Advice and consent

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 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 has little practical power, and in practice the important part of the passage of a law is in its adoption by the legislature.

United Kingdom

In the United Kingdom, a constitutional monarchy, bills are headed:

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

This enacting formula emphasizes that, although legally the bill is being enacted by the Queen of the United Kingdom (specifically, by the Queen-in-Parliament), it is not through her initiative but through that of Parliament that legislation is created.

United States

In the United States, "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, United States Attorneys, and ambassadors. This power is also held by several state Senates, 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" 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. Article II, Section 2, paragraph 2 of the United States Constitution states:

[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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

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, 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.

Under the Twenty-fifth Amendment, appointments to the office of Vice President 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 the Thomas Jefferson and James Madison, believed that the required role of the Senate is to advise the President after the nomination has been made by the President,[1][2] Roger Sherman believed that advice before nomination could still be helpful.[3] President George Washington took the position that pre-nomination advice was allowable but not mandatory.[4] 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".[5][6] For appointments, a majority of Senators present are needed to pass a motion "to advise and consent". A filibuster requiring a three-fifths vote to override, as well as other similar delaying tactics, have been used to require higher vote tallies in the past.

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.[7] As a result, for instance, judicial nominees to federal courts and a president's executive-branch nominations can be freed up for a confirmation vote by a simple majority vote of the Senate. However, he left the filibuster in place for Supreme Court nominees.

In April 2017, the Republican Party, led by Majority Leader Mitch McConnell, did the same for Supreme Court nominations, allowing Associate Justice Neil Gorsuch on the bench, despite what might have otherwise been a successful Democratic filibuster.

Associate Justice Brett Kavanaugh's Supreme Court nomination was controversial because of late allegations against him about instances of sexual assault in high school. Kavanaugh accused Democrats of opposing his nomination by replacing "advice and consent" with "search and destroy".[8]

See also

References

  1. ^ 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."
  2. ^ Hamilton, Alexander. Federalist No. 76 Archived October 23, 2008, at the Wayback Machine (1788): “In the act of nomination, his judgment alone will be exercised.”
  3. ^ Letter from Roger Sherman to John Adams (July 1789) in The Founders Constitution: "their advice may enable him to make such judicious appointments."
  4. ^ 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."
  5. ^ 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."
  6. ^ U.S. Senate Rule 31: "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'"
  7. ^ Plumer, Brad (November 21, 2013). "It's official: The Senate just got rid of part of the filibuster". The Washington Post. Retrieved February 1, 2014.
  8. ^ Shabad, Rebecca (September 27, 2018). "An angry, emotional Kavanaugh accuses Democrats of 'search and destroy'". NBC News. Retrieved February 6, 2019.
Appointments Clause

The Appointments Clause is part of Article II, Section 2, Clause 2 of the United States Constitution, which empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate, appoint public officials. Although the Senate must confirm certain principal officers (including ambassadors, Cabinet secretaries, and federal judges), Congress may by law delegate the Senate's advice and consent role when it comes to "inferior" officers (to the President alone, or the courts of law, or the heads of departments).

Article Two of the United States Constitution

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 United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.

Section 1 of Article Two establishes the positions of the president and the vice president, and sets the term of both offices at four years. Section 1's Vesting Clause declares that the executive power of the federal government is vested in the president and, along with the Vesting Clauses of Article One and Article Three, establishes the separation of powers between the three branches of government. Section 1 also establishes the Electoral College, the body charged with electing the president and the vice president. Section 1 provides that each state chooses members of the Electoral College in a manner directed by each state's respective legislature, with the states granted electors equal to their combined representation in both houses of Congress. Section 1 lays out the procedures of the Electoral College and requires the House of Representatives to hold a contingent election to select the president if no individual wins a majority of the electoral vote. Section 1 also sets forth the eligibility requirements for the office of the president, provides procedures in case of a presidential vacancy, and requires the president to take an oath of office.

