Nuclear Cooperation Agreement with Russia: Statutory Procedures for Congressional Consideration and Their Implementation
Nuclear Cooperation Agreement with Russia:
Statutory Procedures for Congressional
Consideration and Their Implementation
Updated November 26, 2008
Richard S. Beth
Specialist on the Congress and Legislative Process
Government and Finance Division
Nuclear Cooperation Agreement with Russia:
Statutory Procedures for Congressional
Consideration and Their Implementation
On May 13, 2008, President Bush submitted to Congress a proposed agreement
for nuclear cooperation with the Russian Federation. On September 8, the President
announced that he was rescinding his certification of the proposed U.S.-Russia
nuclear cooperation agreement. This action, in effect, withdrew the proposed
agreement from further congressional consideration for the foreseeable future
Under the Atomic Energy Act (AEA), the text of such an agreement is to be
submitted to the committees of jurisdiction for at least 30 days of consultation, and
the agreement itself is then to be submitted to Congress for 60 days, during which the
committees are to consider it and report recommendations. The AEA requires the
President to state his approval of the agreement before the 60-day period begins, but
he did so in his initial letter of submission, perhaps rendering moot the consultive
purpose of the 30-day period.
Such an agreement would go into effect unless a joint resolution of disapproval
is enacted by the end of the 60-day period, which, the President’s submittal
stipulated, will immediately follow the 30-day period. Both periods are measured in
“days of continuous session,” which includes all days except recesses of either house
of more than three days, with “continuity” broken only by the sine die adjournment
of a Congress. September 8, when the August recess is to end, is to be the 59th day
of the full 90-day period, and the projected sine die adjournment on September 26
may be only the 77th day. A later sine die adjournment, a “lame duck” session, recall
by the President or by congressional leadership, or the use of pro forma sessions
instead of recesses could allow the 90th day to be reached within the 110th Congress.
Otherwise, the agreement could not take effect until the end of a new disapproval
period starting anew after the 111th Congress convenes in January, 2009.
The AEA prescribes an expedited procedure for Senate consideration, including
committee discharge, a non-debatable motion to proceed to consider, a 10-hour limit
on consideration, and a prohibition on amendments. For the House, the Committee
on Rules is invited to prescribe similar terms of consideration. A disapproval
resolution was introduced in the House on May 14, and another, by committee
leaders, as the AEA prescribes, at the start of the 60-day period on June 24. On the
same date, Senate committee leaders introduced a resolution of approval. Although
enactment of the approval resolution neither block nor hasten the effectiveness of the
agreement, it could apparently be considered under the expedited procedure, and
might thereby prevent expedited action on a disapproval resolution. Congress could
also disapprove the agreement, or approve it with conditions, by enacting an
alternative measure under its general rules. The President might likely veto any
disapproval or conditional approval, in which case the agreement would go into
effect unless Congress overrides the veto before the end of the disapproval period.
Inasmuch as the President may take 10 days for his action, the timely enactment of
a disapproval resolution may be feasible only if Congress initially passes it with more
than 10 days remaining in the disapproval period. This report will not be updated.
Most Recent Developments..........................................1
Introduction and Overview..........................................1
Nuclear Cooperation with Russia and the Atomic Energy Act...........1
Summary of Procedural Requirements.............................3
Period for Congressional Disapproval..................................5
Definition of “Continuous Session”................................5th
Days of Continuous Session in the 110 Congress....................7
Potential Effect of Alterations in Schedule..........................9
“Lame Duck” Session......................................9
Leadership or Presidential Action to Reconvene Congress.........10
Pro Forma Sessions.......................................11
Possible Need to Renew Action in the 111th Congress................12
Statutory Procedure for Disapproval..................................14
Submission of the Agreement...................................14
Requirements for Submission...............................14
Submission of Agreement with Russia........................15
Resolutions of Disapproval.....................................15
Requirements for Disapproval Resolution......................15
Resolutions on the Agreement with Russia.....................16
Consultations With Committees.............................17
Committee Action on Agreement with Russia..................17
Discharge of Committee.......................................17
Timing of Discharge......................................17
Possible Discharge of Agreement with Russia..................18
Final Congressional Action.....................................21
Presidential Action ...........................................22
Nuclear Cooperation Agreement with
Russia: Statutory Procedures for
Congressional Consideration and
Most Recent Developments
On September 8, 2008, President George W. Bush officially notified Congress
that, in light of military actions taken by the Russian Federation against the nation of
Georgia, he was rescinding his statutorily required certification of the proposed U.S.-1
Russia nuclear cooperation agreement. The President’s action, in effect, withdrew
the proposed agreement from further congressional consideration for the foreseeable
The President’s notification raised the possibility that should circumstances
“permit future reconsideration of the proposes Agreement, a new determination will
be made and the proposed Agreement will be submitted for Congressional review”
pursuant to section 123 of the Atomic Energy Act.2 In light of these developments,
this report is being archived and will not be updated.
Introduction and Overview
Nuclear Cooperation with Russia and the Atomic Energy Act
On May 13, 2008, President Bush submitted to Congress a proposed agreement
for civil nuclear cooperation with the Russian Federation.3 In accordance with the
non-proliferation provisions of the Atomic Energy Act, as amended (AEA or “the
act”),4 agreements for nuclear cooperation may go into effect only following an
1 Congressional Record, daily edition, vol. 154, October 8, 2008, p. S8125.
3 For information on policy issues associated with the proposed agreement with Russia, see
CRS Report RS22892, U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for
Congress, by Mary Beth Nikitin.
4 Legislation governing atomic energy was originally enacted in the Atomic Energy Act of
amended by Atomic Energy Act of 1954 (Public Law 703, 83 Cong., 68 Stat. 919), which
added the initial version of the non-proliferation provisions, now codified chiefly at 42
opportunity for congressional consideration defined by section 123. of the act (42
U.S.C. 2153),5 on account of which these agreements are sometimes known as “123
agreements.” For an agreement like that with Russia, the effect of these provisions
is that the agreement will go into effect at the end of 90 “days of continuous session”
of Congress after it is initially submitted, unless, during that time, a joint resolution
disapproving the agreement is enacted through procedures defined in section 130. of
the act (42 U.S.C. 2159).
This report first sketches the procedures prescribed by the AEA for
congressional action in relation to agreements of this kind, then summarizes
legislative proceedings occurring in relation to the proposed agreement with Russia
since its May 13 submittal. Thereafter, the report addresses several questions of the
implementation and intent of these statutory requirements that are raised by their
application to the proposed agreement with the Russian Federation. Special attention
is given to the definition of “days of continuous session” and the consequences if the
requisite period is not completed before the end of the 110th Congress.
Specific questions addressed in this report about congressional action on the
proposed agreement and its potential effects include:
!What does the President submit, when, to whom, and with what
!How and when are resolutions of disapproval (or approval)
!How might the requirement for automatic discharge of a resolution
of disapproval (or approval) come to bear?
!How might congressional action on a resolution of disapproval (or
approval) come about?
!What proceedings would have to occur for the nuclear cooperation
agreement with Russia to be disapproved or approved?
!What possibilities of disapproval (or approval) of the agreement
exist other than pursuant to the statutory procedures?
U.S.C. 2151-2160d (Subchapter X, “International Activities,” of Chapter 23, “Development
and Control of Atomic Energy,” of Title 42, “Public Health and Welfare”). These
provisions included pertinently sec. 123. (68 Stat. 940, 42 U.S.C. 2153), which defines
requirements for nuclear cooperation agreements and for their approval. Sec. 308 of the
Nuclear Nonproliferation Act of 1978 (P.L. 95-242, 92 Stat. 120 at 139) added the initial
version of section 130. (42 U.S.C. 2159), which establishes expedited procedures for
legislation to approve or disapprove nuclear cooperation agreements. Section 301(b)(2)(B)
of P.L. 99-64 (99 Stat. 120 at 161) added subsection 130.i. (42 U.S.C. 2159(I)), which
establishes the expedited procedure now applicable to the proposed agreement with the
5 This report follows the form of the enacting statutes in using periods in the designation of
sections and subsections (for example, sections 123.d. and 130.i.). The codified versions
of these provisions are designated with the more usual parentheses (for example, 42 U.S.C.
