“People are more likely to take advantage of the right that our states have tried to secure for them,” Notz argued. “And in addition, other states and the federal government that may not have complied with their laws under the amendment will be encouraged to do so.”
In March 2021, the District Court dismissed the plaintiffs’ case on the grounds that the states had missed the Congressional ratification deadline, but also because they failed to show that the archivist’s refusal to certify the amendment had caused them any harm. concrete harm, specifically because the archivist’s publication has no legal effect. Notz argued Wednesday that the harm to states is that “our ratifications are not having the desired effect.”
“The harm of non-publication is the fact that our states ratified the amendment anticipating that it would be recognized as legitimate. And due to the inaction of the archivist, our purpose of ratifying the amendment is not being fulfilled,” Notz said.
The plaintiffs also argued that the 1979 deadline that Congress set for ratification was “unconstitutional,” since it was written into the proposed clause of the amendment and not the actual text. Notz said that Article V of the Constitution supports the argument that “Congress is free to propose amendments without interfering with the ability of the states to ratify amendments,” and thus the deadline in the proposed amendment clause it cannot be enforced against states.
“The drafters intended the states and Congress to be equal participants,” Notz said.
The defense of former archivist David Ferriero, who had refused to publish the amendment, urged the Court of Appeals on Wednesday to dismiss the case, arguing that the certification is “a ministerial act that has no substantive application.” Representing the defense, Sarah Harrington, the deputy assistant attorney general for civil appeals, also denied that the states had any harm that could be repaired by the archivist’s proclamation.
“They talk about practical effects, they don’t really talk about what those practical effects are,” Harrington said. “They just vaguely point out the practical consequences that could follow from a certification. But nothing legal derives from a certification”.