This is to continue an article published in Texas Scorecard back on December 9, 2019, relative to efforts on the political left to jury-rig the long-expired 1972 proposed Equal Rights Amendment (ERA) into the United States Constitution by highly questionable means. To put matters into the clearest possible perspective, readers might want to review Part 1 before proceeding to read today’s Part 2.
Much has transpired since December 9, 2019, and today’s article will pick up where Part 1 left off.
Cognizant of the partisan shift in the complexion of both chambers of the Virginia General Assembly from majority Republican to majority Democrat after the dust settled in that state’s November 5, 2019, general election, the Trump administration’s Department of Justice (DOJ), on January 6, 2020, felt compelled to issue a pre-emptive 38-page binding memorandum (in the form of a “slip opinion”) concluding that the 1972 ERA had ceased to be pending business before the state legislatures literally decades ago. Hence, if Virginia legislators—or lawmakers in Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, or Utah, for that matter—were to subsequently belatedly “ratify” the long-expired 1972 measure, their doing so, according to the January 6 DOJ memorandum, would be a nullity and an exercise in futility. Belated ERA “ratifications” by Nevada lawmakers in 2017 and by Illinois lawmakers in 2018 were likewise deemed ineffectual by the dictates of the January 6, 2020, DOJ memorandum.
Further, that memorandum constrained the archivist of the United States—the official within the U.S. government tasked by federal law (1 U.S.C. §106b) to proclaim an amendment as having received enough ratifications within the nation’s state legislatures—from making any declaration to the effect that the 1972 ERA will have become the 28th Amendment to the federal Constitution if lawmakers in any of the 13 remaining “unratified” states were to favorably act. David S. Ferriero—a holdover from the Obama administration—is still the archivist of the United States and, as such, directs the agency known formally as the National Archives and Records Administration (NARA).
As promised, Virginia’s lawmakers convened at the State Capitol in Richmond and, 21 days from the publication of the DOJ’s memorandum, on January 27, 2020, did precisely as had been predicted—they completed the adoption of Senate Joint Resolution No. 1 as well as House Joint Resolution No. 1 to belatedly “ratify” the 1972 ERA. With that, the political left now insists that the legislatures of 38 of the 50 states (the three-fourths required by Article V of the U.S. Constitution) approved the 1972 ERA and thereby added the 47-year-old ERA to the federal Constitution as a result of that action by the Virginia General Assembly. In addition to that claim, the left also asserts that lawmakers in Nebraska, Tennessee, Idaho, and Kentucky (between 1973 and 1978) had no power to rescind their 1972 ratifications of the ERA and further assert that South Dakota lawmakers (on March 1, 1979) were without authority to sunset their own 1973 ratification of the 1972 measure as of the originally established ratification deadline of March 22, 1979.
Meanwhile, the left maintains that the pre-emptive 2020 DOJ memorandum cannot tie the hands of the archivist—who did not issue, at any time during calendar year 2020, a proclamation to the effect that the 1972 ERA has become the Constitution’s 28th Amendment.
Three lawsuits were filed both prior to, and after, Virginia’s January 27, 2020, tardy “ratification” of the 1972 ERA. They are:
(1) Alabama, et al. v. Ferriero;
(2) Equal Means Equal, et al. v. Ferriero (filed in a Massachusetts federal court); and
(3) Commonwealth of Virginia, et al. v. Ferriero
As the first two cases have since been dismissed, it is the third, and still-viable, lawsuit that court-watchers should continue to monitor. Filed—just three days after Virginia legislators acted—in the United States District Court for the District of Columbia, Commonwealth of Virginia, et al. v. Ferriero is now pending before Federal Judge Rudolph “Rudy” Contreras. Thus far, Contreras has held off from issuing any ruling—perhaps awaiting a more favorable political environment in 2021. In that lawsuit, complainants Virginia, Nevada, and Illinois ask the District Court to order the archivist to formally proclaim the 1972 ERA as the federal Constitution’s 28th Amendment.
