WASHINGTON, DC – President Joe Biden on Friday made the bizarre proclamation that the proposed Equal Rights Amendment (ERA) to the U.S. Constitution was ratified by 38 states to become part of the U.S. Constitution, an announcement that is legally dead wrong and a disgraceful disservice to the country and the rule of law.
The Constitution requires that any amendment must be proposed by both two-thirds of the House (290) and two-thirds of the Senate (67). After that, a majority (over 50 percent) in the legislatures of three-fourths of the states (38) must vote to ratify the proposed amendment to make it part of the Constitution. All this has happened only 27 times in American history, starting with the Bill of Rights in 1791.
Congress proposed the ERA in 1972 as a top priority of the Far Left. It says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
While officially it would ensure that men and women have equal rights, legal scholars and top elected Republicans explain in great detail how it would instead abolish all sorts of vital legal distinctions and protections. These would range from blocking even the most modest restrictions on abortion through the moment of birth, to allowing men in women’s sports and locker rooms, to making it potentially illegal to have a Father’s Day and Mother’s Day on the calendar as holidays.
But as in several other proposed amendments, such as the Eighteenth Amendment (Prohibition) and the Twenty-First Amendment (repealing Prohibition), Congress’s proposed resolution included a seven-year deadline for states to ratify the ERA. And in later amendments, Congress continued to insert this deadline language in the joint resolution proposing the amendment, as Congress did in 1972 with the ERA. In its 1921 decision Dillon v. Gloss, the Supreme Court held that it is constitutional for Congress to attach such deadlines to proposed amendments.
The ERA’s seven-year deadline came and went with only 35 states ratifying the proposal. In fact, during that time five states that originally voted to ratify then voted to rescind that ratification, so it is likely that only 30 states voted to ratify before the deadline.
In 1978, Congress passed what it called an extension of the deadline by another three years, to 1982. The Office of Legal Counsel (OLC) in the U.S. Department of Justice – under the leadership of liberal Democrats during the administration of President Jimmy Carter – issued an opinion in 1977 saying that Congress could extend the deadline, but that once it expired the ERA could be brought back only by starting over with the entire amendment process.
That extension was likely unconstitutional – as OLC in 2020 under President Donald Trump later concluded, effectively repealing the 1977 opinion – especially because it was passed by only a simple majority in Congress instead of a two-thirds supermajority. But it makes no difference, because no additional states voted to ratify by 1982. The proposed ERA was finished.
Even the liberal lion who was the foremost public champion of the ERA, Justice Ruth Bader Ginsburg, wrote that the ERA proposal had failed, and she encouraged lawmakers to begin again the process of proposing the ERA anew to the states.
But liberal Democrats continued to push for ratification, arguing that the seven-year deadline was unconstitutional, regardless of what the Supreme Court had held in 1921. At their urging, three more states voted to ratify the dead proposal over the subsequent years, most recently Virginia in 2020 when the Old Dominion was under unified Democrat government. Some leftists then claimed that the ERA had been ratified by 38 states.
None of that matters to the federal government, however, because OLC’s 2020 opinion is the official interpretation of the law for the executive branch. As part of the executive branch, the National Archives cannot count those final three ratification votes and declare the ERA ratified.
And in fact, even Biden’s own OLC reaffirmed in 2022 the legal conclusion of the 2020 OLC opinion under Trump, that the ERA had not been ratified. OLC under Biden concluded that Congress had authority to insert the seven-year deadline as a condition for ratification, and that the deadline could not later be extended. Thus, the 1972 proposal for an amendment had failed to garner the requisite 38 states for ratification.
Nonetheless, on January 17, 2025, Biden declared the ERA had been ratified as part of the Constitution. Without even officially overruling OLC’s opinion or directing his OLC to issue a new opinion, the defeated outgoing president simply announced that the Supreme Law of the Land had changed.
“This is an assault on democracy and the rule of law,” Ambassador Ken Blackwell, senior fellow for human rights and constitutional governance at the Family Research Council, told Breitbart News in an exclusive reaction. “Biden’s hypocrisy knows no bounds, and now he is rejecting election results, the votes of lawmakers, and the constitutional decisions of the Supreme Court, in making this lawless declaration as he is shoved out the door by the American people after his failed presidency.”
Trump can reverse Biden’s announcement after being sworn in on January 20, though this will likely result in lawsuits as surely as Biden’s announcement would have sparked lawsuits if not reversed. If so, this matter could end up going all the way through the legal process up to the Supreme Court in the next couple years.
Biden’s false declaration marks a low point in his presidency and a sour note on which to end his four years in the White House. It is a disgraceful disservice to the nation, violating Biden’s constitutional duty to take care to faithfully execute the law.
It also likely means people should brace for whatever else Biden will try over the next three days, until Trump takes the oath of office and reclaims the power of the presidency.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Follow him on X (formerly Twitter) @kenklukowski.
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