[00:00:01] Speaker 03:
Case number 21-1596, State of Illinois and State of Nevada at balance versus David Ferriero in his official capacity as Archivist of the United States at all.

[00:00:12] Speaker 03:
Ms.

[00:00:12] Speaker 03:
Notes for the balance, Ms.

[00:00:14] Speaker 03:
Harrington for the appellee, David Ferriero.

[00:00:21] Speaker 06:
Good morning, Ms.

[00:00:21] Speaker 06:
Notes.

[00:00:23] Speaker 04:
Good morning, Your Honor.

[00:00:25] Speaker 04:
May it please the court, my name is Jane Notes on behalf of the plaintiff

[00:00:30] Speaker 04:
The district court granted the archivist's motion to dismiss on two grounds.

[00:00:36] Speaker 04:
The court held first that the plaintiff states lack standing and second that the deadline Congress included in the proposing clause is enforceable against the states.

[00:00:48] Speaker 04:
We request reversal on both grounds and also a remand to the district court to address the remaining issues in the case in the first instance.

[00:00:58] Speaker 04:
I'll start with the standing issue.

[00:01:01] Speaker 04:
The plaintiff states exercised their sovereign prerogative and constitutionally delegated authority to ratify the amendment Congress proposed, but the archivist has refused to count their ratifications and publish and certify the amendment.

[00:01:19] Speaker 04:
The plaintiff states then brought suit to ensure that their ratifications are given their intended effect

[00:01:27] Speaker 04:
And just like in Coleman, their claim that a government official is improperly overriding their ratification votes and holding them for not presents a legally cognizable injury.

[00:01:41] Speaker 04:
Contrary to the district court's holding, the fact that the amendment became constitutionally valid and ratification by the 38th state does not change the result of the standing analysis.

[00:01:55] Speaker 04:
As this court's decisions in Barnes and Kennedy make clear, a law's publication has meaningful practical consequences, even though the publication may not affect the law's validity.

[00:02:10] Speaker 06:
I don't understand why you said what you just said there.

[00:02:13] Speaker 06:
It doesn't affect the law's validity.

[00:02:16] Speaker 06:
You don't cite it, but right after Section 106B in Title I is Section 112, which relates to the statutes at large.

[00:02:28] Speaker 06:
And it says that the archivist shall publish the statutes at large and include in that not just

[00:02:36] Speaker 06:
bills that are enacted, but also any constitutional amendments that become effective in this.

[00:02:45] Speaker 06:
And what section 112 says is that the statutes at large shall be legal evidence of law.

[00:02:51] Speaker 06:
So, so it has a legal effect.

[00:02:55] Speaker 06:
If something is in the statutes at large, it's binding on the court that that is the law.

[00:03:01] Speaker 06:
So I don't understand why

[00:03:03] Speaker 06:
you didn't cite that and why you're not making that specific part.

[00:03:08] Speaker 04:
Well, yes, your honor.

[00:03:09] Speaker 04:
We certainly agree with your analysis and your view about section 112.

[00:03:18] Speaker 04:
That is one of the practical consequences that will result from publication and certification.

[00:03:25] Speaker 04:
As your honor noted,

[00:03:27] Speaker 04:
When the amendment is published and certified, it will be added to the official version of the Constitution, as well as the statutes at large, which means that it will be admissible in court as evidence.

[00:03:42] Speaker 04:
And what that means is that people will be more likely to take advantage of the right that our states have sought to secure for them.

[00:03:52] Speaker 04:
And in addition, that other states and the federal government

[00:03:56] Speaker 04:
that may not have brought their laws into compliance with the amendment will be encouraged to do so.

[00:04:03] Speaker 05:
Ms.

[00:04:04] Speaker 05:
Nitznotz, can you say a little bit more about what the precise injury is here?

[00:04:09] Speaker 05:
Because it seems that all parties agree that if 38 states properly ratify the amendment, then it is part of the Constitution, irrespective of what the archivist does.

[00:04:21] Speaker 05:
And so that is just an operation of the constitution and the constitutional amendment process.

[00:04:27] Speaker 05:
So if that's the case, what is the, it seems to me that the injury the states have, if they have an injury, probably arises under section 106B.

[00:04:37] Speaker 05:
Or let's assume that that's the case.

[00:04:41] Speaker 05:
What is the injury to the states from a failure to effectuate 106B?

[00:04:47] Speaker 05:
If the amendment has legal effect, whether or not the archivist takes the action.

[00:04:52] Speaker 04:
That's your honor.

[00:04:53] Speaker 04:
And we do agree that the amendment is constitutionally valid because it was ratified by the 38th state, but publication and certification will have important practical conference consequences as I was discussing in response to Judge Wilkins's question.

[00:05:10] Speaker 04:
What's the legal consequence?

[00:05:12] Speaker 05:
Because the harm that you're claiming is a legal harm.

[00:05:15] Speaker 05:
So what is the legal consequence?

[00:05:17] Speaker 05:
Of course, there are practical consequences of recognition.

[00:05:19] Speaker 05:
Is there a legal consequence?

[00:05:22] Speaker 05:
of the archivist's recognition?

[00:05:24] Speaker 04:
Well, certainly, as Judge Wilkins indicated, one consequence is that the amendment will become admissible in court once it is added to the statutes at large.

[00:05:35] Speaker 04:
But insofar as the states are concerned, the injury to us is that our ratifications are not being given their intended effect.

[00:05:46] Speaker 05:
But you already said that you think the amendment is effective.

[00:05:51] Speaker 05:
So what is the effect?

[00:05:53] Speaker 05:
What precisely is the effect that's the injury?

[00:05:55] Speaker 05:
Because your position is that the amendment, the ERA, is already in effect because it has the requisite ratification.

[00:06:03] Speaker 05:
So if that's your position about the ERA, then what is the harm from the lack of publication?

[00:06:09] Speaker 04:
The harm from the lack of publication is the fact that our states ratified the amendment in anticipation that it would be recognized as legitimate.

[00:06:19] Speaker 04:
And due to the archivist

[00:06:21] Speaker 04:
In action, our purpose in ratifying the amendment is not being served.

[00:06:27] Speaker 04:
As I noted... So the purpose of ratification was to get publication of the ERA?

[00:06:33] Speaker 04:
The purpose of ratification was so that people would take advantage of the new right that we had sought to secure for them.

[00:06:42] Speaker 04:
And in addition, that the federal government and the states who may not have brought their laws into compliance with the amendment would do so.

[00:06:51] Speaker 04:
And I would point your honor again to this court's decisions in Barnes and Kennedy, wherein the court recognized that publication of a new law has practical consequences sufficient to confer standing, even if publication doesn't impact the law's validity.

[00:07:09] Speaker 05:
Do you think a private citizen could sue to enforce section 106B or only the states?

[00:07:18] Speaker 04:
No, I think certainly if a private citizen had been injured by non-recognition of the citizens' rights under the amendment, they could sue.

[00:07:28] Speaker 04:
But their injury is different than ours.

[00:07:31] Speaker 04:
Our injury is the non-recognition of our ratifications, which is exactly the same injury that the Supreme Court recognized in Coleman when it found that the plaintiffs there had standing to vindicate their ratification votes.

[00:07:50] Speaker 06:
Speaking of Coleman, and Coleman described Dylan as holding that Congress has the authority to set a ratification deadline.

[00:08:05] Speaker 06:
Why isn't that the end of the case?

[00:08:08] Speaker 04:
Thank you, Your Honor.

[00:08:08] Speaker 04:
I appreciate you moving me off of standing onto the deadline issue.

[00:08:13] Speaker 04:
So the reason why that's not the end of the case is to be sure I recognize that

[00:08:18] Speaker 04:
Colman sort of paraphrased Dylan's language.

[00:08:22] Speaker 06:
It said we held.

[00:08:26] Speaker 04:
Yes, Your Honor, but right around the same time as the Supreme Court decided Colman, it also decided Sprague and then Sprague before Colman.

[00:08:36] Speaker 06:
So Colman was the later word.

[00:08:38] Speaker 04:
It is, but I think what it shows is that the Supreme Court sort of contemporaneously recognized that the language in Dillon was dictum.

[00:08:49] Speaker 04:
It actually was dictum.

[00:08:51] Speaker 04:
It was not necessary to the resolution of the question presented.

[00:08:54] Speaker 06:
The Supreme Court said we held.

[00:08:57] Speaker 06:
That's not saying that the language in Dillon was dictum.

[00:09:02] Speaker 06:
Well, Your Honor, I... Yes.

[00:09:06] Speaker 06:
the specific issue of Congress's ability or power or authority to set a deadline.

[00:09:14] Speaker ?:
Yeah.

[00:09:15] Speaker 04:
Our position is that that was in our full on the court's heart.

[00:09:18] Speaker 04:
But even if, you know, Coleman did sort of make Dylan's dictum somehow a holding, even though it wasn't necessary to the resolution of any question presented there, Dylan and Coleman are distinguishable from this case because in Dylan and Coleman,

[00:09:35] Speaker 04:
They did not concern a deadline that was set in a proposing clause.

[00:09:40] Speaker 04:
And there are meaningful differences between deadlines set in proposing clauses and deadlines that are set in the text of the amendment.

[00:09:49] Speaker 04:
And I see, I'm into my little bottle, but I would like to make just a few quick points explaining why that is so.

[00:09:57] Speaker 06:
Please proceed.

[00:09:58] Speaker 04:
Sure.

[00:09:59] Speaker 04:
So at the outset, limiting Congress's ability to set deadlines to deadlines in text better respects the plain language of Article 5 and the co-equal role that it assigned to Congress and the states.

[00:10:15] Speaker 04:
It leaves Congress free to propose amendments without interfering with the state's ability to ratify amendments.

[00:10:23] Speaker 04:
Second, a contrary rule would leave

[00:10:26] Speaker 04:
Congress agreed to impose all manner of limits on state ratification processes and thereby undermine the ability of states to control their own ratifications.

[00:10:39] Speaker 04:
For example, Congress could use a proposing clause to decide that ratifications by state legislatures require a supermajority where some or maybe even all of the states themselves had decided only a simple majority was required.

[00:10:56] Speaker 04:
And then finally, to the extent that past congressional practice is relevant, deadlines and proposing clauses are a new and short-lived innovation.

[00:11:05] Speaker 04:
Congress began putting deadlines and proposing clauses in only 1960.

[00:11:10] Speaker 04:
It did so for only 12 years over only five proposals.

[00:11:16] Speaker 04:
The practice was controversial among certain members of Congress at the time,

[00:11:21] Speaker 04:
And since then, Congress has returned to putting the deadline in text.

[00:11:26] Speaker 04:
So for all these reasons, our position is that the deadline that Congress included in the proposing clause is unenforceable against the states, and the district court's holding to the contrary should be reversed.

