Balkinization: The ERA Is on the Way

Comments:

My understanding of current law though the clearest part of it as a matter of Supreme Court precedent rests on a 1930s opinion where the justices split 4-4 on the reasoning (one justice was away but they for some reason didn't wait to get his opinion on a non-trivial matter) is that the ball in Congress' court and the deadline should be honored.

The ball then goes into Congress' court. (So to speak.) They also should uphold the deadline. I covered this in the past, but as a matter of sound constitution policy, overriding the approaching forty year line deadline would result in a non-contemporaneous ratification of an amendment covering ground that greatly changed over time. The Supreme Court seems to have given Congress the role of balancing that concern. If so, Congress should recognize (much more than the 27th Amendment) the state of affairs changed considerably since the 1970s.

I'm wary of a special amendment ... in 2020 ... for one category of anti-discrimination. But, if we want a ERA, Congress should re-submit it to the states. If the matter was pressed. It might still be ratified. But, that is how it should occur. This to me is the best application of constitutional policy. Which doesn't mean the Supreme Court would decide it. All issues of constitutional policy is not decided by the Supreme Court.

Anyway, congrats to Virginia.

# posted by

Joe : 9:31 AM

We had a lengthy discussion about these issues after previous posts by Prof. Levinson. It was one of those rare cross-over issues with unusual coalitions against ratification. I won't repeat my arguments, but I will say that I basically agree with Prof. Magliocca on this.

# posted by

Mark Field : 9:46 AM

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# posted by

Joe : 10:12 AM

This really is a bad idea, quite apart from any merits of the ERA. It represents an effort to win dirty, where the only thing that matters is that you can claim you won, and not whether opponents of the amendment would have any reason to accept that the ERA had actually been ratified.

Because, yes, the amendment's original deadline has expired, the extension has expired, and multiple states have had their ratifications either expire or be actively rescinded.

There's simply no case that the necessary number of states approve of the amendment, either now, or at any time in the past.

Try to imagine this sort of tactic being applied to an amendment you really disliked, perhaps one abolishing birthright citizenship for all but the children of citizens. Would you accept the result as legitimate? I doubt it.

Are you hoping for a constitutional crisis just because it would make for some fun issues to discuss in class?

# posted by

Brett : 10:34 AM

There are various scenarios where a deadline passes but additional states ratify where people might not think it was won "dirty" [e.g., something is very popular but starting afresh would be complicated so is avoided, one can think of various time sensitive matters].

Anyway, he is a law professor. He is thinking of this as a theoretical matter in my view and not necessarily making decision on this being a "good idea" or something.

I oppose the approach, but don't think it is "dirty" and that people simply don't care about the fairness of it all. We have legislatures passing things by majority rule. If Congress accepts it, again, it would be doing so by majority rule. Each branch now is controlled by different parties. Majority rule doesn't make something automatically right but it does affect how people accept reasonableness.

The people think they are correct on the merits. Not simply to say "they claim they won." The law in place now is such that there is a good argument that Congress has the constitutional authority to accept ratification. People who on policy find this iffy accept it is at least reasonable to think this. The binding nature of rescission is far from clear even if we accept it should be binding (if anything, historical practice, Supreme Court dicta and maybe even text to me guards AGAINST counting takebacks.)

The fact that this all doesn't convince those who view things in a conspiratorial mindset is noted. If the professor disliked something but the final states, by majority vote, "ratified" and Congress, by majority [or supermajority for that matter] vote accepted, he very well might deem it legitimate. Personal policy acceptance isn't his guideline here.

# posted by

Joe : 11:09 AM

If no state had included expiration dates in their ratifications, if no state had rescinded their ratification, you could maybe make the case that getting the last couple of ratifications in a little late was no big deal, as you'd have reason to believe that the required super majority of states still supported the amendment.

As it is, we have no reason to believe that the amendment is still supported by remotely enough states. No, more: We have reason to believe that it isn't. That deadline didn't expire last year, it expired 40 years ago! Multiple states revoked their ratification. All attempts to get Congress to reissue the amendment have failed.

That's why I'm calling it winning dirty.

By the way, above Gerard writes, "Second, Congress passed a joint resolution in the 1970s stating that the deadline for states to ratify the ERA expired in 1982."

This misstates the matter a bit, makes it sound like the ERA didn't originally have a deadline. The ERA was originated by Congress with a ratification deadline of 1979. That deadline was passed in the origination resolution, by the required super majority.

By 1978, it was becoming obvious that the amendment wasn't going to be ratified by 1979. So Congress voted to extend the deadline, by a simple majority vote, to 1982. Not one state took advantage of the additional time.

So even the 1982 deadline was dubious. The real expiration was in 1979, as voted as part of the origination resolution.

This isn't a case of no harm, no foul. This is an attempt to claim ratification for an amendment which has never demonstrated the required level of support. NEVER.

# posted by

Brett : 12:14 PM

I understand the argument about the time frame for ratification. I think a reasonable time frame is a good idea. However, that's not the way the process now works -- the 27th A settled that.

I'm not particularly bothered by that because there's such an easy fix, namely putting a time deadline into the amendment (rather than as a separate resolution).

As for backsies, I made my arguments in the last thread (to pretty nearly universal disagreement) and won't repeat them.

