Advice and consent is an English 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.
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 the United Kingdom, a constitutional monarchy, bills are headed:BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the LordsSpiritual and Temporal, and Commons, in this present Parliament 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 (specifically, by the Queen-in-Parliament), it is not through her initiative but through that of Parliament that legislation is created.
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 judges, United States Attorneys, 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).
The term "advice and consent" first appears in the United States Constitution 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. Article II, Section 2, paragraph 2 of the United States Constitution states:
[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 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 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, appointments to the office of Vice President are confirmed by a majority vote in both Houses of Congress, instead of just the Senate.
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 believed that advice before nomination could still be helpful. Likewise, President George Washington 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.
Typically, a congressional hearing is held to question an appointee prior to a committee vote. If the nominee is approved by the relevant committee, the full Senate must then approve the nomination. The actual motion adopted by the Senate when exercising the power is "to advise and consent" . For appointments, a majority of Senators present are needed to pass a motion "to advise and consent". A filibuster requiring a three-fifths vote to override, and other similar delaying tactics have been used to require higher vote tallies in the past. On November 21, 2013, the Democratic Party, led by Majority Leader Harry Reid overrode the filibuster of a nomination with a simple majority vote to change the rules.
For a treaty, a two-thirds vote of the Senate is constitutionally required.