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Aplenary power orplenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from theLatin termplenus, 'full'.[1]
InUnited States constitutional law, plenary power is a power that has been granted to a body or person in absolute terms, with no review of or limitations upon the exercise of that power. The assignment of a plenary power to one body divests all other bodies from the right to exercise that power, where not otherwise entitled. Plenary powers are not subject tojudicial review in a particular instance or in general.[citation needed]
There are very few clear examples of such powers in the United States, due to the nature of theConstitution, which grants different, but at times overlapping, roles to the three branches of federal government and to the states. For example, although theUnited States Congress, under Article I, Section 8, Clause 3 (theCommerce Clause), has been said to have "plenary" power overinterstate commerce, this does not always preclude the states from passing laws that affect interstate commerce in some way. When an activity is legally classified as interstate commerce, historically the states can regulate this type of activity as long as they do so within the bounds of their Constitutional authority.[2] Congress does appear to have complete and absolute power regarding the declaration of war and peace in Article I, Section 8, Clause 11. Yet the President has control over the Armed Forces as Commander-in-Chief. These powers are in ongoing conflict, as seen by theWar Powers Resolution of 1973.
Another example of the ongoing debate over plenary powers in the U.S. Constitution is the controversy surrounding theSpending Clause (Article I, Section 8, Clause 1). This clause states that the Congress is allowed to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and promote the general Welfare of the United States". How far this clause goes, and what it actually means in practice, has been hotly debated since the ratification of the Constitution.[3]
While other Constitutional doctrines, such as the unenumerated powers of states and the rights of individuals, are widely held (both historically and currently) as limiting the plenary power of Congress,[4] then-Associate JusticeWilliam Rehnquist reflected that "one of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to 'regulate Commerce ... among the several States' (Commerce Clause), one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress." (Hodel v. Virginia Surface Mining and Reclamation Association, 1981).
An example of a plenary power granted to an individual is the power to grantpardons for Federal crimes (not State crimes), which is bestowed upon thePresident of the United States underArticle II, Section 2, of the U.S. Constitution. The President is granted the power to "grant Reprieves and Pardons for Offences [sic] against the United States, except in Cases of Impeachment".
That is, within the defined zone (e.g., all offenses against the United States, except impeachment), the President may reduce the punishment, up to the eradication of the fact of conviction and punishment, for offenses against the United States, entirely. Once done, the President's exercise of this power may not be reviewed by any body or through any forum; nor can this self-executing power (because it is self-executing), once exercised by a President, be reversed, or "taken back", by either the granting President, or any of his/her successors.
Neither the power to grant pardon nor the power to construct the scope of a pardon (acommutation) is within the reach of any subsequent review or alteration. Furthermore,double jeopardy prohibits any subsequent prosecution for the offenses over which the pardon was granted. Even the President themself may not rescind a pardon that either they or a predecessor President has granted once such pardon is executed (i.e., once the official instrument is signed by the President and sealed on behalf of the United States).
The President may also (as in the case of PresidentGerald Ford and the then former PresidentRichard Nixon, as well as PresidentGeorge H. W. Bush and the former Secretary of DefenseCaspar W. Weinberger)prospectively proclaim a grant of pardon. That is the President may proclaim the pardon of an individual, a group, a corporation, or any entity chargeable of offenses under Federal law, prospectively making the subject immune from Federal prosecution for past criminal acts.
Such a pardon does this by destroying the possibility of a prosecution having a purposeful meaning or result. The rules ofjudicial procedure make such a future prosecution, or the continuance of an ongoing prosecution, moot. Thereby a motion for dismissal of an ongoing prosecution, or of an initiated future prosecution, is granted by a Court, on the grounds that the prosecution would be of no purpose or effect, and that it would needlessly waste a court's time and the resources of an accused, who would only have the charges, for which a pardon had been proclaimed, dismissed anyway.
Congress and thePresident have plenary power to make and enforceimmigration andnationality policy, with limitedjudicial review.[5] This power is foregrounded in the "ancient principles of the international law of nation-states",[6] orIus gentium principles, that immigration and nationality laws are matters ofsovereignty; that immigration and naturalization are privileges that exist at the pleasure of the people; and that immigration and nationality laws involvepolitical questions best left to the people.[7] Though this power was largely unused until the 1880s, the underlying principles behind it trace as far back as theRoman Empire and were embraced byFounding Fathers such asGouverneur Morris, who is quoted as stating: "Every society, from a great nation down to a club, had the right of declaring the conditions on which new members should be admitted."[8] The textual basis of this lies in theforeign affairs powers under thecommerce,naturalization,define and punish, andwar clauses of theConstitution.[9][10]
Congress has power over Indian affairs under article I, section 8, clause 3 of the Constitution, or theCommerce Clause: "To regulateCommerce withforeign Nations, and among theseveral States, and with theIndian Tribes."[11] The scope of this power is plenary and works to the exclusion of states or tribes, with Congress even able tode-establish a tribe itself.[12] Many tribal leaders view this power over their affairs as tyrannical, since it inhibitsself-governance and subjects them to outside forces in Congress.[13]
Congress has power over thepostal system under article I, section 8, clause 7, or thePostal Clause: "To establish Post Offices and post Roads." The scope of this power is plenary and is not affected by federalism concerns under theTenth Amendment.[14]
However, the plenary power doctrine is firmly rooted in the Anglo-American legal tradition. It should be emphasized that the determination to expel or exclude foreigners, whether they have already lawfully settled or even begun the process of naturalization, is a political question and not a vested right absent congressional statutory acquiescence...It is an issue that can only be placed into this nation's political discourse, where it has always and rightfully been.
Stemming from 'ancient principles of the international law of nation-states,' '[t]he power to admit or exclude is a sovereign prerogative.' Indeed, the ability to 'regulate the flow of non-citizens entering the country . . . is an inherent power of any sovereign nation.' This idea traces as far back as the Roman Empire and 'received recognition during the Constitutional Convention.'
Notably, the Constitution does not expressly grant the federal government wholesale foreign affairs power. The foreign affairs power, rather, appears to be an amalgamation of Congress's powers to 'regulate commerce with foreign nations, to define offenses against the law of nations, and to declare war'…One more provision rounds out constitutional support for federal immigration powers: the naturalization provision that grants the federal government the power to 'establish an uniform Rule of Naturalization,' or a law for granting naturalized citizenship.
[Founding era authorities on the law of nations, such as] Pufendorf, Barbeyac, Vattel, Martens, Blackstone, and—more obliquely, Grotius and Burlamaqui— all addressed limits on immigration when writing on the law of nations. These authors consistently recognized the prerogative of governments to impose immigration restrictions. That prerogative was qualified in cases of necessity (for example, a ship being driven by storm onto a foreign shore), and in the cases of exiles and fugitives. As to voluntary immigrants, however, all but Grotius—the earliest of the writers— recognized that the power to restrict was nearly absolute.
Within the field of functions properly promoted by the postal system Congress' power is plenary and whether Congress may deal directly with a situation in that area or not, the Tenth Amendment ought not restrict the power of Congress.