The Office of Legal Counsel of the Department of Justice, in response to a request for guidance from the National Archives and numerous other entities including Members of Congress, issued the following guidance which is legally binding upon the National Archives.
With Virginia about to provide the 38th purported ratification soon, it has become necessary to legally decide this matter, because 38 is the required number of of ratification.
The opinion essentially states that Congress may place a deadline for ratification. That has been clearly decided by the Supreme Court in the past. The opinion states that the deadline extension in 1978 is dubious at best. The opinion goes on to state that regardless of the legality of the extension, once the extended deadline expired in 1982, the Amendment died for good and cannot be revived.
The opinion goes on to state that the only way to revisit this issue is for Congress to start over again from the beginning. They must pass a new amendment by a 2/3rd’s vote of each House and the ratification process must start over again from the beginning.
So even when Virginia submits its ratification, the National Archives may not publish the amendment and the amendment will be considered to be null and void and of no legal effect.
It is highly significant that Justice Ginsburg, in a speech, fully concurs that the 1972 amendment is dead and that the process must start over from the beginning. She supports Congress doing so, but correctly concurs in the above opinion.
I concur, as does Justice Ginsburg, with the legal guidance just issued by the Department of Justice.