Biden claims an amendment has been ratified, but it hasn't. This tactic is just like what Dems accuse Trump supporters of doing with fake electors. Trump supporters are being criminally prosecuted. Biden, of course, will not be prosecuted.
Biden Again Summons His “Leading Legal Constitutional Scholars” to Support an Absurd Constitutional Claim
by Jonathan Turley
In his final week as president, Joe Biden again invoked liberal professors to justify a plainly absurd constitutional argument by declaring that the 28th Amendment is now ratified. By invoking “leading legal constitutional scholars,” Biden only added redundancy to absurdity in claiming that the Equal Rights Amendment is now law. Unfortunately, this pattern has been all too familiar throughout his presidency and only highlights his contempt for constitutional order.
As discussed in a column yesterday, the 28th Amendment has been as dead as Dillinger for decades.
To recap:
The deadline for ratification of the ERA was set for March 22, 1979 — allowing seven years to secure the required approval by three-quarters of the states, or 38 states. It failed to do so. Even worse, four states — Nebraska, Tennessee, Idaho, Kentucky — rescinded their prior ratifications and a fifth, South Dakota, set its ratification to expire if the ERA was not adopted by the 1979 deadline.
Kentucky also had an additional problem because its Democratic lieutenant governor vetoed the resolution rescinding the ratification when the governor was out of town. However, Article V speaks of ratifications by state legislatures.
Notably, during the extended period, not a single state was added. Even assuming that the five states could be counted despite the votes to rescind their ratifications, the ERA was still three states short when it missed the second deadline.
Democrats then insisted that states could not rescind their votes, even before ratification was finalized. So, Democrats and then-President Carter simply extended the deadline to June 30, 1982. However, in 1981, a federal district court ruled in Idaho v. Freeman that Congress could not extend the ERA’s ratification deadline. (The Supreme Court later stayed that order but then declared the matter moot.)
In 2021 federal Judge Rudolph Contreras ruled that it would have been “absurd” for the Archivist to disregard the deadline and unilaterally add the unratified amendment to the Constitution. On appeal, a unanimous D.C. Circuit panel rejected the appeal of Illinois and Nevada that the Archivist should be ordered to publish the ERA, holding “The States’ argument that the proposing clause is akin to the inoperative prefatory clause in a bill is unpersuasive…because 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.”
This presented a particularly tough task for Biden since his own Justice Department and his own archivist rejected this argument. Even the late Justice Ruth Bader Ginsberg declared the amendment dead.
Archivist, Colleen Shogan recently explained that neither her office nor the White House have the authority to publish the amendment unilaterally or waive the deadline for ratification:
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable,” she wrote. “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.”
“Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.”
So Biden made a familiar call. In the film Casablanca, Captain Renault, played by Claude Reins, famously tells his men to “round up the usual suspects” to make things look good to the public. The Biden White House would often do the same thing when contemplating a clearly unconstitutional action.
The top of that list has always been Harvard Professor Laurence Tribe, who once again was the most cited academic claiming that the 28th amendment was ratified despite the Justice Department, archivists, the courts, and mere logic claiming otherwise.
Take student loan forgiveness.
Even former Speaker Nancy Pelosi acknowledged that the effort to wipe out hundreds of millions of dollars of student loans would be clearly unconstitutional.
However, Tribe assured President Biden that it was entirely legal.
It was later found unconstitutional by the Supreme Court.
Tribe was also there to support Biden — when no other legal expert was — on the national eviction moratorium.
The problem, Biden admitted, was his own lawyers told him that it would be flagrantly unconstitutional. However, then-Speaker Nancy Pelosi told Biden to just call Tribe.
Biden then cited Tribe as assuring him that he had the authority to act alone.
It was, of course, then quickly found to be unconstitutional.
Some of Tribe’s conspiracy theories have also been quickly disproven — like his sensational claims of an anti-Trump figure being killed in Russia or claiming that the Oct. 7th massacre of Israelis was meant to cover up the corruption of Israeli Prime Minister Benjamin Netanyahu.
Tribe also insisted that Trump could be charged with a long list of criminal charges that no prosecutor ever pursued — including treason. Tribe even declared Trump guilty of the attempted murder of Vice President Mike Pence on January 6, 2021. Even though no prosecutor has ever suggested such a charge, Tribe assured CNN that the crime was already established “without any doubt, beyond a reasonable doubt, beyond any doubt.”
Yet, Tribe was again cited to support this claim. With fellow law professor Kathleen Sullivan, Tribe ran a column declaring “The ERA is Now Law!” as if amplification and exclamation points would somehow make it true.
They were joined by academics like Georgetown Law Professor Victoria Nourse, who was celebrated by Georgetown in a public statement for finally prevailing in her long fight for the ERA. Nourse also wrote that Biden’s declaration somehow makes this all official. That statement brought a quick rebuke from Ed Whelan, who noted that Nourse previously testified that presidents have “no role” in the constitutional process when the president was Donald Trump.
Given the makeup of most law schools, it is relatively easy to produce a virtual flash mob of faculty to support anything from packing the Court to unilateral ratification declarations.
A recent survey of more than 1,000 professors shows that seventy-eight percent would vote for Harris and only eight percent would vote for Trump. Other than a poll of the Democratic National Committee, there are few groups that are more reliably Democratic or liberal.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss the intolerance in higher education and surveys showing that many departments no longer have a single Republican as faculties replicate their own views and values.
A Georgetown study recently found that only nine percent of law school professors identify as conservative at the top 50 law schools — almost identical to the percentage of Trump voters found in the new poll.In places like North Carolina State University a study found that Democrats outnumbered Republicans 20 to 1.
Recently, I had a debate at Harvard Law School with Professor Randall Kennedy on whether Harvard protects free speech and intellectual diversity.
The Harvard Crimson has documented how the school’s departments have virtually eliminated Republicans. In one study of multiple departments last year, they found that more than 75 percent of the faculty self-identified as “liberal” or “very liberal.”
Only 5 percent identified as “conservative,” and only 0.4% as “very conservative.”
According to Gallup, the U.S. population is roughly equally divided among conservatives (36%), moderates (35%), and liberals (26%).
So Harvard has three times the number of liberals as the nation at large and less than three percent identify as “conservative’ rather than 35% nationally.
Among the law school faculty who donated more than $200 to a political party, 91 percent of the Harvard faculty gave to Democrats.
That echo chamber of higher education offers liberal leaders instant support even for the most ridiculous claims like the ratification of the ERA. The problem is that the group-think culture has a greater hold on academics than the public at large. For most people, selling the ERA as alive and well is akin to trying to sell a dead parrot as merely sleeping or stunned
Tom |