Summary of Procedural Requirements
Section 123.a. of the AEA establishes nine requirements that a proposed
agreement for nuclear cooperation must either meet or receive presidential exemption
from meeting. The remainder of section 123. prescribes different regulations for
congressional action depending on whether or not the agreement requires this
exemption and on other features of its terms. As explained below, the procedural
regulations applicable specifically to the proposed agreement with Russia depend
principally on three features of the agreement: (1) it requires no exemption for
failure to meet any of the nine requirements; (2) it includes provisions relating to
“large reactors;” and (3) it covers only civil uses of atomic energy.
Section 123.a. provides that if a proposed agreement requires no exemption, it
may go into effect at a prescribed point unless Congress acts before then to
Section 123.b. specifies that unless an agreement involves military-related uses
of nuclear energy, the President is to submit its text to the Senate Committee on
Foreign Relations and the House Committee on Foreign Affairs for a period of “not
less than 30 days of continuous session” for consultation.6 This submission is to be
accompanied (for agreements like that with Russia) by an unclassified Nuclear
Proliferation Assessment Statement (NPAS) prepared by the Department of State.7
Section 123.d. directs that if the agreement involves large reactors,8 the
President is to submit it, along with additional supporting documents, to Congress
for a period of 60 “days of continuous session.” The supporting documents include
(1) any classified annexes to the NPAS; and (2) a statement of the President’s
approval of the agreement and determination that it “will promote, and will not
constitute an unreasonable risk to, the common defense and security.” The measure
is to be referred to the same two committees as specified under section 123.b., which
are, during this 60-day period, supposed to hold hearings on the proposal and report
recommendations to their respective chambers. The agreement goes into effect
unless, by the end of the 60-day period, a joint resolution of disapproval is enacted
into law pursuant to procedures prescribed by section 130.i.
Section 130.i. specifies the text for this joint resolution of disapproval and
provides that a joint resolution with respect to the agreement be automatically
introduced in each chamber, at the beginning of the 60-day period, in the House by
6 The requirements of section 123.b. (42 U.S.C. 2153(b)) apply to agreements not “arranged
pursuant to subsection 91(c), 144(b), 144(c), or 144(d)” of the Atomic Energy Act (42
U.S.C. 2121(c), 2164(b), 2164(c), or 2164(d)). These provisions cover military uses of
7 The NPAS is described in section 123.a. (42 U.S.C. 2153(a)).
8 The requirements of section 123.d. (42 U.S.C. 2153(d)) apply to agreements “entailing
implementation of [42 U.S.C.] 2073, 2074(a), 2133, or 2134 ... in relation to a reactor that
may be capable of producing more than five thermal megawatts or special nuclear material
for use in connection therewith.” In practice, this category excludes chiefly small reactors
used for purposes of research alone.
the chairman and ranking minority member of the Committee on Foreign Affairs, and
in the Senate by the two party floor leaders, or, in either case, by their designees. If
a committee of referral does not report a joint resolution with respect to the
agreement within 45 days,9 it is automatically discharged from further consideration
of the introduced resolution. For the Senate, section 130.i. provides that the joint
resolution may be called up on a non-debatable motion, time for consideration is
limited to 10 hours, and amendments are prohibited. For the House, the statute
invites the Committee on Rules to report a special rule incorporating comparable
President Bush submitted the proposed agreement for civil nuclear cooperation
with the Russian Federation to Congress on May 13, 2008.10 The President’s letter
of submittal stated that the agreement was accompanied by his “approval and
determination,”11 as well as by the requisite unclassified NPAS.12 The submittal
letter also stated that the classified annex would be submitted separately (and it
appears, in fact, that the committees of jurisdiction had already received this annex
on May 12).
The inclusion of the unclassified NPAS met the requirements of the AEA to
begin the 30-day period, and the inclusion of the President’s “approval and
determination,” together with the separate submission of the classified annex to the
NPAS, met the requirements for the 60-day period to start. The President’s letter of
submittal, accordingly, stated that this submission “shall constitute a submittal for
purposes of both sections 123.b. and 123.d. of the Atomic Energy Act.”
The letter of submittal, nevertheless, also expressed an understanding that the
two periods would not both commence immediately, but instead would occur
consecutively. It went on to declare that the 60-day period shall commence “upon
completion of the 30-day period.” Although it is unclear that the President can
determine by declaration when the statutory periods start and end, these stipulations
appear to conform to recent the past practice of both the President and Congress on
agreements for nuclear cooperation. These practices appear to have the effect of
9 Section 130.i. does not specify that the 45 days allowed for committee action are “days of
continuous session.” They would, instead, presumably be treated as calendar days or,
alternatively, as legislative days. The significance of these differences is addressed below
in the section on “Discharge of Committee.”
10 U.S. Congress, House, Proposed Agreement Between the United States of America and
the Russian Federation Concerning Peaceful Uses of Nuclear Energy, message from the
President of the United States transmitting a proposed agreement between the Government
of the United States of America and the Government of the Russian Federation for
cooperation in the field of peaceful uses of nuclear energy, pursuant to 42 U.S.C. 2153(b),thnd
(d), H.Doc. 110-112, 110 Cong., 2 sess. (Washington: GPO, 2008).
11 Ibid., p. 3.
12 Ibid., pp. 26-51.
treating the two periods, for practical purposes, as a single uninterrupted period of 90
days of continuous session.
In accordance with section 123. of the AEA, the President’s message and the
accompanying papers were referred to the House Committee on Foreign Affairs and
the Senate Committee on Foreign Relations.13 On May 14, 2008, a joint resolution
of disapproval with the text required by section 130.i. was introduced in the House
by a member of the Committee on Foreign Affairs.14 On June 12, the House
Committee held a hearing on “Russia, Iran, and Nuclear Weapons: Implications of
the Proposed U.S.-Russia Agreement,” at which John C. Rood, Acting Under
Secretary of State for Arms Control and International Security, appeared as a witness.
On June 17, the Senate Committee on Foreign Relations received a closed briefing
from William J. Burns, Under Secretary of State for Political Affairs, on “Russia,
Iran and U.S.-Russian Nuclear Cooperation.”
Under the stipulations stated in the President’s letter of submittal, as explained
below in “Days of continuous Session in the 110th Congress,” the 30-day consultation
period ended on June 23 and the 60-day period for congressional action began on
June 24. On June 24, pursuant to the statute, a joint resolution to disapprove the
agreement was submitted in the House, and a joint resolution to approve the
agreement was submitted in the Senate.15 The possible consequences of these
different forms of resolution being submitted are considered below, in the section on
“Resolutions of Disapproval.”
Period for Congressional Disapproval
Definition of “Continuous Session”
Section 123. of the AEA specifies that the two time periods involved in the
proceedings prescribed for the nuclear cooperation agreement with Russia are to be
measured in days of continuous session, as defined by section 130.g. of the AEA.
Section 130.g.(2) stipulates that
[F]or purposes of this section insofar as it applies to section 123 ... continuity of
session is broken only by an adjournment of Congress sine die; and ... the days
on which either House is not in session because of an adjournment of more than
13 “Proposed Agreement With Russian Federation for Cooperation in the Field of Peaceful
Uses of Nuclear Energy — Message from the President of the United States (H.Doc. No.
154, May 13, 2008, pg. H3701; “Text of a Proposed Agreement Between the Government
of the United States of America and the Government of the Russian Federation for
Cooperation in the field of Peaceful Uses of Nuclear Energy — PM 48,” message inserted
in Senate proceedings, ibid., pp. S4103-S4104.
