Arlaine Rockey on Why Biden Must Publish the ERA now to save Reproductive Rights
If the fully-ratified Equal Rights Amendment (“ERA”) was published by the Archivist as the 28th Amendment, it would make VP Kamala Harris, and all women, actually equal citizens for the first time in our Constitution.
BIDEN MUST PUBLISH THE ERA NOW BEFORE KAMALA HARRIS’ NOMINATION!!
🗝️⏰B4 the nomination next week, Biden must publish the ERA to ensure TRUMP’s SUPREME COURT CANNOT DISQUALIFY KAMALA HARRIS FROM BEING ON THE BALLOT!!
ONLY the ERA can make Kamala an equal citizen under the Constitution. Women are not clearly even “person(s)” under the Constitution — certainly not textually and not under originalism — that’s why we needed the 19th Amd just to be able to VOTE! The first case considering women to be a person was in 1971, per 14th Amendment (which does not capitalize Person).
Art. II, § 1, Cl. 5 (U.S. Const.) says you have to be a “Person” who is at least 35 and has lived in the US 14 years. (Capitalized).
Please report on this!! People don’t realize that Trump could try to remove her from the ballot after she’s nominated for not being Constitutionally recognized as a Person!!! & although hopefully SCOTUS wouldn’t remove her from the ballots, most lawyers did not think SCOTUS would grant Presidents (ie, Trump) IMMUNITY for CRIMES committed purportedly via his “official” actions, like telling the DOJ to send out a fraudulent letter to states saying there was fraud in the 2020 election to help himself steal the election. (Clearly, if Trump gets elected, he will be essentially a legally-protected dictator). This CONSERVATIVE SCOTUS majority is not predictable.
BIDEN HAS THE POWER AND THE DUTY TO TELL THE ARCHIVIST TO PUBLISH THE ERA!
However, Biden has the affirmative Constitutional DUTY and POWER to direct the Archivist to publish the ERA NOW under the Art. II, § 3, TAKE CARE duty: The President “shall (must) take Care that the laws be faithfully executed” (carried out), here, it is the law, 1 U.S. Code §106b, that makes it a mandatory, non-discretionary duty of the Archivist to publish all Amendments that have been ratified by ¾ of the States (now 38) in the Constitution.
Thankfully, Trump’s SCOTUS Immunity case HAS BACKFIRED in one way!! It held that the President’s Constitutional Article II powers are official acts of the President, and it emphasized the strength of the Article II powers of the President:
“[T]he courts have ‘no power to control [the President’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.”
Trump v. United States, 603 U.S. __ (2024) (No. 23–939. July 1, 2024) (Slip Opinion, at 7) https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf.
So if Biden publishes the ERA with his Article II, § 3 Take Care power, we won’t have to worry about Trump & his SCOTUS disqualifying her and ERA activists can stop worrying about court injunctions and cases &
GET LOUD & DEMAND:
Biden publish ERA!
ERA is the ONLY way!
The ERA has been validly ratified and legally became the 28th Amendment on that date, January 27, 2020. But Trump politically BLOCKED the ARCHIVIST ILLEGALLY, with an incorrect Republican legal policy memo about an actually UNCONSTITUTIONAL, thus VOID, time limit (aka “deadline”) [see why the deadline is void at Endnote 1] within which the 38 states purportedly had to ratify the ERA, and stopped the Archivist from following the mandatory law, 1 U.S. Code Section 106b that REQUIRES the Archivist to publish all amendments in the Constitution immediately after 38 (3/4 of the) States ratify it. [See Endnotes 2 for why Congress cannot fix this problem and 3 for why this action is appropriate under the Take Care Duty].
The ERA is the ONLY ratified AMENDMENT that has sat in limbo without being published — now for four and a half years!
PUBLICATION of the ERA IS CRITICAL to give the nation, including all the Courts and Legislatures, OFFICIAL NOTICE that it exists. In fact, if the ERA had been published, the Supreme Court could not have ignored it when they were deciding Dobbs, because the ERA is the TEXTUAL basis for why abortion bans, before viability, are unconstitutional, and it also provides, by implication, a FUNDAMENTAL RIGHT to Reproductive Choice. Exactly the Constitutional textual basis Alito wrote in Dobbs did not exist!
