Welcome back. I am I'm just so glad you could
join us today for another custom tailored deep
dive. It's great to be here. So if you turn on
the news, especially during an election year
or when a new administration is taking over the
government, you are practically guaranteed to
hear politicians and pundits tossing around the
phrase advice and consent. Oh, constantly. Right.
And it gets said with such immense gravity. Everyone
sitting around the anchor desk nods as if the
exact mechanics of that. are universally understood.
But if you stop and really think about it, the
phrase has sort of faded into the background
noise of political commentary. How often does
anyone actually explain the procedural machinery
running beneath those words? Almost never. I
mean, it is a perfect example of a phrase that
has become invisible through repetition. We hear
it so often that we just assume the process is
static and straightforward, but the reality is
far more complex. And dynamic. Exactly. Very
dynamic. Which is exactly what we are going to
explore today. We have put together a deep dive
based on a really comprehensive Wikipedia article
all about advice and consent. And our mission
for you today, we'll call you the learner for
this one, is to cut through all that parliamentary
jargon and look at what this phrase actually
means at its core. Because it's not just semantics.
No, not at all. We are going to examine how it
was originally designed to balance government
power and how over the last decade or so it has
morphed into this high stakes procedural battleground.
OK, let's unpack this. When we strip away the
specific country by country context, what is
the baseline definition we are actually working
with here? Right. So at its most basic structural
level, advice and consent is a legal mechanism.
It's designed to moderate the power of one branch
of government by legally requiring the concurrence
of another branch before a specific action can
be finalized. Like a structural check and ballot.
Precisely. Broadly speaking, the sources show
this plays out in one of two very different constitutional
scenarios. The first scenario features a weak
executive branch that is essentially required
to rubber stamp an action that has already been
initiated and approved by a powerful legislative
branch. And the second scenario flips that dynamic
completely. You have a strong legislative branch
that must concur and approve an action that was
initiated by a strong executive. That makes sense.
I was actually looking at the exact text used
to pass laws in the United Kingdom, which seems
to perfectly illustrate that first scenario you
mentioned, the weak executive. Yes, the UK is
the classic example. Because the enacting formula
for British bills sounds incredibly formal. It
explicitly states that the law is enacted by
the king, by and with the advice and consent
of the lords and commons in parliament. But looking
at modern British politics, how much power does
the monarch actually exercise in that equation?
What's fascinating here is that this specific
legal language is essentially a polite fiction.
A polite fiction. I like that. It really is.
If you read the text literally, it paints a picture
of a king who is single -handedly creating the
law and just, you know, merely checking in with
the House of Lords and the House of Commons to
get their thoughts. Like, hey guys, what do you
think of this law I just made? Exactly. But legally
and practically, the dynamic operates in reverse.
That enacting formula, what they call the king
in parliament, emphasizes that while the bill
is legally finalized by the British monarchy
with the royal assent, the actual initiative
and the real power to draft, debate and pass
that legislation lies entirely with parliament.
So the thing is just rubber stamping it. The
monarch has virtually no practical discretionary
power to halt it at all. The indispensable part
of the equation is the legislature's adoption
of the bill. So the language maintains the historical
prestige of the crown, while the actual gears
of government turn within parliament. It is such
a fascinating legal quirk. But the sources note
that in Singapore, this concept of advice takes
on a much more rigid definition. Oh, absolutely.
Because Singapore is a parliamentary republic,
right? With a president serving as the head of
state. How does their framework handle the concept
of a cabinet giving the president... Well, it
completely redefines the word. I mean, in standard
conversation, if someone gives you advice, the
inherent assumption is that you have the agency
to ignore it. Right. I can take it or leave it.
But in the constitutional framework of Singapore,
advice of the cabinet carries an entirely different
legal weight. When the Constitution stipulates
that the president exercises certain powers on
the advice of the cabinet. It means the president
is legally bound to act in full accordance with
that advice. So the president cannot exercise
independent judgment in those specific instances.
Not at all. There is zero discretionary power
available to the head of state in those moments.
Wow. Yeah. In that specific legal context, the
word advice functions as an absolute mandate.
The cabinet makes the decision and the president
is constitutionally obligated to execute it.
It is incredible that in Singapore, advice literally
translates to a legally binding mandate. But
if we cross the ocean to the United States Constitution,
that exact same phrase becomes the center of
a 200 -year tug of war. A very messy tug of war.
The U .S. operates under that second scenario
you mentioned earlier, advice and consent applying
to a strong executive. Here, the power is held
by the United States Senate, which must approve
treaties and major presidential appointments.
