09/24/2022
The ERA IS THE LAW OF THE LAND. Biden must stop fighting against it and publish.
https://www.law360.com/articles/1533545/the-equal-rights-amendment-should-be-published-today
The Equal Rights Amendment Should Be Published Today
By Michele Thorne (September 23, 2022)
Rumors of the Equal Rights Amendment's early demise are false. The ERA is a constitutional amendment that prohibits the government from discriminating on the basis of s*x.
Based on the Constitution's clear text, the ERA did not expire due to a purported deadline set by Congress, because Congress lacks the unilateral authority to limit the time for the states to ratify.
The ERA has already satisfied the two-step amending process of Article V[1] of the Constitution: first, in 1972, proposal by over two-thirds of each house of Congress,[2] and second and final, in 2020, ratification by three- fourths of the states.[3]
Michele Thorne
According to a strict construction of the Constitution, the ERA is our 28th Amendment.
The Biden administration has the duty and privilege to publish the ERA,[4] yet it has failed to do so. Instead, it is waiting for Congress or the judiciary to tell it what to do.[5]
Hypocritically, at the end of this month in the U.S. Court of Appeals for the District of Columbia Circuit, the Biden administration will be fighting against publication of the ERA in Illinois v. Ferriero.[6]
The arguments of the Biden administration's U.S. Department of Justice are that:
1. The suit brought by Illinois and Nevada cannot proceed because the states suffer no injury from nonpublication of the 28th Amendment; and
2. The states have no right to relief "because their attempted ratifications were made after the deadline set by Congress."[7]
According to late U.S. Supreme Court Justice Antonin Scalia, "one of Emperor Caligula's nasty practices was to post his edicts high on the columns so that they would be harder to read and easier to transgress."[8] Making the law known is essential to the rule of law, so nonpublication is indeed a harm.
What other injury comes from nonpublication of the ERA? The Supreme Court ignored the unpublished ERA in its recent decision, Dobbs v. Jackson Women's Health Organization.[9]
Dobbs, of course, overturned the Supreme Court's 1973 Roe v. Wade ruling,[10] which required a balancing of the legitimate interests of both the pregnant woman and the potentiality of human life.
Without Roe, some states are now legislating away the legitimate interests of pregnant persons, thereby denying and abridging their equality of rights under the law. Dobbs, thus, expressly permits a form of government discrimination on the basis of s*x, in violation of the unpublished ERA.
Many women will be harmed and some will die.[11] Even states such as Illinois and
Nevada — where it is still legal for physicians to prioritize their patients' welfare — will be overrun by women from other states seeking medical care, and the health of women from Illinois and Nevada will be in danger when they travel to other states.[12]
Without a doubt, the failure to publish the ERA as part of the Constitution has pernicious consequences, which will continue to infest federal jurisprudence until publication occurs.
But is the amendment too old to be published? What about the purported ratification deadline set by Congress?[13]
There is no time limit on state ratifications of amendments in the Constitution's text.[14] That is why the Constitution includes the 27th Amendment, which met the strict requirements of Article V in 1992, even though it was passed by Congress in 1789 and took 203 years to ratify.[15]
The ERA, which took 48 years to ratify, is a spring chicken.
Nor does the Constitution give Congress the power to set a ratification time limit on the states. Congress cannot create this authority just by saying so.
The DOJ has pointed to language in Article V, under which states ratify amendments either by state legislature or state convention, "as the one or the other mode of ratification may be proposed by the Congress."[16] The phrase "one or the other" refers to a particular set of options, from which Congress picks as a practical matter, for a uniformity of ratification from state to state.
The DOJ argues that Congress proposing one or the other mode of ratification would also give it the unilateral power to impose a ratification time limit on the states.
Absurd. Such ludicrous interpretation assumes that the framers — to use a phrase used by Justice Scalia in Whitman v. American Trucking Associations Inc. in 2001 — meant to hide an elephant in a mousehole.[17]
Incontrovertibly, adding a ratification time limit is a substantive change to the Constitution. The ERA ratification time frame was solely within an internal congressional resolution.