# posted by

Mark Field : 12:44 PM

Brett:

Litigation over an ERA ratification could clarify issues of interest to those of us seeking to call an Article V convention, such as:

(1) Can states rescind votes ratifying the amendment? The reasoning should also apply to votes calling for a convention.

(2) When the states send Congress their votes, if Congress's role ministerial or can it decline to accept the results?

# posted by

Bart DePalma : 12:52 PM

Mark, the 27th amendment isn't really all that relevant, as there was no time limit involved, nor did any state set an expiration date for their ratification, or rescind it. We're not talking about claims the amendment is informally stale, but that it is formally expired.

"I'm not particularly bothered by that because there's such an easy fix, namely putting a time deadline into the amendment (rather than as a separate resolution)."

The 1979 deadline wasn't in a separate resolution. It was in the very resolution that was voted on to originate the amendment. Nothing remotely separate about it.

I'll agree that the vote in 1978 to extend the deadline was invalid, though.

# posted by

Brett : 12:57 PM

My argument last time was that the only binding time limit that can be imposed must be in the text of the amendment. The fact that it was in the same resolution wouldn't matter, nor could states set a deadline. Therefore the ERA is in the same category as the 27th A in my view.

On policy grounds, I'd favor time deadlines in every proposed amendment.

# posted by

Mark Field : 1:06 PM

Well, I will agree that including it as a clause of the amendment itself, while not as tidy, would settle that particular question, and so is advisable on prudential grounds. Even if I think as part of the resolution that was voted on should be sufficient.

From a perspective that looks at Article V functionally, what were they trying to achieve, counting as valid ratifications which were rescinded seems rather contrary to the whole goal of only ratifying amendments which actually have the required degree of support.

One could imagine an amendment originating from Congress, and ratified by a couple of states. In the next election the voters oust everybody who voted for it, and those states rescind their ratifications.

Then another couple of states ratify, and in the next election those legislators are fired by the voters, and the states rescind.

Repeat this over and over, and eventually you hit 38 ratifications for an amendment which never had more than 2 states supporting it at any given moment, and those legislators removed from office at the first opportunity the voters had. A rather nonsensical consequence of your position.

This view of ratification you're advancing seems too conveniently designed to aid the ERA in overcoming the fact that support for it collapsed partway through the ratification drive. It's a motivated take on ratification.

# posted by

Brett : 1:34 PM

As Joe pointed out at 11:09, there is plenty of existing authority to deny takebacks. I don't find your rather extreme example to be all that persuasive. In any case, your view that changing the legislature somehow invalidates a previous ratification might well be inconsistent with Fletcher v Peck.

# posted by

Mark Field : 1:47 PM

I understand the argument about the time frame for ratification. I think a reasonable time frame is a good idea. However, that's not the way the process now works -- the 27th A settled that.

I didn't think Dilan citing a 1990s case that didn't cover all the bases anyway "settled" the impeachment debate we had and I don't think the 27A does either. One mistake, and I think it was, isn't enough there. Plus, there are various complexities in my view, and the 27A is a much easier case than the ERA. Complexities, that is, for Congress, not some guy on the Internet, who will have the final say probably.

I'm not particularly bothered by that because there's such an easy fix, namely putting a time deadline into the amendment (rather than as a separate resolution).

I'm a bit wary since some special circumstance might arise but this is probably sensible though I think a separate time limit is appropriate under the Necessary and Proper Clause. I say this in part since I think it is constitutionally proper to have a time limit. FWIW, I cited a law article that argued the point with details.

As for backsies, I made my arguments in the last thread (to pretty nearly universal disagreement) and won't repeat them.

He will now have a snack.

# posted by

Joe : 2:38 PM

"It represents an effort to win dirty, where the only thing that matters is that you can claim you won, and not whether opponents of the amendment would have any reason to accept that the ERA had actually been ratified."

If the rules are as those arguing it say they are then it would be no more 'winning dirty' than, say, winning a Presidential election without winning the popular vote.

# posted by

Mista Whiskas : 2:56 PM

If no state had included expiration dates in their ratifications

States that ratified the Constitution in some cases included amendment proposals. They were suggestive but not binding. That tells me only so much though Congress can weigh a range of things if they decide to ignore a deadline. Rules tend not to be absolute.

rather contrary to the whole goal of only ratifying amendments which actually have the required degree of support

Not really. As occurs in various cases, an entity decides & if anything might take more time to consider given they know it is their final choice. And, the supermajority rule is in place. I early voted. I did not have the chance to take my vote back if I decided differently a few days later. Majority rule still seems to have been upheld.

This is an attempt to claim ratification for an amendment which has never demonstrated the required level of support. NEVER.

The linked resolution is not itself the amendment. So, a later resolution is appropriate to me if within a reasonable contemporaneous period.

Forty years later is not that. I think this is a reasonable implied constitutional rule here though the article I cited argues it has wider force than that as well. I in no way think it this is crystal clear so respect people who disagree.

There are amendments where the time limit is in the amendment. It would make that difference dubiously besides the point to ignore that here. The level of support is thirty-eight states. Unlike liking disco or soemthing, the ERA is also if anything at core doing something that has more support than it had in the 1970s. OTOH, its reach changed significantly given sex discrimination is understood to be wider.

