National Archivist Rejects Bid to Certify the Equal Rights Amendment

The national archivist on Tuesday preemptively stated she could not legally certify the Equal Rights Amendment as part of the Constitution, an unusual move that effectively shut down a campaign by Democrats to pressure President Biden to add it before he leaves office.

Senator Kirsten Gillibrand, Democrat of New York, has been leading a charge to press Mr. Biden to rescue his own legacy and the E.R.A., which would explicitly guarantee sex equality. She has argued that he could do so merely by picking up the phone and instructing the archivist, who is responsible for the certification and publication of constitutional amendments, to do so, a step that would almost certainly invite a legal challenge.

Last month, 45 senators, including Chuck Schumer of New York, the majority leader, signed a letter to Mr. Biden calling on him to take action on the amendment. A group of about 100 House Democrats is also expected to send a similar letter to Mr. Biden, urging him to take action in the final days of his presidency.

But on Tuesday, the archivist, Colleen Shogan, and her deputy, William J. Bosanko, issued a statement saying that the Equal Rights Amendment “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.”

Citing court decisions at the district and circuit levels, as well as memos from the Justice Department, Dr. Shogan and Mr. Bosanko said that they “cannot legally publish the Equal Rights Amendment.” During her confirmation process, Dr. Shogan in 2022 told lawmakers that she would not add the amendment to the Constitution, saying that Congress or the federal judiciary would make that determination.

Both houses of Congress approved the amendment in 1972, but it was not ratified by the states within the seven-year time frame Congress provided to add it to the Constitution. It has since been ratified by 38 states, surpassing the required threshold, although some later tried to rescind their ratifications.