The machine of government and law is too complicated, and power is seldom absolute. The U.S. Constitution, specifically, is characterized by the presence of checks and balances that are meant to disintegrate and restrict the power of the government. Nevertheless, in a few jurisdictions of constitutional and international law, a controversial and rare phenomenon, Plenary Authority (or Plenary Power) is understood.
As a Latin word, plenus, which means full, plenary authority is the concept of the complete, absolute, unqualified power with little or no restrictions or judicial review, over a particular subject matter. It is one of the points of intersection between sovereignty and supreme control, a concept that has quite legal and political implications for political scientists and constitutional scholars.
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Defining Plenary Authority: Unlimited Scope
The plenary authority is characterized by the lack of any restrictions. When a ruling body or individual is given the plenary power on a given area, they have the ultimate authority to act upon all issues about that area, leaving out all the other government agencies.
| Feature | Plenary Authority | Delegated Authority |
| Source | Inherent in sovereignty or granted absolutely by the Constitution. | Granted by a superior body (e.g., Congress) to a subordinate body (e.g., an executive agency). |
| Scope | Unqualified, unrestricted, and complete within its defined zone. | Limited by the specific framework and policy set by the delegating body. |
| Accountability | Often highly deferential to the political branch, the limited judicial review. | Subject to judicial and legislative review to ensure it stays within the statutory limits of the delegation. |
The distinction is critical: Delegated authority is limited power given to an agent; plenary authority is the ultimate, original power itself.
Key Examples of Plenary Authority in US Constitutional Law
The U.S. system, although devoted to the separation of powers, acknowledges the existence of plenary powers in several areas, but even these are contested and limited by judicial precedents.
1. The Immigration Plenary Power Doctrine
The best-known and most controversial instance of plenary power is found in the hands of the U.S. Congress concerning immigration and nationality policy.
- Basis in Sovereignty: The Supreme Court has long based this authority not on any particular clauses of the Constitution, but on the notion that the control of national boundaries and the choice of who may enter and stay within the country is an inherent condition of a sovereign nation.
- The Chae Chan Ping Legacy (The Chinese Exclusion Case, 1889): This case established the general rule to the effect that Congress possesses extensive, practically limitless powers to design and issue immigration laws, even though those laws may be unconstitutional as applied to the citizens. The legislative and executive branches are usually provided with a lot of deference on these issues by the courts.
- The Fallout and Criticism: Criticism and Fallout Critics believe this doctrine establishes a constitutional black hole where the political branches feel free to act outside of conventional constitutional restraints when they are concerned with non-citizens, especially in matters of due process and equal protection. Although judicial review in the past 100 years has limited this power, especially on matters concerning the rights of aliens who are already within the nation, the power as regards initial entry and exclusion is very wide.
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2. The President’s Power to Pardon
One such area of plenary power of an individual executive officer is the granting of pardons for federal crimes by the President (Article II, Section 2).
- Absolute and Unreviewable: The authority of the President to pardon is absolute in the range and scope of its power, i.e., in all offenses against the United States except impeachment. The decision made once exercised may not usually be subject to review, overturning, or rescission by either Congress or the judiciary.
- Scope: The President has the power to issue full or conditional pardons, commutation (reducing a sentence), or even blanket amnesty of groups of people.
3. Congressional Power over Native American Affairs
The Constitution of the U.S grants Congress the plenary powers over Native American tribes. This authority enables the Congress to control and even to oversee tribal issues, treaty commitments, and the land policy. Similar to immigration, this authority is based on the principle of state sovereignty and has been vehemently attacked by tribal leaders as weakening the self-governing powers and tribal sovereignty.
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The Tension: Plenary Authority vs. Constitutional Checks
The plenary power itself is the source of a conflict between a constitutional republic based on limited government.
- Judicial Deference: Under Plenary authority, in most cases, courts are obligated to defer and are unwilling to question or cast out legislation that has been enacted under such authority. The rationale is that such domains (as foreign affairs and borders) are political issues that should be left to the elected branches.
- Rights vs. Sovereignty: In places such as immigration, the doctrine puts a harsh dilemma in which the perceived right of the nation to have an absolute sovereign rule of its borders sometimes overrides the rights and due process guarantees of non-citizens.
- Modern Limits: The contemporary administrative state witnessed the establishment of greater judicial restraint on the delegation of plenary power. They say that although Congress may have the absolute power, it cannot transfer such power to unelected, unaccountable executive agency officials in the absence of clear policy directives. This is a bid to impose some sense of accountability, but at the same time acknowledge the inherent constitutional authority.
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Finally, the plenary authority is an effective dramatic prompt that even in the highly finely calibrated system of constitutional law, there exist areas where the governmental power, as such, is supposed to be absolute. In such areas, one might find the deepest legal and social discussions of the extent of state power taking place.
