![\"President](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2021\/12\/joe-biden-GettyImages-1356833576-300x200.jpg?resize=300%2C200&ssl=1\" "\\"\\"")
<\/p>\n(Photo by Anna Moneymaker\/Getty Images)<\/p>\n<\/div>\n
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.<\/p>\n
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\u2019ve meant something. Or, you know, tried to order the National Archivist to put it in the Constitution<\/em>. As is, he dropped a constitutional law FYI on his way out the door.<\/p>\n Donald Trump signed an order to override the Fourteenth Amendment\u2019s explicit birthright citizenship provision by executive fiat.<\/p>\n As Gus Fring would say, we are not the same.<\/p>\n And yet\u2026<\/p>\n To be clear, Biden didn\u2019t unilaterally<\/em> do jack. Klein, an anthropomorphized NY Times Pitchbot<\/a> joke, delivers his hot take while ignoring the active debate \u2014 whatever one thinks of its merits \u2014 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.<\/p>\n Trafficking in this completely baseless \u201cunilaterally\u201d language just invites dunderheaded bothsideism.<\/p>\n Right on schedule.<\/p>\n One assumes that Isgur is being intentionally obtuse. Biden did not, by any stretch, claim he can ratify an amendment though press release<\/em>. He agreed with state legislatures in Nevada, or Illinois, or Virginia who\u2019ve taken the stance that their ratifications count toward the Article V requirement. That\u2019s on their legislatures, not a press release.<\/p>\n Biden\u2019s statement and Trump\u2019s order are not \u201capples to apples\u201d so much as \u201capples to rabies-infested raccoons.\u201d This should be obvious when one is \u201cstatement\u201d and the other is an \u201corder\u201d and yet here we are.<\/p>\n 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.<\/p>\n This is a question addressed in\u00a0Dillon v. Gloss<\/em><\/a>, 256 U.S. 368 (1921):<\/p>\n It will be seen that this article says nothing about the time within which ratification may be had \u2014 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.<\/p>\n<\/blockquote>\n It was a very<\/em> different time for the Supreme Court.<\/p>\n The limited government textualists or originalist philosophies that dominate the Court today would \u2014 if they were being honest with themselves \u2014 gag at the idea of inventing a power even though it\u2019s not<\/em> in the Constitution and not<\/em> contemplated by the Framers. The Dillon<\/em> opinion rests on the assertion that it would be absurd to believe the Framers expected proposed amendments to live forever\u2026 though that\u2019s exactly how the Twenty-Seventh Amendment got proposed in 1791 and ratified in 1992.<\/p>\n In fact, it wasn\u2019t until the 22nd proposed amendment \u2014 which would ultimately become the Eighteenth Amendment instituting Prohibition \u2014 that Congress imposed a deadline on an amendment\u2019s ratification.<\/p>\n In Dillon<\/em>, 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 \u2014 while acknowledging that there was no text or history to back it up \u2014 because\u00a0\u201cAs 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\u2026.\u201d<\/p>\n Go ahead and imagine Sam Alito signing off on Congress having implied<\/em> powers to deal with \u201csubsidiary matters of detail as\u2026 changing conditions may require\u201d that aren\u2019t mentioned in the Constitution.<\/p>\n 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:<\/p>\n 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.<\/p>\n<\/blockquote>\n Should it matter that the deadline is not in the proposed amendment but only in an attached FYI? Some states think so.<\/p>\n But it\u2019s a close enough call that the DOJ had the Office of Legal Counsel prepare a memo on it<\/a>. At the time, the DOJ concluded that Dillon<\/em> should control and that moving the deadline from the text to a contemporaneous resolution shouldn\u2019t matter.<\/p>\n Dillon<\/em> 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 \u2014 if not explicit text \u2014 is meant to prevent. Plus, I tend to believe in precedent. But that\u2019s the sort of pragmatic living constitutionalism that this Court says we\u2019re all supposed to reject even if it means overruling decades upon decades of precedent.<\/p>\n The ERA probably shouldn\u2019t 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\u2019s\u2026 more than enough for someone to take the position that it should be under the express terms of Article V.<\/p>\n It\u2019s definitely more than enough for Biden to say he believes it but won\u2019t act upon it.<\/p>\n On the other hand, an executive order is \u2014 to help Klein out \u2014 \u201cunilateral.\u201d It is, for Isgur\u2019s sake, what the equivalent of a press release with legal force. And for both it is not, in any shape or form, \u201cthe same\u201d as Biden\u2019s statement.<\/p>\n Nor does it enjoy anywhere close to the slim but colorable support the ERA proponents have. The executive order signed by Trump<\/a> states that \u201cBut the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,\u201d despite the text of the Fourteenth Amendment being as explicit on this point as Article V is not.<\/p>\n \u201cThe Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not \u201csubject to the jurisdiction thereof,\u201d Trump writes, despite United States v. Wong Kim Ark<\/em><\/a>, 169 U.S. 649 (1898) expressly holding that a child is a U.S. citizen when born in San Francisco even though \u201cHis father and mother were persons of Chinese descent, and subjects of the Emperor of China.\u201d 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<\/em><\/a>, 457 U.S. 202 (1982).<\/p>\n There\u2019s not even a recognized implied power \u2014 the basis of the ERA deadline \u2014 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\u2019s unmoored from any conceivable legal argument originating anywhere outside disgraced<\/a> purveyor of law-like thought John Eastman\u2019s fever dreams<\/a>.<\/p>\n Defenders of Klein or Isgur will say, \u201cthey\u2019re only comparing them to say both are bad.<\/em>\u201d Which is true. But it\u2019s sort of like telling your server that you don\u2019t care for pickles or being strung up by your testicles. It may be strictly accurate but it\u2019s 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<\/em>, full stop. Even if you\u2019re saying you don\u2019t 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 \u2014 important \u2014 reasons. I can agree that some people may not understand the merits of pickles while adhering to a firm \u201cdon\u2019t hang people by their testicles\u201d policy.<\/p>\n As hard as that might be for the mainstream media to fathom.<\/p>\n Earlier<\/strong>: Newsweek Says Kamala Harris Essay Not \u2018Racist Birtherism\u2019 (Psst, It\u2019s Totally Racist Birtherism)<\/a> Biden did not try to unilaterally ratify the ERA but that’s not stopping the stupid commentary. The post Every Time Someone Compares Biden\u2019s ERA Statement To Trump\u2019s Birthright Citizenship Order An Angel Has Its Wings Ripped Off appeared first on Above the Law. (Photo by Anna Moneymaker\/Getty Images) Before leaving office, Joe Biden issued a […]<\/p>\n","protected":false},"author":0,"featured_media":101320,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,17],"tags":[],"class_list":["post-101319","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law","category-legal_matters"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/01\/joe-biden-GettyImages-1356833576-k2cQjF.jpeg?fit=1024%2C683&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/101319","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=101319"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/101319\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/101320"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=101319"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=101319"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=101319"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"Screenshot](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2025\/01\/Screenshot-2025-01-21-at-11.40.56%E2%80%AFAM.png?resize=515%2C126&ssl=1\" "\\"\\"")
<\/p>\n![\"Screenshot](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2025\/01\/Screenshot-2025-01-21-at-11.06.17%E2%80%AFAM.png?resize=521%2C380&ssl=1\" "\\"\\"")
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Trump Coup Lawyers Clark And Eastman Going Through Some Things With State Bars<\/a><\/p>\n
\n![\"Headshot\"](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2016\/11\/Headshot-300x200.jpg?resize=188%2C125&ssl=1\" "\\"\\"")
Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"