“Advice” in the Constitution’s Advice and Consent Clause: New Evidence from Contemporaneous Sources

[rangerrebew]

“Advice” in the Constitution’s Advice and Consent Clause: New Evidence from Contemporaneous Sources

Federalist Society Review, Volume 19
 

    Robert G. Natelson

Note from the Editor:

This article discusses the proper interpretation of the Constitution’s Advice and Consent Clause.

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. Whenever we publish an article that advocates for a particular position, as here, we offer links to other perspectives on the issue, including ones opposed to the position taken in the article. We also invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

 
I. Previous Interpretations

The Constitution provides that certain presidential decisions are made “with the Advice and Consent of the Senate.” Article II, Section 2, Clause 2 reads as follows:

    [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.

https://fedsoc.org/commentary/publications/advice-in-the-constitution-s-advice-and-consent-clause-new-evidence-from-contemporaneous-sources

[ABX]

Jumping down to the end, I'm a bit surprised the conclusion that the Federalist Society came to. They all but ignore the entire 'consent' part of 'advise and consent' (giving it lip service but ignoring its importance).  They seem to be supporting the notion of a strong executive branch that can act independently from the other branches (Unified Executive Theory), something the Federalist Society strongly opposed and spoke out against under Obama.

Although it is true, yes, that the president can choose to only give a small degree to the 'advice' in the manners of treaties and appointments, that does not give him the power to make such decisions without the 'consent'- ensuring that the other independent governments of the nations (the States) have representative voice in all these decisions. From that point then, and contrary to several of the points made here, the Senate can choose whatever means they wish to investigate and make charge their opinion before giving their consent (or not giving consent) to an appointment or treaty. By the fact that the Constitution was clear in that 'advise and consent' in article 2 was 2/3rds majority versus a simple majority (such as Article 1, Section 8 responsibilities of Congress), it not only shows that 'advise and consent' is necessary, but it is critically important and something not to be dismissed.