Q+A with Sen. Kirsten Gillibrand

The Equal Rights Amendment was approved by Congress in 1972 and initially ratified by 35 states. It finally met the three-fourths state-ratification requirement in 2020 when Virginia followed suit. However, it has not been certified and published into the Constitution. Sen. Kirsten Gillibrand spoke to Savannah Behrmann about why she wants President Biden to compel the national archivist to certify and publish the ERA before his time in the White House ends. She argues the ERA is the only proposed constitutional amendment that has met the clear requirements of Article V but has not been certified and published. This interview has been edited for length and clarity.

What exactly are you asking President Biden to do in regard to the ERA? Why has it not been ratified yet?

I'm asking for a meeting with President Biden to convince him that he has the legal basis to call on the National Archivist to sign and publish the ERA. And the reason why he has a legal basis to call on her to sign and publish the ERA is because Article V requires only two things for a constitutional amendment to be made, and both of those two things have been completed.

The first is the constitutional amendment needs to be voted on by the House and Senate by two-thirds majority. That was done in the ‘70s. And second, it needs to be ratified by three-quarters of the states. The last state to ratify was Virginia in 2020. At the time, Virginia asked the archivist to sign and publish, and the archivist did not, because President Trump was president and he directed his Office of Legal Counsel [to issue] a memo saying that the 28th Amendment was not valid because it took too long.

That has been the argument of some ERA critics. What do you make of that?

The argument and the precedent that was cited, too, in that OLC memo is wrong, and it is not accurate. In fact, it not only misstated precedent, but it relied on precedent that's no longer valid.

For example, they relied on the Dillon case, which is a 1921 Supreme Court case that essentially held that all constitutional amendments need to be done in a timely way from the time they're proposed. But since 1921, we have successfully added the 27th Amendment to the Constitution [preventing members of Congress from raising their own salaries], which took 203 years from the date it was proposed to the date it became a constitutional amendment. So there is no timeliness requirement.

The opinion also relied on a seven-year time limit that was added to the preamble of the Equal Rights Amendment. We know from contract law, from other parts of the law, that information and deadlines in a preamble or in the preparatory language or in "whereas" clauses are nonoperative. They're added for context, so that seven-year deadline is not operative constitutionally.

And the last argument is that if you believe Congress can set a deadline, which is the question—whether they can or not, that, at a minimum, they would have had to put it in the actual constitutional amendment, not in the preamble.

I believe that the weight of the law is on our side. We have an opinion from the [American Bar Association] stating that the timelines are not constitutionally operative and that Congress doesn't have the authority to set them anyway. We have the support of pretty much every attorney general in a blue or purple state who have signed briefs in the D.C. Circuit case supporting these arguments. The weight of the arguments are on our side.

You said that you’ve been pushing for a meeting with Biden on this topic. Do you believe that will happen? Are you hopeful he could get the ERA across the finish line as one of his last acts in office?

I do. I have been hoping for the meeting sooner than later. And I talked to him already once about it when he was in New York City for a ceremony for [Stonewall National Monument]. I pitched him in the photo line—which was a 30-second pitch—and he very much liked my argument in 30 seconds. So I'm hoping for a five-minute meeting so I could fully describe what I'm asking him to do.

And what exactly is that?

At the end of the day, the national archivist has the responsibility to sign and publish this.

The archivist would really like to know that this is something that President Biden supports before she acts, and so I'm asking President Biden to call on the archivist to sign and publish so she knows it is supported by the president, who has ultimate authority over the Office of Legal Counsel.

You’ve met with the current national archivist on this topic?

Yes. She said that she believes her hands are tied under the current OLC memo [and that it] did not give her guidance. She expressed that, obviously, if the president disagreed with that Office of Legal Counsel memo, that would be very relevant to her.

This president has been very clear that the Department of Justice is independent, and so he has not inserted himself in the Office of Legal Counsel, unlike President Trump, who directly inserted himself with the Office of Legal Counsel.

Are there additional steps Congress can take to get this added to the Constitution if Biden does not direct the archivist to do so before he leaves office? Or is it solely on the executive branch to take that next step?

Well, this particular Congress that we just elected will never be willing to support women's equality or guarantee reproductive freedom. You have to have a different Congress. And in the Senate, you need 60 votes to reach a filibuster, and we don't have 60 votes of people who believe in reproductive freedom, so we are a very long way from codifying Roe or guaranteeing equality or guaranteeing reproductive freedom legislatively. You would need, literally, 10 more Senate seats that you don't have, and you would need to flip the House.

The House did pass laws to say that the seven-year time frame in the ERA was nonoperative. We don't have 60 votes in the Senate, and probably won't for a very long time. I think if you're required to take the legislative approach, you are essentially accepting defeat.

In a letter to President Biden in November, you and your colleagues said that certifying the ERA would help protect women’s access to abortions. Can you elaborate on that point?

What we know in state-level equal-rights amendments, in state constitutions, is that they have been used [as a basis] in court to guarantee reproductive rights. So for example, in both New Mexico and in Connecticut, when women are denied access to reproductive services such as abortion but men are not denied access to reproductive care, it's fundamentally unequal.

Some states' courts have ruled that equal-rights amendments protect access to abortion as a fundamental right to health care. There is a Pennsylvania case that is pending, as well as in Nevada and Utah.

You’ve been reportedly mulling a run for chair of the Democratic Senatorial Campaign Committee. Do you think Biden calling for the national archivist to publish the ERA could be imperative for Democratic success in the midterms, or even looking ahead to 2028?

Well, I think it's a choice of what you believe in. I know President Biden believes in equality for everyone in the United States. Women deserve equality. We deserve it to be enshrined in the Constitution. So it doesn't matter who's president. It doesn't matter who's in Congress. And what's so important about this moment is all the work that needs to be done, all the work that is required by Article V of the Constitution, has been completed. This is the only constitutional amendment when the two things that are required have been completed that it hasn't been signed and published. So it's already being given a disparate treatment, which is very frustrating.

I believe the archivist should sign and publish. Biden is the only person who is more senior to the OLC, and since the Office of Legal Counsel punted the issue by saying they would not decide it, it's really up to President Biden to say whether he's for it or not, to give the archivist, in my opinion, the courage she needs to do her actual administrative job. It's a ministerial job. She's supposed to just sign and publish when the two things are done.

It’s clear that this is an issue that you've obviously been pushing for some time. Could you elaborate why this matters so personally to you, and also why you believe it's so important that Biden does this before Trump retakes the Oval Office?

From the most simple perspective, women in America deserve equality, and most people in America think we have an equal-rights amendment. They'd be shocked to find out we don't, and about the lack of equality.

The Dobbs decision alone says that women of reproductive years do not have a right to privacy but men in reproductive years do. So red states are enforcing this law by saying women don’t have the right to travel across state lines for reproductive care.

People are having conversations on Facebook with their mothers about health care. They want the right to privacy to cross state lines with their 10-year-old who's been raped. They don't have the right to privacy to receive mifepristone and other [abortion-related] medicines in the mail. This is outrageous to me. I think if men in America would believe that they didn't have the right to privacy to do those things, there would be a revolution.

I don’t think the Dobbs decision is fair, and if we had an Equal Rights Amendment, I think it would be overturned. So for me, equality is something that women deserve, women expect to have, and the way the Dobbs decision is being implemented just shows how starkly women are being treated unfairly for their basic civil rights.

We have less than 50 days before we lose the chance to guarantee equality for all Americans. It should be an urgent, important issue for Biden to lead on and be a cornerstone to his legacy.