[See Endnote 4 for the Motion we filed on behalf of ERA-NC Alliance in Dobbs, trying to bring the ERA to SCOTUS’ attention via an amicus brief].
The reason the ERA textually protects laws against female reproductive choice was specifically embodied in THEN Senator Kamala Harris’ famous question of Brett Kavanaugh: “Can you think of any laws that give the government the power to regulate decisions about the male body?… Male versus female?”
https://youtube.com/shorts/D2y6dKIkF7k?si=o5cboXT68FQ-FkLE
He fumbled all over himself. His final answer: “I’m not thinking of any right now, Senator.”
Just remember, as we might say down South:
If it ain’t good for the gander,
it sure as hell ain’t good for the goose!
President Biden, TEAR DOWN THIS WALL keeping our next President and over half of our population from FULL EQUALITY!
President Biden, tell the U.S. Archivist to PUBLISH the EQUAL RIGHTS AMENDMENT as the 28th Amendment to the Constitution this Month, BEFORE THE DNC FINALIZES VP KAMALA HARRIS’ NOMINATION!!
Making women, 51% of our population, legal equal citizens will fortify our democracy against authoritarianism.
Making Women & Girls EQUAL CITIZENS will be YOUR CROWNING LEGACY, YOUR BFD!
The ERA will be able to be immediately used:
TO STOP ALL POST-DOBBS ANTI-REPRODUCTIVE RIGHTS AND MANY ANTI-LGBT STATE AND ANY FUTURE FEDERAL LAWS;
TO OVERTURN DOBBS, BECAUSE THE ERA IS THE CONSTITUTIONAL TEXTUAL BASIS FOR REPRODUCTIVE CHOICE, AND EVEN BY IMPLICATION, THE ERA PROVIDES A FUNDAMENTAL RIGHT TO REPRODUCTIVE CHOICE, CONTRARY TO WHAT ALITO WROTE IN DOBBS, AND TO OVERTURN THE 1873 COMSTOCK ACT;
TO PROTECT DOCTORS’ ABILITY TO PRACTICE MEDICINE ACCORDING TO THEIR OWN PROFESSIONAL STANDARDS WITHOUT THE FEAR OF BEING ARRESTED OR OF LOSING THEIR MEDICAL LICENSES; WOMEN AND OTHERS WHO ACCOMPANY THEM IF THEY STILL NEED TO TRAVEL FOR REPRODUCTIVE HEALTHCARE FROM BEING ARRESTED; THE PRIVACY OF WOMEN’S REPRODUCTIVE HEALTHCARE RECORDS; AND THE PRIVACY OF ALL WOMEN’S AND GIRLS MENSTRUAL CYCLES;
PER SECTION 2 OF THE ERA, THE ENABLING CLAUSE, A DEMOCRATIC CONGRESS CAN — ONCE THE ERA IS PUBLISHED IN THE CONSTITUTION—“CODIFY ROE” AND PROTECT THE ISSUES LISTED ABOVE AND OTHERS EFFECTED BY SEX DISCRIMINATION, SUCH AS REQUIRING RAPE TEST KITS BE COMPLETED WITHIN REASONABLE TIMELINES AND TO STOMP OUT GENDER BIAS IN THE FAMILY COURTS, THAT NOW OFTEN GIVE FATHERS, WHO ALLEGEDLY HAVE SEXUALLY OR PHYSICALLY ABUSED THEIR CHILDREN, ABOUT A 50% CHANCE OF WINNING CUSTODY OF THOSE CHILDREN, SOMETIMES TOTALLY CUTTING THEIR PROTECTIVE MOTHERS OUT OF THEIR CHILDREN’S LIVES FOR YEARS! (IF YOU WANT TO KNOW HOW THAT HAPPENS, READ MY ARTICLE AT THE MENU, PROTECTING YOUR CHILD); PREVENTING SEX DISCRIMINATION IN EMPLOYMENT, HOUSING, FEDERAL BENEFITS, AND IN THE MILITARY.
