US Equal Rights Amendment Resurrection
Questions to our esteemed American lawyers. There is a report that up to 120 Democratic Congresspeople are calling on Joe Biden to ratify the Equal Rights Amendment. Basically, the amendment was designed to insure equal rights and protections between the sexes. At the time it was passed in congress, we were only talking about male and female. Now, that dichotomy has expanded to include LBGTQA gender issues too.
I think Virginia was the 38th state to approve the amendment, actually during the first Trump administration, but Trump refused to recognize the approval since the resolution for the amendment had a sundown clause that said it needed to be approved by the necessary states before a certain date. To my knowledge, this was the only resolution for approval of an amendment to have such a sundown clause ever.
A couple of years ago, Biden said he supported the ERA but did nothing more with it. Now the congresspeople are saying he needs to step up to the plate and ratify it.
Yahoo Report Here. It can also be found in other news sources.
Three Questions:
1. Since Virginia did approve the amendment after the sundown clause, is their approval valid.
2. What does it mean for the President to ratify it? I had thought once an amendment was approved by the necessary number of states it was automatically added to the constitution.
3. How can Biden get around the sunset clause?
The text to the Equal Rights Amendment and the resolution referring the amendment to the states follows:
The resolution referring the amendment to the states was passed in 1972. The sunset clause implies the necessary states would have had to accept it by 1979/
I think Virginia was the 38th state to approve the amendment, actually during the first Trump administration, but Trump refused to recognize the approval since the resolution for the amendment had a sundown clause that said it needed to be approved by the necessary states before a certain date. To my knowledge, this was the only resolution for approval of an amendment to have such a sundown clause ever.
A couple of years ago, Biden said he supported the ERA but did nothing more with it. Now the congresspeople are saying he needs to step up to the plate and ratify it.
Yahoo Report Here. It can also be found in other news sources.
Three Questions:
1. Since Virginia did approve the amendment after the sundown clause, is their approval valid.
2. What does it mean for the President to ratify it? I had thought once an amendment was approved by the necessary number of states it was automatically added to the constitution.
3. How can Biden get around the sunset clause?
The text to the Equal Rights Amendment and the resolution referring the amendment to the states follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
"ARTICLE —
"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
"Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
"Section 3. This amendment shall take effect two years after the date of ratification."
The resolution referring the amendment to the states was passed in 1972. The sunset clause implies the necessary states would have had to accept it by 1979/
Comments
It hardly matters, however, as I all but guarantee that Trumpist judges (up to and including SCOTUS) would exploit it to claim that trans-affirming laws are unconstitutional.
I suspect the members of Congress calling on Biden to do something all know there’s nothing he can do. They’re just making a point.
Second, the President has no direct approval role in constitutional amendments, unlike regular bills.
The custodian of state ratifications is the Achivist of the United States. I suppose the President vould try to order her to accept a ratification but that would just create a direct route to court for the action.
Besides, Wikipedia states that there were three additional ERA ratification by 2020 and three states tried to litigate that the required number of 38 states had been achieved. They lost both in District Court and on appeal so the issue seems closed.
If Congress were to pass a law “lifting” the deadline for ratification (which let’s face it, the incoming Congress isn’t going to do), that law will be tied up in the courts over claims that it retroactively changed the rules.
Again, this is all about a pr campaign, nothing else.
I guess that depends on where you draw the line on "modern". The proposed Child Labor Amendment, for example, had no sunset clause when Congress submitted it to the states in 1924, which makes it "younger" than the Eighteenth Amendment (which had a ratification deadline). It could still become part of the Constitution if ten more states ratify it.
Legal fights to begin shortly.
Well, that's a question for the Supreme Court. But I'll note that half the states have something very much like the Equal Rights amendment in their state constitutions, including a number of Republican-dominated states that like to pass laws restricting access to abortion, so it's hard to imagine that with the current Supreme Court, an ERA would actually do much.
My remote view across the pond.