[Congressional Record Volume 167, Number 55 (Wednesday, March 24, 2021)]
[Senate]
[Pages S1732-S1734]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                         Equal Rights Amendment

  Mr. President, I rise to celebrate Women's History Month and support 
S.J. Res. 1, legislation I introduced with my partner in this effort, 
Senator Murkowski of Alaska.
  Our bipartisan legislation would remove the deadline for the States' 
ratification of the Equal Rights Amendment, the ERA, and I am pleased 
that the House adopted the companion version of this legislation, H.J. 
Res. 17, last week. I now urge the Senate to take up and pass this 
legislation.
  Ratification of the ERA would expressly prohibit discrimination on 
the basis of sex in the U.S. Constitution. The amendment simply reads:

       Equality of rights under the law shall not be denied or 
     abridged by the United States or by any State on account of 
     sex.

  In January 2020, Virginia became the 38th State to ratify the ERA, 
which was first proposed in 1972. Congress has the authority under 
article V of the Constitution to set and change deadlines for the 
ratification of constitutional amendments and has done so on numerous 
occasions. Recall that, in 1992, the 27th amendment of the 
Constitution, prohibiting immediate congressional pay raises, was 
successfully ratified after 203 years. That amendment was initially 
proposed as part of the original Bill of Rights in 1789.

  There should be no time limit on equality. Even as we celebrate 
America's first female Vice President, our Nation is held back as the 
only modern Constitution that fails to enshrine full equality for both 
men and women. This is unacceptable. Most Americans are surprised to 
learn that the ERA is not already part of the U.S. Constitution. The 
States have done their job to make this happen. Now Congress must 
finally do its job and remove any legal obstacle to certifying the ERA.
  Women were indeed left out of the Constitution intentionally by our 
Founding Fathers. American women, however, did demand equality as our 
country was being founded. In a letter in March 1776, Abigail Adams 
wrote to her husband John Adams, urging him and other members of the 
Continental Congress not to forget about the Nation's women. The future 
First Lady wrote, in part:

       I long to hear that you have declared an independence. And, 
     by the way, in the new code of laws which I suppose it will 
     be necessary for you to make, I desire you would remember the 
     ladies and be more generous and favorable to them than your 
     ancestors. Do not put such unlimited power into of the hands 
     of the husbands. Remember, all men would be tyrants if they 
     could. If particular care and attention is not paid to the 
     ladies, we are determined to foment a rebellion, and will not 
     hold ourselves bound by any laws in which we have no voice or 
     representation.

  Sadly, the Founding Fathers did not heed Abigail Adams' call. Most 
notably, women were denied the right to vote for nearly 150 years. More 
broadly, women were treated as second-class citizens through our 
Nation's history and were denied other basic and fundamental rights, 
such as being able to own property or work in their chosen occupation.
  Women comprise a majority of the underrepresented in government, 
elected office, the courts, and the business world. Without the ERA in 
the Constitution, the statutes and case law that have produced major 
advances in women's rights since the middle of the last century are 
vulnerable to being ignored, weakened, or even reversed.
  Congress can amend or repeal anti-discrimination laws by a simple 
majority. A new administration can fail to vigorously enforce civil 
rights statutes. The Supreme Court can use a lower standard of 
intermediate scrutiny to permit certain regressive forms of sex 
discrimination.
  Indeed, even today, women do not receive equal pay for equal work. 
The ERA would provide a needed constitutional basis for legislation 
advancing women's equality. Historically, the equal protection of the 
laws clause of the 14th Amendment has been used to fight discrimination 
on the basis of gender. However, without language in the Constitution 
specifically establishing that there shall be no denial or abridgement 
of rights on the basis of sex, the Supreme Court will likely continue 
to apply a lower level of scrutiny in cases related to discrimination 
against women. By contrast, the Supreme Court uses the ``strict 
scrutiny'' test in reviewing cases of racial and religious 
discrimination.
  As former Supreme Court Justice Antonin Scalia, a fervent 
originalist, once stated, ``Certainly the Constitution does not require 
discrimination on the basis of sex. The only issue is whether it 
prohibits it. It doesn't.
  Former Supreme Court Justice Ruth Bader Ginsburg stated:

       Every constitution written since the end of World War II 
     includes a provision that men and women are citizens of equal 
     stature. Ours does not. . . . If I could choose an amendment 
     to add to the Constitution, it would be the Equal Rights 
     Amendment. I would like my granddaughters, when they pick up 
     the Constitution, to see that notion--that women and men are 
     persons of equal stature--I'd like them to see that in a 
     basic principle of our society.

