State of Illinois v. David Ferriero ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 28, 2022 Decided February 28, 2023
No. 21-5096
STATE OF ILLINOIS AND STATE OF NEVADA,
APPELLANTS
v.
DAVID FERRIERO, IN HIS OFFICIAL CAPACITY AS ARCHIVIST OF
THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00242)
Jane Elinor Notz, Deputy Corporation Counsel, Office of
the Attorney General for the State of Illinois, argued the cause
for appellants. With her on the briefs were Kwame Raoul,
Attorney General, Alex Hemmer, Deputy Solicitor General,
Priyanka Gupta, Assistant Attorney General, Kathryn Hunt
Muse, Public Interest Division Deputy Chief, Mark R. Herring,
Attorney General, Office of the Attorney General for the
Commonwealth of Virginia, Michelle S. Kallen, Solicitor
General, Rohiniyurie Tashima, John Marshall Fellow, Aaron
D. Ford, Attorney General, Office of the Attorney General for
the State of Nevada, and Heidi Parry Stern, Solicitor.
2
Loretta E. Lynch, Liza M. Velazquez, Andrew G. Gordon,
Daniela Lorenzo, Jeannie S. Rhee, Amanda Valerio, and
Rebecca S. LeGrand were on the brief for amici curiae
Business and Corporate Entities in support of appellants.
Jesse Solomon and Amelia T.R. Starr were on the brief for
amici curiae Equality Now, et al. in support of appellants.
Ryan B. Witte was on the brief for amicus curiae
Organizations that Advocated for ERA Ratification in Virginia,
Illinois, & Nevada in support of appellants.
Beth S. Brinkmann, Laura Dolbow, and Nicole Antoine
were on the brief for amici curiae Generation Ratify and Ten
Other Youth-Led Organizations in support of appellants.
Ellyde R. Thompson, Kathleen M. Sullivan, and Rachel G.
Frank were on the brief for amici curiae Constitutional Law
Scholars in support of appellants.
Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.
Frazelle were on the brief for amicus curiae Constitutional
Accountability Center in support of appellants.
Letitia James, Attorney General, Office of the Attorney
General for the State of New York, Barbara D. Underwood,
Solicitor General, Sarah L. Rosenbluth, Assistant Solicitor
General of Counsel, Philip J. Weiser, Attorney General, Office
of the Attorney General for the State of Colorado, William
Tong, Attorney General, Office of the Attorney General for the
State of Connecticut, Kathleen Jennings, Attorney General,
Office of the Attorney General for the State of Delaware, Holly
T. Shikada, Attorney General, Office of the Attorney General
for the State of Hawaii, Aaron M. Frey, Attorney General,
Office of the Attorney General for the State of Maine, Brian E.
3
Frosh, Attorney General, Office of the Attorney General for
the State of Maryland, Maura Healey, Attorney General,
Office of the Attorney General for the Commonwealth of
Massachusetts, Keith Ellison, Attorney General, Office of the
Attorney General for the State of Minnesota, Andrew J. Bruck,
Acting Attorney General, Office of the Attorney General for
the State of New Jersey, at the time the brief was filed, Hector
Balderas, Attorney General, Office of the Attorney General for
the State of New Mexico, Ellen F. Rosenblum, Attorney
General, Office of the Attorney General for the State of
Oregon, Josh Shapiro, Attorney General, Office of the
Attorney General for the Commonwealth of Pennsylvania,
Peter F. Neronha, Attorney General, Office of the Attorney
General for the State of Rhode Island, Thomas J. Donovan, Jr.,
Attorney General, Office of the Attorney General for the State
of Vermont, at the time the brief was filed, Robert W.
Ferguson, Attorney General, Office of the Attorney General
for the State of Washington, Joshua L. Kaul, Attorney General,
Office of the Attorney General for the State of Wisconsin, and
Karl A. Racine, Attorney General, Office of the Attorney
General for the District of Columbia, were on the brief for
amici curiae State of New York, et al. in support of appellants.
Dana Nessel, Attorney General, Office of the Attorney
General for the State of Michigan, and Fadwa A. Hammoud,
Solicitor General, were on the brief for amicus curiae State of
Michigan in support of appellants.
Katherine I. Funk was on the brief for amici curiae United
States Conference of Mayors, et al. in support of appellants.
Christopher Man and Linda T. Coberly were on the brief
for amicus curiae The ERA Coalition and Advocates for
Equality and Women=s Rights in support of appellants.
4
Linda H. Martin, Olivia A. Radin, Scott A. Eisman, Elena
Hadjimichael, and Noelle Williams were on the brief for amici
curiae Marie Abrams, et al. in support of appellants.
Tracy F. Flint, Elizabeth Y. Austin, and Meredith R. A.
McBride were on the brief for amici curiae Former State
Legislators in Illinois, Nevada, and Virginia in support of
appellants.
Sarah E. Harrington, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellee.
With her on the brief were Brian M. Boynton, Principal Deputy
Assistant Attorney General, and Michael S. Raab and Thomas
Pulham, Attorneys.
