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Unpublished Paper
Judicial Review of Legislative Procedure: Determining Who Determines the Rules of Proceedings
ExpressO (2008)
  • Stephen Raher

In the early days of the republic, the United States followed the British trend of giving legislatures nearly complete freedom to determine their internal operating rules. To this day, forty-nine state constitutions contain rules-of-proceedings clauses, vesting legislatures with plenary rule-making power. While this power is still quite broad, it has gradually been limited by other constitutional provisions. Reacting to widespread legislative corruption, voters in the nineteenth century began placing procedural mandates in state constitutions. Such constitutional provisions endeavor to bring transparency and accountability to the legislative process by imposing voting procedures, reporting requirements, and other controls on the law-making process. Unfortunately, state courts have been overly hesitant in responding to legislative non-compliance with such procedures. Although separation-of-powers concerns undisputedly limit the judiciary's ability to interfere with legislative affairs, judicial review allows courts to invalidate laws passed in violation of constitutionally prescribed procedures. Too often courts will misapply separation-of-powers rules or misconstrue the rules-of-proceedings clauses in order to avoid reviewing legislative non-compliance. This paper explores two prominent barriers to judicial enforcement of constitutional rules: misapplication of the separation-of-powers doctrine and the common-law enrolled bill rule.

Publication Date
August 26, 2008
Citation Information
Stephen Raher. "Judicial Review of Legislative Procedure: Determining Who Determines the Rules of Proceedings" ExpressO (2008)
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