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American Constitution Society President Russell Feingold leads a Jan. 17, 2025, rally at the National Archives highlighting former President Joe Biden's decision to declare the Equal Rights Amendment the Constitution’s 28th amendment. (AP)
A deadline for states to ratify the Equal Rights Amendment expired in 1982, but some states ratified it afterward. Some scholars argue the deadline is unconstitutional.
Other legal experts said the deadline is part of Congress’ power to amend the Constitution.
No federal court has recognized the amendment’s legitimacy, and it hasn’t been published by the national archivist.
Days before leaving office, former President Joe Biden said that 38 states had ratified the Equal Rights Amendment, an anti-sex-discrimination law Congress passed in 1972 — enough to make it the U.S. Constitution’s 28th Amendment.
Biden said he believes the amendment is in effect after Virginia became the 38th state to ratify it in 2020. Biden said he agreed with opinions by the American Bar Association and "leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution." The deadline for states to ratify the amendment passed nearly four decades before Virginia ratified it.
"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 written statement.
Biden’s claim rests on legal interpretations that a ratification deadline Congress imposed when proposing the amendment is unconstitutional. Proponents of the Equal Rights Amendment have pushed for its recognition on these grounds, but other legal scholars consider the argument flawed.
No court in the country has recognized the amendment’s legitimacy, and the national archivist hasn't published it, despite efforts from activist groups to have the amendment recognized.
When Congress passed the Equal Rights Amendment, which guaranteed protection against sex-based discrimination, the resolution set a seven-year time limit for three-fourths of the states to ratify the amendment and make it part of the Constitution. In 1979, Congress voted to extend the deadline by three years, to 1982.
Not enough states ratified the amendment by 1982, but, in the intervening years, more states ratified the amendment despite the time limit on the original proposal. Five states withdrew their ratifications in the 1970s, and North Dakota did so in 2021. The debate over the amendment centers on the ratification deadline’s validity and the states’ withdrawals.
Biden’s assessment is largely symbolic. His own Office of Legal Counsel in 2022 mostly supported an opinion from President Donald Trump’s first administration that said the amendment died when the 1982 deadline passed without the necessary support from three-fourths of the states.
During his first term, Trump asked courts to block the amendment’s adoption.
National Archivist Colleen Shogan, a Biden appointee who oversees the National Archives and Records Administration and directs publishing constitutional amendments, said in December that the Equal Rights Amendment cannot be certified "due to established legal, judicial, and procedural decisions."
In a Jan. 20 statement to PolitiFact, a National Archives and Records Administration spokesperson said the amendment’s "underlying legal and procedural issues have not changed."
Biden did not direct the national archivist to publish the amendment. Biden’s White House press team did not respond to a request for comment.
Some legal experts say the amendment became part of the Constitution when Virginia ratified it in 2020, arguing the time limit and state rescissions are not constitutionally valid.
Harvard University law professor Laurence Tribe, who focuses on constitutional law and civil rights, told PolitiFact he was one of the scholars Biden spoke to before issuing his statement. Tribe said the Constitution’s Article V, which lays out the amendment process, doesn’t authorize Congress to set time limits on ratification outside the amendment’s text.
Congress has periodically set time limits for ratification in the amendment’s text, as it did with the 18th Amendment on prohibition. In other cases, Congress has proposed time limits in resolutions proposing amendments, rather than in the amendment itself.
Tribe also said the states that rescinded their ratification — Nebraska, Tennessee, Idaho, Kentucky, South Dakota and North Dakota — lacked legal grounds to do so, given a dispute over the ratification of the 14th Amendment. After the Civil War, some states tried to rescind their ratification of the 14th Amendment, which guaranteed equal protection under the law for formerly enslaved people. Congress denied those efforts and declared the amendment enacted after enough states had ratified it.
A federal court in Idaho ruled in 1982 that states could rescind their ratifications for the Equal Rights Amendment. The Supreme Court did not decide on the question because it dismissed the case after the ratification deadline had passed.
The American Bar Association approved a resolution in August aligning with Biden’s opinion and arguing that the limitations on the ratification process are invalid.
Courts have generally not backed Biden’s view of the amendment’s validity.
The U.S. Supreme Court has not ruled on the question directly, but a lower court judge said in 2021 that the existing precedent supports the argument that the time limit is legally enforceable.
The Supreme Court declined to hear the 1982 case that sought to prevent some states from rescinding their ratification of the amendment, declaring the issue moot after the ratification deadline had passed. The court’s decision to dismiss the case meant it believed the deadline had legal force, experts have argued.
States and activists brought separate court cases around the time Virginia ratified the amendment, hoping to compel the then-National Archivist David Ferriero to certify the amendment as ratified. Both were denied because the groups lacked standing.
Accounting for the Supreme Court’s refusal to consider a case after the deadline had passed, along with other legal history, District Judge Rudolph Contreras ruled that the amendment’s deadline was valid in a 2021 opinion.
"It makes no difference if a ratification deadline is in the prefatory text of a resolution proposing an amendment or in the amendment itself — either way, the deadline is valid," he wrote.
Stephen Sachs, a constitutional law professor and jurisprudence expert, said the amending resolution’s text has equal force as the amendment itself.
"The resolution is the amendment: it’s agreed on by two-thirds of each House, and it specifies the precise changes to the Constitution that Congress wants to make," Sachs said. Even though Article V doesn’t expressly say Congress can impose deadlines, Sachs said it has the power to "propose Amendments," which includes proposals that come with conditions.
Given the judicial history on the issue, Sachs said Biden’s claim about the Equal Rights Amendment was "wildly overconfident and irresponsible."
Biden said, "The Equal Rights Amendment has become part of our Constitution."
The National Archives lists only 27 amendments to the Constitution. Courts have routinely dismissed the argument that it was properly ratified.
Some legal scholars argue that the amendment was properly ratified, but for Biden to definitively say it’s "the law of the land" ignores precedent and the reality that no federal government entity has recognized the amendment as part of the Constitution.
We rate Biden’s claim False.
White House, Statement from President Joe Biden on the Equal Rights Amendment, Jan. 17, 2025
Phone interview with Harvard University law professor Laurence Tribe, Jan. 20, 2025
Email interview with Harvard University law professor Stephen Sachs, Jan. 20, 2025
Email interview with Stanford University law Professor Michael McConnell, Jan. 20, 2025
Phone interview with Northwestern University law professor Andrew Koppelman, Jan. 20, 2025
Laurence Tribe and Kathleen Sullivan, The Equal Rights Amendment at Long Last, Jan. 17, 2025
Brennan Center for Justice, The Equal Rights Amendment Explained, Jan. 23, 2020
National Constitution Center, Can the Equal Rights Amendment be brought back to life? | Constitution Center, Jan. 15, 2025
White House Office of Legal Counsel, Effect of 2020 OLC Opinion on Possible Congressional Action Regarding Ratification of the Equal Rights Amendment, Jan. 26, 2022
National Archives, Statement on the Equal Rights Amendment Ratification Process, Dec. 17, 2024
National Archives, Article V, U.S. Constitution, accessed Jan. 20, 2025
Library of Congress, Eighteenth Amendment, accessed Jan. 21, 2025
Reason, New Light on the ERA? Sept. 13, 2025
Congress.gov, Effect of Prior Rejection of an Amendment or Rescission of Ratification, accessed Jan. 21, 2025
American Bar Association, Resolution on the Equal Rights Amendment, Aug. 5, 2025
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