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Office of Legal Counsel of DOJ Writes: ERA is Dead!

Memo to the Dems: Stop feeding tea to a corpse!

In a rare bit of good news these days (VCDL has pretty much been the other source of good news affecting the Commonwealth) the Office of Legal Counsel has “held” in a 38 page opinion that the ERA expired in either 1979 or 1982 and is not viable today.

Here is the website for the Office of Legal Counsel and this is what it says about their role:

By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides legal advice to the President and all executive branch agencies.  The Office drafts legal opinions of the Attorney General and provides its own written opinions and other advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and other components of the Department of Justice.  Such requests typically deal with legal issues of particular complexity and importance or those about which two or more agencies are in disagreement.  The Office is also responsible for reviewing and commenting on the constitutionality of pending legislation.

The Office of Legal Counsel was asked by the Legal Counsel for the National Archives for a legal opinion on the continued viability of the Equal Rights Anendment (ERA) and the OLC said: The ERA is dead. Some highlights from the summary:

We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.

This opinion is significant because now it is likely the Archivist will decide that the “ratification” of the ERA by the Commonwealth of Virginia, as now seems likely, has no legal basis.

As an aside, to see how biased the Associated Press is, check out these paragraphs:

A Senate committee on Thursday approved a resolution to ratify the gender equality measure that could become the next amendment to the U.S. Constitution.

The vote was 10-5 with one Republican committee member, Sen. Jill Vogel, joining Democrats in voting for the measure. The other Republicans, all men, voted against it.

***

Once the measure advances fully through both chambers, Virginia would become the decisive 38th state to approve it, surpassing the three-quarters of states needed to add an amendment to the Constitution.

Is it relevant that the opponents of the ERA were all male? (Note who voted yes: Senator Jill Vogel) Also the article states as a fact that Virginia would be the 38th “ratification” when there are two reasons why that is wrong: One is the deadline issue and the other is the five rescissions of prior ratifications that still is an open legal question.

But I digress: Back to focus Mr. Tarantula! Some more highlights from the opinion – After citing a case I had not read before [Dillon v. Gloss, 256 US 368 (1921) – I love it when judges and lawyers talk dirty!] which says that Congress can establish a deadline for ratification of the Prohibition Amendment (seven years), the opinion, written by Assistant Attorney General Steven A. Engel contnues:

Although Congress fixed the ratification deadline in the proposing clause of the ERA Resolution, rather than in the proposed amendment’s text, that choice followed established practice. After incor-porating ratification deadlines in the text of four amendments, see U.S. Const. amends. XVIII, XX–XXII, Congress placed deadlines in the reso-lutions proposing each of the next four amendments. Both Houses of Congress, by the requisite two-thirds majorities, adopted the terms of the ERA Resolution, including the ratification deadline, and the state legisla-tures were well aware of that deadline when they considered the resolu-tion. We therefore do not believe that the location of the deadline alters its effectiveness.

It is alas true that the OLC refused to reach the rescission question (trying to remain true to a prior written opinion the office gave in 1977) but like SCOTUS, ducked the question in light of its opinion that the ERA ratification limit:

Although we have disagreed in this opinion with some of the conclusions in the 1977 opinion, we believe that the expiration of the ERA Resolution makes it unnecessary for us to revisit this question.Regardless of the continuing validity of the five States’ ratifications, three-fourths of the States did not ratify the amendment before the dead-line that Congress set for the ERA Resolution, and therefore, the 1972 version of the ERA has failed of adoption.

The OLC admitted it is a open and close question and cited an important source:

The question of a State’s authority to rescind its ratification, before an amendment has been ratified by three-fourths of the States, is a significant one that has not been resolved. See [The later Justice Ruth Bader] Ginsburg, 57 Tex. L. Rev. at 920 (describing the doctrine of rescission as “the most debatable issue” concerning the ERA’s legal status shortly after the 1978 extension).

However, the OLC agreed with this blogger that the decision of the Supreme Court of the United States declaring Idaho’s suit concerning the extrension of the ERA deadline and the legality of rescissions moot is a decision on the merits of the deadline issue:

Even more telling, the Supreme Court necessarily recognized the en-forceability of the deadline by finding that the legal controversy over the ERA extension became moot when the extended deadline lapsed.

Finally, it is suggested that one of the liberal justices on the Supreme Court might well agree that the ERA is not viable:

See, e.g., Remarks of Justice Ruth Bader Ginsburg, Georgetown University Law Center (Sept. 12, 2019)(“[T]he ERA fell three States short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the Opinions of the necessary number of States to ratify it.”)

This is a great opinion and I think the Archivist will now say Virginia’s “ratification” is not valid and our Attorney General will have to go to court – that suit will end up merged with the Alabama suit at the SCOTUS and both decided by them. If you like a pure constitutional question, you’ll get one. The problem is that if the integrity of the Constitution is called into question by a large number of citizens, the harm to the constitutional system will be irreparable. That is intolerable. Stop feeding tea to a corpse. Just say NO to the ERA.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

One Response to “Office of Legal Counsel of DOJ Writes: ERA is Dead!”

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  1. […] be short-lived. The ERA is dead and cannot be ratified; here is why. The Office of Legal Counsel advised the Archivist that the ERA expired in 1982. (Besides five states took back their ratification on or […]


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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