Advice and consent

Advice and consent

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Advice and consent is an English phrase frequently used in enacting formulae of bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....

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
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...

 has little practical power, and in practice the important part of the passage of a law is in its adoption by the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

. For example, in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

, a constitutional monarchy
Constitutional monarchy
Constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a constitution, whether it be a written, uncodified or blended constitution...

, bills are headed:
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lord
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

s Spiritual
Lords Spiritual
The Lords Spiritual of the United Kingdom, also called Spiritual Peers, are the 26 bishops of the established Church of England who serve in the House of Lords along with the Lords Temporal. The Church of Scotland, which is Presbyterian, is not represented by spiritual peers...

 and Temporal, and Commons, in this present Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

 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
Monarchy of the United Kingdom
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...

 (specifically, by the Queen-in-Parliament
Queen-in-Parliament
The Queen-in-Parliament , sometimes referred to as the Crown-in-Parliament or, more fully, as the King in Parliament under God, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its legislative role, acting with the advice and consent of the lower...

), it is not through her initiative but through that of Parliament that legislation is created.

United States


In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, "advice and consent" is a power of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 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 of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

 to public positions, including Cabinet secretaries, federal judge
Federal judge
Federal judges are judges appointed by a federal level of government as opposed to the state / provincial / local level.-Brazil:In Brazil, federal judges of first instance are chosen exclusively by public contest...

s, 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).

Constitutional provision


Article II, Section 2, paragraph 2 of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 states:
The term "advice and consent" first appears in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 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 of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...

 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
Twenty-fifth Amendment to the United States Constitution
The Twenty-fifth Amendment to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President, as well as responding to Presidential disabilities...

, 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
Roger Sherman
Roger Sherman was an early American lawyer and politician, as well as a founding father. He served as the first mayor of New Haven, Connecticut, and served on the Committee of Five that drafted the 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 dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...

 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 advise and consent", but unless the appointment has the support of three-fifths of Senators, a filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...

 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.

See also