[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 107 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. RES. 107
Recognizing the expiration of the Equal Rights Amendment proposed by
Congress in March 1972, and observing that Congress has no authority to
modify a resolution proposing a constitutional amendment after the
amendment has been submitted to the States or after the amendment has
expired.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 15, 2023
Mrs. Hyde-Smith (for herself, Mr. Lankford, Mr. Cruz, Mr. Cotton, Mr.
Mullin, Mr. Vance, Mr. Cassidy, Mr. Ricketts, Mr. Rubio, Mr. Boozman,
Mr. Kennedy, and Mr. Lee) submitted the following resolution; which was
referred to the Committee on the Judiciary
_______________________________________________________________________
RESOLUTION
Recognizing the expiration of the Equal Rights Amendment proposed by
Congress in March 1972, and observing that Congress has no authority to
modify a resolution proposing a constitutional amendment after the
amendment has been submitted to the States or after the amendment has
expired.
Whereas article V of the Constitution of the United States gives two-thirds of
the Senate and two-thirds of the House of Representatives the power to
propose constitutional amendments and their mode of ratification by the
States;
Whereas the Supreme Court of the United States in Dillon v. Gloss, 256 U.S. 368
(1921) unanimously held that Congress may, in proposing a constitutional
amendment, incorporate ``a definite period for ratification [that] shall
be fixed, so that all may know what it is and speculation on what is a
reasonable time may be avoided . . .'';
Whereas the Supreme Court in the Dillon v. Gloss decision held that whether
Congress uses its power to include such a ``definite'' deadline was ``a
matter of detail which Congress may determine as an incident of its
power to designate the mode of ratification'' of an amendment, which
mode Congress has always dictated in the proposing clause of a
resolution;
Whereas House Joint Resolution 208, 92nd Congress, referred to in this
resolution as the ``Equal Rights Amendment Resolution'' contained a
ratification deadline of 7 years in the proposing clause of the
resolution, as has every constitutional amendment submitted by Congress
to the States since 1960, and proposed an amendment referred to in this
resolution as the ``Equal Rights Amendment'';
Whereas, in Illinois v. Ferriero, No. 21-5096 (D.C. Cir. 2023), a unanimous
ruling issued on February 28, 2023, the United States Court of Appeals
for the District of Columbia Circuit rejected the claim of the Attorneys
General of Illinois and Nevada that a deadline in a proposing clause is
not effective, with the court calling that claim ``unpersuasive'' and
observing that ``if that were the case, then the specification of the
mode of ratification in every amendment in our Nation's history would
also be inoperative'';
Whereas, in the same unanimous ruling, the United States Court of Appeals for
the District of Columbia Circuit noted that the Supreme Court has
affirmed the authority of Congress to set a binding ratification
deadline, and the court of appeals refused to order the Archivist to
certify the Equal Rights Amendment as part of the Constitution and
dismissed the lawsuit brought by Illinois and Nevada;
Whereas Representative Martha Griffiths, the sponsor of the Equal Rights
Amendment Resolution, said in 1971, speaking of the deadline for the
Equal Rights Amendment, ``I think it is perfectly proper to have the 7-
year statute so that it should not be hanging over our heads forever.'';
Whereas, under article V of the Constitution, a proposed amendment does not
become part of the Constitution unless it is either ``ratified by the
Legislatures of three fourths of the several States, or by Conventions
in three fourths thereof'' with one or the other mode of ratification
being dictated by Congress in the proposing clause of a resolution;
Whereas only 35 States ratified the Equal Rights Amendment before its 7-year
deadline, resulting in fewer than the 38 State ratifications necessary
for adoption under article V of the Constitution;
Whereas, before the original deadline for the Equal Rights Amendment expired, 4
of the 35 States that voted to ratify voted to rescind their
ratifications;
Whereas Justice Ruth Bader Ginsburg in 2020 observed, when explaining why she
thought the Equal Rights Amendment needed to start over, ``If you count
a latecomer on the plus side, how can you disregard States that said
we've changed our minds?'';
Whereas, in Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), Judge Marion
Callister of the United States District Court for the District of Idaho
held that article V of the Constitution did not permit Congress to
extend a ratification deadline, writing, ``Once the proposal has been
formulated and sent to the States, the time period could not be changed
any more than the entity designated to ratify could be changed from the
State legislature to a State convention or vice versa. Once the proposal
is made, Congress is not at liberty to change it.'';
Whereas, on March 5, 2021, Judge Rudolph Contreras of the United States District
Court for the District of Columbia held in Virginia v. Ferriero, 525 F.
Supp. 3d 36 (2021) that the deadline contained in the Equal Rights
Amendment Resolution was constitutionally valid and that the legislative
actions of 3 State legislatures in 2017 through 2020, purporting to
ratify the Equal Rights Amendment, ``came too late to count'';
Whereas Judge Contreras noted, ``Inclusion of a deadline was a compromise that
helped Congress successfully propose the ERA where previous attempts to
pass a proposal had failed.'';
Whereas, while Judge Contreras found it unnecessary to reach the question of
whether Congress could retroactively alter a deadline, he did observe
that ``the effect of a ratification deadline is not the kind of question
that ought to vary from political moment to political moment . . . Yet
leaving the efficacy of ratification deadlines up to the political
branches would do just that.'';
Whereas, on January 6, 2020, the Department of Justice Office of Legal Counsel
issued a legal opinion stating, ``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. Article V does not
expressly or implicitly grant Congress such authority. To the contrary,
the text contemplates no role for Congress in the ratification process
after it proposes an amendment. Moreover, such a congressional power
finds no support in Supreme Court precedent.'';
Whereas the 2020 Office of Legal Counsel opinion also observed, ``Because
Congress and the State legislatures are distinct actors in the
constitutional amendment process, the 116th Congress may not revise the
terms under which two-thirds of both Houses proposed the ERA Resolution
and under which 35 State legislatures initially ratified it. Such an
action by this Congress would seem tantamount to asking the 116th
Congress to override a veto that President Carter had returned during
the 92nd Congress, a power this Congress plainly does not have.''; and
Whereas in oral argument before the United States Court of Appeals for the
District of Columbia Circuit in the Virginia v. Ferriero case on
September 28, 2022, Judge Robert Wilkins of that Court asked Deputy
Assistant Attorney General Sarah Harrington, ``Why shouldn't the
Archivist just certify and publish [the Equal Rights Amendment] and let
Congress decide whether the deadline should be enforced . . .?'', and
Ms. Harrington answered, ``The Constitution doesn't contemplate any role
for Congress at the back end. Congress proposes the amendment, it goes
out into the world, and the States do what they're going to do'': Now,
therefore, be it
Resolved, That the Senate--
(1) recognizes that, under article V of the Constitution,
the legitimate constitutional role of Congress in the
constitutional amendment process for the Equal Rights Amendment
ended when Congress proposed and submitted the Equal Rights
Amendment to the States on March 22, 1972;
(2) recognizes that the Equal Rights Amendment expired when
its ratification deadline passed with fewer than three-fourths
of the States ratifying;
(3) recognizes that Congress has no power to modify a
resolution proposing a constitutional amendment after the
amendment has been submitted to the States, or after the
amendment has expired; and
(4) recognizes that the only legitimate way for the Equal
Rights Amendment to become part of the Constitution is provided
in article V of the Constitution, and requires reintroduction
of the same or modified language addressing the same subject,
through approval of a new joint resolution by the required two-
thirds votes in each house of Congress.
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