Another feature of an emergency powers law is its indication of what state officials may and may not do during an emergency. This is referred to here as a scope of authority. It is important because the executive branch possesses what is known as the police power.[29] The police power is the most severe authority state government owns, allowing it to control and detain people in the interest of protecting the public from grave danger. Without scope-of-authority limits, the executive branch could use emergency powers to unilaterally exercise sweeping control over we the people.
As with triggers, clear definitions are best in describing what actions governors or state officials may take. A good definition gives the executive branch clear instructions for how to use emergency powers, reducing legal disputes about their use and better protecting citizens from abuse at the hands the government’s police power.
A Michigan law that enables the governor to use emergency powers to deal with adulterated products provides a good example of an effective scope of authority. The statute says that the governor may order an adulterated product to be removed from retail stores, to prohibit its sale, to require it to be turned over to law enforcement or other state officials, and to issue other controls related to its manufacture, importation, sale or transport.[30] By specifying the actions a governor may consider in response to such an emergency, the Legislature provides clear guidance in what constitutes lawful use of this power.
A statute aimed at empowering the state to deal with problems involving public water supplies contains an example of a poorly constructed scope of authority. The Safe Drinking Water Act of 1976 authorizes the Department of Environment, Great Lakes, and Energy to take unilateral action “if a public water supply poses an imminent hazard to the public health.”[31] But the statute does not provide any guidance about what actions the department may take. It leaves this decision to the department, authorizing “such actions as the department determines is necessary to protect the public health."[32] Essentially, the department may do whatever it likes.
Restraining the executive branch’s power with a scope of authority helps preserve the balance of power in government and protect the rights of individuals. A proper scope of authority is also valuable for the executive branch, guiding and legitimizing its actions when using emergency powers.