Plenary Power Doctrine

The plenary power doctrine arose from the 1824 Supreme Court opinion in Gibbons v. Ogden, 22 U.S. 1 (1824), in which Justice Marshall wrote that ‘‘... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, ...’’ Ever since, lawyers and courts have seized on that phrase to argue for a broad construction of congressional power. The word ‘‘plenary’’ historically means ‘‘full, complete, or unrestricted.’’ But is a delegation of power to, say, regulate ‘‘commerce among the states’’ really unrestricted as long as what is ‘‘regulated’’ is ‘‘commerce’’? Is the discretion of Congress really unlimited, within a subject, or is it constrained by some standard of reasonableness or public purpose? This question can be more easily answered by examining a different delegation of power:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.

Would it really be constitutional for Congress to ‘‘alter such regulations’’ to, say, restrict the time to a single microsecond, or the place to the Moon, or the manner to restrict ballot choices to those approved by some political body? Such regulations would be semantically within the delegation if it is considered plenary, but they would clearly be abuses of discretion, and it is not an answer to say that the remedy is political rather than judicial. The people cannot vote out abusive officials if they do not have a choice or cannot vote. Clearly, for at least this delegation, the power is not plenary. It may legitimately be exercised only in the direction of making voting more efficient, convenient, and fair. It is thus constrained to what is reasonable and for a legitimate public purpose.

If its direction is otherwise, that would be an abuse of discretion that is justiciable. Is this delegation exceptional in this respect? No. Other delegations are also worded in a way that indicates the delegation is not plenary, but constrained by a reasonable purpose.

The word ‘‘unreasonable’’ is used in the Fourth Amendment, which also uses the term ‘‘probable cause,’’ to require that the power to issue warrants is constrained to be exercised only in reasonable ways and not as a plenary delegation of power.

Consider the power to tax. The Constitution states, ‘‘The Congress shall have Power to lay and collect Taxes, ...’’, but does not define what or who may and may not be taxed, or how, other than to prohibit taxes on imports from states or to require that ‘‘direct’’ taxes be ‘‘apportioned’’ without defining what ‘‘direct’’ means. Is that a delegation of a plenary power to tax anyone and anything? No. Courts have held that ‘‘fundamental’’ rights are not taxable if the tax imposes a burden on the exercise of the right. But which rights are ‘‘fundamental’’ and which are not? The Constitution makes no such distinction, and the Ninth Amendment suggests there may be some fundamental rights that are not even specifically mentioned in the Constitution or its other amendments. A historian can conclude from reading the legal and political literature of the era that only certain kinds of profitable activities and articles were deemed suitable objects of taxation, and that some parties, such as eleemosynary organizations, should not be taxed. There was historical precedent for a small ‘‘head’’ tax on every individual, just for being alive, but trying to tax people on every breath they take would incite an insurrection.

Furthermore, the tax clause has a purpose restriction, ‘‘to pay the Debts and provide for the Common Defence and General Welfare of the United States; ...’’ Is this a delegation of a plenary power to spend money for anything? It has been argued that it is, even in the early years of the Republic, but Madison refuted that position in his veto message to Congress, in which he stated that it was not a delegation of a power but a restriction of the power to spend in a way that did not favor or disfavor any state or region. It was the complaint of the violation of this clause in the ways tariffs were imposed to disadvantage the South that was given as a main justification for secession in 1861. There is no explicit delegation of a power to spend, only to lay and collect taxes and a restriction on the purpose for doing that, which we can take as a restriction on the power to tax. The only question would then be whether a violation is justiciable or only a ‘‘political question’’ for the courts to refuse to hear and decide.

Consider the militia clauses. They delegate power ‘‘to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, ...’’ but the Second Amendment declares that ‘‘the right of the people to keep and bear Arms, shall not be infringed.’’ Does this mean Congress could authorize the president call up everyone, permanently, and then order them all to disarm? No. That might seem to fall within the delegation if it were considered plenary, but in stating that ‘‘a well regulated Militia, being necessary to the security of a free State, ...’’ they were clearly expressing the intent that any regulation be only in the direction and for the purpose of enhancing the effectiveness of militia, and not to impair it, to make militia ‘‘well regulated.’’ If the intent of the Fourteenth Amendment was to extend the protection of all rights to the states, including the Second Amendment and the militia clauses, then the states may also not impair the effectiveness of militia, which founder George Mason declared were ‘‘the whole people, except for a few public officials.’’

Finally, consider the clause, ‘‘All legislative Powers herein granted shall be vested in a Congress of the United States, ...’’ Does Congress have the legislative power to delegate its legislative powers to officials of other branches or to staff members of Congress? It has long been understood, although not explicitly stated in the Constitution, that legislative and judicial powers are not subdelegatable. Yet they have designated administrative agents to exercise powers beyond what the Constitution and statutes seem to allow, maintaining it is not really a delegation because their actions are subject to the supervision of courts bound by the Constitution and statutes. But they then allow the courts to ‘‘defer’’ to the agents in a way that allows them to exercise almost unlimited discretion. This is the basis of the administrative state, against which some posit the nondelegation doctrine.

JON ROLAND

References and Further Reading

• Debates in Virginia Convention on Ratification of the Constitution, vol. 3. Elliot, June 16, 1788. https://www.constitution.org/rc/rat_va_13.htm.
• Gibbons v. Ogden, 22 U.S. 1 (1824).https://www.constitution.org/ussc/022-001.htm.
• Madison, Veto Message to Congress, March 3, 1817.https://www.constitution.org/jm/18170303_veto.htm.
• U.S. Const. Art. I Sec. 4 Cl. 1.https://www.constitution.org/cons/constitu.htm#con1.4.1.
• U.S. Const. Art. I Sec. 8, Cl. 15 & 16.https://www.constitution.org/cons/constitu.htm#con1.8.15 ; Second Amendment.https://www.constitution.org/cons/constitu.htm#bor4.
• U.S. Const. Fourth Amendment.https://www.constitution.org/cons/constitu.htm#bor6.