Steve Marshall, Attorney General, Office of the Attorney
General for the State of Alabama, Edmund G. LaCour, Jr.,
Solicitor General, Patrick Strawbridge, Cameron T. Norris,
Tiffany H. Bates, Jeff Landry, Attorney General, Office of the
Attorney General for the State of Louisiana, Elizabeth B.
Murrill, Solicitor General, Jason Ravnsborg, Attorney
General, Office of the Attorney General for the State of South
Dakota, at the time the brief was filed, Douglas J. Peterson,
Attorney General, Office of the Attorney General for the State
of Nebraska, James A. Campbell, Solicitor General, Herbert H.
Slatery, III, Attorney General and Reporter, Office of the
Attorney General for the State of Tennesee, at the time the brief
was filed, were on the brief for intevernors in support of
appellee. Alexander B. Bowdre, Deputy Solicitor, Office of the
Attorney General for the State of Alabama, entered an
appearance.
Matthew J. Clark was on the brief for amicus curiae
Gregory Waston in support of appellee.
5
Talmadge Butts was on the brief for amicus curiae The
Foundation for Moral Law in support of appellee.
Kathryn E. Tarbert was on the brief for amicus curiae
Independent Women=s Law Center in support of intervenors for
appellee.
Patrick M. McSweeney, William J. Olson, Jeremiah L.
Morgan, and Robert J. Olson were on the brief for amici curiae
Eagle Forum, et al. in support of appellee.
Austin Knudsen, Attorney General, Office of the Attorney
General for the State of Montana, David M.S. Dewhirst,
Solicitor General, Christian B. Corrigan, Assistant Solicitor
General, Sean D. Reyes, Attorney General, Office of the
Attorney General for the State of Utah, Melissa Holyoak,
Solicitor General, Leslie Rutledge, Attorney General, Office of
the Attorney General for the State of Arkansas, Eric Schmitt,
Attorney General, Office of the Attorney General for the State
of Missouri, John M. O=Connor, Attorney General, Office of
the Attorney General for the State of Oklahoma, Alan Wilson,
Attorney General, Office of the Attorney General for the State
of South Carolina, Ken Paxton, Attorney General, Office of the
Attorney General for the State of Texas, were on the brief for
amici curiae State of Montana, et al. in support of appellee.
Jessica L. Ellsworth was on the brief for amici curiae
Constitutional Law Professors in support of neither party.
Before: WILKINS, RAO and CHILDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: The States of Illinois and Nevada
(collectively referred to as “the States” or “Plaintiffs”) filed this
6
mandamus action in the district court, seeking to compel the
Archivist of the United States to certify and publish the Equal
Rights Amendment (“ERA”) as part of the Constitution of the
United States. See 28 U.S.C. § 1361 (“The district courts shall
have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the
plaintiff.”).
The States argued that the Archivist had a duty to certify
and publish the ERA because it was ratified by the requisite
three-fourths of the States of the Union as required by Article
V of the Constitution. Alabama, Louisiana, Nebraska, South
Dakota, and Tennessee (hereinafter “Intervenors”) joined the
litigation as intervenor-defendants. Both Intervenors and the
Archivist moved the District Court to dismiss the States’ case
as a matter of law.
The District Court agreed, dismissing the case for lack of
jurisdiction. The District Court first held that the States lacked
standing. It ruled the States did not show that the Archivist’s
failure to certify and publish the ERA caused “a concrete injury
that could be remedied by ordering him to act,” and that his
decision to certify and publish amendments “has no legal
effect.” Commonwealth v. Ferriero, 525 F. Supp. 3d 36, 45
(D.D.C. 2021). The District Court also ruled that Plaintiffs had
not established that the Archivist had a clear duty to certify and
publish the ERA or that their right to relief was clear and
indisputable. The District Court did not reach Intervenors’
arguments that the ERA had expired under Article V of the
Constitution and that five states had validly rescinded their
ratifications. The Plaintiffs timely appealed.
The grounds on which a district court may grant
mandamus relief are narrow, and the demands are
7
austere. Because we agree that the States fail to show their
right to relief is “clear and indisputable,” we affirm.
I.
The Framers recognized that the Constitution would
“certainly be defective,” making amendments “necessary.” 1
THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 202-
03 (Max Farrand ed., 1911). As a result, they sought to provide
an “easy, regular and Constitutional way” to adopt such
amendments. Id. The framework for amending the
Constitution is set forth in Article V, which states, in relevant
part:
The Congress, whenever two thirds of both
Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of
the several States, shall call a Convention for
proposing Amendments, which, in either Case,
shall be valid to all Intents and Purposes, as Part
of this Constitution, when ratified by the
Legislatures of three fourths of the several
States, or by Conventions in three fourths
thereof, as the one or the other Mode of
Ratification may be proposed by the
Congress…
U.S. CONST. art. V.
