For conservatives, Joe Biden’s presidency will be remembered as a period marked by sweeping executive overreach, encroaching on the rights of the other branches of government and eroding the liberties of the American people. Among the most egregious examples during his final days in office was his push to revive the long-dead Equal Rights Amendment (ERA), a glaring assault on constitutional—to borrow a word from his 2020 campaign—normalcy.
By attempting to impose the ERA as the 28th Amendment—despite its legal expiration over 40 years ago amidst insufficient state ratifications—Biden not only trampled on the rule of law but also showcased an authoritarian impulse that the framers of the Constitution would have recognized as raw tyranny.
The president has no constitutional authority to formally propose, veto, certify, ratify, or legitimize an amendment. None. Zero. Zilch. These powers are explicitly reserved for Congress, the states, and the people under Article V of the Constitution. Make no mistake about it: the deliberate exclusion of the executive from the amendment process reflects the framers’ deep distrust of concentrated power. In their eyes, executive action to declare an amendment to the Republic’s foundational document without lawful process would anger them to the core—exactly the unchecked authority they sought to prevent in the Constitution in the first place.
The ERA: A Dead Amendment
The history of the ERA makes Biden’s actions all the more egregious. When passed in 1972, Congress gave the ERA a seven-year deadline for ratification, which was later extended to 1982. Only thirty-five states had affirmatively ratified the proposed amendment by the deadline expiration—three short of the required thirty-eight. Even so, some of these thirty-five states rescinded their approval before the expiry of the deadline, underscoring that even contemporaneous support had waned long before the timeline expired.
The legal reality is unambiguous: the ERA is dead. Full stop. Even so, a desperate band of merry ERA warriors have continued trying to convince states to ratify the null amendment and then sue it into our Constitution. This matter has been well-litigated, with a federal judge conclusively ruling that the time to ratify the proposed amendment had lapsed, a decision that was unanimously affirmed by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. Notably, even the Biden Justice Department previously argued that there is no legal authority to certify an amendment after its deadline.
Deadlines are a constitutional safeguard to uphold Congress’s intention to limit the ratification period, ensuring amendments reflect the people’s will at a specific moment in history. The Supreme Court emphasized this principle in Dillon v. Gloss (1921), where Justice Van Devanter wrote that an amendment’s ratification “must be sufficiently contemporaneous” to reflect the will of the people at “relatively the same period.”
Amending the Constitution should not be subject to the temporal whims of distant generations, and Congress’s authority to impose ratification deadlines safeguards that principle—except when Congress fails to provide a deadline.
Importantly, comparisons to the 27th Amendment—the “Madison Amendment“—are misguided. The 27th Amendment was never subject to a ratification deadline. It violated no time limitations on state ratifications since Congress compelled none. In contrast, the ERA was explicitly tied to a clear timeline for ratification, which expired decades ago.
Biden’s Hypocrisy and Authoritarianism
Despite this legal clarity, Biden reversed course, casting his lot with a cabal of activists and lawmakers who never accepted their loss and pinned their hopes instead on untimely passage. These deadline deniers have demanded that the United States archivist certify the ERA as the 28th Amendment without any substantive support. Ever the self-appointed guardian of democracy, Biden capriciously upset the apple cart before riding into the sunset for some ice cream.
It was no coincidence that the Biden administration sought to bypass the courts entirely and take this action by an executive pronouncement—the former president did not issue an executive order on point—which sheds some light on how flimsy this move was. Amending the nation’s Constitution is serious business—as it should be. The executive announcement—full of sound and jubilation but signifying nothing—was manifestly unserious and irresponsible.
Such a defiance of established constitutional norms on the way out the door only throws more shade on Biden’s performance art. When the executive branch—charged with enforcing the law, as written, mind you—elects to reinterpret settled precedent through executive fiat, it veers dangerously close to authoritarianism.
Biden’s gambit must be seen for what it was: a desperate, last-ditch attempt to shore up political support among progressives by gaslighting the country into believing the outgoing President resurrected a long-dead amendment that was now part of the Constitution. To those who questioned this fantasy, the Biden administration offered only pixie dust, wishcasting, and the audacity to pretend this pronouncement did not undermine the separation of powers.
Probably the only thing more disappointing than Biden’s edict was the spontaneous reaction by the usual suspects in the gaslighting gaggle. When your view of constitutional interpretation is informed by the belief that the Constitution is a “living” document, even a dead amendment can be summoned back to life when it serves your agenda.
Upholding Constitutional Integrity
Biden’s actions are a stark reminder of why the framers established clear, challenging, and deliberate processes for amending the Constitution—processes designed to prevent precisely this kind of high-handed overreach. This attempt to rig the Constitution relied on an extraordinary flouting of precedent, an intentional effort to bypass both the legislative and judicial branches—plus the respective states of the Union. It’s a breathtaking approach to governance—and not in a good way—compounded by the incredulous complicity of his acolytes trumpeting the long-awaited news that though the ERA was dead, yet shall it live.
This stance is all the more audacious since the late Justice Ruth Bader Ginsburg, a longtime ERA supporter, acknowledged that the amendment had expired, and the only proper path forward would be to start over. She understood what the deadline deniers failed to grasp: deadlines—and constitutional norms—matter. Resorting to extraconstitutional means—an end-run around the law—is shameless.
Ignoring a deadline missed long ago to achieve a policy end undermines the rule of law and invites chaos. Constitutional legitimacy demands leaders who adhere to its precepts, even when inconvenient.
Our Constitution is the foundation of American governance—the blueprint for our Republic—painstakingly crafted by the framers to withstand both cunning manipulation and blatant attempts to bend it for political gamesmanship.
This shameful episode marks a fitting conclusion to Joseph Robinette Biden’s political career—defined by brazenness, hypocrisy, and an utter disregard for constitutional legitimacy.
Charlton Allen is an attorney, former chief executive officer, and former chief judicial officer of the North Carolina Industrial Commission. He is the founder and editor of The American Salient and the host of the Modern Federalist podcast.
Charlton Allen is the founder and editor-in-chief of The American Salient and the founder of the Madison Center for Law & Liberty, Inc. Learn more about him at charltonallen.org.
