WASHINGTON — President Joe Biden on Friday declared the Equal Rights Amendment the law of the land, creating a constitutional quandary three days before leaving office and after years of warning that his successor would shred the rule of law.

At question is a 1982 deadline for state ratification of the amendment, which the Biden White House as recently as April 2023 recognized and pushed Congress to terminate.

The outgoing chief executive, who has issued a slew of executive actions in the waning days of his term, made the move in a surprise Friday morning statement. But it could amount, legally, to nothing more than him reiterating a long-known policy stance. The declaration also invited questions over whether White House officials see the president’s last-minute action as legally binding — or a final play to his party’s progressive base over reproductive rights.

“I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women’s full equality once and for all,” Biden said in his statement.

A version of the ERA that Congress passed in 1972 states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Both chambers adopted the version with two-thirds majorities, and eventually a 1982 deadline was set for the constitutionally required 38 states to ratify it. But that deadline was missed and was achieved only in January 2020, when Virginia became that 38th state.

Biden’s statement Friday noted that ratification by Virginia four years ago. It also cited the American Bar Association’s assessment that the commonwealth’s action should formally make the ERA the 28th alteration to the Constitution.

“I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution,” Biden said.

“It is long past time to recognize the will of the American people. In keeping with my oath and duty to (the) Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” the outgoing president said.

Notably, Biden’s statement did not mention the 1982 deadline.

A White House spokeswoman had not responded at press time to questions about why Biden made the declaration just over 72 hours before he is slated to relinquish power and how well his aides had vetted it among congressional Democrats.

Senate Republicans, on April 27, 2023, blocked an attempt to remove the expired deadline for states to ratify the ERA, which has never been formally added to the Constitution.

Fifty-one senators on that day voted to take up the procedural measure on a joint resolution, falling short of the 60 votes needed.

The White House, on that day in April 2023, appeared to view the 1982 deadline as legitimate. It issued a statement prior to the Senate vote stating that it “strongly supports” nixing the cutoff, citing a Justice Department Office of Legal Counsel assessment of the legality of doing so.

“In the United States of America, no one’s rights should be denied on account of their sex. It is long past time to definitively enshrine the principle of gender equality in the Constitution,” the statement of administration policy read. “Gender equality is not only a moral issue: the full participation of women and girls across all aspects of our society is essential to our economic prosperity, our security, and the health of our democracy.”

Had the joint resolution cleared both chambers, however, it would not have needed Biden’s signature. Joint resolutions to amend the Constitution merely need to clear the two-thirds vote threshold in each chamber.

Two-and-a-half years later, Biden appears to have created constitutional consternation, possibly in a play for abortion rights supporters. The liberal Center for American Progress cited in an write-up Friday the “power and potential of the 28th Amendment is in restoring the federal constitutional right to access abortion care.”

And New York Sen. Kirsten Gillibrand, who chairs Senate Democrats’ campaign arm, touted Biden’s declaration as an “incredible moment for reproductive freedom.”

“Now, women living in states with restrictions on their reproductive freedoms can – and should – file suits to overturn these unconstitutional laws that discriminate on the basis of sex,” she said.

U.S. Archivist Colleen Shogan has long stated her assessment that the deadline for ample ERA ratification has expired and that Congress would have to act to nix the 1982 deadline.

“This is a long standing position for the Archivist and the National Archives. The underlying legal and procedural issues have not changed,” the Archives communications office said in a Friday statement.

Any congressional action on this issue, however, appears unlikely over the next two years, with Republicans in control of both chambers and especially considering the ERA’s role in the abortion access fight.

Josh Chafetz, a law and politics professor at Georgetown University, cast doubt on the ERA being uniformly viewed as the law of the land despite Biden’s Friday attempt at a last-second legal bank shot from half court.

“End of the day, it’s a political culture question: if we start talking about it as the 28th Amendment across party lines, then it will be the 28th Amendment,” Chafetz wrote on social media. “If not, not.”

(CQ-Roll Call's Jim Saksa contributed to this report.)

©2025 CQ-Roll Call, Inc., All Rights Reserved. Visit cqrollcall.com. Distributed by Tribune Content Agency, LLC.