The Constitution's 'Advice And Consent' Clause Explained

The advice and consent clause in the US Constitution outlines the power-sharing dynamics between the President and the Senate. It is a compromise between two conflicting visions for the country: a strong executive control vested in the President versus a strengthened Congress, with the Senate taking on a more active role in governance. The clause, found in Article II, Section 2, Clause 2, states that certain presidential decisions, such as appointing ambassadors and making treaties, are to be made with the Advice and Consent of the Senate. This phrase, advice and consent, has been interpreted in various ways and continues to be a subject of debate, with some arguing for a greater focus on the advice aspect in senatorial input before presidential decisions.

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The role of the Senate in treaty-making

The United States Constitution provides that 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" (Article II, section 2, clause 2). Treaties are binding agreements between nations and become part of international law. Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land".

In some cases, when Senate leadership believed a treaty lacked sufficient support for approval, the Senate did not vote on the treaty, and it was eventually withdrawn by the president. Since pending treaties are not required to be resubmitted at the beginning of each new Congress, they may remain under consideration by the Senate Foreign Relations Committee for an extended period. In recent decades, presidents have frequently entered the United States into international agreements without the advice and consent of the Senate. These are called "executive agreements," and while they are not brought before the Senate for approval, they are still binding on the parties under international law.

The concept of advice and consent serves to moderate the power of one branch of government by requiring the concurrence of another branch for selected actions. In the context of treaty-making, the executive branch is generally responsible for treaty negotiations, but Congress occasionally plays a role by enacting legislation that encourages the executive branch to pursue certain objectives in its international negotiations.

The founders of the United States Constitution never envisioned the great need for international cooperation so vital to the country's prosperity and security. The recent debate over the judicial filibuster has brought to light a discussion about the role and powers of the three branches of government, including the President and Senate, in treaty-making.

The role of the President in treaty-making

The US Constitution outlines the President's role in treaty-making in Article II, also known as the Treaty Clause. This clause states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties". This means that the President is the final actor in expressing the US's assent to be bound to a treaty, but they do so with the advice and consent of the Senate, provided two-thirds of the Senators present concur.

The Treaty Clause was a compromise between those who wanted a strong executive control vested in the President and those who wanted to strengthen Congress. The clause was also a response to concerns about the ineffectualness of the Articles, with many citing the established international tradition of executives holding exclusive power over foreign relations and agreements. The participation of the Senate through the "advice and consent" mechanism was thus a way to moderate the power of the executive branch by requiring the concurrence of the legislative branch for selected actions.

While the President is the final actor in expressing the US's assent to a treaty, additional action by Congress may be necessary to implement the treaty into domestic law. The President may proclaim the treaty and declare it to be in force by Executive Order, but they are not obligated to ratify a Senate-approved treaty, and in some cases, Presidents have declined to do so.

In recent decades, Presidents have frequently entered the US into international agreements without the advice and consent of the Senate, known as "executive agreements". These are still binding on the parties under international law, but they do not have the force of federal legislation that treaties do.

The role of the Senate in judicial appointments

The "advice and consent" of the Senate serves to moderate the power of the executive branch by requiring the concurrence of the legislative branch for certain actions. In the context of judicial appointments, the Senate's role is to advise the President on nominations and to approve or reject those nominations. The Senate may consider a range of matters when deciding whether to consent to a nomination, including the nominee's political considerations, judicial philosophy, fitness for the bench, past statements on relevant issues, and the overall balance of power between political factions.

Historically, the Senate has generally deferred to the President's choices for the Supreme Court, often confirming appointments within days of nomination. However, there have been notable instances where the Senate has rejected nominees due to political disagreements or concerns about their qualifications. For example, in 1795, John Rutledge became the first judicial nominee to be formally rejected after angering Senate Federalists with his criticism of the Jay Treaty.

The Senate's role in judicial appointments has evolved over time. In the early 19th century, the Senate considered most nominations without referring them to a committee. However, by the 1860s, the Senate had adopted rules to provide for the routine referral of nominations to appropriate committees, and investigations of judicial nominees became more common. The Judiciary Committee plays an integral part in the nomination process, holding hearings where nominees provide testimony and respond to questions. The Committee then refers the nomination to the full Senate for a vote.

The "advice and consent" role of the Senate in judicial appointments has been the subject of debate and controversy. Some argue that the Senate's role should focus more on the "advice" aspect rather than the "consent" portion. Shifts in party control and public opinion of the President can also influence the type of nominees the Senate is willing to confirm. Interest groups and public opinion have also played a significant role in shaping the process of judicial appointments.

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The role of the President in judicial appointments

Historically, the President's approach to judicial appointments has varied based on personal preferences, Senate norms, political circumstances, and the growth of government bureaucracy. Some presidents, like Abraham Lincoln, chose judges based on their policy agendas, selecting those who would likely rule in accordance with the president's ideology. Others, like Grover Cleveland, viewed judicial nominations as opportunities for patronage to strengthen political support.

The "Advice and Consent" clause of the Constitution requires the President to seek the advice and approval of the Senate for appointments. This clause moderates the power of the executive branch by requiring the concurrence of the legislative branch for certain actions. While the Senate provides advice and consent, the President still retains a measure of accountability for their choices in staffing important government positions.

In modern times, the President has the most discretion in filling vacancies on the Supreme Court, slightly less in selecting nominees for the US courts of appeals, and defers to the Senate the most in selecting US district court judges. After a nomination is confirmed, the President's final task is to sign a commission that officially appoints the judge.

The balance of power in the federal government

The US Constitution divides the federal government into three distinct branches: the legislative, executive, and judicial. This separation of powers ensures that no individual or group has too much power and acts as a system of checks and balances.

The legislative branch, or Congress, is responsible for writing and enacting laws, setting budgets and taxes, and authorizing borrowing. It is the only body that can declare war, and it may override a presidential veto with a 60% vote. The legislative branch consists of the Senate and the House of Representatives, both of which initiate bills. The Senate also ratifies treaties and confirms presidential appointments, while the House of Representatives creates federal judgeships and courts, except for the Supreme Court.

The executive branch is headed by the President, who is the Commander-in-Chief of the armed forces and has the power to make treaties, appoint federal posts, and ensure federal laws are executed. The President can also veto legislation created by Congress. The executive branch also includes executive departments, independent agencies, and other boards and committees.

The judicial branch, including the Supreme Court and other federal courts, decides on the meaning and application of laws and determines whether a law breaks the rules of the Constitution.

The "advice and consent" clause in the Constitution refers to the balance of power between the President and the Senate in judicial appointments and treaty-making. The President must gain the advice and consent of the Senate when appointing federal judges and making treaties. This clause was written as a compromise to ensure a balance of power between a strong executive control vested in the President and a strengthened Congress.

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