But its opponents have seized on two issues. First, the original deadline for ratifying the amendment passed years ago, in 1982. Backers of the ERA believe that Congress has the power to change the deadline. But this month, the Justice Department’s Office of Legal Counsel released a memo saying it could not do so. “We conclude that the ERA Resolution has expired and is no longer pending before the States,” the document says. It instructs the National Archives and Records Administration not to recognize Virginia’s vote as the 38th ratification, and the agency has stated that it will follow that guidance. In short, the Trump administration says proponents of the ERA need to start again, at square one.
The second challenge is that five states — Idaho, Kentucky, Nebraska, Tennessee and South Dakota — “rescinded” their ratifications of the ERA; if those reversals hold up legally, that would bring the number of states that back the amendment down to 33.
But neither issue should stand in the way of ratification. First, the Justice Department memo is wrong in its logic — and in any case does not bind Congress. While it takes for granted Congress’s authority to put time limits on the ratification of constitutional amendments, it fails to recognize that this same congressional power over deadlines includes the ability to extend or remove them. Further, as a general matter, the Constitution assigns no role to the executive branch in amending the Constitution: It says Congress may propose amendments to the states to ratify, then puts Congress in control of the mode of ratification. Therefore, Congress and the courts can safely ignore the Justice Department’s opinion.
The opinion touches only briefly on rescissions, refraining from taking a position on whether states can reverse ratification of the ERA (but acknowledging the office’s past conclusion that such moves are not constitutionally permissible). Congress has rejected states’ attempts to undo ratifications of constitutional amendments in the past, and it has the power to do so in this case.
Under Article V of the Constitution, Congress can propose an amendment by a two-thirds vote of each chamber; then, three-fourths of the states must ratify it to make it part of the Constitution. Drafted by the National Woman’s Party, the ERA was first introduced in Congress in 1923, and female lawmakers from both parties procured its passage in 1971 and 1972 by large majorities (354 to 24 in the House, 84 to 8 in the Senate). The amendment reads, in its central passage: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It then gives Congress the authority to pass laws to give shape to that ideal. When Congress adopted the ERA, it asked the states to ratify the amendment within seven years. But only 35 states did so, falling three short of the crucial threshold. The social conservative Phyllis Schlafly mounted a successful STOP ERA campaign (“Stop Taking Our Privileges”), claiming that the amendment would wipe out legal protections for mothers and wives, including the presumption that divorced women would receive alimony and in most cases receive custody of children — or that shielded women from the draft. Meanwhile, those five states attempted to rescind their ratifications. In 1978, Congress extended the deadline to 1982, but no additional states ratified the amendment. The ERA was pronounced dead in many quarters.
But the #MeToo movement and opposition to President Trump’s misogynistic rhetoric reignited the effort. In 2017, on the heels of the women’s marches, Nevada ratified the ERA, and Illinois followed in 2018. Then came Virginia’s vote to ratify. As a next step, the House of Representatives is expected to vote this session on a bill, sponsored by Rep. Jackie Speier (D-Calif.), that would remove the deadline and recognize the ERA as a valid part of the Constitution “whenever ratified” by three-fourths of the states. (Since that’s already happened, the amendment would become part of the Constitution upon the bill’s passage.) There is a bipartisan bill to remove the deadline in the Senate, too, sponsored by Sens. Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska). Murkowski has publicly stated that there should not be a time limit on equality. More than a century ago, opponents of women’s suffrage tried to put a deadline on the 19th Amendment, but that provision was squarely rejected for that very reason.
In the year of the suffrage centennial, opposing the ERA could exact a political price in some districts and states this November. But with 38 state ratifications in place, future Congresses can revisit the issue of removing or ignoring the deadline.
Legal and historical precedents support the argument that Congress can accept the belated ratifications by Nevada, Illinois and Virginia. In the 1921 case Dillon v. Gloss, the Supreme Court held that Article V invests Congress with a wide range of powers over proposing amendments, and in Coleman v. Miller (1939), the high court reaffirmed that the reasonableness of any ratification timeline was a political question, solely up to Congress. In 1992, Congress accepted the 38th state ratification of the 27th Amendment — which provides that any pay raises Congress gives itself must go into effect after the next election — which was passed in 1789. That amendment did not have a ratification deadline (deadlines were not used until the Prohibition amendment and were very controversial when introduced). Still, the 27th Amendment’s passage strengthened the case that a proposed amendment’s age does not disqualify it from being ratified and accepted by Congress.
As for rescissions, Congress has never accepted them. The 14th Amendment was ratified in 1868, granting “equal protection of the laws” to “all persons born or naturalized in the United States,” including former slaves. Ohio and New Jersey attempted to rescind their ratifications; Congress still counted them as ratified states and declared that the 14th Amendment was part of the Constitution. Doing so nudged the nation in a necessary direction, toward a more humane future.
Congress can replicate this scenario today by removing the deadline on ERA ratification. There is no reason it can’t, whatever Trump’s Justice Department asserts.