Columbia Public Law & Legal Theory Working Papers

Title

Legislative Supremacy in the US?! Rethinking the Enrolled Bill Doctrine

Document Type

Article

Abstract

This article revisits the "enrolled bill" doctrine, which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the enrolled bill as unimpeachable evidence that a bill has been constitutionally enacted. It argues that the doctrine has far-reaching ramifications that were largely overlooked in existing discussions. The article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress. Second, it establishes that this doctrine is inextricably related to the traditional English concept of legislative supremacy. Although the doctrine was never explicitly linked to legislative supremacy in the US, this article argues that it amounts, in effect, to a view of the legislative process as a sphere of unfettered legislative supremacy, immune from judicial review. It argues, therefore, that the doctrine is incompatible with the US Constitution. The article also advances the existing discussions on this time-honored doctrine by reexamining the soundness of its major rationales.

Date of Authorship for this Version

March 2008