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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. 1523 (1972)
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ENDNOTES
The reason why the deadline is unconstitutional is because our Supreme Court is conservative and uses Textualist constitutional interpretation methods. Per Article V, of the Constitution, Congress would have had the legal authority to actually write that deadline in the TEXT of the ERA, but it didn’t. Congress only put it in the Resolving Clause (aka “Preamble”); and by doing that, it was unconstitutional for two reasons: 1) because Article V did not explicitly give Congress the power to control the States’ ratification process by adding a deadline outside of the proposed text of the ERA; and 2) because the States only were able to choose whether or not to ratify the language that was in the proposed text of the amendment per Article V, and all rights and powers that are not explicitly given to Congress in the Constitution, the 10th Amendment (”States’ Rights” Amendment) reserves those rights and powers for the States. The process to amend the Constitution was set up by our Founders (which is where the Conservative method of interpretation of Originalism comes in) to be equally shared between Congress and the States. So the deadline language in the Preamble was unconstitutional also under the 10th Amendment.
It is important to mention that, under Article V, the President has no role. Further, after the Amendment is sent out to the States for ratification, there is no further role for Congress. You may know the President has been telling Congress they needed to make a Resolution to affirm that the ERA is valid. But 1) that is not Congress’ job, although Congress did that regarding the 27th Amendment, which took over 200 years to ratify, but not until AFTER the 27th was published; 2) Congress has pending Resolutions telling the Archivist to publish the valid ERA, but Republicans have a majority in the House and need 60 votes to break the filibuster rule in the Senate; and 3) the Republicans highly intimidated the Archivist during her confirmation hearings, to try to make sure she never published the ERA.
HOWEVER, the President has a MANDATORY “TAKE CARE” DUTY under Art II, §3 to enforce the ministerial, non-discretionary duty to publish ratified amendments, per 1 U.S. Code §106b. 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-the-take-care-clause
The Hail Mary Motion we filed on behalf of ERA-NC Alliance in Dobbs, trying to bring the ERA to SCOTUS’ attention via an amicus brief, since the Clinic’s attorneys failed to do so, despite my repeated requests. It was not filed officially because only a party has the right to bring new legal authority to the Courts attention after oral arguments.
~ SEE MORE IMPORTANT LINKS BELOW ~
Element removed
FREE: RESOLUTION CALLING ON BIDEN TO PUBLISH THE ERA, INCLUDING THE LEGAL REASONS WHY THE ERA WAS VALIDLY RATIFIED ON JANUARY 27,2020
Here is a researched and correct RESOLUTION I drafted that any group or entity is free to use, and even add WHEREAS clauses with regard to its specific reasons or concerns. Feel free to use and share.
Prepared by ERA Attorney,
Arlaine Rockey, Esq.
ArlaineRockey@gmail.com
ERA Legal Blog
