Plenary power

A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations other than what is prescribed by the constitution. It is derived from the Latin term plenus, 'full'.^[1]

United States

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]

Chief Justice John Marshall emphasized in Gibbons v. Ogden that the interstate commerce power was plenary and preempted state regulations when they came into conflict:^[3]

This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution.

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.^[4]

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,^[5] 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.

Immigration and nationality

Congress and the President have plenary power to make and enforce immigration and nationality policy, with limited judicial review.^[6] This power is foregrounded in the "ancient principles of the international law of nation-states",^[7] or Ius gentium principles, that immigration and nationality laws are matters of sovereignty; that immigration and naturalization are privileges that exist at the pleasure of the people; and that immigration and nationality laws involve political questions best left to the people.^[8] Though this power was largely unused until the 1880s, the underlying principles behind it trace as far back as the Roman Empire and were embraced by Founding Fathers such as Gouverneur 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."^[9] The textual basis of this lies in the foreign affairs powers under the commerce, naturalization, define and punish, and war clauses of the Constitution.^[10][11]

Indian tribes

Congress has power over Indian affairs under article I, section 8, clause 3 of the Constitution, or the Commerce Clause: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."^[12] The scope of this power is plenary and works to the exclusion of states or tribes, with Congress even able to de-establish a tribe itself.^[13] Many tribal leaders view this power over their affairs as tyrannical, since it inhibits self-governance and subjects them to outside forces in Congress.^[14]

Postal system

Congress has power over the postal system under article I, section 8, clause 7, or the Postal Clause: "To establish Post Offices and post Roads." The scope of this power is plenary and is not affected by federalism concerns under the Tenth Amendment.^[15]

See also

• Chevron deference
• Judicial deference – Act of a judiciary deferring to another branch of government
• Plenipotentiary – Diplomat with full powers