Wednesday, January 08, 2020

The OLC on the ERA

Gerard N. Magliocca

The Office of Legal Counsel has issued an opinion on whether the proposed Equal Rights Amendment to the Constitution may still be ratified. The OLC concludes that the ERA may not be ratified without starting all over again. I think that this conclusion is erroneous, for the reasons stated in my recently-published article in Rutgers Law Review.

At the outset, let me point out that I agree with many aspects of the OLC opinion. First, I agree with its conclusion that the Archivist of the United States cannot declare the ERA part of the Constitution if and when Virginia ratifies the proposal later this year. Second, I agree that in the absence of action by Congress to change the ratification deadline (which expired in 1982) the ERA cannot become part of the Constitution. Third, I agree that Congress may lawfully impose a ratification deadline on a proposed Article Five Amendment in the joint resolution associated with the amendment, as was done for the ERA, rather than in the text of the proposed amendment itself.

But the final portion of the OLC opinion makes several mistakes in reaching its conclusion that Congress cannot waive the expiration of a ratification deadline imposed through a joint resolution. I will outline these mistakes at some point in a separate post, although in practice any action from Congress on the ERA in 2020 is highly unlikely.


I don't see the OLC opinion as having much practical effect. If VA ratifies, and it might not, the states will obviously wait and see if next year's election brings in new personnel to the OLC. My guess is that almost any Dem administration will then declare it ratified.

And then the bovine fecal matter hits the impeller.

I would say that, if the deadline is valid, (And I agree that it was, the amendment and deadline were voted on as a unit with the required supermajority in both chambers.) then its expiration is final.

This is not to say that Congress could not re-originate the amendment, but all the votes on the previous origination would have been votes on a different amendment, even if the text to be placed in the Constitution was identical.

That's your usual hyperbole, but I doubt it makes any difference. The courts could finesse the issue quite simply: X has raised issues regarding the ratification of the ERA, but as we find that the result herein would be the same under the ERA as under existing law, we find it unnecessary to reach those issues.

I think I'm basically in agreement with the OP.

My basic stance is that Coleman v. Miller [reasonably so imho/fwiw] gives Congress the power to extend the deadline, but as a constitutional policy matter, it is a bad idea to do so after so much time has passed. Constitutional policy and norms matter. All the same, since there is a pending lawsuit, what is allowed is important too.

The fact the deadline was voted as "a unit" doesn't change this. Multiple amendments, in the text, have deadlines. The text of this amendment does not have such a time limit. "Words has consequences" even if constitutional text is seen by some as trivialities.

We then go to practicalities. First, as GM notes, not likely Congress will pass an extension especially given Republicans control the Senate.

Second, there is the practical effect. The system in place provides a ministerial process for the Archivist to declare an amendment is ratified. But, to the degree this might matter, it will be subject to court challenge [Coleman v. Miller might make it a lost cause but a 1930s opinion is even less "be all, end all" than a single impeachment related opinion in the 1990s, especially since it's much less politically explosive to submit it to the courts.]

Third, there is the practical effect of the amendment itself on doctrine. A recent "Ginsburg Tapes" podcast cited an example where it might matter (citizenship rules retain some gender classifications). Conservative judges might find the ERA a factor in close cases. How it plays out in gender identity, trans and sexual orientation cases also is of interest. But, even many supporters such as RBG support the ERA as a symbolic expression of equality. This isn't new -- the proposed original 12 amendments (Bill of Rights plus the 27A; one never ratified), the transmittal statement in part noted:

"The Conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution."

The ERA also will have that value, which in these still sexist times will be of some value. As Mark notes, judges will use constitutional avoidance here too. But, some judges don't go that way, so additional text might matter there too.

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"The courts could finesse the issue quite simply"

It's true that the courts can always find a way to avoid deciding the issue before them if they're determined to.

I've read the OLC opinion, and it matches my view: Congress can place a time limit on an amendment if they do so as part of the resolution which is voted on to originate the amendment. They're all "the amendment" for constitutional purposes, whether the time limit ends up in the text of the Constitution or not is irrelevant.