That is one reason to me not to ratify w/o resubmitting. The law on sex discrimination already changed a great deal in the decade after the 1972 proposal date.

# posted by

Joe : 3:04 PM

"I'm not particularly bothered by that because there's such an easy fix, namely putting a time deadline into the amendment (rather than as a separate resolution)."

Again, it wasn't a "separate" resolution, it was the very resolution that constituted Congress originating the amendment. I think it's a bit dodgy to say that, since the time limit was in this paragraph rather than that, we can ignore it. Very motivated reasoning there.

And in any event, it doesn't solve the present issue, which is that ERA advocates simply refuse to admit that the amendment was defeated 40 years ago, and that if they want it, they have to start over from square one.

They're setting up things for perhaps the most serious constitutional crisis in my lifetime, if they don't back down.

# posted by

Brett : 3:07 PM

"Not really."

Yeah, really. The ERA reached 35 states, then states started reconsidering and repealing their ratifications. It was down to 30 states before it expired. I fully expect it would have dropped below 30 if it hadn't been thought already dead at that point.

"That tells me only so much though Congress can weigh a range of things if they decide to ignore a deadline. Rules tend not to be absolute."

Look, ratifying isn't a Congressional power. It's a STATE power. You're taking the discretion that was assigned the states, and handing it back to Congress.

Worse than that, actually, because you're taking discretion to be exercised by a super majority of states, and handing it to a bare majority of Congress.

This is just motivated reasoning to get around the fact that the ERA died 40 years ago, and today does not have remotely the support that would be needed to even get out of Congress, let alone be ratified.

In some ways it's beside the point, because after the ERA was defeated, the Supreme court set out to reinterpret the 14th amendment so as to render that defeat moot. But it's still constitutional dynamite to try to rewrite the rules retrospectively to impose on the nation an amendment that was already defeated before most people living today were even born.

# posted by

Brett : 3:35 PM

"I didn't think Dilan citing a 1990s case that didn't cover all the bases anyway "settled" the impeachment debate we had and I don't think the 27A does either."

That's fair. Let's just say that the 27A is precedent, but not binding.

"Again, it wasn't a "separate" resolution, it was the very resolution that constituted Congress originating the amendment. I think it's a bit dodgy to say that, since the time limit was in this paragraph rather than that, we can ignore it."

It was "separate" in the sense that it wasn't part of the amendment itself. I think we all agree on that. My view is that when there's an unquestionably constitutional way to do things, then things ought to be done that way instead of a way that leads to controversy on the merits and on who gets to decide.

# posted by

Mark Field : 4:43 PM

"Let's just say that the 27A is precedent, but not binding."

It's uncontroversially precedent for two propositions:

1) Amendments which lack associated deadlines do not expire.

2) Ratifications which have neither expiration dates nor have been rescinded do not expire.

That is to say, it's precedent, but the precedental value is pretty limited in regards to the ERA, which conspicuously fails provision 1, which renders provision 2 somewhat irrelevant.

I suppose that, were Congress to issue the ERA again, word for word identical, an argument could be made that the ratifications from states that neither rescinded nor set deadlines would still be valid.

But as things stand I don't see the ERA getting a plain majority in both chambers, let alone the 2/3 vote necessary to an amendment. Indeed, the implausibility of getting Congress to reissue it, or any substantial number of states to ratify it if they did, is why ERA proponents are resorting to counting rescinded ratifications for an expired amendment in the first place: They don't pursue the obviously legitimate path because what they want isn't popular enough to succeed that way.

# posted by

Brett : 5:49 PM

I will read your article, though I am extremely skeptical of the idea that one can ignore rescissions and/or the deadline set by Congress for ratification. But I am curious about your suggestion that Congress has some sort of discretion in deciding whether to declare the ratification valid. That has to be wrong. Either the ratification is valid or it is not. Congress may get to make that decision, but that is a pure question of constitutional law, not a policy or discretionary issue.

# posted by

mls : 6:41 PM

"But as things stand I don't see the ERA getting a plain majority in both chambers, let alone the 2/3 vote necessary to an amendment."

What's very interesting to me about this is that it is *exactly because* to use Brett's words "after the ERA was defeated, the Supreme court set out to reinterpret the 14th amendment so as to render that defeat moot."

I mean, even today's current GOP would want to run on the idea that women lack the basic rights that *either* the ERA or the 'reinterpretations' of the 14th granting women various protections should apply. In fact, many of the VA GOP who opposed the ERA argued it wasn't necessary on these exact grounds.

# posted by

Mista Whiskas : 6:43 PM

I doubt the 27A would have gotten 2/3 approval in either House at the time of ratification. It's exactly the kind of amendment that Congress bottles up, the kind that causes Brett to call for a new Convention all the time.

# posted by

Mark Field : 6:58 PM

Now that I think about it, calling a new Convention raises some of the same issues as an amendment:

1. What time frame is contemporaneous enough to justify a Convention?

2. Can a state rescind its call for one?

3. Who gets to write the rules for the Convention (can Congress, outside the text of a proposed amendment, place deadlines on ratification?)?

