 | The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.(May 2020) |
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 term plenus , 'full'. [1]
In United 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 to judicial review 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, 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, 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. [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 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. [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 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 and 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 , where the Supreme Court found that Congress had complete authority over all American Indian (Indigenous people/governments) 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.[ citation needed ]
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.[ citation needed ] The Tennessee Valley Authority (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.
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 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 and the then former President Richard Nixon, 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 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.
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. [5] 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, 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. [5] 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. [5] [6]
Article One of the Constitution of the United States establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Senate. Article One grants Congress various enumerated powers and the ability to pass laws "necessary and proper" to carry out those powers. Article One also establishes the procedures for passing a bill and places various limits on the powers of Congress and the states from abusing their powers.
Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the President of the United States, lays out the procedures for electing and removing the President, and establishes the President's powers and responsibilities.
The federal government of the United States is the common government of the United States, a federal republic located primarily in North America, comprising 50 states, five major self-governing territories, several island possessions, and the federal district of Washington, D.C., where the majority of the federal government is based.
The Commerce Clause describes an enumerated power listed in the United States Constitution. The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.
A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.
The Necessary and Proper Clause, also known as the Elastic Clause, is a clause in Article I, Section 8 of the United States Constitution:
The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined authority to check the powers of the others. This philosophy heavily influenced the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.
The powers of the president of the United States include those explicitly granted by Article II of the United States Constitution as well as those granted by Acts of Congress, implied powers, and also a great deal of soft power that is attached to the presidency.
The enumerated powers of the United States Congress are the powers granted to the federal government of the United States by the United States Constitution. Most of these powers are listed in Article I, Section 8.
The Taxing and Spending Clause, Article I, Section 8, Clause 1 of the United States Constitution, grants the federal government of the United States its power of taxation. While authorizing Congress to levy taxes, this clause permits the levying of taxes for two purposes only: to pay the debts of the United States, and to provide for the common defense and general welfare of the United States. Taken together, these purposes have traditionally been held to imply and to constitute the federal government's taxing and spending power.
The Appointments Clause of the United States Constitution empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate, appoint public officials. Although the Senate must confirm certain principal officers, Congress may by law invest the appointment of "inferior" officers to the President alone, or to courts of law or heads of departments.
Smith v. Turner; Norris v. Boston, 48 U.S. 283 (1849), were two similar cases, argued together before the United States Supreme Court, which decided 5–4 that states do not have the right to impose a tax that is determined by the number of passengers of a designated category on board a ship and/or disembarking into the State. The cases are sometimes called the Passenger Case or Passenger Cases.
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sovereignty with the federal government. Due to this shared sovereignty, Americans are citizens both of the federal republic and of the state in which they reside. State citizenship and residency are flexible, and no government approval is required to move between states, except for persons restricted by certain types of court orders.
United States v. Lara, 541 U.S. 193 (2004), was a United States Supreme Court landmark case which held that both the United States and a Native American (Indian) tribe could prosecute an Indian for the same acts that constituted crimes in both jurisdictions. The Court held that the United States and the tribe were separate sovereigns; therefore, separate tribal and federal prosecutions did not violate the Double Jeopardy Clause.
Powers of the United States Congress are implemented by the United States Constitution, defined by rulings of the Supreme Court, and by its own efforts and by other factors such as history and custom. It is the chief legislative body of the United States. Some powers are explicitly defined by the Constitution and are called enumerated powers; others have been assumed to exist and are called implied powers.
A general welfare clause is a section that appears in many constitutions and in some charters and statutes that allows that the governing body empowered by the document to enact laws to promote the general welfare of the people, which is sometimes worded as the public welfare. In some countries, it has been used as a basis for legislation promoting the health, safety, morals, and well-being of the people governed by it.
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 individual states and the fundamental rights of individuals. The ultimate authority upon the interpretation of the Constitution and the constitutionality of statutes, state and federal, lies with the Supreme Court of the United States.
The Supremacy Clause of the Constitution of the United States establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws. It provides that state courts are bound by, and state constitutions subordinate to, the supreme law. However, federal statutes and treaties must be within the parameters of the Constitution; that is, they must be pursuant to the federal government's enumerated powers, and not violate other constitutional limits on federal power, such as the Bill of Rights—of particular interest is the Tenth Amendment to the United States Constitution, which states that the federal government has only those powers that are delegated to it by the Constitution. It is the responsibility of the United States Supreme Court in that case to exercise the power of judicial review: the ability to invalidate a statute for violating a provision of the Constitution.
The president of the United States is authorized by the U.S. Constitution to grant a pardon for a federal crime. The other forms of the clemency power of the president are commutation of sentence, remission of fine or restitution, and reprieve. A person may decide not to accept a pardon, in which case it does not take effect, according to a Supreme Court majority opinion in Burdick v. United States. In 2021, the 10th Circuit ruled that acceptance of a pardon does not constitute a legal confession of guilt, recognizing the Supreme Court's earlier language as authoritative.