Constitutional Law

DOJ's Office of Legal Counsel says its prior opinion on ERA doesn’t bar Congress from acting

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The U.S. Department of Justice’s Office of Legal Counsel says its prior opinion on the Equal Rights Amendment doesn’t bar Congress from taking further action on ratification because the issue would ultimately be decided by the courts.

“Nothing in the [prior] opinion stands as an obstacle to Congress’s ability to act,” the Office of Legal Counsel says in its new Jan. 26 opinion. “Whether the ERA is part of the Constitution will be resolved not by an OLC opinion but by the courts and Congress.”

The prior opinion, released in January 2020, said the ERA can’t become part of the U.S. Constitution because a deadline imposed by Congress had expired before ratification by 38 states.

Only 35 states had ratified the amendment by the 1979 deadline, which Congress extended to 1982. Three more states ratified the amendment after 1982: Nevada, Illinois and Virginia. But five of the ratifying states have since rescinded their approval.

The prior OLC opinion concluded in Part III that Congress had no authority to change the original deadline that it had set. In its new Jan. 26 opinion, the office said the issues discussed in Part III “were closer and more difficult than the opinion suggested.”

The new opinion noted that a lawsuit seeking ratification, Virginia v. Ferriero, is pending against the national archivist in the U.S. Court of Appeals for the District of Columbia Circuit.

“The Virginia litigation and the other cases almost certain to follow illustrate that the 2020 OLC opinion will not be the last word on the constitutional status of the ERA,” the new opinion said. “In fact, the federal courts may soon determine or shed light upon several unsettled matters.”

Hat tip to @jacq_thomsen.

See also: “What does Equal Rights Amendment ratification in Virginia mean for its chances?”

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