advice and consent
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.
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, 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.
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
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.[Currie, David. 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.”][Hamilton, Alexander. Federalist No. 76 (1788): “In the act of nomination his judgment alone will be exercised.”] Roger Sherman believed that advice before nomination could still be helpful.[Letter from Roger Sherman to John Adams (July 1789) in The Founders Constitution: "their advice may enable him to make such judicious appointments."] Likewise, President George Washington took the position that pre-nomination advice was allowable but not mandatory.[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."] 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
The actual motion adopted by the Senate when exercising the power is "to advise and consent," which shows how initial advice on nominations and treaties is not a formal power exercised by the Senate.[U.S. Senate Rule 30: "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."][U.S. Senate Rule 31: "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'"] 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.
See also
Tenure of Office Act
Recess appointment
Appointments Clause
Foreign policy in the United States
Treaty Clause
References
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