Enactment of a Law

Executive Business and Executive Sessions

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.

Nominations

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."

Treaties

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.

Amendments, 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.

Ratification of Treaties

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 countries.

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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