  Public polling indicates that the country is ready for the ERA. 
Today, nearly half the States--including Maryland and Alaska--have a 
version of the ERA written into their State constitutions. In the era 
of ``Me Too,'' there has been a renewed energy for adopting the ERA, as 
society finally addresses the longstanding problems of violence and 
sexual harassment against women and demanding justice and 
accountability.
  Just a few weeks ago, we celebrated International Women's Day 
worldwide, on March 8, with the 2021 theme: ``Choose to Challenge.'' It 
is now far past the time we bring the conversation of women's equality 
and empowerment to center stage.
  The United States of America is one of the most developed, 
wealthiest, and admired countries in the world today, and immigrants 
from all over the world continue to travel to the United States to 
pursue their dreams and make a better life for themselves and their 
families. However, to this very day, the

[[Page S1733]]

Constitution of the United States, our Nation's supreme law of the 
land, still does not declare that men and women are of equal stature. 
The passage of this historic amendment would truly never be more 
possible or needed as it is today.
  Let me quote from President Biden's statement on the ERA, upon the 
House passage of this legislation last week:

       Gender equality is not only a moral issue. The full 
     participation of women and girls across all aspects of our 
     society is essential to our economic prosperity, our 
     security, and the health of our democracy. This is especially 
     critical right now, as the collision of a public health 
     crisis, economic crisis, and caregiving crisis has erased 
     decades of women's economic gains and pushed more women out 
     of the American workforce than we've seen in more than 30 
     years.

  President Biden concluded:

       It is long past time that we enshrine the principle of 
     gender equality in our Constitution.

  Let me address one other issue regarding a recent decision on the ERA 
and the validity of the State ratification under the previous 
congressional deadlines. In this case, decided by Judge Contreras in 
the United States District Court for the District of Columbia, it is 
just as important to discuss what the judge did not hold in his 
decision. Notably, the judge in this case wrote:

       Equally significant as the Court's holding is what it does 
     not hold. . . . Congress has not tried to revive the ERA 
     despite both deadlines' expirations, so the Court is not 
     confronted with that difficult issue. . . . Lastly, the Court 
     does not express an opinion on the merits of the ERA as a 
     matter of policy. It merely enforces a procedural time limit 
     that Congress set when proposing the amendment.

  In my view, this decision makes the need for decisive congressional 
action clearer than ever on this procedural time limit, using the power 
of Congress under Article V of the Constitution. It is far past time 
for Congress to take up and pass this legislation that would remove the 
time limit for the ERA ratification, which will remove any remaining 
legal ambiguities about congressional intent. Let us take up and pass 
this legislation without further delay, and finally write equality 
between men and women into our Constitution.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.


