Sunset of the ERA

Yesterday “President Biden” announced the dawn of the Equal Rights Amendment era — the ERA era. The White House posted “Biden’s” statement on the ERA and posted a companion announcement on X.

How did we miss this big event? We missed it because the proposed ERA actually sunset in 1982, when the deadline for ratification expired. “Biden” pretends to believe that the amendment was ratified in January 2020, when Virginia allegedly became the thirty-eighth state to ratify it (if one ignores the five states that had rescinded their prior approval before Virginia got around to its ratification).

Okay, but how did we miss this big event five years ago? We missed it because the proposed ERA was and is a nullity. The Department of Justice Office of Legal Counsel issued a 2020 opinion” finding no “relevant legal authority” that the amendment had been adopted once after the expiration of the congressional deadline. As the OLC opinion explains, the ERA died in 1982. May it rest in peace.

But wait! If “Biden” declares it the law of the land, maybe it’s a thing.

Amendments are governed by Article V of the Constitution. Article V provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. (None of the 27 amendments to the Constitution has been proposed by constitutional convention.)

Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval.

The president is the dog that doesn’t bark under Article V. He has literally nothing to do with amendments. The founders didn’t exactly seek to protect the amendment process from clowns such as “Biden,” but they excluded the president from the picture into which “Biden” has clownishly inserted himself.

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