Thus, pursuant to Article V, three actions are required to
enact an amendment initiated by Congress: (1) Congress must
propose an amendment to the Constitution by a two-thirds vote
of each chamber; (2) Congress must choose the “Mode of
Ratification”; and (3) three-fourths of the States must ratify the
8
amendment. As we will discuss below, the scope of Congress’s
incidental powers under Article V to designate a “Mode of
Ratification” is the central dispute in this case.
A.
While Article V provides a method for amending the
Constitution, it fails to specify how the ratification efforts of
proposed amendments would be traced, so that Congress, and
the nation, would know when an amendment becomes part of
the Constitution. James Madison “pleaded unsuccessfully”
that the Article V amendment process be explicated “with more
specificity and clarity,” Richard B. Bernstein, The Sleeper
Wakes: The History and Legacy of the Twenty-Seventh
Amendment, 61 FORDHAM L. REV. 497, 498 (1992), to avoid
“difficulties [that] might arise” to the form or quorum. 2 THE
RECORDS OF THE FEDERAL CONVENTION OF 1787, at 630 (Max
Farrand ed., 1911).
Difficulties surely arose. In the late eighteenth and early
nineteenth centuries, the lack of a consistent notification and
publication process caused “frequent confusion about whether
proposed amendments had become part of the Constitution.”
Jol A. Silversmith, The “Missing Thirteenth Amendment”:
Constitutional Nonsense and Titles of Nobility, 8 S. CAL.
INTERDISC. L.J. 577, 591 (1999). As one example, due to
uncertainty as to whether the Eleventh Amendment had been
ratified, Congress passed a resolution in 1797 calling upon the
President “to adopt some speedy and effectual means of
obtaining information from [several states] whether they have
ratified the amendment,” 1. Stat. 517, even though a sufficient
number of states had approved the amendment to effectuate its
ratification two years earlier. See CONG. RSCH. SERV., THE
CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS
AND INTERPRETATION, S. Doc. No. 112—9, at 28 n.3 (2d Sess.
9
2013). Without a regularized mechanism for communicating
states’ adoption, rejection, or inaction on proposed
amendments, “the President informed Congress from time to
time of ratifications of pending amendments,” albeit
inconsistently. Walter Dellinger, The Legitimacy of
Constitutional Change: Rethinking the Amendment Process, 97
HARV. L. REV. 386, 400 (1983).
To eliminate this confusion, Congress conferred upon the
Secretary of State a duty to certify and publish the ratification
of constitutional amendments. See Act of April 20, 1818, ch.
80, § 2, 3 Stat. 439. This act required the Secretary to publish
amendments “in the said newspapers authorized to promulgate
the laws, with his certificate, specifying the states by which the
same may have been adopted, and that the same has become
valid, to all intents and purposes, as a part of the constitution.”
Id. In 1951, over a century later, Congress transferred the
certification and publication duty to the General Services
Administrator. See Act of Oct. 31, 1951, ch. 655, § 2(b), 65
Stat. 710, 710. In 1984, Congress transferred the certification
and publication role again, this time to the Archivist. See
National Archives and Records Administration Act of 1984,
Pub. L. No. 98—497, § 107(d), 99 Stat. 2280, 2291 (codified
at 1 U.S.C. § 106b). Under current law, the Archivist must
publish the amendment in the United States Statutes at Large,
id., which are “legal evidence of laws . . . and proposed or
ratified amendments to the Constitution of the United States …
in all the courts of the United States [and] the Several states[.]”
1 U.S.C. § 112.
B.
After suffering defeats in their efforts to obtain
constitutional protection for women’s rights, see, e.g.,
Bradwell v. State of Illinois, 83 U.S. (16 Wall.) 130 (1873)
10
(Fourteenth Amendment’s Privilege or Immunities Clause did
not protect women’s right to practice law); Minor v.
Happersett, 88 U.S. (21 Wall.) 162 (1875) (Fourteenth
Amendment’s Privilege or Immunities Clause did not protect
women’s right to suffrage), women’s rights leaders fixed their
sights on amending the Constitution. Those efforts led to the
ratification of the Nineteenth Amendment in 1920, granting
women the right to vote. See U.S. CONST. amend. XIX. Soon
thereafter, the movement turned its attention to procuring a
constitutional amendment conferring upon women all the
rights enjoyed by men.
Alice Paul, the leader of the National Women’s Party,
drafted the first iteration of the ERA, called the “Lucretia Mott
Amendment,” in honor of the legendary women’s rights
activist and abolitionist. J.A. 189. Ms. Paul’s proposal gained
a foothold in Congress in 1923, with the introduction of a
proposed constitutional amendment declaring that “men an[d]
women shall have equal rights throughout the United States
and every place subject to its jurisdiction.” See H.R.J. Res. 75,
68th Cong. (1923).