Section 2 of Article Two lays out the powers of the presidency, establishing that the president serves as the commander-in-chief of the military and has the power to grant pardons and require the "principal officer" of any executive department to tender advice. Though not required by Article Two, President George Washington organized the principal officers of the executive departments into the Cabinet, a practice that subsequent presidents have followed. The Treaty Clause grants the president the power to enter into treaties with the approval of two-thirds of the Senate. The Appointments Clause grants the president the power to appoint judges and public officials subject to the advice and consent of the Senate, which in practice has meant that presidential appointees must be confirmed by a majority vote in the Senate. The Appointments Clause also establishes that Congress can, by law, allow the president, the courts, or the heads of departments to appoint "inferior officers" without requiring the advice and consent of the Senate. The final clause of Section 2 grants the president the power to make recess appointments to fill vacancies that occur when the Senate is in recess.

Section 3 of Article Two lays out the responsibilities of the president, granting the president the power to convene both houses of Congress, receive foreign representatives, and commission all federal officers. Section 3 requires the president to inform Congress of the "state of the union"; since 1913 this has taken the form of a speech referred to as the State of the Union. The Recommendation Clause requires the president to recommend measures he deems "necessary and expedient." The Take Care Clause requires the president to obey and enforce all laws, though the president retains some discretion in interpreting the laws and determining how to enforce them. Section 4 of Article Two establishes that the president and other officers can be removed from office through the impeachment process, which is further described in Article One.

Assistant Secretary of Energy for Nuclear Energy

The Assistant Secretary of Energy for Nuclear Energy is the head of the Office of Nuclear Energy within the United States Department of Energy. The assistant secretary is responsible for the department's nuclear technology research and the development and management of the department's nuclear technology infrastructure. The assistant secretary executes a budget totaling $870 million in fiscal year 2011.

The assistant secretary is appointed by the President with the advice and consent of the Senate. The current assistant secretary is Peter B. Lyons.

Assistant Secretary of the Treasury for Financial Stability

The Assistant Secretary of the Treasury for Financial Stability is the head of the Office of Financial Stability in the United States Department of the Treasury.

The position was created in 2008 by the Emergency Economic Stabilization Act of 2008, the act that created the Office of Financial Stability to administer the Troubled Asset Relief Program.

By law, the Assistant Secretary of the Treasury for Financial Stability is appointed by the President of the United States with the advice and consent of the United States Senate. During a vacancy, the United States Secretary of the Treasury is authorized to appoint an Acting Assistant Secretary of the Treasury for Financial Stability.

Contempt of the sovereign

Contempt of the Sovereign (also called contempt of statute) was an ancient doctrine in English law dating from medieval times, and now obsolete. It referred to the notion that if somebody disobeyed an Act of Parliament, but the Act did not say what the penalty was or how the Act was to be enforced, then that person was guilty of a criminal offence under common law (although the crime itself was not called contempt). This doctrine was based on the idea that an Act of Parliament was an expression of the Sovereign's will, enacted with the "advice and consent" of Parliament. In modern legislation and jurisprudence it has become the rule that contravening a statute is not a crime unless the statute expressly says so in clear terms, and so the doctrine has long since lapsed. However the law does still exist, and the last time it was used was in 1840.Contempt of the Sovereign is not to be confused with lèse majesté.

List of United States Foreign Service Career Ambassadors

Career Ambassador is a personal rank of Foreign Service Officers within the United States Department of State Senior Foreign Service. The rank of Career Ambassador is awarded by nomination of the President and confirmation by the United States Senate. According to the Department of State:

The class of Career Ambassador was first established by an Act of Congress on Aug 5, 1955, as an amendment to the Foreign Service act of 1946 (P.L. 84-250; 69 Stat. 537). Under its provisions, the President with the advice and consent of the Senate was empowered to appoint individuals to the class who had (1) served at least 15 years in a position of responsibility in a government agency, including at least 3 years as a Career Minister; (2) rendered exceptionally distinguished service to the government; and (3) met other requirements prescribed by the Secretary of State. Under the 1980 Foreign Service Act (P.L. 96-465; 94 Stat. 2084), which repealed the 1946 Act as amended, the President is empowered with the advice and consent of the Senate to confer the personal rank of Career Ambassador upon a career member of the Senior Foreign Service in recognition of especially distinguished service over a sustained period.

