not officially recognized the ERA as part of the Constitution. Legal experts and senior administration officials have clarified that the archivist’s role is purely administrative and contingent upon meeting all procedural requirements.
The Supreme Court may eventually weigh in on the matter, given the ongoing disputes surrounding the ERA’s validity. Until then, Biden’s statement is seen more as a symbolic gesture than a legal reality.
The Road Ahead
The debate over the ERA reflects broader questions about the constitutional amendment process and the role of deadlines in achieving gender equality. Supporters of the amendment argue that the recent ratifications reflect the evolving will of the states, while opponents contend that procedural rules must be strictly followed to maintain the integrity of the Constitution.
As Biden’s presidency winds down, his declaration has reinvigorated discussions about the ERA and the broader fight for equal rights. However, whether this announcement leads to tangible progress remains to be seen. For now, the ERA’s status remains unresolved, highlighting the complexities of constitutional law and the limitations of executive authority.