https://arlainerockey.com/equal-rights-for-women
LINK TO THIS GIFT RESOLUTION:
https://acrobat.adobe.com/id/urn:aaid:sc:US:b59b0cd1-8e32-4c7e-bfd5-96c2301d6607
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RESOLUTION FOR PRESIDENT BIDEN TO IMMEDIATELY DIRECT THE U.S. ARCHIVIST TO PUBLISH THE EQUAL RIGHTS AMENDMENT AS THE 28TH AMENDMENT TO THE U.S. CONSTITUTION
BY _____________________________
DATED ______________
WHEREAS, VICE PRESIDENT KAMALA HARRIS, AS THE PROBABLE NOMINEE OF THE DEMOCRATIC PARTY FOR THE PRESIDENCY OF THESE UNITED STATES, ALONG WITH ALL FEMALE CITIZENS MUST HAVE THEIR LEGAL EQUALITY OF RIGHTS ENSHRINED IN THE U.S. CONSTITUTION NOW;
WHEREAS, MAKING WOMEN, 51% OF OUR POPULATION, LEGAL EQUAL CITIZENS WILL FORTIFY OUR DEMOCRACY AGAINST AUTHORITARIANISM;
WHEREAS, THE PRESIDENT HAS AN AFFIRMATIVE OFFICIAL CONSTITUTIONAL DUTY TO “TAKE CARE” THAT ALL LAWS ARE FAITHFULLY ENFORCED, PER ARTICLE II, SECTION 3, OF THE U.S. CONSTITUTION;
WHEREAS, 1 U.S. CODE, SECTION 106B MAKES IT THE MANDATORY, NON-DISCRETIONARY JOB OF THE ARCHIVIST TO PUBLISH IMMEDIATELY ALL AMENDMENTS THAT HAVE BEEN RATIFIED BY 3/4 OF THE STATES;
WHEREAS, THE ARCHIVIST HAS ALREADY PUBLISHED ITS LIST OF ERA STATE RATIFICATIONS SHOWING THAT ¾ OF OUR 50 STATES, 38 STATES, RATIFIED THE ERA ON OR BEFORE JANUARY 27, 2020;
WHEREAS, ARTICLE V OF THE CONSTITUTION ONLY TEXTUALLY PROVIDES CONGRESS THE POWERS: 1) TO SEND TO THE STATES THE TEXT OF ITS PROPOSED AMENDMENTS FOR THEIR RATIFICATION CONSIDERATION; AND 2) TO CHOOSE ONE OF TWO METHODS FOR STATES TO RATIFY SAID PROPOSED AMENDMENTS, EITHER VIA A CONSTITUTIONAL CONVENTION OR VIA EACH STATE’S LEGISLATIVE BODY;
WHEREAS, ARTICLE V PROVIDES THAT THE STATES MAY VOTE WHETHER OR NOT TO RATIFY THE TEXT OF THE PROPOSED AMENDMENT;
WHEREAS, THE ERA, H.R.J. RES. 208, 92D CONG., 86 STAT. 1523 (1972), WAS PASSED BY ¾ OF BOTH HOUSES OF CONGRESS, AND SENT TO THE STATES;
WHEREAS, THE COMPLETE PROPOSED TEXT OF THE ERA WAS THEN AND IS NOW:
SECTION 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.
SECTION 2. THE CONGRESS SHALL HAVE THE POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE.
SECTION 3. THIS AMENDMENT SHALL TAKE EFFECT TWO YEARS AFTER THE DATE OF RATIFICATION;
WHEREAS, BASED ON ORIGINALIST METHODS OF CONSTITUTIONAL INTERPRETATION, RATIFICATION ONCE DONE, CANNOT BE LATER RESCINDED.
WHEREAS, THE U.S. SUPREME COURT DECISION, TRUMP V. UNITED STATES, 603 U.S. ____ (2024) (NO. 23–939. JULY 1, 2024) (SLIP OPINION), INCLUDES ARTICLE II POWERS AS OFFICIAL ACTS OF THE PRESIDENT, AND IT EMPHASIZED THE STRENGTH OF THE ARTICLE II POWERS OF THE PRESIDENT: “[T]HE COURTS HAVE ‘NO POWER TO CONTROL [THE PRESIDENT’S] DISCRETION’ WHEN HE ACTS PURSUANT TO THE POWERS INVESTED EXCLUSIVELY IN HIM BY THE CONSTITUTION.” ID. AT 7;
WHEREAS, THE TRUMP ADMINISTRATION’S OLC OPINION, RATIFICATION OF THE EQUAL RIGHTS AMENDMENT, 44 OP. O.L.C. __ (JANUARY 6, 2020), INCORRECTLY OPINED THAT THE PURPORTED TIME LIMIT (AKA “DEADLINE”) WITHIN WHICH STATES HAD TO RATIFY THE ERA, PREVENTED THE ARCHIVIST FROM PUBLISHING THE ERA IN THE CONSTITUTION. HOWEVER, THE TIME LIMIT WAS SET OUT ONLY IN THE PREAMBLE OF THE ERA RESOLUTION, AND WAS NOT INCLUDED IN THE TEXT OF THE PROPOSED AMENDMENT (WHEREIN WHICH CONGRESS WOULD HAVE HAD THE AUTHORITY TO INCLUDE SUCH A TIME LIMITATION). THUS, THE TIME LIMIT IS UNCONSTITUTIONAL AND VOID AB INITIO;
