Outgoing President Joe Biden has falsely claimed that the Equal Rights Amendment (ERA) has been ratified, describing it as “law of the land.”
The ERA has been in the political theatre for as long as Biden himself, having been passed by Congress in 1972. The primary clause states, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
It has received support from red and blue states amid concerns over potentially undermining traditional gender roles and laws related to women’s protections. By the time of the March 1979 deadline, 35 states had ratified the proposed amendment, with three more doing in the 21st century.
Biden said in a statement on Friday, Jan. 17, that Virginia’s 2020 ratification meant the required 38 state threshold had been reached.
“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,” the White House said in a statement.
“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.”
However, Biden’s claim has been dubious, with Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko of the National Archives issuing a statement on the proposed amendment in December 2024.
Arguing that the ERA could not be certified “due to established legal, judicial, and procedural decisions”, the two said, “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.”
Biden was quickly subject to a community notes check on X, while many commentors also disputed his claim.
Others believed the declaration to be unconstitutional.