4. Who gets to decide how all this works and why?

# posted by

Mark Field : 7:05 PM

"I doubt the 27A would have gotten 2/3 approval in either House at the time of ratification. It's exactly the kind of amendment that Congress bottles up, the kind that causes Brett to call for a new Convention all the time."

2/3? I doubt it would have gotten 1/2. Fortunately, the 2/3 vote in Congress is the first step in amending the Constitution, not the last, and once Congress originates an amendment, any discretion on their part is properly over. (Note I said "properly", that doesn't mean they won't presume to improperly exercise discretion not assigned them.)

Yes, the alternate, convention process in article V was not well thought out. It exists as a way to circumvent Congress if they won't originate needed amendments, but routes the procedure through Congress anyway, permitting Congress the opportunity to spike calls for a convention by simply refusing to count high enough. They should simply have declared that any amendment ratified with the same language by 2/3rds of the states would become part of the Constitution regardless of how it originated.

Not that the states aren't assisting them in this by issuing calls for conventions that specify subject matter, and use different wording, offering Congress a perfect excuse not to add them together. You'll know the states are serious about a convention when they adopt uniform language.

My own opinion

1) Any time frame, because the Constitution, just as in the case of amendments, sets no time limit. The states' calls for the convention could be written to expire, though, if they wanted.

2) I should think so, at any time prior to the convention being called. The Constitution assigns the decision to the states, we should adopt rules designed to effectuate the states' intentions, not frustrate them.

3), 4) Not Congress, certainly. The Convention procedure exists as a way to circumvent Congress, Congress' input should be minimized to deny them opportunities to defeat the convention. (By, for instance, declaring that each state's delegation to the convention will consist of its House and Senate members.) So, the states, via legislative action or state conventions.

The only discretion Congress is supposed to exercise in the case of a Convention is whether ratification of the resulting amendments will be by vote of state legislature or by state ratifying conventions.

# posted by

Brett : 7:32 PM

"once Congress originates an amendment, any discretion on their part is properly over."

What's that based on?

"we should adopt rules designed to effectuate the states' intentions, not frustrate them."

Who is 'we,' and what's that based on?

Just asking.

# posted by

Mista Whiskas : 7:42 PM

It's based on the language of Article V

"or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments,"

"Shall" is not a word used to confer discretion.

"which, in either case, 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, or by conventions in three fourths thereof,"

There's that word again: "Shall". And the amendment become part of the Constitution when ratified, not when Congress declares it ratified.

No, the only discretionary part here is where Congress decides the mode of ratification.

# posted by

Brett : 7:48 PM

In some ways it's beside the point, because after the ERA was defeated, the Supreme court set out to reinterpret the 14th amendment so as to render that defeat moot. But it's still constitutional dynamite

The ERA applies to the states and federal government.

It explicitly declares something to be the law and like the First Amendment (which many thought redundant, but had power in part since it explicitly said something) would have special effect for that very reason.

The basic support of equality here makes it unlikely it will be "dynamite." Some might grumble, but it just isn't important enough to people any more.

This is even more so if it isn't in realistic actuality changing much. I think that exaggerates things somewhat. Even now, the Supreme Court in a few areas hasn't fully treated "sex" like race. Anyway, the change of the law happened over a span of decades. Over time. Like constitutional law often develops. Slower development (with the minority having a stronger case) means the ERA not passing is far from "moot."

ratifying isn't a Congressional power. It's a STATE power.

The text: "when ratified by the legislatures of three fourths of the several states."

This doesn't by itself answer the rescission question, as has been covered, nor the deadline question. Extending the deadline still gives states the power to ratify. If anything, the Necessary and Power Clause gives one body, Congress, broad power to fill in details to carry out constitutional provisions.

Also, any ire should largely be tossed the Supreme Court's way. Coleman v. Miller, in the 1930s, serves as a basic precedent. First:

"We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment."

Second:

"The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts."

A 1920s opinion suggested a proposed amendment is not pending for all time if there is no time limit resolution etc. This one said balancing the factors to decide if an amendment proposal was no longer ripe was up to Congress. There a bare thirteen years was suggested as too long. Forty to me is clearly here now.

The deadline not being in the amendment itself, the ball was in Congress' court to extend the deadline. Too much time, taking everything into consideration, has passed now. The Supreme Court, not some nefarious ERA supporters, however, put the ball in Congress' court here.

# posted by

Joe : 7:51 PM

"There's that word again: "Shall". And the amendment become part of the Constitution when ratified, not when Congress declares it ratified."

You're assuming your conclusion. The whole point in dispute is how to treat (a) rescinded ratifications; and/or (b) ratifications after a deadline. Somebody has to decide these questions in order to declare an amendment "ratified". As Joe's citation to Coleman v Miller shows, Congress is the most likely decider.

# posted by

Mark Field : 8:07 PM

"The basic support of equality here makes it unlikely it will be "dynamite." Some might grumble, but it just isn't important enough to people any more."

The constitutional dynamite here is Congress deciding to declare an amendment that the states rejected has been ratified. Exactly what that amendment happens to be is irrelevant, once they start doing that, they're not likely to stop.

"You're assuming your conclusion."

No, I'm assuming you can read. And, I suppose, that you care what the words say.

