Kirsten Gillibrand tries to compel recognition of ERA ratification

Kevin Drum covers this. At one time I thought this was a compelling legal argument based upon Kate Kelly's podcast that I did some independent research. It's not. She overstated or misstated the state of existing law based upon historical decisions. As much as I wish this were the case, it's not.

Most legal scholars think a current Congressional resolution would cure all the timing defects and cause the Amendment to be legally ratified.

That said, I agree with Drum that it's a stronger legal argument than about 80% of what the CT and the Six put out as an SC opinion these days

But can it work? Gillibrand plans to introduce a joint resolution that codifies her theory, but Republicans will never support it. Ms. Gillibrand conceded that she did not think Republicans would ever support the amendment, “largely because the pro-life movement has co-opted this argument,” she said. She said her hope was to compel Mr. Biden to call on the archivist to take action, or to change the filibuster rules in the Senate so that civil rights measures like the amendment would need only a simple majority — not 60 votes — to move forward.

This is doomed. Biden won't act unilaterally; the Senate won't pass an enabling resolution; and no court would back Gillibrand's plan.

“This is a political rather than a legal struggle,” said Laurence Tribe, the constitutional scholar and professor emeritus at Harvard Law School. “It would succeed only in a different environment than we have. It’s not going to pass. The real question is what political message is being sent. In a political environment like this, you throw at the wall whatever you can.”

If Gillibrand were a Republican making a weird new legal argument for something like, say, overturning the 25th Amendment as a Deep State coup, there's a tolerable chance the Supreme Court would stroke its collective chin, make up some shiny new doctrine, and rule in favor. But a Democrat with a weird new legal theory for a liberal cause? Fuhgeddaboudit.

Is the ERA already the law of the land? - Kevin Drum