But once Congress has originated an amendment, they have no further role to play, they have exercised the full extent of their discretion. It's then in the hands of the states, as it was originated.

It's too late at that point for them to add a time limit, extend a time limit, correct typos, or anything. They're done at that point, all Article V lets them do is originate a second amendment, the first is out of their hands.

Even the archivist's role in the matter is totally irrelevant; An amendment becomes part of the Constitution when the last necessary state ratifies, regardless of whether somebody else acts. Once originated, only the states have any discretionary role left to play.

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As a matter of good constitutional policy, courts should avoid unnecessary constitutional questions and if something can be easily settled by existing equal protection precedent, the lower courts should not reach out to address unnecessary novel constitutional questions. Most sex equality disputes will fall into that box.

The "it's the amendment" part might be a reasonable argument on some level but as a constitutional principle the actual text of Art. V as well as precedent does not in any clear way make that the rule. There are multiple amendments where the actual text of the amendment puts a time limit. Multiple amendments.

The time limit here is not part of the amendment. For "constitutional purposes" the text of the amendment is the actual text of the amendment. States were aware multiple amendments had actual text with a time limit. They were on notice when an amendment without such text was submitted that it was a different situation. Enabling acts would logically be passed along with the actual amendment. Still separate.

The time limit was separate and carried out Congress' role, per Coleman v Miller et. al., to assure amendments are ratified in a timely matter. Congress has a political power there to determine when such time is still ripe.

Precedent there does not hold that Congress has "no role" after originating. For one thing, it has to know when an amendment is actually ratified since it repeatedly would have duties arising from it. The Necessary and Proper Clause there would easily provide power to set up procedure for the Archivist to in a ministerial role determine an amendment is ratified and to formally submit it to the federal statutory book etc.

Precedent holds that Congress can set up a procedure to determine "when" amendments are ratified since basically that has to be determined officially somehow and the Archivist has that role. As to "discretionary" roles, the text of Article V is far from clear just what the rules are there, including how states can do things like take back their votes. Precedent and logic as I have noted repeatedly makes Brett's position states can take back their votes far from clear.

But, I'm quite open for there being room for argument. It's now a political question open to congressional discretion as GM basically argues. It then becomes a question of good policy.

I'll agree that Article V does not make it clear that states have discretion to take back their votes, and would not be particularly outraged if a court ruled such rescissions invalid, though I'd think it was bad policy. As I've often noted, the Constitution doesn't rule out bad policy, and leaves a lot of important details unspecified.

But Article V is as clear as day about the sequence here. Congress originates an amendment, and can dictate the mode of ratification, and that's the extent of Congressional authority regarding amendments. After that, it's the states' show.

Yes, Congress has to, for its own purposes, have a way of determining when the Constitution has been amended. But that's not step in the amendment process. The Constitution is amended when the last necessary state ratifies, not when Congress admits this has happened.

The Constitution is amended when the last necessary state ratifies, not when Congress admits this has happened.

And, the matter has to be recognized by some process, and the Archivist is assigned the ministerial duty to announce when it happens.

There is possibly some narrow degree of lack of clarity there such as some disputed ratification for some reason, perhaps technical or whatnot. This also results in certain statutorily established acts to occur. To that degree it is not "irrelevant." It is not some open-ended suggestion that Congress has willy-nilly power here.

If Congress can "dictate the mode," this can include time limits. They cannot change the number of states necessary to ratify or not count states that did because they prefer not to do so. But, the very question at issue is the length of time to ratify.


Congress does not have an open ended choice as to the mode of ratification. Article V:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, 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, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

By the legislatures, or by conventions in the states. Those are the choices.

Congress has significant discretion within the limits of the text which leaves various details open to the political process. How should they "propose" amendments? What sort of "application" is necessary? What should be the nature of the convention? etc.

The ERA was proposed by Congress and it chose the "mode" of state leg ratification. As with the other criteria, there are various means in place for them to fill in the details of the process (see Necessary and Proper Clause), including a time limit that here is not part of the text of the amendment [cf. multiple amendments with one] that could be extended later.

