‘Advice and Consent’: Constitutional duty of the Senate

Some readers may remember that their introduction to this ancient phrase came when they picked up a copy of Allen Drury’s 1959 Pulitzer-Prize winning novel, “Advise and Consent,” which described a passionate and energetic U.S. Senate engulfed in a controversial confirmation hearing for a nominee to be Secretary of State. Others will recall its invocation in the setting of a government class, newspaper article or the nightly news broadcast.

Familiarity aside, “advice and consent” was drawn by the framers of the Constitution from the deep well of English legal history for the purpose of limiting the powers of the president by conferring upon the Senate a full and equal power in the process of making treaties and appointments to office.

Article II, section 2 of the Constitution, as we shall see, employs the phrase, “advice and consent” twice — in a legislative context regarding treaty making and for a councilmanic purpose in the appointment power. The phrase was a term of historic vintage in English history. From the late 17th Century on, no bill could become law without the approval of both the Parliament and the crown. The approval, or endorsement, was presented as a formula declaring that a bill was enacted or made by the king “by and with the advice and consent” of the two houses of Parliament. To state, “Be it enacted by the King …” meant that without the king no bill could become law. After the Glorious Revolution of 1689, however, Parliament became supreme and the king reduced to a ceremonial role. At that point, “By and with the consent” of Parliament became a way of designating the legislative process.

In the deliberations of the Constitutional Convention, the framers utilized that language to convey the legislative nature of treaty making. Thus, “He shall have Power, by and with the advice and consent of the Senate, to make treaties.” The president could not make a treaty by himself, but neither could the Senate. The consent of both was essential to the treaty making process.

For the past 75 years or so, executive missives from the White House would leave Americans to believe that the treaty making power was vested solely in the president, and that the Senate was somehow reduced to a pro forma role, a rubber stamp to merely “consent” to treaties proffered by the president. But “advice” connotes more than mere ratification of a decision already made. It emphasizes, rather, participation in deliberation and ongoing conversations, which necessarily meant that the Senate was expected to be fully engaged in the occasionally long process of conceiving, debating and even negotiating a treaty. No president hoping to win the ultimate support of the Senate could afford to ignore the Senate. Political reality would thus act like gravity and prohibit a president from soaring beyond the intent, preferences and goals of the Senate in the business of making treaties.

The original meaning of “advice and consent,” as applied to the treaty- making clause, meant that it referred, essentially, to a legislative process. This understanding is reflected in Article VI of the Constitution — the Supremacy Clause — which makes the Constitution, laws in pursuance of, and “treaties” the supreme “law” of the land. As John Jay observed in Federalist No. 64, a treaty once made or signed by the president becomes law, that is, treaties “are to have the force of laws.” Alexander Hamilton, in Federalist No. 75, emphasized the legislative character of treaties, even more forcibly when he wrote that while the power of making treaties was shared by the president and the Senate, the treaty power “will be found to partake more of the legislative than of the executive character.”

The second usage of “advice and consent” in Article II of the Constitution, employs a councilmanic meaning, and it applies to the appointment power, which the president and Senate share in equal terms. While the president, by and “with the advice and consent of the Senate,” makes treaties, the role of the Senate, sitting as an executive council, is engaged by this language: the president “shall nominate and by and with the Advice and Consent of the Senate, shall appoint.” The Appointment Clause thus assigns the initiative to the president, but as with treaties, the president cannot act unilaterally; the successful appointment of his nominees requires the advice and consent of the Senate. In this capacity, the Senate acts less like legislative body and more like an advisory or executive council.

Whether we consider the powers of making treaties or appointments to office, what matters is that the phrase, “advice and consent,” addresses a two-stage process. The framers’ decision to merge the two departments — executive and legislative — in the exercise of such critical powers, reflects their commitment to the doctrine of checks and balances, which, above all, marks their distrust of unilateral executive power. The framers sought to employ the virtues of collective decision making, that is, joint decision making in foreign and domestic affairs, so as to draw upon the wisdom of men and women in two different departments. But the expectations of this mechanism have not always been realized. What happens when the “spirit” of joint decision- making is abused and corrupted? We turn to that theme next week.