From TikTok To ERA, Biden Leaves Taxpayers A Mess

Official State Department photo by Chuck Kennedy

On it way out of the door, the Biden Administration has made two interesting legal decisions: interesting in the sense that taking an unexpected Josh Allen pass to the crotch might be interesting. The first was to declare that the Equal Rights Amendment had been ratified; the second was to suspend implementation of the TikTok ban for the Trump Administration to decide on.

Let’s tackle the second one first.

Last year, Congress passed a law that compelled TikTok to be either sold to a company besides Chinese-owned Bytedance or be banned in the United States. Lawsuits flowed and SCOTUS expedited the process to get a ruling issued as as quickly as possible.¹ Last week, they unanimously ruled that the law was constitutional. The ban was to get into effect on Sunday (and TikTok users in the US woke to find a splash screen explaining the ban). But Biden has now suspended implementation of the rule to let Trump decide. The President-Elect, as happily noted on the splash screen, changed his mind on the ban last year, which I’m sure is due entirely to careful deliberate consideration of the issues involved, consultation with experts on technology and, possibly, a bad burrito that sent him running to the toilet at 3 am.²

TikTok splash screen.

Ahem.

I won’t claim to have studied the TikTok issue very carefully. My gut reaction is that the concerns are valid but a ban seems an over-reaction. But my main concern here is: if Biden was going to suspend the rule only for Trump to ignore it — which is apparently a thing presidents can now do — what was the point of all this? What was the point of the political fight, the lawsuits, the massive legal expenditures and SCOTUS rushing this to decision? The taxpayers invested time, money and debate energy into this issue only for Biden to say, “Eh, we’ll punt on it.”³

This would be a minor irritation but for the first decision Biden made: to recognize the Equal Rights Amendment. The Amendment, which would ban discrimination based on sex, was ratified by Congress in 1972 but given a seven-year deadline for ratification. Over the next seven years, 35 states ratified it (and five quickly rescinded that ratification). Congress extended the deadline. No more states ratified. Between 2017 and 2021, three more states ratified (and North Dakota rescinded). Supporters of the ERA have argued that this makes for 38 states: that the deadline should be ignored, and the rescindings should be ignored. After four years, Biden finally embraced that idea and declared that the ERA is now part of the Constitution.

You can read conflicting opinions from Lawrence Tribe and Walter Olson on the validity of the Amendment. I think that Olson easily has the better argument here. Biden’s declaration that the ERA is now part of the Constitution is no more valid that me declaring myself to be the Sexiest Man Alive.

First of all, the Constitution gives Congress the power to set amendments going and does not limit the conditions they can put on ratification. There is nothing authorizing Congress to set time limits but neither is there anything forbidding it. Given that the Constitution gives Congress sole authority over passing amendments, I am inclined to defer to their conditions, especially given the Coleman precedent (see below).

There is a history here, a reason why Congress started putting time limits on ratifying amendments. This was done to prevent zombie amendments from floating around long after the political winds have shifted. There are seven Constitutional Amendments that have been ratified by Congress but failed to be ratified by the states in a timely fashion.

• Most famous of these is an amendment banning Congressional pay raises until after an election. This was passed by Congress in 1789 but, unlike the ten Amendments of the Bill of Rights, did not get enough support to be ratified. Over two centuries later, revived interest led to enough states ratifying it to becoming the 27th Amendment.
• The Congressional Apportionment Amendment was the other Amendment the states failed to ratify in 1789. It has been ratified by 11 states but has no expiration date so could still be passed. It would set the size of the House between 200 and, with the current US population, 7000 representatives. I’m not seeing much point in that.
• The Titles of Nobility Amendment would strip citizenship from any American accepting a title or present from a foreign government without Congressional assent. Ratified by 12 states and with no expiration date, there seems little interest in reviving this, although it could produce some interesting legal fights.
• The Corwin Amendment is the biggest reason for limiting the time for amendments to pass. This amendment, ratified by a panicked Congress when Southern states were seceding and endorsed by incoming President Lincoln, would prohibit the government from outlawing slavery. It was ratified by only five states.⁴ It’s still out there, however. In theory, if another 33 states decided YOLO, let’s bring back slavery, they could do so.
• The Child Labor Amendment would do exactly what it says on the tin: give the Feds the ability to regulate child labor. It’s still out there and has been ratified by 28 states. It’s since been overtaken by the federal government just … doing it anyway. But it plays a critical role in this debate since SCOTUS, in Coleman v. Miller, ruled that unless Congress sets a deadline, an Amendment ratified by Congress remains valid essentially forever.
• The DC Voting Rights Amendment would have repealed the 23rd Amendment and given DC Senators and House members. It was ratified by 16 states before the deadline expired.
• The ERA.

