Who is the U.S. Archivist and why does he matter to the ERA?

Who is the U.S. Archivist and what does he do?

David S. Ferriero is the 10th Archivist of the United States, confirmed to the position in November of 2009. According to the National Archives and Records Administration (NARA) website, Ferriero committed the National Archives and Records Administration to the principles of Open Government—transparency, participation, and collaboration. 

The U.S. Archivist, oversees the administration of the preservation of the records of the U.S. Government and makes them available to the public. This includes documents like the original Declaration of Independence, Constitution, and Bill of Rights.

Ferriero, as the U.S. Archivist, is  responsible for publishing new amendments and ensuring that they have fulfilled the requirements set forth in Article V of the Constitution. For the ERA, these requirements are: passage by Congress (that happened in 1972) and ratification by 38 states (completed in 2020) The ERA has been blocked because of  a 10 year time limit, inserted in the introduction, not the amendment itself.

Why has Ferriero not yet published the Equal Rights Amendment to the Constitution?

In January of 2020, in anticipation of the ratification of the ERA by the Commonwealth of Virginia as the 38th state, Attorney General Bill Barr issued a memo through the Office of Legal Counsel (OLC) that told the Archivist that the ERA was no longer valid due to the expired time limit included in its introduction.

Ferriero, in his role, has stated that he will not move to publish the ERA until he is given specific guidance from the Executive Branch. President Biden has stated that he does not want to interfere in Department of Justice business, so as to preserve its autonomy - a position the previous Administration did not follow when it crafted its politically motivated guidance for the Archivist, contradicting previous OLC memos.

What’s next?

There are several avenues that the ERA Coalition and ERA advocates are pursuing. 

The first is supporting a court case - the state Attorneys General of the last three ratifying states (Nevada, Illinois, and Virginia) in which they are  suing the Archivist to publish the amendment. Their case is currently on appeal and should be heard in the DC Court of Appeals in 2022. 

The second is to ask Congress to remove the time limit that was imposed upon the amendment in its introductory clause. The House of Representatives has introduced and passed a bipartisan resolution twice, removing this time limit. The Senate has introduced a similar bipartisan joint resolution but has yet to vote on it. We call upon  the U.S. Senate to pass SJ Res 1; to take a vote on the resolution to remove the time limit in this current session of Congress. Lead cosponsors Sen. Ben Cardin (D-MD) and Sen. Lisa Murkowski (R-AK) have been working to garner support to get this past a potential filibuster.

You can take action by asking your Senators to support the Resolution, and thanking Senators who have already expressed their support. 

The third action advocates are pursuing is to sign on to our petition to Attorney General Merrick Garland, asking him to direct his Office of Legal Counsel to withdraw the January 6, 2020 opinion memo from the Attorney General Barr Department of Justice. This is in support of a letter signed by nearly 80 ERA Coalition member organizations that was already sent to the Attorney General. With support of our partners at Daily Kos, more than 50,000 have joined us.

Photo credits: Header image - "U.S. Archives" by paigeh is licensed under CC BY-NC-SA 2.0. Photo of David Ferreiro from U.S. Archives.