The Biden Appointee Who Could Change the Constitution

How hard is it to amend the Constitution? Even harder than you think.

An illustration of the Constitution and the Equal Rights Amendment
The Atlantic

One of the hottest questions in Washington right now is who President Joe Biden will nominate to serve on the Supreme Court, the committee of nine charged with interpreting the Constitution. But there’s a far less visible position Biden has to fill in the next few months that could make an even more immediate and direct change to the nation’s founding document.

That soon-to-be-vacant job belongs to the archivist of the United States, who functions as the nation’s chief record keeper and happens to be the presidential appointee responsible for certifying newly ratified amendments to the Constitution. If fewer than half of all Americans can name a single Supreme Court justice, barely more than a few thousand (if that) can probably identify the current archivist, David Ferriero, a 2009 appointee of former President Barack Obama. Ferriero’s job isn’t glamorous or particularly powerful, but he’s lately been at the center of a fight over exactly how many amendments the Constitution should have.

For more than two years, Democrats in Congress and advocates for women’s rights have demanded that Ferriero formally publish what would be the Twenty-Eighth Amendment, the proposal known for nearly a century as the Equal Rights Amendment. First submitted by the suffragist Alice Paul in the years after women secured the right to vote, the amendment states that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” In early 2020, Virginia became the 38th state to ratify the ERA and, according to its backers, the final one needed to meet the requirement that constitutional amendments win approval from three-quarters of state legislatures after passage by Congress.

Ferriero, however, has refused to certify the amendment. The archivist instead deferred to an opinion by Donald Trump’s Justice Department that the ERA is invalid because its final ratification came long after a congressionally imposed deadline. In response, a group of states has sued to force Ferriero’s hand. Democrats have also introduced legislative proposals either to remove the deadline for the ERA’s ratification or simply to affirm that it has met the requirements for inclusion in the Constitution.

They might soon get another opportunity. Ferriero has announced that he’s retiring in April, and the Senate will have to approve whomever Biden nominates as his replacement. Some Democrats want to insist, as a requirement for confirmation, that the next archivist commit to publishing the ERA. “That should be a litmus test for whoever is appointed,” Representative Carolyn Maloney of New York, the chair of the House Oversight and Reform Committee and a longtime advocate for the amendment, told me. As a member of the House, Maloney does not have a vote on the next archivist. But Senator Richard Blumenthal will, and the Connecticut Democrat told me that the nominee’s position on the ERA’s status would play an important role in his vote. “I don’t adopt litmus tests for nominees generally,” Blumenthal said. “At least I don’t call them a litmus test. But I have trouble thinking that I would vote for a nominee as archivist who declined to recognize that the ERA should be published.”

Who Biden might select for the post isn’t known, and guessing the identity of such a relatively low-profile nominee isn’t exactly a D.C. parlor game. None of the lawmakers or advocates I interviewed had heard of any possible contenders, and the White House did not respond to requests for comment about the selection process. Ferriero had been the director of the New York Public Library before Obama nominated him in 2009; he took office nearly a year after the previous Senate-confirmed archivist vacated the post.

The archivist’s decision on the ERA has become important because the other avenues that advocates are pursuing to recognize the amendment don’t appear promising at the moment. A federal judge has dismissed the lawsuit filed by Virginia, Nevada, and Illinois—the last three states to ratify the ERA—seeking to force the amendment’s certification; they have appealed the ruling to an appellate court. The proposals in Congress lack the Republican support needed to overcome a Senate filibuster.

The ERA would be the first amendment added to the Constitution in nearly 30 years and the most significant since the Twenty-Sixth Amendment lowered the voting age to 18 more than a half century ago. The Twenty-Seventh Amendment, ratified in 1992, affected only the 535 members of the House and Senate, mandating that congressional salary increases not take effect until after the next election. The ERA, by contrast, would confer a new constitutional protection to every American citizen that, unlike current state and federal antidiscrimination laws, would not be vulnerable to the whims of whichever party wields power at a given time.

The biggest challenge that ERA supporters face is that Congress originally attached a deadline by which states needed to ratify the amendment for it to be valid. Congress extended the original 1979 deadline until 1982 but has not extended it since. Lawyers have argued that because the deadline is part of the preamble to the amendment, and not within the text itself, it should not be enforced. “There should be no time limit on equality,” Blumenthal said.

