(Photo
by
Anna
Moneymaker/Getty
Images)
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.
Earlier:
Newsweek
Says
Kamala
Harris
Essay
Not
‘Racist
Birtherism’
(Psst,
It’s
Totally
Racist
Birtherism)
Trump
Coup
Lawyers
Clark
And
Eastman
Going
Through
Some
Things
With
State
Bars
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
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sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.