14 H.J.Res. 85 (Markey).
15 H.J.Res. 95 (Berman and Ros-Lehtinen, by request); S.J.Res. 42 (Biden and Lugar, by
three days are excluded in the computation of any period of time in which16
Congress is in continuous session.
The effect of this provision is that (1) any period of continuous session terminates
only with the final adjournment of the last session of a Congress; but (2) in
determining the length of a period of continuous session, any day on which either
house is in a recess of its session is not counted. This arrangement is apparently
intended to prevent a situation in which an agreement would go into effect only
because Congress was not in session, or did not remain in session long enough to act
on a disapproval resolution.
The definition established by section 130.g.(2) seems intended to correspond to
the constitutional requirement that neither house may adjourn for more than three17
days without the consent of the other. Congress may adjourn for more than three
days either (1) by ending its annual session (an adjournment sine die), or (2) by
taking a recess within its annual session, such as the “non-legislative periods,” or
“state” (or “district”) work periods” customarily scheduled, for example, around
Memorial Day and Independence Day each year. In both cases, the two houses
typically grant each other the required consent by adopting a concurrent resolution.18
Under the statutory definition, accordingly (1) continuity of session is broken
just when Congress adjourns its last session pursuant to a concurrent resolution for
a sine die adjournment; and (2) the count of “days of continuous session” pauses on
exactly those days on which both houses, or either one of them, is not in session
pursuant to a concurrent resolution for a recess of more than three days.19 On the
other hand, a day on which either house, or both, is out of session for three
consecutive days or fewer counts as a day of continuous session. If both houses
adjourn from Friday to Tuesday, for example, not only the days each house is in
session during the preceding and following week, but also the intervening three days
of the extended weekend, count as days of continuous session.
Under the definition of section 130.g.(2), accordingly, until the final sine die
adjournment of the 110th Congress, every calendar day, Saturdays and Sundays
included, will count as a day of continuous session except those on which at least one
house is out of session pursuant to a concurrent resolution providing for a recess ofth
more than three days. Under the Constitution, however, the term of the 110
Congress expires on January 3, 2009. At some point before then, as a result, theth
110 Congress must adjourn its last session sine die, or else it will automatically
stand adjourned sine die at noon on January 3. As Under Secretary Rood affirmed
16 Section 130.g.(2) (42 U.S.C. 2159(g)(2)).
17 In figuring the length of an adjournment, Sundays are not counted, but “either the day of
adjourning or the day of meeting ... must be taken into the count.” W[illia]m Holmes Brown
and Charles W. Johnson, House Practice: A Guide to the Rules, Precedents, and Procedures
of the House (Washington: GPO, 2003), chapter 1, sec. 10.
18 A concurrent resolution is used because this form of measure requires the agreement of
both houses, but is not presented to the President for approval.
19 Several other expedited procedure statutes also make use of this means of counting days.
in testimony before the House Committee on Foreign Affairs on June 12, this sine
die adjournment will put an end to the existing period of continuous session.20 If
Congress adjourns sine die without acting on the proposed agreement, and before 90
days of continuous session are completed, the agreement will not take effect until a
new period of continuous session, beginning ab initio when the 111th Congress
convenes, has reached the requisite length.21
In colloquy with members of the Committee, Under Secretary Rood also
expressed his understanding that the 90-day period was measured separately in each
house and, for each house, included only the days on which that house was in session.
On this understanding, for example, if the House were out of session on Thursday
while the Senate met, and the Senate were out of session on Friday while the House
met, one day of continuous session would be counted for each chamber.22 This
interpretation appears to overlook that days of continuous session may occur even if
one house is, or both houses are, out of session (as long as they are out of session for
no more than three consecutive days). In addition, section 131.g. is not couched in
terms of separate counts in each house, but explicitly refers to the continuous session
of Congress as a whole. The language quoted at the outset of this section implies that
a single count covers both houses, and states explicitly that when either house takes
a recess (of more than three days), the count of days pauses until both houses are
back in session. The estimates in the following sections follow this last interpretation
of the quoted provision.
Days of Continuous Session in the 110th Congress
After President Bush submitted the nuclear cooperation agreement with Russia
on May 13, 2008, Congress remained in continuous session, as defined by the AEA,
until May 22, which amounted to nine days of continuous session. The House then
entered a recess for Memorial Day, so that the count of days of continuous session
paused.23 (A non-legislative period of the Senate occurred during the same week, but
that body took no adjournment of more than three days, meeting instead in periodic
pro forma sessions, which the recess resolution had authorized it to do.)24 On June
3, when the House reconvened, the count resumed, making that day the 10th day of
continuous session. As a result, June 23 was the 30th day of continuous session and
the last day of the 30-day period for consultation. In accordance with the declaration
20 CQ Transcriptwire, “House Committee on Foreign Affairs Holds a Hearing on Russia,
Iran, and Nuclear Weapons,” June 13, 2008, available at [http://transcriptswire.cq.com/do/
transcriptV i ew?id=259144].
21 The question of how long the period of continuous session in the new Congress would
have to be is addressed below in the section on “Possible Need to Renew Action in the 111th
22 CQ Transcriptwire, “House Committee on Foreign Affairs Holds a Hearing on Russia,
Iran, and Nuclear Weapons,” June 13, 2008.
23 This recess occurred pursuant to H.Con.Res. 355, adopted May 22, 2008.
24 The effects of pro forma sessions on the procedural requirements of the AEA are
explained in the section on “Pro Forma Sessions,” below.
in the President’s letter of submittal, June 24, being the 31st day of the overall 90-day
period, became the first day of the 60-day period for congressional action.25
For the Independence Day non-legislative period, both houses adjourned for
more than three days, but the recess of the House extended from June 27 through July
7, whereas that of the Senate extended from July 1 through July 6. On this occasion
again, as a result, it was the schedule of the House, which took the longer recess, that
defined the period excluded from the count of days of continuous session. The last
day of House session before the recess, June 26, was the 33rd day of continuous
session in the overall 90-day period, and the day of its return, July 8, became the 34th
No further recess of either house occurred until August 1, which accordingly
represented the 58th day of continuous session. Congress then entered a summer non-
legislative period pursuant to H.Con.Res. 398, which stipulated that both chambers
reconvene on September 8. During this non-legislative period again, the Senate
arranged to meet in periodic pro forma sessions, so that no adjournment of more than
three days occurred in that chamber. The House, on the other hand, did not schedule
any pro forma sessions in the intervening period, so that an adjournment of more
than three days did occur there. Inasmuch as one house was taking an adjournment
of more than three days, the count of days of continuous session paused during this
period. Unless both Houses return before then pursuant to either the contingent
reassembly provisions of H.Con.Res. 398 or a call by the President, September 8 will
be the 59th day of continuous session.
Any further projection of days of continuous session is dependent on
assumptions about subsequent recesses and an adjournment sine die. The schedules
previously announced by the majority party leadership in each chamber project no
further recesses during the present session.26 The House schedule projects
adjournment sine die on September 26, 2008; the Senate schedule includes no
projection for this event. If the chambers follow these schedules, it appears that
September 26, 2008 will be the 77th day of continuous session.27 Accordingly, if
Congress adjourns sine die on this date, continuity of session will be broken before
the 90th day is reached, and the proposed agreement with Russia will not be able to
take effect before the end of the 110th Congress. A new period of continuous session
will begin when the 111th Congress convenes, and the agreement with Russia will be
25 This calculation, like all the calculations and projections presented in this report,
presumes that the first day of the 30-day period is the day following the submission of the
text to the committees, and that the first day of the 60-day period is the day immediatelyth
following the 30 day of the 30-day period. These ways of counting conform to the usual
congressional practice for day counts.
26 The schedules used in making these calculations were those posted at
[http://www.senate.gov/legislative/resources/pdf/2008_calendar.pdf] for the Senate and
[http://www.majorityleader.gov/docUploads/2008-CALENDAR.pdf ] for the House, both
visited on July 2, 2008.
