In an opinion issued on Wednesday, Jan. 26, the Department of Justice’s Office of Legal Counsel (OLC) helped clear the way for the Equal Rights Amendment, according to leading ERA advocates. In January of 2020, under Trump, the OLC issued an opinion arguing that Congress had no power to remove a seven-year timeline for ratification in the preamble of the ERA and that therefore three recent state ratifications were invalid. The OLC opinion issued by the Biden administration strongly affirms the power of Congress to remove the deadline. The opinion follows the overwhelming consensus among constitutional law scholars.
According to a recent amicus brief authored by former Stanford Law School Dean Kathleen Sullivan and signed by Laurence Tribe, Dorothy Roberts, Kimberlé Crenshaw, Catharine MacKinnon and 11 other top constitutional scholars:
“The language of Article V is mandatory: an amendment to the Constitution ‘shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states.’ Nor does the text of Article V envision a role for an executive branch officer to assert his discretion regarding the validity of the amendment. The text requires no additional action by Congress or by anyone else after ratification by the final State.”