Outgoing President Joe Biden seems to have taken a creative approach to constitutional law, recently declaring that the Equal Rights Amendment (ERA) has been ratified and is now “the law of the land.” This bold statement conveniently overlooks some significant legal obstacles and the minor detail that the ERA failed to meet the ratification requirements decades ago. Originally passed by Congress in 1972, the amendment aimed to guarantee equality under the law regardless of sex. While it garnered bipartisan support over the years, it has also faced pushback over fears that it could dismantle traditional gender roles and undermine specific protections for women.
Biden’s claim that Virginia’s 2020 ratification was the final piece needed to enshrine the ERA into the Constitution is, at best, optimistic and, at worst, a deliberate misrepresentation. In a statement packed with self-assured rhetoric, Biden insisted that the amendment had “cleared all necessary hurdles,” citing endorsements from the American Bar Association and unnamed legal scholars. According to the president, three-fourths of the states have ratified the ERA, and it’s high time the country recognized it as constitutional law. While the sentiment may resonate with certain audiences, the legal reality is far more complicated—and inconvenient for Biden’s narrative.
The Archivist of the United States and the National Archives wasted no time clarifying the situation. Their stance, backed by rulings from the Department of Justice’s Office of Legal Counsel (OLC) and multiple court decisions, is that the ERA’s ratification deadline expired in 1979. Without congressional or judicial action to extend or remove the deadline, the amendment remains in limbo. The OLC reaffirmed this position in 2020 and 2022, making it clear that Biden’s proclamation lacks the legal grounding to bring the ERA into the Constitution. It’s a harsh reality check for those hoping to see the amendment finally ratified through executive fiat.
Critics argue that Biden’s last-minute push for the ERA is more about political theater than genuine progress. By declaring the amendment ratified despite the legal roadblocks, Biden sidesteps the procedural realities in favor of a symbolic victory that plays well with his base. What was once a serious topic of bipartisan discussion has now become another flashpoint in the culture wars, with Biden’s move being seen by many as a calculated appeal to progressive activists. For conservatives, this is yet another instance of an administration prioritizing feel-good rhetoric over meaningful action, leaving the heavy lifting for someone else.
As Biden’s presidency winds down, his handling of the ERA serves as a microcosm of his broader leadership style: grand promises paired with little regard for legal or procedural hurdles. While his supporters might applaud his boldness, others see it as emblematic of an administration that consistently values optics over substance. If the ERA is to have a legitimate path forward, it will require more than a presidential statement. It will need congressional debate, judicial review, and, most importantly, adherence to constitutional processes—none of which Biden seems eager to address. For now, the ERA remains a legal and political question mark, and Biden’s proclamation does little to change that reality.
Today I'm affirming what I have long believed and what three-fourths of the states have ratified:
— President Biden (@POTUS) January 17, 2025
The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex. pic.twitter.com/oZtS6Q89zG
