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Advice and consent is an English phrase frequently used in enacting formulae of
bill Bill(s) may refer to: Common meanings * Banknote A banknote (often known as a bill (in the US and Canada), paper money, or simply a note) is a type of negotiable instrument, negotiable promissory note, made by a bank or other licensed author ...
s and in other legal or constitutional contexts. It describes either of two situations: where a weak
executive branch The executive (short for executive branch or executive power) is the part of government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, a ...
of a government enacts something previously approved of by the
legislative branch A legislature is a deliberative assembly A deliberative assembly is a gathering of members (of any kind of collective) who use parliamentary procedure Parliamentary procedure is the body of ethics, Procedural law, rules, and Norm (sociology) ...
or where the legislative branch concurs and approves something previously enacted by a strong executive branch.


General

The concept serves to moderate the power of one branch of government by requiring the concurrence of another branch for selected actions. The expression is frequently used in weak executive systems where the
head of state A head of state (or chief of state) is the public persona A persona (plural personae or personas), depending on the context, can refer to either the public image of one's personality, or the social role that one adopts, or a fictional ch ...
has little practical power, and in practice the important part of the passage of a law is in its adoption by the
legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign state, country or city. They are often contrasted with the Executive (government), executive and Judiciary, ...
.


United Kingdom

In the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the United Kingdom. Some prefer to use Britain as shorth ...

United Kingdom
, a
constitutional monarchy A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises his authority in accordance with a constitution and is not alone in deciding. Constitutional monarchies differ from ...
, bills are headed:
BE IT ENACTED by the
Queen Queen may refer to: Monarchy * Queen regnant, a female monarch of a Kingdom ** List of queens regnant * Queen consort, the wife of a reigning king * Queen dowager, the widow of a king * Queen mother, a queen dowager who is the mother of a reigni ...
's most Excellent Majesty, by and with the advice and consent of the
Lord Lord is an appellation for a person or deity who has authority, control, or power (social and political), power over others, acting as a master, a chief, or a ruler. The appellation can also denote certain persons who hold a title of the Peera ...

Lord
s Spiritual and Temporal, and
Commons The commons is the cultural Culture () is an umbrella term which encompasses the social behavior and Norm (social), norms found in human Society, societies, as well as the knowledge, beliefs, arts, laws, Social norm, customs, capabilities, ...

Commons
, in this present
Parliament In modern politics and history, a parliament is a legislative A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of ...
assembled, and by the authority of the same, as follows:
This
enacting formula An enacting clause, or enacting formula, is a short phrase that introduces the main provisions of a law enacted by a legislature A legislature is a deliberative assembly with the authority In the fields of sociology Sociology is the st ...
emphasizes that although legally the bill is being enacted by the
British monarchy The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional A constitution is an aggregate of fundamental principles or established precedents A precedent is a principle or rule established i ...
(specifically, by the
Queen-in-Parliament The Queen-in-Parliament (or, during the reign of a male monarch, King-in-Parliament), sometimes referred to as the Crown-in-Parliament, is a technical term of constitutional law in the Commonwealth realm A Commonwealth realm is a sovereign ...
), it is not through her initiative but through that of Parliament that legislation is created.


United States

In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
, "advice and consent" is a power of the
United States Senate The United States Senate is the upper chamber of the United States Congress The United States Congress is the legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, politi ...
to be consulted on and approve treaties signed and appointments made by the
president of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the Federal government of the United States#Executive branch, executive branch of the Federal gover ...

president of the United States
to public positions, including Cabinet secretaries,
federal judge Federal judges are judges appointed by a federal level of government as opposed to the state/provincial/local level. Brazil In Brazil, federal judges of first instance are chosen exclusively by public contest. Judges of Federal Courts of Appeal or ...
s,
United States attorney United States attorneys represent the United States federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under ...
s, ambassadors, and other smaller offices. This power is also held by several
state senate A state legislature in the United States is the Legislature, legislative body of any of the 50 U.S. states. The formal name varies from state to state. In 27 states the legislature is simply called the ''Legislature'' or the ''State Legislature ...

state senate
s, which are consulted on and approve various appointments made by the state's chief executive, such as some statewide officials, state departmental heads in the governor's cabinet, and state judges (in some states).


Constitutional provision

The term "advice and consent" first appears in the
United States Constitution The Constitution of the United States is the supreme law A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation An organization, or orga ...

United States Constitution
in Article II, Section 2, Clause 2, referring to the senate's role in the signing and ratification of treaties. This term is then used again, to describe the Senate's role in the appointment of public officials, immediately after describing the president's duty to nominate officials. Article II, Section 2, paragraph 2 of the
United States Constitution The Constitution of the United States is the supreme law A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation An organization, or orga ...