[00:11:39] Speaker 06:
But you're not arguing that it's unconstitutional for Congress to place a deadline in a resolution

[00:11:52] Speaker 06:
of a proposed constitutional amendment, right?

[00:11:55] Speaker 04:
If I could just clarify, in the text of the proposal, as opposed to the proposing clause or in the proposing clause?

[00:12:03] Speaker 06:
Well, either.

[00:12:05] Speaker 04:
Yes, Your Honor.

[00:12:06] Speaker 06:
You're saying that you argued that it's unconstitutional for it to be in the... In the proposing clause, yes.

[00:12:13] Speaker 06:
In the proposal clause.

[00:12:14] Speaker 04:
Yes, and therefore unenforceable against the states.

[00:12:18] Speaker 06:
And the reason that it's unconstitutional if it's there but not in the text is what?

[00:12:26] Speaker 04:
Because the plain language of Article 5 and the drafting history show that the framers intended that the states and Congress would be co-equal participants.

[00:12:38] Speaker 04:
There would be no sort of third step whereby Congress could overrule or veto state ratifications.

[00:12:46] Speaker 04:
The framers intended that Congress be free to propose amendments, but without interfering with the state's ability to ratify amendments.

[00:12:55] Speaker 06:
But hasn't the Congress in every constitutional amendment that's been proposed put into proposing clause the mode, i.e.

[00:13:05] Speaker 06:
by ratification of the legislature or calling the state constitutional convention

[00:13:13] Speaker 06:
That's been in the proposing clause of every single amendment.

[00:13:17] Speaker 06:
How is that constitutional but not a deadline?

[00:13:22] Speaker 04:
Your Honor is correct.

[00:13:24] Speaker 04:
And putting the mold in the proposing clause is quite different from putting a deadline in the proposing clause.

[00:13:32] Speaker 04:
And that is so for three reasons.

[00:13:35] Speaker 04:
And the first is because Your Honor's question assumes that Dillon's dictum

[00:13:40] Speaker 04:
is persuasive.

[00:13:42] Speaker 04:
Dylan said that Congress can set a deadline incident to its power to designate the mode of ratification, but that that language simply isn't persuasive, but particularly consistent with modern methods of constitutional interpretation because it employs an unorthodox and overly expansive meaning or definition of mode.

[00:14:07] Speaker 04:
The ordinary dictionary definition of mode is the form or the way of doing something.

[00:14:14] Speaker 04:
And controlling when something occurs is completely different from controlling how it occurs.

[00:14:21] Speaker 04:
And then the second point I would make is to the extent that... Do you have any... I mean, I'm not sure.

[00:14:29] Speaker 05:
I mean, what is your support for the idea that a timeframe is not part of the mode of something?

[00:14:35] Speaker 05:
you know, that you may ratify something, but within a time period, why isn't that part of the mode?

[00:14:40] Speaker 04:
Um, because I, I, I, again, I, I look at the, at the ordinary dictionary definition, which is how we interpret the constitution at present.

[00:14:48] Speaker 04:
And what that definition shows is that the mode is the form or the way of doing something.

[00:14:54] Speaker 04:
And, um, I don't understand, um, controlling when something occurs to be, um,

[00:15:01] Speaker 04:
part and parcel of controlling how it occurs.

[00:15:04] Speaker 06:
I mean, it would seem that the text of article five supports your argument as well because it says as one or the other mode of ratification.

[00:15:13] Speaker 06:
So the text itself seems to be saying, and when we talked about mode, we're talking about one, one thing or another thing, but not, but not a third or fourth or fifth thing.

[00:15:26] Speaker 06:
The problem that I have though is that,

[00:15:29] Speaker 06:
Even if I think that your argument has some force, in order for us to grant mandamus, it has to be clear and indisputable.

[00:15:39] Speaker 06:
And even if we think that maybe Coleman's language was a little loose, the court said we held.

[00:15:52] Speaker 06:
And how are we to find that this issue is clear and indisputable, given that

[00:16:00] Speaker 06:
and given how the Supreme Court dismissed the Idaho case on muteness grounds at the suggestion of the Solicitor General.

[00:16:12] Speaker 06:
How do we get to clear an indisputable kind of given those things in particular?

[00:16:23] Speaker 04:
Yes, Your Honor.

[00:16:23] Speaker 04:
We do recognize that deciding whether the deadline is enforceable may require interpretation of Article 5.

[00:16:34] Speaker 04:
But this court has never held that mandamus can't lie simply because of the presence of an interpretive question, even a question of first impression under circumstances where the controlling statute creates a mandatory duty.

[00:16:51] Speaker 04:
And section 106B creates a mandatory duty.

[00:16:56] Speaker 04:
It uses mandatory terms, shall, and whenever.

[00:16:59] Speaker 04:
And this court held in Colby that it creates a purely ministerial duty.

[00:17:09] Speaker 04:
Now, I know that the archivist argues otherwise, but she is relying on cases wherein the statute at issue was ambiguous with respect to the government official's duty.

[00:17:22] Speaker 04:
And in those cases, this board explained the statute necessarily conferred a measure of discretion on the government official.

[00:17:31] Speaker 04:
But that is not the case here.

[00:17:33] Speaker 04:
Here again, 106-B creates a mandatory duty by its plain language.

[00:17:39] Speaker 04:
and by this court's interpretation of it in Colby.

[00:17:43] Speaker 05:
I agree that it is a kind of ministerial duty.

[00:17:49] Speaker 05:
If the amendment has been adopted, if the official notices are in, then the archivist must publish.

[00:17:57] Speaker 05:
However, the fact that it's ministerial, I think, doesn't mean that there's no role for the archivist.

[00:18:02] Speaker 05:
I mean, there are multiple official notices that come to the archivist from 38 states, also from Congress, when it proposes the amendment.

[00:18:11] Speaker 05:
So there are 39 official notices in effect that go to the archivist.

[00:18:16] Speaker 05:
So the archivist has, it seems to me, at least at a minimum to count the notices, right?

[00:18:22] Speaker 05:
To note that the, you know, the notices have come.

[00:18:25] Speaker 05:
And I'm wondering as part of that,

[00:18:27] Speaker 05:
Why can't the archivist make sure that the 38 notices that come from the states match what has been proposed by Congress, which includes, for instance, the date of ratification?

[00:18:40] Speaker 05:
So Congress proposes this amendment and these notices come in.

[00:18:44] Speaker 05:
If the notices don't come in in the timeframe, you know, why can't the archivist say these things are not compliant?

[00:18:52] Speaker 05:
So there's no official notice in effect.

[00:18:55] Speaker 04:
Yeah, I certainly agree that the archivist can confirm that the states have ratified the amendment that Congress actually closed.

[00:19:07] Speaker 04:
The difference here, though, is that the deadline is in the proposing clause.

[00:19:11] Speaker 04:
It wasn't in the text of the amendment.

[00:19:13] Speaker 04:
And so that goes back to our position that the deadline is unconstitutional because it appears in the proposing clause.

[00:19:21] Speaker 05:
So if the date were in the amendment text, then you think the archivist could ensure that the official notices came within that time?

[00:19:32] Speaker 04:
I think that that would be a much closer question.

[00:19:34] Speaker 04:
Why would that be a close question?

[00:19:37] Speaker 04:
That would be a close question because I do think that there is a legitimate question whether it is constitutional to place a deadline in text.

[00:19:48] Speaker 04:
But the court doesn't need to decide that in this case because this concerns a deadline in the proposing clause.

[00:19:55] Speaker 04:
And so the archivist, which I do think is part of his role, or her role, I'm sorry, to confirm that the proposal matches, the proposed amendment matches what the states ratify.

[00:20:12] Speaker 04:
If it were constitutional to include a deadline in text, yes, that would be part of that role.

[00:20:17] Speaker 05:
So if we were to agree with your position about this, that the date being in the

[00:20:22] Speaker 05:
the proposing language is not effective as to the timing of the state ratification, then would we also then it seems we would have to reach the question of whether a state can rescind its notice, wouldn't we?

[00:20:37] Speaker 04:
So our position with to that is, is that something most appropriate for the district court to resolve in the first instance with the input from the archivist because she has not yet provided her.

[00:20:49] Speaker 04:
That's a purely legal question.

[00:20:51] Speaker 04:
Certainly.

[00:20:51] Speaker 04:
Yes.

[00:20:52] Speaker 04:
I mean, the court, if the court wants to, it can reach the decision issue.

[00:20:57] Speaker 04:
And our position there would be that states cannot rescind that their ratifications.

[00:21:02] Speaker 05:
So we have to reach that issue though, to determine whether there's a clear duty.

[00:21:07] Speaker 05:
or the archivist?

[00:21:10] Speaker 04:
Our position is that you do not, but certainly the court would.

[00:21:14] Speaker 04:
We're not arguing that the court necessarily has to direct the archivist to publish and certify without reaching both the deadline and the rescission issues.

[00:21:25] Speaker 04:
Our position with respect to rescission is that simply that should be something that the district court should decide in the first instance on remand with the input from the archivist.

[00:21:35] Speaker 04:
If the court were inclined to reach the issue, our position is that rescission is not contemplated by the plain language of Article 5.

[00:21:44] Speaker 04:
It refers to ratification, not rescission.

[00:21:47] Speaker 04:
Recission is the opposite of ratification.

[00:21:50] Speaker 04:
It also would be inconsistent with the drafting history, which shows that the framers intended ratifications to be irrevocable, that there wouldn't be conditional ratifications.

[00:22:02] Speaker 04:
And then finally, it would call into question the 14th and the 15th amendments.

[00:22:07] Speaker 01:
I have a little concern about going into those decisions.

[00:22:15] Speaker 01:
You all were very specific about the issues that you presented before the court, one being standing, one being whether essentially the archivist has a ministerial duty to publish and certify, notwithstanding the time period.

[00:22:31] Speaker 01:
So it sounded to me in your briefing that you only wanted us to reach whether or not there was that ministerial duty and that you are suggesting that there's almost a step two that go with duty and certification and then anything that applies to these time periods is kind of another question that you don't believe the archivist is supposed to resolve.

[00:22:55] Speaker 01:
that you believe that it's supposed to be just, we received it, it went through constitutional convention, it was three quarters ratifying, and then that's it.

[00:23:04] Speaker 01:
And so we're also having discussion now about these time periods, but I'm not sure that it just sounds like you crafted your question very narrowly.

[00:23:13] Speaker 04:
Thank you, Your Honor.

[00:23:15] Speaker 04:
With respect to deadline, and I hope this answers your question, we presented two alternative arguments.

