Biden Transfer of Pandemic Response Power to WHO Violates the Advice and Consent Clause

Jonathan Emord, The Biden administration appears poised to sign an accord with the World Health Organization that will enable authority over domestic pandemic response to be ceded to the WHO in violation of Article II, Section 2 of the Constitution, the Advice and Consent Clause.

The latest in a series of unilateral executive actions that violate the Constitution, Biden’s present rush to give an international body influence over basic life-affecting decisions by American health care providers and patients is an astonishing abandonment of health freedom and independent professional judgment in patient care.  Under the WHO program, American physicians and patients could be held hostage to an international care agenda with less freedom to adopt independent, patient-centric care so sorely neglected, yet critically needed, in response to COVID-19.

Under Article II, Section 2, the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”  In Federalist No. 75, Alexander Hamilton explained the essential check on executive power meant by this provision.  In particular, he stated that the treaty power “will be found to partake more of the legislative than of the executive character,” meaning that the two thirds consent requirement was intended to be a meaningful check on the exercise of presidential power to consummate treaties, not a mere rubber stamp.  Treaties are agreements with foreign powers.  Over the years the Courts have variously carved out of the need for Senate consent, agreements with foreign powers that are administrative and executory in nature (ones associated with implementing existing treaties) or are wholly external within the province of the Commander-in-Chief and of no effect on domestic law and policy.  But never have the Courts found a broad power to replace U.S. private and public authority with international control a matter exclusively within the province of the President without need for the advice and consent of the Senate.  Indeed, the very purpose of the Advice and Consent provision was to ensure that the President functioned as a co-equal with the Senate before agreeing to international accords so as to prevent unilateral executive action, like Biden’s intention to cede domestic U.S. authority over the pandemic response to the WHO.

Part of the WHO effort to gain centralized control over nation’s domestic pandemic response is the Zero Draft.  Under it, as soon as Biden signs the accord and before the Senate exercises its Advice and Consent power under Article II, Section 2, the United States will be automatically bound on a “provisional” basis.

The immediate enforcement aspect of the Zero Draft violates Article II, Section 2, by effectively implementing a treaty before the Senate has given Advice and Consent, denying the Senate its constitutional authority to prevent entry into a treaty not acceptable to two-thirds of its members.

Consequently, Senators would do well to sue the Biden Administration and seek to enjoin entry into and enforcement of the provisional enforcement power in the Zero Draft, pending the full Senate’s exercise of constitutional power under Article II, Section 2.  The full Senate should vote against the WHO accord in defense of the freedom of American citizens and their health care providers to decide independently how best to respond to pandemics.  We have already suffered from the horrors of centralized federal government control over the pandemic response, from censorship of medical information critical of a one-size fits all vaccine approach to government disinformation campaigns supported by Dr. Anthony Fauci that propounded the falsehood that if vaccinated a person could not contract COVID-19, that masking (single, double or triple) was an effective preventive against the spread of the virus, and that only the non-vaccinated carried the virus, among many other falsehoods.  Imagine giving more power influencing the provision of American health care to an international body influenced by foreign states, like communist China, intent on destroying the United States.  That is what the WHO accord helps facilitate.

For years the communist party of China has exercised undue influence over WHO operations, particularly its stance on investigations into the origins of COVID-19 and pandemic response measures worldwide.  Consequently, a move to lessen or divest United States jurisdiction and control over the pandemic response may be seen within the larger context of efforts to destroy the ability of patients, health care providers, and governments to afford Americans maximum flexibility in deciding for themselves how best to cope with pandemics.  Decidedly Chinese control of America’s pandemic response through the auspices of WHO would portend grave consequences.  It is the avowed position of the CCP to exploit all weaknesses discovered within the United States to America’s strategic disadvantage and China’s strategic advantage.

Thus, Biden’s latest unilateral move to transfer power over pandemic response from patients and private health care providers to the WHO is further evidence not only of Biden’s disregard for constitutional constraints on his power but also of his complicity in efforts to deny Americans their rights to health freedom.