Every year, from 1923 through 1971, the judiciary
committees of both chambers of Congress held hearings on the
ERA. But it was not until 1970, after a fight led by
Representative Martha Wright Griffiths, known as the “mother
of the ERA,” see U.S. House of Representatives Profiles:
Martha Wright Griffiths (1912—2003),
https://history.house.gov/People/Detail/14160 (last visited
February 6, 2023), that the proposed amendment made it to the
House floor for a vote. See 116 Cong. Rec. 27,999—28,004
(1970). The House voted 352 to 15 to propose the ERA, but
the session lapsed without a vote by the full Senate. See JOHN
VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS,
PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789—
11
2015, at 177 (2d ed. 2003). While the full Senate did not vote
on the ERA, the Senate resolution was nonetheless quite
significant because it added a seven-year deadline for
ratification by the states. See 116 Cong. Rec. 36,450—51.
The ERA finally broke through the congressional gridlock
in 1972, when both chambers passed the resolution by the
requisite two-thirds margin and submitted it to the States for
ratification. The resolution and proposed amendment read as
follows:
Resolved by the Senate and House of
Representatives of the United States of America
in Congress assembled (two-thirds of each
House concurring therein), That the following
article is proposed as an amendment to the
Constitution of the United States, which shall be
valid to all intents and purposes as part of the
Constitution when ratified by the legislatures of
three-fourths of the several States within seven
years from the date of its submission by the
Congress:
“ARTICLE –
“SECTION 1. Equality of rights under the
law shall not be denied or abridged by the
United States or by any State on account of
sex.”
“SEC. 2. The Congress shall have the power
to enforce, by appropriate legislation, the
provisions of this article.”
“SEC. 3. This amendment shall take effect
two years after the date of ratification.”
12
Proposed Amendment to the U.S. Constitution, H.R.J. Res. 208,
92d Cong., 86 Stat. 1523 (1972). Notably, the proposed
amendment included a seven-year ratification deadline in the
proposing clause, as added by the Senate resolution during the
previous session of Congress.
Many states moved quickly to ratify the ERA. “Within
forty-eight hours of Congressional passage, six states had
ratified the ERA [and] within nine months . . . twenty-two
states had ratified it.” Jean Witter, Extending Ratification Time
for the Equal Rights Amendment: Constitutionality of Time
Limitations in the Federal Amending Process, 4 WOMEN’S
RTS. L. REP. 209, 209 (1979). By the end of 1973, thirty state
legislatures had ratified the ERA. CONG. RSCH. SERV.,
R42979, THE PROPOSED EQUAL RIGHTS AMENDMENT:
CONTEMPORARY RATIFICATION ISSUES 16 (updated 2019). By
1977, thirty-five states had ratified the ERA, three states short
of the thirty-eight needed to meet the threshold three-fourths of
the fifty States as required by Article V. See id. Meanwhile,
between 1973 and 1978, four states—Nebraska, Tennessee,
Idaho, and Kentucky—voted to rescind their ratifications of the
ERA. See Idaho v. Freeman, 529 F. Supp. 1107, 1112 n.2 (D.
Idaho 1981), vacated as moot sub nom. Nat’l Org. for Women,
Inc.v. Idaho, 459 U.S. 809 (1982). South Dakota, a fifth state,
passed a resolution stating that its prior ratification expired
after the seven-year deadline, unless three-fourths of the States
ratified by then. S.J. Res. 2, 54th Leg. (S.D. 1979).
On October 20, 1978, Congress decided to extend the
deadline for ratification three additional years to June 30,
1982. See H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978).
Some states and individuals challenged this extension, arguing
that Article V prohibited Congress from extending a
ratification deadline. See Freeman, 529 F. Supp. at 1153-54.
The Idaho District Court agreed. Id. The defendants in that
case petitioned for certiorari, which the Supreme Court
13
granted. Nat’l Org. for Women v. Idaho, 455 U.S. 918 (1982).
Before the Supreme Court could hear the case, however, the
extended deadline lapsed. As a result, the Supreme Court
dismissed the case as moot. Nat’l Org. for Women v. Idaho,
459 U.S. at 809. (We note this subsequent procedural history
for the sake of completeness only, and we do not rely upon it
to reach our decision. It is not clear what, if any, precedential
weight we should give to the Court’s order dismissing the case
on mootness grounds.).
There was no further activity by the states until 2018, when
Nevada became the thirty-sixth state to ratify the ERA. See
S.J. Res. 2, 79th Leg., Reg. Sess. (Nev. 2017). Shortly
thereafter, Illinois and Virginia became the thirty-seventh and
thirty-eighth states to ratify the amendment, arguably pushing
the ERA to the three-fourths threshold. See S.J. Res. Const.
Amend. 0004, 100th Gen. Assemb. Reg. Sess. (Ill. 2018); S.J.
Res. 1, Gen. Assemb., Reg. Sess. (Va. 2020).
C.
When Virginia became the thirty-eighth state to ratify the
ERA, the States urged the Archivist to certify and publish the
amendment as part of the Constitution. Shortly before Virginia
completed its ratification, however, some of the present
Intervenors sued the Archivist in the Northern District of
Alabama for injunctive and declaratory relief to block any such
certification and publication. See Complaint, Alabama v.
Ferriero, Doc. 1, No. 7:10-cv-2032 (N.D. Ala. Dec. 16, 2019),
ECF No. 1.
