Biden Declares The Era The Law Of The Land — But It Likely Will Not Matter

President Joe Biden on Friday declared that the Equal Rights Amendment is the law of the land, attempting to ratify a 28th Amendment to the U.S. Constitution in a last-ditch effort to protect women’s reproductive rights.

But Biden's assertion may amount to little more than an expression of his opinion, with the White House acknowledging that it has no immediate force of law — and the National Archives telling POLITICO it has no plans to formally add it to the Constitution.

“I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex,” Biden said in a statement. “We, as a nation, must affirm and protect women’s full equality once and for all.”

The move, which states that Biden personally believes the ERA has cleared all the hurdles to ratification, would be unlikely to carry weight unless courts agree with him, a hurdle even White House officials conceded as they made the announcement

If successful, the long-shot gambit would provide a dramatic coda to the 50-year effort to get sex-based equality into the Constitution and bolster Biden’s policy record. In Biden’s final days before turning the Oval Office over to President-elect Donald Trump, whose Supreme Court appointees helped to overturn Roe v. Wade in 2022, the statement on the ERA offered the departing president a final opportunity to push back at the laws that resulted from that decision in several states where lawmakers have restricted and even criminalized abortion procedures.

But the National Archives, which is responsible for publishing amendments to the Constitution, immediately indicated it had no plans to follow Biden's lead.

U.S. Archivist Colleen Shogan has previously said that the ERA's eligibility has expired, and could not be added now unless Congress acts. Congress, under control of Republicans, is unlikely to do so.

"This is a long standing position for the Archivist and the National Archives," the Archives said in a statement. "The underlying legal and procedural issues have not changed."

A senior administration official on Friday repeatedly declined to say whether the White House had spoken with Shogan about publishing the ERA following Biden's declaration or pressured her to change her mind.

"The president is not going to direct the archivist," the senior official told reporters, though the official later added that "the archivist is required to publish an amendment once it's ratified, so the archivist is required to publish this amendment."

The ERA would bar sex-based discrimination, including constraints on abortion, by states. Sen. Kirsten Gillibrand (D-N.Y.) argued last month in a New York Times op-ed, while urging Biden to formally direct the national archivist to add the ERA to the Constitution, that the amendment has met all the requirements for certification. It passed two-thirds of Congress in 1972 and, after sitting dormant for decades, was finally ratified by three-quarters of the states in 2020.

But Donald Trump’s Justice Department said at the time that ratification took too long and the states missed the deadline. That's a position Shogan supported in a statement last December. Biden disagrees, yet declined to force the issue by going as far as Gillibrand had requested and ordering the archivist to take action.

“On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment,” Biden’s statement said. “The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”

His statement concluded: “It is long past time to recognize the will of the American people. In keeping with my oath and duty to 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, guaranteeing all Americans equal rights and protections under the law regardless of their sex."

The declaration is likely to win praise from advocates who have long pushed for the ERA's recognition. But the move, coming just three days before Biden leaves office, raised questions about why a president who the White House said has long harbored this opinion did not act sooner.

The senior official said Biden was convinced to act last year when said Biden was convinced to act last year, when the American Bar Association took the position that the amendment was valid.

"He's using his power of the presidency to make it clear that he believes and he agrees with leading constitutional scholars," the senior administration official said. "We supported the Congress taking action. This Congress didn't do that and nothing in the statement changes their ability to take whatever action they would like."