[00:23:22] Speaker 04:
The first argument was that the archivist has no ability to decide as an unelected member of the executive branch with no role in the ratification process that our ratifications basically didn't count because they were reached after the deadline.

[00:23:39] Speaker 04:
The court certainly could decide our disappeal on that argument.

[00:23:47] Speaker 04:
But we also believe that the question of whether the deadline is enforceable is squarely before this court.

[00:23:53] Speaker 04:
And so if the court wanted to avoid dealing with that question in the future, it could decide on that basis.

[00:24:00] Speaker 04:
What we think the court can't do, though, is we think that the court can't decline to decide whether the deadline is enforceable, also find that we have standing

[00:24:12] Speaker 04:
But nevertheless, from the decision below, because we do think that the archivist has a ministerial duty.

[00:24:20] Speaker 04:
And there's nothing in that duty that allows her to resolve his legal questions at first.

[00:24:26] Speaker 06:
I would like to let me ask you a question.

[00:24:30] Speaker 06:
Let's suppose Virginia's.

[00:24:33] Speaker 06:
resolution approving the amendment changed the language and said that equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.

[00:24:51] Speaker 06:
And then they added accept and they put some some brown there except

[00:24:59] Speaker 06:
or sincerely held religious belief or accept under extraordinarily compelling circumstance.

[00:25:07] Speaker 06:
So let's suppose that was the language that the Virginia legislature approved by the requisite number according to their state constitution laws.

[00:25:18] Speaker 06:
And the archivists received that, and we didn't have any timeliness issues.

[00:25:24] Speaker 06:
They received that official notice from

[00:25:30] Speaker 06:
Virginia, what's the archivist?

[00:25:33] Speaker 04:
So we do agree that the archivist, as part of his duties or her duties under Section 106B, can confirm that the amendment that the states ratified is substantively the same amendment as the amendment Congress proposed.

[00:25:52] Speaker 04:
It sounds like what you're describing would be a substantive change in the amendment,

[00:25:57] Speaker 04:
And so the archivist would be able to decline to recognize the ratification on that basis.

[00:26:03] Speaker 04:
If it was sort of technical irregularities, in those circumstances, the archivist could make the decision to accept the ratification.

[00:26:14] Speaker 04:
And there's case law to that effect.

[00:26:15] Speaker 04:
I think the archivist cites it in her brief.

[00:26:18] Speaker 06:
So it's ministerial, but it's only ministerial

[00:26:25] Speaker 06:
once the judgment has been made that all of the official notice is is you know there's no there's no in my hypothetical there's no dispute that the notice that they received was official that it was an official notice from a state archivist

[00:26:54] Speaker 06:
there had to still nonetheless make a judgment as to whether or not this official notice conformed with the proposed amendment that Congress approved, right?

[00:27:10] Speaker 06:
So how is that different than assessing whether Congress's intent that there be a deadline has been complied with?

[00:27:24] Speaker 04:
I see that as different because Section 106B basically gives, in our view, the archivist three tasks and you describe them to confirm that the notices are official notices, to confirm that the proposal that was ratified is actually what Congress proposed, and to confirm that the mode among the two available that Congress designated was used.

[00:27:49] Speaker 04:
You know, basically to confirm that the

[00:27:53] Speaker 04:
requirements expressed on the face of Article 5 are satisfied.

[00:27:57] Speaker 04:
I do agree, though, that this is just our first argument.

[00:28:02] Speaker 04:
Our second argument is that the district court erred in concluding that the deadline is enforceable.

[00:28:10] Speaker 04:
That question is squarely before this court.

[00:28:13] Speaker 04:
It is fully briefed by all the parties.

[00:28:15] Speaker 04:
In the district court, the archivist took the position that's a political question.

[00:28:19] Speaker 04:
That's not the case anymore.

[00:28:21] Speaker 04:
We certainly agree that this court can skip over our first argument as to deadline and then decide the merits question.

[00:28:29] Speaker 04:
And if the court were to do so, what that would mean is that the court's ruling would make clear, assuming the court agrees with us, that the archivist has no discretion to discard our state ratifications merely because they were reached after the deadline expired.

[00:28:48] Speaker 06:
Well, in Idaho v. Freeman, and then it had a different name when it got to the Supreme Court, the defendant there was the administrator of the GSA, who is in the same position statutorily as the archivist is now.

[00:29:06] Speaker 06:
And the Solicitor General in there, in the suggestion of movement, said,

[00:29:13] Speaker 06:
that the administrator does not intend to recognize, essentially says that the administrator does not intend to ever publish and certify the Equal Rights Amendment because the deadline has passed.

[00:29:43] Speaker 06:
and because the time has lapsed, this case is moot.

[00:29:49] Speaker 06:
So they said those two things.

[00:29:52] Speaker 06:
One, the administrator, what the administrator doesn't intend to do because the administrator has made a judgment about the deadline.

[00:30:02] Speaker 06:
And then the kind of second thing, the declarative statement that this deadline has lapsed, so this issue is moot forever, we don't need to

[00:30:13] Speaker 06:
of Idaho's ratification because it can never lead to, it can never be in dispute about whether the Equal Rights Amendment is going to be ratified because it can't at this point.

[00:30:34] Speaker 06:
Those were the grounds that the Supreme Court cited in its order, dismissing the case as moot.

[00:30:42] Speaker 06:
It had heard briefing on ripeness and other grounds, but it didn't choose those grounds.

[00:30:48] Speaker 06:
It choose those mootness grounds.

[00:30:51] Speaker 06:
How are we to get around that?

[00:30:54] Speaker 04:
So thank you for the question, Your Honor, because I know you referenced the Freeman case earlier.

[00:30:58] Speaker 04:
So I appreciate the opportunity to address it.

[00:31:01] Speaker 04:
So I don't think there's any dispute that the, uh, Supreme court summary dismissal in Freeman is not presidential.

[00:31:10] Speaker 04:
Really?

[00:31:10] Speaker 04:
The debate is about what persuades it.

[00:31:15] Speaker 04:
Um, because there's case law holding that a summary dismissal does not have precedential value.

[00:31:22] Speaker 06:
Um, summary dismissal of a cert petition, but, um,

[00:31:30] Speaker 06:
that precedent doesn't apply to an order dismissing case to moot.

[00:31:39] Speaker 04:
Your honor, I think it does.

[00:31:41] Speaker 04:
And I don't have the case name at my fingertips, but I can certainly have it in time for rebuttal.

[00:31:48] Speaker 04:
There is a Supreme Court decision indicating that the summary dismissal on mootness grounds

[00:31:54] Speaker 04:
is not presidential, and I will have that for you on rebuttal.

[00:31:58] Speaker 04:
But if you'll, I guess, take my word for that for the moment, the question is how much persuasive value does this summary dismissal have?

[00:32:09] Speaker 04:
And our view is that it has little to none, and that is so for two reasons.

[00:32:14] Speaker 04:
The first reason is that the question presented here relating to the enforceability of the original deadline

[00:32:21] Speaker 04:
was not before the Supreme Court in the Freeman case.

[00:32:25] Speaker 04:
That case was about the enforceability of the extension, which occurred under different circumstances.

[00:32:31] Speaker 04:
And then the second reason is because the summary dismissal was entirely unreasoned.

[00:32:38] Speaker 04:
We don't know why the Supreme Court thought it was moot.

[00:32:42] Speaker 04:
And I don't think that we can rely on speculation about why the Supreme Court thought the case was moot

[00:32:49] Speaker 04:
to assume that the court has adopted an interpretation of Article 5 that would be inconsistent with the language and the history of Article 5, and would also essentially open the door to Congress to put into the proposing clause of a proposed amendment all manner of limits on state ratifications.

[00:33:11] Speaker 06:
One of the arguments that Idaho made

[00:33:16] Speaker 06:
in the district court, and I can't remember if the district court explicitly agreed with it, because I think that the district court held that the rescission was valid.

[00:33:33] Speaker 06:
But one of the arguments that was made was that when we, Idaho, approved the VRA, we approved it,

[00:33:46] Speaker 06:
have been grafted into our approval.

[00:33:49] Speaker 06:
So our approval lapsed after the seven years was up.

[00:33:56] Speaker 06:
And so even if our rescission isn't valid, then our approval has now lapsed and can't be used and can't be counted.

[00:34:06] Speaker 06:
And we're asking for a court order directing the administrator to never count ours because the time period has

[00:34:16] Speaker 06:
So that issue was also before the Supreme Court, was it not?

[00:34:27] Speaker 04:
You know, I have not been able to find either in the record in this case or sort of in the public domain, a copy of the National Organization of Women's Cert Petition.

[00:34:38] Speaker 04:
So I don't, it's possible that that issue was among the questions presented.

[00:34:44] Speaker 04:
I don't actually,

[00:34:45] Speaker 04:
No, for sure.

[00:34:47] Speaker 04:
And I think what Your Honor's question is getting at is discerning the Supreme Court's reasons for dismissing the case as moot in Freeman requires speculation.

[00:35:00] Speaker 04:
Given that the dismissal wasn't entirely unreasoned, again, our position would be that this court should not assume that the Supreme Court would have departed from the language and history of Article V

[00:35:14] Speaker 04:
and essentially elevated Congress's role in the ratification process to give Congress the ability to include not only deadlines and proposing clauses, but again, all manner of limits on state ratification.

[00:35:29] Speaker 06:
How is saying that a deadline is constitutional and enforceable endorsing all manner of limits or any other

[00:35:42] Speaker 04:
Well, I don't know, for example.

[00:35:44] Speaker 04:
So say Congress were to decide that state ratification should be at by a supermajority, even though the states themselves have decided on an individual state basis that it should be by a simple majority.

[00:35:56] Speaker 04:
I don't know how you would draw a distinction between that circumstance and Congress's inclusion of a deadline.

[00:36:04] Speaker 04:
I mean, arguably setting the first circumstance requiring a supermajority for ratifications

[00:36:12] Speaker 04:
is arguably more within Congress's ability to designate the mode, because as your honor pointed out, Congress expressly on Article 5 has the ability to select state ratifications as one of the two modes available to it.

[00:36:28] Speaker 06:
Let's suppose you're right.

[00:36:30] Speaker 06:
about this argument then.

[00:36:31] Speaker 06:
And doesn't it mean then that the resolution that includes a deadline is unconstitutional and therefore it doesn't appear there's no severability clause and the legislative history seems to indicate that Congress only passed it because it did have this deadline given the failures to pass by the supermajorities

[00:36:59] Speaker 06:
required previously.

[00:37:01] Speaker 06:
So, wouldn't then the result be that we invalidate the proposed amendment as opposed to just striking the deadline?

[00:37:16] Speaker 04:
No, Your Honor.