United States Constitution
states: This language was written at the Constitutional Convention as part of a delicate compromise concerning the balance of power in the federal government. Many delegates preferred to develop a strong executive control vested in the president, but others, worried about authoritarian control, preferred to strengthen the Congress. Requiring the president to gain the advice and consent of the Senate achieved both goals without hindering the business of government. Under the Twenty-fifth Amendment, appointments to the office of vice president are confirmed by a majority vote in both houses of Congress, instead of just the Senate.


Historical development of power

While several framers of the U.S. Constitution, such as
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father The following list of national founding figures is a record, by country, of people who were cr ...

Thomas Jefferson
and
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, expansionist, philosopher, and Founding Father The following list of national founding figures is a record, by country, of people who were credited wi ...

James Madison
, believed that the required role of the Senate is to advise the president ''after'' the nomination has been made by the president,
Roger Sherman Roger Sherman (April 19, 1721 – July 23, 1793) was an early American statesman and lawyer A lawyer or attorney is a person who practices law, as an advocate, attorney at lawAttorney at law or attorney-at-law, usually abbreviated in ever ...
believed that advice ''before'' nomination could still be helpful. President
George Washington George Washington (February 22, 1732, 1799) was an American soldier, statesman, and Founding Father The following list of national founding figures is a record, by country, of people who were credited with establishing a state. Natio ...

George Washington
took the position that pre-nomination advice was allowable but not mandatory. The notion that pre-nomination advice is optional has developed into the unification of the "advice" portion of the power with the "consent" portion, although several Presidents have consulted informally with Senators over nominations and treaties.


Use today

Typically, a
congressional hearingA United States congressional hearing is the principal formal method by which United States congressional committees collect and analyze information in the early stages of legislative policymaking. Whether confirmation hearings (a procedure unique ...
is held to question an appointee prior to a committee vote. If the nominee is approved by the relevant committee, the nomination is sent to the full Senate for a confirmation vote. The actual motion adopted by the Senate when exercising the power is "to advise and consent". For appointments, a majority of Senators present are needed to pass a motion "to advise and consent". A filibuster requiring a three-fifths vote to override, as well as other similar delaying tactics, have been used to require higher vote tallies in the past. On November 21, 2013, the Democratic Party, led by then-majority leader
Harry Reid Harry Mason Reid Jr. (; December 2, 1939 – December 28, 2021) was an American lawyer and politician who served as a United States Senate, United States senator from Nevada from 1987 to 2017. He led the Democratic Caucus of the United States S ...
, overrode the filibuster of a nomination with a simple
majority vote A majority, also called a simple majority to distinguish it from similar terms (see the "Related terms" section below), is the greater part, or more than half, of the total.See dictionary definitions of "majority" aMerriam-Webster
to change the rules. As a result of the changed precedent, judicial nominees to federal courts and a president's executive-branch nominations can proceed to a confirmation vote by a simple majority vote of the Senate. However, Reid left the filibuster in place for Supreme Court nominees. In April 2017, the Republican Party, led by Majority Leader
Mitch McConnell Addison Mitchell McConnell III (born February 20, 1942) is an American politician and retired attorney serving as Party leaders of the United States Senate, Senate Minority Leader since 2021 and as the Seniority in the United States Senate, sen ...

Mitch McConnell
, exercised the nuclear option in order to overcome Democrat opposition for Supreme Court nominations, confirming
Associate Justice Associate justice or associate judge is the title for a member of a judicial panel who is not the chief justice The chief justice is the Chief judge, presiding member of a supreme court in any of many countries with a justice system based on Eng ...
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an associate justice of the Supreme Court of the United States An associate justice of the Supreme Court of the United States is any member of the Supreme Court of the United States Th ...
to the Supreme Court, despite what might have otherwise been a successful Democratic filibuster. Associate Justice
Brett Kavanaugh Brett Michael Kavanaugh ( ; born February 12, 1965) is an associate justice of the Supreme Court of the United States An associate justice of the Supreme Court of the United States is any member of the Supreme Court of the United States ...
's Supreme Court nomination was controversial because of late allegations against him about instances of sexual assault in high school. Kavanaugh accused Democrats of opposing his nomination by replacing "advice and consent" with "search and destroy".


See also

*
Promulgation Promulgation is the formal proclamation or the declaration that a new statutory A statute is a formal written enactment of a legislature, legislative authority that governs the legal entities of a city, State (polity), state, or country by way ...


References

{{United States Congress, state=collapsed Public law