Blumenthal told me that Ferriero’s refusal to certify the ERA was “unconscionable.” A major source of frustration for the amendment’s advocates is the fact that they once considered him an ally in their fight—and in some ways, they still do. In 2012, the archivist wrote Maloney a letter that suggested he would certify and publish the ERA once three more states ratified it. He made no mention of a deadline that would prevent its adoption. But after two of the three needed states—Nevada in 2017 and IIlinois the following year—voted to ratify, Ferriero met with Maloney in her office and told her that he would first ask the Justice Department’s Office of Legal Counsel to advise him on what he should do. Maloney was incensed. “I said, ‘Why in the world would you do that?’” she recalled. Maloney and other advocates knew that there was no way the Trump administration would back the amendment.

They were right. In early 2020, just days before the Virginia legislature’s vote, the Office of Legal Counsel released a 38-page opinion concluding that the entire push was dead and that if Congress and the states wanted to ratify the ERA, they’d have to start from scratch. “Congress may not revive a proposed amendment after a deadline for its ratification has expired,” the memo stated. It also brought up another potential obstacle: that five of the ratifying states had since tried to rescind their approvals of the ERA. (Not helping the advocates’ cause was the late Justice Ruth Bader Ginsburg, who seven months before her death said that “too much controversy” had attached to the ERA’s disputed status and that the amendment needed “to start over.”)

The National Archives told me Ferriero was unavailable for an interview and declined comment on his behalf, citing the ongoing litigation surrounding the ERA. (The agency has recently been busy trying to retrieve presidential records that Trump reportedly took from the White House to Mar-a-Lago when he left office.) Advocates who have met with Ferriero portray him as a supporter of the ERA who believes his hands are tied. “He was not the ogre we’ve been painting him as,” Carol Jenkins, the president of the ERA Coalition, told me. When Jenkins, Maloney, and others met with Ferriero recently, he told them that publishing the amendment “would be the crowning moment” of his career, Jenkins said. “We all melted,” she recalled. Then they told him, “So do it!”

In recent weeks, ERA supporters have tried to free Ferriero to publish the amendment by urging the Biden administration to withdraw the Trump-era legal opinion advising him not to. Pressure mounted leading up to January 27, the two-year anniversary of Virginia’s ratification vote, when, according to the text of the amendment, the ERA should have taken effect. On that day, Biden released a statement reaffirming his support for the amendment, and the Justice Department did update the OLC memo. But instead of instructing the archivist to publish the ERA, the revised opinion merely invited Congress and the courts to weigh in and clarify the ERA’s status. “It is a good thing,” Jenkins said, “but it does not take us where we need to go.”

The effect of the Biden administration’s action has been to return the ERA to a state of legal purgatory, an amendment to the Constitution still awaiting some sort of official recognition. Advocates had hoped that Biden would act more aggressively to ensure the ERA’s certification, but they suspect that after campaigning against Trump’s politicization of the Justice Department, he has been leery of appearing to force its hand. Although federal law entrusts the archivist with collecting and ultimately certifying and publishing ratified amendments, the Constitution gives no formal role in the process to the president or anyone else in the executive branch. “His leadership here might have been more robust, but I understand his respect for the independence of the Department of Justice,” Blumenthal said of Biden.

Jenkins seemed to be still holding out some hope that Ferriero might change his mind before he retires in a few months. She told me she did not want to wait for his replacement to be confirmed—a process that, given the realities of the closely divided Senate, could take many months. Advocates also worry that whatever commitments a nominee might make to senators, the next archivist would similarly feel compelled to defer to the Justice Department’s legal opinion on the ERA’s validity. Others fear that absent clear action from Congress, conservative-dominated federal courts would rule against certification of the ERA by the archivist. In the meantime, the ERA Coalition has taken the position that it has won already, that neither the archivist nor Congress needs to act to make the Equal Rights Amendment part of the Constitution.

As of January 27, 2022, Jenkins asserts, the Constitution has 28, not, 27, official amendments. Under the plain text of Article V of the Constitution, an amendment needs no final stamp of approval, the group notes; rather, it “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” The coalition has already begun lobbying states to update their laws and corporations to revise their policies in recognition of the ERA, and it expects lawsuits to be filed that seek legal remedies based on the amendment’s protections. “We are stating emphatically that the ERA is the law of the land,” Jenkins told me. She made the declaration confidently, but Jenkins knows she is still waiting for someone—the archivist, Congress, the federal courts—to back her up. And that wait for a final verdict on the ERA, which has now lasted for nearly 100 years, is likely to stretch on a while longer.