Massachusetts Governor's Council

The Massachusetts Governor's Council (also known as the Executive Council) is a governmental body that provides advice and consent in certain matters – such as judicial nominations, pardons, and commutations – to the Governor of Massachusetts. Councillors are elected by the general public and their duties are set forth in the Massachusetts Constitution.

Presidential nominee

In United States politics and government, the term presidential nominee has two different meanings:

A candidate for president of the United States who has been selected by the delegates of a political party at the party's national convention (also called a presidential nominating convention) to be that party's official candidate for the presidency.

A person nominated by a sitting U.S. president to an executive or judicial post, subject to the advice and consent of the Senate. (See Appointments Clause, List of positions filled by presidential appointment with Senate confirmation.)

Puerto Rico Department of Health

The Department of Health of Puerto Rico (Spanish: Departamento de Salud de Puerto Rico) is one of the Cabinet-level agencies directly created by Article 4, Section 6 of the Constitution of Puerto Rico. It is headed by a Secretary of Health, appointed by the Governor of Puerto Rico and requiring the advice and consent of the Senate of Puerto Rico. The Secretary of Health is eighth in the line of gubernatorial succession.

Puerto Rico Environmental Quality Board

The Puerto Rico Environmental Quality Board —Spanish: Junta de Calidad Ambiental de Puerto Rico (JCA)— is the principal environmental protection regulator in Puerto Rico. The Board is attached to the Office of the Governor of Puerto Rico. Its 3 members and one alternate member are appointed by the Governor of Puerto Rico with the advice and consent of the Senate. The governor appoints one of its members as chairman of the board.

Queen-in-Parliament

The Queen-in-Parliament (or, during the reign of a male monarch, King-in-Parliament), sometimes referred to as the Crown-in-Parliament or, more fully, in the United Kingdom, as the King/Queen in Parliament under God, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its legislative role, acting with the advice and consent of the parliament (including, if the parliament is bicameral, both the lower house and upper house). Bills passed by the houses are sent to the sovereign, or governor-general, lieutenant-governor, or governor as her representative, for Royal Assent, which, once granted, makes the bill into law; these primary acts of legislation are known as acts of parliament. An act may also provide for secondary legislation, which can be made by the Crown, subject to the simple approval, or the lack of disapproval, of parliament.

Several countries, although having received their independence from the United Kingdom, operate under a system of President-in-Parliament, which formally designates the President as a component of Parliament alongside the House or two Houses.

Recess appointment

In the United States, a recess appointment is an appointment by the President of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution's Appointments Clause, the president is empowered to nominate, and with the advice and consent (confirmation) of the United States Senate, make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. A recess appointment under Article II, Section 2, Clause 3 of the Constitution is an alternative method of appointing officials that allows the filling of vacancies to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate is not in session.

On occasion, and controversially, this power has also been used by presidents to temporarily install an unpopular nominee by sidestepping the Senate's role in the confirmation process, and the Senate has taken measures from time to time to prevent a President making recess appointments.

A recess appointment must be confirmed by the Senate by the end of the next session of Congress, or the appointment expires. In current practice this means that a recess appointment must be approved by roughly the end of the next calendar year, and thus could last for almost two years.

Secretary of Consumer Affairs of Puerto Rico

The Secretary of Consumer Affairs of Puerto Rico (Spanish: Secretario de Asuntos del Consumidor de Puerto Rico) is responsible of defending and protecting consumers in Puerto Rico and leads the Department of Consumer Affairs (DACO). The position is appointed by the governor with advice and consent from the Senate. The Secretary from 2013 to 2016 was Nery Adamés Soto. The current Secretary is Michael Pierluisi.

