A Fact Sheet & Legal Analysis (2026) of the ERA
Amendment
1. Ratification Timelines
- The
ERA: Took 48 years (1972–2020) to reach the 38-state threshold
(Virginia was the 38th).
- The
27th Amendment: Holds the record at 202 years (1789–1992).
Unlike the ERA, it had no deadline in its text, which advocates use as a
precedent to argue that the ERA's deadline shouldn't matter.
2. The "Deadline" History
- Original
Deadline: March 22, 1979.
- Extension:
Congress extended it once to June 30, 1982.
- Current
Effort: H.J.Res. 25 in the House seeks to remove the deadline
entirely, arguing that because it was in the preamble and not the
amendment text, Congress has the power to waive it.
3. The Rescission Debate
- Precedent:
The 14th and 15th Amendments were both certified despite states
(like NJ, OH, and NY) trying to rescind their ratifications. Congress and
the Secretary of State counted them anyway.
- The
Idaho Case: Idaho ratified with a 60% supermajority but later
"rescinded" with only a 50% simple majority. Advocates
argue a simple majority cannot legally undo a supermajority act.
4. Recent Executive Actions
- President
Biden’s Affirmation: On January 17, 2025, Biden released a White House
statement affirming the ERA is the "law of the land."
- The
Trump "Block": The Trump administration used a 2020 OLC
Memo to direct the National Archives not to publish the ERA.
- Archivist
Firing: In February 2025, President Trump fired Archivist Colleen
Shogan, who had been under pressure to certify the amendment. The position
is currently in the process of being filled by a new nominee.
1.
The Formal Legal "Block" (2020)
There is documented truth to the claim that the Trump
administration officially moved to stop the ERA's publication.
- The
2020 OLC Memo: In January 2020, just as Virginia became the 38th state
to ratify, the Department of Justice’s Office of Legal Counsel (OLC)—under
the Trump administration—issued a formal legal opinion.
- The
Directive: The memo concluded that the ERA’s ratification deadline had
expired and was "no longer pending" before the states. It
explicitly instructed the National Archives that the Archivist could
not certify or publish the amendment.
- The
Result: This memo remains the primary "legal wall" that even
the Biden administration did not fully dismantle, as the National Archives
continues to cite it as the reason for non-publication.
2. The Firing of the Archivist (February 2025)
The situation escalated significantly shortly after
President Trump’s second inauguration.
- The
Firing: On February 7, 2025, President Trump fired the
Archivist of the United States, Dr. Colleen Shogan. She was the first
woman to hold the position permanently.
- The
Context: While no official reason was given for her dismissal, it
followed a period of intense pressure from both ERA advocates (who wanted
her to publish the amendment) and the Trump team (who were reportedly
frustrated with the Archives over the handling of presidential records
from his first term).
- Current
Leadership: Following the firing, the administration installed an
"acting" Archivist. More recently, in March 2026, Trump
nominated Bradford P. Wilson to fill the role permanently.
3. The "Executive Order" Concerns
There is a widespread concern among advocacy groups like the
ERA Coalition that the administration may go beyond the 2020 memo.
- The
Fear: Advocates worry the President may issue a specific Executive
Order declaring the ERA "dead" or directing the Archives to
permanently cease all work related to its certification.
- Current
Reality: As of early 2026, while the administration has issued various
orders rolling back DEI (Diversity, Equity, and Inclusion) programs, there
has not yet been a singular "ERA is Dead" Executive Order.
Instead, the administration relies on the existing 2020 OLC Opinion,
which provides the same practical result: the amendment stays in the
vault.
Perspective: Supporters of the ERA view the firing of
Shogan and the continued use of the OLC memo as a "political
blockade" of a completed constitutional process. Opponents argue the
President is simply ensuring the Archivist follows the law regarding expired
deadlines.
Recent Congressional Votes on the ERA Deadline
|
Date |
Chamber |
Resolution |
Action |
Result |
|
April 27, 2023 |
Senate |
S.J.Res. 4 |
Motion to invoke cloture (to start debate) |
Failed (51-47) |
|
March 17, 2021 |
House |
H.J.Res. 17 |
Final Passage |
Passed (222-204) |
|
February 13, 2020 |
House |
H.J.Res. 79 |
Final Passage |
Passed (232-183) |
Key Details of the Votes
- Senate
Failure (2023): Although a majority (51 senators) voted in favor of S.J.Res.
4, it failed because it did not reach the 60-vote threshold
required to overcome a filibuster. Sens. Lisa Murkowski (R-AK) and Susan
Collins (R-ME) were the only Republicans to vote "Yea".
- House
Successes (2020 & 2021): The House successfully passed resolutions
to remove the deadline twice in recent years. In 2021, H.J.Res. 17 passed
with bipartisan support, including several Republican votes.
Idaho NOW’s position is that there are only procedural
reasons that are stopping the amendment as being recognized as legal and in
force.