The only discretion Congress is given in article V is it's own origination of amendments, and choosing the ratification route if the states decide they want a convention. It has no other discretionary role, and is given no role AT ALL in deciding whether an amendment has been ratified. You literally will find no words in that Article conferring on Congress any role in the amendment process once the states are deciding whether or not to ratify.

The states decide whether to ratify amendments. Not Congress. And nothing suggests, unlike the call for a convention, that Congress is even given the job of counting how many states have decided to ratify, and thus the opportunity to abusively do its math wrong.

I say this again: States, not Congress, decide whether to ratify amendments, and the Convention is a means for cutting Congress out of the loop almost entirely. Stop trying to transfer back to Congress power over this process, so that they can abuse it.

# posted by

Brett : 5:44 AM

You're ignoring the Supreme Court now. It already said (Coleman v Miller) that the rule was what I suggested, namely that Congress gets to decide what happens when a state rescinds its ratification. The same rule holds for timing.

You can't say that "it's up to the states". The "states", plural, don't get to decide anything. A single state decided both ways. Somebody has to resolve that ambiguity. According to Coleman it won't be the Court.

# posted by

Mark Field : 8:42 AM

Yes, I'm not a legal realist, I'm capable of noticing the Supreme court get something wrong.

# posted by

Brett : 8:50 AM

That's … not what Legal Realism says.

# posted by

Mark Field : 9:44 AM

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# posted by

Bart DePalma : 10:18 AM

Mark:

Coleman v Miller was a hot mess where the Court splintered. I am unsure how much weight a modern Court will give to it.

For the purposes of an Article V convention, the Coleman reasoning deferring to Congress to make decisions about amendments it proposed should not apply to a convention of states, where the question becomes whether the Court should defer to a Congress seeking to block amendments proposed by a convention of states and then ratified by the requisite number of state legislatures or conventions?

# posted by

Bart DePalma : 10:18 AM

"That's … not what Legal Realism says."

Effectively it is. It amounts to a claim that the law is just what judges rule, and you find out what the law is by looking at how they rule.

So you can't independently say they've ruled wrongly based on any external yardstick such as textualism. If the Supreme court says the law is X, the law IS X, and stop all these irrelevant appeals to the actual text of the law.

# posted by

Brett : 10:52 AM

I'm not going to discuss it here because it's wildly off topic. However, you can find references on line such as https://cyber.harvard.edu/bridge/LegalRealism/essay2.htm (note that there are multiple pages -- see the arrows on the left).

# posted by

Mark Field : 11:11 AM

I looked over the article.

GM agrees that Coleman v. Miller [backed up by history] makes the basic disputes here a political question so Congress would under long precedent have the assumed power to ignore the rescission, extend the deadline (the vote there would be subject to filibuster) and accept VA as the 38th vote.

But, as a matter of legitimacy, GM believes Congress should only declare the amendment ratified w/o counting the rescissions, especially given the extended deadline etc.

Also, there are limited precedents where these matters were pressed. I would note these issues did not only come up during Reconstruction (and there Northern states were involved). The 19th Amendment and other proposed amendments were involved. And, regarding some contemporaneous requirement/assumption, the literature cited other history, such as early 19th Century proposals.

I don't think the article fully covers that but regardless I too don't think Congress should accept the ratification of the ERA. But, as I have said, I actually would be more strict there. I think the ERA should be re-submitted to the states. I'm not the decider here though. Under precedent, Congress is. And, that is what they should do.

# posted by

Joe : 11:23 AM

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# posted by

Bart DePalma : 11:33 AM

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# posted by

Bart DePalma : 11:34 AM

Sorry for going off topic, but this is big news.

Several months ago, the intelligence community IG started investigating the Obama administration's apparently false warrant application to obtain a top secret FISA court warrant to spy on a member of the Trump campaign - Carter Page. That investigation reportedly mushroomed to cover other parts of the Obama administration spy and dirty tricks operation against Trump, which is also the subject of a parallel and now criminal investigation by the US Attorney for Connecticut, John Durham, a very experienced and effective pubic corruption prosecutor.

The IG has delayed the release of this reportedly telephone book size report for months now. Fox Business's Lou Dobbs asked former US Attorney Joe DiGenova and his law partner Victoria Toensig on what their Justice and FBI sources are telling them about the reason for the delay.

According to DiGenova, the reasons for the delay are twofold:

(1) The investigations expanded from the FISA abuse to the fact the Obama administration political appointees were unmasking the identity of political opponents involved in NSA recorded communications and then leaking these top secret intercepts to the Democrat media. General Flynn was one of these targets.

(2) The US Attorney is bringing many of the same witnesses in the report before a criminal grand jury. Prosecutors do not generally call grand juries unless they are seeking indictments. These will be the first indictments for government spying and dirty tricks against the political opposition since Watergate.

Remember when Jack Balkin warned about political weaponization of the national surveillance state back during the Bush 43 administration? Well, the Obama administration accomplished it.

I am beginning to understand why the Democrats are pushing the narrative that a GOP POTUS investigating Democrat criminals is somehow an impeachable "abuse of power."

Buckle up, boys and girls.

# posted by

Bart DePalma : 11:36 AM

Wake me when it happens, DiGenova has a track history of dramatically over-predicting these things.

