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A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through ...
term ''plenus'' ("full").


United States

In
United States constitutional law The constitutional law of the United States is the body of law governing the interpretation and implementation of the United States Constitution. The subject concerns the scope of power of the United States federal government compared to the indi ...
, 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 to
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
in a particular instance or in general. There are very few clear examples of such powers in the United States, due to the nature of the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...
, which grants different, but at times overlapping, roles to the three branches of federal government and to the states. For example, although the
United States Congress The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...
, under Article I, Section 8, Clause 3 (the Commerce Clause), has been said to have "plenary" power over interstate 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. 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 the War Powers Resolution of 1973. Another example of the ongoing debate over plenary powers in the U.S. Constitution is the controversy surrounding the Spending 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. 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, then- Associate Justice William 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 & Reclamation Association'', 1981.) These conflicts over the definition of who or what retains which plenary powers have wide-ranging consequences, as seen in the example of ''
United States v. Kagama ''United States v. Kagama'', 118 U.S. 375 (1886), was a United States Supreme Court case that upheld the constitutionality of the Major Crimes Act of 1885. This Congressional act gave the federal courts jurisdiction in certain Indian-on-Indian ...
'', where the Supreme Court found that Congress had complete authority over all American Indian (Indigenous people/government s) affairs. Many Indigenous people have the opinion that Congressional Plenary authority over Indigenous people is an act of tyranny given that they have little or no representation in that body. The 2020 United States election of President Biden resulted in the first Indigenous person appointed to the position of
Secretary of the Interior Secretary of the Interior may refer to: * Secretary of the Interior (Mexico) * Interior Secretary of Pakistan * Secretary of the Interior and Local Government (Philippines) * United States Secretary of the Interior See also *Interior ministry An ...
, a department with primary responsibility over Indian affairs including the
Bureau of Indian Affairs The Bureau of Indian Affairs (BIA), also known as Indian Affairs (IA), is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to American Indians and A ...
.


Statutes

The Congress may create and charter, through the enactment of statutes, corporate bodies (Federal Corporations) which can be granted (through the Congress' plenary power to legislate) derivative (derived from the legislation, as opposed to the Constitution itself) plenary power(s) in areas that are defined by statute and which comport with the constitution. The
Tennessee Valley Authority The Tennessee Valley Authority (TVA) is a federally owned electric utility corporation in the United States. TVA's service area covers all of Tennessee, portions of Alabama, Mississippi, and Kentucky, and small areas of Georgia, North Carolin ...
(TVA) is an example of such an entity. It was created by the Congress as a Federal Corporation, and by statute, the TVA is given plenary authority over setting the rates (prices) it will charge customers for the electricity that it generates. The Congress effectively gave the TVA plenary power over its generated electricity rate setting process by statutorily making TVA's rate settings exempt and immune from legal review by any process whatsoever, be it State, Federal or otherwise. Once the TVA Act itself was ruled constitutional, its rate setting process received its derivative plenary power. There is a difference in reach of plenary powers. While in the TVA example the Congress may at any time amend or remove TVA's plenary power to set the rates for the electricity it sells, the President's plenary power to pardon or commute those convicted under the laws of the United States is beyond the reach of the processes of the Federal Government, and requires the amendment of the U.S. Constitution, making it a truly plenary grant of power.


Presidential pardons

An example of a plenary power granted to an individual is the power to grant pardons for Federal crimes (not State crimes), which is bestowed upon the
President of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the Federal government of the United States#Executive branch, executive branch of the Federal gove ...
under Article 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 (a commutation) 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 President
Gerald Ford Gerald Rudolph Ford Jr. ( ; born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was an American politician who served as the 38th president of the United States from 1974 to 1977. He was the only president never to have been elected ...
and the then former President
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
, as well as President George H. W. Bush and the former Secretary of Defense Caspar 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 of
judicial procedure Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
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.


Immigration law

In regard to immigration law, Congress, under the Plenary Power Doctrine, has the power to make immigration policy subject to limited judicial oversight. The Executive Branch is charged with enforcing the immigration laws passed by Congress. The doctrine is based on the concept that immigration is a question of national sovereignty, relating to a nation's right to define its own borders. Courts generally refrain from interfering in immigration matters. Historically, the U.S. Supreme Court has taken a hands-off approach when asked to review the political branches' immigration decisions and policy-making. The
Center for Immigration Studies The Center for Immigration Studies (CIS) is an anti-immigration think tank and a SPLC designated hate group. It favors far lower immigration numbers, and produces analyses to further those views. The CIS was founded by historian Otis L. Graha ...
, an organization with a slant toward isolationism, suggests there is a movement to limit political-branch control over immigration in favor of a judge-administered system.Jon Feere
''Plenary Power: Should Judges Control U.S. Immigration Policy?''
Center for Immigration Studies The Center for Immigration Studies (CIS) is an anti-immigration think tank and a SPLC designated hate group. It favors far lower immigration numbers, and produces analyses to further those views. The CIS was founded by historian Otis L. Graha ...
, February 2009.
The U.S. Supreme Court case '' Zadvydas v. Davis'' is cited as an example of the U.S. Supreme Court not following plenary power precedent.
Gabriel J. Chin Gabriel Jack Chin is an author, legal scholar, and Professor at the University of California, Davis School of Law. He teaches a variety of courses, including Criminal Law, Immigration, Criminal Appellate Advocacy, and Race and Law. In the news ...

''Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law''
Georgetown Immigration Law Review, Vol. 14, No. 2, p. 257, 2000.


See also

*
Plenipotentiary A ''plenipotentiary'' (from the Latin ''plenus'' "full" and ''potens'' "powerful") is a diplomat who has full powers—authorization to sign a treaty or convention on behalf of his or her sovereign. When used as a noun more generally, the wor ...


References

{{DEFAULTSORT:Plenary Power Legal terminology Constitutional law Article Two of the United States Constitution