President Joseph R. Biden, Jr.
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Re.: The Archivist’s Legal Duty to Publish the Equal Rights Amendment “Forthwith”
Dear President Biden:
We respectfully request that your Administration take immediate action and direct the Federal Archivist (“Archivist”) to publish the Equal Rights Amendment (“ERA”) as the 28th Amendment of our Constitution and rescind the Office of Legal Counsel’s January 6, 2020 memorandum opinion entitled “Ratification of the Equal Rights Amendment” (“OLC opinion”). Your Administration has ample executive authority to require the Archivist to perform his duties to provide clarity that the 28th Amendment is in effect and, after 100 years, that 167 million American women and girls now have Constitutionally-guaranteed equality.
In 1972, the ERA was passed by Congress and sent to the states for ratification by the requisite number (38 states) in accordance with Article V of the Constitution. On January 27, 2020, Virginia became the 38th state to ratify the 28th Amendment, and it will take effect in days – on January 27th, 2022. Tragically, the Archivist has not published the 28th Amendment as a result of the OLC opinion, which incorrectly concluded that the Archivist could not publish the ERA pursuant to 1 U.S.C. 106(b).
1 U.S.C. 106(b) provides:
Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.
Nowhere does it state that the Archivist or any other member of the Executive Branch interprets a Constitutional Amendment’s validity or entertains challenges. This is purely a ministerial duty. Recordkeeping. Upon receipt of notice, the Constitutional Amendment “shall be published forthwith.”
Once notice was received that Virginia became the 38th state to ratify the ERA, the Archivist was required to publish the ERA as the 28th Amendment forthwith. Unfortunately, as a result of the OLC Opinion, which opined that the deadline for ratification had previously expired so the Archivist could neither accept Virginia’s anticipated ratification nor publish the 28th Amendment, the Archivist has not performed his ministerial duties required under 1 U.S.C. 106(b).
We do not address the substance of the OLC Opinion because, for the reasons stated herein, it has no bearing on this request or the duty to publish under 1 U.S.C. 106(b).
Under the basic tenets of separation of powers, the mandatory publication requirement set forth in 1 U.S.C. 106(b) makes perfect sense. Any interpretations or challenges to the laws created by Congress can only be heard by the Judiciary.
The controversial 27th Amendment makes that clear. When the 27th Amendment was ratified, nearly 203 years after it was passed by Congress, many, including some members of Congress, questioned its validity. As set forth on the website of the National Archives, the Archivist admitted he had no discretion on whether to publish stating “it was . . . the votes by three-fourths of the states—not his signature— [that] added the amendment to the Constitution.” See https://www.archives.gov/publications/prologue/2017/spring/historian-27-amendment.
For the reasons stated above, the OLC opinion incorrectly interprets 1 U.S.C. 106(b) and is of no legal significance as the sole role of the Executive Branch here is the ministerial publication of the 28th Amendment. Accordingly, we ask you to instruct the Archivist to publish the 28th immediately.
Today, we asked Attorney General Garland to rescind the OLC opinion. We respectfully request that the OLC opinion, which, for the reasons stated above, incorrectly concluded that the Archivist could not publish the Equal Rights Amendment (“ERA”) pursuant to 1 U.S.C. 106(b), and constitutes an unauthorized attempt to infuse the opinions and interpretations of the Executive Branch into our Constitutional Amendment process, be withdrawn immediately. It is of no legal significance and unnecessarily adds confusion to a clear, democratic Constitutional Amendment process.
Thank you for your time and consideration. We look forward to your prompt response. Time is of the essence as the failure to publish the 28th Amendment before January 27, 2022 wrongfully undermines its validity and the Constitutionally-guaranteed rights of 167 million American women and girls.