By fixating on the archivist or the president, we lose sight of the real obstructionists: Republican leadership and their anti-woman followers who block the ERA.
As the clock ticks down on the current congressional session, we find ourselves at the edge of both frustration and hope. For those committed to the Equal Rights Amendment (ERA) and equality, I want to bring you up to date and outline next steps.
The ERA joint resolutions before Congress that recognized the ERA as ratified and eliminated the arbitrary timeline were not adopted this session. BUT … let’s not mistake the end of this session for the end of this fight. The ERA hasn’t lost ground; instead, given the 2024 election results, there is a newfound urgency.
As the 118th Congress concludes in early January, we must honor those who stood for equality: the 214 House Democrats who signed the ERA discharge petition. Only four Republicans were needed to bring the ERA to the floor for a vote. We were closer than at any time in the past to enshrining the ERA into the Constitution, and I believe failure is impossible.
This Republican absence looms large, a reactionary shadow cast by those opposed to gender equality that obstructs what is fair and just. We must hold Republican members of Congress accountable. And so, we will work now to ensure that voters remember—and act accordingly—in November 2026.
Current Status of ERA Tangled in Confusion and Risk
Over these past weeks, I’ve read countless emails, sat through heated meetings, and heard the cries for action directed at President Joe Biden urging him to order the archivist to certify and publish the ERA in the Constitution. I understand the yearning for a decisive stroke. But this path, I believe, is a snare, tangled in legal thorns, dangerous and fraught with risk.
After careful study and consultation with leading constitutional experts, I am certain that Congress must pass joint resolutions to recognize the ERA and remove the arbitrary time limit.
The evidence is unyielding: Biden has no role in this amending process.
Congress has the clear authority to amend, extend or repeal the ratification time limit placed in the preamble to the Equal Rights Amendment.
His intervention could set off a chain reaction, handing ERA opponents an opportunity to challenge the amendment in court. A judicial gauntlet with Trump-appointed judges risks obliterating decades of progress, forcing us to begin again, clawing our way back through Congress, where a two-thirds vote is needed in the House and Senate, and three-fourths of state legislatures must ratify any new amendment.
In January 2022, Biden released a statement on the House ERA resolution, reiterating his support for the ERA “loudly and clearly.” His statement continued:
We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest. I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA. As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’ way from doing so.
As the Columbia Law School ERA Project points out: Congress has the clear authority to amend, extend or repeal the ratification time limit placed in the preamble to the Equal Rights Amendment. I believe congressional actions are the only viable route to affirming the ERA is part of the Constitution.
Article V of the Constitution is clear: The power to amend lies solely with Congress and the states. It is Congress that must act to repeal the time limit and recognize the ERA’s ratification by 38 states. The time for half-measures has passed.
Together, we have the opportunity to build a grassroots movement that focuses sharply on key congressional districts and states, knitting a web of support that no opposition can unravel.
The archivist, too, occupies a liminal—between and betwixt—space. During her Senate confirmation hearings, archivist Dr. Colleen Shogan was asked whether the archivist has the authority to certify the ERA. Her accompanying written response was illuminating and cautious:
Following ratification by three-fourths of the states, the Archivist of the United States, pursuant to statute, is to identify that ratifying states, publish the amendment, and certify that the amendment has become part of the United States Constitution.
As I understand it, the Equal Rights Amendment (ERA) has been ratified by 38 states. However, three ratifications occurred after the June 30, 1982 congressional-imposed deadline. The question is whether Congress has the power to impose a deadline on the ratification of a constitutional amendment. The Constitution is silent on this issue. However, Congress has established such deadlines since the Prohibition amendment, and its power to do so have been supported by the Supreme Court.
Two legal memoranda, written by the Office of Legal Counsel (OLC) of the Department of Justice from the previous [Trump] Administration and current [Biden] Administration, support this interpretation. Additionally, the 2022 OLC memorandum states, “[T]he 2020 OLC Opinion does not preclude the House or the Senate from taking further action regarding ratification of the ERA. As a co-equal branch of government, Congress is entitled to take a different view on these complex and unsettled questions.”
I also understand that this issue is being litigated in Virginia v. Ferriero, a case which is currently on appeal. Ultimately, this is an issue that will be resolved by Congress and the courts.
On Dec. 17, the National Archives issued a statement on the Equal Rights Amendment Ratification Process that updates an earlier statement and points out: “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.”
Though the D.C. Circuit Court dismissed the Illinois v. Ferriero lawsuit on standing grounds, the issue remains a labyrinth, winding between Congress and the judiciary. And let’s not forget that the National Archives and Records Administration (NARA) is an independent agency. Under the law, the archivist has broad authority over records management, facilities, grants, agreements and general agency administration. Overall, the president has no authority over policy development or actions of independent agencies including NARA.
I understand the urgency, the calls for action, the demand to see the ERA recognized now. But by fixating on the archivist or the president, we risk losing sight of the real obstructionists: Republican leadership and their extremist, anti-woman followers who block the ERA. It is they who must be held to account.
I will not rest in this fight. And I know you won’t either. Together, we have the opportunity to build a grassroots movement that focuses sharply on key congressional districts and states, knitting a web of support that no opposition can unravel.
Failure is impossible—provided we channel our frustration into a successful strategy, our anger into action.
I want to thank everyone who worked with me and others over this past year by writing to your Member of Congress about the House joint resolution and discharge petition. We were so close and next time will put the new resolutions over the finish line.
The only way to get things done is for both sides to come together. That’s the truth of it.
In the next Congress, I hope women and men—Republicans, Democrats and Independents—can find a way to work together.
Not for themselves, but for something bigger. For equality. Equality of opportunity. Equality in the economy. Equality for women written into the Constitution where it belongs.
Simple. Straightforward. Unshakable.
Over the next two years, we must organize and then elect enough representatives and senators to Congress to ensure the ERA is recognized, published and shielded from judicial challenge. I ask you to join me in this effort. Dedicate a few hours each week or month to the cause. Send an email to [email protected] and become an ERA champion. We’ll get right back to you with action steps you can begin taking immediately.
Together, we will lay the groundwork for a future where equality is enshrined in our Constitution—a legacy no court can overturn.
This post was originally published on here
