- Advice and consent
Advice and consent is an English 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.
The expression is 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 the United Kingdom, a constitutional monarchy, bills are headed:
- BE IT ENACTED by the Queen'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 Queen of the United Kingdom (specifically, by the Queen-in-Parliament), it is not through her initiative but through that of Parliament that legislation is created.
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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 judges, and ambassadors. 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).
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, 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.
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.
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
Several framers of the U.S. Constitution 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. Likewise, 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.
The actual motion adopted by the Senate when exercising the power is "to advise and consent," which shows 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 advise and consent", but unless the appointment has the support of three-fifths of Senators, a filibuster blocking the passage of the motion is possible. Typically, a congressional hearing is held to question the appointee.
For a treaty, a two-thirds vote of the Senate is required anyway; thus, a filibuster could only delay passage.
- List of positions filled by presidential appointment with Senate confirmation
- ^ Currie, David. The Constitution in Congress: The Federalist Period, 1789-1801, page 25 (University of Chicago Press 1997) via Google Books: “Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations.”
- ^ Hamilton, Alexander.Federalist No. 76 (1788): “In the act of nomination, his judgment alone will be exercised.”
- ^ Letter from Roger Sherman to John Adams (July 1789) in The Founders Constitution: "their advice may enable him to make such judicious appointments."
- ^ U.S. Senate history on the power to advise and consent: "In selecting nominees, Washington turned to his closest advisers and to members of Congress, but the president resolutely insisted that he alone would be responsible for the final selection. He shared a common view that the Senate's constitutionally mandated 'advice' was to come after the nomination was made."
- ^ U.S. Senate Rule 30: "On the final question to advise and consent to the ratification in the form agreed to, the concurrence of two-thirds of the Senators present shall be necessary to determine it in the affirmative."
- ^ U.S. Senate Rule 31: "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'"
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Look at other dictionaries:
advice and consent — n. Phrase found in Article II, Section 2, Clause 2 of the United States Constitution describing the Senate s role in confirming presidential appointments and ratifying treaties. The consent takes the form of a vote. Rarely does a president… … Law dictionary
advice and consent — noun a legal expression in the United States Constitution that allows the Senate to constrain the President s powers of appointment and treaty making • Topics: ↑law, ↑jurisprudence • Hypernyms: ↑saying, ↑expression, ↑locution • Part Holonyms: ↑ … Useful english dictionary
advice and consent — U.S. Govt. a phrase in the Constitution (Article II, Section 2) allowing the Senate to restrain presidential powers of appointment and treaty making. [1780 90] * * * … Universalium
Advise and Consent — Infobox Book name = Advise and Consent image caption = Early edition cover author = Allen Drury country = United States language = English cover artist = series = genre = Political novel publisher = Doubleday release date = July 11, 1959 media… … Wikipedia
Advise and Consent (film) — Infobox Film name = Advise and Consent image size = 220px caption = Film poster by Saul Bass director = Otto Preminger producer = Otto Preminger writer = Allen Drury (novel) Wendell Mayes (screenplay) narrator = starring = Henry Fonda Charles… … Wikipedia
consent — con·sent n 1 a: compliance in or approval of what is done or proposed by another; specif: the voluntary agreement or acquiescence by a person of age or with requisite mental capacity who is not under duress or coercion and usu. who has knowledge… … Law dictionary
advice — ad·vice /əd vīs/ n 1: recommendation regarding a decision or course of conduct he shall have power, by and with the advice and consent of the Senate, to make treaties U.S. Constitution art. II advice of counsel 2: an official notice co … Law dictionary
consent — I. intransitive verb Etymology: Middle English, from Anglo French consentir, from Latin consentire, from com + sentire to feel more at sense Date: 13th century 1. to give assent or approval ; agree < consent to being tested > 2. archaic … New Collegiate Dictionary
advice — noun Etymology: Middle English avis, advis view, opinion, from Anglo French, from the Old French phrase ce m est a vis that appears to me, part translation of Latin mihi visum est it seemed so to me, I decided Date: 14th century 1. recommendation … New Collegiate Dictionary
Consent (criminal law) — Criminal defenses Pa … Wikipedia