Bloomberg reports:
Federal courts can’t order that the Equal Rights Amendment be published as part of the Constitution because its backers failed to prove indisputably that a congressional deadline set for states to ratify it isn’t legally valid or binding, a D.C. federal appeals court ruled.
The Tuesday decision is a big loss for ERA supporters, including the state attorneys general of Illinois and Nevada, who sued the US archivist to demand publication of the measure as the 28th Amendment.
The states failed to show why the 1979 deadline that Congress set for three-fourths of states to ratify the amendment should be disregarded, according to a three-judge panel led by Judge Robert L. Wilkins of the US Court of Appeals for the District of Columbia. Judges J. Michelle Childs and Neomi Rao joined him on the panel.
Democrats on the Senate Judiciary Committee held a hearing on Tuesday pushing the idea that Congress may retroactively remove the 1979 deadline. I took a look at the argument in 2019:
It simply defies logic that a simple majority of Congress may now alter the terms of an amendment passed by a constitutionally required supermajority of Congress in 1972. Michael Stokes Paulsen of the University of St. Thomas called that theory “frivolous” in a letter to Congress. As he wrote in The Yale Law Journal in 1993:
Any change in the terms of the original amendment proposal logically invalidates the ratifications of states that had voted for the earlier version. By changing the terms of the earlier amendment proposal — by adopting new legislation — Congress in effect proposes an entirely new constitutional amendment (albeit largely identical in substance), requiring the states to start all over again with new ratifications.
The theory that Congress lacks the power to attach any deadline to a constitutional amendment “is legally preposterous — utterly meritless to the point of foolishness,” Paulsen wrote to Congress this year.
Those who contend that the 1972 ERA did not expire in 1979 toss out several red herrings. They point out that adoption of the most recent amendment to the United States Constitution took 203 years: the 27th Amendment, also known as the “Madison Amendment,” which forbids congressional pay raises to take effect until after a new election takes place, was proposed in 1789 and adopted in 1992. The key difference between the Madison Amendment and the Equal Rights Amendment is that the Madison Amendment did not have any deadline attached to it.
“You don’t have to impose a ratification deadline if you don’t want to, but if you do, it sticks,” Professor Elizabeth P. Foley of Florida International University said in congressional testimony earlier this year. While the news pages of the New York Times recently informed readers that “constitutional amendments don’t normally have ratification deadlines,” Foley correctly observed that “every amendment proposed by Congress since 1917 (beginning with the Eighteenth Amendment) has contained an express seven-year ratification deadline.” As Foley noted, the Madison Amendment is an outlier in the Constitution; every other amendment was ratified in less than four years.
As Ruth Bader Ginsburg once said, advocates of the ERA would need to “start over.”