27 This figure is one day less than that estimated in the initial edition of this report. The
difference occurs because the House began its Independence Day recess on June 27 rather
than, as originally scheduled, June 28.
able to take effect under the AEA only at the conclusion of this new period of
continuous session.28 If, on the other hand, Congress does not adjourn sine die on
September 26, and neither house takes any further recess, the 90th day of continuous
session could be reached on October 9, and the agreement with Russia could
accordingly take effect on that date.29
The ability of Congress to disapprove the proposed agreement depends not only
on whether the two houses can complete their initial action on a resolution of
disapproval before the prescribed period of continuous session expires. Section 123.
of the AEA prescribes that the agreement can be disapproved only if the joint
resolution of disapproval is actually enacted into law within the prescribed period.
If the President vetoes a disapproval resolution, as a result, the agreement will go into
effect unless both houses can complete action to override the veto within 90 days of
continuous session after its submission. Inasmuch as the President has 10 days to act
on a measure presented for his approval (Sundays excepted), Congress might, in
practice, be unable to prevent an agreement from taking effect unless it completes its
initial action on the disapproval resolution by about the 88th day of continuous
session. These consequences are pursued in more detail in the later section on
Potential Effect of Alterations in Schedule
Whether or not the continuous session of the 110th Congress reaches its 90th day
before its adjournment sine die could potentially be altered in any of several ways.
First, Congress could adopt concurrent resolutions establishing additional recesses
of its session, including a recess spanning the election, after which Congress would
reconvene in a “lame duck” session. Second, Congress could be reconvened, either
during a recess or after a sine die adjournment, either by its leadership or by pursuant
to the constitutional authority of the President. Finally, through the use of periodic
pro forma sessions in both houses, a scheduled recess period could be converted into
a period of continuous session.
“Lame Duck” Session. In some recent election years, Congress did not
adjourn sine die before the elections, but instead recessed its session in early autumn
and reconvened after election day for what is called a “lame duck session” (more
accurately, a “lame duck” portion of its regular session). The leadership of both
houses is said to intend to avoid this practice in the 110th Congress by concluding the30
business of the session, and adjourning sine die, before election day (November 4).
28 The required length of this new period of continuous session, and other considerations
relevant to the extension into a new Congress of action on the proposed agreement withth
Russia, are pursued below in the section on “Possible Need to Renew Action in the 111
29 The actual schedule of Congress during this period, however, may be affected by the
occurrence of Yom Kippur on this date, as well as by that of Rosh Hashana on September
30 Christian Bourge with Ben Schneider contributing, “House, Senate Dems Appear Intent
on Avoiding Lame Duck,” CongressDaily PM, July 14, 2008, available at
If, however, Congress in the end takes a recess spanning the election, the occurrence
of the 90th day of continuous session will depend on the dates of recess and
For example, Congress might recess on September 26 and reconvene on
November 12 (the day after Veterans’ Day). Under these conditions, if September
calendar day following the reconvening, which, in the case supposed, could be
November 24 (the Monday preceding Thanksgiving). If the 110th Congress remained
in session until this date and on this schedule without a disapproval resolution being
enacted, the agreement with Russia would be able to take effect after this date.
Leadership or Presidential Action to Reconvene Congress. In recent
years, concurrent resolutions providing for recesses of the session or sine die
adjournments have normally provided contingent authority for the bicameral
leadership to call Congress back into session before it is scheduled to reconvene, “if31
the public interest shall require it.” It is also possible that the President might use
his constitutional authority to reconvene Congress during a scheduled recess, or after32
a sine die adjournment and before the scheduled opening of the following session.
If, by either of these means, Congress were to be reconvened during any recess,
including one spanning the election, the days on which Congress met pursuant to that
call would be converted from recess days to days of continuous session. If as many
as 13 additional days of continuous session occurred as a result of this change, theth
90 day of continuous session counting from the May 13 submission could occur
before the 110th Congress adjourns sine die, in which case the agreement with Russiath
could take effect before the 111 Congress convenes.
Corresponding considerations could apply if the 110th Congress were to adjourn
sine die before the 90th day of continuous session was reached, but were called back
before the expiration of its term on January 3, 2009. Inasmuch as the term of the
still be the 110 Congress. The continuity of session as defined by section 130.g.(2)
of the AEA would not have been broken, and the previous count of days of
continuous session would presumably resume from the point at which it had left off.
Under these conditions as well, the current period of continuous session might reachth
90 days before the end of the 110 Congress, and the proposed agreement with
Russia could take effect.
The way in which this continuity would be realized, however, would differ
depending on whether Congress were called back by its own leadership or by the
[http://www.nationalj ournal.com/congress daily/cdp_20080714_3104.php?related=true&
s t o r y1 =cdp_20080710_4835&story2=cdp_20080714_3104&story3=am_20080226_2],
accessed July 30, 2008.
31 For a current example of an adjournment resolution providing this authority, see
H.Con.Res. 398, 110th Cong., adopted July 31, 2008.
32 Article II, section 3.
President. If Congress reconvened pursuant to the call of the leadership, the action
would presumably vitiate the sine die character of the previous adjournment, and the
110th Congress would presumably resume its present (second) session. If, on the other
hand, Congress were reconvened by the President after a sine die adjournment, it
would meet in a new session, which would be the third session of the 110th Congress.
Continuity of session would be maintained, in that case, because the sine die
adjournment of the present session would cease to qualify as the sine die adjournment
of the 110th Congress.
Pro Forma Sessions. Pro forma sessions are those held merely “for the sake
of form,” or as a formality. Typically, no legislative business is conducted; on some
occasions, the chamber provides in advance (usually by unanimous consent) that no
business may occur. Pro forma sessions count as days of session for purposes of
determining whether an adjournment of more than three days is occurring.33
The resolution authorizing the non-legislative period for George Washington’s
Birthday in 2008, for example, did not provide for a recess in the constitutional
sense.34 Although the resolution covered essentially the period defined by the
announced schedules, it did not provide for a recess of more than three days, but
instead directed pro forma sessions of the House at least every fourth day, and
authorized the Senate to arrange a similar schedule. Inasmuch as the Senate
proceeded to exercise this authority, no “adjournment of more than three days,” as
contemplated by the Constitution and section 130.g.(2) of the AEA, occurred in
either house during this period.35 Instead, every day of the non-legislative period
counted as a day of continuous session.
At the July 12 hearing of the House Committee on Foreign Affairs, Under
Secretary Rood noted that days with pro forma sessions count as days of continuous36
session. He did not note that this will be true only if the other house also is not in
recess. If both houses hold pro forma sessions at least every fourth day during a non-
legislative period, no “adjournment of more than three days” occurs in either house.
Nor did Under Secretary Rood explicitly note that under these conditions, not only
the days of pro forma session themselves, but also the remaining days of the non-
legislative period, will count not as days of recess, but as days of continuous session.
33 It is, in fact, exactly this “formality” for the “sake” of which pro forma sessions may be
held. If a chamber holds a pro forma session at least every fourth day, it can avoid the need
to obtain the permission of the other for holding no sessions on the intervening days.
34 H.Con.Res. 293, 110th Cong., agreed to February 14, 2008.
35 The resolutions providing for these “recesses,” accordingly, were technically not
necessary to meet constitutional requirements. Media reports indicate that Senate leadership
decided to hold regular pro forma sessions in that chamber during scheduled recess periods
in an attempt to prevent the President from making certain “recess appointments.” See Paul
Singer, “Masters of a Pro Forma Senate,” Roll Call, January 7, 2008. These reports do not
ascribe any motivation for the House to meet in pro forma session during these periods.
36 CQ Transcriptwire, “House Committee on Foreign Affairs Holds a Hearing on Russia,
Iran, and Nuclear Weapons,” June 13, 2008.
