Biden did not try to unilaterally ratify the ERA but that’s not stopping the stupid commentary.
The post Every Time Someone Compares Biden’s ERA Statement To Trump’s Birthright Citizenship Order An Angel Has Its Wings Ripped Off appeared first on Above the Law.
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Before leaving office, Joe Biden issued a proclamation that he believed the Equal Rights Amendment cleared all Article V hurdles to become the Twenty-Eighth Amendment to the Constitution despite a congressional resolution setting a now-expired deadline for ratification.
The statement was and is entirely empty symbolism. Had he taken this stance earlier in his presidency or ordered his DOJ to take action based on the ERA then it might’ve meant something. Or, you know, tried to order the National Archivist to put it in the Constitution. As is, he dropped a constitutional law FYI on his way out the door.
Donald Trump signed an order to override the Fourteenth Amendment’s explicit birthright citizenship provision by executive fiat.
As Gus Fring would say, we are not the same.
And yet…
To be clear, Biden didn’t unilaterally do jack. Klein, an anthropomorphized NY Times Pitchbot joke, delivers his hot take while ignoring the active debate — whatever one thinks of its merits — over whether or not all of the state legislature ratifications of the ERA are valid. Multiple states think they are, Congress and the official position of the DOJ are that they are not. Biden expressed, without the force of any law whatsoever, that he thinks the states have the better of the argument. Cool story, bro.
Trafficking in this completely baseless “unilaterally” language just invites dunderheaded bothsideism.
Right on schedule.
One assumes that Isgur is being intentionally obtuse. Biden did not, by any stretch, claim he can ratify an amendment though press release. He agreed with state legislatures in Nevada, or Illinois, or Virginia who’ve taken the stance that their ratifications count toward the Article V requirement. That’s on their legislatures, not a press release.
Biden’s statement and Trump’s order are not “apples to apples” so much as “apples to rabies-infested raccoons.” This should be obvious when one is “statement” and the other is an “order” and yet here we are.
The ERA is probably not good law. When Congress first conveyed the proposed Amendment to state legislatures, it included preambulatory language setting a seven-year deadline for states to complete the ratification process. ERA proponents and the state legislatures that voted to ratify the amendment since that deadline have offered a few arguments, but the most powerful argument they make is that Congress lacks any constitutional authority to impose any time limit on the ratification process.
This is a question addressed in Dillon v. Gloss, 256 U.S. 368 (1921):
It will be seen that this article says nothing about the time within which ratification may be had — neither that it shall be unlimited nor that it shall be fixed by Congress. What then is the reasonable inference or implication? Is it that ratification may be had at any time, as within a few years, a century, or even a longer period, or that it must be had within some reasonable period which Congress is left free to define? Neither the debates in the federal convention which framed the Constitution nor those in the state conventions which ratified it shed any light on the question.
It was a very different time for the Supreme Court.
The limited government textualists or originalist philosophies that dominate the Court today would — if they were being honest with themselves — gag at the idea of inventing a power even though it’s not in the Constitution and not contemplated by the Framers. The Dillon opinion rests on the assertion that it would be absurd to believe the Framers expected proposed amendments to live forever… though that’s exactly how the Twenty-Seventh Amendment got proposed in 1791 and ratified in 1992.
In fact, it wasn’t until the 22nd proposed amendment — which would ultimately become the Eighteenth Amendment instituting Prohibition — that Congress imposed a deadline on an amendment’s ratification.
In Dillon, a petitioner facing charges over booze argued that the whole amendment was void because Congress tried to stick a deadline on it. The Court rejected this argument — while acknowledging that there was no text or history to back it up — because “As a rule, the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require….”
Go ahead and imagine Sam Alito signing off on Congress having implied powers to deal with “subsidiary matters of detail as… changing conditions may require” that aren’t mentioned in the Constitution.
Adding another wrinkle the Eighteenth Amendment included its deadline in the text of the Amendment. The ERA does not, opting instead to include it only in a resolution passed to convey the proposed amendment to the states because they thought it hurt the aesthetics of the Constitution to have deadline language permanently enshrined in the document. Yes, that is the sole reason they decided to take the language out of the substantive amendment. From Senator Kefauver:
The general idea was that it was better not to make the 7-year provision a part of the proposed constitutional amendment itself. It was felt that that would clutter up the Constitution. . . . We wanted to put the 7-year limitation in the preamble. So the intention of the preamble is that it must be ratified within 7 years in order to be effective.
Should it matter that the deadline is not in the proposed amendment but only in an attached FYI? Some states think so.
But it’s a close enough call that the DOJ had the Office of Legal Counsel prepare a memo on it. At the time, the DOJ concluded that Dillon should control and that moving the deadline from the text to a contemporaneous resolution shouldn’t matter.
Dillon is almost assuredly the right call. Congress should be able to set a deadline in order to avoid the sort of deadhand mischief that the Constitution by its structure — if not explicit text — is meant to prevent. Plus, I tend to believe in precedent. But that’s the sort of pragmatic living constitutionalism that this Court says we’re all supposed to reject even if it means overruling decades upon decades of precedent.
The ERA probably shouldn’t be considered the law of the land but also that the case against it rests on an old precedent that argues that text and history should give way to implied powers and that’s… more than enough for someone to take the position that it should be under the express terms of Article V.
It’s definitely more than enough for Biden to say he believes it but won’t act upon it.
On the other hand, an executive order is — to help Klein out — “unilateral.” It is, for Isgur’s sake, what the equivalent of a press release with legal force. And for both it is not, in any shape or form, “the same” as Biden’s statement.
Nor does it enjoy anywhere close to the slim but colorable support the ERA proponents have. The executive order signed by Trump states that “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” despite the text of the Fourteenth Amendment being as explicit on this point as Article V is not.
“The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof,” Trump writes, despite United States v. Wong Kim Ark, 169 U.S. 649 (1898) expressly holding that a child is a U.S. citizen when born in San Francisco even though “His father and mother were persons of Chinese descent, and subjects of the Emperor of China.” The order tries to play semantics over whether or not the parents were temporary as opposed to permanently in the U.S. at the time, which was all pretty well settled by Plyer v. Doe, 457 U.S. 202 (1982).
There’s not even a recognized implied power — the basis of the ERA deadline — for a president declaring the scope of a constitutional amendment. Congress has passed statutes mirroring the Amendment, solidifying its claim to whatever power exists to legislate the extent of the birthright citizenship language. It’s unmoored from any conceivable legal argument originating anywhere outside disgraced purveyor of law-like thought John Eastman’s fever dreams.
Defenders of Klein or Isgur will say, “they’re only comparing them to say both are bad.” Which is true. But it’s sort of like telling your server that you don’t care for pickles or being strung up by your testicles. It may be strictly accurate but it’s just a shade reductive. A non-binding expression of a good faith if ultimately wrong constitutional law argument is not the same as overturning the Constitution by fiat, full stop. Even if you’re saying you don’t agree with either, holding them out as comparable in any way just builds scaffolding for someone to take the position that the former justified the latter. Two things can be bad for different — important — reasons. I can agree that some people may not understand the merits of pickles while adhering to a firm “don’t hang people by their testicles” policy.
As hard as that might be for the mainstream media to fathom.
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
