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Congress Must Resubmit the Proposed Equal Rights Amendment to the States
Andrew Hyman

President Biden is urging Congress to recognize ratification of the Equal Rights Amendment (ERA).  This is strange for several reasons, not least of which is that leading scholars such as the late Justice Ruth Bader Ginsburg (a steadfast supporter of the ERA) have acknowledged that the ERA would have to “be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it.

To Justice Ginsburg, I can add my co-bloggers Mike Rappaport and Michael Ramsey, who basically agree with Ginsburg.  Plus, the Office of Legal Counsel in the Department of Justice reached similar conclusions in a long and scholarly memo on this whole subject in 2020.

Congress initially submitted the ERA to the states in 1972 with a seven-year window to ratify it.  Before the window closed, Congress in 1978 purported to extend the deadline until June 30, 1982 and President Carter signed it, given that this extension failed to garner a two-thirds majority in either house of Congress.  There has been much controversy about whether Congress really had power to do that in 1978, but for purposes of this blog post let’s suppose Congress did have such power.  The fact remains that the extended deadline expired on June 30, 1982 without the required ratifications, and Congress clearly intended for that to be the end of it.  Here is the text of House Joint Resolution 638 (emphasis added):

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any provision of House Joint Resolution 208 of the Ninety-second Congress, second session, to the contrary, the article of amendment proposed to the States in such joint resolution shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States not later than June 30, 1982.

So this boils down to a matter of statutory interpretation: “not later than June 30, 1982” originally meant “no later than June 30, 1982.”  On that date, the ERA proposal that was submitted to the states in 1972 became inoperative.  

Congress was not writing on a blank slate in 1978, as the Supreme Court had already written quite a bit on this subject.  For example, in the 1939 case of Coleman v. Miller, the Court reaffirmed its previous holding that Congress had power to decide that a proposal to amend the Constitution “should be inoperative unless ratified within seven years.” In Coleman, there was a serious question “whether the proposal by the Congress of the Amendment had lost its vitality through lapse of time….”  The Court’s answer was that, “Congress has the power under Article V to fix a reasonable limit of time for ratification….”  This was the original context in which Congress set an extended deadline for the ERA in 1978.

Assuming Congress has the same power under the Necessary and Proper Clause to sunset a proposed amendment as it has under Article V (which is doubtful), Congress exercised this power in 1978 when it said the ERA had to be ratified no later than June 30, 1982.  On that date in 1982, the proposal lost its vitality through lapse of time and became inoperative, per the will of Congress, and Congress cannot now change that history by denying it ever happened.  An inoperative proposal is not a proposal at all, and that describes the ERA situation after 1982.  The contrary notion is so strange that I would not be surprised if the courts weigh in on it.

P.S.  For those of you readers who think somehow the principle is applicable that Congress cannot tie the hands of future Congresses, are you willing to also say that a state legislature who ratified the ERA cannot tie the hands of a future legislature who want to rescind that state's ratification?