President Biden declared on Friday that he believes that the Equal Rights Amendment has met the requirements of ratification and therefore is now part of the Constitution, but he declined to order the government to finalize the process by officially publishing it.
“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,” Mr. Biden said in a statement.
Under the Constitution, however, the president has no direct role in approving amendments and his statement has no apparent legal force by itself. The archivist of the United States, a Biden appointee, has until now refused to formally publish the amendment on the grounds that it has not met the requirements to become part of the Constitution.
Aides said that Mr. Biden was not ordering the archivist to reverse her position and publish the amendment, but advocates said they believe it is possible that she will take his public statement as guidance that permits her to do so. The archivist made no immediate comment, leaving the status of the amendment unclear.
Mr. Biden’s decision to weigh in just three days before leaving office on an issue that has divided the country for generations amounts to a remarkable last effort to bring about profound change and shape his own legacy, but it was not clear whether it was just a symbolic act on his part or a move that would lead to action by the archivist.
The Equal Rights Amendment was first proposed more than a century ago and taken a circuitous route to ratification. While it passed Congress in 1972 and over the next few years was ratified by most states, it fell short of the three-quarters required under the Constitution until January 2020 when Virginia became the 38th state to ratify it.