It is possible that no pro forma sessions will be used in these ways to affect the
length of continuous session of the current Congress. Days occurring during non-
legislative periods will count as days of continuous session only if they are covered
by periodic pro forma sessions in both chambers; if only one chamber holds pro
forma sessions while the other takes a recess of more than three days, the days of the
recess will still not count as days of continuous session. The resolution providing for
the August 2008 non-legislative period, for example, authorized only the Senate to
schedule pro forma sessions, and provided for a recess of the House in the
constitutional sense. Pursuant to section 130.g.(2) of the AEA, inasmuch as one
house has been in recess during this period, the days of this recess are excluded from
the count of days of continuous session. Under these conditions, as already
discussed, the date scheduled for sine die adjournment of the House will presumably
arrive before the 90th day of continuous session has been reached after submission of
If, on the other hand, both houses had determined to hold periodic pro forma
sessions during the August non-legislative period, the 90th day of continuous session
could have occurred as early as Tuesday, September 2, 2008 (the day after Labor
Day, and a date that would still fall within the non-legislative period).
For some recent periods of pro forma sessions, including the August period, the
Senate has sometimes provided that no legislative business occur in the pro forma
sessions.37 If the 90th day of continuous session were to fall within a session recess
governed by such a provision, Congress could become unable to act on a joint
resolution of disapproval in a timely fashion, and in the absence of that disapproval,
the agreement with Russia would presumably take effect on the date specified. This
difficulty, however, might be overcome by use of the authority of the leadership or
the President to reconvene Congress before the expiration of the recess. Being
reconvened by either means would presumably supersede the order against
conducting legislative business, and accordingly would enable Congress to consider
a disapproval resolution rather than allow the agreement to enter into force by
Possible Need to Renew Action in the 111th Congress
If the 110th Congress adjourns sine die before the 90th day of continuous session
after May 13, 2008, the period during which Congress could act to disapprove the
agreement will not yet have elapsed, and the agreement with Russia will be unable
to take effect under the AEA at that point. Instead, a new period of continuous
session will begin with the convening of the 111th Congress in January 2009
(assuming the 110th Congress is not reconvened for the requisite remaining period
after its sine die adjournment). Until this new period of continuous session reaches
the requisite length, the entering into effect of the agreement will be postponed, and
37 See, for example, Sen. Harry Reid, “Orders of Procedure,” proceedings in the Senate,
Congressional Record, daily edition, vol. 154, May 22, 2008, p. S4849; Sen Harry Reid,
“Conditional Adjournment or Recess of the House of Representatives and the Senate,” ibid.,
July 31, 2008, p. S7880.
the opportunity for Congress to disapprove it pursuant to the AEA will remain
The AEA does not explicitly provide whether failure of the 110th Congress to
complete the periods required under section 123. would necessitate starting from the
beginning, in the 111th Congress, of the entire approval process or of only such parts
of it as the 110th Congress did not complete. Inasmuch as the AEA makes provision
for the process it prescribes to continue after a break in the continuity of session, it
could be read as implying that the submission of an agreement triggers a single
process of congressional action that may carry over into a subsequent Congress. The
definition of “continuous session” in section 130.g.(2) seems expressly to
contemplate that a new period of continuous session would begin automatically with
the convening of the 111th Congress.
Rigorously applied, this view could imply that the 111th Congress would not
have to repeat statutory requirements that had already been accomplished in the 110th
Congress. For example, inasmuch as the President has already submitted the text of
the agreement to the committees, made the required approval and determination,
submitted the agreement itself to Congress, and submitted the NPAS and its
classified annexes, he would not have to carry out these requirements anew in the
111th Congress. It could be argued, as well, that inasmuch as 30 days of continuous
session were completed during the 110th Congress after the submission of the text on
May 13, 2008, the 30-day consultation period required by section 123.b. would not
have to repeated in the 111th Congress. On this view, the first day of the 111th
Congress could be construed as the beginning of the 60-day period prescribed by
section 123.d. for congressional action on the agreement and, accordingly, as the day
on which new joint resolutions of disapproval should automatically be introduced.
Further, by this interpretation, if no joint resolution of disapproval were to be enacted
by the end of the 60th day of continuous session of the 111th Congress, the agreement
would automatically go into effect.
At the June 12 hearing of the House Committee on Foreign Affairs, on the other
hand, Under Secretary Rood took the position that, if the full period of 90 days of
continuous session is not completed within the 110th Congress, the entire period must
begin de novo in the 111th Congress.38 Under this interpretation, it might also be held
necessary for the President to resubmit the agreement itself to Congress in the new
session, in the way provided in the AEA. Absent this resubmittal, it could be argued,
no date could be fixed at which the disapproval resolution would be automatically
introduced. Although no established guidance or previous proceedings appear to
settle this point definitively, there are indications that both houses would be likely to
pursue this interpretation of the act.
Under this interpretation of the AEA, and if the statutory requirements are
implemented in the 111th Congress in the same way as the 110th, the Presidential
resubmission of the agreement with Russia would presumably have to be
accompanied by the requisite unclassified NPAS and its classified annexes, as well
38 CQ Transcriptwire, “House Committee on Foreign Affairs Holds a Hearing on Russia,
Iran, and Nuclear Weapons,” June 13, 2008.
as the approval and determination of the President. The committees to which the text
of the agreement is submitted would presumably be intended to engage in
consultations with the executive on the agreement during the 30 days of continuous
session following submission. The leaders identified by the statute would
presumably have to introduce new resolutions of disapproval on the first day of the
following period of 60 days of continuous session, and the agreement would go into
effect if no resolution of disapproval were to be enacted by the end of that 60-day
period. Unless a disapproval resolution were enacted, accordingly, the agreement
with Russia would go into effect at the end of 90 days of continuous session after the
President submitted it to the 111th Congress.
In favor of this interpretation of the act, it could be argued that the newly
constituted committees in the 111th Congress might not wish to be compelled to rely
on the consultations and deliberations engaged in by their predecessors. In addition,
of course, inasmuch as any resolution of disapproval submitted in the 110th Congress
will die with a sine die adjournment, any such resolution could be considered in the
Statutory Procedure for Disapproval
Submission of the Agreement
Requirements for Submission. Several features of the language of section
123. indicate differences in purpose and intent between the 30-day period for
consultation under section 123.b. and the 60-day period for congressional action
under section 123.d. Under section 123.b., the President submits the text of the
agreement to the committees having jurisdiction for consultation; under section
Section 123.b. further directs that the President consult with the committees
receiving the submission for a period of “not less than 30 days of continuous session
... concerning the consistency of the terms of the proposed agreement with all the
requirements of” the non-proliferation provisions of the AEA. He is also to approve
the proposed agreement and make “a determination in writing that ... [it] will
promote, and will not constitute an unreasonable risk to, the common defense and
security.” Under section 123.d., the 60-day period for congressional action begins
when the President submits the agreement itself to the Congress, along with his
“approval and determination,” and then only when the NPAS, including any
classified annexes, has also been submitted to Congress.
The reference of section 123.d. to the “approval and determination of the
President,” appears to address the same act of “approval” and “determination in
writing” as required by section 123.b. Further, although section 123.b. does not
explicitly require that the President must approve the agreement and make the
required determination following the consultation with the committees, it can be read
as implying that the consultation should precede this action. It is from such a reading
of the statute that it appears possible to draw an implication that the 60-day period
required by section 123.d. will not run concurrently with the 30-day period prescribed
by section 123.b., but will instead follow that 30-day period. On the other hand, the
AEA does not appear to require that the submission to Congress of the agreement
itself must immediately follow the 30-day period for consultation.
Submission of Agreement with Russia. Two features of the President’s
submission on May 13 do not appear to comport clearly with the statutory scheme.
