Also known as: advice and consent clause · advice and consent · Senate advice and consent · Article II advice and consent
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional command requiring the President to obtain Senate approval before making treaties or appointing principal officers of the United States. Senate consent for treaties demands a two-thirds vote of Senators present. Appointments of ambassadors, Supreme Court justices, and other principal officers require Senate confirmation.
President Harper negotiated a spectrum-sharing compact with foreign authorities that reallocated domestic radio frequencies. The President announced the compact would bind U.S. carriers without any Senate action. A consortium of carriers challenged the compact in federal court. The court held that the arrangement functioned as a treaty and required two-thirds Senate approval before taking domestic effect.
President Truman ordered the seizure of steel mills during a labor dispute without statutory or Senate authorization. Mill owners sued to block the order. The Court ruled that the President lacked independent power to seize private property in this manner. The decision underscored limits on unilateral executive action absent congressional involvement.
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Congress created the Consumer Financial Protection Bureau with a single director removable only for cause. Seila Law challenged an investigative demand from the Bureau. The Court held that the for-cause removal provision violated separation of powers. The structure prevented the President from exercising adequate control over an executive officer.
President Adams nominated William Marbury as a justice of the peace. The Senate confirmed the nomination before Adams left office. The new administration refused to deliver the commission. Marbury petitioned the Supreme Court for a writ of mandamus to compel delivery.
President Wilson removed Frank Myers from his position as postmaster without obtaining Senate approval. Myers sued for back pay claiming the removal violated a statute requiring Senate consent. The Court held that the President possesses inherent authority to remove executive officers. The decision affirmed broad presidential removal power over principal officers.
Congress enacted a statute directing the Administrator of General Services to take custody of former President Nixon's papers and tapes. Nixon challenged the law as an unconstitutional intrusion on executive authority. The Court upheld the statute after balancing separation of powers concerns. The decision recognized Congress's power to address the disposition of presidential records.
An agreement requires Senate advice and consent when it creates formal, binding, long-term obligations that significantly affect domestic law or sovereignty. The Treaty Clause demands two-thirds Senate approval for such treaties. Executive agreements may proceed without that process when grounded in the President's own foreign-affairs or commander-in-chief powers or in prior statutory authority.
Supporting sources
No. The Clause distinguishes principal officers, who require presidential nomination and Senate confirmation, from inferior officers. Congress may vest appointment of inferior officers in the President alone, the heads of departments, or the courts of law. Limited duties, narrow jurisdiction, and temporary tenure indicate inferior-officer status.
Supporting sources
The President may fill vacancies during a Senate recess by granting commissions that expire at the end of the next session. The Senate determines its own recess status. Pro forma sessions that prevent a formal recess block the President's recess-appointment authority.
Supporting sources
…violate the Appointments Clause, which gives the President the power to appoint principal officers of the United States with the advice and consent of the Senate, and to appoint inferior officers with the advice and consent of the Senate or, if Congress so provides by law, with the advice and consent of the Senate or by the President…