Plenary Power - United States

United States

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.

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 or indicates the states retain certain roles. For example although 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. When an activity is in interstate commerce and when Congress has not regulated it the states can regulate this activity as long as they do so appropriately. This is known as the "Dormant Commerce Clause." Similarly, this is true between the branches. 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. Under what circumstances can the president act in his capacity as Commander-in-Chief without a declaration of war? To what extent must Congress formally declare war, or are resolutions supporting Executive action sufficient?

Furthermore, while it would appear (as seen in the paragraph below) that Congress has Plenary power to levy taxes via the Federal Government, this is a power that is held concurrently with the states.

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. The idea of unlimited Federal powers is at odds with the reality that the 13 original states existed before the U.S. Constitution, that they each became vested with plenary sovereignty inherited directly from the British monarch and Parliament after the joint 1776 Declaration of Independence, and that they voluntarily delegated some of that plenary sovereignty to the Federal government they created by ratifying the U.S. Constitution, which is therefore a government of limited, enumerated powers. This latter view is validated by the Tenth Amendment and the legal doctrine of the equality of states, especially as it relates to the 37 non-original states.