On Friday, January 17, then-President Joe Biden stated his opinion that “the Equal Rights Amendment is the law of the land.” What is the Equal Rights Amendment, and is he right? See below for links to the full text of the amendment, statements regarding its status from several government actors, and opinions from legal commentators. 

Full Text of the Equal Rights Amendment 

The Equal Rights Amendment was passed by Congress in 1972. The original resolution included a seven year time limit for ratification by three-quarters of the states, and the amendment itself stated that it would take effect two years after ratification. 

OLC Opinions and National Archives Statements 

2020 Office of Legal Counsel opinion

In 2020, the Office of Legal Counsel (OLC) under the Trump administration issued a memo stating that because the seven-year period in the ratification resolution had expired, even after being renewed by Congress, the ratification process had to start again. Thus, the belated ratifications by a few states did not suffice to complete the ratification process. The report noted time limits were included in several previous amendments including the Eighteenth, Twentieth, Twenty-First, and Twenty-Second Amendments. Furthermore, the OLC noted, ERA proponents had recognized that the expiration of the time limit meant that they had to start again, and the Supreme Court had dismissed an accompanying case as moot once the deadline expired. 

2020 National Archives Statement on the Equal Rights Amendment 

After the OLC released its opinion on the validity of the Equal Rights Amendment, the National Archives issued a statement saying that it would abide by the DOJ’s judgment unless directed by a final court order. 

2022 Office of Legal Counsel opinion

The Biden-era OLC further clarified its 2020 opinion in a subsequent memo in 2022. The office clarified the meaning of Part III of its opinion, which stated that Congress plays no further role in ratification once an amendment is sent to the states. The OLC noted that this opinion does not prevent Congress from acting in its capacity as a co-equal branch with the ability to take its own position on the issue. 

2024 National Archivist Statement on the Equal Rights Amendment Ratification Process

On December 17, 2024, the Archivist of the United States, Dr. Colleen Shogan, issued a press release in which she declined to officially publish the Equal Rights Amendment. Dr. Shogan stated, “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts . . . Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment.”

Legal Commentary on the ERA

President Biden, the ERA, and Constitutional Vandalism, by Stephen Sachs

See also this X thread by Prof. Sachs

Gillibrand’s Zombie-ERA Folly, by Ed Whelan

New Light on the ERA?, by Stephen Sachs

The Equal Rights Amendment at Long Last, Laurence Tribe, Kathleen Sullivan 

Does it Matter Whether the Equal Rights Amendment is Now Part of the Constitution?, Michael C. Dorf

Searching for Equality: The Nineteenth Amendment and Beyond (transcript), a 2020 conversation between Justice Ginsburg and Judge McKeown in which Justice Ginsburg said she believed that the original deadline in the ERA resolution was binding and that supporters of the amendment would need to start over again with a new resolution in Congress.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].