Plenary power

A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act (or not to act) on a particular subject matter or area. The concept is also used in legal contexts to define complete control in other circumstances, as in plenary authority over public funds, as opposed to limited authority over funds that are encumbered as collateral or by a legal claim. It is derived from the Latin term plenus ("full").

Plenary Power in U.S. Law

In United States constitutional law, plenary power is a power that has been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power. The assignment of a plenary power to one body divests all other bodies from the right to exercise that power, and where not otherwise entitled; also, the right to substantively review the exercise of that power in a particular instance or in general.

A clear example of this is with the power of the United States Congress under Article I, Section 8, Clause 3, (the Commerce Clause). Because Congress is granted absolute power over interstate commerce, the Supreme Court has found that states may not pass laws that affect interstate commerce unless the U.S. Congress gives them permission to do so.^{[citation needed]}

An example of a plenary power granted to an individual is the power to grant pardons, which is bestowed upon the President of the United States under Article II, Section 2, of the US Constitution. The President is granted the power to: “…grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

That is, within the defined zone, (e.g., all offences against the United States, except Impeachment) the President may modify the punishment, up to the eradication of the fact of conviction and punishment, for offenses against the United States, entirely. And 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 himself may not rescind a pardon that either he 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 Congress may create and charter, through the enactment of statutes, corporate bodies (Federal Corporations) who can be granted (through the Congresses’ 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 (TVA) is such an entity. It was created by the Congress as a Federal Corporation. And by statute, the TVA is given plenary authority over the 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 (price) setting process; by statutorily making it’s (TVA’s) rate (price) 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.

It should be noted that this example demonstrates the difference in plenary 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 US Constitution, making it a truly plenary grant of power.

The plenary power of the U.S. Congress, or of other sovereign nations, allows them to pass laws, levy taxes, wage wars, and hold in custody those who offend against their laws. While other legal doctrines, such as the powers of states and rights of individuals, are held to limit the plenary power of Congress, then-Associate Justice William Rehnquist said the idea of limited federal powers is "one of the greatest 'fictions' of our federalist system" (Hodel v. Virginia Surface Mining & Reclamation Association, 1981). A striking example can be seen in United States v. Kagama, where the Supreme Court found that Congress had complete authority over all Native American affairs.

Plenary Power in U.S. Immigration Law

Federal policy on immigration has been founded on the plenary power doctrine, which holds that the political branches — the legislative and the executive — have sole power to regulate all aspects of immigration as a basic attribute of sovereignty. Historically, the U.S. Supreme Court has taken a hands-off approach when asked to review the political branches' immigration decisions and policymaking, giving Congress and the executive branch the ability to regulate immigration largely without judicial intervention. Some analysts suggest that there is a movement to "erode" political-branch control over immigration in favor of a judge-administered system and that the results have created national security concerns, such as the release of criminal immigrants into U.S. society. 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.

See also

• Plenipotentiary