60 F.4th 704
D.C. Cir.2023Background
- Congress proposed the Equal Rights Amendment (ERA) in 1972 with a seven‑year ratification deadline in the proposing resolution; by 1977 thirty‑five states had ratified.
- Congress extended the deadline to 1982; several states attempted rescissions in the 1970s; activity then resumed decades later.
- Nevada (2018), Illinois (2018) and Virginia (2020) later ratified, bringing the total to thirty‑eight states.
- The Archivist declined to certify and publish the ERA after seeking an OLC opinion (2020) concluding the ERA could not be treated as valid without reproposal; Alabama et al. sued to block certification.
- Illinois and Nevada filed a mandamus action seeking an order requiring the Archivist to certify and publish the ERA as part of the Constitution.
- The district court dismissed (lack of standing and failure to show a clear duty); the D.C. Circuit affirmed, holding plaintiffs failed to satisfy the stringent mandamus standards because the Archivist’s statutory interpretation was not clearly wrong and controlling precedent supports Congress’s power to set ratification time limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to mandamus relief under 28 U.S.C. §1361 | Archivist has a clear, ministerial duty to certify once three‑fourths of states ratify | Mandamus is extraordinary; plaintiffs must show a clear and indisputable right and duty | Denied — plaintiffs failed to meet the high mandamus standard |
| Whether Archivist must certify solely based on numeric ratifications (ignoring dates/rescissions) | Archivist must publish once 38 states have ratified; §106b is purely ministerial | §106b’s phrase “has become valid” allows Archivist to consider whether ratifications satisfy conditions (e.g., timing) | Archivist’s reading is permissible; not clearly wrong, so mandamus not warranted |
| Whether Congress may set ratification deadlines under Article V | Article V authorizes only choice of mode (legislatures vs conventions); Congress lacks authority to impose timing limits | Supreme Court precedent recognizes incidental congressional power to set reasonable time limits | Dillon and Coleman support congressional authority to set reasonable deadlines; plaintiffs’ contrary view is not clearly and indisputably correct |
| Validity of placing the seven‑year deadline in the proposing clause (vs. amendment text) | Deadline in proposing clause is invalid; only deadlines in amendment text would be effective | Congress routinely places mode specification in the proposing clause; placing a deadline there is consistent with Congress’s Article V authority | Not clearly and indisputably invalid; plaintiffs failed to show such a defect for mandamus relief |
Key Cases Cited
- Dillon v. Gloss, 256 U.S. 368 (1921) (upholds Congress’s power to set a reasonable ratification time limit)
- Coleman v. Miller, 307 U.S. 433 (1939) (treats questions about reasonable ratification time as within congressional/political province)
- United States ex rel. Widenmann v. Colby, 265 F. 998 (D.C. Cir. 1920) (Secretary’s certification role characterized as ministerial, but did not involve ratification deadlines)
- In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) (describes mandamus as extraordinary and sets stringent standards)
- Reichelderfer v. Johnson, 72 F.2d 552 (D.C. Cir. 1934) (mandamus will not lie where officer’s statutory construction is a possible, honest difference of opinion)