A helpful explainer^[1] from Emily Amick on the history of the ERA, and the legal issues that suggest President Biden’s recent assertion is legally meaningless, in large part due to the amendment’s ratification deadline—plus an interesting take:

Legally, I think it’s pretty clear the congressional ratification deadline is law, and therefore needs to be extended in order to ratify the ERA. There is a political argument here to push for ratification, and even to steamroll Biden into doing this to force Trump’s hand-picked Supreme Court to overturn it (under Trump’s watch). This could create a galvanizing moment for further political organizing.

The problem is that this isn’t who Joe Biden is. He isn’t someone who will do something contravening Supreme Court precedent, and I don’t think this is the issue he is going to evolve for.

She wrote this in December, 2024 and later added a postscript:

The more I’ve thought about this the more I’ve realized what a terrible strategic move this idea was. If Biden were to force the Archivist to publish the ERA, it would have gotten litigated and gone to the majority-conservative Supreme Court. They would undoubtedly overturn the decision, and in doing so would likely make arguments similar to those we saw in the 2020 Trump OLC memo. They would give us a binding decision that Congress can’t fix the ratification deadline. The actual result of this would be to make it nearly impossible to ever get the ERA as an actual part of the Constitution. This strategic mess is emblematic of the leadership we’ve seen from feminist organizations who oversaw the fall of Roe, legally, politically and optically flawed.

I don’t think President Biden was “steamrolled” into this, and clearly he’s “evolved” at least a little bit on the matter. While he hasn’t pushed the Archivist to ratify, I agree with Amick’s assessment that Biden’s decision was meant to create a “galvanizing moment,” but I don’t agree that it was a strategic blunder.

Time will tell, but I’m glad President Biden is doing something to nudge along a 50-plus-year amendment.