There is no assigned role for the president in constitutional amendments, nor one, directly, for the Supreme Court. Instead a relatively little-known federal official, the archivist of the United States, collects the documents from the states, certifies an amendment’s ratification, and publishes it in the Federal Register.
The current archivist is David Ferriero, an appointee of former President Barack Obama who has held the position since 2009. The bulk of Ferriero’s job is to oversee the National Archives and Records Administration, but he now finds himself caught in the middle of a rekindled fight over the Constitution as a named defendant in both federal lawsuits. Attorneys general for the states of Alabama, Louisiana, and South Dakota have asked a judge to prevent Ferriero from certifying the ERA’s ratification and to acknowledge that five states rescinded their ratifications and should not be counted among the 38. Two pro-ERA advocacy groups, meanwhile, are asking a different federal court to invalidate the 1979 deadline that Congress originally attached to the amendment, ignore the states that have tried to rescind their ratifications, and force Ferriero to certify the ERA as ratified once Virginia submits its paperwork.
In the past, Ferriero seems to have taken the position that the ERA is a viable amendment, the lapsed congressional deadline notwithstanding. He accepted the post-deadline ratifications of Illinois and Nevada and included both states on a list of those that had ratified the amendment. A National Archives and Records Administration spokesperson, Laura Sheehan, told me it was the archivist’s “responsibility to document the actions that have been taken by the states with respect to any proposed constitutional amendment. The [Office of Legal Counsel] opinion has separately determined that the recent state approvals cannot serve to cause the Equal Rights Amendment to be adopted.” (Ferriero was not available for an interview.)
Virginia was poised to become the 38th state to ratify the ERA in November once Democrats ousted Republicans from the majorities in the state House of Delegates and Senate. Party leaders immediately confirmed that they would make good on a campaign pledge to approve the amendment.
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Facing a crucial decision and having already been sued preemptively by ERA foes, Ferriero asked the Department of Justice for legal guidance. Not surprisingly, the Trump administration came down on the side of the amendment’s opponents: In a 38-page opinion, the Office of Legal Counsel basically declared the ERA dead and said that in order to revive it, supporters would have to start from scratch. “Even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption,” the opinion states. “Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.”