Senate Executive Business and the Executive Calendar

Senate Executive Business and the Executive Calendar

Order Code 98-709 GOV
Updated February 20, 2001
CRS Report for Congress
Received through the CRS Web
Senate Executive Business and the
Executive Calendar
Walter J. Oleszek
Government and Finance Division
In Article II of the Constitution, which addresses the executive branch, the Founding
Fathers assigned certain duties exclusively to the Senate. Among these obligations is
providing “advice and consent” to treaties and nominations. As the pertinent part of
Article II states:
[The President] shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint [high
government officials.]
In effect, the Senate acts in a unicameral capacity when it is engaged in “executive
business” — so-called because the Senate and the chief executive are constitutionally
involved in considering treaties and nominations.
The Senate has responsibilities under both Article I (outlining legislative prerogatives)
and Article II of the Constitution. As a result, the upper body handles legislative and
executive business differently. Legislative business concerns measures and matters
associated with the Senate's lawmaking responsibilities under Article I; executive business,
as mentioned, consists of treaties and nominations. Some of the difference between the
two types can be illustrated by defining executive calendar, executive journal, and
executive session and then by discussing how treaties and nominations are handled by the
Senate.
Executive Calendar and Executive Journal
The Senate maintains a separate Executive Calendar upon which treaties and
nominations are placed when they have been reported from committees. (Legislative
business is assigned to the Calendar of Business). The Executive Calendar is printed and
distributed separately to Senate offices when there is business on it. The Senate also keeps
a separate Executive Journal — as distinct from the Legislative Journal — for recording
executive session proceedings.
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Executive Session
Business on the Executive Calendar is considered in executive session. Typically, the
Senate will go back and forth during a work day between legislative and executive
sessions to handle matters on the two calendars. Legislative business is not considered in
executive sessions, nor is executive business handled in legislative sessions. On occasion,
when the Senate is in legislative session under unanimous consent procedure, it will act on
nominations “as in executive session.”
The common practice of the Senate is to convene in legislative session each day.
However, either by motion or unanimous consent, the Senate will resolve into executive
session to deal with executive business. Under Senate Rule XXII, the motion to go into
executive session (or return to legislative session) is nondebatable. Once in executive
session, the first item on the Executive Calendar is automatically before the Senate. If the
majority leader decides to call up a different matter from the Executive Calendar, his
motion to proceed is debatable. Precedent, however, provides a way to obviate the
possibility of having extended debate on the motion to proceed to a treaty or nomination.
When the majority leader offers the nondebatable motion in legislative session to resolve
into executive session, he will specify in that motion that the Senate will consider a certain
matter in executive session. That matter is then the pending business in executive session
once his motion is agreed to, thus eliminating the need for a debatable motion to
proceed. To be sure, the treaty or nomination itself is subject to extended debate.
Treaties and Nominations
Treaties are typically referred to the Foreign Relations Committee, with Senate Rule
XXX governing many treaty procedures. For instance, from the days of our early
Presidents, treaties negotiated by the White House have been submitted to the Senate with
an “injunction of secrecy.” Rule XXX stipulates that the Senate may remove this secrecy
injunction at any time, which it commonly and regularly does by unanimous consent when
the treaty is ordered to be printed and referred. Most of the time the Senate considers
treaties in open session, but there are occasions when secret sessions are held to discuss
classified information. Unlike nominations or regular legislation, treaties do not die at the
end of a Congress. A good example is the Genocide Treaty, which was submitted by
President Truman in 1949. Thirty-seven years later, it was finally ratified in 1986 by the
required two-thirds vote of the Senate.
Presidential nominations are referred to the appropriate committee of jurisdiction.
(Senate Rule XXXI regulates many of the proceedings on nominations.) Some
committees process thousands of nominees while others consider only a small number.
Once the nominations are taken up in executive session, they require approval by a
majority vote of the Senate. Under Senate Rule XXXI, the presiding officer asks: “Will
the Senate advise and consent to this nomination?” Nominations must be acted on in a
session or they die, and, as Rule XXXI states, they must “again be made to the Senate by
the President.” Under the Constitution, Presidents “shall have Power to fill up all
Vacancies that may happen during the Recess of the Senate.”