advice and consent
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Advice and consent is an English phrase frequently used in enacting formulae of bills 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 A head of state (or chief of state) is the public persona who officially embodies a state (polity), state#Foakes, Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international p ...
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, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
, a
constitutional monarchy A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in decision making. Constitutional monarchies dif ...
, bills are headed:
BE IT ENACTED by the
King King is the title given to a male monarch in a variety of contexts. The female equivalent is queen regnant, queen, which title is also given to the queen consort, consort of a king. *In the context of prehistory, antiquity and contempora ...
'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, chief, or ruler. The appellation can also denote certain persons who hold a title of the Peerage ...
s Spiritual and Temporal, and Commons, in this present
Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
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), it is not through his 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., ...
, "advice and consent" is a power of the
United States Senate The United States Senate is the Upper house, upper chamber of the United States Congress, with the United States House of Representatives, House of Representatives being the Lower house, lower chamber. Together they compose the national Bica ...
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 executive branch of the federal government and is the commander-in-chief of the United St ...
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 President of the United States, US President and confirmed by the US Senate ...
s, Officers of the Armed Forces,
United States attorney United States attorneys are officials of the United States Department of Justice, U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 United States federal judicial district, U.S. federal judici ...
s, 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 supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nat ...
, both times in Article II, Section 2, Clause 2. 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 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 Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
and
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Fathers of the United States, Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as ...
, 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 Fathers of the United States, Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the ...
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 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. On February 13, 2016, Mitch McConnell, 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 to the Supreme Court, despite what might have otherwise been a successful Democratic filibuster.


See also

* Promulgation


References

{{United States Congress, state=collapsed Public law