Plenary power

Plenary power

A plenary power or plenary authority is the complete power of a governing body. The concept is also used in legal circles 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 US 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.

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.

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.

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). This fact makes this power the most purely plenary.

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 good example can be seen in "United States v. Kagama", where the Supreme Court found that Congress had complete authority over all Native American affairs.

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