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On his way out the door, Joe Biden decided that he had the unilateral power to issue an “opinion” proclaiming a new Twenty-Eighth Amendment to the Constitution – the “Equal Rights” Amendment (ERA).

The ERA states as follows: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

There is one major problem with Mr. Biden’s desperate attempt to provide a parting gift to the left-wing, progressive base of his party. The draft ERA amendment that he was trying to insert into the Constitution by presidential proclamation has been a dead letter for decades. Mr. Biden does not have the legal authority to bring it back to life solely on his own say-so.

The ERA language was approved in the form of a joint resolution of Congress by the requisite two-thirds vote in both chambers in 1972. It was sent to the states with a seven-year deadline for ratification by the required minimum of thirty-eight states. The deadline was extended until 1982 by which time the proposed ERA was still three states short of meeting the required threshold for official certification as the Twenty-Eighth Amendment. Three additional states came on board after the deadline had passed, with Virginia becoming the thirty-eighth state in 2020. However, Virginia was nearly four decades too late. Moreover, five states had subsequently rescinded their ratifications.

Nevertheless, Mr. Biden tried to revive the defunct ERA draft all by himself, just three days before the end of his presidency.

“In keeping with my oath and duty to Constitution and country,” Mr. Biden declared, “I affirm what I believe 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.”

A long span of time elapsed between 1972, when Congress passed the resolution proposing the ERA, and 2020, when Virginia became the thirty-eighth state to ratify it. Virginia acted long after the extended 1982 deadline had passed.

There is a very sound reason why finite deadlines are important. The interpretation of key terms can vary over time, especially from generation to generation. Unlike in 1972, when there was a common understanding that the word “sex” as used in the ERA referred to biological males and females, there is no such clear consensus today. Transgender activists and their supporters are certain to argue that the word “sex” should be more broadly interpreted to encompass multiple gender identities. It is inconceivable that the drafters of the 1972 ERA proposal had such a fluid notion of “sex” in mind when they sought to enshrine protection for the equality of the sexes in the Constitution.

The Supreme Court has held that the Constitution implicitly authorizes Congress to “fix a definite period” for ratification of a constitutional amendment pursuant to Congress’s power under Article V to propose such amendments for ratification by the states.

“We do not find anything in the article which suggests that an amendment, once proposed, is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective,” the Supreme Court opinion stated. “We do find that which strongly suggests the contrary.”

Congress set a legally enforceable deadline for the required number of state ratifications of the ERA to be completed. The deadline – even when extended – was not met, meaning that Congress’s 1972 ERA proposal is void and the amendment process would have to start all over again.

Even the Office of Legal Counsel in the Biden Administration’s Department of Justice continued to stand by the office’s previous 2020 opinion that “because 38 states had not ratified the proposed amendment before that deadline’s expiration, the ERA is not a part of the United States Constitution and the Archivist of the United States may not certify it as such.”

Mr. Biden ignored the explicit deadline set by Congress. He declared that the ERA was the “law of the land” forty-three years after the deadline set by Congress had passed without the requisite number of ratifying states to make the ERA a legitimate part of the Constitution.

In short, Joe Biden, the self-anointed guardian of democracy, tried to trample upon Congress’s authority to determine the parameters of its proposed constitutional amendments. This wannabe autocrat bowed to the left-wing progressive base of his party and made a mockery of America’s system of separation of powers and of checks and balances that he hypocritically extolled in his farewell address.