President Biden Declares Equal Rights Amendment Ratified, Sparks Legal Uncertainty
President Joe Biden attended a Department of Defense Commander in Chief Farewell Ceremony at Joint Base Myers-Henderson Hall in Arlington, Virginia, on January 16, 2025. During his remarks, Biden made a significant announcement, declaring the Equal Rights Amendment (ERA) ratified and enshrined in the Constitution—a bold, last-minute move that some see as a potential boost to reproductive rights.
However, the decision is expected to face swift legal challenges, leaving its future uncertain as Biden prepares to leave office.
Originally passed by Congress in 1972, the ERA affirms equal rights regardless of sex. Constitutional amendments require ratification by three-quarters of states (38 states). Virginia became the 38th state to ratify the ERA in 2020, decades after the original deadline. On Friday, Biden asserted that the ERA is ratified, leaving the next step to the U.S. Archivist, Dr. Colleen Shogan, to certify and publish the amendment.
“It is long past time to recognize the will of the American people. 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, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” Biden said in a statement.
A senior administration official clarified that Biden is not taking executive action but rather “stating an opinion that [the ERA] is ratified.”
“He is using his power of the presidency to make it clear that he believes—and he agrees with leading constitutional scholars and the American Bar Association—that not that it should be, but it is the 28th Amendment of the Constitution,” the official added.
Legal Challenges Loom
Despite Biden’s assertion, legal experts argue the situation is far from straightforward. Ratification deadlines have long since expired, and five states have rescinded their approval. According to the Brennan Center for Justice, these complications raise questions about the ERA’s validity and the president’s authority to affirm ratification more than 50 years after its passage by Congress.
Biden’s stance relies on the American Bar Association’s opinion, which highlights the absence of a time limit in the ERA’s text and contends that allowing states to rescind ratifications would create constitutional chaos.
Dr. Shogan, however, expressed doubts in December, stating alongside Deputy Archivist William Bosanko that the amendment “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.” This position aligns with conclusions from the Office of Legal Counsel in 2020 and 2022 affirming the enforceability of ratification deadlines.
When CNN sought clarification from the National Archives, officials reiterated Shogan’s earlier statement, emphasizing that “the underlying legal and procedural issues have not changed.”
Pressed on this matter, the senior Biden administration official argued that the archivist’s role is “purely ministerial” and mandated by statute: “She is required to publish an amendment once it has been effectively ratified.” The official acknowledged that the courts would ultimately decide the ERA’s constitutional status.
Advocates Push for Certification
Sen. Kirsten Gillibrand (D-NY) has been a prominent advocate for ERA certification. In a memo to supporters, she described it as a path for Biden to “codify women’s freedom and equality without needing anything from a bitterly divided and broken Congress,” particularly after the Supreme Court overturned Roe v. Wade in 2022.
While Biden has taken executive actions to safeguard abortion rights, those efforts are largely constrained without Congressional action to codify Roe’s protections—a prospect that appears unlikely.
Gillibrand lobbied top White House officials and allies, even appealing directly to the president and First Lady during a holiday event. Her outreach extended to the White House counsel’s office, the Gender Policy Council, and other key players in the administration.
The future of the Equal Rights Amendment now hinges on legal battles and interpretations that could shape its legacy for decades to come.
Biden Solidifies Legacy Through Executive Actions in Final Days
As President Joe Biden approaches the end of his term, he has ramped up executive actions, implemented key policies, and cemented his foreign policy achievements. On Friday, Biden made two major announcements—granting clemency to nearly 2,500 nonviolent drug offenders and declaring the Equal Rights Amendment ratified—highlighting his commitment to shaping a lasting legacy before President-elect Donald Trump assumes office.
While clemency decisions are irreversible, Biden’s ERA declaration is likely to face legal challenges and scrutiny under the new administration. Trump, set to return to the White House on Monday, can reverse much of Biden’s policy agenda, just as Biden rolled back key Trump-era initiatives upon taking office.
A Final Push to Cement Policies
Since the November election, Biden has focused on using his executive powers, following Chief of Staff Jeff Zients’ post-election directive to “run through the tape.” Key initiatives include:
- Clemency Actions: Pardoning 39 individuals convicted of nonviolent crimes, commuting 1,500 sentences, and reducing 37 federal death sentences to life imprisonment. Biden also issued a controversial pardon for his son, Hunter Biden, drawing bipartisan criticism.
- Environmental Protections: Issuing a ban on new oil and gas drilling across 625 million acres of ocean, including the entire East Coast and parts of Alaska. He also designated two new national monuments in California, bringing federally protected lands to over 674 million acres.
- Immigration Relief: Extending temporary protected status for nearly 1 million immigrants from Venezuela, El Salvador, Ukraine, and Sudan, shielding them from deportation for 18 months.
- Foreign Policy Moves: Removing Cuba from the state sponsors of terrorism list, a step likely to be reversed by the incoming Trump administration.
Strategic Legacy Moves
Biden also worked to secure grants for semiconductor chip manufacturing and canceled student loan debt for 150,000 additional borrowers to ensure these initiatives are finalized before Trump takes office.
However, some decisions, like the bipartisan agreement to block US Steel’s sale to Japan’s Nippon Steel and efforts to negotiate a ceasefire between Israel and Hamas, highlight rare areas of alignment between Biden and Trump.
Preemptive Pardons and Incoming Resistance
Biden is reportedly considering preemptive pardons for political allies—a move without precedent—as he cautioned Trump against using his presidency to “settle scores.” Sources suggest these decisions will likely be made in the final hours of his term.
Trump, who contested the 2020 election results, criticized Biden’s actions, claiming they were intended to obstruct the transition. “Biden’s executive orders will all be terminated shortly,” Trump said in a social media post.
As the transition of power nears, Biden’s flurry of activity underscores his attempt to safeguard his legacy, even as the incoming administration signals its intent to dismantle key elements of it.
0 Comments