What is Advice and Consent?

In the United States, advice and consent is the term used to describe the role of the Senate in limiting the powers of the president regarding appointments and treaties. For example, under the U.S. Constitution, the president's nominations for posts do not take effect unless they are confirmed by the Senate, and treaties do not take effect unless they receive approval from the Senate by a two-thirds vote. Advice and consent is an example of the Constitutional principle of checks and balances because it limits the power of the executive branch by requiring legislative approval. The term originated in England and is most often utilized in governments that limit the power of their chief executive.

In the United States, the provision of advice and consent was added to the Constitution as a compromise to maintain the balance of power between the legislative and executive branches of government. After the American Revolution, the founding fathers were reluctant to give a chief executive too much power because of the abuses that the colonists believed they had suffered under King George III. The concept of advice and consent added to the Constitution was one measure to ensure that the president’s power was kept in balance with the other branches of government.

The Constitution of the United States established the usage of advice and consent in Article II. The Senate is to consult and give its approval on all treaties signed and all appointments made by the president. These appointments include positions such as cabinet members, federal judges and ambassadors. The president first nominates someone, then must get two-thirds approval from the Senate to appoint the nominee. It is important to note, however, that without support from three-fifths of the Senate, a filibuster can block the appointment.

The powers of advice and consent were given to the Senate because it is considered the upper house of the bicameral legislative branch of the United States, which also includes the lower House of Representatives. The requirements to be a senator are more stringent, and senators also serve longer terms, so they are less likely to bend to public opinion. The framers of the Constitution thought that because of this, senators could serve as resources from whom the president could seek advice.

The term advice and consent also is found in the United States in state constitutions. Its usage is similar to that in the U.S. Constitution because it requires the chief executive of the state, the governor, to have his or her nominations approved by the state senate before those nominated are appointed. State governors appoint cabinet members, department heads and, in some instances, state judges.

Exercising advice and consent in the United States has evolved over time. George Washington thought that advice before nominations was optional. Modern presidents typically do not publicly announce their nominations for federal judges or other positions before meeting privately with senators. The advice of the Senate also is implemented when creating treaties by inviting Senators either to participate in negotiations or to observe the negotiations.