Analysis | Biden claims the existence of a 28th Amendment, but there is no such amendment.

 Analysis | Biden claims the existence of a 28th Amendment, but there is no such amendment.

President Biden

As presidential terms wind down, the final days in office often bring surprises. Pardons are granted to individuals who might not seem deserving, and presidents issue executive orders on unresolved legislative matters or controversial topics. Occasionally, this transitional period sees a more audacious twist, like the president making bold declarations.

In an unusual turn of events, President Joe Biden, just days before leaving office, proclaimed the 28th Amendment to the Constitution—a measure ensuring equal rights for men and women—as "the law of the land."

“It’s long overdue to acknowledge the will of the American people,” Biden declared. “In accordance with my duty to the Constitution and our nation, I affirm that the 28th Amendment has been ratified by three-fourths of the states, guaranteeing equal protections under the law, irrespective of sex.”

However, this assertion conflicts with legal reality. While there are indeed 27 ratified amendments, the 28th Amendment has not been officially added to the Constitution. The Equal Rights Amendment (ERA), a proposed measure from 1972 aiming to enshrine gender equality, has faced significant legal and procedural roadblocks over the decades.

The Journey and Challenges of the ERA

The ERA passed Congress in 1972, requiring ratification by 38 states to become law. Initially, Congress allowed a seven-year deadline, later extended to 1982. By that time, only 35 states had ratified it—three short of the threshold. Decades later, three more states ratified the amendment, with Virginia becoming the 38th in 2020. Yet, two substantial issues remain:

1. The Deadline: The original ratification deadline expired long ago. Although some argue that deadlines can be disregarded, they were explicitly outlined in Congress's resolution.

2. State Reversals: Five states rescinded their ratifications during the 1970s. Legal debates linger over whether such reversals are valid, but as of now, their most recent positions reflect opposition.

Biden's declaration relies on arguments that the deadline is non-binding and that rescinded ratifications are invalid. While these points have support from organizations like the American Bar Association, the legal consensus leans against them. Federal courts have upheld the deadline's validity and, in some cases, ruled that rescissions are permissible. Even Justice Ruth Bader Ginsburg, a staunch advocate for women's rights, recognized these challenges in 2020, suggesting a fresh effort might be required.

Biden’s Legal and Political Calculus

Biden's move appears to pressure the U.S. archivist to certify and publish the amendment. His administration argues this role is procedural and not discretionary. However, recent statements from the archivist, citing established legal precedents, indicate that this isn’t a feasible path forward.

Though unlikely to succeed in immediate legal terms, Biden's announcement underscores his support for gender equality, bringing renewed attention to the ERA. Critics, however, view it as a symbolic gesture sidestepping unresolved legal issues. Constitutional scholars note that such declarations conflict with long-held norms that exclude the president from direct involvement in the amendment process.

While Biden’s statement signals a desire to align with public sentiment, achieving ratification will require navigating decades-old controversies and securing a stronger legal foundation. Until then, the ERA remains a topic of debate rather than settled law.