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D.C. Circuit takes up Equal Rights Amendment

Was the Constitution amended? Roughly speaking, that’s the question the D.C. Circuit confronted today, in a case involving the Equal Rights Amendment or ERA.

Believing the answer to be yes, a number of states had urged the Archivist of the United States to certify and publish the ERA as part of the Constitution. When the Archivist refused, the pro-ERA states sued in federal court in D.C. seeking a writ of mandamus forcing the Archivist to proceed.

Here’s how the D.C. Circuit described what happened below:

The District Court first held that the States lacked standing. It ruled the States did not show that the Archivist’s failure to certify and publish the ERA caused “a concrete injury that could be remedied by ordering him to act,” and that his decision to certify and publish amendments “has no legal effect.” The District Court also ruled that Plaintiffs had not established that the Archivist had a clear duty to certify and publish the ERA or that their right to relief was clear and indisputable. The District Court did not reach [other states’] arguments that the ERA had expired under Article V of the Constitution and that five states had validly rescinded their ratifications.

No. 21-5096, Illinois v. Ferriero (Feb. 28, 2023) (Slip Op. 6) (internal citations and some quotation marks omitted).

In a decision by Judge Wilkins, the D.C. Circuit agreed with the district court’s bottom line:

[T]he States have not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA. Under the rigid standard required for mandamus actions, this Court must affirm the District Court’s dismissal of the States’ complaint on the ground that the lower court lacked subject matter jurisdiction.

Id. at 26.

Presumably plaintiffs are writing a cert petition. Whether it holds promise is another question.