Cabinet secretaries, federal judges, military
officers, things like that. Right. And that requirement
is hardwired into Article 2, Section 2, Clause
2 of the U .S. Constitution. It explicitly grants
the president the power to make treaties, provided
two thirds of the senators present concur. And
then in the very next breath, it lays out the
nomination and confirmation process for the federal
appointees you just mentioned, which traditionally
requires a simple majority. Yes, the basic framework
is all right there. Here's where it gets really
interesting. That specific wording, advice and
consent wasn't just some casual care. carryover
from British law. Looking at the history of the
Constitutional Convention, this was the product
of a massive standoff between the framers. It
was one of the biggest debates they had. Because
you had delegates trying to build a new government
from scratch. One faction wanted a highly empowered
executive who could act decisively without being
micromanaged by a committee. But the opposing
faction had just fought a war against a monarch
and was terrified of consolidating that much
power in one person. They wanted the legislator
to hold the reins. And the phrase was the ultimate
delicate compromise. It achieved the goals of
both factions. It allowed the president the unilateral
power to initiate treaties and select nominees,
preserving that executive decisiveness. But it
handed the Senate a hard veto. Exactly. The theory
was that this structural hurdle would prevent
authoritarian control and cronyism. It would
force the president to select highly qualified
individuals who could actually survive the scrutiny
of an independent body. But the sources point
out a major ambiguity that the framers just left
unresolved. They agreed on the phrase, but they
completely disagreed on the timeline. When exactly
is this advice supposed to take place in the
life cycle of a nomination? The historical debate
over the mechanics of that timeline is incredibly
revealing. You had the primary architects of
the government holding diametrically opposed
views on how the process should actually function.
Thomas Jefferson and James Madison argued that
the Senate's role was strictly reactive. They
believe the Senate should only advise the president
after a nomination had been formally made. In
their view, the president needed the autonomy
to make the initial selection based purely on
executive judgment. without any interference
from lawmakers. But other framers, like Roger
Sherman, argued the exact opposite. He believed
that the Senate providing advice before a nomination
was ever formalized would be deeply beneficial
to the president, essentially vetting candidates
collaboratively. And the tiebreaker fell to George
Washington. As the first president, his actions
established the unwritten precedence the subsequent
administrations would follow. Washington took
a pragmatic, middle -of -the -road approach.
He concluded that receiving advice from the Senate
prior to a nomination was permissible and often
politically wise, but it was absolutely not a
constitutional requirement. So he kept the power
in the executive branch. He firmly maintained
that the executive alone was responsible for
the final selection of the nominee. And Washington's
precedent really shaped the modern process. Today,
the notion that pre -nomination advice is optional
has effectively fused the two words together.
The advice portion and the consent portion are
now executed as a single unified action by the
Senate. Though presidents certainly still consult
informally with key senators behind closed doors
to gauge whether a nominee can survive a floor
vote. Oh, of course. But the formal parliamentary
procedure is a single motion. Now, speaking of
the Senate's power, there's a really quick, memorable
trivia fact I want to toss in here from the sources.
For almost every major federal appointment, the
Senate acts completely alone. But there is a
specific exception outlined in the 25th Amendment
for replacing a vice president. It's not just
the Senate. The 25th Amendment requires a majority
vote in both houses of Congress, the Senate,
and the House of Representatives. That's a vital
distinction. It's the rare instance where the
entire legislative branch is required to consent
to an executive appointment, reflecting the immense
gravity of placing someone directly next in line
for the presidency. Exactly. It highlights just
how intentionally the framers distributed power.
Moving into the modern era, looking at the last
decade, this process has become intensely weaponized.
Now, before we dive into recent U .S. history,
I want to explicitly pause and address you, the
listener, for a second. This is important. Yes.
The sources we are utilizing today contain some
highly politically charged actions from both
left wing and right wing figures. I want to make
it absolutely clear that we are not taking sides
or endorsing any political viewpoints here. We
are simply impartially reporting the historical
facts and rule changes exactly as they are documented
in the source material. Just dig into the procedural
mechanics. Exactly. So setting aside the politics
to focus strictly on those mechanics, how did
the standard confirmation process process actually
operate before the modern installations began?
Well, for a long time, the confirmation process
relied heavily on informal norms rather than
strictly codified rules. The baseline procedure
involves a congressional hearing where the appointee
is questioned by the relevant Senate committee.
And if they pass the committee? If the committee
advances the nominee, it moved to the full Senate
floor. The formal parliamentary action is a motion
to advise and consent. Passing that motion usually
just takes a simple majority of senators present.