WHEREAS, SAID JANUARY 6, 2020 OLC OPINION, THAT EFFECTIVELY BLOCKED THE ARCHIVIST FROM FOLLOWING HIS MANDATORY, NON-DISCRETIONARY DUTY UNDER 1 US CODE SECTION 106B, DOES NOT HAVE THE FORCE OF A COURT ORDER; RATHER, IT IS MERELY A POLICY OPINION. THUS, SAID OLC OPINION WAS IMPROVIDENTLY DECIDED. IT IN NO WAY HINDERS THE PRESIDENT’S “TAKE CARE” DUTY OF ART. II, SECTION 3, ID.;
WHEREAS, EVEN WITHOUT BEING PUBLISHED IN THE US CONSTITUTION, THE ERA LEGALLY BECAME AN AMENDMENT TO THE US CONSTITUTION THE MOMENT IT WAS RATIFIED, PER ART. V, ON JANUARY 27, 2020, BY VIRGINIA, THE LAST REQUIRED STATE RATIFICATION;
WHEREAS, PER ITS OWN, SECTION 3, THE ERA BECAME LEGALLY EFFECTIVE ON JANUARY 27, 2022;
WHEREAS, PUBLICATION OF EACH RATIFIED AMENDMENT IS NECESSARY TO ENSURE THAT ALL STATE AND FEDERAL COURTS AND LEGISLATURES HAVE OFFICIAL NOTICE THAT IT IS AN AMENDMENT TO THE CONSTITUTION:
WHEREAS, DIRECTING THE U.S. ARCHIVIST TO FOLLOW 1 US CODE SECTION 106B AND TO IMMEDIATELY PUBLISH THE ERA IN THE U.S. CONSTITUTION AND TO NOTE THEREIN THAT THE OFFICIAL DATE OF RATIFICATION WAS JANUARY 27, 2020, IS A PROPER USE OF THE PRESIDENT’S OFFICIAL “TAKE CARE” ART. II, SECTION 3 POWERS AND DUTIES;
WHEREAS, WITHOUT THE ERA PUBLISHED IN THE U.S. CONSTITUTION, NO FEMALE CITIZEN HAS FULL EQUAL RIGHTS UNDER THE U.S. CONSTITUTION, AS THE ONLY UNDIMINISHED RIGHT FEMALE CITIZENS NOW HAVE IS THE RIGHT TO VOTE, PER THE 19TH AMENDMENT.
NOW THEREFORE, THE PRESIDENT OF THE UNITED STATES MUST IMMEDIATELY DIRECT THE UNITED STATES ARCHIVIST TO PUBLISH THE EQUAL RIGHTS AMENDMENT AS THE 28TH AMENDMENT TO OUR UNITED STATES CONSTITUTION AND NOTE THEREIN THAT THE OFFICIAL DATE OF RATIFICATION WAS JANUARY 27, 2020.
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ADDITIONAL LINKS / BACK UP / RECEIPTS:
Daily Kos Opinion Article that explains the current situation with the ERA, with important links within it
📖Kos4RECEIPTS:
Archivist’s list of state ratifications. https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification-actions-03-24-2020.pdf
Trump v. United States, 603 U.S. ____ (2024) (No. 23–939. July 1, 2024)(Slip Opinion) [See pg 7 for quote above). https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
The Trump Administration’s OLC Opinion, wrongfully blocking publication of the ERA. Ratification of the Equal Rights Amendment, 44 Op. O.L.C. __ (Jan. 6, 2020). https://www.justice.gov/olc/file/1235176/dl?inline
Michele Thorne’s Chicago Bar Association Record article using 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
The Motion we filed , on behalf of ERA-NC Alliance, in Dobbs trying to bring the newly legally-effective ERA via an Amicus Brief, as of January 27, 2022, per its §3, to the Court’s attention after the Alito leak. It was not accepted for filing, because only a party could bring new legal authority to the Court’s attention. It shows why the ERA TEXTUALLY protects Reproductive Choice and, by implication, creates a Fundamental Right to Reproductive Choice:
Draft Executive Order for President Biden to use: https://acrobat.adobe.com/id/urn%3Aaaid%3Asc%3AUS%3A8c6d5149-f3c3-47b1-9e03-e3f6f6258670/?filetype=application%2Fpdf
Arlaine Rockey, Esq.’s
ERA Legal Blog