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07/31/2018

Robert Natelson: “Advice” in the Constitution’s Advice and Consent Clause
Michael Ramsey

Recently published in the Federalist Society Review, Robert Natelson: “Advice” in the Constitution’s Advice and Consent Clause: New Evidence from Contemporaneous Sources (19 Fed. Soc. Rev. 96 (2018)).  From the introduction:

Legal commentators have spilled a fair amount of ink over the meaning of “Advice and Consent.” Some, although far from all, argue that the word “Advice” refers to senatorial input before the president presents treaties or nominations to the Senate for deliberation and approval. In a 1979 article on the treaty power, Professor Arthur Bestor contended:

On the one hand, the Senate; on the other, the President—treatymaking was to be a cooperative venture from the
beginning to the end of the entire process. This, the evidence shows, was the true intent of the framers.

Other commentators have agreed that the Senate has an initiating role in the treaty and nomination processes, although most claim for the Senate a role more modest than that Professor Bestor claimed for it.

This essay examines whether the constitutional word “Advice” contemplates senatorial participation before the president presents a treaty or makes a nomination and concludes that it does not.

To be clear (because Professor Natelson quotes a somewhat wishy-washy comment by me), I entirely agree with him.  The Constitution's original meaning contemplated Senate input regarding the President's decisions but it did not require this input in advance of the President advancing a specific proposal (in the form of a nomination or a signed treaty).  My discussion is at pp. 138-141 of The Constitution's Text in Foreign Affairs; it relies on a somewhat different analysis but is complementary to Professor Natelson's; it specifically rejects Professor Bestor's view.

As to treaties, my central textual claim is that the Constitution only requires "advice" (and, in the same phrase, consent) before the President "make[s]" a treaty.  Treaties are not fully "made" (that is, completed and binding under international law) until they are ratified.  So as long as the Senate's advice and consent comes before the President ratifies the treaty, the constitutional mandate is satisfied.  It may be (or may not be) that the Framers expected Presidents to seek advice before negotiating a treaty as a way to gauge the Senate's likelihood of consent, but they did not write a rule that the President had to do so.  Professor Natelson's assessment of the original meaning of "advice" confirms this view.