ERA, 28th Amendment Possibly Ratified, now part of constitution

[True Federalist (진정한 연방 주의자)]

This is going to drive so many Supreme Court decisions of unanswered questions, which is not a bad thing.

This blatantly goes against the text as far as length of time, so do deadlines apply in constitutional amendments being approved? For the Equal Rights Amendment to stand, the answer has to be no.

Does a legislature rescinding previous approvals have any standing? For the Equal Rights Amendment to stand, the answer has to be no.

The rescending approvals answer has a lot to deal with the call for an Article V Convention.

There's no mention of setting deadlines anywhere in Article V.  I don't see how Congress gets to enforce a time limit on the process if there's no time limit on the process anywhere in the constitutional text and there's also the precedent of finishing a ratification in the 1990's that started in the 18th century in the case of the 27th Amendment.

However, if there is no time limit, the argument against state rescissions becomes much weaker.  I think the likeliest outcome is that SCOTUS would rule against enforcing the deadline but in favor of the state rescissions.  If that happens, the amendment would be a live issue, but it would need at least 4 more states to ratify for it to take effect.  If VA ratifies it, it will have been ratified by all states where Democrats currently control the state government.  There are also many ratifying states that currently have Republican legislatures that could vote to revoke. 

In the case of the 27th amendment, no time limit was ever specified, so its not relevant to this case, where not only was a time limit given, but it was extended while it was being ratified. Even if one accepts that Congress can extend a time limit during a ratification period, given the explicit ban in the Constitution on ex post facto laws, I don't see how Congress could do so after the limit has expired. The only way the ERA can be considered as ratified is if time limits are invalid and state recissions during ratification are invalid. I think it extremely unlikely both will be accepted by either the current Congress or SCOTUS.

[True Federalist (진정한 연방 주의자)]

The ball is now in the hands of the Archivist of the U.S.

Under 1 USC 102b he has the responsibility of announcing when Amendments have been ratified.

If he doesn't, I expect someone who would benefit from the amendment being in place to eventually sue for a writ of mandamus to compel such an announcement.

If he does, eventually someone who is adversely affected by the amendment will sue seeking to have his announcement overturned.

Either way, because of the two year time delay in the amendment taking effect once ratified, I find it extremely unlikely the courts will find that anyone has standing to sue until January 15, 2022, the earliest date it could possibly come into effect.

The difficulty will be in finding someone with standing. Already most Federal and State laws are gender neutral. Because of the 19th Century Civil Rights Cases, it's clear that passage of the amendment, if it is deemed to have happened, won't be considered to affect private actions in any way.

(The CRA of 1964 is deemed a use of Congress' power under the Commerce Clause.)

[True Federalist (진정한 연방 주의자)]

There are numerous potential challenges to the purported passage of the amendment. Since SCOTUS typically tries to resolve the fewest possible issues, I suspect that the eventual decision will be to affirm NOW vs. Idaho and rule that since Congress has not attempted to further extend the ratification deadline, the issue is still moot and that the amendment has not been adopted. It will be silent on what would be the effect if Congress were to attempt a further extension of the deadline, or whether such an extension requires two-thirds of each house.

[True Federalist (진정한 연방 주의자)]

The ball is now in the hands of the Archivist of the U.S.

Under 1 USC 102b he has the responsibility of announcing when Amendments have been ratified.

If he doesn't, I expect someone who would benefit from the amendment being in place to eventually sue for a writ of mandamus to compel such an announcement.

If he does, eventually someone who is adversely affected by the amendment will sue seeking to have his announcement overturned.

Either way, because of the two year time delay in the amendment taking effect once ratified, I find it extremely unlikely the courts will find that anyone has standing to sue until January 15, 2022, the earliest date it could possibly come into effect.

The difficulty will be in finding someone with standing. Already most Federal and State laws are gender neutral. Because of the 19th Century Civil Rights Cases, it's clear that passage of the amendment, if it is deemed to have happened, won't be considered to affect private actions in any way.

