[Congressional Record Volume 169, Number 48 (Wednesday, March 15, 2023)]
[Senate]
[Pages S803-S804]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 SENATE RESOLUTION 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

  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:

                              S. Res. 107

       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

[[Page S804]]

     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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