CBA Record May-June 2022

review their statutes for com pliance. That effective date is January 27, 2022. Since this timeframe was placed within the amendment text, where it was approved by both Con gress and the states, it is opera tive, and the ERA is now in full force and effect for all Ameri cans. The ERA & the Role of Illinois Attorneys The battle to have the ERA recognized as the 28th Amend ment involves each of the three

Bar Association of Illinois. In the legislative branch, Congress has been asked to pass a resolution waiving its ratification timeframe. This action does not concede any authority to Congress to set ratification time frames but does serve to simplify issues. The House of Representatives passed this resolution in the last session and again in the current session. The U.S. Senate has had a majority in support of the resolution, but action has been blocked by the filibuster

who grew up in Lincolnwood, Illinois, now heads the DOJ. His office has been asked to reconsider the 2020 opinion. On January 26, 2022, the DOJ’s Office of Legal Counsel issued a brief opinion, stating that “the legal status of the proposed Equal Rights Amend ment is not an obstacle either to Con gress’s ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA.” On January 27, 2022, President Joe Biden issued a statement “calling on Con gress to act immediately to pass a resolu tion recognizing ratification of the ERA.” With regard to the judicial branch, the three states that most recently rati fied (Illinois, Virginia and Nevada) filed suit in federal court to direct the archivist to perform the functionary role of cer tifying and publishing the fully ratified amendment. The matter is currently in the U.S. Court of Appeals for the District of Columbia Circuit. Illinois and Nevada are appealing the district court’s order dismissing their case for lack of standing. Illinois Attorney General Kwame Raoul is a prominent leader in the litiga tion. In addition, Illinois attorneys filed an amicus brief on behalf of the national ERA Coalition. Another amicus brief was filed by a local firm on behalf of former Illinois state legislators. Illinois attorney groups are among the amici, including the Chicago Bar Association, the Illinois State Bar Association, and the Women’s

branches of the national government. Attorneys from Illinois have starring roles. The Executive Branch does not have a substantive role in the amend ment process under Article V of the Constitution. Only Congress and the states have express, material consti tutional amendment responsibilities. Nonetheless, as noted, the Executive Branch – through the Trump administra tion’s DOJ – stopped the national archivist from performing the functionary role of certifying and publishing the fully-ratified ERAupon receipt of notice fromVirginia. This same archivist, David Ferriero, previ ously certified the 2017 and 2018 ratifica tions by Nevada and Illinois, respectively. This same archivist issued a letter to Representative Carolyn Maloney dated October 25, 2012, stating: Under the authority granted under [1 U.S.C. 106b], once [the National Archives and Records Administration] receives at least 38 state ratifications of a proposed Constitutional Amend ment, NARA publishes the amend ment along with a certification of the ratifications and it becomes part of the Constitution without further action by the Congress. Once the process in 1 U.S.C. 106b is completed, the Amend ment becomes part of the Constitu tion and cannot be rescinded. Another Constitutional Amendment would be needed to abolish the new Amendment. U.S. Attorney General Merrick Garland,

rule. Senator Richard Durbin of Illinois chairs the Judiciary Committee, which has been asked to consider the resolution. In addition, a recent House resolution has been proposed to affirm the ERA as the 28th Amendment. Similarly, Congress affirmed the 14th and 27th Amendments. In support of this process, Coleman v. Miller , 307 U.S. 433 (1939) held that the vitality of a constitutional amendment is a nonjusticiable political question. A New Era? Our founders envisioned a great nation governed by law, not by individual kings or queens. The Constitution is our rule of law. In 2020, the Equal Rights Amend ment met the strict requirements to be the 28th Amendment to the Constitution. Everyone – especially those in power – must follow the law. The first words of our Constitution are “We the People.” It’s time we finally realize that ideal.

Michele H. Thorne is an attorney in private practice and a founding member of the Human Rights Special Interest Group (HR-SIG).

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