Biden says the Equal Rights Amendment is law. What happens next is unclear

President Biden on Friday declared that he considers the Equal Rights Amendment to the Constitution is “the law of the land,” a surprising declaration that does not have any formal force of effect, but that is being celebrated by its backers, who plan to rally today in front of the National Archives.

The amendment would need to be formally published or certified to come into effect by the National Archivist, Colleen Shogan — and when or if that will happen is unclear.

The executive branch doesn’t have a direct role in the amendment process, and Biden is not going to order the archivist to certify and publish the ERA, the White House told reporters on a conference call. A senior administration official said that the archivist’s role is “purely ministerial” in nature, meaning that the archivist is required to publish the amendment once it is ratified.

The 1970s-era amendment passed by Congress would guarantee men and women equal rights under the law, but it took until 2020 for enough state legislatures to ratify it, missing a deadline set by Congress by a long shot. ERA proponents have argued that the deadline was not binding because it was in the preamble to the amendment, rather than the text of the amendment itself.

On Friday, Biden said he believed the ERA had cleared the hurdle to be added to the Constitution as its 28th Amendment when Virginia ratified it five years ago. He did not explain why he waited until the waning days of his presidency to take action.

“It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” Biden said in a brief written statement.

His move comes after a campaign from Democratic lawmakers, including Sen. Kirsten Gillibrand, D-N.Y., who has said it would be a way to protect abortion rights. Gillibrand has said she expects that the matter will end up in the Supreme Court.

The issue has long been the subject of legal controversy. In 2020, the National Archivist – who is charged with making constitutional amendments official – declined to certify the amendment, citing an opinion from the Justice Department’s Office of Legal Counsel. The department said it considered the ERA to be expired after a 1982 ratification deadline was missed. In 2022, the Office of Legal Counsel released an opinion affirming that 2020 decision.

Shogan, a Biden appointee and the first woman archivist, said in her 2022 confirmation hearing that she would abide by the Office of Legal Counsel’s opinion saying the ERA’s fate would be decided by courts or Congress. Last month, Shogan reiterated that Congress and the courts would need to take further action to lift the deadline for the amendment to be ratified – arguing that it could not legally certify and publish the ERA.