Jerrold Nadler’s Wrong, the ERA Is Dead and Buried

COMMENTARY Political Process

Jerrold Nadler’s Wrong, the ERA Is Dead and Buried

Feb 28th, 2020 3 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
Judiciary Committee Chairman Jerrold Nadler said that “when the Senate passes this resolution, the ERA will become part of the Constitution.” He’s wrong for at least five reasons. Barcroft Media / Contributor / Getty Images

Key Takeaways

House Joint Resolution 79 claims to remove the deadline for states to ratify the 1972 Equal Rights Amendment.

The U.S. Constitution requires two-thirds of both the House and Senate to propose an amendment, and three-quarters of the states to ratify it.

Regardless of party, ideology or opinion, Americans cannot trust or respect Congress’ results when it refuses to follow the rules.

House Joint Resolution 79 claims to remove the deadline for states to ratify the 1972 Equal Rights Amendment. When it passed the House last week [FEB. 13], Judiciary Committee Chairman Jerrold Nadler, New York Democrat, celebrated, saying that “when the Senate passes this resolution, the ERA will become part of the Constitution.” He’s wrong for at least five reasons.

The U.S. Constitution requires two-thirds of both the House and Senate to propose an amendment, and three-quarters of the states to ratify it. The ERA had been so controversial that more than 1,100 resolutions to propose it were introduced in the House or Senate before one finally received enough support. Congress sent the ERA to the states on March 22, 1972, with a seven-year ratification deadline.

By 1978, ERA backers knew it would expire on March 22, 1979, without the necessary 38 states on board, so Congress passed a resolution to extend the ratification deadline to June 30, 1982. No matter. Even with the extended deadline, only 35 states had ratified (and five of them had then turned around and withdrawn their support). As a result, the Congressional Research Service has long said, the ERA “formally died on June 30, 1982.”

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Mr. Nadler’s first error is presuming that Congress can amend a resolution that has expired. The Clerk of the House of Representatives’ website explains that a bill is “dead” when the Congress in which it was introduced finally adjourns. Similarly, the resolution proposing the 1972 ERA was, in the House Clerk’s words, “no longer open to consideration” after it expired on June 30, 1982.

Second, Mr. Nadler wrongly presumes that amending the 1972 ERA’s proposing resolution—which required two-thirds approval for passage—requires only a simple majority. In 1981, a federal judge ruled that the ratification extension was unconstitutional because it, too, had been passed by only a simple majority. If proposing the ERA without a deadline would require two-thirds of Congress, then so should amending the proposing resolution to remove a deadline.

Third, Mr. Nadler presumes that 38 states have validly ratified the 1972 ERA. Once its ratification deadline passed without the necessary number of state ratifications, however, the 1972 ERA expired and was no longer pending before the states. Whatever those states wanted to do, they could not ratify a constitutional amendment that does not exist.

Fourth, Mr. Nadler also presumes that states cannot rescind ratification of a proposed constitutional amendment. This notion of a one-way ratification ratchet, however, has no basis in the Constitution or historical practice. A proposed amendment remains just that—proposed—until three-fourths of the states ratify it. Until then, a state can follow whatever process it chooses to make, change, or reverse its ratification decision.

Fifth, Mr. Nadler presumes that, even if Congress could simultaneously resuscitate and amend the expired 1972 ERA, the change would retroactively validate ratifications by the most recent three states: Nevada in 2017, Illinois in 2018 and Virginia in 2020. If, hypothetically, H.J.Res. 79 could once again make the 1972 ERA pending before the states, it wasn’t pending when those three states claimed to ratify it.

The only way for the ERA to become part of the Constitution is through the established constitutional amendment process. No shortcuts, no pretending, no legislative sleight-of-hand. And, truth be told, ERA backers know it. That’s why nearly 50 “fresh-start” resolutions have been proposed in Congress since the 1972 ERA died. If House leaders wanted to take up and debate the ERA, why not bring up House Joint Resolution 35, introduced in January 2019 by Rep. Carolyn Maloney, New York Democrat?

The answer is simple. The ERA is even more controversial today than it was in 1972, and would never get the two-thirds approval of Congress needed to once again go before the states. The House last voted on a resolution to propose the ERA in November 1983, and it failed. The vote on H.J.Res. 79, which ERA backers said was a proxy for the real thing, had dozens more votes against it.

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When Congress passed the resolution proposing the 1972 ERA, that legislative train left the station. And when the ratification deadline set by that resolution passed, that train went out of service. The House cannot “amend” a resolution that has not existed for nearly four decades.

House Joint Resolution 79 was a legislative fiction. Voting against it was not, as Rep. Pramila Jayapal, Washington Democrat, claimed, a vote for “the oppression of women.” It was a vote for Congress following the rules. It was a vote for the integrity of the legislative process. Regardless of party, ideology or opinion, Americans cannot trust or respect Congress’ results when it refuses to follow the rules.

This piece originally appeared in The Washington Times