(The CRA of 1964 is deemed a use of Congress' power under the Commerce Clause.)

To some scholars, the ERA is already dead. But one or two scholars do not have the authority to settle this, so I think you're right, TF. Does the Archivist have two years to figure this out?

The Archivist is supposed to make a determination as soon as NARA has received notice of ratification from the necessary number of States. The two year delay is because by the terms of the amendment itself, it doesn't take effect for two years (presumably to give governments time to make the necessary adjustments) and until it theoretically could've taken effect, I can't see anyone likely to have standing to sue over whether the ERA has been adopted or not.

[True Federalist (진정한 연방 주의자)]

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will not allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

[True Federalist (진정한 연방 주의자)]

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will mot allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

And maybe not even 2021, because if its a very narrow democratic majority, filibuster abolishment won't happen, and I don't see deadline removal getting 8 or 9 republican votes.

Even still, there would be issues of whether a deadline can be removed after it passes and whether the states that rescinded passing the amendment had the right to do so.

In any case, I said that it would be 2021 at the earliest, not that it would happen in 2021.

Moreover, even if deadlines are changeable, arguably it would take the same supermajority needed to propose an amendment to begin with. Then there's the issues of whether States can withdraw ratification before the necessary three-quarters have done so, and whether Congressional extension of a deadline must preceed States can resume efforts to ratify a proposed amendment.

[True Federalist (진정한 연방 주의자)]

No previous constitutional amendment allowed states to rescind their ratifications, so why should an exception be made for the Equal Rights Amendment? 

No previous constitutional amendment allowed Congress to change a ratification deadline, so why should an exception be made for the Equal Rights Amendment?

No previous amendment would've been undone by a rescission. There's also South Dakota's sunset provision which said that their prior approval would only be good until the original deadline of March 22, 1979.

In short, even if Congress were to approve an extension now, there's much litigating to be done.

Incidentally, Idaho v. Freeman 529 F. Supp. 1107 (1981) found that both state rescission was valid and that Congressional deadline extension was invalid. SCOTUS first stayed, then declared moot that decision of the United States District Court for the District of Idaho because there were not yet enuf states that could be argued to have ratified the ERA for it to be a case properly before the courts. Still, I think there's little doubt that the current SCOTUS would rule in favor of allowing at least South Dakota's sunset provision to be valid. Since at present, that's all it would take to reduce the number of ratifications below thirty-eight, that might be as far as it rules.  In any event, I can't see SCOTUS addressing whether Congress can extend the ratification deadline of an amendment, and if so whether it can do so by a simple majority without first finding that States can't revoke ratifications of outstanding amendments.

[True Federalist (진정한 연방 주의자)]

The House has voted to abolish the deadline, 232-183: http://clerk.house.gov/evs/2020/roll070.xml


Five Republicans: Curtis (?), Fitzpatrick, Rodney Davis, Reed, and Van Drew joined all Democrats Present in passing this.

Nowhere near the two-thirds margin; they didn't pass an abolishment of the deadline. Amendments have to be proposed by a two-thirds margin; you can't tinker with the proposal afterwards by a simple majority.

The original 1978 extension was not passed by a supermajority either. Whether that is enuf or even if any extension can be made is unresolved. It's not as if the time limit was part of the text of the amendment, so at least a case can be made for the possibility of a simple majority sufficing.

[True Federalist (진정한 연방 주의자)]

Wulfric and Ernest:

Whatta cockamamie way to run a government! Even though it is clear that when we propose a constitutional amendment, we have to propose it with a two-third majority in both chambers, we will "consider" ourselves capable of subsequently tinkering with the proposed amendment by simple majorities if we want to, for example, extend the deadline for ratification. As far as I'm concerned, no they can't! As far as I'm concerned, the ERA is dead as a doornail.

I personally agree with you that the current push is the wrong way to add the ERA to the Constitution, but I'm not presuming my interpretation will prevail.