Also known as: advice and consent · Senate confirmation · senatorial advice and consent
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional requirement that the President obtain Senate approval before making treaties or appointing principal officers of the United States. The Senate must concur by a two-thirds vote for treaties and by majority vote for appointments of ambassadors, Supreme Court justices, and other officers whose appointments are not vested elsewhere by law.
President Turkey negotiated a manufacturing compact with China that imposed binding production quotas on U.S. factories and export limits. He implemented the compact by executive order without Senate review. Sun Assembly challenged the compact in federal court, arguing that the agreement's formal execution and long-term domestic effects required Senate approval under the Treaty Clause.
A judicial panel appointed Ronald as a special investigator with authority limited to reviewing one official's handling of specific disciplinary files and issuing recommendations. The appointment occurred during a Senate deadlock over a permanent replacement. Nelson challenged the appointment, claiming the role required presidential nomination and Senate confirmation.
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Minnesota adopted rules restricting judicial candidates from announcing their views on disputed legal issues during elections. The rules were challenged as violating the First Amendment. The Supreme Court analyzed whether the state's choice to elect judges rather than rely on presidential nomination and Senate confirmation altered the constitutional structure for selecting judges.
The President negotiated an agreement with foreign nations limiting exports of arms without submitting it to the Senate. Curtiss-Wright challenged enforcement of the agreement. The Court examined the President's authority to conduct foreign affairs through agreements that did not receive formal Senate advice and consent.
Congress created the Federal Election Commission and provided for appointment of its members by congressional leaders rather than by the President. Buckley challenged the constitutionality of the appointment method. The Court held that members exercising executive power must be appointed by the President with Senate advice and consent.
President Adams signed a commission for Marbury as a justice of the peace but the commission was never delivered. Marbury sought a writ of mandamus to compel delivery. The Court addressed whether Senate confirmation of the appointment created a vested right that the executive branch could not unilaterally withhold.
An agreement requires Senate advice and consent when it functions as a treaty by creating binding long-term obligations on domestic parties and receiving formal execution with a foreign sovereign. Temporary executive agreements addressing urgent crises may proceed without Senate approval.
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An officer is inferior when duties are limited to a narrow range of persons and subjects, the role is temporary or recommendatory, and the position lacks broad policymaking authority. Such officers may be appointed by courts or department heads rather than through presidential nomination and Senate confirmation.
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Courts may appoint such officials when Congress has classified the position as inferior because of its limited jurisdiction and duties. The Constitution expressly allows Congress to vest appointment of inferior officers in the courts of law.
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…§ 2, cl. 2. The Commission is empowered to exercise executive power, and its members must be appointed by the President with the advice and consent of the Senate. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. Concurring opinions…