President Joe Biden recently claimed that the Equal Rights Amendment (ERA) has been ratified as part of the U.S. Constitution, a statement that legal experts widely dispute as inaccurate. The constitutional amendment process requires a two-thirds majority in both the House and Senate, followed by ratification from three-fourths (38) of state legislatures. While the ERA was initially proposed in 1972, its ratification process was legally deemed incomplete, making Biden’s proclamation a point of significant controversy.
The ERA, designed to ensure gender equality under the law, was met with criticism for potentially erasing vital legal distinctions and protections. Concerns included the possibility of unrestricted abortion access, men in women’s sports and spaces, and the elimination of gender-specific observances like Mother’s Day and Father’s Day. Although Congress imposed a seven-year deadline for state ratification in 1972, only 35 states initially approved the ERA, and five later rescinded their ratifications, falling short of the required 38.
Congress extended the deadline to 1982, but this move was likely unconstitutional as it lacked the necessary two-thirds supermajority. Ultimately, no additional states ratified the amendment by the extended deadline, effectively ending the ERA’s journey. Legal authorities, including the Office of Legal Counsel (OLC), have consistently upheld this conclusion, emphasizing that Congress must restart the amendment process if the ERA is to be revisited.
Despite this, some Democrats have argued against the validity of the deadline and claimed the ERA was ratified after three additional states approved it in later years, with Virginia being the most recent in 2020. However, the National Archives and Biden’s own OLC, consistent with prior legal opinions, confirmed that these votes could not revive the expired proposal. Thus, the ERA failed to achieve the required ratification.
On January 17, 2025, Biden nevertheless declared the ERA ratified, ignoring both the legal precedent and his administration’s own legal counsel. Critics, including Ambassador Ken Blackwell, condemned this move as a violation of constitutional governance and the rule of law. They argue that Biden’s unilateral declaration undermines the integrity of democratic institutions and flouts established legal procedures.
The controversy surrounding Biden’s statement highlights broader concerns about governance and accountability at the close of his presidency. The announcement could lead to legal challenges, with the potential to reach the Supreme Court, particularly if his successor, Donald Trump, reverses the declaration upon taking office on January 20. Such a reversal would almost certainly provoke further legal battles.
Biden’s claim, coming in the final days of his presidency, has drawn widespread criticism as a “disgraceful disservice” to the country and a failure to uphold his constitutional duties. His proclamation not only undermines public trust in government but also sets a contentious tone for the transition of power. Observers caution that more unilateral actions could follow in the remaining days before Trump assumes office.