The Advice & Consent Clause in the U.S. Senate

Instructor: Erin Krcatovich

Erin teaches undergraduate and graduate classes in Political Science, Public Policy, and Public Administration and has a PhD in Political Science.

This lesson discusses the advice and consent clause of the Constitution, which includes both the power to make treaties with other nations and to appoint certain public officials with the approval of the Senate.

What is the Advice and Consent Clause?

Article II, Section 2, of the Consitution gives the President of the United States of America the power to make treaties and some very important appointments, with the advice and consent of the Senate. The president must ask the Senate to consider and vote to approve any appointments that he or she wants to make. The advice and consent clause is an important part of the Constitution, helping define when the president must ask the Senate for approval before he or she is able to act. The President must ask the Senate for advice and their consent on treaties with other countries and for the appointment of ambassadors, public ministers, Supreme Court justices, and any other public officials that Congress decides should be appointed. Let's consider two situations when the President must ask for advice and consent:

Power to Make Treaties

The president has the executive authority to work with the leaders of other nations to set treaties. A treaty is a formal agreement between two or more countries which explains how they will settle disputes, organize trade or address other important international issues. The president does not have the authority to negotiate with other countries alone. He or she must ask the Senate for advice on the treaty and for their formal vote of consent to proceed with it before it is ratified or formally approved. For example, President Thomas Jefferson authorized the Louisiana Purchase Treaty, which was approved by the Senate in October 1803 and expanded the size of the U.S. by over 800,000 square miles by purchasing the land from France.

According to the Legal Information Institute, the president has the power to negotiate with other leaders of nations to determine the language of treaties. This gives the president control over what is negotiated and when. The Senate then acts as a check on the authority of the president. We call this checks and balances, the shared authority between our three branches of government in which each oversees and can curb some of the actions of the others. Before a treaty can be ratified by the president, at least two-thirds of the Senate must vote to give consent on it. The president cannot act alone - the Senate checks his or her authority to create treaties and balances his power to negotiate by a vote of consent (or not).

War Powers Resolution

According to our Constitution, the president is the Commander in Chief of the armed forces, whereas Congress has the authority to declare war. Controversially, the president has not always sought the advice and consent of the Senate to declare war on another country. There have been 11 officially declared wars in U.S. history when the president asked for and received Congress's approval to go to war, but there are many more instances of international military action that were not officially declared.

In 1973, Congress voted to pass the War Powers Resolution, despite President Richard Nixon's veto. This Resolution required that the president consult Congress to keep troops in active military action; it effectively limited the length of time that soldiers could be in combat without a formal declaration of war. However, past presidents have opposed this resolution, arguing that it unconstitutionally restricts their abilities to act. The War Powers Resolution exists because there are many examples of how modern presidents have not complied fully with the advice and consent clause of the Constitution.

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