By ED WHELAN
March 8, 2021 11:09 AM
Late Friday, federal district judge Rudolph Contreras (an Obama appointee) ruled against the states of Nevada, Illinois, and Virginia on their outrageous claim that the Archivist of the United States is obligated to publish and certify the Equal Rights Amendment as part of the Constitution.
Judge Contreras soundly determined that Congress, as an incident of its power to designate the mode of ratification for a constitutional amendment that it proposes, has power to set a ratification deadline for that amendment and that it is proper for Congress to place that deadline in the proposing clause of its resolution (as an alternative to placing it in the constitutional text). Therefore, the ERA proposed in 1972 expired decades ago. (See pp. 24-35.)
Contreras sensibly found it unnecessary to decide whether the ERA’s original 1979 deadline governed or whether Congress lawfully prospectively extended that deadline to 1982 via a majority vote of each House in 1978. Either way, the deadline long ago expired. He also found it unnecessary to decide whether states can validly rescind prior ratifications. (The plaintiff states argued that states can’t do so, as the five pre-deadline rescissions would leave them well short of the ratification threshold even if the deadline hadn’t expired.)
Contreras’s ruling that the ratification deadline is valid and has expired broadly comports with the opinion that the Department of Justice’s Office of Legal Counsel issued in January 2020 (and that binds the executive branch). It also comports with the recognition by the late Justice Ruth Bader Ginsburg—an ardent proponent of the ERA—that the ratification process would need to “start over again.”
All of this, alas, may not deter current members of Congress from pursuing their absurd Constitution-betraying claim—legally on a par with the efforts to get Vice President Pence to reject electoral votes—that Congress may by joint resolution (indeed, even by simple majority vote) retroactively abolish the expired deadlines and deem the ERA to have been ratified.
Just a note for those who wonder why anyone would care about constitutional niceties like actual ratification when “equal rights” are said to be at stake: What the ERA would mean in practice is far from clear. For example, supporters of abortion rights see the ERA as a valuable tool to reinforce a constitutional right to abortion.