Biden Attempts To Change The Constitution Via Press Release

It’s normal for elderly people with dementia to say things that don’t represent reality. It’s not so normal for those people to be president.

After years of fist-thumping about the “rule of law,” Joe Biden is ending his presidency with a bizarre attempt to press-release a constitutional amendment into existence.

“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 (or whatever staffer guides Biden’s hand) wrote on Friday morning.

The “Equal Rights Amendment,” which would prohibit the government from recognizing differences between women and men, died 43 years ago when it failed to obtain ratification by three-fourths of state legislatures. It’s dead in the water. For the president to declare it “law of the land” by fiat is as legally pointless as if a president declared into law the Corwin Amendment, which sought to bar the federal government from abolishing slavery and effectively died after Illinois became the fifth state to ratify it in 1863.

What Would the ERA Do?

An amendment ensuring that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” is designed to sound innocuous. But there are plenty of good ways our government and society treat women and men differently, based on the recognition that women and men are biologically different. Women aren’t required to register for Selective Service. Correctional facilities, shelters, and locker rooms are divided by sex for good reason. There are legal protections for pregnant and nursing mothers in the workplace. Under the ERA, those distinctions designed to protect women would be on the chopping block as fast as the ACLU could find a pervy male client who wants to sue his way into a women-only space.

Oh, and expect the left to leverage an ERA, if passed, to make abortion legal everywhere — after all, if men don’t have to be pregnant, how is it “equality” if women have to be?

While the ERA doesn’t mention “gender identity,” thanks to Justice Neil Gorsuch and the rest of the Supreme Court justices who sided with him in Bostock v. Clayton County, Georgia in 2020, there is judicial precedent for interpreting “sex discrimination” to include “discrimination” against people who identify as “transgender.” If the ERA is ever tacked onto the U.S. Constitution, it will be used mercilessly to force girls’ sports teams, women’s prisons, pastoral staff, and every space or employer you can imagine to welcome men in heels and lipstick.

But those are all things that would happen if the ERA became part of the U.S. Constitution. Despite leftists’ best efforts for the last century, the American people and their elected representatives have refused to turn such a problematic amendment into law.

43 Years Past Its Expiration Date

After several failures, the ERA was passed by Congress in 1972, with an amendment to exempt women from the draft notably failing. As a proposed amendment, it required ratification by three-fourths of state legislatures, or 38 states. When passing the ERA, Congress set a deadline requiring state ratifications to happen within seven years. As 1979 neared and Congress realized that wasn’t going to happen, they passed a legally dubious extension of the deadline to 10 years instead of seven. Even then, by the new deadline of 1982, only 35 states had ratified it and the amendment failed.

Thirty-five years later, the state of Nevada — followed by Illinois and Virginia — dusted off the expired ERA and decided to ratify it anyway, despite its legal irrelevance. After Virginia “ratified” the defunct amendment in 2020, the states pressured the Archivist of the United States to declare the expired ERA was suddenly law, an illegal maneuver the archivist declined to do. The states sued in D.C. court and lost twice.

Just last month, the archivist reminded everyone that “In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable.”

The Biden White House even admits Friday’s declaration “won’t have the force of law.” It’s not just an assault on the “rule of law,” but a bizarrely frivolous one. Biden’s weird Hail Mary accomplishes nothing but weakening the Constitution, and he knows it. Making it easier for Democrats to trample on the Constitution next time is the entire point.

Elle Purnell is the elections editor at The Federalist. Her work has been featured by Fox Business, RealClearPolitics, the Tampa Bay Times, and the Independent Women’s Forum. She received her B.A. in government from Patrick Henry College with a minor in journalism. Follow her on Twitter @_ellepurnell.