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Thursday, November 14, 2019

Lawsuit Against the ERA

Three states recently filed a lawsuit that seeks to stop the Archivist of the United States from recognizing the ERA as part of the Constitution. This is odd because neither the Archivist (nor anyone else) thinks that the ERA is part of the Constitution.

Assuming (as expected) that Virginia ratifies the ERA sometime this year, the Archivist could in theory declare the ERA ratified under Article Five. But there is no reason to think that the Archivist will say that. It would rather astonishing (and wrongheaded) for him to do so. And in the unlikely event that he did, that action could be challenged as unlawful.

In short, the pending suit should be dismissed as unripe. And probably will be, either before Virginia ratifies or afterwards. 

Posted by Gerard Magliocca on November 14, 2019 at 08:50 PM | Permalink


One thing you can't rule out is a mere statement respecting the denial of rehearing. They're rare, but Scalia wrote one when rehearing was denied in Kennedy v. Louisiana (as did Kennedy, the author of Kennedy, explaining why rehearing was denied).

Posted by: Asher | Nov 14, 2019 11:46:59 PM

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