Also known as: advice and consent · advise-and-consent · Advice and Consent Clause · Senate confirmation
Written by attorneys — see sources below.
An approval power vested in the Senate by which the President may conclude treaties only with the concurrence of two-thirds of the Senators present and may appoint principal officers only upon Senate confirmation.
President Adams negotiated a manufacturing compact with China that imposed binding production quotas on domestic factories. Abigail Alvarez, a senator, objected that the agreement constituted a treaty. Without Senate concurrence the compact could not bind U.S. manufacturers.
Congress authorized a judicial panel to appoint a special prosecutor whose duties were confined to investigating one cabinet official. Aaron Adams challenged the appointment as bypassing Senate confirmation. Because the role qualified as inferior the appointment stood without advise and consent.
President Adams issued an order seizing steel mills during a labor dispute. Anita Ali, a mill owner, sued claiming the action required legislative approval. The order fell outside the President's independent powers and could not proceed without congressional involvement.
In the latter part of 1951, a dispute arose between steel companies including Youngstown Sheet & Tube Co. and their employees represented by the United Steelworkers of America, C.I.O., over terms and conditions to be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the union gave notice of an intention to strike when the existing agreements expired on December 31. The Federal Mediation and Conciliation Service intervened without success. On December 22, 1951, President Truman referred the dispute to the Federal Wage Stabilization Board to investigate and make recommendations for fair and equitable terms of settlement. The Board's report resulted in no settlement. On April 4, 1952, the union gave notice of a nationwide strike to begin at 12:01 a.m. on April 9. The President believed that the proposed work stoppage would immediately jeopardize national defense because steel is an indispensable component of substantially all weapons and other war materials. A few hours before the strike was to begin, on April 8, 1952, the President issued Executive Order 10340 directing the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued possessory orders calling upon the presidents of the seized companies to serve as operating managers for the United States. Obeying the Secretary's orders under protest, the companies brought proceedings against him in the United States District Court for the District of Columbia. Their complaints charged that the seizure was not authorized by an act of Congress or by any constitutional provision and asked the court to declare the orders invalid and to issue preliminary and permanent injunctions. The Government opposed the motion for a preliminary injunction, asserting that the President had inherent power supported by the Constitution, historical precedent, and court decisions. On April 30, 1952, the District Court issued a preliminary injunction restraining the Secretary from continuing the seizure and possession of the plants. On the same day the Court of Appeals stayed the District Court's injunction. Deeming it best that the issues be promptly decided by the Supreme Court, the Court granted certiorari on May 3, 1952, and set the cause for argument on May 12.
View caseCongress created an agency led by a single director removable only for cause. Antonio Alvarado challenged enforcement actions taken by the director. The structure prevented the President from holding the officer accountable and therefore violated separation of powers.
Following the 2008 financial crisis, Congress created the Consumer Financial Protection Bureau as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The agency was tasked with implementing and enforcing a large body of federal consumer financial protection statutes, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act, along with a new prohibition on unfair, deceptive, or abusive acts or practices in the consumer-finance sector. The CFPB is led by a single Director appointed by the President with the advice and consent of the Senate for a five-year term, during which the President may remove the Director only for inefficiency, neglect of duty, or malfeasance in office. The agency receives its funding directly from the Federal Reserve rather than through the annual appropriations process. In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to clients. The demand sought information and documents related to the firm’s business practices to determine whether Seila Law had engaged in unlawful acts or practices in the advertising, marketing, or sale of debt relief services. Seila Law asked the CFPB to set aside the demand on the ground that the agency’s single-Director structure with for-cause removal protection violated the separation of powers. When the CFPB declined, Seila Law refused to comply, and the CFPB filed a petition in federal district court to enforce the demand. The district court rejected Seila Law’s constitutional challenge and ordered the firm to comply with the demand. The Ninth Circuit affirmed, concluding that Seila Law’s arguments were foreclosed by Humphrey’s Executor v. United States and Morrison v. Olson. The Supreme Court granted certiorari to address the constitutionality of the CFPB’s structure and, if necessary, the severability of the Director’s removal protection from the remainder of the Dodd-Frank Act.
View caseCongress created a claims commission whose members served fixed terms without presidential removal power. Adrian Aguilar contested an adverse ruling by arguing the members were principal officers. The fixed terms and lack of removal authority confirmed they were inferior officers not requiring Senate confirmation.
Congress enacted the War Claims Act of 1948, which created the War Claims Commission consisting of three members appointed by the President with the advice and consent of the Senate. The Commission was tasked with receiving and adjudicating claims for compensation of internees, prisoners of war, and religious organizations who suffered losses during World War II. The Act specified that the Commission would conclude its operations no later than three years after the expiration of the claims filing period, which was initially set at two years but later extended, and made no provision for the removal of commissioners. Myron Wiener was nominated by President Truman for a position on the Commission, confirmed by the Senate on June 2, 1950, and assumed office on June 8, 1950. On December 10, 1953, President Eisenhower removed Wiener from the Commission, citing the national interest in completing the administration of the War Claims Act with personnel of his own selection. The President then made recess appointments to fill the positions, including Wiener's, and subsequently nominated new members to the Senate on February 15, 1954. The War Claims Commission was abolished on July 1, 1954, by Reorganization Plan No. 1 of 1954. Wiener thereafter instituted an action in the Court of Claims to recover the salary he would have earned from the date of his removal until the Commission's termination on June 30, 1954. The Court of Claims dismissed the petition, leading to the grant of certiorari by the Supreme Court.
View caseCongress established a sentencing commission whose members were appointed by the President with Senate confirmation. Alan Ackerman challenged a guideline as an improper delegation. The commission's placement within the judicial branch and limited rulemaking role satisfied constitutional requirements.
In 1984, Congress enacted the Sentencing Reform Act to address widespread criticisms that federal sentencing was a national scandal marked by unwarranted disparities and uncertainty. The legislation created the United States Sentencing Commission as an independent commission in the judicial branch consisting of seven voting members. The President appoints the members with the advice and consent of the Senate, and at least three members must be federal judges selected after consideration of recommendations from the Judicial Conference of the United States, while the Attorney General serves as an ex officio nonvoting member. Petitioner John M. Mistretta was indicted in the United States District Court for the Western District of Missouri on three counts centering on a cocaine sale. He pleaded guilty to one count of conspiracy to distribute cocaine. The district court sentenced him under the Guidelines to 18 months' imprisonment to be followed by a three-year term of supervised release, along with a $1,000 fine and a $50 assessment. Mistretta appealed his sentence to the United States Court of Appeals for the Eighth Circuit, challenging the constitutionality of the Sentencing Commission and the Guidelines. Both Mistretta and the United States petitioned the Supreme Court for certiorari before judgment in the Eighth Circuit. The Court granted the petitions because of the imperative public importance of the issue and the disarray among the federal district courts.
View caseNo. The Constitution permits Congress to vest appointment of inferior officers in the President alone, the courts, or department heads. Limited duties and narrow jurisdiction mark an officer as inferior and remove the need for Senate confirmation.
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An agreement requires advise and consent when it functions as a treaty by imposing binding long-term obligations on domestic parties. Temporary executive agreements addressing urgent crises may proceed without Senate approval.
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No. The Senate remains in session when it holds pro forma sessions and does not formally declare a recess. The President therefore lacks authority to bypass advise and consent through recess appointments.
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An officer is principal when the role involves broad ongoing authority and policy discretion. Limited duties, narrow jurisdiction, and temporary tenure indicate inferior status that permits appointment without Senate confirmation.
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