Dear Reader (including those of you with varied interests),
Greetings from I-70.
I had all sorts of plans for today’s G-File, though none particularly good. When you’re basically spending all day driving, you take inspiration where you can find it. This morning, before the Fair Jessica took the wheel, we passed a whole bunch of billboards in Indiana for the Uranus Fudge Factory. I giggled. The day before, in Illinois, we passed signs for the Bong Recreation Area. More giggling.
Let’s just pretend I made all the obvious jokes about getting high and pulling things out of your ass.
Speaking of obvious jokes about such things, when I got into the co-pilot seat, I saw the news that Joe Biden “believes” that the Equal Rights Amendment is the law of the land.
Say what you will about Biden, the man can keep a secret. In his statement, Biden says that it became the 28th Amendment almost exactly five years ago when the Commonwealth of Virginia ratified it on January 27, 2020.
From that time until now, Biden has said pretty much nothing about this belief. That’s kind of a weird conviction to keep under your hat all this time.
That is, unless, like almost everybody else, he didn’t think Virginia’s ratification of the ERA was anything other than symbolic until recently. Heck, the New York Times story on Virginia’s symbolic ratification of the ERA uses the word symbolic in the subhead and the first sentence. If the Times thought there was a shot at the ratification being something other than symbolic at the time, it would have flooded the zone with “let’s make this happen” coverage. Again, if they thought this was possible, the newspaper might even have asked Joe Biden what he thought about it, given that he was running for president at the time.
Among the reasons nobody but a handful of activists even bothered claiming that Virginia’s ratification of the amendment was anything other than symbolic is that the deadline for the amendment’s ratification expired nearly two decades earlier. Again, don’t take my word for it. Here’s the NPR headline at the time, “Virginia Ratifies The Equal Rights Amendment, Decades After The Deadline.”
Now, it’s true there are lawyers, including at the American Bar Association, who argue that there was no deadline for the amendment approved by Congress in 1972 because the seven-year time-limit for ratification was only in the amendment’s preamble not the actual text. But it was put there expressly to keep the text clean if ratified. The Justice Department, including under Joe Biden, has long held that the deadline is binding.
You know who else thought that the window closed on the Equal Rights Amendment? Ruth Bader Ginsburg. Of course she wasn’t a Supreme Court Justice then, she was just one of the country’s most famous feminist lawyers and law professors. But then in 2020, as a Supreme Court justice, she explained—again—that the deadline had passed for the ERA. Sorry, she said that the allegedly extended deadline had passed, in 1982. Among the reasons she thought it was a dead letter: Several states had withdrawn their ratification. As she put it at an event co-sponsored by the American Bar Association:
I would like to start over. There is too much controversy about latecomers [like] Virginia long after the deadline passed. Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, ‘We have changed our minds’?
Pretty good point there, I think.
In response to Ginsburg’s comments, even Ian Millhiser, one of the most partisan legal analysts in the English language, lamented that the comments from “the most important feminist lawyer in American history” were “likely to be the death knell” for the ERA.
And now, I have to offer you an apology. Because I am taking Joe Biden’s opinion more seriously than he is. Indeed, I’m taking the presidency itself more seriously than he is, but let’s stay with the ERA stuff.
If you haven’t been paying attention, you need a little backstory. Sen. Kirsten Gillibrand has been pushing a dippy theory that all Biden needs to do is order the archivist of the United States to declare the ERA ratified. Here’s how Gillibrand began her December 15 New York Times op-ed:
With Republicans set to take unified control of government, Americans are facing the further degradation of reproductive freedom.
Fortunately, Mr. Biden has the power to enshrine reproductive rights in the Constitution right now. He can direct the national archivist to certify and publish the Equal Rights Amendment. This would mean that the amendment has been officially ratified and that the archivist has declared it part of the Constitution.
Now, I don’t think this is correct. But, again, who cares about my legal opinion? Fortunately someone else agrees with me: The archivist of the United States. Two days after Gillibrand’s op-ed, Colleen Shogan and Deputy Archivist William J. Bosanko released a joint statement declaring:
As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.
In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.….As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.
This was Shogan’s position during her confirmation hearings, by the way. Every voting Democrat chose to confirm her.
But I’m doing it again. Here I am, the guy who wants to make Uranus fudge and bong recreation jokes taking this so much more seriously than Joe Biden does. Because, you see, while the president has declared his “belief” that the ERA is the law of the land, he has not actually ordered the archivist to act accordingly. He’s just got this feeling like it’s the law of the land and agrees with the American Bar Association’s position, just not enough to do more than pay it lip service.
A “senior Biden administration official” told CNN that the president “is not taking executive action, but is ‘stating an opinion that it is ratified.’”
