Advice and Consent

Fear of a strong central government—especially a strong executive—as well as the desire to protect the federal form of government (see Federalism) led the delegates at the Constitutional Convention of 1787 to require the “Advice and Consent” of the Senate for presidential appointments to important government offices and for approval of treaties. The framers considered the Senate to be a more deliberative body and more representative of the interests of the states than the House of Representatives. It was seen as a more venerable body in part because of its senior age qualification and the longer term of office and the fact that the body represented the semisovereign states as opposed to the people, who could not always be trusted to view political decisions dispassionately.

“The necessity of [the Senate’s] co-operation in the business of appointments,” suggested Alexander Hamilton in essay 77 of The Federalist (1787–88) (see Federalist Papers), “will be a considerable and salutary restraint upon the conduct of that magistrate [the president].” Taking a contrarian position, Pennsylvania delegate James Wilson, a proponent of a strong chief executive, argued against the limitation on the president’s appointment power (see Appointment and Removal Power). “There can be no good executive,” he said, “without a responsible appointment of officers to execute.”

As ratified, Article II, section 2, provides that the president “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 [Page 19] not herein otherwise provided for, and which shall be established by Law.” Section 2 adds that “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.” Jealous of its power vis-á-vis the president, Congress has not given extensive appointment powers to the president alone. Every appointment of a military officer, for example, must be confirmed by the Senate. Similar procedures for presidential appointments such as ambassadors have been copied in the constitutions of other countries, including those of Argentina (1853) and Mexico (1917).

Checks and Balances