[00:37:18] Speaker 04:
So, so far as

[00:37:21] Speaker 04:
the reliance by certain members of Congress on the deadline with respect to the original proposal, even if a significant

[00:37:33] Speaker 04:
number of members of Congress that did influence their decision.

[00:37:37] Speaker 04:
And I don't think we know that from the record.

[00:37:39] Speaker 04:
What we know from the legislative record is that a small number of influential- We know that that's what they passed.

[00:37:46] Speaker 05:
So it doesn't matter what they intended.

[00:37:47] Speaker 05:
That's what they passed.

[00:37:48] Speaker 05:
Yes.

[00:37:49] Speaker 04:
So thank you very much, John.

[00:37:50] Speaker 04:
You've actually moved me on to my second point, which is perhaps the better one is that Congress not all the time, but every now and then passes laws that Congress thinks are constitutional.

[00:38:02] Speaker 04:
And courts don't hesitate to strike them down when they're unconstitutional.

[00:38:07] Speaker 04:
The deadline included in the proposing clause is no different.

[00:38:11] Speaker 04:
If Congress did not have the constitutional authority to include the deadline in the proposing clause, then it would need to be invalidated.

[00:38:21] Speaker 05:
So that seems to open.

[00:38:23] Speaker 05:
You're worried about a slippery slope about what Congress might include in a prefatory clause.

[00:38:27] Speaker 05:
But your reasoning suggests that this court can determine what

[00:38:32] Speaker 05:
Congress may propose an amendment to the Constitution.

[00:38:37] Speaker 05:
What would be the limit on that?

[00:38:39] Speaker 05:
You say dates are out, but you suggest dates may not even be permissible in the actual amendment text.

[00:38:48] Speaker 05:
So what other limits, what other judicial limits are there on what Congress can propose as an amendment to the Constitution?

[00:38:54] Speaker 05:
That seems to open up

[00:38:57] Speaker 05:
You know, that seems to take us way down a slippery slope in terms of undermining Congress's ability to propose amendments to the Constitution, which is, of course, one of the primary checks on the court innovating in the area of constitutional law.

[00:39:13] Speaker 04:
So, Your Honor, if I'm understanding your question, you're asking, are there any limits on what Congress can propose in the text of an amendment as opposed to the proposing clause?

[00:39:23] Speaker 04:
Am I understanding that correctly?

[00:39:25] Speaker 05:
Well, you're suggesting there are limits.

[00:39:27] Speaker 05:
to what Congress can put into the amendment text, as well as the proposed clause, and that those limits can be ascertained by courts.

[00:39:36] Speaker 04:
So for purposes of this case, we are not conceding that Congress can include a deadline in a text, because in this case, the deadline is in the proposing clause.

[00:39:49] Speaker 04:
I don't think for purposes of this case, the court needs to decide

[00:39:54] Speaker 04:
of what Congress can and can't put into the text of a proposed amendment.

[00:40:00] Speaker 04:
Our point is simply what Article 5 anticipates is that but for designating the mode of ratification among the two available choices on the face of Article 5, any limits that Congress wants to put on state ratifications cannot go in the proposing clause.

[00:40:21] Speaker 04:
Perhaps they can go in the text.

[00:40:22] Speaker 05:
Your whole argument really turns on that.

[00:40:24] Speaker 05:
point that there is a distinction between the text of the amendment and the preparatory language without that distinction.

[00:40:31] Speaker 04:
I disagree slightly.

[00:40:35] Speaker 04:
I think our point is that the court doesn't need to decide that the harder question.

[00:40:39] Speaker 04:
But we're not we're not conceding that a deadline could go in the text, but the court simply doesn't need to decide it because there are meaningful differences.

[00:40:49] Speaker 05:
between proposing clause and text because... And we have to agree with that position that there is a difference in order to agree with your view.

[00:41:00] Speaker 04:
I would agree with that because otherwise, I mean, we would be urging the court to find that Congress can't put a deadline in text.

[00:41:08] Speaker 04:
And, I mean, I'm happy to sort of talk about why the reasons why that may not be true, but I certainly agree that that is a closer question.

[00:41:20] Speaker 04:
So I've gone way over my time, so.

[00:41:23] Speaker 06:
Thank you.

[00:41:24] Speaker 06:
We'll give you some time on rebuttal.

[00:41:25] Speaker 04:
Thank you.

[00:41:42] Speaker 03:
Your Honor, may it please the court?

[00:41:44] Speaker 02:
I'm Sarah Herrington on behalf of the Acting Archivist Deborah Wall.

[00:41:48] Speaker 02:
I would like to start, if I could, by emphasizing what this case is not about.

[00:41:51] Speaker 02:
This case is not about the wisdom and the importance of the principles espoused in the Equal Rights Amendment.

[00:41:57] Speaker 02:
And this case is not about whether the ERA is, in fact, part of the Constitution.

[00:42:01] Speaker 02:
The Biden administration supports the principles that are espoused in the ERA, but the plaintiffs concede that nothing in this case will or could affect the legal status of the ERA.

[00:42:12] Speaker 02:
Because the plaintiffs therefore lack standing, we urge the court to affirm dismissal on that thesis.

[00:42:17] Speaker 06:
I mean, it's one thing to say that ratification is kind of self-executing.

[00:42:26] Speaker 06:
But what's not self-executing is making a constitutional amendment or even a bill that gets signed by the president after being passed by the House and the Senate, not self-executing that that bill that now becomes law.

[00:42:46] Speaker 06:
becomes a part of the canon, so to speak, the canon being expressed through the statutes at large.

[00:42:55] Speaker 06:
So why doesn't the obligation of the archivist to put a ratified constitutional amendment in the statutes at large?

[00:43:06] Speaker 06:
Why isn't that a legal effect, especially since the statutes that Section 112 says

[00:43:13] Speaker 06:
the statutes at large are conclusive evidence of what the law is.

[00:43:18] Speaker 06:
And the Supreme Court has so held.

[00:43:20] Speaker 02:
Well, section 112 says that there are evidence of what the law is.

[00:43:23] Speaker 02:
But it doesn't say that including something in the statutes at large makes it law.

[00:43:27] Speaker 02:
So you could have an unconstitutional law that is included in the statutes at large that is later shown to be unconstitutional and therefore not law.

[00:43:34] Speaker 06:
But if it's not in the statutes at large, then it doesn't count.

[00:43:42] Speaker 06:
I mean, it has to be both.

[00:43:46] Speaker 06:
I mean, if it's in the US code, then that's kind of like prima facie evidence that this is a real law.

[00:43:53] Speaker 06:
But our court and the Supreme Court said the conclusive evidence that this is actually a real law is if it's published in the statutes of law.

[00:44:03] Speaker 02:
But I don't think that means that it makes it law.

[00:44:05] Speaker 02:
The plaintiffs don't dispute that the ERA either is or isn't part of the Constitution today, and that nothing the archivist has done or could do

[00:44:13] Speaker 02:
or would affect that.

[00:44:14] Speaker 02:
And so I think the real point is that nothing flows from the proclamation that they seek or from the publishing in the statutes at large.

[00:44:22] Speaker 02:
And they haven't identified any concrete injury to the plaintiffs that would flow from the archivist's failure to issue the proclamation.

[00:44:30] Speaker 06:
If someone brought a suit today, a woman brought a suit today and said, action by state acts violates the Equal Rights Amendment,

[00:44:44] Speaker 06:
The defense would be the Equal Rights Amendment is not on the books.

[00:44:53] Speaker 06:
And so there's nothing kind of like to enforce.

[00:45:00] Speaker 06:
And the case would be dismissed on those grounds, right?

[00:45:03] Speaker 02:
I don't think so.

[00:45:04] Speaker 02:
I think the defense would be substantive.

[00:45:06] Speaker 02:
It would be their Equal Rights Amendment is not part of the Constitution, and therefore not something that a state act or whoever that defendant is

[00:45:14] Speaker 02:
has to comply with.

[00:45:15] Speaker 02:
You know, there is case law from this court and the Supreme Court saying that the archivist proclamation has no legal effect.

[00:45:21] Speaker 02:
There's no reason that publishing in the statute at large would be any different.

[00:45:25] Speaker 02:
The ratification either happened when Virginia ratified or it didn't happen, and nothing that any federal official can do will change that.

[00:45:33] Speaker 02:
I think it's important to keep in mind that Article 5 envisions no role at all for the executive branch in the ratification process.

[00:45:39] Speaker 06:
So what does Section 112 mean when it says,

[00:45:42] Speaker 06:
The United States statute at large shall be legal evidence of laws, et cetera, et cetera, and proposed or ratified amendments to the Constitution.

[00:45:52] Speaker 02:
I think it just means that it's evidence.

[00:45:53] Speaker 02:
It doesn't say definitive evidence.

[00:45:54] Speaker 02:
It doesn't say conclusive evidence.

[00:45:55] Speaker 02:
It doesn't say it has legal effect.

[00:45:57] Speaker 02:
It means that it's evidence of what the law is.

[00:46:00] Speaker 02:
But there is other, you know, there is case law from the Supreme Court in this court saying that the ratification process is a little bit different from other legislative processes in that it

[00:46:10] Speaker 02:
it is complete when the final state votes to ratify.

[00:46:13] Speaker 06:
That seems that argument seems to ignore the whole purpose of why we have section 106 B in the first place and why we had the predecessors to it, which was that in the, what is it?

[00:46:26] Speaker 06:
The titles of nobility issue where people like didn't know whether that amendment had been passed and ratified and some thought that it had, but because there were

[00:46:36] Speaker 06:
more states that have been added to the union and really didn't have the requisite supermajority and isn't part of the Constitution.

[00:46:43] Speaker 06:
And Congress said, you know, this is no way to run the railroad.

[00:46:48] Speaker 06:
We need to have somebody, you know, in charge of counting noses and then certifying and then publishing so that, you know, we'll all know what the law is.

[00:47:00] Speaker 06:
So, so.

[00:47:02] Speaker 02:
It's plainly a record keeping function.

[00:47:03] Speaker 02:
It's not a substantive determination of the validity of an

[00:47:07] Speaker 02:
You're right that the predecessor to 106B was enacted because there was confusion about when, I think the 11th Amendment was one example, when that amendment took effect because communication was obviously not as instantaneous then as it is now.

[00:47:19] Speaker 02:
And so people didn't know as no when states had voted to ratify.

[00:47:23] Speaker 02:
And so this is intended to have sort of a central record keeper.

[00:47:26] Speaker 02:
States give notice to the Secretary of State and then the Administrator of General Services and now the archivist.

[00:47:32] Speaker 02:
And the archivist sort of keeps the records.

[00:47:34] Speaker 02:
And when it is clear that an amendment has been

[00:47:37] Speaker 02:
ratified, publishes a certification or proclamation for that effect.

