Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts. It describes either of two situations: where a weak executive branch of a government 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.
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.
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 Lords Spiritual 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 British monarchy (specifically, by the Queen-in-Parliament), it is not through her initiative but through that of Parliament that legislation is created.
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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, ambassadors, and other smaller offices. 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, 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, appointments to the office of vice 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 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,Roger Sherman believed that advice before nomination could still be helpful. 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 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".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, as well as other similar delaying tactics, have been used to require higher vote tallies in the past.
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 change the rules.As a result, for instance, judicial nominees to federal courts and a president's executive-branch nominations can be freed up for a confirmation vote by a simple majority vote of the Senate. However, he left the filibuster in place for Supreme Court nominees.
In April 2017, the Republican Party, led by Majority Leader Mitch McConnell, did the same for Supreme Court nominations, allowing Associate Justice Neil Gorsuch on the bench, despite what might have otherwise been a successful Democratic filibuster.
Associate Justice Brett Kavanaugh's Supreme Court nomination was controversial because of late allegations against him about instances of sexual assault in high school. Kavanaugh accused Democrats of opposing his nomination by replacing "advice and consent" with "search and destroy".
Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.
The federal government of the United States is the national government of the United States, a federal republic in North America, composed of 50 states, a federal district, five major self-governing territories and several island possessions. The federal government is composed of three distinct branches: legislative, executive, and judicial, whose powers are vested by the U.S. Constitution in the Congress, the president and the federal courts, respectively. The powers and duties of these branches are further defined by acts of Congress, including the creation of executive departments and courts inferior to the Supreme Court.
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most government functions are guided by constitutional convention rather than by a formal written constitution. In these states, actual distribution of power may be markedly different from those the formal constitutional documents describe. In particular, the formal constitution often confers wide discretionary powers on the head of state that, in practice, are used only on the advice of the head of government, and in some cases not at all.
Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, and in the case of multilateral treaties, the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.
In the United States, a recess appointment is an appointment by the president of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution's Appointments Clause, the President is empowered to nominate, and with the advice and consent (confirmation) of the Senate, make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions, as well as to the federal judiciary. A recess appointment under Article II, Section 2, Clause 3 of the Constitution is an alternative method of appointing officials that allows the temporary filling of offices during periods when the Senate is not in session. It was anticipated that the Senate would be away for months at a time, so the ability to fill vacancies in important positions when the Senate is in recess and unavailable to provide advice and consent was deemed essential to maintain government function, as described by Alexander Hamilton in No. 67 of The Federalist Papers.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.
The nuclear option is a parliamentary procedure that allows the United States Senate to override a standing rule of the Senate, such as the 60-vote rule to close debate, by a simple majority of 51 votes, rather than the two-thirds supermajority normally required to amend the rules. The option is invoked when the majority leader raises a point of order that contravenes a standing rule, such as that only a simple majority is needed to close debate on certain matters. The presiding officer denies the point of order based on Senate rules, but the ruling of the chair is then appealed and overturned by majority vote, establishing new precedent.
The Gang of 14 was a phrase coined to describe the bipartisan group of Senators in the 109th United States Congress who successfully, at the time, negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called "nuclear option" by Senate Republicans over an organized use of the filibuster by Senate Democrats. The term alludes to the phrase "Gang of Four", used in China to refer to four ex-leaders blamed for the abuses during the rule of Mao Zedong.
Federalist No. 76, written by Alexander Hamilton, was published on April 1, 1788. The Federalist Papers are a series of eighty-five essays written to urge the ratification of the United States Constitution. These letters were written by Alexander Hamilton, James Madison, and John Jay under the name of Publius in the late 1780s. This paper discusses the arrangement of the power of appointment and the system of checks and balances. The title is "The Appointing Power of the Executive", and is the tenth in a series of 11 essays discussing the powers and limitations of the Executive branch. There are three options for entrusting power: a single individual, a select congregation, or an individual with the unanimity of the assembly. Of all of the options, Hamilton supports bestowing the president with the nominating power and the ratifying power to the senate in order to have a strategy with the least bias.
The Appointments Clause is part of Article II, Section 2, Clause 2 of the United States Constitution, which empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate, appoint public officials. Although the Senate must confirm certain principal officers, Congress may by law delegate the Senate's advice and consent role when it comes to "inferior" officers.
The Treaty Clause is part of Article II, Section 2, Clause 2 of the United States Constitution that empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which, upon receiving the advice and consent of a two-thirds supermajority vote of the United States Senate, become binding with the force of federal law.
The Saxbe fix, or salary rollback, is a mechanism by which the President of the United States, in appointing a current or former member of the United States Congress whose elected term has not yet expired, can avoid the restriction of the United States Constitution's Ineligibility Clause. That clause prohibits the President from appointing a current or former member of Congress to a civil office position that was created, or to a civil office position for which the pay or benefits were increased, during the term for which that member was elected until the term has expired. The rollback, first implemented by an Act of Congress in 1909, reverts the emoluments of the office to the amount they were when that member began his or her elected term.
In the history of the United States, there have been approximately 32 unsuccessful recess appointments to United States federal courts. 22 individuals have been appointed to a United States federal court through a recess appointment who were thereafter rejected by the United States Senate when their name was formally submitted in nomination, either by a vote rejecting the nominee, or by the failure of the Senate to act on the nomination. These individuals served as federal judges, having full authority to hold office and issue rulings, until their rejection by the Senate. Five individuals were appointed but resigned either before the Senate voted on their nomination, or before a formal nomination was even submitted. Another five individuals were appointed but never assumed the office.
The nomination, confirmation, and appointment of Justices to the Supreme Court of the United States involves several steps set forth by the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States and must face a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee, which can vote to send the nomination to the full United States Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the court. The Constitution does not set any qualifications for service as a Justice, thus the President may nominate any individual to serve on the Court.
The United States Senate is the upper chamber of the United States Congress, which, along with the United States House of Representatives—the lower chamber—constitutes the legislature of the United States. The Senate chamber is located in the north wing of the Capitol Building in Washington, D.C.
Filibuster is a tactic used in the United States Senate to prevent a measure from being brought to a vote by means of obstruction. The most common form occurs when one or more senators attempt to delay or block a vote on a bill by extending debate on the measure. The Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" vote to bring the debate to a close by invoking cloture under Senate Rule XXII.
The U.S. Congress in relation to the president and Supreme Court has the role of chief legislative body of the United States. However, the Founding Fathers of the United States built a system in which three powerful branches of the government, using a series of checks and balances, could limit each other's power. As a result, it helps to understand how the United States Congress interacts with the presidency as well as the Supreme Court to understand how it operates as a group.
An officer of the United States is a functionary of the executive or judicial branches of the federal government of the United States to whom is delegated some part of the country's sovereign power. The term "officer of the United States" is not a title, but a term of classification for a certain type of official.
On September 26, 2020, President Donald Trump announced the nomination of Judge Amy Coney Barrett to the position of Associate Justice of the Supreme Court of the United States to fill in the vacancy left by the death of Ruth Bader Ginsburg. At the time of her nomination, Barrett was a Judge of the United States Court of Appeals for the Seventh Circuit in South Bend, Indiana. The Senate received word from the president on September 29.