Biden says Equal Rights Amendment is ratified, kicking off expected legal battle as he pushes through final executive actions

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President Joe Biden announced a significant development on Friday, stating that the Equal Rights Amendment has been ratified, incorporating its protections into the Constitution, a last-minute move that some believe could create momentum for strengthening reproductive rights.

It's likely to result in fast activist lawsuits and its future plans are still uncertain as Biden nears the end of his term.

The amendment, which was approved by Congress in 1972, guarantees equal rights for women. Changing the Constitution requires 38 out of the 50 states to agree to the change. In 2020, Virginia became the 38th state to agree to the change, after the issue had been stalled for many years. With this, President Biden is now stating that the amendment is official, instructing the U.S. archivist, Dr. Colleen Shogan, to confirm and release the amendment.

"It's long overdue for our country to recognize the will of the American people. In keeping with my promise to uphold the Constitution and serve the nation, I confirm what I genuinely believe and what three-fourths of the states have approved: The 28th Amendment is now a law, ensuring that all Americans receive equal rights and equal treatment under the law, without regard to their sex," Biden said in a statement on Friday.

A senior administration official said Biden is taking a stance that the law is already in place, but isn't using executive action to enforce it.

“He is using his position of the presidency to make it clear that he believes – and he agrees with senior constitutional experts and the American Bar Association – not that it should be, but it is a possible 28th Amendment to the Constitution,” the official added.

It's not that straightforward: Ratification deadlines have expired and five states have withdrawn their consent, as reported by the Brennan Center for Justice at New York University's law school, raising questions about the president's ability to ratify the amendment after more than 50 years since it was initially approved.

The official pointed out that the American Bar Association's opinion says that the text of the Equal Rights Amendment does not establish a time limit. The official also noted that the framers of the Constitution intentionally avoided allowing states to revoke ratifications of amendments at any point in time.

In consultation with Deputy Archivist William Bosanko, the amendment "cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions," referencing two conclusions reached by the US Department of Justice's Office of Legal Counsel in 2020 and 2022 that found ratification deadlines to be enforceable.

"The underlying legal and procedural issues remain the same," a representative of the National Archives' Public and Media Communications department stated on Friday.

The senior official couldn't say if the White House had any contact previously with the archivist before the announcement on Friday.

Ultimately, the official acknowledged, “It will be up to the courts to decide on this and their interpretation of the Equal Rights Amendment.”

overturning Roe v. Wade.

Biden has taken some executive actions to strengthen abortion protections after the decision, but the White House has essentially used up all its options short of Congress making Roe's protections into law, which seems unlikely to happen.

Gillibrand made her case to the president's closest advisors and outside supporters, including an appeal to the president and the first lady at a holiday party photoshoot, according to a source who is intimately familiar with the exchange. She also stayed in contact with the White House general counsel's office, the Gender Policy Council, and other officials concerned with the situation.

President enforcing executive actions in final days in the White House

To carry out numerous executive actions, pass important laws, and solidify his foreign policy approach, President Barack Obama announced two significant decisions on Friday. These moves highlight his efforts to secure his legacy and safeguard it from potential changes by incoming President Donald Trump.

However, when Trump returns to the White House on Monday, there's little he can't undo. Just as Biden spent his first hours in office reversing some of Trump's biggest actions, rejoining international agreements and signing executive orders, Trump can also cancel a large part of Biden's agenda.

Clemency actions for nearly 2,500 nonviolent drug offenders and a push for the ratification of the Equal Rights Amendment are expected to have varying levels of success in the next administration. Once taken, clemency actions cannot be undone, but efforts to ratify the ERA are likely to face lawsuits.

Biden's actions on Friday join a series of recent uses of his executive authority as his team follows the lead of chief of staff Jeff Zients, who instructed after the election that they "run through the tape."

His son, Hunter Biden, is set to be sentenced for his convictions on gun and tax-related offenses, a decision that has received criticism from both Republicans and Democrats.

New oil and gas drilling across 625 million acres of the ocean is a move that's sparked criticism from Trump. The ban will stop oil companies from leasing ocean waters for new drilling along the entire East Coast, as well as the eastern part of the Gulf of Mexico, the coasts of Washington, Oregon, and California, and parts of Alaska's Northern Bering Sea. Changing this action back will require that Congress alters the law.

In another move to protect the environment, President Biden designated two national monuments in California, increasing the total amount of land protected by the federal government to 674 million acres, or 1,053,125 square miles – an area of land and ocean more than four times the size of Texas.

As President Trump is preparing to crack down on immigration, President Biden has extended temporary protection to almost 1 million immigrants from Venezuela, El Salvador, Ukraine and Sudan, sparing them from deportation for another 18 months.

The Biden administration has taken Cuba off the US list of countries that support terrorism, but it's possible President-Elect Trump will reverse this decision.

In his final days in office, Biden wiped out student loan debt for an additional 150,000 student loan borrowers, and his team is working to finalize grants for semiconductor chip production to ensure that approved funding is released before Trump takes office.

A rare area of agreement between Joe Biden and Donald Trump involved US Steel receiving a significant agreement from Japan's Nippon Steel. The two teams, under Biden and Trump, also quickly arrived at a consensus as they worked to secure a ceasefire and hostage release deal between Israel and Hamas.

The president is also considering granting pardons to some of his supporters ahead of time, a move that is extraordinary, as he previously cautioned Trump against seeking "revenge". Those close to the situation report that this decision could be made at the very last minute before Trump is sworn into office.

Trump, who tried to halt the transfer of power after his 2020 presidential election loss, claimed in a social media post that Biden was "doing everything possible to make the transition as difficult as possible." Trump stated in the post that all of Biden's executive orders "will be terminated soon."

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