Facing these competing demands, the Archivist asked the
U.S. Department of Justice’s Office of Legal Counsel (“OLC”)
to determine the legal status of the ERA. The OLC then issued
a formal opinion stating that the ERA cannot be ratified unless
14
it is “propose[d] … anew.” Ratification of the Equal Rights
Amendment, 44 Op. OLC (slip op. 1) (Jan. 6, 2020) (hereinafter
“2020 OLC Opinion”). Relying on the OLC’s opinion, the
Archivist refused to certify and publish the amendment and
told Intervenors that if the situation changed, he would give the
Alabama plaintiffs at least forty-five days’ notice before
certifying the ERA, effectively resolving the Alabama district
court litigation. See Joint Stipulation and Plaintiffs’ Notice of
Voluntary Dismissal, Alabama v. Ferriero, No. 7:19-cv-2032
(N.D. Ala. Feb. 27, 2020), ECF No. 23.
Meanwhile, as stated above, the Plaintiffs filed this case in
2020, arguing that our district court should compel the
Archivist to certify and publish the ERA because it was ratified
by the requisite three-fourths of the States. And, as recounted
above, the District Court dismissed the mandamus action for
lack of standing and because the States had not shown a clear
and indisputable right to relief.
We agree that the States have not met their burden of
establishing a clear and indisputable right to relief.
II.
A.
To establish entitlement to mandamus relief, the plaintiff
must demonstrate 1) a clear and indisputable right to the
particular relief sought against the federal official, 2) that the
federal official is violating a clear duty to act, and 3) that the
plaintiff has no adequate alternate remedy. See Am. Hosp.
Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016) (citation
omitted). If the plaintiff cannot establish all three of these
threshold requirements, we must dismiss the case for lack of
subject matter jurisdiction. Id. And even if those three
15
requirements are met, the plaintiff must additionally show
“compelling equitable grounds” before we will grant
mandamus relief. In re Medicare Reimbursement Litigation,
414 F.3d 7, 10 (D.C. Cir. 2005) (cleaned up). We review a
district court’s determination as to whether a plaintiff has met
the three requirements for mandamus relief de novo, and we
determine whether the court may grant relief on equitable
grounds for abuse of discretion. Id.Ordinarily, we have an obligation to confirm that the
jurisdictional requirements of Article III standing are met
before proceeding to the merits of the case. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). The
obligation to find standing “is not simply technical,” because
proceeding to a decision on the merits where there is no
standing “would allow a federal court to issue what would
amount to ‘an advisory opinion without the possibility of any
judicial relief.’” California v. Texas, 141 S. Ct. 2104, 2116
(2021) (quoting Los Angeles v. Lyons, 461 U.S. 95, 129 (1983)
(Marshall, J., dissenting)). But this is not an ordinary case; it
is a mandamus action brought pursuant to 28 U.S.C. § 1361, in
which the threshold requirements for mandamus relief are
jurisdictional. See Am. Hosp. Ass’n, 812 F.3d at 189. “In other
words, ‘mandamus jurisdiction under §1361 merges with the
merits.’” Lovitky v. Trump, 949 F.3d 753, 759 (D.C. Cir. 2020)
(quoting In re Cheney, 406 F.3d 723, 793 (D.C. Cir. 2005) (en
banc)).
Where, as here, “both standing and subject matter
jurisdiction are at issue, [we] may inquire into either and,
finding [one] lacking, dismiss the matter without reaching the
other.” Moms Against Mercury v. FDA, 483 F.3d 824, 826
(D.C. Cir. 2007) (citation omitted). Because the issue of
whether the States have Article III standing is a close and
complex question, we turn first to the relatively easier
16
evaluation of whether the States have met the stringent
requirements for mandamus relief. See Lovitky, 949 F.3d at
759 (finding the district court lacked subject matter jurisdiction
because the plaintiff failed to establish the mandamus
requirements, and thus not reaching standing).
B.
Few legal standards are more exacting than the
requirements for invoking mandamus jurisdiction under §
1361. Mandamus is a “drastic” remedy, only available in
“extraordinary situations,” and thus “is hardly ever granted[.]”
In re Cheney, 406 F.3d at 729 (internal quotation marks and
citations omitted). For this reason, we have referred to
“mandamus [as] an option of last resort.” Process & Indus.
Devs. Ltd. v. Fed. Republic of Nigeria, 962 F.3d 576, 582 (D.C.
Cir. 2020) (citations omitted).
The “clear and indisputable right to relief” and “clear duty
to act” standards are equally stringent. To meet the “clear and
indisputable” requirement, the plaintiff must show that the
challenged action is “plainly and palpably wrong as [a] matter
of law.” United States ex rel. Chicago Great W. R.R. Co. v.
I.C.C., 294 U.S. 50, 61 (1935). “Accordingly, we will deny
mandamus even if a petitioner’s argument, though ‘pack[ing]
substantial force,’ is not clearly mandated by statutory
authority or case law.” In re Al Baluchi, 952 F.3d 363, 369
(D.C. Cir. 2020) (quoting In re Khadr, 823 F.3d 92, 99–100
(D.C. Cir. 2016)).
