(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .
Biden: What the heck do you think Jimmy Carter Would Do now? PUBLISH THE BLESSED ERA! [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-01-07
Biden’s Inaction on the ERA is not only Unconstitutional,
It’s Lethal
In bestowing the Presidential Citizen’s Medals recently, President Biden said, “the most important title in America is not President but Citizen.” Yet, for his entire term he has affirmatively blocked over 51% of our population, all women and girls, from becoming equal citizens. We have always been second-class citizens under our laws, because our equality is not protected in our Constitution.
“Second-Class citizenship is uncivilized and anti-democratic,” New England Law Professor and expert on the Equal Rights Amendment (“ERA”), women’s rights, and violence against women, Wendy Murphy, Esq., said. “Equal treatment under all laws is how women stay safe and protected.”
It is shocking that the then Senator who championed the 1994 Violence Against Women Act, has been blocking the ERA from being published, for his entire term, preventing victims of sex-based violence the right to file a private civil rights cases against their perpetrators in federal court, because the ERA’s Sec. 2 [see endnotes below][4] specifically provides a Constitutional basis for that provision to be reinstated. The ERA is important especially to deter rapes on college campuses, which often go unpunished and undeterred. Further, the ERA will make women and girls safer from all types of abuse by requiring that they are treated equally under all laws.
The President’s Constitutional Authority & Duty to Publish the ERA
President Biden has a mandatory, Constitutional duty under Article II, Section (“§”) 3, the “Take Care” Clause, to ensure that laws are faithfully executed; here, the law is 1 US Code §106b. [1] This law makes it mandatory for the Archivist to publish all amendments forthwith, when she (or he) receives official notice from ¾ of the states that they have ratified it. [2] The publication of the ERA is mandatory, as it was ratified by 38 states on January 27, 2020, and fulfilled the requirements of Art. V. [3] Publication can be accomplished in minutes through an oral directive from the President to the Archivist or even a memorandum or an executive order. (Draft EO below).[4]
The Supreme Court‘s recent Trump v. U.S. case assures that neither the courts, nor Congress, can impede the President's decision-making in the exercise of his Article II powers. Biden's decision to direct the publication of the ERA would be a complete bar to judicial challenges (contrary to misinformation being spewed even within the President’s inner circles).[5] After the Archivist publishes the ERA, it cannot be challenged in court due to prior caselaw as well. [6]
The purported seven-year deadline, placed in the Resolving Clause—of Congress’ ERA Resolution sent to the states in 1972, not in the proposed text of the actual amendment as it will be written in the Constitution, [8] as well as all purported rescissions (the five states that wanted to take back their ratifications), are unconstitutional and void, as they violate Originalist and Textualist principles.[7] If Congress wanted to add another time constraint in the text, it knew how, because it did in its §3. [8] When time limits are placed by Congress outside of the text, these constraints infringe on the Art. V power of the states in the ratification process that was designed to give Congress and the States equivalent power in the amendment process, so time limits on the ¾ of the states’ ratifications violate Art. V and the 10th Amendment (aka, the “States’ Rights Amendment”). As noted, the President’s discretion regarding exerting his Art. II §3 “Take Care” power to publish the ERA is solely his (or hers), and it cannot be challenged in court based on the July 1, 2024 Trump v. U.S. case. [5]
The President must recognize the broader implications that publication of the ERA has for women's rights and healthcare access nationwide, [9] and the risks to the lives and other rights of women, girls, and LGBT adults, at least, [10] that can only be protected for certain at this moment.
Biden had last clear chance to prevent scotus from overturning roe — He used the demise of women’s Repro rights for votes and money
President Biden had the last clear chance to stop the Supreme Court from overturning Roe v. Wade, but he failed to publish the ERA before Dobbs, or even since he has learned of the resultant deaths and other trauma, using Americans’ fear, for themselves and their loved ones, apparently just to get votes and money for the 2022 midterms and then for his recent election campaign (even visually in his 2023 re-election announcement video)— while he has gaslighted the American people, by deflecting a responsibility onto Congress that it does not have, continuing until the present day. [11]. Here we are, facing a known wannabe authoritarian, announcing his Cabinet choices, where his top goal appears to be finding just the right person who can do the most damage to said department. Orwellian is too mild of an adjective. In this writer’s opinion, President Biden’s actions in blocking the ERA and the White House’s gaslighting coverup were and continue to be unconscionable.
