Biden Declares ERA ‘Law of the Land,’ But Legal Hurdles Remain

WASHINGTON, D.C. — President Joe Biden declared on Friday that the Equal Rights Amendment (ERA) is “the law of the land,” a symbolic statement that reignites a decades-long debate over the amendment’s legal status. However, the declaration lacks formal enforcement, leaving the future of the ERA uncertain.

The ERA, which guarantees equal rights under the law regardless of sex, was passed by Congress in the 1970s but faced a prolonged ratification process. It wasn’t until 2020 that the required 38 states ratified the amendment, though it missed a congressional deadline by nearly four decades. Biden’s announcement comes as supporters plan a rally at the National Archives, where the amendment’s fate remains in limbo.

“It is long past time to recognize the will of the American people,” Biden said in a written statement. “In keeping with my oath and duty to the Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land.”

Despite Biden’s declaration, the amendment must still be formally published or certified by the National Archivist to take effect. The White House clarified that Biden will not order the archivist to certify the ERA, as the executive branch has no direct role in the amendment process. A senior administration official described the archivist’s role as “purely ministerial,” meaning they are required to publish the amendment once it is ratified.

The National Archivist has previously declined to certify the ERA, citing a 2020 opinion from the Justice Department‘s Office of Legal Counsel, which deemed the amendment expired after missing its 1982 ratification deadline. In 2022, the Office of Legal Counsel reaffirmed this stance, stating that Congress and the courts would need to take further action to lift the deadline.

Democratic lawmakers, including Sen. Kirsten Gillibrand, D-N.Y., have championed the ERA, arguing it is essential for ensuring gender equality. Gillibrand has suggested the issue may ultimately be decided by the Supreme Court. “This is about recognizing the fundamental rights of all Americans,” she said in a recent statement.

Supporters of the ERA argue that the amendment’s ratification process should not be bound by an outdated deadline, emphasizing the overwhelming public support for gender equality. Opponents, however, contend that reviving the ERA would set a dangerous precedent for constitutional amendments.

As the debate continues, Biden’s declaration has reignited hope among ERA advocates, even as legal and procedural challenges remain unresolved.