Likewise, to meet the “clear duty to act” standard, “[t]he
law must not only authorize the demanded action, but require
it; the duty must be clear and indisputable.” United States ex
rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931) (emphasis
added) (citations omitted); see also In re Bluewater Network,
234 F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus is “reserved
17
only for the most transparent violations of a clear duty to act”).
We will not grant mandamus to compel an official to perform
an act unless the official’s interpretation of her statutory duties
is “clearly wrong.” Ass’n of Am. Med. Colls. v. Califano, 569
F.2d 101, 110 n.80 (D.C. Cir. 1977). Even if we “might have
come to a different conclusion had the question of [statutory]
construction been presented to [us] in a distinct proceeding,”
“such a difference of opinion between the court and the officer”
does not justify mandamus relief. Reichelderfer v. Johnson, 72
F.2d 552, 554 (D.C. Cir. 1934) (“Mandamus will not lie if the
construction of the officer is a possible one, and there is room
for an honest difference of opinion.”). Thus, “if there is no
clear and compelling duty under the statute as interpreted, the
district court must dismiss the action.” In re Cheney, 406 F.3d
at 729.
Sometimes the analysis of the “clear and indisputable right
to relief” requirement is distinct from the analysis of the “clear
duty to act” requirement. Indeed, even where a plaintiff has
established that the official had a clear duty to act on his permit
application by a certain deadline, we will not award relief in
the form of an injunction that would cause the plaintiff’s
application to “jump the line” and receive consideration before
applications previously submitted by others. Am. Hosp. Ass’n,
812 F.3d at 191—92 (collecting cases). Thus, we must
carefully examine precisely what form of relief is sought by a
plaintiff to determine whether it seeks reallocation of
government resources or some other action that is ordinarily
beyond the power of mandamus. Cf. In re Barr Lab’ys, Inc.,
930 F.2d 72, 75—76 (D.C. Cir. 1991).
We see no such complication here because the States only
seek to compel the Archivist to certify and publish the ERA, a
declaration that the Archivist has failed to comply with his
statutory duties, and a declaration that the ERA is valid and a
18
part of the Constitution. None of these forms of relief implicate
the separation of powers concerns discussed above or raise any
other complications distinct from our consideration of the
Archivist’s duties. Thus, we can analyze the clear right to relief
and clear duty to act requirements for mandamus
“concurrently, as [we] often do[,]” Lovitky, 949 F.3d at 760,
and the question becomes whether the States have
“demonstrated a ‘clear and indisputable right to relief’ based
on a ‘clear and compelling duty’ to act, as required to support
mandamus relief.” Walpin v. Corp. for Nat’l & Cmty. Servs.,
630 F.3d 184, 187 (D.C. Cir. 2011) (quoting In re Cheney, 406
F.3d at 729).
The States advance three primary arguments. As we will
explain, none meet the high threshold of being clearly and
indisputably correct.
C.
The States’ first argument is that neither Article V of the
Constitution nor 1 U.S.C. § 106b (the relevant statute) permits
the Archivist to consider anything other than whether the
requisite number of states have ratified the proposed
constitutional amendment. Under this view, once the Archivist
was provided notice that thirty-eight states (three-fourths of the
states of the Union) had ratified the ERA, then pursuant to
Article V and § 106b, the Archivist had a clear duty to certify
and publish the ERA in the Statutes at Large as a part of the
Constitution. In essence, the States argue that the seven-year
ratification deadline in the resolution passed by Congress has
no legal relevance to the Archivist’s certification and
publication duties.
The problem for the States is that their interpretation is not
the only permissible construction of the relevant statute. The
19
Archivist’s certification and publication duties are set forth in
§ 106b as follows:
Whenever official notice is received at the
National Archives and Records Administration
that any amendment proposed to the
Constitution of the United States has been
adopted, according to the provisions of the
Constitution, the Archivist of the United States
shall forthwith cause the amendment to be
published, with his certificate, specifying the
States by which the same may have been
adopted, and that the same has become valid, to
all intents and purposes, as a part of the
Constitution of the United States.
1 U.S.C. § 106b (emphasis added). The statute expressly
provides that the Archivist’s certification shall “specify[]” that
the ERA “has become valid,” which can be reasonably
interpreted to give the Archivist authority to decide whether the
fact that some of the ratifications occurred after Congress’s
seven-year deadline affects their validity. This is the
interpretation proposed by the Archivist, and based solely on
the statutory text, we cannot say that this interpretation is
“clearly wrong,” Ass’n of Am. Med. Colls., 569 F.2d at 111
n.80, and “there is [no] room for an honest difference of
opinion,” Reichelderfer, 72 F.2d at 554.
We are not persuaded to the contrary by the States’
reliance on our decision in United States ex rel. Widenmann v.
