Maloney Issues Statement on Biden Administration Memo on Ratifying the ERA

WASHINGTON, DC – On January 27, Rep Carolyn B Maloney, Chairwoman of the Committee on Oversight and Reform, issued the following statement on the release of an opinion from the Biden Administration’s Office of Legal Counsel (OLC) regarding the ratification of the Equal Rights Amendment (ERA):

“The Equal Rights Amendment has been ratified by 38 states, completed the required waiting period, and met all constitutional requirements for ratification. The ERA should be added to the Constitution immediately. Following my request, the Biden Administration’s Justice Department has now revisited a flawed Trump-era legal memo that tried to block recognition of the ERA’s ratification. The Justice Department’s new analysis acknowledges serious weaknesses in the Trump-era memo and clarifies that Congress— not the executive branch— is in control of amending the Constitution. In light of this, the Administration must not stand in the way of recognizing the ERA’s ratification, and should immediately instruct the Archivist of the United States to perform his duty under the law to publish the ERA as the 28th Amendment to the Constitution.”

In January 2020, the Trump Administration’s OLC issued a legal opinion weeks before Virginia ratified the ERA, attempting to block completion of the ratification process by directing the Archivist of the United States not to fulfil his statutory duty to certify and publish the amendment once it met the constitutional requirements. On January 8, 2020, the National Archives and Records Administration stated that it would “abide by the OLC opinion.”

On October 21, 2021, Chairwoman Maloney sent a letter to President Biden and Vice President Harris sharing a legal analysis from constitutional scholars affiliated with Columbia Law School’s ERA Project, concluding that the Trump Administration’s OLC opinion is legally unsound and should be withdrawn. The analysis found that the OLC opinion “sought to advance a policy preference against the ERA,” and is “lacking a thoroughly reasoned understanding of precedent and Congressional power under the Constitution.” Since October, some of the most prominent legal and constitutional scholars in the country have added their support and signatures to the analysis.

On January 26, 2022, Chairwoman Maloney joined Senators Richard Blumenthal, Amy Klobuchar and Catherine Cortez Masto, and Representative Jackie Speier in sending a letter to the OLC calling on them to withdraw the Trump Administration’s OLC opinion.

Two years ago, the ERA was ratified by the state of Virginia, the 38th and final state needed to meet the requirements of Article V of the U.S. Constitution for ratification of a constitutional amendment. Today, two years after ratification, the ERA goes into effect as the 28th Amendment to the Constitution.


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