First, the President’s letter of submittal made explicit reference only to submitting
the agreement to Congress for approval; it did not explicitly submit the text of the
agreement to the committees of jurisdiction as well. Nevertheless, inasmuch as the
submission did result in referral of the agreement to the committees, the President
and Congress are apparently agreed in treating the submission of the agreement to
Congress as also constituting submission of the text to the committees. It is this
understanding, in effect, that enables the President by a single submission to fulfill
the requirements of both sections 123.b. and 123.d.
Second, inasmuch as all requirements for both the periods required by the statute
were met by the time of the submission on May 13, it might be questioned why the
The chief reason against doing so appears to be the apparent presumption of the
statute that the President’s “agreement and determination,” the submission of which
is required for the beginning of the 60-day period for congressional action, is to
follow and, in some sense, result from the consultation with committees that is
supposed to occur during the period of at least 30 days.
Under this rationale, however, the President’s declaration of his “approval and
determination” at the outset of the 30-day period could be viewed as rendering moot
the consultive purpose of that period. The President’s letter of submittal,
nevertheless, also declared the readiness of the Administration to “begin immediately
the consultations ... provided in section 123.b.”
Resolutions of Disapproval
Requirements for Disapproval Resolution. Section 130.i.(1) of the AEA
regulates the form that a joint resolution to disapprove a proposed agreement for
nuclear cooperation must take in order to be eligible for expedited consideration
under the further provisions of section130.i. Section 130.i.(1) specifies that:
For purposes of this subsection, the term “joint resolution” means a joint
resolution, the matter after the resolving clause of which is as follows: “That the
Congress (does or does not) favor the proposed agreement for cooperation
transmitted to the Congress by the President on .”, with the date of the
transmission of the proposed agreement for cooperation inserted in the blank, and
the affirmative or negative phrase within the parenthetical appropriately selected.
If the phrase “does not favor” is selected, the measure will be a resolution of
disapproval; if “does favor” is selected, it will be a resolution of approval. The
phrase “appropriately selected” might be read as signifying that, for agreements that
may go into effect unless disapproved, resolutions of disapproval are to be
introduced, and for those that may go into effect only if approved, resolutions of
approval are to be introduced.
Pursuant to section 130.i.(2), such joint resolutions are to be introduced
automatically in each chamber, in the House by the chairman and ranking minority
member of the Committee on Foreign Affairs, and in the Senate by the two party
floor leaders, or (in each case) their designees. The automatically introduced joint
resolutions are to be introduced “by request,” signifying that the introducing
Members do not necessarily advocate the measures. The AEA, however, appears to
contemplate that other Members may also introduce joint resolutions.
Also pursuant to section 130.i.(2), the automatic introduction of these
resolutions is to occur “on the day on which a proposed agreement for cooperation
is submitted” to Congress under section 123.d. The date specified would be the first
day of the period of 60 days of continuous session for congressional consideration
mandated by section 123.d. Pursuant to section 130.i.(3), these resolutions are to be
referred, in the Senate, to the Committee on Foreign Relations, and in the House to
“the appropriate committee or committees,” which presumably would be, or at least
include, the Committee on Foreign Affairs.
Resolutions on the Agreement with Russia. As noted in the section on
“Legislative Action,” resolutions meeting the requirements of section 130.i.(1) were
introduced with respect to the agreement with Russia in both chambers on the date,
and by the Members, specified by section 130.i.(2). In the House, the chairman and
ranking minority member of the Committee on Foreign Affairs introduced H.J.Res.
95 by request, and in the Senate the chairman and ranking minority member of the
Committee on Foreign Relations introduced S.J.Res. 42 by request, evidently as
designees of the two floor leaders.
The House measure is a joint resolution of disapproval, which, if enacted before
the end of the 60-day period, would presumably have the effect contemplated by the
statute of preventing the agreement from taking effect. The Senate measure,
however, is framed as a joint resolution of approval, stating that the Congress “does
favor” the proposed agreement. If this resolution were to be enacted within the 60-
day period, it would neither prevent nor hasten the entering into effect of the
proposed agreement. The agreement could still take effect at the end of the 60-day
period, just as if Congress took no action in the matter. In taking this joint resolution
of approval as fulfilling the requirements of section 130.i. in this case, the Senate is
apparently interpreting the statutory direction that the relevant phrase in the
resolution be “appropriately selected” not as requiring the form of the resolution to
be appropriate to the process of approval or disapproval to which the agreement in
question was subject, but instead simply as conferring discretion on the sponsors.
In addition to these two measures, a joint resolution to disapprove the proposed
agreement (H.J.Res. 85) had already been introduced in the House on May 14, the
day after the President submitted the agreement to Congress. This resolution has the
text specified by section 130.i.(1), and was referred to the Committee on Foreign
Affairs, but was not introduced at the beginning of the 60-day period by the leaders
of the Committee on Foreign Affairs or their designees. In accordance with the
statute, it appears that H.J.Res. 85 does not count as the one required to be
automatically introduced, but that this resolution would be eligible for expedited
consideration under the act, and if enacted before the end of the 60-day period, would
suffice to prevent the agreement from going into effect.
Consultations With Committees. Section 123.b. of the AEA directs that
after the President submits the text of the agreement to the pertinent committees, he
is to consult with them thereon during the stated period of “at least 30 days of
continuous session.” This provision does not specify the form to be taken by these
consultations. During the 60 days of continuous session after the agreement itself is
submitted to Congress, on the other hand, section 123.d. specifies that the
committees of referral are to “hold hearings on the proposed agreement ... and submit
a report to their respective bodies recommending whether it should be approved or
disapproved.”39 Presumably, if the committee decides to recommend disapproval,
the report in question could be that which accompanies the resolution of disapproval
itself. If the committee favors approval, the report might accompany an approval
resolution, or it might simply be explanatory, without accompanying any
Committee Action on Agreement with Russia. The relation between
these statutory requirements and initial congressional action on the proposed
agreement with Russia again reflects possible ambiguities. Congressional action
began with the hearing of the House Committee on Foreign Affairs on June 12 and
the closed briefing with the Senate Committee on Foreign Relations on June 17.
Inasmuch as officials of the Department of State appeared at both sessions, these
sessions could no doubt be understood as constituting the consultations for which
section 123.b. calls. There seems no reason to suppose that consultations pursuant
to section123.b. might not take such a form.
It is not clear whether either committee conceived its session as also meeting the
requirement of section 123.d. for hearings on the agreement itself subsequent to its
submission to Congress. If they did, it is not clear whether hearings held after the
agreement has been submitted and referred, but before the agreed beginning of the
60-day period during which section 123.d. calls for such hearings, could
appropriately be regarded as also satisfying the requirements of section 123.d.. Even
if the earlier sessions cannot be regarded as satisfying the requirement of section
123.d., however, it does not appear that this requirement could be enforced through
any procedural action on the floor.
Discharge of Committee
Timing of Discharge. Under section 130.i.(4) of the AEA, each committee
of referral is automatically to be discharged from the further consideration of all
disapproval resolutions referred to it at the end of 45 days from the date of
submission of the agreement. This provision appears intended to guarantee that a
disapproval resolution will become eligible for timely floor consideration in each
39 Section 123.d. (42 U.S.C. 2153(d)).
40 The committee might also wish to advocate approval with conditions. In this case, the
report might accompany a measure providing for that action, as described in the section on
“Alternative Action,” below.
chamber even if the committee takes no action. The statute, however, does not
define this time period in terms of days of continuous session. This omission will
apparently have different effects in the two houses.
In the House of Representatives, it is the practice to construe references in its
procedures to “days,” if not otherwise specified, as legislative days.41 A legislative
day ends each time the chamber adjourns, and another begins each time it convenes
after an adjournment. Accordingly, “legislative days” normally correspond to days
of session.42 As a result, legislative days are likely to elapse more slowly than days
of continuous session, which, except during recess periods, include all calendar days.
