First, some background: In 1972, Congress passed the current ERA, forbidding the denial of equal rights on the basis of sex, to protect women from workplace, education, and jury-service discrimination. The amendment fell three states short of ratification by the original 1979 deadline, which Congress extended to 1982. The ERA then expired with no additional ratifications. But a 1997 law-review article noted that Congress, defying the usual process for amendments passed since the introduction of ratification deadlines, had failed to include the deadline in the ERA text sent to the states. Because the states did not ratify Congress’s deadline, the article argued they were not bound by it, and three states went on to ratify it: Nevada in 2017, Illinois in 2018, and now Virginia in 2020.

Read: Did Virginia just amend the Constitution?

Now that Virginia has voted to ratify, the state can transmit the ratification to the United States archivist, who can then certify the amendment and publish a list of ratifying states. Typically, amendments pass without procedural disputes, so certification is normally a ceremonial, apolitical process—and a rare one, given the infrequency of amendment passage. But Virginia’s ratification has forced the office of the current archivist, David Ferriero, to decide whether to certify. For now, Ferriero’s office has promised to follow the Justice Department opinion in lieu of a court order for certification.

That may be the best Ferriero can do for now; certifying a new amendment to the Constitution is no small thing, and Ferriero is wise not to jump the gun. But ultimately, Congress—not the Justice Department—should have the final word on the ERA’s certification.

There are a few reasons for this. First, Congress can void the ratification deadline, forcing certification. Article V of the Constitution (in which the process for amendments is spelled out) empowers Congress to propose and pass amendments and, according to the Supreme Court rulings Dillon v. Gloss and Coleman v. Miller, to set and refuse ratification deadlines. In Coleman, the Court noted that the text of Article V limits the amendment process to Congress and the state legislatures, making ratification “a question for the political departments, with the ultimate authority in the Congress.” Empowered by Article V and the Court’s Coleman decision, members of Congress have interpreted their Article V powers to include the modification and lifting of amendment deadlines.

Congress successfully exercised this power when voiding the 1979 ERA deadline. In 1978, Congress resolved that a simple-majority vote in the House and in the Senate was sufficient to reject the original 1979 ERA deadline and impose a new 1982 deadline—even though 35 states had already ratified it with the old deadline. Lifting the 1982 deadline, it follows, would also require a simple-majority vote in both chambers of Congress—and would result in affirming Virginia’s ratification and adding the ERA to the Constitution.