The full Article from which this Essay is derived reexamines the soundness of this doctrine in light of factual and doctrinal developments since it was adopted in 1892, and introduces a number of arguments against the doctrine. This Essay presents a shortened version of two of the Article’s key arguments: (1) that EBD amounts to an impermissible delegation of judicial and lawmaking powers to the Speaker of the House and President of the Senate and (2) that EBD is inextricably linked to the traditional English concept of parliamentary supremacy and is therefore incompatible with the U.S. Constitution.

 
I.
The Doctrine as an Impermissible Delegation of Judicial Authority

EBD requires complete judicial deference to the determination of the Speaker of the House and the President of the Senate that a statute has been validly enacted in compliance with the Constitution. The practical result, therefore, is that the Supreme Court has de facto relinquished its power to interpret and enforce the constitutional provisions of lawmaking and its authority to determine the validity of legislation. The Court ceded these judicial powers not to Congress as a whole, but to the exclusive and final authority of the legislative officers of Congress.

The question of whether a bill has been properly enacted in compliance with the Constitution inevitably raises questions of constitutional interpretation and questions of fact. The questions of what exactly are the procedural requirements set forth in Article I and what constitutes compliance with these requirements are undeniably questions of legal interpretation rather than questions of fact. The problem is that EBD takes the authority to answer these two questions away from the courts and places it exclusively in the hands of the Speaker of the House and the President of the Senate. The result is first an abdication of the courts’ authority to interpret the Constitution and to enforce it according to the judicial understanding of what the Constitution means.  But the greater malady is that EBD designates the legislative officers as the only interpreters and enforcers of the lawmaking provisions of the Constitution. In essence, it is the practical equivalent of a doctrine that would require courts to accept as conclusive the presiding officers’ attestation that an Act does not violate the Bill of Rights.

 
II.
The Doctrine as an Impermissible Delegation of Lawmaking Authority

EBD can also be seen as enabling an impermissible delegation of Congress’s lawmaking authority to the presiding officers. By treating any bill signed by the presiding officers and the President as “law,” and designating the presiding officers as the sole judges of the validity of laws, EBD allows, in effect, the creation of “law” through Congress’s enrollment procedure, rather than by Congress as a whole through the procedure mandated by Article I, Section 7.

The problem here is less that EBD allows an abduction of Congress’s lawmaking power by the legislative officers, but rather that it permits Congress to abdicate some of its lawmaking authority to the legislative officers, in order to circumvent the procedure set out in Article I, Section 7.

Imagine, for example, that Congress is interested in passing an extensive piece of legislation and that the House and Senate are able to agree on all of its provisions, save one specific issue. The Constitution provides the chambers of Congress with only two options: either agree on an identical form of the bill or fail to pass the bill at all. In certain situations, the choice between succumbing to the other chamber and sacrificing the entire bill presents a real dilemma. Both options might carry heavy costs, such as ceding important policy preferences, antagonizing voters, losing prestige, and so forth. In such situations, EBD provides, in effect, a tempting third option: instead of choosing between these two evils (and taking responsibility for this choice), each chamber can pass its own version and effectively delegate the authority to choose between them to the legislative officers. This scenario is less imaginary than one might assume. According to some accounts, a similar scenario occurred in the enactment of the Deficit Reduction Act of 2005.

The Supreme Court has repeatedly held (in other contexts) that “Congress may not delegate the power to legislate to its own agents or to its own Members”² and that “Congress may not exercise its fundamental power to formulate national policy by delegating that power . . . to an individual agent of the Congress such as the Speaker of the House of Representatives . . . .”³ These decisions clearly perceived “legislative self-delegation” by Congress to its own components as more objectionable than conventional delegations of lawmaking power to administrative agencies.⁴ A major reason for this distinction is that “[i]f Congress were free to delegate its policymaking authority . . . to one of its agents, it would be able to evade ‘the carefully crafted restraints spelled out in the Constitution.’”⁵ This concern is particularly applicable here. Although a bill that does not satisfy the requirements of Article I does not become a law, under EBD, the signatures of the presiding officers effectively turn invalid law into valid law. Consequently, EBD recognizes and permits, in effect, an alternative lawmaking procedure, which is inconsistent with the Court’s constant avowals that Congress “must follow the procedures mandated by Article I of the Constitution—through passage by both houses and presentment to the President” in order to legislate.⁶

 
III.
The Doctrine and Legislative Supremacy

According to the traditional English view of parliamentary supremacy (or sovereignty), Parliament, as the legal sovereign, is the source of all law, and therefore, there can be no legal limitations on its legislative competence, and no person or body may override or set aside its legislation. The orthodox English view considers lawmaking as a sovereign prerogative and the legislative process as a sphere of unfettered omnipotence. Following the orthodox view, English courts interpreted the principle of parliamentary supremacy as banning courts from questioning the validity of Parliament’s legislation on any ground, including defects in the enactment process. Indeed, in England, where EBD originated, this doctrine is viewed as “inextricably related to . . . parliamentary sovereignty.”⁷ In the United States, EBD was never explicitly linked to legislative supremacy. However, this section argues that EBD amounts to acceptance of the English concept of parliamentary supremacy.