Colby, 265 F. 998 (D.C. Cir. 1920). In Colby, the petitioner
challenged the Secretary of State’s certification and publication
of the Eighteenth Amendment, arguing that due to some
unspecified alleged impropriety, “the officials of the several
states … should not have issued the notices” of ratification. Id.20
at 999. Construing the predecessor to § 106b, we rejected the
petitioner’s argument, stating that the Secretary’s certification
and publication role was “purely ministerial,” and that he was
“obliged” to certify and publish the amendment “upon
receiving official notice from three-fourths of the several states
that the proposed amendment had been adopted.” Id. at 999—
1000. We further noted that the Secretary “was not required,
or authorized, to investigate and determine whether or not the
notices stated the truth.” Id.
We acknowledge that Colby provides some support for the
States’ interpretation of our present statute, but it is not
dispositive. We also stated in Colby that the petitioner “has no
interest” in the matter because, “even if the proclamation was
canceled by order of this court, it would not affect the validity
of the amendment.” Id. This ruling that the petitioner lacked
standing could be construed as rendering our statements on the
merits mere dictum. But even more importantly, Colby is not
dispositive because the case did not involve ratification
deadlines, and our observation that the Secretary could not
“look behind” the ratification notices can be harmonized with
an interpretation that the statute allows the Secretary to observe
the date that a state ratified the amendment, a fact that is
apparent on the face of the notice. Even if Colby compels an
understanding that the Archivist is not permitted to
“investigate” or “look behind” the notices proffered by the
several states, reading the words printed on the notice is not an
“investigation,” nor is it “looking behind” the notice. Thus,
reading the ratification notices to determine whether three-
fourths of the states ratified the amendment prior to the
deadline set by Congress is not clearly inconsistent with the
language and reasoning of Colby, whether holding or dictum.
The States’ contention that Article V prohibits the
Archivist from considering the ratification dates on the official
21
notices essentially merges with its second argument, which is
that the seven-year ratification deadline is ultra vires. Recall
that Article V gives Congress the power to “propose”
amendments, which
shall be valid to all Intents and Purposes, as Part
of this Constitution, when ratified by the
Legislatures of three fourths of the several
States, or by Conventions in three fourths
thereof, as the one or the other Mode of
Ratification may be proposed by the Congress
…
U.S. CONST. art. V.
The States submit that because the text of Article V only
specifies that Congress can select the “mode of ratification,”
Congress has no power to place any other limitations on the
states when it comes to ratification. According to the States,
“mode of ratification” refers solely to the process of ratification
either via a constitutional convention or a legislative vote,
because those two modalities are expressly mentioned
preceding the phrase “mode of ratification.” Thus, the
argument goes, affixing the timing of ratification falls outside
of the plain meaning of “mode of ratification” and is not
authorized by Article V. The States also argue that at the time
of the founding, several state constitutions included deadlines
for the ratification of proposed amendments, and thus the
absence of deadlines in Article V was deliberate, rendering any
attempt to “rewrite” Article V to include Congressional power
to set such deadlines improper.
As a matter of the plain meaning, the States’ textual
interpretation is not without force. It is certainly plausible to
read the word “mode” as only referring to how the amendment
22
may be ratified and not when. See United States v. Sprague,
282 U.S. 716, 733 (1931) (characterizing Congress’s role
pursuant to Article V as “the delegated agent of the people in
the choice of the method of ratification”) (emphasis added).
The problem for the States is that the Supreme Court has also
observed that Article V confers upon Congress an “incident[al]
… power” to establish “matters of detail” that flows from its
power to designate the “mode of ratification,” including the
establishment of a reasonable time limit for ratification. Dillon
v. Gloss, 256 U.S. 368, 376 (1921).
In Dillon, a prisoner held in custody for violating the
National Prohibition Act petitioned for a writ of habeas corpus,
arguing that the Eighteenth Amendment was invalid because
Congress placed a seven-year deadline in the text of the
amendment. The amendment was ratified by the requisite
number of states in just over a year, well before the seven-year
deadline. But the petitioner argued that Congress’s inclusion
of the deadline exceeded its authority pursuant to Article V and
thus voided the amendment, notwithstanding its timely
ratification. While acknowledging that the text of Article V
was silent on whether Congress could set a deadline for
ratification and that the Eighteenth Amendment was the first
proposed constitutional amendment to include a ratification
deadline, id. at 371—72, the Court held that the inclusion of
the deadline was consistent with Article V. “That the
Constitution contains no express provision on the subject is not
in itself controlling; for with the Constitution, as with a statute
or other written instrument, what is reasonably implied is as
much a part of it as what is expressed.” Id. at 373. The Court
reasoned that Article V conferred a “wide range of power”
upon Congress when proposing amendments, and thus
“entertain[ed] no doubt” that Congress may fix a definite
period for ratification that is reasonable, and that the seven-year
deadline it imposed was permissible. Id. at 373, 376.