If he claims Catholicism as his excuse, he missed the mark, because telling lies that cause grievous harm to others, here death of young women, some mothers already, is a Cardinal Sin. So, one would think that before he takes his trip to see the Pope, he should either publish the ERA, so he personally has done something to ameliorate future deaths before the inauguration, or resign so a President Harris can publish the ERA, and she will be doing it as our first female President. Then, he can seek absolution. But he does not deserve it if he fails to make sure the ERA is published as the 28th Amendment before the inauguration.
The ERA can be used to fight all abortion bans & to overturn Dobbs
As soon as it is published, the ERA can be used to fight all abortion bans (and get injunctions) and to overturn Dobbs because the ERA is the Textual Constitutional basis that Justice Alito claimed was not in the Constitution. See the ERA-NC Coalition’s Hail Mary Motion, that we filed in Dobbs, since CRR failed to bring the ERA to the Supreme Court’s attention, on May 16, 2022, as it explains why the ERA is the Textual basis directly to protect women’s reproductive rights and also why, by implication, it provides a Fundamental Right to Reproductive Choice. [10]
The Supreme Court just took a case about contraception. The ERA and men’s shock will put a halt to that case. Under the ERA, if women are deprived of birth control, men will have to be as well. Given that men are still the majority in most state legislatures, it seems unlikely that they will want to curtail their own private lives, and if contraception is banned for men, they are going to be paying a lot of child support (and none have Elon Musk’s billions to make it a non-issue).
The ERA should protect all reproductive rights, and incursions on women’s and girl’s bodily autonomy, and ancillary laws like allowing third parties to be charged for assisting someone to travel to get an abortion or laws seeking to get women’s
health records. The ERA will also protect doctors to be able to learn how to perform and actually perform abortions or even treatment for miscarriages. Doctors now can be criminally charged or lose their medical licenses in some states.
Most importantly, the ERA provides Strict Scrutiny, the strongest court protection, for sex discrimination, under which people can win about 70% of the time as opposed to about 30% of the time with regular scrutiny and up to 50% of the time with Intermediate Scrutiny, which sex-based discrimination was supposed to have, but
after Dobbs, that is questionable (meaning they have about a 50-70% chance that they will lose their cases now).
The ERA provides a Fundamental Right to Reproductive Choice,
in part because not having control over your reproductive life prevents girls’ and women’s potential success in multiple spheres: educational, economic,
professional, political, and personal. It keeps women in poverty and in domestic
violence relationships. [10]
Biden claims he supports reproductive rights and
women’s rights, but if he does not do his Constitutional duty to have the ERA published, or resign, so a President Kamala Harris can do it in time, then it is clear that he does not support women’s rights.
The ERA is as much about personal dignity as it is legal rights. Biden professes to support the rights of LGBT people and even said so at the Human Rights Campaign dinner in 2023, but only the ERA will protect same-sex marriage, which will likely be ended without the ERA published, due to the
decimation of substantive due process by the current Supreme Court. Biden
just gave the Presidential Citizen’s Medal to the attorney who argued the case that allowed marriage equality, Obergefell, in the Supreme Court, yet Biden has refused to protect same-sex marriage with the ERA.
A Legacy to Rival Lincoln’s
President Biden should proudly embrace this opportunity to solidify his legacy rather than succumb to the shame of having allowed women to die and having covered his tracks with lies and deflection onto Congress. Just as President Lincoln took bold action to sign the Emancipation Proclamation to bring our divided country together, taking a risk that few leaders would, publishing the ERA is necessary and right in this comparable moment with our country split, where one side will certainly continue to deny the human rights of 51% of our population, and the risks are about to increase with an order of magnitude on January 20th, as set out in Project 2025 and due to a “leader” who is filling his cabinet with sycophants, who have the intention to change our country, and could, perhaps forever.
The consequences of President Biden’s failure to do his Constitutional duty are so catastrophic, that if he will not publish the ERA now, he must resign immediately, so a President Kamala Harris can do it.
The ERA will be the most consequential protection of civil rights in our nation’s history, as it will make women equal citizens for the first time in our 248 years.
The ERA will be a foundational bulwark for a stronger democracy, [12] safeguarding against the encroachment of authoritarianism. The
ERA will open a reservoir of prosperity for families and of fortitude to meet the existential challenges we will soon face.
President Jimmy Carter & First Lady Rosalynn Carter
With the passing of President Jimmy Carter, the President should reflect on President and First Lady Rosalynn Carter’s lifelong commitments to equality for women, seeing women’s rights as human rights.
