D.C. Circuit Refuses to Order Archivist to Certify Ratification of Equal Rights Amendment

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From today’s D.C. Circuit opinion in Illinois v. Ferriero, written by Judge David Wilkins and joined by Judges Neomi Rao and Michelle Childs:

The States of Illinois and Nevada … filed this mandamus action in the district court, seeking to compel the Archivist of the United States to certify and publish the Equal Rights Amendment (“ERA”) as part of the Constitution of the United States. The States argued that the Archivist had a duty to certify and publish the ERA because it was ratified by the requisite three-fourths of the States of the Union as required by Article V of the Constitution.

Alabama, Louisiana, Nebraska, South Dakota, and Tennessee … joined the litigation as intervenor-defendants. Both Intervenors and the Archivist moved the District Court to dismiss the States’ case as a matter of law….

The District Court … ruled the States did not show that the Archivist’s failure to certify and publish the ERA caused “a concrete injury that could be remedied by ordering him to act,” and that his decision to certify and publish amendments “has no legal effect.” The District Court also ruled that Plaintiffs had not established that the Archivist had a clear duty to certify and publish the ERA or that their right to relief was clear and indisputable. The District Court did not reach Intervenors’ arguments that the ERA had expired under Article V of the Constitution and that five states had validly rescinded their ratifications. …

The grounds on which a district court may grant mandamus relief are narrow, and the demands are austere. Because we agree that the States fail to show their right to relief is “clear and indisputable,” we affirm….

The States’ first argument is that neither Article V of the Constitution nor 1 U.S.C. § 106b (the relevant statute) permits the Archivist to consider anything other than whether the requisite number of states have ratified the proposed constitutional amendment. Under this view, once the Archivist was provided notice that thirty-eight states (three-fourths of the states of the Union) had ratified the ERA, then pursuant to Article V and § 106b, the Archivist had a clear duty to certify and publish the ERA in the Statutes at Large as a part of the Constitution. In essence, the States argue that the seven-year ratification deadline in the resolution passed by Congress has no legal relevance to the Archivist’s certification and publication duties.

The problem for the States is that their interpretation is not the only permissible construction of the relevant statute. The Archivist’s certification and publication duties are set forth in § 106b as follows:

Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.

The statute expressly provides that the Archivist’s certification shall “specify[ ]” that the ERA “has become valid,” which can be reasonably interpreted to give the Archivist authority to decide whether the fact that some of the ratifications occurred after Congress’s seven-year deadline affects their validity. This is the interpretation proposed by the Archivist, and based solely on the statutory text, we cannot say that this interpretation is “clearly wrong,” and “there is [no] room for an honest difference of opinion.” …

The States’ contention that Article V prohibits the Archivist from considering the ratification dates on the official notices essentially merges with its second argument, which is that the seven-year ratification deadline is ultra vires. Recall that Article V gives Congress the power to “propose” amendments, which

shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress …

The States submit that because the text of Article V only specifies that Congress can select the “mode of ratification,” Congress has no power to place any other limitations on the states when it comes to ratification. According to the States, “mode of ratification” refers solely to the process of ratification either via a constitutional convention or a legislative vote, because those two modalities are expressly mentioned preceding the phrase “mode of ratification.” Thus, the argument goes, affixing the timing of ratification falls outside of the plain meaning of “mode of ratification” and is not authorized by Article V. The States also argue that at the time of the founding, several state constitutions included deadlines for the ratification of proposed amendments, and thus the absence of deadlines in Article V was deliberate, rendering any attempt to “rewrite” Article V to include Congressional power to set such deadlines improper.

As a matter of the plain meaning, the States’ textual interpretation is not without force. It is certainly plausible to read the word “mode” as only referring to how the amendment may be ratified and not when. The problem for the States is that the Supreme Court has also observed that Article V confers upon Congress an “incident[al] … power” to establish “matters of detail” that flows from its power to designate the “mode of ratification,” including the establishment of a reasonable time limit for ratification….

Finally, the States argue that even if Congress has the power to impose a ratification deadline, the ERA’s seven-year deadline is invalid. The States contend that Congress lacks authority to set deadlines outside of the text of the amendment, i.e., in the proposing clause of the amendment, as was done in the ERA. The States point out that Congress placed the seven-year ratification deadline in the Eighteenth Amendment as part of its text. Thus, according to the States, to the extent [an earlier Supreme Court case involving the Eighteenth Amendment] upheld Congress’s power to impose the seven-year ratification deadline, the Court’s reasoning is confined to deadlines placed in the text of the amendment, rather than in language “separate” from the text. We also find this argument to fall short of the clear and indisputable standard.

Significantly, the States cite no persuasive authority suggesting that Congress is prohibited from placing the mode of ratification—ratification either by convention or the state legislature—in the proposing clause of an amendment. At oral argument, the States conceded that Congress has placed the mode of ratification (ratification by legislature or ratification by convention) in the proposing clause of every constitutional amendment in the nation’s history, and the States further concede that Congress’s specification of this aspect of the “mode” in the proposing clause does not invalidate any of those amendments. If one aspect of the mode of ratification can be placed in the proposing clause, then why not also the ratification deadline? The States’ argument that the proposing clause is akin to the inoperative prefatory clause in a bill is unpersuasive, not just because proposed constitutional amendments are not “ordinary cases of legislation,” but also 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.

We do not find it clear and indisputable that Congress’s consistent placement of the mode of ratification in the proposing clause of every amendment since the founding had no impact on the validity of any of those amendments, while Congress’s placement of a ratification deadline in the proposing clause of the ERA (side-by-side with the mode of ratification) renders the deadline invalid (but not the mode)….

Congratulations to Deputy Assistant AG Sarah Harrington, who argued for the appellees.

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