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.

General

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 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.

United States

In the US, "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 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 states:

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.

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.

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.

References

U.S. Senate history on the power to advise and consent

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Last updated on Friday March 07, 2008 at 16:12:38 PST (GMT -0800)
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