I'm personally expecting some Serious Admonishments, with an outside chance of Strong Language being employed.

# posted by

Brett : 11:50 AM

(Actually, I rather Congress not submit the ERA to the states as a matter of policy, but if we pass a ERA, that is how it should be done.)

The constitutional dynamite here is Congress deciding to declare an amendment that the states rejected has been ratified. Exactly what that amendment happens to be is irrelevant, once they start doing that, they're not likely to stop.

The 27A amendment counted ratifications from an earlier era. It wasn't controversial basically because the subject matter wasn't controversial. There was no flow of amendments ratified. I think the ERA is basically of the same character.

States, not Congress, decide whether to ratify amendments

States are still deciding whether to ratify.

The ability to take back votes submitted here is not decided by the text any more than appealing to voting rights means I can take back my early vote before Election Day.

The same as to deadlines. Some amendments in their text have deadlines. The ERA does not. Brett wants to make the multiple amendments with the text in the deadline basically redundant. A separate resolution, not voted on by the states, would apparently be the same thing. Seems wrong to me.

WE are not the ones who set the rules here. Coleman v. Miller did with history to back it up. Brett disagrees with it which is fine. But, aim your ire at the right spot.

# posted by

Joe : 11:53 AM

"Brett wants to make the multiple amendments with the text in the deadline basically redundant. A separate resolution, not voted on by the states, would apparently be the same thing. Seems wrong to me."

Again, it wasn't a separate resolution. The 1979 deadline was right there in the resolution by which Congress issued the amendment. No separate vote, it was voted on as a unit.

As long as there isn't a separate vote, as long as the resolution and the amendment are voted on as a unit, they're all the amendment so far as I'm concerned.

# posted by

Brett : 12:02 PM

I think if there is any legal question whether an amendment has been ratified, it should be presumed to have not been.

There was no legal question that the 27th Amendment was valid. But here, there were deadlines and they passed. Run it through again.

# posted by

Dilan : 12:29 PM

And having said that, I take no position as to what the courts would do here. One possibility is they simply refuse to decide it, saying that the cases come out the same way under Craig v. Boren so they don't need to decide the thorny constitutional issue.

# posted by

Dilan : 12:31 PM

Brett:

As you know, for months now, I have skeptically questioned whether the IG's reported criminal referrals would result in actual Justice Department indictments. This would require Justice to prosecute members of its own bureaucracy. Remember also, the FBI IG made a criminal referral against Comey and the Barr Justice Department declined to prosecute.

However, Durham's decision to change the official status of his investigation to criminal to authorize calling a grand jury and now this report confirming Durham is calling witnesses before a grand jury makes me cautiously optimistic this lawless and partisan weaponization of intelligence gathering and law enforcement may finally result in criminal prosecution.

If Justice wanted to punt, they would simply announce the punt like they did with Comey.

# posted by

Bart DePalma : 1:12 PM

As long as there isn't a separate vote, as long as the resolution and the amendment are voted on as a unit, they're all the amendment so far as I'm concerned.

You can set up new rules, if you wish, but the actual amendment the joint resolution sent to the states did not include the deadline. There are amendments in the Constitution where the deadline is in the actual text.

Not the case here, so Congress has the power to extend the deadline as it might have, e.g., if a national disaster made legislatures meeting in the seventh year very difficult. OTOH, if it was in the text, even that wouldn't have allowed Congress to do so without a 2/3 vote.

I think if there is any legal question whether an amendment has been ratified, it should be presumed to have not been.

Coleman v. Miller seems to give Congress wide discretion here.

# posted by

Joe : 1:33 PM

Depends on whether they just want to punt, or they want to run out the clock before punting.

Who has been replaced in Bart's DOJ since they let Comey off the hook? Barr's still there, and apparently HE was OK with letting Comey skate.

I have no faith in these people anymore. None.

# posted by

Brett : 1:39 PM

"You can set up new rules, if you wish, but the actual amendment the joint resolution sent to the states did not include the deadline."

Wait, are we still talking about the ERA here? Because I linked to that very resolution earlier. Here it is again. It's only one page, and you can see the deadline right there in black and cream. "within seven years of the date of its submission by the Congress."

One page, two paragraphs, voted on as one unit, no "separate" resolution in sight anywhere.

You're hanging an awful lot on those words being in the wrong place on the page.

# posted by

Brett : 1:45 PM

This comment has been removed by the author.

# posted by

Joe : 2:23 PM

Yes, I know, they decided to be tidy. Nobody found it confusing, nobody got the idea that putting the time limit an inch higher on the page meant anything, until ERA proponents were desperately groping around for SOME excuse why they didn't have to start from scratch.

The idea that this matters is entirely motivated by a desire to ram through a rejected amendment by any means necessary, fair or foul.

# posted by

Brett : 2:27 PM

By the way, if I were a lower court judge hearing this, and for some reason there was no way to invoke constitutional avoidance and just apply current equal protection law to a sex discrimination claim, I think Joe's reading of the caselaw looks correct. There's nothing specific on the issues of deadlines in resolutions and withdrawing consent, but if Congress says it's a duly enacted constitutional amendment, that would seem to be what matters.

