Proposed Substitute Joint Resolution to Validate ERA as the 28th Amendment
Those familiar with this blog know that I am an attorney who represents 86 Amici Curiae in the Equal Means Equal v. Ferriero case, now in the 1st Circuit Court of Appeals. See the brief here.
I was immensely disheartened that the DC District Court dismissed Virginia v. Ferriero. I found the DC District Court’s March 5, 2021 Opinion to be wrongly decided, particularly in finding the Plaintiffs had no standing, and then without subject matter jurisdiction, proceeding to give substantive and devastating rulings on the Archivist having discretion whether to publish and the deadline in the Preamble being valid, the latter without consideration of the 10th Amendment states’ rights violation.
In response to the DC Opinion, I again reviewed these Supreme Court cases: Dillon v. Gloss (1921) and Coleman v. Miller (1939). Having been a Catholic School girl, I had an epiphany.
The key to having Congress validate the ERA as the 28th Amendment and having it stick is to write the Resolution in such a way that it is hopefully deemed a non-justiciable POLITICAL QUESTION, so the Courts will not touch it.
Thus, I wrote a stronger proposed Joint Resolution for Congress to substitute for SJ Res 1, the latter of which uses the exact same language from the 2019 version. The House adopted the identical HJ Res 17 on March 17, 2021, but I worry that it is not strong enough to achieve the goal to make the ERA part of the Constitution and to keep it safe from Court intervention, especially because it was written before Virginia, the 38th state, ratified the ERA.
I hope the Senate sponsors and members of the Senate Judiciary Committee will reconsider the language and at least debate whether my strategy would have a better chance of achieving this goal. I also think hearings should be held because that will strengthen the argument later that it is a political question.
I am worried about the current language of the Joint Resolutions for the following legal reasons:
First, it does not acknowledge that the #ERA was ratified by Virginia, the 38th and final state, on January 27, 2020, on which date it became the 28th Amendment. Congress has the power to make the final declaration of what is or is not a valid amendment. So, that is what Congress needs to do. Not just remove the deadline because removing it, presumes it is or was valid when it was set out in 1972. The way to invalidate the deadline is to look at the time it took for the ERA to become ratified (1972-2020), state that that was a reasonable time for the ERA to be ratified, and declare that the deadline of 7, then 3 more, years did not provide a reasonable amount of time for the States to ratify; therefore, it was never valid.
Secondly, it also does not state that Congress considered a wide array of facts, usually done by holding hearings to learn why the ERA is still needed (you can read our Amici Curiae brief to see some examples), how it will help women be equal, and what changed in our society to make the last three states begin to ratify it (for example, in January 2017, we had the biggest women’s rights march in history, all over our country, all on one day, and there were marches around the world in solidarity), which is what will make it a political question by the Courts, which means the Courts cannot touch it (that it’s not the type of thing a Court can or should determine. Instead, that it is the province of Congress).
Excuse me, while I catch you up: Just before it looked like Virginia was about to ratify the ERA in January of 2020, Trump’s henchman, AG Bill Barr had the Justice Department’s Office of Legal Counsel (“OLC”) write a legal opinion telling the U.S. Archivist he could not publish the ERA in the Constitution, which by law he was supposed to automatically do, because the deadline (in the Preamble) was valid, so the ratifications of Arizona (2017), Illinois (2018), and Virginia (2020) were of no effect. To his credit, the Archivist stated that if a Court ordered him to publish the ERA, he would. Two federal lawsuits were filed to obtain such an order. The first by women and girls, Equal Means Equal, the goal of which is to get the ERA in the Constitution, a high school group with the same goal, The Yellow Roses, and an individual woman who had been a victim of a violent assault because she was a woman, and the second case, in DC, with the last three ratifying states suing the Archivist.
My proposed Resolution addresses those issues above and the following:
Congress must declare that the political principle (the reason the amendment was written) maintained its vitality from the date it was introduced until the date the amendment was ratified. That determination is also a political question.
Further, Congress needs to declare that the ERA is a valid amendment now and shall be known as the 28th Amendment and tell the Archivist to publish it. (Not use the prospective 2019 language, because that is opening up more of an opportunity for an injunction because Congress is not declaring this specific ratified amendment to be valid).
I have been asked whether I thought the Supreme Court would strike down the ERA if Congress used this proposed Resolution. In response, I said, a Court declaring something to be a political question is a conservative principle because it shows restraint and respect for our three branches of government, so with a majority of conservatives on the Supreme Court, I think it will hold.
Click here for a clean copy of the proposed Resolution.
Women need and deserve to have the ERA in the Constitution. We are so close. Women have waited and fought over 200 years to have equal rights. We need to use this opportunity in the smartest way, so we do not squander it. I want my five granddaughters to have equal rights. Carpe diem.
There are two other critical issues for the Department of Justice that I hope the Senators or anyone else will bring up with the DOJ quickly.
First, the DOJ needs to stop fighting against the ERA in the two federal lawsuits. The DOJ filed their opposition brief after President Biden’s inauguration in the Equal Means Equal (“EME”) case in the 1st Circuit Court of Appeals, and the DOJ just filed a copy of the DC Opinion in that case as well. If Pres. Biden actually supports Women’s Rights he should not have his DOJ fighting against the ERA. [The DOJ already pulled its opposition in the trans students case].
Please bring this to the attention of AG Merrick Garland. Perhaps the Senators could write a letter to him. It will be worse for the ERA if the 1st Circuit rules against EME. The oral argument is set for May 5th, 2021. THE DOJ NEEDS TO SETTLE THIS CASE AND TELL THE ARCHIVIST TO PUBLISH THE ERA NOW!! #ERANow
Also, I think that, since the substantive parts of the DC Opinion were done without subject matter jurisdiction, there is an opening for the DOJ to do a new Office of Legal Counsel (“OLC”) opinion — or to just withdraw it as wrongly decided — to get the Archivist to publish. I have attached a brief memo about my theory for a new OLC Opinion here. If you find it efficacious, I hope you will get it to AG Merrick Garland, the Gender Policy Council, White House Counsel, Chief of Staff Ron Klain, the Vice President, and the President.
If the Archivist publishes before Congress has adopted the Joint Resolution, I still think Congress needs to do a validation Resolution with this same proposed language (except the last sentence) like Congress did in 1992 with the 27th Amendment.