Former President Joe Biden’s attempt to add an amendment to the Constitution with a statement issued just before he left office is one of several eleventh-hour moves that could come under renewed scrutiny in light of revelations about his deteriorating cognitive abilities at the time.
Three days before President Donald Trump’s inauguration, the White House issued a statement in Biden’s name stating that the Equal Rights Amendment had become the 28th Amendment and is now “the law of the land.” Biden repeated similar language, reading prepared remarks at an event later in the day, and he briefly answered a reporter’s question about why he waited until the end of his presidency to act by saying he first had to gather “all the facts.”
But his sudden announcement was at odds with what his own administration had been arguing for years. And it came in response to pressure from progressive Democrats who wanted Biden to attempt an end-run around years of legal precedent to get the ERA enacted just before ceding power.
“The president undermined the legal position that his Justice Department took in court for years on this decision,” Oversight Project chief counsel Kyle Brosnan told the Washington Examiner. “It’s a good factual nugget about the broader theme that has emerged, which is that President Biden ran as a moderate force in 2020 and governed as the most left-wing president that we’ve seen in modern history.”
“Either the president lied to the American people about how he was going to govern, or he wasn’t the one driving his administration,” Brosnan added.
Republicans have begun to investigate whether aides exercised presidential power in Biden’s name without his express permission or full awareness. Trump ordered Attorney General Pam Bondi on Wednesday to look into whether Biden approved his aides’ use of an automated signature device, and Rep. James Comer (R-KY), the chairman of the House Oversight Committee, has started scheduling interviews with some of the senior staffers who worked most closely with the former president.
The scrutiny has come amid revelations that although Biden may not have been capable of performing his presidential duties, White House officials worked to conceal that reality from the public.
‘Law of the land’
Emerging evidence suggests that Biden struggled to understand his basic surroundings even months before the release of his statement about the ERA, which would declare that both sexes must be treated equally under the law.
In June 2024, for example, Biden reportedly did not recognize George Clooney, one of the most famous movie stars in the world, at a fundraiser the actor was throwing for the then-president, according to Original Sin: President Biden’s Decline, Its Cover-up, and His Disastrous Choice to Run Again, a book by CNN’s Jake Tapper and Axios’s Alex Thompson. Later that month, he struggled to string together sentences at a presidential debate for which he had spent weeks preparing.
Seven months after all that, Biden was supposedly leading a whirlwind of activity, issuing a historic number of pardons and firing off executive orders just before leaving office. That included the attempt on Jan. 17 to declare the ERA a part of the Constitution with a statement.
“It is long past time to recognize the will of the American people,” reads the statement released by the White House that day. “In keeping with my oath and duty to Constitution and country, 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.”
Later in the day, Biden visited St. John’s Episcopal Church across from the White House, and as he was leaving, he was asked by a reporter why he had not acted sooner on the ERA.
“I had to get all the facts,” Biden said.
Biden delivered a speech that afternoon at a hotel in Washington at the Conference of Mayors. Reading off a teleprompter, Biden addressed the ERA statement.
“The Equal Rights Amendment is the law of the land now. It’s the 28th Amendment to the Constitution now,” Biden said at the speech, although this was not true. “And I consulted dozens of constitutional scholars to make sure that it was all within the power to do this. And the fact is, we did.”
A Biden spokesperson told the Washington Examiner that Laurence Tribe, a legal scholar and retired Harvard University professor, was one of the scholars with whom Biden consulted.
Traveling with Biden in the motorcade to the mayors conference that day was Annie Tomasini, one of the then-president’s closest aides, according to pool reports from Jan. 17. Tomasini was one of just two aides who accompanied Biden and his family later that afternoon to Andrews Air Force Base in Marine One, the helicopter that often ferries the president from the White House to the tarmac where he boards Air Force One.
Comer has identified Tomasini as one of the aides who may have been involved in “usurping authority from former President Joe Biden and … hiding his rapidly worsening mental and physical faculties,” according to a letter the Oversight Committee sent Tomasini last month. Another aide Comer identified was Anthony Bernal, the chief of staff to the first lady. Bernal was the other aide who accompanied Biden and his family on the helicopter on Jan. 17, as Tomasini and Bernal frequently were with the then-president.
Bernal and Tomasini reportedly had enormous influence in the Biden circle. Both aides had round-the-clock access to the White House residence where the Biden family lived, and they performed some of the caretaking duties that residence staff would typically perform because the Biden family, breaking with tradition, kept the residence staff at a distance in what some of the staff suspected was an attempt to conceal the frailty of the then-president, according to Original Sin.
A small group that included other more senior aides, such as former senior adviser Mike Donilon and former deputy chief of staff Steve Ricchetti, tightly controlled decision-making and access to Biden.
“Five people were running the country, and Joe Biden was at best a senior member of the board,” one insider said, according to the book.
Decades of delay
The debate over adding the ERA to the Constitution dates back decades. In 1972, Congress passed the amendment with more than the two-thirds majority needed to send it to the states for ratification. However, the lawmakers inserted a critical provision into the legislation proposing the amendment: Enough states needed to ratify it within seven years, or the window to add the ERA would close. The deadline was in keeping with the language Congress had used to ratify multiple previous constitutional amendments within a specific time frame.
Thirty-eight states must ratify an amendment for it to be tacked onto the end of the Constitution, and ERA proponents got close to securing that number. By 1973, 30 states had formally approved the amendment.
