Enactment of a Law
Executive Business and Executive Sessions
| Executive Matters Generally |
Nominations | Treaties
| Amendments, Reservations, and Other Statements
| Ratification of Treaties |
Executive Matters Generally
The executive business of the Senate consists of nominations and
treaties submitted to the Senate by the President of the United States
for its "advice and consent." This business of the Senate is
handled separately from its legislative business.
Treaties are referred to the Committee on Foreign Relations. Nominations
are referred to one of the various committees of the Senate; usually this
is the committee that handled the legislation creating the position. When
committees report treaties or nominations to the Senate, they are placed
on the Executive Calendar, as distinct from the Calendar of Business, on
which legislation is placed. These two calendars are printed separately.
When the Senate considers nominations and treaties, it goes into
executive session, as distinct from legislative session, and a separate
Journal is kept of the proceedings thereon.
The scope of the Senate's authority to confirm Presidential nominations
is vast. It includes officers of the Government--specifically, ambassadors,
other public ministers and counsels, justices of the Supreme Court, all
other officers of the United States as set forth in the Constitution, and
such officers as Congress by law may designate.
A Presidential nomination requiring advice and consent must be approved
by a majority vote of the Senate. After a nomination is received and referred
to the appropriate committee, hearings may be held, and after the committee
votes, the nomination may be reported back to the Senate. If the nomination
is confirmed, a Resolution of Confirmation is transmitted to the White
House and the appointment is then signed by the President.
Presidential nominations may be made during recesses of the Senate.
The Constitution authorizes the President to "fill up" vacancies
that may happen during such recesses "by granting Commissions which
shall expire at the End of their next Session." Recess appointments
to the Supreme Court, however, troubled the Senate enough that it agreed
to a sense of the Senate resolution on August 29, 1960, stating that such
appointments "may not be wholly consistent with the best interests
of the Supreme Court, the nominee who may be involved, the litigants before
the Court, nor indeed the people of the United States." It further
stated "that such appointments, therefore, should not be made except
under unusual circumstances and for the purpose of preventing or ending
a demonstrable breakdown in the administration of the Court"s business."
All confidential communications made by the President shall be kept
secret, and all treaties which may be laid before the Senate, and all remarks,
votes and proceedings thereon, shall also be kept secret until the Senate
shall, by their resolution, take off the injunction of secrecy. When the
Senate is proceeding on treaty ratification, the treaty shall be read a
first time. Only a motion to refer it to committee, to print it in confidence
for the use of the Senate, or to remove the injunction of secrecy shall
be in order.
The rules for the consideration for executive business are different
from the rules for the consideration and disposition of legislative business.
Rule XXX provides that a treaty shall lie over for one day before the Senate
proceeds to consider it in executive session; then it may be read a second
time, after which amendments may be proposed. At any stage of these proceedings
the Senate may remove the injunction of secrecy from the treaty. When there
is no further debate or amendment to be proposed to the treaty, the Senate
proceeds to consider a resolution of ratification.
After the resolution of ratification has been proposed, no amendment
to the treaty is in order except by unanimous consent. On the other hand,
reservations, etc., are in order only during consideration of the resolution
of ratification, not while the treaty itself is being considered for amendment.
After the Senate completes considering both the treaty and the resolution
of ratification, it gives its final consent to the resolution by a two-thirds
vote of the Senators present. The vote on a motion to postpone indefinitely
requires the same two-thirds majority; all other motions and questions
arising in relation to a treaty are decided by a majority vote.
Reservations, and Other Statements
The Senate may stipulate conditions to a treaty in the form of amendments,
reservations, understandings, declarations, statements, interpretations,
and statements in committee reports. An "amendment" makes actual
changes in the language of the treaty.
The term "reservation" in treaty-making, according to general
international usage, means a formal declaration by a state, when signing,
ratifying, of adhering to a treaty, which modifies or limits the substantive
effect of one or more of the treaty's provisions as between the reserving
state and other states party to the treaty. In addition, the Senate may
attach to resolutions of ratification various "understandings,"
"interpretations," "declarations," and so on. The term
"understanding" is often used to designate a statement that is
not intended to modify or limit any of the provisions of the treaty in
its international operation, but instead is intended merely to clarify
or explain the meaning of the treaty or to deal with some matter incidental
to the operation of the treaty without constituting a substantive reservation.
Any such additions to the resolution are part of the instrument of ratification
no matter what they are called, and even if their effect is solely of an
internal domestic nature.
The word "ratification" when used in connection with treaties
refers to the formal act by which a nation affirms its willingness to be
bound by a specific international agreement. The basic purpose of ratification
of a treaty is to confirm that an agreement which two or more countries
have negotiated and signed is accepted and recognized as binding by those
The procedure by which nations ratify treaties is a concern of domestic
rather than international law. The Constitution does not use the word ratification
in regard to treaties. It says only that the President shall have the power,
by and with the advice and consent of the Senate, to make treaties. The
Constitution does not divide up the process into various component parts
which can be identified today, such as initiation, negotiation, signing,
Senatorial advice and consent, ratification, deposit or exchange of the
instruments of ratification, and promulgation. From the beginning, however,
the formal act of ratification has been performed by the President acting
"by and with the advice and consent of the Senate." The President
ratifies the treaty, but only upon the authorization of the Senate.
The Senate gives its advice and consent by agreeing to the resolution
of ratification. After it does so, the President is not obligated to proceed
with the process of ratification. With the President's approval, however,
the ratification occurs with the exchange of the instruments of ratification
between the parties to the treaty.
Treaties, unlike any other business considered by the Senate, stay
before that body once the President submits them until the Senate acts
on them or unless the President requests, and/or the Senate adopts an order
or resolution authorizing, their return to the President or the Secretary
of State. In 1937, 1947, and 1952, the Senate returned numerous treaties,
including some dating back as early as 1910, to the Secretary of State
or the President.
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