House ERA resolution heads to Senate
Last week, the House of Representatives passed a resolution that would rescind the deadline for ratification of the Equal Rights Amendment. Its fate today rests with the Senate, which is not expected to act immediately on a similar measure.
On February 13, the House of Representatives passed a resolution that would rescind the deadline for ratification of the Equal Rights Amendment by a vote of 232 to 183, mostly along party lines. Five Republicans supported the resolution, along with 227 Democrats.
A similar joint resolution sponsored in the Senate by Senators Ben Cardin and Lisa Murkowski states that the amendment proposed in 1972 “shall be valid to all intents and purposes as part of the Constitution whenever ratified by the legislatures of three-fourths of the several States.”
Senate Majority Leader Mitch McConnell would need to support moving the Senate version to a full floor vote. So far, McConnell has not publicly commented on the amendment-deadline resolution’s progress in the Senate. Many observers believe the measure would not attract a majority voted needed for passage.
In January 2020, Virginia became the 38th state to ratify the amendment since it was first proposed by Congress in 1972. However, when Congress proposed the ERA it imposed a seven-year ratification deadline, and only 35 states had ratified the amendment by the deadline. (Congress later extended the deadline by three years, to 1982, but no new states ratified the ERA during that time.)
As previously discussed on our coverage, Virginia’s action raised a number of constitutional questions, including whether the ERA ratification deadline is valid and, if so, whether a subsequent Congress has the power to remove the deadline. In January, the Department of Justice’s Office of Legal Counsel (or OLC) released an opinion concluding that the ERA is no longer pending before the States for ratification, and therefore that Congress cannot now extend or remove the ratification deadline.
Senators Cardin and Murkowski, in a statement last month, disputed the OLC’s finding. “We disagree with the Justice Department’s opinion that states can no longer ratify the Equal Rights Amendment (ERA). Congress certainly has the authority under Article V of the Constitution to set and change deadlines for the ratification of constitutional amendments, and has done so on numerous occasions. There is no reason to put a time limit on achieving equality under the law. We will continue to pursue our legislative efforts in the House and Senate to remove any legal ambiguities regarding the ERA ratification deadline.”
But also on February 13, Rep. Doug Collins said on the House floor that he believed Congress lacked the authority to change the ratification deadline. “The United States Supreme Court recognized this in 1982 when it stated the issue was moot because the deadline for the ERA ratification expired before the requisite number of states approved it,” he stated.
Robert Black is Senior Fellow for Constitutional Content at the National Constitution Center.