Advice and consent
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Advice and consent is a phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.
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[edit] General
The expression is particularly frequently used in 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. For example, in Canada, a constitutional monarchy, bills are headed:
- Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
This formula emphasizes that, although legally the bill is being enacted by the Queen of Canada, it is not through her initiative but through that of the houses of Parliament that legislation is created.
[edit] United States
In the US, "advice and consent" is a power of the United States Senate (and several state Senates) 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 judges, and ambassadors.
[edit] Constitutional provision
Article II, Section 2, paragraph 2 of the United States Constitution states:
The President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The term "advice and consent" first appears in the United States Constitution in Article II, Section 2.2, referring to the Senate's role in the signing and ratification of treaties in the United States. The clause uses the same language to describe the Senate's role in the appointment of public officials.
The Founding Fathers of the United States included the language 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, while 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.
[edit] Historical development of power
President George Washington firmly believed that the role of the Senate was to advise the President after the nomination had been made by the President. This notion has developed into the subordination of the "advice" portion of the power through the consolidation of American democracy to the "consent" portion, although several Presidents have consulted informally with Senators over nominations and treaties.
[edit] Use today
The actual motion adopted by the Senate when exercising the power is "to advise and consent to", showing how initial advice on nominations and treaties is not a formal power exercised by the Senate. For appointments, a majority of Senators are needed to pass a motion "to advice and consent", but unless the appointment has the support of three-fifths of Senators a filibuster blocking the passage of the motion is possible.
For a treaty, a two-thirds vote of the Senate is required, and thus a filibuster to block consideration would be unnecessary.
