Federal and state governments have developed varying approaches to addressing the issue of whether to inquire into the legislative procedure that resulted in the enactment of legislation. Traditionally, courts have been reluctant to intervene, claiming, among other reasons, that the judiciary should not meddle with the workings of a coordinate branch of government. Over time, however, total deference has thawed and approaches now range from total deference to total examination.
This report examines the issues that arise when a state court reviews and examines the passage of legislation. The first part of the report discusses the major issues in the problem by examining the roles of the legislature and the judiciary, and their interaction when the issues of legislative procedure arise. The first part ends with discussion of the questions and concerns relevant to the analysis. The second part of the paper discusses the solutions as practiced in courts today and how each solution has attempted to solve the issues. The various approaches to resolving the issues create markedly different protection among states. Discussing the justifications for and against intervention presents a current picture of the interaction between two constitutional actors -- the legislature and the judiciary -- in the shadows of the separation of powers and judicial review. The last section makes several recommendations: After first addressing the judicial review of the legislative procedure, the report discusses the appropriate scrutiny to apply to a challenge to legislative procedure. Next, the report describes alternatives to judicial review, such as the intervention of other state actors of a review process within the legislature itself.
The report concludes that the court may be the better interim reviewer of cases of this kind, but a legislature that allows for challenge as part of the legislative process is better suited to republican government. In the absence of a legislature-based solution, the common law is an acceptable place for this law to develop until the legislature incorporates procedural challenges into the legislative process.