In short, this is a rare situation but one where I think Congress acted correctly: set a time limit so that if the political winds change, we don’t have this hanging over us.

But more importantly, whatever one thinks of the ERA or even whatever one thinks of the ratification process, deciding that it is the law of the land is not the President’s job. The Constitution clearly placed the power of amending the Constitution in the hands of Congress and the president was left out of the process completely. The Supreme Court ruled that the president has no role in the amendment process two centuries ago in Hollingsworth v. Virginia and has shown zero interest in revisiting that. The President can agitate, grandstand or whine all he wants; it still comes down to what Congress says and Congress’s official position, as expressed through the archivist, is that the deadline has expired. If Congress passed a law recognizing the ERA as having been passed, that would be a different story.⁵

Ultimately, I think the best opinion on this matter came from someone who was both a respected Supreme Court Justice and an ardent feminist: Ruth Bader Ginsburg. After Virginia ratified the amendment, she was was asked whether it should be considered valid. And her response was: start the process over. For something as important as the ERA, she wanted there to be no doubts, no shortcuts, no reindeer games.⁶ Start the process over, pass it in both houses and get it ratified, either within the deadline or with no deadline.

Of course, that’s not going to happen with the current Congress and legislature. Hence, the end-around.

So why do I described this as a kick in the crotch to the taxpayers? Because it’s going to cost us money, time and patience. The Trump DOJ will doubtless ignore Biden’s edict, as they should. But there are lots of progressive groups out there who will act on it. So Biden’s performative nonsense means that some groups out there and probably several are going to file lawsuits alleging violations of the 28th Amendment.⁷ The Trump Administration will (and should) argue that there no such animal as the 28th Amendment. In 2023, the DC Circuit ruled that the deadline was valid and had passed, so I expect lower courts to defer to that. But if Biden’s ruling inspires an even more bitter legal fight, this could go up to SCOTUS. So we will get lots of angry debate, lots of protests, lots of legal expenses, all for SCOTUS to rule, at worst 6-3 and at best unanimously, that, no it doesn’t work that way. And that will bring the inevitable “we live in a theocracy” freak out.

If Biden had been serious about the ERA, he could have started this process upon taking office, since Virginia became the “38th” state to ratify the Amendment in 2020. His DOJ could have expedited the case to SCOTUS quickly, since it involved an original jurisdiction dispute between states. And the matter would have been settled, one way or the other, several years ago with minimal fuss. Instead, he’s issuing this bizarre statement upon leaving office and handing it to an incoming DOJ that would just relish a noisy, wasteful, divisive and ultimately pointless fight over it.

I can not imagine a more fitting epitaph for the 46th President. As I’ve noted before, the Biden presidency wasn’t nearly as bad as people think. In fact, given the mess he was handed, I think he’s done a semi-decent job. The economy is good, crime is down, the border situation is improving, NATO is stronger, etc. But his unwillingness to admit his own decline led directly to the re-election of President Trump. And he has left the country more bitterly divided than ever. And he’s handed us a couple of issues for people to get pointlessly angry about.

1. Unlike a certain case involving a certain president, but I digress.
2. While working on this post, TikTok went live again. This was shortly after Trump truthed out that he was going to suspend the ban for 90 days — which he can do, but only if a deal is already in the works. Message sent and message received, apparently.
3. One of my more out-there views is that the President has the authority, even the duty, to refuse to enforce laws he believes are unconstitutional. But that authority should only be exercised on issues of grave constitutional import — such as if Congress passed a law banning a religion — not just because … he doesn’t feel like it.
4. Three of those five states have rescinded that ratification which leads me to ask … WTH are you waiting for, Rhode Island and Kentucky?
5. My opinion on the ERA itself is … nuanced. In principle, it’s fine. In practice, I fear that it would be used by the Right Wing to attack government programs that benefit women as unconstitutional, the same way way they have attacked programs that benefit minorities. The WIC program? Clearly discriminatory. Not drafting women? Discriminatory. Violence Against Women Act? Education programs that target women? Federal scholarships for women? Unconstitutional, all of them. At least, in theory.
6. She may not have actually said “reindeer games”.
7. Indeed, one of the biggest proponents of the ERA Gambit, Senator Gillibrand, is saying women should sue to overturn abortion laws under the ERA. This runs into two problems. First, Dobbs already addressed this issue and said that they don’t consider abortion bans sex discrimination, thus removing a level of scrutiny from abortion laws. Second, Republicans would argue that the law isn’t discriminatory because it also bans men from having abortions. And since the Democrats have been running around saying men can get pregnant and replacing references to pregnant women with “pregnant people”, they’ve basically conceded that argument.