                    Unanimous Consent Request--S. 80

  Ms. ERNST. Mr. President, it has become all too easy for pundits and 
politicians to reduce the security of our borders to a bumper sticker 
or billboard slogan.
  As someone who appreciates the value of human life, as a survivor of 
sexual assault, and someone who cares deeply about the safety and 
security of women and children across the globe, I am horrified that we 
continue to put border security at the bottom of our policy to-do list.
  On January 31, 2016--the same day as her college graduation--Iowan 
Sarah Root was killed by an illegal immigrant named Edwin Mejia. He was 
drag racing, with a blood alcohol level more than three times the legal 
limit.
  Despite repeated requests by local law enforcement, Immigration and 
Customs Enforcement failed to detain Mejia because of a catch-and-
release policy that ultimately allowed him to escape the country. 
Unfortunately, this is the same policy that President Biden supported 
during the Obama administration.
  Still, more than 4 years later, Mejia remains a fugitive, denying 
Sarah's loved ones any sense of justice or closure. After today, I will 
have now live UC'd this bill twice, and I expect the same thing to 
happen today as did last time; that it will be objected to by my 
Democratic colleagues.
  As a mother, I cannot fathom the grief that Sarah's family, her 
mother and father Michelle and Scott, her brother, and her friends 
continue to feel after such a devastating loss.
  Sarah had her whole future in front of her, but her opportunity to 
make her mark on the world was tragically cut short. At the same time, 
while Sarah Root's mother and father grieve, a child, without a parent, 
continues to make the perilous journey at the hands of a smuggler. Many 
arrive here dehydrated and malnourished and subject to unspeakable 
atrocities, from rape to assaults.
  Since Inauguration Day, we have seen record numbers of children at 
the border, a heartbreaking humanitarian crisis. Before then, the 
Migrant Protection Protocols, or the ``Remain in Mexico'' policy, was 
in place and helped keep migrants safely in Mexico until the United 
States had a chance to process them.
  This policy singlehandedly reduced the need for bed space in the 
United States, protected migrants from that treacherous journey through 
Mexico, and kept our facilities from being dangerously overcrowded. 
Border Patrol agents were able to return to their originally assigned 
duties of patrolling for drugs and human traffickers.
  But as we have heard time and again, and something that is very true, 
elections have consequences. President Biden, before he even had the 
chance to unpack, made serious changes to immigration policies--changes 
that have resulted in the national emergency at the U.S.-Mexico border.
  First, he rolled back the ``Remain in Mexico'' policy, and that is a 
big reason why we have a crisis at the border today. Instead of keeping 
migrants in Mexico and deterring those from making the dangerous 
journey north, the vacancy sign is on. But the reality is, we are out 
of space.
  It feels as if the Biden administration is starting to see the 
reality of the disaster they created at our southern border. They are 
now walking this reversal back and asking the Mexican Government to 
reinstate the previous administration's policy.
  On his first day in office, President Biden signed an Executive order 
suspending all domestic deportation proceedings. If Sarah Root's story 
played out today, Immigration and Customs Enforcement would not pick up 
her killer, and the same tragedy could happen again and again.
  Although nothing can bring beautiful Sarah back to her family, we can 
ensure that the Federal Government never makes this mistake again.
  Today, I rise to call upon my Senate colleagues to help make that 
happen, to stop another tragedy like Sarah's from happening with a 
simple and clean fix. I am asking the Senate to join myself and 22 of 
our colleagues and pass my bill, Sarah's Law.
  Sarah's Law is simple: It requires that ICE take custody of a person 
who is in the country illegally if they are charged with a crime that 
seriously injures another person. It also mandates a better victim 
notification system that lets victims and their families--like the Root 
family--know what happened to their loved ones.
  Sarah's Law is about as commonsense an effort as there is. It 
recognizes the simple fact that all criminals should be held 
accountable for their actions--all criminals--and not simply allowed to 
slip back into the shadows. If Sarah's Law is passed, people who are in 
this country illegally and murder another person would be prioritized 
for deportation if released.
  Who could be opposed to this?
  In fact, a previous vote on this bill in the form of an amendment was 
supported by the majority of the Senate and was bipartisan.
  No family should ever have to endure such a tragedy, especially one 
that could have been prevented.
  Madam President, as in legislative session, I ask unanimous consent 
that the Committee on the Judiciary be discharged from further 
consideration of S. 80 and the Senate proceed to its immediate 
consideration. Further, I ask unanimous consent that the bill be 
considered read a third time and passed and that the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER (Ms. Rosen). Is there objection?
  Mr. DURBIN. Madam President, reserving the right to object.
  The PRESIDING OFFICER. The Democratic majority whip.
  Mr. DURBIN. The Senator from Iowa tells us a compelling story of 
Sarah Root, whose death at the hands of a drunk driver is a tragedy. 
However, I respectfully suggest this legislation is not the answer.
  This bill that she is proposing would require the mandatory detention 
of immigrants charged--not convicted--charged with certain crimes. The 
mere allegation of criminal conduct would result in months, possibly 
years, of detention before case adjudication.
  Indefinitely detaining immigrants, regardless of whether they 
actually