In 2016, the First Lady said, “Of all the projects I worked on, my greatest disappointment was the failure to achieve ratification of the ERA…. I am glad there is a renewed campaign to pass the ERA called ‘Equal Means Equal.’ I hope it succeeds this time around. Although there has been progress, women still struggle to take their full, rightful places in politics, the media, business, and athletics.” [13]
In 2020, President Carter said:
This view that women are somehow inferior to men is not restricted to one religion or belief…. Nor, tragically, does itsinfluence stop at the walls of the church, mosque,
synagogue or temple. This discrimination, unjustifiably attributed to a Higher Authority, has provided a reason or
excuse for the deprivation of women’s equal rights across the world for centuries….
[I]t also costs many millions of girls and women control over their own bodies and lives, and continues to deny them
fair access to education, health, employment and influence within their own communities….
The same discriminatory thinking lies behind the continuing gender gap in pay and why there are still so few women in [political] office in the West….
The evidence shows that investing in women and girls delivers major benefits for society.…
It is simply self-defeating for any community to discriminate against half its population. [14]
So, President Biden ask, “What would Jimmy do?” Then, do that.
_________
ENDNOTES
1. The Constitution provides that the President “shall take Care that the Laws be faithfully executed….” This duty potentially implicates at least five categories of
executive power, including: …(3) powers that congressional acts confer upon heads of departments and other executive agencies of the federal government; …and (5) power to carry out the so-called ‘ministerial duties,’ regarding which an executive officer can exercise limited discretion as to the occasion or manner of their discharge.”
https://www.law.cornell.edu/constitution-conan/article-2/section-3/overview-of-take-care-clause (Copy and paste link into browser).
2. U.S. Archives– List of certified 38 State ratifications of the ERA.
https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification-actions-03-24-2020.pdf (Copy and paste link into browser).
3. On August 6, 2024, the American Bar Association passed Resolution 601
saying that the ERA is the 28th Amendment. The ABA urges the Biden
Administration to publish it NOW. Resolution 601 and the Report, which breaks down all these legal issues and emphasizes, in its last sentence: “We need the ERA — now. Before it is too late.” (ABA Report, at 15) [Emphasis in the original].
https://www.americanbar.org/content/dam/aba/administrative/women/2024/res-601-adopted.pdf (Copy and paste link into browser). Quote from their implementation plan:
“Write letters to the Executive Branch—including the President and Vice President, … urging the Administration to publish, without delay, the ERA as the 28th
Amendment.” (ABA Report, at 17).
The ABA Report confirms that the ERA will provide strict scrutiny. (ABA Report at 1).
4. 2024-12-09 updated Draft Executive Order by Arlaine Rockey, Esq.
acrobat.adobe.com/...
5. Trump v. United States, 603 U.S. 593, 607, 144 S.Ct. 2312, 2327, 219 L.Ed.2d
991 (2024):
The exclusive constitutional authority [in Article II] of the President “disabl[es] the Congress from acting upon the subject.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-638, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) . And the courts have “no power to control [the President's] discretion” when he acts
pursuant to the powers invested exclusively in him by the Constitution. Marbury v. Madison, 1 Cranch 137, 166, 5 U.S. 137, 2 L.Ed. 60 (1803).6. See United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir. 1986) ("certification of
the adoption of [a constitutional amendment by the statutorily-designated federal official] is conclusive upon the courts") (citing Leser v. Garnett, 258 U.S. 130, 137
(1922)) (based on a component of the political question doctrine). To repeal the ERA, a new
amendment would have to be ratified, just as with Prohibition.
7. See ABA Report, linked above, regarding PURPORTED RESCISSIONS
OF RATIFICATION (ABA Report and Res., at pp. 12-13, and footnote 36).
A New era for the ERA? Our 28th Amendment to the U.S. Constitution, Michele Honora Thorne, CHICAGO BAR ASSOC. RECORD (May June 2022)(Uses Justice
Scalia’s conservative Textualist and Originalist methods of Constitutional
interpretation to prove the purported ERA Deadline (in the Resolution’s Preamble, not in the text of the proposed ERA) is unconstitutional and Ratifications, once done,
cannot be rescinded.
https://user-35215390377.cld.bz/CBA-Record-May-June-2022/31/ Also see her more easily understandable Continuing Legal Education (“CLE”) video (35 minutes) at
https://youtu.be/9rtRwfX-62w.
8. THE EQUAL RIGHTS AMENDMENT
Sec. 1. Equality of rights under the law shall not be denied or abridged by the
United States or by any State on account of sex.
Sec. 2. The Congress shall have the power to enforce, by appropriate
legislation, the provisions of this article.
Sec. 3. This amendment shall take effect two years after the date of ratification.
H.R.J. Res. 208, 92d Cong., 86 Stat. (1972).