On a separate path, the U.S. House of Representatives, on February 13, 2020, with a vote of 232 yeas and 183 nays, adopted House Joint Resolution No. 79 by Congresswoman Jackie Speir (D-California), et al., which purported to completely remove any deadline at all imposed by a prior Congress on state legislative consideration of the 1972 ERA. Her H.J. Res. 79 was offered under the assumption that Congress has the authority to alter—or indeed to totally dispense with—a previously established ratification deadline, pursuant to Speier’s interpretation of the U.S. Supreme Court’s 1939 decision in the case of Coleman v. Miller. After passing the House, Speier’s H.J. Res. 79 received no further consideration in the U.S. Senate, during the 116th Congress, than to be referred to that chamber’s Committee on the Judiciary.
That, however, is expected to change given the January 5, 2021, losses of Georgia’s Republican U.S. Sens. Kelly Loeffler and David Perdue. With a U.S. Senate that will now be tied at 50 Democrats and 50 Republicans, the status of New York’s Democrat Chuck Schumer will be significantly elevated. No longer relegated to secondary “minority leader” status, Schumer will wield much greater power in the now-commenced 117th Congress. And Vice President Kamala Harris, of course, will be a 51st vote for Democrats in the nation’s highest lawmaking body and will exercise her tie-breaking ability whenever the need to do so arises. No doubt, Rep. Speier will again introduce her House joint resolution for the consideration of her colleagues, and it—or an equivalent version originating within the Senate itself—will predictably reach the Senate floor for an upvote or downvote sometime in 2021 or 2022.
Separate and apart from that, with the January 20, 2021, inauguration of a new Biden administration, it is further possible that the upcoming Biden justice department will retract the January 6, 2020, DOJ memorandum of the Trump administration and replace it with a revised memorandum arriving at the very different conclusion that the 1972 ERA is indeed still pending before the nation’s state lawmakers and that the 47-year-old measure still could end up embedded into the Constitution as the document’s 28th Amendment. With or without a new deadline-eliminating joint resolution offered in 2021 by Ms. Speier, or any other member(s) of Congress, the Biden administration’s DOJ replacing the 2020 Trump administration memorandum with a favorable missive would, of course, unshackle the hands of Archivist Ferriero to immediately issue a proclamation belatedly declaring that the 1972 ERA formally became the federal Constitution’s 28th Amendment back on January 27, 2020.
Biden’s own website contains the following tidbit: “Now that Virginia has become the 38th state to ratify the  ERA, Biden will proudly advocate for Congress to recognize that 3/4th of states have ratified the amendment… .”
As they had done in their 2018 platform, Texas Republicans again—in their 2020 state platform— pleaded with GOP Texas state lawmakers as follows:
78. Equal Rights Amendment: We call upon the 87th Texas Legislature to adopt a resolution clarifying that the 1972 ratification by the 62nd Texas Legislature of the proposed Equal Rights Amendment to the United States Constitution was valid only through March 22, 1979.
Whether any member(s) of the 87th Texas Legislature—which commences on January 12, 2021—even bother to actually offer such a resolution remains to be seen.
It is important to keep in mind that, in American jurisprudence, sometimes silence is construed as consent. This legal doctrine is known by the Latin phrase “Qui tacet consentit.” Ergo, if states like Texas stand idly by and simply say or do nothing at all, ERA advocates—and perhaps federal courts, too—will interpret such non-response as equating to agreement with the “strategy” of ERA supporters to belatedly shoehorn the 1972 ERA into the federal Constitution by aberrant and divergent methods.
Accordingly, utter inaction on the part of lawmakers in several states, including Texas, which ratified the ERA during the 1970s would not be wise or advisable. While it really isn’t fair to arbitrarily assume that states which ratified the Equal Rights Amendment back in the 1970s are still onboard with the 47-year-old measure today, in the year 2021, when those states were operating on the original belief at the time that the 1972 ERA would expire on March 22, 1979, if not ratified in 38 states by that deadline. Nevertheless, silence, coupled with total and complete lack of action, could be construed to mean consent.
Whatever impact any of the above factors have upon the aforementioned Judge Contreras likewise remains to be seen.
This is a commentary submitted and published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to [email protected].