[00:47:41] Speaker 02:
But it's not a substantive determination.

[00:47:43] Speaker 02:
This court held that in Colby.

[00:47:44] Speaker 02:
The Supreme Court held it in Dillon.

[00:47:46] Speaker 02:
It is just a ministerial act that has no substantive application.

[00:47:52] Speaker 02:
And you pointed out that there are plenty of plaintiffs, presumably, who would have standing to tee up these fascinating and important questions about whether the ERA is in fact part of the Constitution.

[00:48:03] Speaker 02:
An individual who's been injured in a concrete way

[00:48:06] Speaker 02:
by state action that the individual thinks is not in conformity with the ERA, and sue that state actor, and seek as part of that to enforce the ERA, that will certainly, that case would certainly need to involve the determination of whether the ERA is in fact enforced.

[00:48:23] Speaker 05:
I'm interested, I mean, I think the standing question here is actually quite tricky, because it seems, I mean, all the parties agree that there's only,

[00:48:32] Speaker 05:
that the legal effect of the amendment, its actual substantive effect, you know, is irrespective of whether the archivist publishes the amendment.

[00:48:41] Speaker 05:
That seems right to me.

[00:48:43] Speaker 05:
However, we have in a number of contexts the idea that like a certification or recognition or publication means something, something more than what is purely ministerial.

[00:48:58] Speaker 05:
So for instance, like in a presidential election,

[00:49:00] Speaker 05:
If there is a concern about the count, then there is a challenge to the certification of that, right?

[00:49:06] Speaker 05:
So a person becomes president if they have, you know, the requisite number of electors, you know, doesn't really matter if it's recognized, but in order to challenge what's actually happened in the election, there is a challenge to the certification, right?

[00:49:19] Speaker 05:
And that's been recognized in a number of cases.

[00:49:22] Speaker 05:
And so it seems to me that the archivist's duty here, while not necessarily affecting whether the amendment has substantively become an amendment, it still may have some type of legal effect.

[00:49:35] Speaker 05:
And, um, and if that's true, then maybe it can give rise to an injury by the States because, because it is the sort of official way that this becomes, you know, part of the way that the federal government and the States recognize that the amendment is in place.

[00:49:51] Speaker 02:
Some think that that view of the proclamation of the certification can be spared by this court's decision in Colby or this court's decision in Dillon and other cases.

[00:49:58] Speaker 02:
But they say that the proclamation has no legal effect.

[00:50:01] Speaker 02:
And so maybe there are certifications in other contexts that might have legal effect.

[00:50:05] Speaker 02:
But in this context, I think there is binding case law saying this proclamation has no legal effect.

[00:50:10] Speaker 02:
And certainly these states have not identified any way.

[00:50:12] Speaker 05:
It has no legal effect on whether the amendment has been ratified.

[00:50:17] Speaker 05:
But it may have some other kind of legal effect, right?

[00:50:20] Speaker 05:
I mean, Congress has enacted Section 160B, you know, pursuant to its say necessary and proper power to implement Article 5, you know, in the amendment process.

[00:50:33] Speaker 05:
And because the Constitution itself provides for no mechanism of like counting the state's ratifications.

[00:50:39] Speaker 05:
And so it may have no legal effect on whether the ERA is an amendment to the Constitution, but it may still have some other type of legal effect.

[00:50:50] Speaker 02:
It's the burden on the states to identify what that effect is and how it injured them.

[00:50:54] Speaker 02:
They haven't done that.

[00:50:55] Speaker 02:
They say that it interferes with their ability to participate in the ratification process.

[00:50:58] Speaker 02:
It doesn't.

[00:50:59] Speaker 02:
They have participated in the ratification process.

[00:51:01] Speaker 02:
They stay in their complaint.

[00:51:02] Speaker 02:
They have ratified the ERA, that it is part of the Constitution.

[00:51:06] Speaker 02:
They say that it, and as everyone agrees, it doesn't actually

[00:51:09] Speaker 02:
have any effect on whether the ERA is, in fact, part of the Constitution.

[00:51:13] Speaker 02:
They point to widespread confusion, but that's a classic example of a type of injury that is not concrete and particularized.

[00:51:19] Speaker 02:
It also could not be redressed by a proclamation, because there would still remain these questions about whether the ERA is, in fact, part of the Constitution.

[00:51:26] Speaker 02:
Whether there is or isn't a proclamation or certification doesn't answer those questions.

[00:51:30] Speaker 02:
And so any sort of confusion that's out there would remain.

[00:51:33] Speaker 02:
The Supreme Court's decision in Fairchild v. Hughes, I think, is a good example of speaking to that point, where there were individuals who sued to rescind the ratification, the certification, that services seek to have rescinded the certification of the 19th Amendment.

[00:51:52] Speaker 02:
And they pointed to the possibility of confusion, among election officials.

[00:51:57] Speaker 02:
And this report said, that's just the same as an injury that any person could have in asking that their government follow the law.

[00:52:03] Speaker 02:
That's not sufficient to confer standing to seek to have certification rescinded.

[00:52:08] Speaker 02:
There's no reason it would be any different in this instance.

[00:52:11] Speaker 05:
Let me ask you another question about the jurisdictional question.

[00:52:13] Speaker 05:
So the Supreme Court has said that there is no hierarchy of threshold jurisdictional issues.

[00:52:20] Speaker 05:
And we have jurisdictional issues we can decide.

[00:52:21] Speaker 05:
Like here, we could decide standing or mandamus

[00:52:24] Speaker 05:
either order.

[00:52:25] Speaker 05:
I guess I'm wondering if that absence of a hierarchy holds true also where one of the jurisdictional grounds is mandamus because mandamus that you know the jurisdictional question of the mandamus act merges with the merits.

[00:52:41] Speaker 05:
And so I'm wondering

[00:52:42] Speaker 05:
I was not able to find any cases that specifically spoke to that question.

[00:52:47] Speaker 05:
So like in a context where one jurisdictional grounds merges with the merits, do we have to address standing before we reach the mandamus act?

[00:52:55] Speaker 05:
Or do you have a view about that question?

[00:52:58] Speaker 02:
I'm also not aware of any precedent that would answer that question directly.

[00:53:01] Speaker 02:
I think in this case,

[00:53:02] Speaker 02:
it makes more sense to just answer the standing question and find no standing.

[00:53:06] Speaker 02:
In part because, as you say, the mandamus question merges with the merits.

[00:53:09] Speaker 02:
The merits present all kinds of really fascinating and, I'm sure, tempting to decide constitutional questions.

[00:53:14] Speaker 02:
But they are important questions that should really be left for a case in which there is an actual controversy.

[00:53:20] Speaker 05:
What if standing seems harder than the mandamus question?

[00:53:23] Speaker 02:
You're not looking at it, right?

[00:53:26] Speaker 02:
I mean, I'm happy to talk about the mandamus question.

[00:53:28] Speaker 02:
But I really think the standing question is not

[00:53:30] Speaker 02:
The states have not identified any actual injury that they suffer that would be redressed by the proclamation that they seek.

[00:53:36] Speaker 02:
Proclamation has no legal effects.

[00:53:38] Speaker 02:
The only injury they really come into is this sort of confusion.

[00:53:41] Speaker 02:
They talk about practical effects.

[00:53:42] Speaker 02:
They don't really talk about what those practical effects are.

[00:53:45] Speaker 02:
They just vaguely wave at practical consequences that might follow from a certification.

[00:53:50] Speaker 02:
But nothing legal follows from that.

[00:53:52] Speaker 02:
And these sort of practical consequences are kind of vague and undifferentiated.

[00:53:57] Speaker 02:
If I could just for a second address Coleman, that's the case that my friend from Illinois largely relies on.

[00:54:02] Speaker 02:
That case is not applicable here for two primary reasons.

[00:54:06] Speaker 02:
The first is that that is a case by state legislators against a state legislative official.

[00:54:11] Speaker 02:
There was no federal defendant in that case.

[00:54:13] Speaker 02:
There were 20 Kansas state senators who sued the Kansas secretary of the Senate trying to block the official notice to the federal secretary of state that Kansas had voted

[00:54:23] Speaker 02:
to approve the child labor amendment.

[00:54:26] Speaker 02:
So that's a totally different sort of setup.

[00:54:28] Speaker 02:
It's at a different stage of the ratification process than this case.

[00:54:32] Speaker 02:
But the other reason is that that case involves 20 state senators who came together.

[00:54:36] Speaker 02:
I'll say Coleman is a difficult decision to parse.

[00:54:40] Speaker 02:
It's hard to count votes for different propositions in that case.

[00:54:43] Speaker 02:
But Justice Scalia colorfully explained in his dissent in the Arizona legislature

[00:54:48] Speaker 02:
But the Supreme Court in later cases, which is that case in Reins, has said that Coleman stands at most for the proposition that legislators have standing to sue if the group of plaintiffs in the case together had enough votes to make something happen or to block something from happening.

[00:55:03] Speaker 02:
Here you have only two states.

[00:55:05] Speaker 02:
Not enough to make something happen in the ratification space.

[00:55:07] Speaker 02:
Not enough to block something from happening.

[00:55:10] Speaker 02:
And so the Coleman decision just doesn't help these plaintiffs.

[00:55:14] Speaker 01:
Now, you've indicated that the archivist had a ministerial duty.

[00:55:22] Speaker 02:
The ministerial duty of issuing a certification once there's been a decision made that there has been sufficient number of votes to ratify.

[00:55:28] Speaker 01:
OK, so ministerial meaning mandatory?

[00:55:32] Speaker 02:
It is mandatory once that determination is made.

[00:55:34] Speaker 02:
But there is an element of judgment that needs to come into play, as I think the plaintiffs can see, at least in some circumstances, in determining whether there's been a sufficient number of states that have voted to ratify.

[00:55:44] Speaker 02:
And so, for example, everyone agrees that the archivist, and before that, the GSA administrator and the Secretary of State, can look for the notices and make sure that the states use the mode of ratification that was specified.

[00:55:58] Speaker 02:
With respect to the 16th Amendment, there were various errors made in the states in the amendments that they voted to ratify.

[00:56:06] Speaker 02:
It's conceited, I think, that the archivist could look at that and make sure that there were no substantive differences.

[00:56:11] Speaker 02:
in what they submitted.

[00:56:13] Speaker 01:
OK.

[00:56:13] Speaker 01:
But then talk to me about the time frames.

[00:56:16] Speaker 02:
The deadline.

[00:56:17] Speaker 02:
Right.

[00:56:17] Speaker 02:
And so I think because the plaintiffs are the ones seeking mandamus, the burden is on them to show that they have a clear right to relief.