[See ABA Report at 7, footnote 8], with reference to Art. V, which tells how to amend the Constitution, but does not provide Congress with the power to insert a deadline. The only option for Congress to insert a deadline is to put it in the actual proposed text of the amendment itself, since there are no restrictions on what can go in the proposed text.
See Testimony of Kathleen M. Sullivan, U.S. Senate Committee on the Judiciary Hearing on Congress’s Role in Ratifying the Equal Rights Amendment (Feb. 28, 2023) (observing that “[o]f course, the Framers knew how to impose deadlines or otherwise allow for time limits when they wished to”). See link to ABA Report link at endnote 3, infra.
9. Doctors Face ‘Perpetual Rollercoaster’ as SCOTUS Prepares to Hear Abortion
Cases” 1-21-24 (Many quotes from doctors about the national abortion trauma).
https://19thnews.org/2024/01/doctors-emtala-mifepristone-impact-abortion-supreme-court/
“Dobbs Has Fundamentally Changed Obstetric Care, Study Finds” by Rachel
Robertson, MedPage Today, 09-09-24. UCSF ANSIRH OB-GYN STUDY Finds that Dobbs has so significantly impacted the provision of evidence-based medical care, and the unacceptable outcomes to patients that need medical treatment that is illegal or in grey areas, that the abortion bans need to be eliminated.
https://www.medpagetoday.com/obgyn/abortion/111867
The American College of Obstetricians and Gynecologists. On Oct. 9, 2024, the ACOG called on the Biden “administration to do everything in their power to finalize the Equal Rights Amendment so that the promise of equal rights under the law, including the right to access comprehensive reproductive health care such as abortion, may be realized.“
https://www.acog.org/news/news-releases/2024/10/statement-on-the-equal-rights-amendment (Copy and paste link into browser).
10. Founder and President of EQUAL MEANS EQUAL, the most effective national
ERA organization, Kamala Lopez and Arlaine Rockey, Esq. in this video before
Dobbs, explain how and why the ERA protects Women and LGBT people. It has clips from Kamala Lopez’s ERA documentary, Equal Means Equal, which is available on Amazon Prime. [video under 10 min.]
https://youtu.be/sA_RxX0TYIw?feature=shared
The Hail Mary Motion in Dobbs, that shows why the then legally-effective ERA (as of January 27, 2022) textually protects reproductive rights directly and also, by implication, provides a FUNDAMENTAL RIGHT to reproductive choice, the textual legal basis that Justice Alito said did not exist in the Constitution! It was filed May 16, 2022, on behalf of ERA-NC Alliance in Dobbs, by attorneys Arlaine Rockey, Esq. and Gina Collias, Esq., trying to bring the ERA to SCOTUS’ attention via an amicus brief, since the Clinic’s attorneys, at the Center for Reproductive Rights, failed to do so, despite repeated requests, even after the Leaked Alito Opinion dropped on May 2, 2022. All attorneys in Dobbs were electronically served with this motion. It was not accepted officially for filing because only a party has the right to bring new legal authority to the Court's attention after oral arguments, which was why Ms. Rockey, not only wrote, faxed and called the two top attorneys, starting on December 6, 2021, she also contacted their Director and their Board. This motion was quoted and linked in the Washington Post article about the oral arguments in Illinois, et al. v. Ferriero, on September 28, 2022.
https://www.supremecourt.gov/DocketPDF/19/19-1392/225397/20220516031348036_2022-05-16%20%2019-1932%20Dobbs%20v%20Jackson%20Womens%20Health%20Org%20-%20ERA-NC%20Alliance%20Amended%20Motion%20for%20Leave%20to%20File%20AC%20Brief%20w%20Ex%20A.pdf (Copy and paste link into browser).
11. The Biden Administration has been notified multiple times by Ms. Rockey that Pres. Biden has a mandatory Art. II, §3 “Take Care” duty to instruct the Archivist to publish the ERA to save Reproductive Rights, including, three different WH Counsels, VP’s Counsels, the WH Chief of Staff, and multiple top advisors, initially before Dobbs came down, pleading with him to save
Reproductive Rights by publishing the ERA. See Ms. Arlaine Rockey, Esq.’s June 17, 2022 letter to White Counsel (blind-copied to people listed at end of letter).
https://adobe.ly/3buaFSaF
For more information on Ms. Rockey’s and EQUAL MEANS EQUAL’s and others’ post- ratification efforts to get the ERA published, see her ERA Legal Blog:
https://arlainerockey.com/equal-rights-for-women
(For proof of things said in this article, see posts on 7/28/24, updated, and 1/28/24).