States ratify amendments. States do not ratify congressional resolutions. A ratification time limit must be within the four corners of an amendment's text in order to have effect.
The most recent constitutional amendment to be passed by Congress was the District of Columbia Voting Rights Amendment in 1978.[18]
The D.C. Voting Rights Amendment had a time limit not only in a congressional resolution but, importantly, also within the text of the amendment itself, where it would be operative. The D.C. Voting Rights Amendment is the only constitutional amendment proposed by Congress that has expired.
The ERA states, "This amendment shall take effect two years after the date of ratification."[19] Why isn't that time frame in an internal congressional resolution? Because to be operative, it must be within the amendment's text.
Thus, the ERA became effective earlier this year, on Jan. 27, two years after it was fully ratified, but remains unpublished.
As Justice Scalia liked to say, in America, the king is not the law; the law is the king.[20] The law has spoken clearly. The Equal Rights Amendment should be published today.
Michele Honora Thorne is an Illinois attorney in private practice. She serves as co-chair of the Chicago Bar Association Human Rights Committee.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.archives.gov/federal-register/constitution/article-v.html.
[2] https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg1523.pdf.
[3] https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification-actions-03-24- 2020.pdf.
[4] https://www.govinfo.gov/content/pkg/USCODE-2009-title1/html/USCODE-2009-title1- chap2-sec106b.htm.
[5] https://www.whitehouse.gov/briefing-room/statements- releases/2022/01/27/statement-from-president-biden-on-the-equal-rights- amendment/ and https://www.justice.gov/olc/file/1466036/download.
[6] https://voteequality.us/wp-content/uploads/2022/04/US_APP_CADC_21- 5096_137129152744090_APPELLEE_BRIEF_1937869_filed_by_David_Ferriero_Ser.pdf.
[7] https://voteequality.us/wp-content/uploads/2022/04/US_APP_CADC_21- 5096_137129152744090_APPELLEE_BRIEF_1937869_filed_by_David_Ferriero_Ser.pdf.
[8] Antonin Scalia, The Essential Scalia (New York: Crown Forum, 2020), 7. [9] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
[10] https://supreme.justia.com/cases/federal/us/410/113/.
[11] https://ccf.georgetown.edu/2022/06/30/maternal-mortality-crisis-black-women-dobbs- decision/; https://www.supremecourt.gov/DocketPDF/19/19- 1392/193302/20210921172339465_19-
1392%20Brief.pdf; https://www.nbcnews.com/news/world/woman-died-ireland-abortion- ban-warning-americans-roe-v-wade-rcna35431; https://www.theguardian.com/global- development/2022/jan/26/poland-death-of-woman-refused-
abortion; https://www.cbs7.com/2022/09/08/texas-woman-travels-abortion-after-learning- baby-wouldnt-survive/.
[12] https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html. [13] https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg1523.pdf.
[14] https://www.senate.gov/civics/constitution_item/constitution.htm.
[15] https://www.justice.gov/sites/default/files/olc/opinions/1992/05/31/op-olc-v016- p0085_0.pdf.
[16] https://www.justice.gov/sites/default/files/opinions/attachments/2020/01/16/2020- 01-06-ratif-era.pdf.
[17] https://www.law.cornell.edu/supct/pdf/99-1257P.ZO , p.7.
[18] https://prologue.blogs.archives.gov/2020/06/17/unratified-amendments-dc-voting- rights/.
[19] https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg1523.pdf.
[20] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4632&context=uclrev
https://www.law360.com/articles/1533545/the-equal-rights-amendment-should-be-published-today
Reports of the Equal Rights Amendment’s early demise due to a purported deadline set by Congress are false, and failure to publish this prohibition against s*x-based discrimination as part of the U.S. Constitution has pernicious consequences that will continue to infest federal jurisprudence until...