[00:56:25] Speaker 02:
They don't identify literally any authority that would support the view that the archivist is required to ignore the time frame that Congress put in the proposal when it proposed this amendment.

[00:56:36] Speaker 02:
And so I think the most you could say on their side is it's an interesting open question.

[00:56:41] Speaker 02:
And that's certainly not enough to get you mandamus.

[00:56:45] Speaker 01:
But then you're indicating that there's some judgment associated with the role.

[00:56:50] Speaker 01:
You say it's ministerial, you say it's mandatory, but then there's also judgment associated with the role.

[00:56:55] Speaker 02:
Yes, once the judgment has been made that a sufficient number of states have voted to ratify, then issuing the certification is mandatory and ministerial.

[00:57:03] Speaker 02:
But first, the statute requires the archivist to decide whether the official notices are notices that the states have ratified in accordance with the Constitution.

[00:57:13] Speaker 02:
And so that requires the types of assessments that they've been talking about.

[00:57:16] Speaker 02:
The plaintiffs also concede, as discussed in the first part of this argument, that the archivist could look to make sure that the text of the amendment that the state voted to ratify is actually the text of the amendment that Congress proposed, that they didn't add things or subtract things and vote on something different.

[00:57:33] Speaker 02:
So they're just, the archivist is allowed to make sure that the official notice is, he's not allowed to, she's not allowed to look behind.

[00:57:39] Speaker 01:
But you're distinguishing the text of article five versus the resolution.

[00:57:45] Speaker 01:
Text of the amendment versus?

[00:57:46] Speaker 01:
Yes.

[00:57:46] Speaker 02:
Yes.

[00:57:47] Speaker 02:
So, right, but the amendment, article five gives Congress the authority to exempt, for example, you know, to set the language of the amendment, to set the mode of ratification.

[00:57:57] Speaker 02:
The Supreme Court said in Dillon that setting a time limit is incident to the authority to set the mode of ratification.

[00:58:03] Speaker 02:
And so, you know, the OWC opinion that was issued in 2020 suggests that archivists has the ability to look and make sure that the states comply with that limit.

[00:58:13] Speaker 01:
But does there appear to be a legal judgment that the archivist is having to go through?

[00:58:18] Speaker 01:
I mean, you all are disputing this deadline and whether it has legal effect, whether it's constitutional.

[00:58:25] Speaker 01:
And so you're suggesting that an archivist who has a ministerial

[00:58:29] Speaker 01:
duty, albeit mandatory, can go through this process for his own legal judgment?

[00:58:34] Speaker 02:
The archivist, in this case, sought legal advice from the Office of Legal Counsel, from his lawyers, essentially.

[00:58:39] Speaker 02:
And I think it is an open question whether this time limit is mandatory.

[00:58:44] Speaker 02:
But there's certainly no legal authority that suggests that the archivist was required to ignore the time limit that Congress set.

[00:58:50] Speaker 02:
And that's the kind of thing we need for mandamus.

[00:58:52] Speaker 01:
Just one more.

[00:58:53] Speaker 01:
You made me forget it.

[00:58:55] Speaker 01:
Go ahead.

[00:58:56] Speaker 01:
Go back to it.

[00:58:57] Speaker 01:
Go ahead.

[00:58:59] Speaker 06:
So let's, along the questions that Judge Childs is pursuing, let's suppose the Congress had imposed a 50-year deadline, so it still hasn't lapsed.

[00:59:15] Speaker 06:
Or hadn't lapsed.

[00:59:19] Speaker 06:
And there had been no purported rescission.

[00:59:24] Speaker 06:
But the archivist, for whatever reason,

[00:59:29] Speaker 06:
just decided that even though there were 38 notices that she received, she just wasn't going to publish and certify.

[00:59:43] Speaker 06:
And these two states brought this out.

[00:59:47] Speaker 06:
Would they have standing then?

[00:59:49] Speaker 02:
No, because they still wouldn't be injured by the failure to issue the proclamation.

[00:59:53] Speaker 02:
I mean, Dana's question would be easier because there wouldn't be a judgment to be made.

[00:59:56] Speaker 02:
It would just be the ministerial part.

[00:59:57] Speaker 02:
But there still wouldn't be an injury or

[01:00:00] Speaker 02:
Now, there might be other remedies.

[01:00:01] Speaker 02:
Congress could pass something ordering the archivists to do something, could impeach the archivists.

[01:00:06] Speaker 02:
There's lots of other things that could happen to bring out that official proclamation.

[01:00:11] Speaker 02:
But these states still would not be injured by the failure to issue a proclamation in that instance.

[01:00:18] Speaker 06:
And so if an individual plaintiff

[01:00:22] Speaker 06:
Those were the facts and an individual plaintiff brought a lawsuit and said, you know, the Equal Rights Amendment is part of the law, it's part of the canon now and the state is violating it by doing acts.

[01:00:39] Speaker 06:
and the archivist is not certified and published, and it's not part of the statutes at large, you think that the fact that none of those things would happen would have any impact on that plaintiff's lawsuit whatsoever?

[01:00:57] Speaker 02:
I mean, it might be an argument that a state would make in defense, but I don't think it would be a winning argument, given all of the case law saying that the

[01:01:04] Speaker 02:
you know, the certification has no legal effect, saying that the ratification, that when the final state votes to ratify, that's when the amendment takes effect.

[01:01:11] Speaker 02:
Of course, here there's a two-year delay written into the amendment, but two years after the final state ratifies, that's when the amendment takes effect.

[01:01:18] Speaker 02:
That's clear from the case law.

[01:01:20] Speaker 02:
And so I think that would require an adjudication of whether, in fact, the ERA is part of the Constitution.

[01:01:26] Speaker 01:
But by saying no legal effect, is that not cutting against your argument with respect to it being ministerial?

[01:01:33] Speaker 01:
In other words, under Judge Wilkins' hypothetical of a 50-year time period, and then you say the archivist still just refuses to publish, yet there's still no legal effect.

[01:01:45] Speaker 01:
I don't understand how those two square.

[01:01:48] Speaker 02:
I'm saying if the mandamus part of that would be easier, but there would still be no standing because the failure to publish has no legal effect.

[01:01:55] Speaker 02:
Once the final state was to ratify the amendments part of the Constitution.

[01:01:58] Speaker 01:
But it seems that the archivist in this case is hesitating because a perception of legal effect if he does not publish.

[01:02:08] Speaker 02:
No, I don't think that's right.

[01:02:09] Speaker 02:
The acting archivist doesn't think that the certification would have any legal effect.

[01:02:14] Speaker 02:
But the Acting Archivist is trying to follow the law and ask for legal advice and got the advice that these last three votes to ratify aren't effective because they came after the expiration of the date that Congress set.

[01:02:26] Speaker 01:
And what would you cite for authority to suggest that beyond the 106B that there is sort of this extra implied duty, ministerial plus, kind of implied duty of doing something else?

[01:02:38] Speaker 01:
in terms of exercising judgment.

[01:02:39] Speaker 02:
The statute itself says that the archivist has to determine that the ratifications remain in accordance with the Constitution.

[01:02:46] Speaker 02:
There's also history, which means a lot in this area, where in the 16th Amendment context, the archivist was, I think the Secretary of State then, was allowed to look at whether the changes in the deviations in what the states had voted for were meaningful.

[01:03:00] Speaker 02:
Everyone agrees that the archivist could make sure that the state used the proper modification that was established by Congress legislature or constitutional convention.

[01:03:08] Speaker 02:
I think everyone agrees that the archivist can look and make sure that no state added to the proposed amendment or took things away from or changed in some meaningful way the amendment.

[01:03:19] Speaker 02:
So those are all ways that the archivist makes sure that the notices are, in fact, notices that the ratification was in compliance with the Constitution.

[01:03:27] Speaker 02:
The archivist can't look behind and make sure that they comply

[01:03:30] Speaker 02:
That's clear from the case law also.

[01:03:34] Speaker 02:
But she can look and make sure that they can fight with the Constitution.

[01:03:38] Speaker 05:
If I can get into it, I think.

[01:03:40] Speaker 05:
Maybe.

[01:03:40] Speaker 05:
I'm wondering, you said that the archivist exercises judgment.

[01:03:45] Speaker 05:
And by that, you don't mean that the archivist has discretion about whether to certify and publish.

[01:03:52] Speaker 02:
It's not a judgment about whether it's a good idea.

[01:03:54] Speaker 02:
It's a judgment.

[01:03:55] Speaker 05:
Well, or any other kind of discretion.

[01:04:00] Speaker 05:
I guess what I take you to mean when you say that the archivist exercises judgment is that the archivist, there are certain conditions precedent to making sure that the official notice complies with the Constitution.

[01:04:14] Speaker 05:
And the archivist can ensure that those conditions have been met.

[01:04:17] Speaker 05:
But that doesn't turn a ministerial duty into a discretionary one.

[01:04:22] Speaker 02:
That's right.

[01:04:23] Speaker 02:
Once it's been determined that those conditions precedent have been satisfied,

[01:04:28] Speaker 02:
then there's a mandatory debate.

[01:04:30] Speaker 05:
I think maybe just talking about it as judgment maybe is part of what seems to be a conflict with the ministerial duty, perhaps.

[01:04:40] Speaker 02:
If I could, I just want to thank the court to Dillon versus Glass, which is an example of a case where a plaintiff had standing to seek to challenge constitutional amendment.

[01:04:47] Speaker 02:
That was a case where you had a constitutional defendant who filed a habeas section against a federal official.

[01:04:52] Speaker 02:
He was being prosecuted for violating the National Prohibition Act.

[01:04:55] Speaker 02:
He sued a federal official who was involved in enforcing the National Prohibition Act and sought the declaration that the 18th Amendment was invalid, in part because it included a time limit.

[01:05:05] Speaker 02:
So that's an example where you have someone with a concrete injury who's being criminally prosecuted who sues an official who's doing something to him who's involved in enforcing that law.

[01:05:14] Speaker 02:
We don't have either of those things here.

[01:05:16] Speaker 02:
We don't have a plaintiff to whom something is being done.

[01:05:18] Speaker 02:
And we don't have a defendant who's doing anything to anybody.

[01:05:21] Speaker 02:
And so I want to emphasize that there will be cases in the future, potentially,

[01:05:25] Speaker 02:
where these interesting questions could be teed up between adverse parties in the way that an Article III court would have jurisdiction over.

[01:05:32] Speaker 02:
But this is not that case.

[01:05:33] Speaker 02:
And we think the simplest way to dispose of this case is on the standing ground.

[01:05:38] Speaker 06:
So one way to read Coleman is that the court says, oh, yeah, we said before in Dillon that Congress can, in proposing an amendment, fix a reasonable time for ratification.