Treaty Clause

The Treaty Clause is part of Article II, Section 2, Clause 2, of the United States Constitution, that empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which, upon receiving the advice and consent of a two-thirds supermajority vote of the United States Senate.

Treaty with Morocco (1836)

The Treaty with Morocco was signed on September 16, 1836 (3 Jumada II, A.H. :1252), between the United States of America and the "Barbary State" of Morocco.

Submitted to the Senate December 26, 1836. (Message of December 20, 1836.) Resolution of advice and consent January 17, 1837. Ratified by the United States January 28, 1837.

United States Deputy Secretary of Homeland Security

The Deputy Secretary of Homeland Security is the chief operating officer of the United States Department of Homeland Security, with responsibility for managing day-to-day operations. The department has over 208,000 employees and an annual budget of more than $48.5 billion.If the Secretary of Homeland Security dies, resigns, or is otherwise unable to perform the functions and duties of the office, the Deputy Secretary is to serve as an Acting Secretary.The Deputy Secretary is appointed by the President with the advice and consent of the Senate. The position of Deputy Secretary was created along with the creation of the Department of Homeland Security in 2002. The Deputy Secretary is paid $168,000 annually.

United States Deputy Secretary of Labor

The United States Deputy Secretary of Labor is the second-highest-ranking official in the United States Department of Labor. In the United States federal government, the Deputy Secretary oversees the day-to-day operation of the Department of Labor, and may act as Secretary of Labor during the absence of the Secretary. The Deputy Secretary is appointed by the President of the United States with the advice and consent of the United States Senate and the United States Senate Committee on Health, Education, Labor, and Pensions.

United States Secretary of the Air Force

The Secretary of the Air Force (SecAF, or SAF/OS) is the head of the Department of the Air Force, a component organization within the United States Department of Defense. The Secretary of the Air Force is appointed from civilian life by the President, by and with the advice and consent of the Senate. The Secretary reports to the Secretary of Defense and/or the Deputy Secretary of Defense, and is by statute responsible for and has the authority to conduct all the affairs of the Department of the Air Force.The Secretary works closely with his or her civilian deputy, the Under Secretary of the Air Force; and his or her military deputy, the Chief of Staff of the Air Force, who is the senior-most uniformed officer in the United States Air Force.

The first Secretary of the Air Force, Stuart Symington, was sworn in on 18 September 1947 upon the re-organization of the Army Air Forces into a military department and a military service of its own, independent of the War Department/Army, with the enactment of the National Security Act.

On 16 May 2017, Heather Wilson was sworn in as the next Secretary of the Air Force. Wilson was nominated by President Donald Trump on 23 January 2017, and confirmed by the US Senate on 8 May 2017.

United States Under Secretary of the Air Force

The Under Secretary of the Air Force (USECAF, or SAF/US) is the second-highest ranking civilian official in the Department of the Air Force of the United States of America, serving directly under the Secretary of the Air Force. In the absence of the Secretary, the Under Secretary exercises all the powers and duties of the Secretary and serves as Acting Secretary when the position of Secretary is vacant. The Under Secretary of the Air Force is appointed by the President, by and with the advice and consent the Senate, to serve at the President's pleasure.

The Secretary and Under Secretary, together with two military officers (the Chief of Staff of the Air Force and the Vice Chief of Staff of the Air Force), constitute the senior leadership team of the Department of the Air Force.

The Under Secretary of the Air Force supervises the following officials:

Assistant Secretary of the Air Force (Acquisition)

Assistant Secretary of the Air Force (Financial Management & Comptroller)

Assistant Secretary of the Air Force (Installations, Environment & Logistics)

Assistant Secretary of the Air Force (Manpower & Reserve Affairs)

General Counsel of the Air ForceThe current Under Secretary of the Air Force is Matthew Donovan, who was confirmed by the United States Senate on August 1, 2017.

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