Say, remember that time that Joe Biden decided to unilaterally amend the Constitution just because he felt like it? No, seriously. With just three days left in the Biden Regency, the outgoing (p)resident declared that the Equal Rights Amendment had become "the law of the land," because he believed it.
No, seriously seriously!
Today I'm affirming what I have long believed and what three-fourths of the states have ratified:
— President Biden Archived (@POTUS46Archive) January 17, 2025
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
Needless to say, this left many observers scratching their heads, even among Biden's allies. The administration had acknowledged just the opposite two years earlier, and the National Archives had affirmed its non-ratification just a month prior for the third time in four years.
And of course, the most puzzling aspect of Biden's declaration is that presidents -- not even those protected by a politburo making the actual decisions -- have no role or authority in amending the Constitution. Presidents don't even sign the bills proposing such amendments to the states when Congress manages to pass them with the requisite two-thirds majority in each chamber. It's strictly between the states and Congress in that model, or in the event of an Article V convention, between the states entirely.
Most amusingly, Biden issued his proclamation just a couple of days after his valediction from office, in which he lectured Americans about the necessity of respecting the Constitution. He warned about presidents being considered above the law, just a few weeks after pardoning his family and key people in his administration who might get investigated for potential crimes they committed for Biden.
Needless to say again, no one took Biden's proclamation seriously. And when I say no one, I mean even the outer reaches of perceived liberal bias on the bench, known officially as the Ninth Circuit*. My friend and colleague Aaron Walker found this unanimous decision by one of its panels that emphatically rejects Biden's "belief," which someone was foolish enough to take seriously.
In a terse two-page order, the three judges rejected an appeal of a challenge to Selective Service registration on the basis that it violated Biden's imaginary 28th Amendment. It only took one paragraph to dispense with that claim, emphasis mine:
The district court properly dismissed Valame’s action because Valame failed to allege facts sufficient to state any plausible claim. See Rostker v. Goldberg, 453 U.S. 57, 83 (1981) (rejecting the argument that the MSSA is unconstitutional under the Fifth Amendment); Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015) (explaining that “we do not engage in anticipatory overruling of Supreme Court precedent”); Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013) (explaining that dismissal “under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory”). We reject as meritless Valame’s contention that the Equal Rights Amendment was ratified as the Twenty-Eighth Amendment to the Constitution.
Bu-bu-bu-but Biden said it was! Well, there's something even funnier about that, as Aaron points out. Even Biden's Department of Justice didn't share Biden's "belief":
And not for nothing, but Joe Biden was one of the named parties in the court below, him being sued in his official capacity as President of the United States. The case was originally captioned Valame v. Biden, et al. Naturally today, it reads as Valame v. Trump, et al., because when the president is sued in his or her official capacity, it means the name on the caption is the current president. But what all of that tells you is that the Biden Administration had been fighting this case since June of 2023 and the government’s lawyers never said, ‘you know what? Valame is right! The ERA is part of the Constitution!’ Even after Biden made his declaration that the ERA is part of the Constitution, his administration's lawyers were still fighting it through the end of his term.
It’s almost as if Joe Biden wasn’t really in charge of his administration or something. But that’s just crazy talk!!!
The entire episode should embarrass everyone involved in it. It won't, because the Biden Regency is shameless, but it should.
At any rate, we now have yet another court decision ruling that the ERA never got successfully ratified. That should put an end to the chicanery of Democrats who cheered Biden's proclamation in January and who insisted that the National Archives ignore the record and adopt it anyway. The should in this case is pretty much equal to the should in the previous paragraph, however, because Democrats and their allies in the Protection Racket Media will continue to scream about the rule of law while arguing that presidents can unilaterally amend the Constitution. Shamelessness is the main feature of this political age.
* -- As I have written before, the Ninth Circuit's reputation for liberal bias and overturn rates was somewhat overblown anyway. Its character changed somewhat when Donald Trump appointed judges to several open slots during his first term as well.
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