EBD effectively insulates the legislative process from judicial review and, consequently, establishes Congress’s unfettered power to control this process. This doctrine has properly been characterized as “a prophylactic rule, which blocks all inquiry into the alleged procedural flaws in a bill’s adoption”⁸ and as “insulating legislative enactments from challenges based on faulty enactment procedures.”⁹ The doctrine represents, therefore, a judgment that the legislature may operate in the legislative process without any judicial oversight at all and, consequently, without any meaningful legal (as opposed to political) constraints.

Furthermore, EBD requires courts to shut their eyes even to the most obvious and egregious violations of the Constitution’s lawmaking requirements and “to hold statutes valid which they and everybody know [sic] were never legally enacted.”¹⁰ The doctrine compels courts to hold statutes valid even when it is clear beyond doubt and openly admitted that the statute was enacted in blatant violation of the constitutional requirements for lawmaking. Thus, the practical result of EBD is non-enforcement of the procedural lawmaking requirements of the Constitution. Consequently, these constitutional requirements become “binding only upon the legislative conscience.”¹¹ This permits habitual and flagrant disregard of constitutional requirements in the legislative process. Some state supreme courts have even argued that the consequence of EBD is that “the wholesome restrictions which the Constitution imposes on legislative and executive action become a dead letter . . . .”¹²

Hence, EBD amounts to a judicial declaration that the enactment process is completely beyond the reach of courts, that courts may not question the validity of legislation, and that the lawmaking provisions of the Constitution are (judicially) non-enforceable. This position comes very close to the orthodox English view of parliamentary supremacy, according to which there are no legal limitations on the legislative process and courts may not question the validity of legislation. By viewing the enactment process as a special sphere of governmental activity that is completely immune from judicial review, EBD creates an “island of legislative supremacy” in the United States.

 
IV.
The Doctrine’s Incongruity with the U.S. Constitution

Legislative sovereignty and the idea of a supreme, omnipotent legislature are, of course, entirely foreign to the U.S. Constitution. It is widely recognized that the Framers of the U.S. Constitution rejected the traditional idea that sovereignty is lodged in parliament, or in any other governmental body, in favor of the idea that “in America, the only legitimate sovereign was the People, who could delegate different powers to different governments in any way.”¹³ It is likewise acknowledged as “axiomatic” that the Framers rejected the idea of a supreme, omnipotent legislature in favor of the principle of limited government and the idea of a legislature that is constrained by a supreme Constitution which is prior and superior to the powers of the legislature.¹⁴ Marbury v. Madison has famously taken the additional step of holding that the principles of constitutional supremacy and constitutional restraint of the legislature require judicial enforcement of the Constitution.¹⁵ Academic criticism of Marbury notwithstanding, constitutional supremacy and judicial review are as central and well-settled in America as parliamentary sovereignty was (until recently) in the United Kingdom.

In treating lawmaking as a sovereign prerogative and the legislative process as a sphere of unfettered power immune from judicial review, EBD deviates from Marbury and from the fundamental and well-settled principles of American constitutionalism. In fact, the words of Chief Justice Marshall in Marbury rejecting the view that “courts must close their eyes on the Constitution” are strikingly applicable to EBD, as well:

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.¹⁶

Since the 1930s, several courts in constitutional democracies concluded that EBD is inconsistent with constitutional supremacy and unjustified in legal systems that have a written constitution. In common-law countries, such as Australia and South Africa, courts held that:

The principle that the courts may not examine the way in which the law-making process has been performed has no application where a legislature is established under or governed by an instrument which prescribes that laws . . . may only be passed if the legislature is constituted or exercises its functions in a particular manner . . . .¹⁷

Several civil-law constitutional democracies, such as Germany and Spain, also rejected their equivalent doctrines (the interna corporis acta doctrine) as part of their “transition from the model of parliamentary supremacy to the model of constitutional supremacy,” and as “a natural outgrowth of the explicit rejection of the English model [of] parliamentary supremacy.”¹⁸

Even the English judges acknowledged that EBD is justified in England by the fact that in “the United Kingdom there is no governing instrument which prescribes the law-making powers and the forms which are essential to those powers;”¹⁹ however, in legal systems where such an instrument exists, “a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law,”²⁰ and courts, in turn, have a “duty to see that the Constitution is not infringed and to preserve it inviolate.”²¹

The English origins of EBD; the contemporary discussions of this doctrine in England and the Commonwealth; and the development of judicial review of the legislative process in common-law and civil-law countries all seem to yield a similar conclusion: EBD appears to be contingent upon the orthodox view of legislative supremacy. Judicial review of the legislative process is considered to be a natural consequence of rejecting this view.

 
Conclusion

EBD has far-reaching ramifications that have been largely overlooked in existing discussions. The doctrine amounts to an impermissible delegation of power to the legislative officers of Congress and embodies a concept of legislative supremacy that was clearly rejected by the Framers of the Constitution. Indeed, the English courts based EBD on the fact that they “sit . . . as servants of the Queen and the [supreme] legislature.”²² In the United States, where both the Court and the legislature are “servants” of the supreme Constitution, EBD is inappropriate.

Acknowledgments:

Copyright © 2009 Georgetown Law Journal.

Ittai Bar-Siman-Tov is Associate-in-Law, Morris Fellow and Fulbright Scholar at Columbia Law School.

This Legal Workshop Editorial is based on the following full-length Article: Ittai Bar-Siman-Tov, Legislative Supremacy in the United States?: Rethinking the “Enrolled Bill” Doctrine. 97 GEO. L.J. 323 (2009).