But progress sputtered out as opponents, such as conservative activist Phyllis Schlafly, gained traction for their arguments about the unintended consequences of the ERA, such as making women eligible for the draft and eliminating the legal system’s preference for mothers in child custody fights. Although Congress passed a three-year extension to the deadline in 1978, not enough states ratified the amendment in time.
And even if they had, courts have cast doubt on the idea that Congress had the authority to extend the deadline to 1981 in the first place. Complicating the picture further, by the time the extended deadline passed, five states actually voted to rescind their ratification of the amendment, although it is unclear whether states have the constitutional authority to undo ratifications once done.
Virginia helped reignite the conversation in 2020 when its state legislature voted to ratify the ERA, technically making it the 38th state to do so. Progressive Democrats hoped reaching that threshold for ratification would give them leverage to pressure the archivist into publishing the amendment, which is the final step in the process.
Notably, though, the National Archives weighed in on the issue just before Biden did.
Exactly one month before Biden announced via a statement that he believed the ERA was now part of the Constitution, the National Archives put out a rare public statement saying that was not legally possible.
“At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” Colleen Shogan, then the archivist, and William Bosanko, then her deputy, said in a statement on Dec. 17, 2024.
That opinion echoed what previous official inquiries had concluded. The Justice Department Office of Legal Counsel, which provides legal analysis to the attorney general and president, stated in a 2020 opinion that the ERA could not become part of the Constitution unless Congress started over entirely because the original seven-year deadline was binding.
“The deadline was widely understood to be a necessary part of the legislative compromise that resulted in the resolution’s passage,” the opinion reads.
Even Rep. Martha Griffiths (D-MI), the ERA’s sponsor in Congress when it was sent to the states, agreed at the time with the wisdom of the limit imposed on the states.
“I think it is perfectly proper to have the seven-year statute so that it should not be hanging over our heads forever,” Griffiths said in 1971.
Crucially, the OLC opinion also found that Congress could not simply scrap the deadline and declare the now more than 50-year-old state ratifications valid.
“We do not believe, however, that Congress in 2020 may change the terms upon which the 1972 Congress proposed the ERA for the States’ consideration,” the opinion reads.
Still, progressive proponents of the ERA demanded that some legal loophole must exist to circumvent those restraints.
In 2022, Biden’s Justice Department issued an update to the original opinion in response to pressure from the Left. His Office of Legal Counsel noted that Congress could indeed take action to extend the deadline for ratifying the ERA, and it took care to highlight the role of judges in determining whether doing so was constitutional. However, this second opinion made no mention of any role for the president in the ratification process.
The OLC opinion issued during the first Trump administration, according to the new opinion, “is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions.”
Laying lawfare groundwork?
Sen. Kirsten Gillibrand (D-NY), who reportedly made a personal plea to Biden’s top aides about taking action on the ERA, said shortly after Biden issued his statement that it should be used as the basis for attempting to get the amendment added using the courts.
“I’m calling on plaintiffs to please file their lawsuits,” she told the New York Times.
But before Biden said he believes the ERA is already part of the Constitution, his administration fought in court against that prospect.
In January 2020, the three states that most recently ratified the ERA — Illinois, Nevada, and Virginia — sued the archivist in the District of Columbia in an attempt to get the court to force the National Archives to publish the amendment. Biden’s Justice Department argued against the effort in both the district court and again in 2022 when it reached the appeals court.
The Biden DOJ defended “the Archivist’s well-supported decision not to certify adoption of the ERA” due to the long-ago passage of the deadline.
“Were this Court to accept plaintiffs’ invitation to hold Congress’s undisputed deadline invalid due to its particular placement in the legislative action at issue and substitute in its place an indefinite period for ratification, it would give this Court a pivotal role in the Amendment process, which Article V places in the hands of Congress,” the DOJ argued in May 2020.
Brosnan said the shift from the Biden administration’s arguments against the ERA to Biden’s attempt to declare it certified was puzzling.
“Multiple states sued during the Biden administration to get it added to the Constitution, and the archivist refused to do so, and the DOJ supported the archivist during litigation,” he said. “So I don’t know where this is coming from, in the last days.”
Progressive Democrats have taken a particularly keen interest in the ERA since the Supreme Court struck down Roe v. Wade with a finding that the decades-old precedent rested on a mistaken finding that the Constitution guarantees the right to an abortion. The ERA, its proponents say, would likely provide a firmer constitutional basis for abortion.
Advocates on the Left had pushed more aggressively, as Biden’s presidency drew to a close, for something to be done about the ERA.
In October 2024, the American Bar Association, a prominent legal group that the Trump administration recently sidelined due to its partisan leanings, passed a resolution calling for the implementation of the ERA. The association took the view that Congress never had the authority to pass a deadline for ratification, which was effectively the opposite of the argument the Biden administration had made in court.
But in his statement declaring the ERA part of the Constitution, Biden cited the American Bar Association’s position.
The revelations about Biden’s deteriorating cognitive state have left critics questioning whether members of Biden’s Cabinet should have invoked the 25th Amendment, which allows the vice president and two-thirds of the Cabinet to declare a president unfit for office and pass his powers to the vice president.
WHAT THE POST-BIDEN PRESIDENCY INVESTIGATIONS COULD ACTUALLY REVEAL
To some, Biden’s decline and the leftward lurch of his administration were closely related developments.
“I think what we’re going to learn is that the conduct of the administration, as President Biden declined, was a giant workaround of the 25th Amendment here,” Brosnan said. “The more we learn, it is becoming clear that this was an instance where it should have been invoked, and the Biden administration worked around it because they could institute further left-wing policies than the president may have wanted to.”
Christian Datoc contributed to this report.