Advice and consent
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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 A legislature (, ) is a deliberative assembly with the authority, legal authority to make laws for a Polity, political entity such as a Sovereign state, country, nation or city on behalf of the people therein. They are often contrasted with th ...
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 A head of state is the public persona of a sovereign state.#Foakes, Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representative of its international persona." The name given to the office of head of sta ...
has little practical power, and in practice the important part of the passage of a law is in its adoption by the
legislature A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial power ...
.


United Kingdom

In the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
, a
constitutional monarchy Constitutional monarchy, also known as limited monarchy, parliamentary monarchy or democratic monarchy, is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in making decisions. ...
, bills are headed:
BE IT ENACTED by the
King King is a royal title given to a male monarch. A king is an Absolute monarchy, absolute monarch if he holds unrestricted Government, governmental power or exercises full sovereignty over a nation. Conversely, he is a Constitutional monarchy, ...
's most Excellent Majesty, by and with the advice and consent of the
Lord Lord is an appellation for a person or deity who has authority, control, or power (social and political), power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the Peerage o ...
s Spiritual and Temporal, and
Commons The commons is the cultural and natural resources accessible to all members of a society, including natural materials such as air, water, and a habitable Earth. These resources are held in common even when owned privately or publicly. Commons ...
, in this present
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
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 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 A parliamentary republic is a republic that operates under a parliamentary system of government where the Executive (government), executive branch (the government) derives its legitimacy from and is accountable to the legislature (the parliament). ...
with the
President of Singapore The president of the Republic of Singapore, is the head of state of Singapore. The president represents the country in official diplomatic functions and possesses certain executive powers over the government of Singapore, including the contro ...
being the
head of state A head of state is the public persona of a sovereign state.#Foakes, Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representative of its international persona." The name given to the office of head of sta ...
, the President has a number of powers. Some of the President's powers may only be exercised "on the advice of the Cabinet". 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.


United States

In the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
, "advice and consent" is a power of the
United States Senate The United States Senate is a chamber of the Bicameralism, bicameral United States Congress; it is the upper house, with the United States House of Representatives, U.S. House of Representatives being the lower house. Together, the Senate and ...
to be consulted on and approve treaties signed and appointments made by the
president of the United States The president of the United States (POTUS) is the head of state and head of government of the United States. The president directs the Federal government of the United States#Executive branch, executive branch of the Federal government of t ...
to public positions, including Cabinet secretaries,
federal judge Federal judges are judges appointed by a federal level of government as opposed to the state/provincial/local level. United States A U.S. federal judge is appointed by the U.S. president and confirmed by the U.S. Senate in accordance with Arti ...
s, officers of the armed forces,
United States attorney United States attorneys are officials of the U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 U.S. federal judicial districts. Each U.S. attorney serves as the United States' chief federal ...
s, ambassadors, and other smaller offices. This power is also held by several
state senate In the United States, the state legislature is the legislative branch in each of the 50 U.S. states. A legislature generally performs state duties for a state in the same way that the United States Congress performs national duties at ...
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 The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
, both times in
Article II, Section 2, Clause 2 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 Un ...
. First, the term is used in reference to the senate's role in the signing and ratification of treaties. Then, it is used to describe the Senate's role in the nomination and confirmation process for federal appointees. 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 A vice president or vice-president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vi ...
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 Thomas Jefferson (, 1743July 4, 1826) was an American Founding Fathers of the United States, Founding Father and the third president of the United States from 1801 to 1809. He was the primary author of the United States Declaration of Indepe ...
and
James Madison James Madison (June 28, 1836) was an American statesman, diplomat, and Founding Fathers of the United States, Founding Father who served as the fourth president of the United States from 1809 to 1817. Madison was popularly acclaimed as the ...
, 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 George Washington (, 1799) was a Founding Fathers of the United States, Founding Father and the first president of the United States, serving from 1789 to 1797. As commander of the Continental Army, Washington led Patriot (American Revoluti ...
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.


Use today

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". 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 change the rules (exercising the parliamentary "nuclear option"). 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 refuse to confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 presidential election, a historic rebuke of 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. In April 2017, McConnell and the Republican Party exercised the
nuclear option In the United States Senate, the nuclear option is a Parliamentary procedure, legislative procedure that allows the Senate to override a standing rule by a simple majority, avoiding the two-thirds supermajority normally required to invoke clot ...
in order to overcome Democratic opposition for Supreme Court nominations, confirming
Associate Justice An associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some ...
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. He was Neil Gorsuch Supreme Court ...
to the Supreme Court, despite what might have otherwise been a successful Democratic filibuster.


See also

*
Promulgation Promulgation is the formal proclamation or the declaration that a new statute, statutory or administrative law is enacted after its final Enactment of a bill, approval. In some jurisdiction (area), jurisdictions, this additional step is necessary ...


References

{{United States Congress, state=collapsed Public law