Tipsheet

Biden Proved Wrong on ERA Amendment by National Archives, Community Notes

Rebecca Downs
Rebecca Downs  |  January 17, 2025 4:15 PM

On his way out, President Joe Biden continues to wreak havoc and cause plenty of confusion. With just three days to go until President-elect Donald Trump is inaugurated, Biden announced on Friday that the Equal Rights Amendment (ERA) is now "the law of the land" as the 28th Amendment to the Constitution as part of yet another desperate attempt to keep focusing on promoting abortion. 

The eligibility for ratification long expired, according to the National Archives. Several states have also rescinded their ratification. Nevada voted to ratify the ERA in 2017, becoming the first state to do so since 1977. Thirty-eight states were required to ratify the amendment in order for it to pass, though that didn't happen until Virginia did so in January 2020, according to the Brennan Center. 

Further, in January 2022--during Biden's term--the Assistant Attorney General Office of Legal Counsel at the Department of Justice (DOJ) released a memo for the Counsel to the President on the legal status for ratifying the ERA.

"Whether the ERA is part of the Constitution will be resolved not by an OLC opinion but by the courts and Congress. Indeed, the status of the ERA, including important questions about Congress’s role in the amendment process, is the subject of ongoing litigation, with additional lawsuits almost certain to be filed shortly," the memo from Christopher H. Schroeder read at one point.

For such claims, Biden, as well as other high profile Democrats, have been hit with context about the National Archive's comments from Community Notes. Another note referenced that DOJ memo above. 

Recommended

Melania Trump Slams Obamas for ‘Withholding’ Key Info During Transition Sarah Arnold
Trump's Mass Deportations Will Begin Here on January 21 Matt Vespa

On December 17 of last year, the National Archives put out a media release. As a statement from Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko read:

“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.

“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.

“The role of the Archivist of the United States is to follow the law as it stands, ensuring the integrity of our nation’s governing institutions. Personal opinion or beliefs are not relevant; as the leaders of the National Archives, we support established legal processes and decisions.  

“We will continue to serve with transparency and integrity as we move forward in addressing this and all matters related to our Constitution.”

Many news outlets and posts over social media are trying to go for wishy washy language, saying what happens next is "unclear." 

POLITICO went with a better headline on Friday, "Biden declares the ERA the law of the land — but it likely will not matter." As the piece highlighted [Emphasis added]:

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.

...

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.

...

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.

Others hit with Community Notes include Vice President Kamala Harris, who also insisted that the amendment is "the law of the land." 

Such a note for this post also reminded that the president has no such authority. 

Sen. Kirsten Gillibrand (D-NY) has posted no less than three times on Friday about the ERA, claiming it has passed, and even insisting in one post that Biden's official notice "follows clearly established precedent" and that the ERA is "a valid part of our Constitution." The POLITICO piece also mentioned how Gillibrand claimed in an op-ed just last month for The New York Times, as a section on "How Biden Should Spend His Final Weeks in Office."

Gillibrand, a fierce abortion advocate, touched upon the Democratic Party's obsession with abortion in one of her posts, with such a post having been hit with Community Notes, as it's a quoted repost of Biden.

The senator is not the only one to have shared a screenshot from The Contrarian, a new outlet from Jennifer Rubin and other anti-Trump commentators. Professor Laurence Tribe wrote such a piece about the ERA. 

While Gillibrand seems to have shared the screenshot unironically, others have also shared it over X to mock the newly formed outlet.

Sen. Cindy Hyde-Smith (R-MS) put out a statement slamming Biden's announcement from Friday. 

"President Biden’s pandering ERA declaration doesn’t hold any legal weight but does fall in line with the many instances over past four years when his administration blatantly ignored the rule of law – whether we’re looking at pro-life issues, school loans, or the border," she said. "The law is clear that the deadlines to ratify the ERA are long past. Not only is Biden speaking against his own administration’s OLC memo on this issue, but his statement also contradicts all legal decisions coming from the courts. The ERA simply hasn’t weathered the test of time. Its ratification today would unleash a lot of unintended consequences that would, in reality, hurt women and girls."

"Hyde-Smith actively worked to stop an unconstitutional effort in 2023 to have Congress declare the ERA ratified," a press release from her office also mentioned. 

Also on Friday, Biden announced that he was commuting even more sentences. "Today, I am commuting the sentences of nearly 2,500 people convicted of non-violent drug offense," Biden said as part of another statement that same day.