State of Illinois v. David Ferriero

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.”

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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

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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.