If that’s not unclear enough, the official added, “He is using his power of the presidency to make it clear that he believes – and he agrees with leading constitutional scholars and the American Bar Association – not that it should be, but it is the 28th Amendment of the Constitution.”
As the guy said when he saw the billboard that declared, “The best fudge comes from Uranus,” are you kidding me?
Now presidents do issue legal opinions, sort of. The Justice Department works for the president and derives all of its constitutional authority from the executive. And it issues opinions all the time—like the one that says the ERA’s deadline lapsed the same year Joanie Loves Chachi debuted.
But Biden is ignoring that opinion and siding with the American Bar Association, which says that the archivist doesn’t need to certify and publish the amendment and all that is required is for Virginia to ratify it—decades past the deadline. The ABA is entitled to its opinion—even if it took four years after Virginia’s symbolic ratification to express it. In other words, the president is ignoring his own Justice Department on the way out the door, to sorta declare—Michael-Scott-declaring-bankruptcy style—that he just believes it, but not strongly enough to do more than that.
Again, I don’t think the ERA becomes an amendment even if Biden tells the archivist to certify it. But the fact that he won’t instruct her to do that means … something. Perhaps he knows she’ll resign if ordered to. Maybe he’s afraid to do something that makes him seem too responsible for the consequences. Maybe he doesn’t even know exactly what he’s doing because Matlock is on. It’s virtue-signaling and base-pandering on an epic scale. It’s also utterly contemptuous of constitutional norms, particularly as the Biden administration declares it won’t enforce the TikTok ban, which was just upheld by the Supreme Court—and which Biden signed into law.
Vaporous constitutional gasbaggery, yes. Faithfully executing the law? That’s malarkey, man. We gotta pay for a presidential library.
I don’t know what happens next. Well, that’s not quite right. I know what happens next as much as Biden does: needless legal, political, and constitutional drama. Activists will take what is in effect a presidential fatwah as gospel and start filing lawsuits based upon the 28th Amendment being a thing. Opponents will say it’s not a thing. The Jen Rubin crowd will accuse the Trump administration of violating the Constitution for not recognizing the 28th Amendment. MSNBC will devote countless hours—until it’s sold—to this historic victory and its consequences. Fox will devote countless hours to Biden’s lawless gambit and the hypocrisy of liberals who claim to be in favor of constitutional norms. And they’ll have a point.
And the Supreme Court, which Biden and this crowd have worked assiduously to discredit, will be left with a huge burning bag of Uranus’ finest to deal with.
Various & Sundry
Canine Update: It’s hard to know whether the beasts are sad to leave Wisconsin or if they’re just sad to be back in the van. Either way, they’re a bit pouty. This morning after an excellent walk along the perimeter of the Iron Works hotel in Indiana, I rode the elevator up with another hotel guest who’d been getting an early morning smoke. I had Zoe on a leash but not Pip who is better behaved off-leash than on. The man in the elevator said hi to the dogs and we got off on the same floor. As I walked down the hall, the guy asked, “So is this dog just the mascot of the hotel?” I turned around and saw that Pippa was just walking with him. And was expecting to go into his room. I had to explain to the man that Pippa loves everybody, and I had to explain to Pippa she needed to say goodbye to her new friend. Zoë definitely liked Door County more than Pippa. She has better fur for it, and she likes investigating and chasing critters more than Pip. But they both really liked it there. I think they will be very excited to be home, though. My daughter has been home with Gracie for a couple days, and reports from home are that Gracie feels she is short-staffed.
The Dispawtch
Owner’s Name: Charles Holmes
Why I’m a Dispatch Member: I don’t have a specific reason other than … I enjoy reading The Dispatch.
Pet’s Name: Coco
Pet’s Breed: Mix, but mainly an Australian Shepherd
Pet’s Age: 14
Gotcha Story: Coco is a true rescue dog. At my better half’s work, someone found a litter of puppies from a stray that had been hanging around. An email was sent out asking if anyone wanted a puppy. By the time my wife replied, they were all gone. The next day, one puppy showed up by itself, she heard about it, and went right away to claim it. She made an appointment at a vet that afternoon, and the puppy now named Coco, fortunately for us, was in great shape and has been a part of the family ever since. She was found 14 years ago this month.
Pet’s Likes: Coco loves treats, walks, smelling what every other dog is up to, squirrels, and causing grief for the one family member who is not the biggest dog lover.
Pet’s Dislikes: Coco struggles with some computer beeps and dings and is very particular about what other dogs she tolerates.
Pet’s Proudest Moment: Coco came inches from actually catching a squirrel. I am not sure what she would have done, yet she almost got one after numerous attempts. She still makes half-hearted attempts even as she has slowed down.
Moment Someone (Wrongly) Said Pet Was a Bad Dog: Coco has been blessed. She pretty much behaves herself in public.
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