The OLC's Mistaken Analysis of the ERA

Gerard N. Magliocca

Soon the impeachment trial will inhale all of the constitutional oxygen. Before that happens, though, I would like to explain why I believe the OLC was wrong in concluding that Congress cannot waive the expired ratification deadline for the proposed Equal Rights Amendment to the Constitution. To be clear, I think that a member of Congress can in good faith reject waiving the deadline or conclude that the states that rescinded their ratifications during the 1970s should not be counted as yes votes, which would leave the ERA well short of the three-quarters required for ratification.

The principal flaw of the OLC's analysis, in a nutshell, is in imposing an elegant solution on a messy problem. The elegant solution is that Article Five contemplates only prospective action by Congress for a constitutional amendment because "[t]he power to propose is . . . a prospective power, and does not entail any authority to modify the terms of a proposed amendment once it has been offered for the consideration of the States." OLC Memo at 27. The OLC argues that waiving the ratification deadline for the ERA would modify the terms of the proposed amendment because any deadline is part of the ratification mode of the amendment.

The first difficulty with this reasoning is that there is considerable contrary practice. Congress was heavily involved in the ratification process that followed its proposal of the Fourteenth Amendment, going so far as to direct how the process would be undertaken in most of the ex-Confederate states. What does the OLC have to say about that? Oh, that's just "one episode" plagued by "Reconstruction irregularities." Chief Justice Hughes, the OLC suggests, was wrong to pay attention to that example in his plurality opinion in Coleman v. Miller. OK. How about the fact that Congress did extend the ratification deadline for the ERA in 1978 with the OLC's approval? Oh, the 2020 OLC says that the 1978 OLC made a mistake. OK. How about the fact that Congress thought that a joint resolution was necessary to confirm that the Twenty-Seventh Amendment was ratified and passed one in 1992? Well, Congress was simply wrong about that: no congressional action was required for ratification. You must ignore a lot of facts the prospectively principle simply does not exist upon close scrutiny.

A second difficulty is that the OLC incorrectly conflates putting a ratification deadline into the text of a proposed amendment and putting one into a joint resolution that frames the proposed amendment. Everyone agrees that Congress can put a ratification deadline into the text of an amendment (Dillon v. Gloss so held) and that, once proposed to the states, Congress cannot change that deadline without proposing the entire amendment all over again. The OLC contends, though, that the same is true if Congress puts a ratification deadline into a joint resolution, as was done with the ERA.

Is the proposed text of a constitutional amendment the same as a joint resolution? Hardly. One is voted upon by states in the ratification process. The other is not. One becomes binding law upon ratification. The other does not. One requires a supermajority. The other requires only a majority. Moreover, we can tell that Congress did not think that putting a ratification deadline into a joint resolution was the same as putting one into a proposed amendment. How can we tell that? When Congress proposed an Article Five amendment to the states in 1978 to give the District of Columbia representation in Congress, the seven-year ratification deadline was put directly into the text. Why? Because the ERA ratification extension created an understanding that deadlines that were in a joint resolution could be changed, and Congress wanted the DC representation deadline fixed.

How does the OLC explain their novel idea of the equivalence of proposed constitutional text and a joint resolution? Part of the answer is that both create reliance interests for states in the ratification process. That's true. But they are different reliance interests. One (a deadline in the text of proposed amendment) means that the deadline may not be modified at all. The other (a deadline in the text of a joint resolution) may be modified only by another joint resolution, which is still a tall order. Now it's fair to say that the states may not have had adequate notice of this distinction prior to the 1978 ERA extension. To turn this point into a constitutional barrier, though, is a non-sequitur. Congress is free to conclude that waiving the ratification deadline now would be unfair to the states and would make the ERA illegitimate (especially when you throw in the state rescissions). But that is a discretionary call for Congress, not a constitutional requirement.

I could go on, as the OLC also takes some strange positions on the authority of the Supreme Court's leading precedent on Article Five--Coleman. But I think I'll save that until Virginia ratifies the ERA and creates the plausible argument that three-quarters of the states have ratified the proposal.



Posted 9:47 PM by Gerard N. Magliocca [link]