[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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