23
In addition to Dillon, the language and reasoning of
Coleman v. Miller, 307 U.S. 433 (1939), undermines the
States’ argument that Congress does not have the power to
establish time limits for ratification. In Coleman, a group of
Kansas state senators challenged the state’s ratification of a
proposed Child Labor Amendment. Congress did not include
a ratification deadline in the proposed amendment, and state
legislators who opposed the amendment argued that the
ratification vote, coming thirteen years after Congress
proposed the amendment, was invalid. Id. at 451—53. Citing
Dillon, the legislators argued that “in the absence of a
limitation by the Congress, the Court can and should decide
what is a reasonable period within which ratification may be
had.” Id. at 452. Naturally, the opposing legislators asked the
Court to hold that thirteen years was an unreasonably long time
for Kansas to delay ratification.
The Court rejected the legislators’ arguments. The Court
explained that Dillon had decided that “Congress had the
power to fix a reasonable time for ratification,” id. at 452, and
thus it followed that “the question, what is a reasonable time,
lies within the congressional province,” id. at 454.
Accordingly, the Court stated that where Congress failed to set
a deadline when proposing an amendment, “the question
whether the amendment had been adopted within a reasonable
time” should be made by Congress, and Congress’s decision on
the matter “would not be subject to review by the courts.” Id.Thus, Coleman, like Dillon, supports the view that Congress
has the power to set a ratification deadline, whether at the time
it proposes a new constitutional amendment, or at some time
thereafter.
The States point out that the Court in Coleman went on to
declare that the question of whether an unreasonable amount of
24
time had lapsed prior to Kansas’s ratification was a non-
justiciable political question, id. at 454—55, rendering the
Court’s discussion of Congress’s power to set ratification
deadlines mere dictum. Similarly, the States argue that because
the Eighteenth Amendment was ratified in only one year (a
clearly reasonable period), the only issue necessary for the
Court’s decision in Dillon was whether the inclusion of a
ratification deadline in and of itself invalidated the amendment,
and therefore any further language in Dillon about Congress’s
power to set “reasonable” deadlines was also dictum. But as
the Court itself has explained, “while the language used in
[Dillon] was not in the strict sense necessary to a decision, it is
evident that [A]rticle [V] was carefully examined and that the
Court’s statements with respect to the power of Congress in
proposing the mode of ratification were not idly or lightly
made.” Sprague, 282 U.S. at 732—33. Thus, even assuming
the States are correct that the relevant language in Dillon and
Coleman is dictum, that language still provides some support
for the Archivist’s view that Congress had the power to set a
ratification deadline when it proposed the ERA. See Sierra
Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003) (“[C]arefully
considered language of the Supreme Court, even if technically
dictum, generally must be treated as authoritative.”) (cleaned
up). In sum, we cannot ignore the language and reasoning of
Dillon and Coleman, and the Court’s statements in those two
cases fatally undermine the contention that it is “clear and
indisputable” that Congress lacks the authority to set deadlines
for ratification, including the seven-year deadline in the ERA.
Finally, the States argue that even if Congress has the
power to impose a ratification deadline, the ERA’s seven-year
deadline is invalid. The States contend that Congress lacks
authority to set deadlines outside of the text of the amendment,
i.e., in the proposing clause of the amendment, as was done in
the ERA. The States point out that Congress placed the seven-
25
year ratification deadline in the Eighteenth Amendment as part
of its text. See U.S. CONST. amend. XVIII § 3. Thus, according
to the States, to the extent Dillon upheld Congress’s power to
impose the seven-year ratification deadline, the Court’s
reasoning is confined to deadlines placed in the text of the
amendment, rather than in language “separate” from the
text. We also find this argument to fall short of the clear and
indisputable standard.
Significantly, the States cite no persuasive authority
suggesting that Congress is prohibited from placing the mode
of ratification—ratification either by convention or the state
legislature—in the proposing clause of an amendment. At oral
argument, the States conceded that Congress has placed the
mode of ratification (ratification by legislature or ratification
by convention) in the proposing clause of every constitutional
amendment in the nation’s history, Oral Arg. at 13:00—13:40;
see 2020 OLC Opinion at 15 n.15 (collecting proposing
resolutions), and the States further concede that Congress’s
specification of this aspect of the “mode” in the proposing
clause does not invalidate any of those amendments. Id. If one
aspect of the mode of ratification can be placed in the proposing
clause, then why not also the ratification deadline? The States’
argument that the proposing clause is akin to the inoperative
prefatory clause in a bill is unpersuasive, not just because
proposed constitutional amendments are not “ordinary cases of
legislation,” Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378,
381 n.* (1798), but also because if that were the case, then the
specification of the mode of ratification in every amendment in
our nation’s history would also be inoperative. We do not find
it clear and indisputable that Congress’s consistent placement
of the mode of ratification in the proposing clause of every
amendment since the founding had no impact on the validity of
any of those amendments, while Congress’s placement of a
ratification deadline in the proposing clause of the ERA (side-
26
by-side with the mode of ratification) renders the deadline
invalid (but not the mode).
***
In conclusion, the States have not clearly and indisputably
shown that the Archivist had a duty to certify and publish the
ERA or that Congress lacked the authority to place a time limit
in the proposing clause of the ERA. Under the rigid standard
required for mandamus actions, this Court must affirm the
District Court’s dismissal of the States’ complaint on the
ground that the lower court lacked subject matter jurisdiction.
So ordered.