And while if I were writing the rules from scratch, I would prefer there just be a flat presumption against enactment unless the record of clear, I definitely think Joe's approach is a better way of looking at an issue like this than the approach of the OP or Mark Field. This is a classic example of a situation where we really shouldn't care one bit about the framers or originalism. It's a practical problem- you have a constitutional amendment with a complicated procedural history. Someone's got to make a call, and the text of the Constitution doesn't help you. It's plausible to just defer to Congress on something like this, and the Supreme Court wasn't wrong to intimate that this is what should be done.

# posted by

Dilan : 2:56 PM

There are multiple amendments in the Constitution -- amendments, not joint resolutions sending proposed amendments to the states, which are not actually in the Constitution -- where a time limit is in the actual text.

Let's take the 21st Amendment. There a joint resolution sent an amendment to the states to consider. The text of the actual amendment, found below the resolution merely sending it to the states, included this:

Section 3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.

https://www.docsteach.org/documents/document/21st-amendment

Multiple amendments did that and the ERA could have followed precedent there too.

It did not. Here, there is a "joint resolution" [not amendment] "that the following article is proposed" [the ERA, which has no time limit except that it goes into effect two years after ratification]. 2/3 is required to propose the text of the amendment.

The time limit is not a part of the amendment, which is bracketed in quotes. It logically was passed a unit, but there are two parts. Multiple amendments having the time limit inside the actual amendment underlines precedent seeing the difference mattered.

[I edited this before the last comment.]

What other text of the Constitution -- not joint resolutions which are not parts of the Constitution -- should I handwave as mere tidiness?

It is not about being 'an inch higher.' It is that a resolution and amendment is separate. Things close together can be separate. I don't want the ERA to be ratified, as I said repeatedly, but if it is following basic standard rules, so be it.

# posted by

Joe : 2:56 PM

Bottom line here, I think the same basic rules are being applied here, and precedents applied them in multiple cases. I, who in hindsight think it better the ERA was not passed, am saying this. I, who kinda rather the ERA not pass today, am saying that.

Somewhat akin to the impeachment debate, there will not be "ramming" here given the many steps required. Even if Virginia now purports to ratify, the relevant federal official has to declare the amendment ratified. The official is likely to follow Congress' lead, which the Supreme Court in the 1930s appears to have said is its discretion.

Congress is now controlled by Democrats (House) and the Republicans (Senate). Even if the Democrats controlled the Senate, filibuster rules would apply apparently. This adds another layer. Finally, public pressure will have some say. Unlike if the original 13A (which protected slavery) was suddenly deemed ratified, the public at large however supports sex equality, so this pressure will be limited.

But, there are lots of parts here that have to fit together.

# posted by

Joe : 3:23 PM

"Even if the Democrats controlled the Senate, filibuster rules would apply apparently."

I fully expect the filibuster to survive about five minutes into the next Democratic Senate with a Democratic President. Maybe ten if the Republicans don't try to use it.

We're not in "being reasonable" territory here, anymore. We're in "win by any means necessary, and who cares how it looks." territory. So I guess Gerard is right, the ERA is coming, and nobody in favor of it is going to care if it takes a bit of cheating.

# posted by

Brett : 4:07 PM

Somewhat akin to the impeachment debate, there will not be "ramming" here given the many steps required. Even if Virginia now purports to ratify, the relevant federal official has to declare the amendment ratified. The official is likely to follow Congress' lead, which the Supreme Court in the 1930s appears to have said is its discretion.

Congress is now controlled by Democrats (House) and the Republicans (Senate). Even if the Democrats controlled the Senate, filibuster rules would apply apparently. This adds another layer. Finally, public pressure will have some say. Unlike if the original 13A (which protected slavery) was suddenly deemed ratified, the public at large however supports sex equality, so this pressure will be limited.

But, there are lots of parts here that have to fit together.

Agree with this. Plus, there would probably also be a court case of some sort, so the courts might have to weigh in as well before the end of the day.

There would be plenty of venues available for opponents to make their various arguments against a finding of ratification. No ramming whatsoever.

# posted by

Dilan : 4:16 PM

It's obvious that Brett's "masculinity" is threatened by the EPA, as well as the "masculinity" of Republicands in Congress and throughout Trump's base. It's male white supremacy that hates the ERA .Equality is anathema to male white supremacy.

# posted by

Shag from Brookline : 4:30 PM

Shag:

Originally, the ERA was pretty darned popular, including even among many Republicans.

What happened is two things:

1. In 1976, the Supreme Court recognized sex as a semi-suspect class, making the ERA superfluous at least in a majority of potential cases.

2. Abortion became a salient, party-defining political issue.

2 moved some erstwhile supporters away from the ERA, because they were afraid it might be read as codifying Roe, which they wanted to overturn.

At any rate, I still think the ERA is a very good idea. But the politics of it looked a lot stronger in the 1970's than they do now.

# posted by

Dilan : 4:36 PM

It took a while, since conservative/traditional Democratic senators were against changing the rules, to even partially change filibuster rules during the Obama Administration. So, changing it all the way with the balance of power in the hands of Joe Manchin types might not be a given. But, that is just one part of multiple steps and if it took place, the people of the United States would have given them an additional mandate.

