"Today, I'm affirming what I have long believed," Joe Biden declared on Twitter. "The 28th Amendment is the law of the land."

This might actually prove the necessity of the 25th Amendment, because ... well ... 

Today I'm affirming what I have long believed and what three-fourths of the states have ratified:

The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex. pic.twitter.com/oZtS6Q89zG

— President Biden (@POTUS) January 17, 2025

Needless to say, that's not how this works. That's not how any of this works. 

At least Biden's mass commutations today (about which more later) fall within the constitutional authority of presidents, although Congress and the states may want to do something about that soon. But that would only happen through action taken by Congress and the states to limit or rescind that authority through a constitutional amendment, or with an Article V convention and the states.  The president would have no say in this matter, because presidents don't have any role in determining what qualify as valid amendments to the Constitution. That means none at all, as President I Love Norms And Restraints On Power should know.

The US Constitution lays out the process for amendments, and nowhere does it have a role for the executive:

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.

Nowhere in this text does the Constitution give presidents the authority to declare an amendment ratified. Nor did the ERA ever get ratified. It fell short during the seven-year period set by Congress in the text of the amendment, winning only 35 states at the time. Congress then extended the deadline by three years, and the ERA still failed to win ratification. Since then, a few of the holdout states have 'ratified' it as political theater while some of those who did ratify it have withdrawn those ratifications -- which means, to this day, that there still isn't the three-quarters necessary for the amendment to succeed. 

In fact, exactly a month ago to the day, the National Archives repeated that the ERA was not successfully ratified, as admitted by the Biden administration two years ago. Courts have consistently upheld the deadline originally transmitted to the states by Congress in proposing the amendment as well:

“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.

“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.

“The role of the Archivist of the United States is to follow the law as it stands, ensuring the integrity of our nation’s governing institutions. Personal opinion or beliefs are not relevant; as the leaders of the National Archives, we support established legal processes and decisions.  

“We will continue to serve with transparency and integrity as we move forward in addressing this and all matters related to our Constitution.”

Presidents don't get to overrule the courts, nor do they get to declare what is and is not in the Constitution. What makes this so outrageous is that Biden just warned against executive abuse of authority less than two days ago in his farewell address to the nation, proclaiming himself the hero of checks and balances:

After 50 years at the center of all of this, I know that believing in the idea of America means respecting the institutions that govern a free society: the presidency, the Congress, the courts, a free and independent press. Institutions that are rooted not — they just — not to reflect the timeless words, but they re- — they — they echo the words of the Declaration of Independence: “We hold these truths to be self-evident.” Rooted in the timeless words of the Constitution, “We the People.”

Our system of separation of powers, checks and balances, it may not be perfect, but it’s maintained our democracy for nearly 250 years — longer than any other nation in history that’s ever tried such a bold experiment.

And in fact, Biden used this to demand that the states amend the Constitution to limit presidential power even further:

We need to amend the Constitution to make clear that no president — no president — is immune from crimes that he or she commits while in office. The president’s power is limit- — it’s not absolute, and it shouldn’t be.

It's not and it isn't, not even under Trump v US, which only recognized that official presidential acts are checked by Congress and not local DAs trying to conduct political lawfare. But Biden sure seems to think that his own power is unlimited when it comes to not only interpreting the Constitution but determining its contents, too. 

The National Archives' top authority has responded to King Joe by basically telling him to sod off, swampy. Politico's source seems a bit confused about what Biden was thinking too:

But the National Archives, which is responsible for publishing amendments to the Constitution, immediately indicated it had no plans to follow Biden’s lead.

U.S. Archivist Colleen Shogan has previously said that the ERA’s eligibility has expired, and could not be added now unless Congress acts. Congress, under control of Republicans, is unlikely to do so.

“This is a long standing position for the Archivist and the National Archives,” the Archives said in a statement. “The underlying legal and procedural issues have not changed.”

A senior administration official on Friday repeatedly declined to say whether the White House had spoken with Shogan about publishing the ERA following Biden’s declaration or pressured her to change her mind.

“The president is not going to direct the archivist,” the senior official told reporters, though the official later added that “the archivist is required to publish an amendment once it’s ratified, so the archivist is required to publish this amendment.”

Well, it wasn't ratified under the terms of its own text despite two tries at it, which is why Shogan won't publish it -- despite this clear attempt to bully her into it. Kudos to Shogan for giving Biden one last lesson on following the law. And maybe Beege has this right ... with an NSFW for language.