[01:05:53] Speaker 06:
But the court also said,

[01:05:55] Speaker 06:
And it's basically a political question to determine what a reasonable time period is, and we're not going to decide that.

[01:06:06] Speaker 06:
Right?

[01:06:07] Speaker 02:
Right-ish.

[01:06:08] Speaker 02:
I just want to caution that it actually is very hard to figure out how many votes are for what proposition in Coleman.

[01:06:13] Speaker 02:
And so there are statements of that effect in the opinions in Coleman.

[01:06:17] Speaker 02:
I can't say with confidence that that garnered a majority of the court.

[01:06:20] Speaker 02:
I will say that that was an amendment, the child labor amendment, where there was not an express time limit in the amendment.

[01:06:25] Speaker 02:
The argument was that 13 years had passed since it had been proposed, and that that was too long.

[01:06:30] Speaker 02:
And many of the justices who wrote opinions in that case said, well, it's not really up to us to figure out if 13 years is too many years.

[01:06:38] Speaker 02:
But that's not the case here, where you have actual deadlines set by Congress.

[01:06:42] Speaker 02:
No one's asking the court to figure out on its own what would be a reasonable

[01:06:50] Speaker 06:
But it kind of seems to me that it's somewhat question begging, right?

[01:06:58] Speaker 06:
Because if Congress can set a reasonable amount of time, but the court, let's assume we believe that the court is incompetent or is not the appropriate body to determine what a reasonable amount of time is,

[01:07:19] Speaker 06:
If the court isn't competent to do that, then why is the archivist competent to do that?

[01:07:26] Speaker 06:
Why shouldn't the archivist just certify and publish and let Congress decide whether the timeline, deadline should be enforced or whether an unreasonable amount of time is lapsed or whatever?

[01:07:49] Speaker 06:
Why isn't the message we should take from Coleman that ultimately it's for the Congress to make that determination, not the court and certainly not a member of the executive?

[01:08:03] Speaker 02:
A few responses, Renner.

[01:08:04] Speaker 02:
The first is that the court held in Dillon that seven years was a reasonable amount of time.

[01:08:09] Speaker 02:
There was an express limit of seven years in the 18th Amendment, and the court said no one thinks about the unreasonable amount

[01:08:15] Speaker 02:
Second is that the archivist isn't making a determination about whether seven years isn't a reasonable amount of time.

[01:08:20] Speaker 02:
The archivist is making a determination that there is a time limit that Congress set, and that these ratification votes that came in 2017, 2018, and 2020 happened after the time limit.

[01:08:31] Speaker 02:
And there's no law that says that the archivist has to ignore that time limit.

[01:08:35] Speaker 02:
And the third is that I may have misunderstood your question, but it seemed to contemplate a role for Congress at the back end, not just at the front end.

[01:08:42] Speaker 02:
And although Congress has, like with the 14th and 15th Amendments,

[01:08:45] Speaker 02:
issued some proclamations about when amendments were ratified.

[01:08:48] Speaker 02:
The Constitution doesn't contemplate any role for Congress at the back end.

[01:08:53] Speaker 02:
Congress proposes the amendment, goes out into the world, and the states do what they're going to do.

[01:08:57] Speaker 02:
And as you suggest, the executive branch plays no role in the actual ratification.

[01:09:01] Speaker 02:
Congress has given the executive branch a role in record keeping.

[01:09:05] Speaker 02:
But again, that has no legal effect.

[01:09:07] Speaker 06:
So if somebody were to challenge the congressional pay amendment today,

[01:09:13] Speaker 06:
and say that it took an unreasonable amount of time for ratification and therefore is invalid.

[01:09:26] Speaker 06:
Who would decide?

[01:09:28] Speaker 06:
Congress?

[01:09:29] Speaker 06:
Court?

[01:09:31] Speaker 06:
Probably square the court deciding that question with Coleman.

[01:09:35] Speaker 02:
If you had a plaintiff with an injury who sued an appropriate defendant, which we don't have here, then I think a court would decide that.

[01:09:41] Speaker 02:
Unless the court said it was a political question.

[01:09:43] Speaker 02:
I think that's an open and difficult question.

[01:09:45] Speaker 06:
So you don't think that Coleman would govern us in that lawsuit, assuming there was a claim of headstand?

[01:09:55] Speaker 02:
I mean, that would be something that a court could determine.

[01:09:57] Speaker 02:
The Supreme Court has suggested that the most we can take from Coleman is this idea that you need to have a sufficient number of legislators to make a thing happen or to block a thing from happening.

[01:10:05] Speaker 02:
I think I would leave it to a court to try to press out what other holdings you could take from Coleman.

[01:10:11] Speaker 02:
But certainly, it would be up to a court to decide whether it was appropriate for a court to decide that question.

[01:10:16] Speaker 02:
But you would still need adverse parties presenting a concrete controversy, which we don't have here.

[01:10:24] Speaker 06:
Would it be within the realm of reason for a court to say, well, we read Coleman to say that that's really a matter for Congress.

[01:10:32] Speaker 06:
And since Congress has acquiesced in the ratification of the amendment, then that's the end of it?

[01:10:38] Speaker 02:
I think it could be.

[01:10:41] Speaker 02:
I mean, that's essentially what some justices did in Coleman.

[01:10:44] Speaker 02:
They just said, this is not something that we should.

[01:10:48] Speaker 02:
But again, that's not what's presented here, because we have a definitive time limit that Congress put into the closing clause of the amendment.

[01:10:55] Speaker 02:
And so the question, with proper plaintiffs and proper defendant, it is certainly a question that a court may decide whether the time limit had effect, whether Congress can put in any time limits at all, although we think Dylan has already decided that question.

[01:11:09] Speaker 02:
But a court may decide whether it's appropriate to put a time limit into a proposing clause.

[01:11:14] Speaker 02:
But this is not a case that presents that question because of the lack of standing, and also because of the mandamus question, because it is, at the very least, a hard and open question.

[01:11:23] Speaker 02:
There is not a clear answer to that question.

[01:11:25] Speaker 02:
And I think that prevents this court from ordering a mandamus relief for allowing the district.

[01:11:30] Speaker 05:
If we get past standing, don't we have to answer the question about the time limit

[01:11:36] Speaker 05:
I don't think you have to.

[01:11:38] Speaker 05:
How do we avoid that question?

[01:11:39] Speaker 05:
Because if the archivist's duty is ministerial, subject to certain conditions precedent, don't we have to decide whether he properly interpreted the conditions precedent?

[01:11:53] Speaker 02:
I don't think you do.

[01:11:53] Speaker 02:
There are, of course, cases in Fine Ed versus Ashcroft and Carver versus Barnhart.

[01:11:59] Speaker 02:
It suggests that where you have competing interpretations of the statute, as I did in our brief,

[01:12:05] Speaker 02:
can decline to order mandamus relief because it's an open question whether there is in fact a right to the relief and a duty, a peer duty on behalf of the official.

[01:12:17] Speaker 02:
And so I think you could say in this case, well the plaintiffs have not identified a single authority that would require the archivist to ignore the deadline set by

[01:12:24] Speaker 05:
That's all you have to say.

[01:12:26] Speaker 05:
Maybe it's the opposite.

[01:12:27] Speaker 05:
Maybe it's what you've said is that there's clear case law suggesting that the time limits are are valid things for the archivist to consider.

[01:12:34] Speaker 05:
So he had a clear duty not to publish the amendment.

[01:12:39] Speaker 02:
So you could say that.

[01:12:41] Speaker 02:
I think our view is the court should go as small as possible in this case.

[01:12:45] Speaker 02:
That's colored by our view of the fact that there's no standing.

[01:12:47] Speaker 02:
But I think these are important questions.

[01:12:49] Speaker 02:
And it's not going to be difficult for the proper parties to tee up these questions for a court in a way where there's jurisdiction.

[01:12:55] Speaker 02:
And so we don't think this is the right case for the court to decide these questions if it doesn't need to.

[01:13:00] Speaker 02:
I don't think there's any reason to overlook the fact that the burden is on the plaintiffs to show that there's a clear duty.

[01:13:05] Speaker 02:
And they literally haven't identified any authority

[01:13:07] Speaker 02:
That would suggest that the archivist is required to ignore the deadline set by Congress.

[01:13:11] Speaker 02:
That should be enough to defeat mandamus.

[01:13:13] Speaker 02:
Again, we prefer the rule on standing because we think it's clear that there's no injury that would be redressable by the proclamation.

[01:13:20] Speaker 02:
I think the adjustability part is particularly clear.

[01:13:22] Speaker 02:
Everyone agrees the proclamation has no legal effect.

[01:13:25] Speaker 02:
And so nothing that the proclamation would do would alleviate any of the injuries even if they counted.

[01:13:31] Speaker 05:
There's no right to a public declaration of what the law is where Congress has provided for a public law declaration function.

[01:13:41] Speaker 02:
You have to be injured by the lack of a declaration, right?

[01:13:44] Speaker 02:
It's not as if there's an informational injury, because they have the information.

[01:13:47] Speaker 02:
Everybody has the information.

[01:13:48] Speaker 02:
They sent a couple of cases from this court, Barnes and Kennedy.

[01:13:52] Speaker 02:
Those are pre-Reins cases, and I don't think they would survive Reins.

[01:13:55] Speaker 02:
They involve legislators seeking to have laws published that they think should not have been pocket vetoed.

[01:14:02] Speaker 02:
But those cases, those legislators wouldn't have standing under modern standing case law, DC circuit case law.

[01:14:14] Speaker 06:
So so they point out Marbury v Madison and you say it's distinguished.

[01:14:21] Speaker 06:
So if the Senate votes to confirm me to this court, um, but I never did the commission, um, you're saying that I would have standing

[01:14:37] Speaker 06:
Um, but that doesn't, I don't need the commission to, why is it, why does the commission have any legal effect?

[01:14:47] Speaker 02:
The Supreme, the Supreme Court said in Marbury, it doesn't have any legal effect, but that the, um, justice of the peace in that case, Mr. Marbury had a property interest in getting the commission because it was the only evidence of his appointment.

[01:15:00] Speaker 02:
Um, and so,

[01:15:01] Speaker 02:
you know, if you, if the, whoever signs your commission refused to give it to you, you can make that kind of an argument.

[01:15:07] Speaker 02:
I have a property interest in that commission because it is the only evidence of today.

[01:15:11] Speaker 06:
How would I have that argument?

[01:15:12] Speaker 06:
I mean, it would be on Twitter in five seconds.

[01:15:14] Speaker 02:
Absolutely.

[01:15:15] Speaker 02:
It would be harder.

[01:15:16] Speaker 02:
It would be a harder case to make today.

