View source for Advice and consent

{{Use mdy dates|date = February 2019}}
{{Short description|Parliamentary procedure}}
{{Use American English|date = February 2019}}
{{for multi|the novel|Advise and Consent{{!}}''Advise and Consent''|the 1962 film starring Henry Fonda and Don Murray|Advise & Consent{{!}}''Advise & Consent''}}
 
'''Advice and consent''' is an English phrase frequently used in [[List of enacting formulae|enacting formulae]] of [[bill (proposed law)|bill]]s and in other legal or constitutional contexts. It describes either of two situations: where a weak [[executive branch]] of a government [[enactment of a bill|enacts]] something previously approved of by the [[legislative branch]] or where the legislative branch concurs and approves something previously enacted by a strong executive branch.

==General==
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 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]].

==United Kingdom==
In the [[United Kingdom]], a [[constitutional monarchy]], bills are headed:

<blockquote>BE IT ENACTED by the [[Queen of the United Kingdom|King]]'s most Excellent Majesty, by and with the advice and consent of the [[House of Lords|Lord]]s [[Lords Spiritual|Spiritual]] and [[Lords Temporal|Temporal]], and [[House of Commons of the United Kingdom|Commons]], in this present [[Parliament of the United Kingdom|Parliament]] assembled, and by the authority of the same, as follows:</blockquote>

This [[enacting formula]] emphasizes that although legally the bill is being enacted by the [[British monarchy]] (specifically, by the [[Queen-in-Parliament|King-in-Parliament]]), it is not through his initiative but through that of Parliament that legislation is created.

===Commonwealth===
====Singapore====
In Singapore, a [[parliamentary republic]] with the [[President of Singapore]] being the [[head of state]], the President has a number of [[Powers of the President of Singapore|powers]]. Some of the President's powers may only be exercised "on the advice of the Cabinet".<ref>Art 22P. Constitution of the Republic of Singapore</ref> 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.<ref>Yong Vui Kong v Attorney-General
[2011] SGCA 9</ref>

==United States==
{{United States Senate}}
{{Further|List of positions filled by presidential appointment with Senate confirmation}}

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 judge]]s, Officers of the Armed Forces, [[United States Attorney|United States attorney]]s, ambassadors, and other smaller offices. This power is also held by several [[state Senate|state senate]]s, 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 ===

The term "advice and consent" appears twice in the [[United States Constitution]], both times in [[Article II, Section 2, Clause 2]]. First, the term is used in reference to the senate's role in the [[Treaty Clause|signing and ratification of treaties]]. Then, it is used to describe the Senate's role in the [[Appointments Clause|nomination and confirmation process for federal appointees]].

{{quote|[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 [[SCOTUS|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.}}

This language was written at the [[Constitutional Convention (United States)|Constitutional 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 the [[Twenty-fifth Amendment to the United States Constitution|Twenty-fifth Amendment]], appointments to the office of [[vice president of the United States|vice president]] are confirmed by a majority vote in both houses of Congress, instead of just the Senate.

=== Historical development of power ===
While several framers of the U.S. Constitution, such as [[Thomas Jefferson]] and [[James Madison]], believed that the required role of the Senate is to advise the president ''after'' the nomination has been made by the president,<ref>Currie, David.  [https://books.google.com/books?id=nC4KbZVBeYgC&pg=RA1-PA25 ''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."</ref><ref>Hamilton, Alexander. [http://www.votesmart.org/reference/fedlist/fed76.htm ''Federalist No. 76''] {{webarchive |url=https://web.archive.org/web/20081023075214/http://www.votesmart.org/reference/fedlist/fed76.htm |date=October 23, 2008 }} (1788): "In the act of nomination, his judgment alone will be exercised."</ref> [[Roger Sherman]] believed that advice ''before'' nomination could still be helpful.<ref>[http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s46.html Letter from Roger Sherman to John Adams] (July 1789) in ''The Founders Constitution'': "their advice may enable him to make such judicious appointments."</ref> President [[George Washington]] took the position that pre-nomination advice was allowable but not mandatory.<ref>[https://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm 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."</ref>  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 ===
Typically, a [[United States congressional hearing|congressional 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".<ref>[http://rules.senate.gov/public/index.cfm?p=RuleXXX U.S. Senate Rule 30] {{Webarchive|url=https://web.archive.org/web/20100408001012/http://www.rules.senate.gov/public/index.cfm?p=RuleXXX |date=April 8, 2010 }}: "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."</ref><ref>[http://rules.senate.gov/public/index.cfm?p=RuleXXXI U.S. Senate Rule 31] {{Webarchive|url=https://web.archive.org/web/20100408001021/http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI |date=April 8, 2010 }}: "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'"</ref> 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 leader [[Harry Reid]], overrode the filibuster of a nomination with a simple [[majority vote]] to [[nuclear option|change the rules]] (exercising the parliamentary "nuclear option").<ref>{{cite news |url=https://www.washingtonpost.com/blogs/wonkblog/wp/2013/11/21/the-senate-just-got-rid-of-part-of-the-filibuster/ |title=It's official: The Senate just got rid of part of the filibuster |first=Brad |last=Plumer |date=November 21, 2013 |access-date=February 1, 2014 |newspaper=The Washington Post}}</ref> 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. 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 would [[Merrick Garland Supreme Court nomination|refuse to confirm a replacement]] for Supreme Court Justice Antonin Scalia until after the 2016 presidential election, a historic rebuke of [[Barack Obama|President 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.<ref>{{Cite news |title=McConnell throws down the gauntlet: No Scalia replacement under Obama |url=https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248 |access-date=2022-07-30 |website=Politico |language=en}}</ref>

In April 2017, McConnell and the Republican Party exercised the [[nuclear option]] in order to overcome Democratic opposition for [[Neil Gorsuch Supreme Court nomination|Supreme Court nominations]], confirming [[Associate Justice of the Supreme Court|Associate Justice]] [[Neil Gorsuch]] to the Supreme Court, despite what might have otherwise been a successful Democratic filibuster.

==See also==
* [[Promulgation]]

== References ==
<references />

{{United States Congress|state=collapsed}}

[[Category:Public law]]