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Woman holds ERA sign

An ERA supporter holds a sign during a Washington, D.C. rally in 2015. (Photo: Elvert Barnes/CC BY-SA 2.0)

Top Dem Calls on Biden to Toss Legally 'Erroneous' Trump Memo and Ratify Equal Rights Amendment

The renewed push comes nearly 50 years after Congress passed the amendment.

Andrea Germanos

U.S. House Oversight Committee chair Rep. Carolyn Maloney on Thursday urged President Joe Biden to rescind the former Trump administration's "erroneous legal memorandum" blocking adoption of the Equal Rights Amendment, which would enshrine "equal rights for people of all genders in the Constitution."

"Such a legally flawed memo should not stand."

Maloney's (D-N.Y.) call came in a letter to Biden and Vice President Kamala Harris in which she referenced Virginia's ratification of the ERA last year—nearly five decades after Congress approved the amendment and nearly 100 years after it was first proposed.

With that development, which followed similar actions by Nevada in 2017 and Illinois in 2018, the amendment had secured ratification by three-fourths of states.

Now, Maloney wrote, "the archivist of the United States should immediately perform his legal duty" by certifying those three states' ratifications and publishing the ERA as the 28th Amendment.

Throwing a wrench into that advancement was an Office of Legal Counsel (OLC) legal opinion——issued under the Trump administration in January 2020—which Maloney said was "ostensibly written in response to a request for guidance from the National Archives and Records Administration," over which her committee has jurisdiction.

The letter, citing an analysis from legal scholars, said that "the opinion went far beyond NARA's request, inserted the executive branch into a process the Constitution leaves to Congress and the states, and included a flawed legal analysis that misapplied precedent and wrongly concluded that the ERA had not met the requirements for certification and could not be revived."

"Such a legally flawed memo should not stand," wrote Maloney, calling ERA ratification "the most consequential action we can take to ensure gender equality for all."

"As chairwoman of the Oversight Committee, and as a woman whose equality under the law is still not reflected in my own Constitution," she added, "I thank you for your attention to this important matter."

Maloney also sent a letter Thursday to archivist of the United States David Ferriero that referenced the "faulty legal analysis" of the Trump OLC opinion.

She urged Ferriero to promptly certify the ERA ratifications by Nevada, Illinois, and Virginia, and publish the ERA as the 28th Amendment to the Constitution—and to request new OLC guidance promptly should that be deemed necessary.

The congresswoman's letters came the same day the Oversight Committee held a hearing on the ERA.

Among the witnesses at the hearing was ERA Coalition president Carol Jenkins, who told lawmakers the amendment "would go a long way toward starting the process of remedying the historic discrimination perpetrated based on sex since the founding of the United States."

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