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.
In political systems b ...
of a government enacts something previously approved of by the
legislative branch
A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.
Laws enacted by legislatures are usually known ...
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 di ...
, 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, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the ...
'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 over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or ...
Commons
The commons is the cultural and natural resources accessible to all members of a society, including natural materials such as air, water, and a habitable Earth. These resources are held in common even when owned privately or publicly. Commons c ...
, in this present
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. ...
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
The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies (the Bailiw ...
(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 it ...
), 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 primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., federal district, five ma ...
, "advice and consent" is a power of the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and ...
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 gove ...
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 attorney
United States attorneys are officials of the U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 U.S. federal judicial districts. Each U.S. attorney serves as the United States' chief federal ...
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 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
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He was previously the nati ...
and
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
, 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 American statesman, lawyer, and a Founding Father of the United States. He is the only person to sign four of the great state papers of the United States related to the founding: the Cont ...
believed that advice ''before'' nomination could still be helpful. President 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 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
Harry Mason Reid Jr. (; December 2, 1939 – December 28, 2021) was an American lawyer and politician who served as a United States senator from Nevada from 1987 to 2017. He led the Senate Democratic Caucus from 2005 to 2017 and was the Sena ...
, 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, McConn ...
, 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
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
’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
Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...
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 sinc ...
to the Supreme Court, despite what might have otherwise been a successful Democratic filibuster.