Advice and consent is an English phrase frequently used inenacting formulae ofbills and in other legal or constitutional contexts. It describes either of two situations: where a weakexecutive branch of a governmentenacts something previously approved of by thelegislative branch or where the legislative branch concurs and approves something previously enacted by a strong executive branch.
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 thehead of state has little practical power, and in practice the important part of the passage of a law is in its adoption by thelegislature.
In theUnited Kingdom, aconstitutional monarchy, bills are headed:
BE IT ENACTED by theKing's most Excellent Majesty, by and with the advice and consent of theLordsSpiritual andTemporal, andCommons, in this presentParliament assembled, and by the authority of the same, as follows:
Thisenacting formula emphasizes that although legally the bill is being enacted by theBritish monarchy (specifically, by theKing-in-Parliament), it is not through his initiative but through that of Parliament that legislation is created.
In Singapore, aparliamentary republic with thePresident of Singapore being thehead of state, the President has a number ofpowers. Some of the President's powers may only be exercised "on the advice of the Cabinet".[1] In this context, "advice of the Cabinet" means that the President must not only consider the Cabinet's advice but also act in full accordance with it, with no ability to exercise discretionary power.[2]
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In theUnited States, "advice and consent" is a power of theUnited States Senate to be consulted on and approve treaties signed and appointments made by thepresident of the United States to public positions, including Cabinet secretaries,federal judges, officers of the armed forces,United States attorneys, ambassadors, and other smaller offices. This power is also held by severalstate 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).
The termadvice and consent appears twice in theUnited States Constitution, both times inArticle II, Section 2, Clause 2. First, the term is used in reference to the senate's role in thesigning and ratification of treaties. Then, it is used to describe the Senate's role in thenomination and confirmation process for federal appointees.
[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 theSupreme 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.
This language was written at theConstitutional Convention 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 theTwenty-fifth Amendment, appointments to the office ofvice president are confirmed by a majority vote in both houses of Congress, instead of just the Senate.
While several framers of the U.S. Constitution, such asThomas Jefferson andJames Madison, believed that the required role of the Senate is to advise the presidentafter the nomination has been made by the president,[3][4]Roger Sherman believed that advicebefore nomination could still be helpful.[5] PresidentGeorge Washington took the position that pre-nomination advice was allowable but not mandatory.[6] 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.
Typically, acongressional 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".[7][8] 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 leaderHarry Reid, overrode the filibuster of a nomination with a simplemajority vote tochange the rules (exercising the parliamentary "nuclear option").[9] 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.[10] However, Reid left the filibuster in place for Supreme Court nominees.
On February 13, 2016,Mitch McConnell, Senate majority leader of the Republican Party, said that the Senate wouldrefuse to confirm a replacement for Supreme Court justice Antonin Scalia until after the 2016 presidential election, a historic rebuke ofPresident Obama'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.[11]
In April 2017, McConnell and the Republican Party exercised thenuclear option in order to overcome Democratic opposition forSupreme Court nominations, confirmingAssociate JusticeNeil Gorsuch to the Supreme Court, despite what might have otherwise been a successful Democratic filibuster.
In July 2020, SenatorTammy Duckworth put a hold on consent for military officers' appointments at colonel and above. Her goal was to learn ifAlexander Vindman was properly considered for promotion, despite his testimony to Congress against President Trump.[12][13] She removed the hold after two weeks, when the Secretary of Defense told her he was approved for promotion, though he had retired by then.[14]
From February to December 2023, SenatorTommy Tuberville put a hold on consent for generals' and admirals' appointments. His goal was to press for a vote on a new military benefit which paid for out of state travel for abortions.[15] The hold covered 451 senior officers, and ended without the vote on abortion travel.[16] The Defense Department adjusted to the hold by moving officers and civilians into acting positions, and postponing some retirements.[17]A year later 6,000 officers were confirmed without a hold.[18] On average the Senate confirms about 50,000 military appointments per year.[19]