However, the Senate historically operated on
a principle of unlimited debate. Which brings
us to the filibuster. Precisely. Under the old
norms, any senator could infinitely debate a
nomination, effectively preventing the actual
confirmation vote from ever taking place. The
only way to force an end to that debate, a procedural
move called cloture, required a supermajority
of three -fifths of the Senate. So, 60 votes.
Yes. So while the final confirmation only required
a simple majority, simply getting to that vote
often required 60 senators. This meant the minority
party held massive procedural leverage. And if
we look at the timeline in our sources, the history
of the last decade is essentially the history
of that minority leverage being systematically
dismantled. The breakdown of those informal norms
really began escalating in November 2013, right?
Yes. If we connect this to the bigger picture,
you can see how the rules began to unravel. In
November 2013, the Democratic Party, led by then
-majority leader Harry Reid, was facing widespread
filibusters of their nominees. In response, Reid
utilized a parliamentary maneuver, commonly known
as the nuclear option. Changing the rules without
actually passing a new rule. Exactly. They raised
a point of order claiming that only a simple
majority was needed to end debate on certain
nominees. The presiding officer ruled against
them, citing the existing rules. But the majority
then voted to overrule the presiding officer.
By doing that with a simple majority, they established
a binding new precedent. And that permanently
altered how the Senate operates. The immediate
effect was that... Judicial nominees for lower
federal courts, along with executive branch nominations,
could completely bypass that three -fifths cloture
requirement. But importantly, Harry Reid intentionally
left the filibuster intact for the Supreme Court.
Right. Which sets the stage for the next major
escalation in February 2016. Following the death
of Supreme Court Justice Antonin Scalia, a vacancy
opened during a presidential election year. The
Republican Senate majority leader, Mitch McConnell,
declared that the Senate would not hold hearings
or vote on any replacement nominated by President
Obama until after the next election. And the
source material characterizes this as a historic
rebuke of executive authority. It was a stark
departure from the longstanding procedural norm
of considering. each high court nominee on their
individual merits. The sources really emphasize
how unprecedented that maneuver was. A sitting
president had never been forced to forfeit a
high court appointment simply because the legislative
branch refused to engage in the advice and consent
process at all. It was a massive shift. And that
strategy held the seat open, shifting the confirmation
battle to the following year, which triggered
another massive procedural change in April 2017.
Right. By April 2017, control of the executive
branch had changed, and McConnell and the Republicans
were seeking to confirm Neil Gorsuch to the Supreme
Court. Facing a promised filibuster from the
Democratic minority, they utilized their own
nuclear option using the exact same mechanics
established in 2013. They overruled the presiding
officer with a simple majority. Yes, establishing
a new precedent that eliminated the supermajority
requirement for Supreme Court nominees. The filibuster
for all executive and judicial appointments was
officially dead. The speed at which these centuries
-old procedural norms were dismantled is just
staggering. But the sources reveal that the breakdown
of advice and consent isn't limited to party
leadership clashing over the courts. Individual
senators possess a staggering amount of unilateral
leverage through a mechanism known as a hold.
which is incredibly powerful. Especially regarding
military nominations. Just to frame the sheer
volume we are talking about, the Senate is tasked
with confirming roughly 50 ,000 military appointments
every single year. And that volume is exactly
why the hold is so potent. The Senate floor simply
does not have the time to debate and vote on
50 ,000 individual military promotions. It would
take forever. So to manage the workflow, they
rely on unanimous consent. They group hundreds
or thousands of routine military promotions into
a single batch and ask if any senator objects
to confirming them all at once. If no one objects,
they pass instantly. But if just one single senator
objects? If one objects, placing a hold on the
batch, the Senate is forced to revert to standard
procedure. Meaning they would have to file cloture,
wait the required time, and hold individual roll
call votes for every single officer. Which would
consume months, if not years, of floor time,
bringing all other legislative business to a
dead halt. Therefore, a single senator can essentially
freeze the military promotion system to extract
concessions. And we have two very recent examples
from the sources that demonstrate this. In July
2020, Democratic Senator Tammy Duckworth placed
a hold on military officers at the rank of colonel
and above. Her objective was highly specific.
