All Topics  
Advice and consent

 

 
   Email Print
   Bookmark   Link
 

 

Advice and consent
 
 
  Topics Advice and consent Topic Home



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

An enacting clause, or enacting formula, is a short phrase that introduces the main provisions of a law Coming into force by some legislatures....
 of bill
Bill (proposed law)

A bill is a proposed new law introduced within a legislature that has not been ratification, adopted, or received royal assent. Once a bill has become law, it is thereafter an Statute; but in popular usage the two terms are often treated interchangeably....
s 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.

General
The expression is frequently used in systems where the head of state
Head of State

Head of state is the generic term for the individual or collective office that serves as the chief public representative of a monarchic or republican nation-state, federation, commonwealth or any other political state....
 has little practical power, and in practice the important part of the passage of a law is in its adoption by the legislature
Legislature

Legislature is a type of representative deliberative assembly with the power to create and change laws. The law created by a legislature is called legislation or statutory law....
.






Discussion
Ask a question about 'Advice and consent'
Start a new discussion about 'Advice and consent'
Answer questions from other users
Full Discussion Forum



Encyclopedia




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

An enacting clause, or enacting formula, is a short phrase that introduces the main provisions of a law Coming into force by some legislatures....
 of bill
Bill (proposed law)

A bill is a proposed new law introduced within a legislature that has not been ratification, adopted, or received royal assent. Once a bill has become law, it is thereafter an Statute; but in popular usage the two terms are often treated interchangeably....
s 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.

General


The expression is frequently used in systems where the head of state
Head of State

Head of state is the generic term for the individual or collective office that serves as the chief public representative of a monarchic or republican nation-state, federation, commonwealth or any other political state....
 has little practical power, and in practice the important part of the passage of a law is in its adoption by the legislature
Legislature

Legislature is a type of representative deliberative assembly with the power to create and change laws. The law created by a legislature is called legislation or statutory law....
. For example, in the United Kingdom
United Kingdom

The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom , the UK or Britain,is a sovereign state located off the northwestern coast of continental Europe....
, a constitutional monarchy
Constitutional monarchy

A constitutional monarchy is a form of constitutional government, where in either an elected or hereditary monarch is the head of state, unlike in an absolute monarchy, wherein the king or the queen is the sole source of political power, as he or she is not legally bound by the constitution....
, 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 formula emphasizes that, although legally the bill is being enacted by the Queen of the United Kingdom, it is not through her initiative but through that of Parliament that legislation is created.

United States


In the US, "advice and consent" is a power of the United States Senate
United States Senate

The United States Senate is the upper house of the Bicameralism United States Congress, the lower house being the United States House of Representatives....
 to be consulted on and approve treaties signed and appointments made by the President of the United States
President of the United States

The President of the United States is the head of state and head of government of the United States and is the highest political official in the United States by influence and recognition....
 to public positions, including Cabinet secretaries, federal judges, and ambassadors. This power is also held by several state Senates who 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

Article II, Section 2, paragraph 2 of the United States Constitution
United States Constitution

The Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America; the Federal Government of the United States; and all the State & local governments and Territorial Administrative bodies contained therein....
 states:

The term "advice and consent" first appears in the United States Constitution
United States Constitution

The Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America; the Federal Government of the United States; and all the State & local governments and Territorial Administrative bodies contained therein....
 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
Founding Fathers of the United States

The Founding Fathers of the United States were the political leaders who signed the United States Declaration of Independence or otherwise participated in the American Revolution as leaders of the Patriot s, or who participated in drafting the United States Constitution eleven years later....
 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.

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
Roger Sherman

Roger Sherman was an early United States lawyer and politician. He served as the first mayor of New Haven, Connecticut, Connecticut, and served on the Committee of Five that drafted the United States Declaration of Independence, and was also a representative and senator in the new republic....
 believed that advice before nomination could still be helpful. Likewise, President George Washington
George Washington

George Washington was the leader of the Continental Army in the American Revolutionary War and served as the List of Presidents of the United States President of the United States of the United States of Americas ....
 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

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 advice and consent", but unless the appointment has the support of three-fifths of Senators, a filibuster
Filibuster

A filibuster, or "talking out a bill", is a form of obstruction in a legislature or other decision-making body. An attempt is made to infinitely extend debate upon a proposal in order to delay the progress or completely prevent a vote on the proposal taking place....
 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.

See also

  • Tenure of Office Act
    Tenure of Office Act

    The Tenure of Office Act , enacted over the veto of President Andrew Johnson, denied the President of the United States the power to remove from office anyone who had been appointed by the President by and with the advice and consent of the United States Senate unless the Senate also approved the removal....
  • Recess appointment
    Recess appointment

    A recess appointment occurs when the President of the United States fills a vacant federal position, of a sufficiently senior level that the nomination must be confirmed by the United States Senate, while the Senate is in recess....
  • Appointments Clause
    Appointments Clause

    Article Two of the United States Constitution, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the President of the United States to appoint certain public officials with the "advice and consent" of the U.S....
  • Foreign policy in the United States
  • Treaty Clause
    Treaty Clause

    Article Two of the United States Constitution, Section 2, Clause 2 of the United States Constitution, includes the Treaty Clause, which empowers the President of the United States to make treaties with other countries, after obtaining the consent of a supermajority of the United States Senate....
  • List of positions filled by presidential appointment with Senate confirmation
    List of positions filled by presidential appointment with Senate confirmation

    Under the United States Constitution and law of the United States, certain Federal government of the United States positions appointed by the president of the United States require confirmation of the United States Senate....