Advice and Consent

Article II, Section 2 gives the President power to make treaties, provided two thirds of the senators present concur, and to appoint ambassadors, Supreme Court justices, and other officers of the United States by and with the advice and consent of the Senate. The framers split these powers deliberately, so that no President could fill the government or commit the nation abroad alone. The same clause lets Congress vest the appointment of inferior officers in the President alone, the courts, or department heads, which is how most lesser officials are appointed without Senate involvement.

For appointments the Senate acts by simple majority, and it confirms most nominees, though many controversial ones are withdrawn before a vote. When the Senate is in recess the President may make temporary recess appointments that last until the end of the next session. In NLRB v. Noel Canning in 2014 the Supreme Court held that a recess must last at least ten days, and the Senate now routinely holds brief pro forma sessions every few days to prevent such appointments.

For treaties the two-thirds threshold is high, and the Senate has rejected some famous agreements, most notably the Treaty of Versailles in 1919 and 1920. Presidents increasingly avoid the requirement by concluding executive agreements, which do not need Senate approval and now account for the great majority of international commitments. Whether a given agreement must be submitted as a treaty is a recurring dispute between the branches.