The President of the United States has a great deal power and enormous responsibility. Upholding the Constitution is the main part of the job and everything any president does flows from the Constitution – or at least it should.
The United States has a founding and guiding document in our Constitution and fiercely guarding its principles and rights for every American is critical.
However, the Constitution has not always been a priority for the Biden Administration. Whether it is defying the Supreme Court in giving student loan bailouts, unconstitutional COVID-19 mandates, violating the First Amendment by pressuring tech companies to operate a massive censorship operation on American citizens, or violations of the 14th Amendment by trying to codify allowing men into girl’s and women’s sports and locker rooms and backing discriminatory race-based admissions in college.
On Biden’s way out the door, just three days before President Trump was inaugurated, Biden made an announcement on X/Twitter declaring the Equal Rights Amendment (ERA) - the 28th Amendment – was the law of the land.
The trouble is it simply isn’t the law of the land. It isn’t a part of the Constitution. There is a clear process to amend the Constitution and the ERA did not meet the threshold.
Biden’s own National Archivist had already pushed back on this idea saying in December 2024, “It is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.
Three-fourth of the states are required to have ratified the Amendment by 1982 and that did not happen. Even former Supreme Court Justice, Ruth Bader Ginsberg, agreed saying, “I would like to see a new beginning” for ERA ratification. Ginsberg considered the 1982 deadline binding.
Sen. Kirsten Gillibrand (D-NY) was furious that the Archivist would not certify the ERA saying she was “inserting herself into a clear constitutional process despite the fact that her role is purely ministerial.” Gillibrand wrote a long OpEd in the New York Times on the topic.
Joe Burns, election law expert and partner at Holtzman Vogel said, “In many respects, Biden’s statement on the ERA can be seen as a defeat for Sen. Gillibrand and those calling on Biden to order the Archivist to add the ERA as the Constitution’s newest amendment. Despite her efforts, all Gillibrand won was a press release from the outgoing president, and a press release does not ratify an amendment.”
Twitter (X) erupted at Biden’s 28th Amendment announcement. Sarah Isgur said, “Imagine is Donald Trump just declared that he amended the Constitution despite every court and the archivist denying its legitimacy.”
Ezra Klein said, “We are not enforcing the Tik-Tok ban that ‘we signed into law’ but we are unilaterally declaring the ERA ratified is an odd final play for the Biden Administration.”
“The role of the Archivist of the United States is to follow the law as it stands, ensuring the integrity of our nation’s governing institutions. Personal opinion or beliefs are not relevant; as the leaders of the National Archives, we support established legal processes and decisions,” concluded the National Archivist.