Ms. Rockey’s letter after Biden endorsed VP Kamala Harris to WHC, WH Chief of Staff, VP’s Counsel, and other top people on August 13, 2024. See the EXECUTIVE SUMMARY, which includes proof that reproduction is a sex-based trait with Venn diagrams, per Yale Law Prof. Akhil Amar. (Note that Ms. Rockey updated her draft Executive Order on 12/9/2024, linked at endnote 4 infra).
https://acrobat.adobe.com/id/urn:aaid:sc:US:ee425661-7806-4209-b40c-9c274f1e1bb8
Biden had his DOJ step into the shoes of Trump’s DOJ and kept them fighting AGAINST publication of the ERA, in two federal lawsuits, 1) Equal Means Equal, The Yellow Roses, et al. v. Ferriero, and 2) the last three states to ratify: VA, IL, and NV v. Ferriero, in the DC Circuit Court of Appeals, well after Biden knew for sure that he had a Constitutional duty to publish the ERA, 6/17/22, which would have mooted out the DC Circuit Court of Appeals case (which didn’t end until 2/28/23);
https://equalmeansequal.org/september-27-2022-hear-the-oral-arguments-where-bidens-doj-argues-against-womens-equality-and-watch-the-rally-livestream-9am-wednesday-september-28th/
12. In Equal Means Equal, et al. v. Ferriero, Arlaine Rockey, Esq., Gina Collias,
Esq. and Pamela Parker, Esq. were counsel for at last count, 86, amici curiae, representing millions of people. Here is their brief, the theme of which was EQUALITY OF ALL CITIZENS IS ESSENTIAL TO AMERICAN DEMOCRACY.
https://acrobat.adobe.com/id/urn:aaid:sc:US:59504c07-4942-4bca-a838-8a88953eaaa8
The League of Women Voters sent this powerful memo to President Biden, with the national and all state LWV Presidents, calling on him to direct the Archivist to Publish the ERA now.
https://www.lwv.org/sites/default/files/2024-08/League%20Leadership%20ERA%20Memo_1.pdf
“[T]he League calls on: ... US President Biden to instruct the US Archivist to fulfill their statutory duty and certify and publish the Equal Rights Amendment in the US Constitution. The protection of equal rights is not a polarizing issue among the American people. Today, 78% of Americans favor adding the Equal Rights Amendment to the Constitution according to a survey from Pew Research Center. If you believe in equality for all, the League calls on you to critically affirm the enshrinement of sex equality into the Constitution. The strength and future of our democracy depend on it.”
46 Senators’ Letter to Pres. Biden —> PUBLISH THE ERA NOW, Nov. 22, 2024,
https://v.gd/LRZcRh “Inaction is action. Women have advocated for over 100 years to make constitutional gender equality a reality. We cannot let disingenuous and deceptive arguments about procedure stand in the way of basic human rights and dignity. We must answer the call to uphold equality and strengthen women’s rights
by certifying the ERA. We urge you to direct the archivist to publish the ERA as the 28th Amendment without further delay.”
13. Rosalynn Carter Interview published on the Carter Center website, International Women’s Day, March 8, 2016.
https://www.cartercenter.org/news/editorials_speeches/rosalynn-carter-huffington-030816.html#:~:text=I%20am%20glad%20there%20is%20a%20renewed,in%20politics%2C%20the%20media%2C%20business%2C%20and%20athletics
EQUAL MEANS EQUAL was instrumental in getting the last three states to ratify the ERA. Its Founder and President, Kamala Lopez, is on the ground in DC, working with other ERA supporting organizations to pressure Biden to do his Constitutional duty to publish the ERA.
https://EqualMeansEqual.org. Join us, because after the ERA is published, the next step is getting states to repeal their discriminatory laws or fighting in the courts. See the menu for News and Legal Actions to see how EME tried to help the Dobbs plaintiffs in two cases, in which CRR still did not argue the ERA or strict scrutiny.
14. Jimmy Carter: Losing My Religion for Equality, Women’s Ordination Worldwide.
March 4, 2020.
http://womensordinationcampaign.org/blog-working-for-womens-equality-and-ordination-in-the-catholic-church/2020/3/4/jimmy-carter-losing-my-religion-for-equality
[END]
---
[1] Url:
https://www.dailykos.com/stories/2025/1/7/2295576/-Biden-What-the-heck-do-you-think-Jimmy-Carter-Would-Do-now-PUBLISH-THE-BLESSED-ERA?pm_campaign=front_page&pm_source=more_community&pm_medium=web
Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/
