Ok, maybe they do care more, but it is not by much. On his way out the door, Joe Biden tried to amend the Constitution by executive fiat. That sounds like something Donald Trump would do.
Of course that can't be done. That did not keep Joe Biden from attempting it. The following from Jonah Goldberg writing in The Dispatch explains the nuances of the issue, the logic of the Biden attempt, and the absurdity.
Jan. 17, 2025 - I saw the news that Joe Biden “believes” that the Equal Rights Amendment is the law of the land.
Say what you will about Biden, the man can keep a secret. In his statement, Biden says that it became the 28th Amendment almost exactly five years ago when the Commonwealth of Virginia ratified it on January 27, 2020.
From that time until now, Biden has said pretty much nothing about this belief. That’s kind of a weird conviction to keep under your hat all this time.
That is, unless, like almost everybody else, he didn’t think Virginia’s ratification of the ERA was anything other than symbolic until recently. Heck, the New York Times story on Virginia’s symbolic ratification of the ERA uses the word symbolic in the subhead and the first sentence. If the Times thought there was a shot at the ratification being something other than symbolic at the time, it would have flooded the zone with “let’s make this happen” coverage. Again, if they thought this was possible, the newspaper might even have asked Joe Biden what he thought about it, given that he was running for president at the time.
Among the reasons nobody but a handful of activists even bothered claiming that Virginia’s ratification of the amendment was anything other than symbolic is that the deadline for the amendment’s ratification expired nearly two decades earlier. Again, don’t take my word for it. Here’s the NPR headline at the time, “Virginia Ratifies The Equal Rights Amendment, Decades After The Deadline.”
Now, it’s true there are lawyers, including at the American Bar Association, who argue that there was no deadline for the amendment approved by Congress in 1972 because the seven-year time-limit for ratification was only in the amendment’s preamble not the actual text. But it was put there expressly to keep the text clean if ratified. The Justice Department, including under Joe Biden, has long held that the deadline is binding.
You know who else thought that the window closed on the Equal Rights Amendment? Ruth Bader Ginsburg. Of course she wasn’t a Supreme Court Justice then, she was just one of the country’s most famous feminist lawyers and law professors. But then in 2020, as a Supreme Court justice, she explained—again—that the deadline had passed for the ERA. Sorry, she said that the allegedly extended deadline had passed, in 1982. Among the reasons she thought it was a dead letter: Several states had withdrawn their ratification. As she put it at an event co-sponsored by the American Bar Association:
I would like to start over. There is too much controversy about latecomers [like] Virginia long after the deadline passed. Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, ‘We have changed our minds’?
Pretty good point there, I think.
... Sen. Kirsten Gillibrand has been pushing a dippy theory that all Biden needs to do is order the archivist of the United States to declare the ERA ratified. Here’s how Gillibrand began her December 15 New York Times op-ed:With Republicans set to take unified control of government, Americans are facing the further degradation of reproductive freedom.Now, I don’t think this is correct. But, again, who cares about my legal opinion? Fortunately someone else agrees with me: The archivist of the United States. Two days after Gillibrand’s op-ed, Colleen Shogan and Deputy Archivist William J. Bosanko released a joint statement declaring:
Fortunately, Mr. Biden has the power to enshrine reproductive rights in the Constitution right now. He can direct the national archivist to certify and publish the Equal Rights Amendment. This would mean that the amendment has been officially ratified and that the archivist has declared it part of the Constitution.As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.This was Shogan’s position during her confirmation hearings, by the way. Every voting Democrat chose to confirm her.
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.….As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.
... I know what happens next as much as Biden does: needless legal, political, and constitutional drama. Activists will take what is in effect a presidential fatwah as gospel and start filing lawsuits based upon the 28th Amendment being a thing. Opponents will say it’s not a thing.
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