She demanded confirmation from the Defense Department
that Alexander Vindman was receiving proper consideration
for promotion following his congressional testimony
against President Trump. But that hold was incredibly
narrow in its timeline. Senator Duckworth lifted
it after two weeks, the moment the Secretary
of Defense explicitly confirmed the promotion
had been approved. Even though Vindman ultimately
chose to retire. Right. It was a targeted use
of procedural leverage for a specific personnel
inquiry. But the sources contrast that with a
structurally identical, yet vastly broader maneuver
a few years later. From February to December
of 2023, Republican Senator Tommy Tuberville
instituted a massive blanket hold on all general
and admiral appointments. And this hold was utilized
for a broad policy objective rather than a personnel
inquiry. Senator Tuberville was protesting a
new military policy that covered travel expenses
for service members seeking out -of -state abortions.
And he held it up for 10 months. Yes. Because
he maintained the hold for so long, the backlog
grew to encompass 451 senior military officers.
The sources detail the resulting chaos within
the military's chain of command. By freezing
those 451 leadership positions, the Defense Department
had to scramble. They were forced to utilize
acting commanders, meaning officers were performing
the duties of higher ranks without the corresponding
authority or pay. And it forced the military
to delay the retirements of outgoing generals
just to keep critical commands functioning. The
procedural standoff eventually concluded in December
2023. Tuberville released the hold without actually
securing the floor vote on the abortion travel
policy he had originally demanded. But the real
world impact was that the 10 month freeze. created
such a massive bottleneck that roughly a year
later, the Senate resorted to passing a single
unanimous consent motion that confirmed 6 ,000
military officers simultaneously. Just to flush
the backlog out of the system. It perfectly illustrates
how a constitutional mechanism designed to prevent
authoritarianism can be repurposed by one individual
to paralyze the leadership structure of the armed
forces. And the procedural arms race has only
continued to accelerate. The timeline in our
sources brings us right up to the present day
to a major structural shift in 2025. So what
does this all mean? Well, the 2025 evolution
represents the logical extreme of the trend we
have been tracking. In 2025, Senate Republicans
changed the rules to allow an unlimited number
of executive branch nominees to be grouped together
and confirmed via a single vote. So unlimited
bulk confirmations. Yes. The only carve out in
this rule was for cabinet level secretaries who
still required individual consideration. Every
other subcabinet official, agency head, and executive
appointee could be confirmed in one massive batch.
Moving from individual scrutiny to unlimited
bulk confirmations is a monumental departure
from historical precedent. What was the context
driving that specific rule change? It's really
the culmination of two opposing procedural tactics
colliding. On one side, Senate Democrats have
been maximizing the remaining procedural rules
to force lengthy, time -consuming floor debates
for nearly every executive nominee put forward
by President Trump. Effectively utilizing the
clock to stall the administration's ability to
staff the government. Exactly. And on the other
side, President Trump was floating the idea of
bypassing the Senate entirely. He was threatening
to ask Congress to formally recess so he could
install officials via recess appointments, which
requires zero Senate confirmation entirely. So
the bulk confirmation rule was essentially a
pressure release valve. Yes. The majority implemented
it to circumvent the minority's stalling tactics
and rapidly staffed the executive branch, avoiding
the constitutional crisis that widespread weaponized
recess appointments would have triggered. But
if you connect us back to the listener and what
we discussed at the beginning. The framers sitting
in a room fiercely debating how to balance an
effective executive against a monarch. Right.
They built the Advice and Consent Clause as a
delicate compromise, a deliberate structural
filter. But when you look at the modern mechanics,
the 2013 and 2017 nuclear options stripping away
the supermajority, the weaponization of unanimous
consent to freeze the military, and now the 2025
pivot to bulk confirmations, the process has
fundamentally transformed. It is no longer a
measured evaluation of qualifications. No, it
has become a procedural arms race where the fundamental
rules of consent are constantly rewritten on
the fly by whichever party holds a simple majority.
It is genuinely dizzying to look at the full
timeline. Which is why this raises an important
question, something for everyone listening to
chew on. Building on the history we just discussed,
if the Senate can continually rewrite the rules
of advice and consent via simple majority creating
nuclear options and bulk confirmations, is the
Senate's consent still functioning as a meaningful,
independent check on executive power as the framers
intended? Or has it just become something else
entirely? Right. In an era of intense polarization,
when a president's party controls the chamber,
has the entire concept of advice and consent
merely devolved into a procedural rubber stamp
for whichever party is in charge? That structural
reality is exactly why we do these deep dives.
It takes a phrase you hear casually mentioned
on a Sunday morning talk show and forces you
to really examine the structural integrity of
the entire government framework. Thank you so
much for joining us on this deep dive today.
hope this exploration provided the shortcut to
being well informed that you were looking for.
Keep questioning the fine print of history, because
as we have seen today, the rules are always subject
to change. We will see you next time.