As far as things "looking" a certain way. GM says that the question of the ratification of the ERA is coming. The actual ratification requires various steps. As Dilan also notes, the Roberts Court (conservative) might be an additional one.

GM argues that historical and legal precedent suggests Congress has broad power here regarding rescissions and deadlines. You might not like this precedent but so be it.

But, he argues as a matter of good policy, it would look most legitimate if Congress didn't authorize ratification without enough states to compensate for the states that already said they took back their authorizations.

Regardless, given the multiple steps to ratify, public will is going to be factored in. The result might not satisfy some Brett representative minority, but even many in red states who vote Republican are not going to be appalled by the whole thing in part because sex equality is overall popular.

# posted by

Joe : 5:51 PM

Shag/Dilan:

The problem with equal protection based on gender is the genders are not the same, with the most applicable differences being men are substantially stronger, women are the only gender who can bear children and our society values privacy between the genders.

The language of the EPA recognizes no differences, which can lead to irrational applications like women serving in military combat arms without regard to ability, abortion on demand based on the argument that prohibiting abortion "forces" women to bear children, and unisex bathrooms and locker rooms.

Previous EPA proponent arguments that such applications will never occur and are merely scaremongering were subsequently rebutted by recent applications of the EPC to achieve the same irrational ends.

# posted by

Bart DePalma : 5:59 PM

Rokster v. Goldberg is still good law, Bart. The POLITICAL system integrated women into combat. Similarly, nobody has held that Craig v. Boren requires unisex bathrooms and locker rooms, and there's no reason to think that the ERA will be construed that way.

As for abortion, even though Ruth Ginsburg favors it, the equality rationale for abortion rights has never taken hold in the judicial system. It's hard to see how the ERA would change that. Abortion rights are recognized as a matter of substantive due process, and they either will or won't continue to be recognized under that doctrine. The sorts of judges who think that SDP doesn't cover abortion rights aren't likely to be persuaded by equality arguments (something you implicitly concede by putting "forces" in scare quotes- obviously you don't accept the reality that abortion policies force a particular disability on women, and I doubt pro-life judges view the issue any differently than you do).

The most likely effect of adoption of the ERA is no effect at all, except that to the extent there are still some neaderthals running around saying that Craig v. Boren is wrongly decided and Bradwell v. Illinois should still be the legal standard, it will clarify that indeed Craig was correct.

# posted by

Dilan : 6:16 PM

Dilan:

Application of equal protection to gender originally recognized the genders are not similarly situated.

As written, the EPA refuses to recognize the genders are not similarly situated.

I agree the Courts could ignore the EPA as written and continue to recognize the genders are not similarly situated.

The point is why should we ratify a plainly irrational amendment and place the courts in that position?

# posted by

Bart DePalma : 6:37 PM

The ERA doesn't say anything about whether the genders are similarly situated. It just says they are equal.

Absolutist constitutional language does not preclude court interpretation as to the limits of rights. You know that.

The reason to ratify an amendment is there are still people out there who are claiming that Craig v. Boren was some illegitimate exercise in power. Isn't it you folks on the right who are always complaining about judicially created rights? Then when we try to codify them, that's wrong too?

# posted by

Dilan : 8:01 PM

Dilan said...The ERA doesn't say anything about whether the genders are similarly situated. It just says they are equal.

Say again? How exactly do you distinguish "similarly situated" and "equal?"

The reason to ratify an amendment is there are still people out there who are claiming that Craig v. Boren was some illegitimate exercise in power.

No one who matters for the enforcement of the opinion.

My only problem with Craig and other equal protection cases is nonsensical hierarchy of "scrutinies." First, progressive courts stripped businesses directed by the progressive state of all equal protection of the law, then restored it fully in cases of racial discrimination, then partially restored it in cases of gender discrimination, then ignored the scrutiny hierarchy for sexual orientation.

The analysis should be simple - the law should treat everyone who is similarly situated the same. If this outlaws the arbitrary and capricious regulatory state, it is long past time.

# posted by

Bart DePalma : 10:59 PM

It seems to me that you have to allow rescissions.

Otherwise, in the limit, all amendments get ratified by the states.

You also have to have time limits, for that reason and another. Without a limit you can have states ratify, rescind, ratify again, and so on. So you're waiting for the time when, for one magic hour, there are thirty-eight ratifications in effect.

In other words, without that, the mechanics don't make a lot of sense.

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# posted by

Cynthia : 8:08 AM

The mechanics make more sense without time limits, than they do without rescission.

Without time limits, you may doubt that the amendment you're declaring ratified is contemporaneously supported by the necessary number of states at this time. (This wasn't an issue with the 27th amendment, because it ultimately got enough modern ratifications to pass without the early ones.) But in the end it's only doubt.

Without rescissions, you can end up declaring ratified an amendment you know for a fact lacks contemporaneous support by the necessary number of states.

That is in fact the very point of denying rescissions validity: We know the ERA lacks sufficient contemporaneous support to be ratified, but the ERA proponents want it ratified anyway.

Like I said, they want to win, and don't care if they have to win dirty.

# posted by

Brett : 8:37 AM

they want to win, and don't care if they have to win dirty.

You are quite selective in who you criticize for wanting to "win dirty," and your definition of that phrase is not clear to me.

# posted by

byomtov : 8:53 AM