Senate Democrat Slams ‘Purely Ministerial’ Archivist Over Equal Rights Amendment Failure
Biden was seen as last hope to publish longstanding recognition of women’s rights
A Senate Democrat is denouncing the national archivist because she is refusing to certify the long-overdue Equal Rights Amendment, or ERA.
Sen Kirsten Gillibrand, of New York, has been a vocal proponent of having President Biden finally publish the amendment before he leaves office next month.
First introduced more than a century ago, the ERA would explicitly prohibit sex discrimination.
But before Biden could publish the amendment, Archivist Colleen Shogan would have to certify it, which she and her deputy now are declining to do, due to “legal, judicial and procedural decisions.”
Although it was eventually ratified by by 38 states, surpassing the required threshold, that didn’t happen within the mandated timeframe.
Gillibrand, however, is having none of Shogan’s argument.
“The archivist is correct that she has a responsibility to uphold the law. Unfortunately, by refusing to certify the ERA, she is wrongfully inserting herself into a clear constitutional process, despite the fact that her role is purely ministerial,” the senator said in a statement.
Gillibrand called Shogan’s arguments “deeply flawed in multiple ways.”
“First, the 2022 Office of Legal Counsel memo did not affirm that a deadline was valid and enforceable; rather, it said that the deadline remained an open legal question. Furthermore, it should be obvious that the Trump administration’s 2020 OLC memo was a political document, given its departure from prior OLC opinions and its problematic reliance on superseded and invalid precedent,” Gillibrand’s statement said. “Clearly, it was issued as an attempt to kill the ERA after it had met the necessary requirements for certification. Finally, the simple truth is that OLC memos are advisory in nature and can easily be disregarded by the current administration.
“Second, the statement mischaracterizes the district and circuit court decisions, which did not affirm that the ratification deadlines set by Congress were valid,” the statement added. “In reality, the district court found that the parties lacked standing, and the circuit court found that the standard for injunctive relief was not met.
“Third, there is no shortage of precedent demonstrating that so-called deadlines in the preamble of legislation—not in the text itself—are inoperative. In fact, the Constitution does not grant Congress the power to set ratification deadlines for amendments at all, nor does it include any timeliness requirement of its own,” the statement said. “A previous archivist certified and published an amendment written more than two hundred years before its ratification.”
Gillibrand said that she would not give up.
“Our argument has strong support from legal experts, twenty-three attorneys general, and the American Bar Association. I continue to urge President Biden to direct the archivist to certify and publish the ERA and enshrine equality for all in the Constitution,” her statement said.
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