Advice and consent is an English phrase frequently used in enacting formulae of

bill Bill(s) may refer to: Common meanings * Banknote, paper cash (especially in the United States) * Bill (law), a proposed law put before a legislature * Invoice, commercial document issued by a seller to a buyer * Bill, a bird or animal's beak Plac ...

s and in other legal or constitutional contexts. It describes either of two situations: where a weak

executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state. In poli ...

of a government enacts something previously approved of by the legislative branch 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 has little practical power, and in practice the important part of the passage of a law is in its adoption by the legislature.

United Kingdom

In the United Kingdom, a constitutional monarchy, bills are headed:

BE IT ENACTED by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

This enacting formula emphasizes that although legally the bill is being enacted by the British monarchy (specifically, by the

King-in-Parliament The King-in-Parliament (or, during the reign of a female monarch, Queen-in-Parliament), sometimes referred neutrally as the Crown-in-Parliament, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its ...

), it is not through his initiative but through that of Parliament that legislation is created.

United States

In the United States, "advice and consent" is a power of the United States Senate to be consulted on and approve treaties signed and appointments made by the 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. United States A US federal judge is appointed by the US President and confirmed by the US Senate in accordance with Article 3 of ...

s, Officers of the Armed Forces, United States attorneys, ambassadors, and other smaller offices. This power is also held by several state senates, 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" appears twice in the

United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...

, both times in

Article II, Section 2, Clause 2 Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the Unite ...

. First, the term is used in reference to the senate's role in the signing and ratification of treaties. Then, it is used to describe the Senate's role in the nomination and confirmation process for federal appointees. This language was written at the

Constitutional Convention Constitutional convention may refer to: * Constitutional convention (political custom), an informal and uncodified procedural agreement *Constitutional convention (political meeting), a meeting of delegates to adopt a new constitution or revise an e ...

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 The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with presidential succession and disability. It clarifies that the vice president becomes president if the president dies, resigns, or is removed from office, a ...

, 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 and 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 believed that advice ''before'' nomination could still be helpful. President

George Washington George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of th ...

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 hearing 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". However, tactics have been used to require more than majority support to pass such a motion, including filibuster, where a three-fifths vote on a motion to end debate is required even to take a vote on the advise and consent motion. On November 21, 2013, the Democratic Party, led by then-majority leader Harry Reid, overrode the filibuster of a nomination with a simple

majority vote A majority, also called a simple majority or absolute majority to distinguish it from related terms, is more than half of the total.Dictionary definitions of ''majority'' aMerriam-Websterchange 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. On February 13, 2016,

Mitch McConnell Addison Mitchell McConnell III (born February 20, 1942) is an American politician and retired attorney serving as the senior United States senator from Kentucky and the Senate minority leader since 2021. Currently in his seventh term, McConne ...

, Senate Majority Leader of the Republican Party, said that the Senate would refuse to confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 presidential election, an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits. Despite McConnell’s claim, no Senate leader had ever asserted such a right — and there was no precedent for a sitting president to hand over his power of high-court appointment at the request of any member of the legislative branch. In April 2017, McConnell and the Republican Party exercised the nuclear option in order to overcome Democratic opposition for Supreme Court nominations, confirming Associate Justice

Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...

to the Supreme Court, despite what might have otherwise been a successful Democratic filibuster.

References

{{United States Congress, state=collapsed Public law