I appreciate that you, per Coleman v. Miller, are willing to let the courts determine that "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."

The same opinion dealt with a proposed amendment without a time limit in the text and held that "Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures." Four justices would have simply held "The Constitution grants Congress exclusive power to control submission of constitutional amendments" and had the power to determine when ratification occurred.

The time limit was a method used by Congress to ensure that the ERA was ratified is a suitable amount of time, a principle the Court assumed was appropriate for it to factor in. Congress could have included a limit in the text. It did not. It had the choice to go another way, an enabling resolution with a time limit. It later, via its discretion, determined the ERA was still not stale. It can again though as a matter of policy in 2020 it is much weaker to say it isn't stale than it was in the late 1970s.

Article V leaves open gaps and we enter the policy zone.

"I appreciate that you, per Coleman v. Miller, are willing to let the courts determine that "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."

I certainly wouldn't agree with that, since the Constitution invests discretion over whether to ratify to the states or the people of the states, deliberately NOT to Congress, and that ruling, (as Supreme court rulings so often do!) effectively transfers a good deal of that discretion to Congress. Where it was decidedly NOT supposed to end up.

I'd be OK with the courts declaring rescission effective. I'd be OK with the courts declaring rescission ineffective. I'm not OK with the courts declaring Congress has discretion to decide either way without review.

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The text says "when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof" and does not clearly say how to determine when that occurs. That is, e.g., if a state that already voted and -- per the mode set up beforehand -- sent their acceptance to D.C. could later rescind. Or, if perhaps, Congress can determine the rescission is appropriate let's say if the amendment process took 40 years and factor that in to determine if the existing ratification votes should all stand.

I duly note your further clarification on what "if a court ruled such rescissions invalid" means. The 1920s and 1930s Supreme Court -- after an amendment proposed to tighten up congressional power here was rejected for what that is worth -- went another way, citing long historical practice involving multiple amendments.

[I'll leave out the last part of my original comment.]

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Obviously, Congress, just as the President, and everybody in the nation for that matter, have to determine for their own purposes when ratification has occurred. That's not the same as having a choice as to whether ratification has occurred.

Thank you for sharing

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It isn't "the same" -- the argument is that Congress has certain powers to determine when an amendment is ratified in various respects above and beyond "everybody in the nation," such as the rule established back to the days of Thomas Jefferson of how to go about officially announcing that an amendment of the federal Constitution exists. This is a federal function and Congress has some discretion, both under Article V and the Necessary and Proper Clause at the very least, over filling in details.

(This has been covered already but the interpretation will result in various disputed results and further reading is out there.)

The absolutist language of certain court opinions might be pushed back upon if one likes as was the case over determining the contours of a fair impeachment trial, but the basic principle holds. GM covers time limits and recissions in his article. Congress has discretion via outside the text of the amendment (as here) to determine if an amendment is still ripe. GM cites the Necessary and Proper Clause there along with long precedent -- Congress specifically has power there to fill in the blanks.

The net result is Congress has some discretion though how much can surely be debated. The whole recission thing surely is debatable (I don't know if GM is correct on the point) but that probably is in some fashion related to the timeliness issue too. Anyway, long precedent going back at least to the 19h Century, probably the 18th, gives Congress discretion including because this is a federal amendment and it has a specific rule in determining the basic thing as their very existence.

The argument continues.

I'll rest on the same point the OLC does: The Constitution itself doesn't give Congress any role after the amendment is originated, and states that it becomes valid when the states have ratified.

There's nothing in there to even suggest that Congress has to be the one to count the ratifications, let alone that it has any discretion in the matter.

The Constitution deliberately assigns the decision of whether to ratify to the states, not Congress. And even gives the states a way to circumvent Congress in the origination of amendments, too, if they see fit.

This is nothing but an illegitimate attempt to claw back some of that ratification authority from the states, and give it to Congress.

How often does the Supreme Court cite OLC opinions in rendering opinions?

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