ADVICE AND CONSENT

Under Article II, section 2, of the Constitution, the President's powers to make treaties and to appoint important public officials are to be exercised "by and with the advice and consent of the senate."

The formula "advice and consent" is an ancient one. It was used in British and American state papers and documents for over a thousand years prior to 1787. The use of these words in the Constitution was proposed by the Constitutional Convention's Committee on Remaining Matters, to which both the treaty power and the appointing power had been referred. The first proposal to associate the President and the Senate in the exercise of those powers was made by alexander hamilton, who wanted the Senate to act as a kind of privy council. In the debates over ratification of the constitution opponents charged that the provision violated the principle of separation of powers. But in the federalist the practice was defended as an instance of checks and balances and a means of involving the states in the making of important national policy.

In practice, the phrase "advice and consent" has come to have different meanings with respect to the two powers to which it is applied.

In the making of treaties, the advisory function has virtually disappeared. In August 1789, President george washington sought to honor the letter of the Constitution by appearing in person before the Senate to ask its advice prior to negotiating an Indian treaty. When the Senate referred the matter to a committee, Washington walked out, and since that incident, no President has made such a formal request for advice in advance. The common modern practices by which Presidents include senators among American negotiators and consult with influential senators, the party leadership, and members of the Senate Foreign Relations Committee are better understood as political devices to improve the chances of obtaining consent than as deference to the constitutional mandate to obtain advice. In giving its consent to the President's making—or ratification—of a treaty, the Senate is not bound to accept or reject the whole document as submitted. The Senate may amend a treaty or attach reservations to it. Since either of these actions may compel renegotiation, they might be considered perverse forms of giving advice.

In the appointment of officers, the advisory function has become far more important. Nominees to the Supreme Court and to the most important executive and diplomatic posts are normally approved (or rejected) by the Senate on grounds of merit, integrity, and policy. In the case of other executive and judicial appointments, a practice known as "senatorial courtesy" has transformed the requirement for "advice and consent" into an instrument of senatorial control. Nominees cannot expect the Senate's consent to their appointment if it is not supported by senators of the President's party from their home states. If a federal appointee is to serve in a particular state, the senior senator of the President's party from that state (if there is one) customarily makes the actual selection.

Dennis J. Mahoney
(1986)

(see also: Advice and Consent to Supreme Court Nominations; Bork Nomination.)