ERA ratified, almost

By its own terms the ERA has been ratified, but it can't be formerly added to the Constitution but the DOJ Office of Legal Counsel disagrees.

“The Constitution is clear: You need to do two things. We did it,” Representative Carolyn Maloney of New York, a longtime E.R.A. proponent, told me. Indeed, no amendment that has cleared Article V’s two high bars has ever been excluded from the Constitution — until now.

The technical reason for this is that the archivist of the United States, David Ferriero, has declined to certify the Equal Rights Amendment, despite a federal law requiring him to do so whenever an amendment has satisfied “the provisions of the Constitution.”

His refusal is based on a 2020 memo by the Justice Department’s Office of Legal Counsel, which provides legal advice to the executive branch. The memo contended that the E.R.A. is no longer valid because it failed to meet the seven-year deadline that Congress initially set and then, when the ratification effort fell three states short, extended until 1982. (The last three states — Nevada, Illinois and Virginia — all ratified after 2016, spurred by the election of Donald Trump.) The O.L.C. memo also noted that five states that approved the amendment later tried to back out by rescinding their ratifications. As a result of the missed deadline, the memo said, the E.R.A. “has expired and is no longer pending before the states.” If its supporters want it ratified, they need to start over.

The supporters’ retort: The Constitution says not a word about either deadlines or rescissions. It says two-thirds of Congress and three-quarters of the states, nothing more. In a 2012 letter to Ms. Maloney, Mr. Ferriero appeared to agree with this interpretation. As soon as at least 38 states have ratified an amendment, he wrote, the National Archives publishes the amendment along with his certification “and it becomes part of the Constitution without further action by the Congress.” He also said he did not consider any of the rescissions to be valid.