Letter to Judiciary Committee to rescind OLC memo blocking ERA

Dear Democratic Party Senate Judiciary Committee, 

We are in a Constitutional Crisis created by the last administration which is now being sustained by the Biden Administration.

The  Biden Executive Branch is abusing its power and undermining our Democracy. 

What is the Judiciary Committee doing? 

After a 100 years of blood, sweat and tears THE PEOPLE HAVE SPOKEN and on January 27, 2020 Virginia became the 38th State to ratify the Equal Rights Amendment  (“ERA”) and it was added to the US Constitution under Article V.

However the Executive Branch is refusing to publish an updated Constitution with the new 28th Amendment and is arguing against the ERA in court. 

Equal Rights Amendment -

“Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. 

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification. “ 

As Senators, you have taken an oath to protect and defend the Constitution.

Where is the demand that the same respect be given to the 28th Amendment that was given to the 27th Amendment? 

Where is your demand that the Constitution be published with the 28th Amendment before it comes into full force and effect on January 27, 2022? 

Regarding the 27th Amendment and publication:

The 27th Amendment was added to the Constitution 203 years after it was first proposed. 

Despite the fact that the validity of the 27th Amendment was questionable, and it was facing challenges from opponents, the Federal Archivist recognized that his duties are perfunctory/ministerial and he published forthwith. 

Under the last Administration, which was blatantly misogynistic, publication of an updated Constitution with the new Amendment was thwarted through Attorney General  William Barr.  

He had the Office of Legal Counsel (“OLC”) issue an opinion January 6, 2020 telling the Federal Archivist not to publish the Equal Rights Amendment, in contravention of 1 USC §106b.

Note that the Executive Branch has no authority to block the ERA, and the 1/6/2020 memorandum from the OLC is of no legal significance. The Judicial Branch is tasked with working out the legal issues not the Executive or Legislative Branches. 

As Senators, you have taken an oath to protect and defend the Constitution, and that oath requires you to demand that the Archivist perform its required duties.

At this point it  requires you to direct the OLC to reverse/rescind the 1/6/2020 memorandum immediately so that the Archivist will publish the ERA as the 28th Amendment before January 27, 2022.

Regarding Judiciary Committee Precedent under President Biden - 

Based on letters from the Judiciary Committee to the Executive Branch rescinding an OLC memo concerning prisoner confinement the Women of America are asking:

Where is the letter from the Judiciary Committee regarding the larger more important Constitutional issue of the 28th Amendment?

Specifically, the efforts with respect to 8,000 prisoners are:

On April 23, 2021,"Durbin and Booker sent a letter to Attorney General Garland for the Biden Administration noting that OLC’s January 15, 2021 memorandum opinion incorrectly found that following the emergency period of the pandemic, the Bureau of Prisons (BOP) must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities.  In fact, the CARES Act does not require or permit BOP to recall these prisoners." 

See https://www.judiciary.senate.gov/press/dem/releases/durbin-booker-call-on-ag-garland-to-rescind-trump-era-opinion-that-would-force-individuals-on-home-confinement-to-return-to-prison-following-pandemic 

On August 12, 2021, "U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Cory Booker (D-NJ), Chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, today sent a letter to President Biden urging his Administration to rescind a Trump-era opinion that would force federal inmates on home confinement to return to prison following the COVID-19 pandemic."

See https://www.judiciary.senate.gov/press/dem/releases/durbin-booker-urge-president-biden-to-use-executive-authority-to-allow-federal-inmates-to-remain-on-home-confinement 

 On December 21, 2021,  "In a statement released Tuesday, Garland stated that DOJ “will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.” 

See https://www.durbin.senate.gov/newsroom/press-releases/durbin-booker-applaud-justice-department-decision-to-reconsider-trump-era-opinion-and-allow-thousands-of-individuals-to-remain-on-home-confinement 

The 1/6/2020 OLC memorandum relates to a Constitutional Amendment where the Executive Branch has no substantive role.  Consequently, the Executive Branch is without legal authority to block publication of a Constitutional Amendment. In the case of the 8,000 prisoners, the Executive Branch had a legal basis to  interpret matters under its purview and chose to do so.

Senators, the 167,000,000 women and girls in this country, at a minimum, surely deserve the same efforts that you made for the 8,000 prisoners. 

Senators, 67 million Women voted for the Biden/Harris team and droves of us worked for the election of local, State and Federal candidates. 

Senators, the blatant undermining of Democracy by the Biden Administration is not acceptable on any level.  Not only has it not rescinded the 1/6/2020 OLC memo but Government lawyers are in Federal Court throwing the kitchen sink against the ERA.

Senators, you have an opportunity to turn this around and to celebrate the fact that the Declaration of Sentiments, written in 1848, and the ERA, proposed a hundred years ago in 1923, have borne fruit, and it is this Democratic Biden Administration that has cleared the path for the United States to be a Democracy where we are all to be honored and respected as citizens of equal stature. 



Here is a letter to send to the OLC from the Judiciary Committee 


The Honorable Merrick Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
January 21, 2022 

Re: The Archivist LegalDuty to Publish the Equal Rights Amendment “Forthwith” 

Dear Attorney General Garland:

We respectfully request that you take immediate action and rescind the Office of Legal Counsel’s January 6, 2020 memorandum opinion entitled “Ratification of the Equal Rights Amendment” (“OLC opinion”). The OLC opinion, which incorrectly concluded that the Federal Archivist (“Archivist”) could not publish the Equal Rights Amendment (“ERA”) pursuant to 1 U.S.C. 106(b), constitutes an unauthorized attempt to infuse the opinions and interpretations of the Executive Branch into our Constitutional Amendment process.  

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. 

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). 

Under the basic tenets of separation of powers, the mandatory publication requirement set forth in 1 U.S.C. 106 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 rescind it. 

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 rights of 167 million American women and girls.



[1] 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).  








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