If both chambers convene on Monday through Friday in each week, for example, five
legislative days per week would probably occur in each chamber, although seven
days of continuous session per week would elapse.43 In some circumstances, 45
legislative days might even last longer than 60 days of continuous session. In that
case it would be impossible for the chamber to consider a disapproval resolution
before the agreement took effect under the statute, unless the committee chose to
report the resolution rather than be discharged. It is not clear whether the possibility
of such a result was intended by the statute or arises from an inadvertent oversight
The Senate also has often interpreted “day” to mean “legislative day” unless
otherwise specified.44 In the case of the statutory language of the AEA, however, it
appears that the Senate will interpret “day,” if not otherwise specified, as meaning
a calendar day.
Possible Discharge of Agreement with Russia. In the present instance,
18 legislative days elapsed in the House from June 24, the beginning of the 60-day
period, through August 1, the last day of session before the summer non-legislative
period, but 28 days of continuous session occurred during the same period. If the
House were to remain in session five days per week after it reconvenes on September
41 See U.S. Congress, House, Hinds’ Precedents of the House of Representatives of the
United States, by Asher C. Hinds (Washington: GPO, 1907), vol. IV, sec. 3192; U.S.
Congress, House, Cannon’s Precedents of the House of Representatives of the United States,
by Clarence Cannon (Washington: GPO, 1935), vol. VI, sec. 723; U.S. Congress, House,
Deschler-Brown Precedents of the United States House of Representatives, by Lewis
Deschler and W[illia]m Holmes Brown (Washington: GPO, nd), vol. 13, ch. 29, sec. 67.9.
42 Exceptions today are not common, but in recent decades were more frequent in the Senate
than in the House. Exceptions occur when a chamber does not adjourn, but takes a recess,
overnight or longer, or, conversely, when it adjourns briefly and reconvenes in the course
of a single calendar day.
43 If both houses held pro forma sessions during a non-legislative period, days of continuous
session would elapse even more quickly compared to legislative days in each chamber. For
example, if each house convened two pro forma sessions during a non-legislative period
running from one Saturday through the second following Sunday, the period would consume
nine days of continuous session, but only two legislative days in each chamber.
44 See “Day” in U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and
Practices, S.Doc. 101-28, 101st Cong., 2nd sess. by Floyd M. Riddick and Alan S. Frumin,
rev. and ed. by Alan S. Frumin (Washington: GPO, 1992), pp. 712-715.
8, it will not reach the 45th legislative day after June 24 until October 14. Even if
Congress has not adjourned sine die by then, the 60th day of continuous session
would probably already have been reached on October 9, as estimated above.45
Accordingly, committee discharge in the House might not occur until after the
agreement had already gone into effect and could no longer be disapproved under the
terms of the statute. Unless the committee chooses to report the resolution to
disapprove for the agreement with Russia, the provision of section 130.i. for
automatic discharge may not afford the House a timely opportunity to act on the
matter during the 110th Congress.
In the Senate, the referral statement for S.J.Res 42 explicitly states that the
measure is “referred to the Committee on Foreign Relations pursuant to 42 U.S.C.
The date of introduction having been June 24, the 45th calendar day thereafter was
August 8, which fell during the summer non-legislative period. The committee was
presumably regarded as automatically discharged from the Senate joint resolution on
August 8, or perhaps on the next day of Senate session thereafter. During the non-
legislative period, however, the Senate is operating under a unanimous consent order
for periodic pro forma sessions, during which no legislative business is to occur.
This order against legislative business might be held to preclude the discharge from
occurring until the Senate returns for business on September 8. In any case,
nevertheless, it appears that the measure will become available for Senate floor
consideration no later than September 8, well before the expiration of the 60-day
period for congressional action projected for October 9 (if Congress remains in
As already explained, however, even if the Senate does adopt a joint resolution
of approval, and the measure goes on to enactment, it would have no bearing on the
statutory procedure authorizing the agreement to take effect unless disapproved
within 60 days of continuous session after June 24. It appears, nevertheless, that the
discharge of the committee from joint resolution of approval might affect the
possibility of congressional disapproval of the proposed agreement in another way.
AEA section 130.i.(4) says that:
If the committee ... to which a joint resolution has been referred has not reported
it at the end of 45 days after its introduction, the committee shall be discharged
from further consideration of the joint resolution or of any other joint resolution
introduced with respect to the same matter ....
It appears that the Senate would interpret this provision to mean that the discharge
of any one joint resolution with respect to an agreement will preclude the discharge
of any other joint resolution with respect to the same agreement. Under this reading,
even if some Senator were to introduce a disapproval resolution on the proposed
agreement with Russia, once the committee either reports or is discharged from the
45 See “Days of Continuous Session in the 110th Congress,” above.
approval resolution, the disapproval resolution would effectively be precluded from
reaching the floor (unless the committee chose to report that measure as well).46
Section 130.i. of the AEA provides that, once the committee in either chamber
reports or is discharged from a joint resolution to disapprove a nuclear cooperation
agreement, the measure is to be placed on the chamber’s calendar of business.47 The
provision then directs that the disapproval resolution be considered under expedited
(or “fast track”) procedures, the purpose of which is to ensure that Congress will have
an opportunity to consider and vote on the measure before the arrival of the time at
which the agreement would otherwise automatically take effect. Section 130.i.,
however, does not itself specify procedures for floor consideration of a resolution of
disapproval. Instead, for the Senate, it applies an expedited procedure contained in
another statute, and for the House, it presumes that the procedures used will be
established by a special rule, reported by the Committee on Rules and adopted by the
For the Senate, section 130.i.(5) of the AEA provides that floor consideration
shall occur pursuant to section 601(b)(4) of the International Security Assistance and
Arms Export Control Act of 1976 (ISAAECA).48 This provision of law established
an expedited procedure, for the Senate only, that has been made applicable to
additional classes of measure by several subsequent laws. Pursuant to this expedited
procedure, the joint resolution of disapproval is privileged, meaning that the Senate
may take it up by approving a non-debatable motion to proceed to consider.
ISAAECA also limits debate on the resolution itself to 10 hours (equally divided and
controlled by the two floor leaders or their designees), and precludes any amendment
(or motion to recommit). A non-debatable motion further to limit debate is allowed,
various other potentially dilatory actions are prohibited, and limits are placed on the
debate of questions arising during consideration. Provisions similar to these are
standard components of statutory expedited procedures.
Section 130.i.(5) establishes no regulations for House floor consideration of the
resolution of disapproval, nor does it even make the measure privileged for
consideration (which, in the House, means that the measure could be called up with
priority over the regular order of business). Instead, section 130.i.(5) authorizes the
Committee on Rules to report a special rule providing for consideration of the
measure under terms that “may be similar, if applicable” to those of ISAAECA. Any
special rule for consideration of a disapproval resolution would surely place limits
on debate, and would most likely prohibit amendments as well, inasmuch as any
46 The Senate might also discharge the committee from the disapproval resolution under its
general rules, but this proceeding is difficult to accomplish, and consequently rare, except
when done by unanimous consent.
47 In the Senate, the resolution would be placed on the Calendar of General Orders, which
carries most measures eligible for floor consideration. In the House, the measure would
most likely be placed on the Union Calendar, which is for measures that may affect revenues
48 P.L. 94-329, 90 Stat. 729 at 766.
change in the text of the resolution would render it inconsistent with the requirements
of section 130.i.(1), and therefore, presumably, ineligible for further consideration
under the expedited procedure of section 130.i.
This provision of the AEA grants the Committee on Rules no power that it
would not otherwise have. Nevertheless, unless the Committee on Rules reports a
special rule for considering a disapproval resolution, or unless privilege for
consideration is conferred on the measure by some other means (e.g., suspension of
the rules or unanimous consent), section 130. would afford no means by which House
floor consideration of the measure could be ensured.
