Mr. President, Please Publish the ERA.

We ask President Biden to honor the women of the United States by assuring us, our daughters, and granddaughters, and all their daughters after them, that we have equal rights guaranteed by our Constitution, by simply directing the U.S. Archivist to publish the Equal Rights Amendment as the 28th Amendment.  

The Equal Rights Amendment (“ERA”) was ratified by Virginia, the 38th and last state required for the ERA to become the 28th Amendment almost one year ago on January 27, 2020. 

In 2012, the U.S. Archivist, David Ferriero, told New York Rep. Carolyn Maloney, a fierce advocate for the ERA, in writing that, once 38 states had ratified the ERA, he would publish the Amendment in the U.S. Constitution, which is his duty under law, per 1 U.S.C. §106b.  

This was great news to advocates for the ERA, who began the difficult work of convincing three more states to ratify it. Nevada and Illinois ratified it in 2017 and 2018, respectively. 

When it looked as if Virginia was about to ratify, Trump and Barr’s Department of Justice released a legal opinion to block the ERA from being added to the Constitution telling the U.S. Archivist that he was not allowed to publish the ERA if a 38th state ratified it. 

Trump blocked the ERA with the Office of Legal Counsel memorandum (“OLC Opinion”), saying that because of the deadline put on the ERA when it was sent to the states, that it died in 1982.  But that isn’t correct. The deadline was not put in the language, the text, of the actual amendment. So, it is and was unconstitutional. 

That’s why two federal lawsuits were filed last year, and are still ongoing, asking the Courts to order the Archivist to publish the ERA — because the deadline is null and void.  To read the legal reasons that the deadline is unconstitutional, see Equal Means Equal’s brief here (pages 8-16).

Thus, all President Biden, a longtime supporter of the ERA, has to do is tell the Archivist to publish the ERA in the Constitution, hopefully by the one-year anniversary of the ratification, on January 27th.  He chose then Senator Kamala Harris to be our first woman Vice President, and they included the ERA in their agenda for women. 

Watch the Fairfax County, Virginia, Commission for Women asking President Biden to tell the Archivist to publish the ERA on January 27th, 2021.