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committed a crime, regardless of circumstances, violates a principle 
that is deeply embedded in the American legal system: innocent until 
proven guilty. Under this bill, someone wrongly arrested wouldn't be 
eligible for individualized bond determination. This is not consistent 
with the basic tenets of due process in our Constitution.
  Creating a new category of immigrants subject to indefinite detention 
for being charged also could be harmful to the survivors of domestic 
violence. Over 20 years ago, I was introduced to a group in Chicago. 
The name of the group--and I am sorry if I don't pronounce it 
correctly, pretty close--is Mujeres Latinas en Accion. This is a group 
that came together to try to protect undocumented mothers and wives 
from domestic abuse. The reason they came together was these poor women 
were being victimized and abused in ways unthinkable and were so afraid 
to report it to police because of their undocumented status. So this 
group of women in the community came together and said: We have to 
build a shelter. These women had to get away from their abusive 
husbands who, many times, were also abusing the children. That is what 
happened. Today it is still there, and it is still needed.
  These survivors of domestic abuse, many times in desperation, would 
finally strike back at the abusive husband, and some of them were even 
subject to arrest for assault against the abusing husband. Under the 
proposal today that is being suggested by the Senator from Iowa, that 
woman, having been abused by that husband for so many years, finally 
striking back and assaulting the husband and being charged, would 
automatically be incarcerated. There wouldn't be a judge to consider 
the reality of the circumstances in her life.
  Survivors of human trafficking, sexual assault, and domestic violence 
are often at risk of arrest initially, but many times in court, the 
circumstances are explained, and a different conclusion is reached.
  In one study, nearly half of the incarcerated women in the study 
described assaults they had committed in their own defense. This bill 
has no exception for immigrants who are charged with crimes that 
resulted from their defending themselves against violence.
  Let me add, too, that this bill is not necessary. Our immigration 
laws give to ICE the authority to detain people who are deported. In 
fact, there are thousands of people detained, right now, using this 
authority.
  There is no question that our immigration system is far from perfect 
and is a broken system. We have a responsibility and we have authority 
in Congress to reform our immigration law.
  If the Senator from Iowa is interested in working on bipartisan 
immigration reform, I welcome the opportunity to ask her to join us to 
try to find pragmatic, bipartisan solutions. We had an initial meeting 
today, a bipartisan meeting of Senators, to open the conversation. But 
trying to pass this bill by unanimous consent is not the way to 
approach this very complex problem. We need to roll up our sleeves and 
say: Let's, as Senators on a bipartisan basis, do it.
  I stand ready to do so. I hope the Senator from Iowa does too. As 
tough as it may be, we need to tackle these issues and not ignore them 
as they were for the last 4 years under the previous Republican 
President.
  For those reasons, I object
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Iowa.
  Ms. ERNST. Madam President, I appreciate the comments of my 
colleague, the Senator from Illinois, but there is no doubt that we 
have a problem in the United States today. Our immigration system does 
need to be reformed, but it does need to be done in a bipartisan 
manner.
  This, when presented as an amendment on the floor of the Senate, was 
a bipartisan-supported amendment, and it deals with those who are 
charged with bodily injury of another person or of murder. That is what 
happened in Sarah's case.
  ICE is given the opportunity to detain an individual, but in this 
case, ICE chose not to, even though a young woman was murdered by a man 
operating under multiple assumed names with no familial ties in the 
area. The man was allowed to slip back into the shadows, and Sarah 
Root's family will likely never ever see justice.
  So the pendulum swings both ways. I would much rather see Edwin Mejia 
face justice than allow the family of a young murdered woman to go 
without.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.