Final Congressional Action
Section 130.i.(6) of the AEA makes provision to preclude the necessity to
resolve differences between disapproval resolutions passed by the two chambers. If
one chamber adopts its resolution and transmits it to the other, then the receiving
chamber considers its own companion measure, but takes the final vote on the
measure received from the first house. This automatic “hookup” is evidently
intended to ensure that final action in both houses will occur on the same measure in
the same form, so that it can be cleared for presentation to the President without the
necessity for a conference committee or other process of resolving differences
between versions of the measure adopted by the two chambers.49
This procedure, however, is predicated on a presumption that the measures
initially passed by the two chambers will be substantively similar. Although section
130.i.(6) is stated as applying to “a joint resolution described in paragraph (1)” and
a joint resolution of the other house “with respect to the same matter,” it does not
seem to contemplate a situation in which one of the measures is a disapproval
resolution and the other an approval resolution. If an “automatic hookup” were
applied under these conditions, it would result in the final vote of the second house
occurring on a measure which would have an effect opposite to that of its own
measure that it had just been considering.
In practice, however, although the provision is framed as applying even if the
two resolutions address the same matter in opposite senses, it appears that in such a
case the chamber acting second would consider the provision for automatic hookup
inoperative. The consequence of doing so would presumably be that the chamber
acting second would instead vote on the adoption of its own measure. If it voted to
adopt, the chamber could then take any of several actions: (1) send its own measure
to the chamber that acted first for concurrence; (2) take up the measure received from
the other chamber and act on it under its general procedures, without the restrictions
of the expedited procedure; or (3) by unanimous consent, take up the measure
received from the first chamber, amend it by substituting the text of its own measure,
and return it to the first for concurrence or for the resolution of differences, either
with a request for conference or through an exchange of amendments between the
houses. Any of these alternatives would likely delay final congressional action on
49 Similar provisions, again, appear in several other statutory expedited procedures.
Pursuant to section 123.d. of the AEA, the proposed nuclear cooperation
agreement with the Russian Federation will take effect at the end of the total period
of 90 days of continuous session unless a joint resolution of disapproval is enacted
before that time. It is not sufficient for Congress to complete action on the
disapproval resolution within the required time; the measure must actually become
law before the end of the prescribed period. Enactment into law of the resolution
requires either that (1) the President signs it or allows it to pass into law without his
signature; or (2) the Congress overrides his veto. For Congress to prevent the
agreement from taking effect, one of these actions would have to take place before
the end of the 90-day period.
Under the Constitution, the President has 10 days (Sundays excepted) to act on
a measure after it is presented to him. As a result, if a resolution of disapproval were
to be presented when fewer than 10 calendar days (excluding Sundays) remained in
the total period of 90 days of continuous session, it appears that the President could
render the measure moot by failing to act until the 90-day period expired and the
agreement went into effect. Similarly, if the President were to return the resolution
with a veto, the agreement would take effect unless Congress were to complete action
to override the veto before the 90th day of continuous session after the initial
submission of its text to the committees.
In practice, the President is likely to veto a resolution disapproving an
agreement of which, under the statute, he has already certified his approval. For
Congress to make effective use of its opportunity under the AEA to disapprove the
agreement, accordingly, it would presumably have to present the resolution of
disapproval to the President at a point when a minimum of 11 days of continuous
session remain in the 90-day period before the agreement automatically becomes
effective. (The minimum is 11 if Congress remains in session, such that every
calendar day is a day of continuous session, inasmuch as any period of 10 calendar
days will contain at least one Sunday that will count as a day of continuous session
but not as a day of the period for presidential action.) A still longer period would
afford Congress a more practicable opportunity to act to override the veto.
Specific implications of this circumstances for the agreement with Russia can
be illustrated only through assumptions about the sine die adjournment of the 110th
Congress. Assume, for example, that Congress maintains the announced schedule
described above, in the section on “Days of Continuous Session in the 110th
Congress,” through September 26, 2008, but instead of adjourning sine die on that
date, recesses its session until November 12. As discussed earlier, September 26
would then presumably be the 77th day of continuous session, and November 12
would be the 78th. Under these circumstances, if Congress completes action on the
resolution of disapproval and presents it to the President on September 26, just before
recessing, the 10-day period allowed for presidential action would extend until
October 8, and when Congress returned on November 12, it would have until the 90th
day of continuous session (presumably Monday, November 24) to prevent the
agreement entering into effect by overriding the veto.
If, on the other hand, Congress did not complete action on the resolution of
disapproval until it reconvened on November 12, the 10 days allowed for presidential
action would last until Monday, November 24. Assuming Congress remained in
session, however, its 90th day of continuous session after submission of the agreement
would also be November 24. Under these circumstances, Congress might effectively
be able to ensure the disapproval of the agreement only if both houses could
complete action to override the veto on that same day.
Finally, if Congress were to adjourn sine die shortly after adopting the
disapproval resolution, the President could pocket veto it. If this sine die
adjournment occurred after the 90th day of continuous session, the agreement would
go into effect. On the other hand, if the adjournment occurred on or before the 90th
day of continuous session, the agreement presumably could not go into effect until
the appropriate period of continuous session had elapsed beginning with the
convening of the 111th Congress, and then only if no congressional disapproval was
accomplished during that period.50
Although the AEA provides the expedited procedures described above for
congressional action on a joint resolution of disapproval, it does not require Congress
to use these procedures to act on the matter. If, during the period for action provided
by the statute, Congress were to adopt a disapproval resolution meeting the
requirements of section 130.i. under any of its regular procedures, enactment of the
resolution would have the same effect of disapproving the agreement as would that
of a similar measure under the expedited procedures of the statute. Disapproval
might also be accomplished by legislative “riders” on an omnibus appropriations bill
or in any other measure.
Under its general legislative power, Congress could also determine the status of
the agreement by acting on a measure other than the one prescribed by the statute.
Such action occurred in the 99th Congress (1985-1986), when Congress enacted a
measure (P.L. 99-183) providing that a nuclear cooperation agreement with China
would become effective only when certain further conditions were met. Just as with
the disapproval resolution specified by the statute, however, any such measure would
have to be enacted before the end of period required by the AEA, because otherwise
the agreement as submitted would automatically go into effect. On the other hand,
inasmuch as any such alternative measure would not meet the requirements of section
130.i. for a joint resolution of disapproval, the measure would not be eligible for
consideration under the expedited procedures of section 130.i. Instead, each house
would have to consider it under its regular legislative procedures (unless it chose, in
accordance with its own general procedures, to apply the expedited procedure to the
50 This period might encompass either 90 or 60 days, depending on interpretation, as
explained above under “Possibility of Renewing Action in the 111th Congress.”
Any measure granting approval with conditions to the proposed agreement with
Russia would presumably have to contain language specifying that its provisions
apply “notwithstanding section 123. of the Atomic Energy Act of 1954, as amended.”
Section (a)(2) of P.L. 99-183, granting conditional approval to the agreement with
China, contained a provision of this kind. In the absence of such a provision, the
provision of section 123. for automatic unconditional approval at the end of the 90
days would presumably continue to apply, so that in spite of the conditional approval,
and unless the joint resolution of disapproval specified by section 130.i. were enacted
into law, the agreement might take effect without conditions at the end of the period.
The President might also be able to vitiate an attempt by Congress to place
conditions on its approval of the agreement with Russia by vetoing the measure.
Unless Congress could override the veto (or secure enactment into law of a joint
resolution of disapproval), the agreement would then instead go into effect without
conditions at the end of the period prescribed in accordance with section 123..
Finally, Congress might act on a measure enabling the proposed agreement with
Russia to take effect immediately, without conditions. For this purpose, a measure
having the text of S.J.Res. 42, stating only that Congress “does favor” the proposed
agreement, would not suffice, because no statutory provision authorizes an agreement
subject to congressional disapproval either to take effect, or to take effect before the
conclusion of the period defined by the AEA, simply because Congress states its
approval. Rather, any such measure would presumably have to state explicitly that
the agreement could take effect upon enactment notwithstanding the provisions of
section 123. of the AEA.