[01:15:17] Speaker 06:
So, so, so if I brought that case today and not get, um, because the president for whatever reason just refused to give me my commission, um, I wouldn't have standing, right?

[01:15:30] Speaker 02:
I think that's probably right, but the theory that was on which.

[01:15:34] Speaker 02:
That's sad.

[01:15:36] Speaker 02:
I hope you have your commission.

[01:15:37] Speaker 02:
But the theory on which Marbury was decided is not the theory that the plaintiffs are using.

[01:15:41] Speaker 02:
They have not asserted any property interest in the proclamation from the acting arguments, nor could they.

[01:15:46] Speaker 05:
Maybe it's a sovereignty interest for them.

[01:15:48] Speaker 05:
I mean, the states have a co-equal role in ratifying amendments.

[01:15:52] Speaker 05:
They have to play their role.

[01:15:53] Speaker 05:
Well, they've played their role, but so how

[01:15:58] Speaker 05:
You know, in a subsequent case, is a court supposed to count up the 38 official notices if there's no publication by the archivist?

[01:16:07] Speaker 02:
The archivist has published a list of how the states have voted, right?

[01:16:12] Speaker 02:
And so it's not easy.

[01:16:15] Speaker 02:
It's not difficult, rather, to figure out how the states have voted.

[01:16:18] Speaker 02:
The archivist has noted when the ratification votes happen.

[01:16:20] Speaker 02:
The archivist has noted which states have purported service in their ratification.

[01:16:24] Speaker 02:
And so it's not as if the evidence of what the votes are is difficult to find.

[01:16:28] Speaker 02:
It's been published online by the archivist.

[01:16:31] Speaker 02:
And we could take judicial notice of that in an appropriate case.

[01:16:35] Speaker 02:
I think you could.

[01:16:37] Speaker 02:
In a case where you had an injured plaintiff suing an appropriate defendant.

[01:16:42] Speaker 01:
You mentioned appropriate defendant or the proper defendant.

[01:16:45] Speaker 01:
Are you suggesting the archivist is not the appropriate defendant here?

[01:16:49] Speaker 02:
She's not an appropriate defendant because her issuing a proclamation would not redress any injury that the states might have.

[01:16:55] Speaker 02:
We don't think they've identified injuries, but even if they had, they're absolutely not redressable by issuing a proclamation because the proclamation has no legal effect.

[01:17:04] Speaker 02:
The states are not being forced to do anything or blocked from doing anything, and the archivist is not forcing anybody to do anything or blocking anybody from doing anything.

[01:17:12] Speaker 02:
There's just no recognizable controversy between these parties.

[01:17:15] Speaker 01:
And the reason I ask that, because if we were to go with you on the

[01:17:19] Speaker 01:
standing, lack of standing, you would want a finding in there that the archivist is also not the appropriate defendant, not just that the plaintiffs are not the appropriate plaintiff.

[01:17:28] Speaker 02:
I think you could say that the relief the plaintiffs seek would not redress any injury that they might have.

[01:17:34] Speaker 02:
That's sort of the simplest way to do it.

[01:17:37] Speaker 05:
Serenton, if the archivist were on the current facts today to publish the amendment, to certify it, would the intervening states, would they have standing?

[01:17:47] Speaker 05:
We don't think that they would have standing.

[01:17:50] Speaker 05:
Why is that?

[01:17:51] Speaker 02:
Because they also would not be injured by a proclamation saying that the ERA is part of the Constitution because it has no legal effect.

[01:17:58] Speaker 02:
If they were sued by some individual about that they had taken some action in contravention of the ERA, they could defend by saying, what are you talking about?

[01:18:05] Speaker 02:
The ERA is not part of the Constitution.

[01:18:06] Speaker 02:
That thing, the archivist for that, doesn't have any legal effect.

[01:18:09] Speaker 02:
Everyone knows that.

[01:18:09] Speaker 02:
The Supreme Court has held it.

[01:18:11] Speaker 02:
And so it wouldn't cause them any injury.

[01:18:12] Speaker 02:
It wouldn't require them to do anything.

[01:18:15] Speaker 02:
They are either currently required to comply with the ERA or they aren't.

[01:18:18] Speaker 02:
Nothing that the archivist could do.

[01:18:19] Speaker 05:
So the standing questions parallel.

[01:18:21] Speaker 02:
In our view, we didn't take a position on the intervener standing in the district court.

[01:18:24] Speaker 02:
And the district court thought that they had standing to intervene, but said it was sort of a preliminary.

[01:18:37] Speaker 06:
Thank you, Ms.

[01:18:38] Speaker 06:
Harrington.

[01:18:43] Speaker 06:
Why don't you take four minutes for rebuttal?

[01:18:50] Speaker 04:
Thank you, Your Honor.

[01:18:52] Speaker 04:
So I promised you a case site for the proposition that the summary dismissal as Moot in Freeman was non-presidential.

[01:19:01] Speaker 04:
The case I was thinking of is Wisconsin Department of Revenue versus Wrigley.

[01:19:06] Speaker 04:
It's found at page 61 of our propellants brief.

[01:19:10] Speaker 04:
So on the issue of standing, there was some discussion.

[01:19:17] Speaker 04:
Judge Wilkins about section 112 and Marbury.

[01:19:21] Speaker 04:
We do believe Marbury is relevant here.

[01:19:24] Speaker 04:
What Marbury held is that the deprivation of evidence that an act has occurred is a legally cognizable injury, even if that deprivation does not undermine the validity of the act.

[01:19:41] Speaker 04:
So we think it certainly supports the view that the deprivation, you know, in our view of the amendment being admissible into evidence, it is a legally cognizable injury.

[01:19:56] Speaker 04:
There was some discussion about whether we have, you know, just suffered a concrete injury personal to us.

[01:20:04] Speaker 04:
Our view is that yes, we have.

[01:20:06] Speaker 04:
our ratification votes are not being given their intended effect.

[01:20:12] Speaker 04:
And while opposing counsel referred to the list of state ratifications that's published by the archivist, it lists our states as having ratified after the deadline.

[01:20:23] Speaker 04:
So it's clear that the archivist is not giving our state ratifications their intended effect.

[01:20:30] Speaker 04:
That is exactly the same injury that was suffered by the plaintiffs in Pullman

[01:20:35] Speaker 04:
We don't think Pullman is distinguishable on the basis that there were more plaintiffs there.

[01:20:43] Speaker 04:
The fact that there were more plaintiffs in Coleman does not appear to be relevant to the Supreme Court's decision in Coleman.

[01:20:51] Speaker 04:
And it certainly wouldn't make sense for this court to hold that just because other states could have joined our lawsuit and for whatever reason did not do so, we should not be allowed to vindicate our ratification votes, which again is a legally cognizable injury.

[01:21:12] Speaker 04:
Let's see.

[01:21:17] Speaker 04:
Opposing counsel mentioned the Fairchild case.

[01:21:20] Speaker 04:
That case is distinguishable there because the plaintiff had no cognizable injury.

[01:21:26] Speaker 04:
That plaintiff was suing, seeking a declaration that the 19th Amendment was invalid on a theory that the election officials would be confused.

[01:21:36] Speaker 04:
But the plaintiff wasn't an election official.

[01:21:38] Speaker 04:
So the court said there is no cognizable injury.

[01:21:42] Speaker 04:
Here, our injury is the fact that our ratification votes are not being given their intended effect.

[01:21:49] Speaker 05:
I mean, but you said that they have been given because you think that ERA is part of the Constitution.

[01:21:56] Speaker 05:
So that part, I mean, so that's not the legal effect, that's your injury.

[01:22:03] Speaker 04:
Well, I think to talk about legal effect is,

[01:22:07] Speaker 04:
and equate that with constitutional validity, that's a too narrow view of what injury is.

[01:22:15] Speaker 04:
Our position is that there are practical consequences associated with publication and ratification.

[01:22:23] Speaker 04:
They include making the amendment admissible into evidence in court.

[01:22:28] Speaker 04:
They include the fact that people are going to be more likely to take advantage of the amendment we have sought to secure for them.

[01:22:35] Speaker 04:
And they include the fact that other states and perhaps the federal government who have not brought their laws into compliance with the amendment might become more willing to do so.

[01:22:45] Speaker 04:
That is a cognizable injury, and it is regressible by a court order directing the archivist to publish and certify.

[01:22:52] Speaker 04:
I mean, basically, on the archivist's theory, the plaintiff states who are separate sovereigns who exercise their constitutionally delegated role in the amendment process

[01:23:04] Speaker 04:
are supposed to watch and wait for some unnamed other plaintiff to sue, perhaps in a remote jurisdiction under circumstances where we believe that an unelected executive branch official is failing to properly count our ratification votes.

[01:23:22] Speaker 04:
There's simply nothing in standing principles that requires that.

[01:23:27] Speaker 04:
So, and I'll just very quickly, because I see I have 37 seconds on the mandamus issue.

[01:23:34] Speaker 04:
We talked about this in the opening, but there's nothing in this court's cases that suggests that the presence of an interpretive question, even a question of first impression, and I do understand the Archivist's Council to agree that whether the deadline is enforceable is an open and perhaps a close question, but there's nothing to suggest that the presence of that question precludes mandamus when the government official's duty is mandatory.

[01:24:02] Speaker 04:
Section 106B creates a mandatory duty.

[01:24:06] Speaker 04:
It uses the term shall and whenever, and it was interpreted by this court in Coleman to be purely ministerial.

[01:24:14] Speaker 04:
Under the archivist's theory, mandamus would essentially never be available because a government official, even when that official has a ministerial duty by statute, could always claim that performing that duty requires statutory interpretation.

[01:24:31] Speaker 04:
That is simply not the law of this court.

[01:24:33] Speaker 04:
And I would point the court to the 13th Regional Corporation case, which is cited in both parties' briefs.

[01:24:41] Speaker 04:
And in that case, what happened is the court found that a government official had a mandatory duty subject to mandamus even after resolving a close question of statutory interpretation that was hotly disputed by the parties.

[01:24:57] Speaker 05:
So as Ms.

[01:24:58] Speaker 05:
Harrington pointed out, it is your duty to show that there is a clear duty under the conditions.

[01:25:05] Speaker 04:
And we believe we have shown that by virtue of section 106B.

[01:25:08] Speaker 04:
It has already been interpreted by this court to create a purely ministerial duty.

[01:25:14] Speaker 04:
And the fact that some other question of interpretation might be involved doesn't preclude mandamus when the controlling statute creates a mandatory duty.

[01:25:24] Speaker 04:
So thank you very much for

[01:25:26] Speaker 04:
your time and we request that you reverse and remand to the district court for resolution of the outstanding issues.

[01:25:32] Speaker 06:
Thank you.

[01:25:33] Speaker 06:
We will take the case under advice.