With three paragraphs in statement by the White House Friday, President Biden declared that “the 28th Amendment is now the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”

With that gesture, made almost at the last point in his Presidency, Biden may have revived a mostly moribund debate about the Equal Rights Amendment’s constitutional status, but he may not have settled that dispute in a formal way.

Here is what ERA says: “Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

For much of his time in the White House, Biden has faced repeated pleas by the never-surrender advocates of the ERA that he take official action to complete the process of ratifying that equality promise as the 28th Amendment. In fact, his Administration resisted an important test case in the courts, which ended with rulings by two lower courts that ERA had not yet been ratified. That case never went to the Supreme Court.

Then, last month, the United States Archivist – who has the official job of proclaiming when a new amendment is ratified – put out a statement that concluded: “At this time, the Equal Rights Amendment cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”

Among other reasons, that statement cited the two lower court rulings that had declared that the time limits Congress had set for ratification had run out by the time the state of Virginia, in 2020, ratified the Constitution on the understanding that it was the 38th and thus the final necessary state to do so. Biden cited Virginia’s vote in his statement Friday.

The President’s action was not labeled as a formal proclamation, an Executive Order, or an official directive to the Archivist to certify the amendment, but simply as “a statement from” the President. Given that the Constitution itself assigns no role for the President in the amendment process, what authority was there for Biden to act at all? ERA supporters have been arguing for some time that, as President, he could simply tell the Archivist to complete the process, but he appears to have chosen not to take that step.

Within hours after the Biden statement was released, two liberal law professors – Laurence H. Tribe of Harvard and former Stanford law dean Kathleen M. Sullivan – published online an analysis. They treated the President’s statement as completing the process.

Tribe, who is known to have consulted with Biden from time to time, and Sullivan wrote: “After careful consideration and consultation with constitutional experts, President Biden concluded that the ERA had met all the requirements for inclusion in the Constitution.” Their statement laid out a series of somewhat complex legal and historical statements and arguments to support their conclusion.

They sought to counter the arguments most often made by opponents of ERA who claim that it is a constitutional dead letter: (1) the two time periods that Congress enacted for states to ratify ERA had long since run out, (2) the ratification vote by Virginia came too late, (3) the total of 38 ratifying states should not count five states that had withdrawn their approval, and (4) the Archivist had taken the right position in refusing to certify ERA as a formal amendment.

Tribe and Sullivan contended that time limits set by Congress are not binding, that Virginia validly voted to ratify, that the Constitution does not allow states to withdraw ratification, and that no action by the Archivist is necessary to complete the amendment process spelled out in the Constitution’s Article V.

Further, they wrote that, once the 38th state had ratified, “nothing in Article V makes the Constitution’s binding contents depend on any further official action by any branch of the federal government, whether Congress or the Judiciary or indeed the Executive.”

The professors, however, did suggest that Biden’s action could be met by “multi-faceted litigation” over ERA’s status. That suggests that some creative lawyer will find a client willing to begin a new case to test the issue, perhaps focused on the meaning and impact of Biden’s statement.

Meanwhile, there appear to be some interest among ERA’s supporters to try to persuade Congress to start all over, proposing a new ERA. Given the close partisan divide in Congress, it seems unlikely that this idea can gain the necessary support of two-thirds majorities in both House and Senate. And there also seems a dim prospect that 38 state legislatures – three-fourths of the total – would ratify a new ERA.