Americans increasingly disdain “the experts.” During the pandemic, credentialed elites dismissed the lab-leak theory (now widely accepted) of Covid-19’s origins. Public-health officials proposed masking, distancing, and extending lockdowns. They suppressed the small cadre of physicians who realized that, while Covid was dangerous for the sick and old, excessive precautions carried unjustifiable costs for the young and vigorous.
President Joe Biden wants to give these discredited experts even more power. His White House is reportedly negotiating a pandemic treaty with the World Health Organization (WHO) that would strip the American government of authority to coordinate and enforce a response to a future scourge.
The proposed treaty would prevent future governors in a pandemic from choosing when to reopen schools and return people to normal life. If enacted, it would empower public-health bureaucrats to commandeer state governments to enforce closures, lockdowns, and whatever else they deem expedient. In effect, it would render state governors little more than enforcers for Geneva bureaucrats. Had these powers existed in 2020, we might be entering the fourth year of “30 days to slow the spread.”
Given the proposed treaty’s scope, the WHO’s adoption of the agreement should proceed under Article 19 of the organization’s constitution. This means that the rule would only take effect stateside after its ratification by the U.S. Senate.
Sensing the difficulty of Senate ratification, the Biden administration reportedly is encouraging the WHO to try to slip its new rules in through Article 21 of its constitution. Article 21 allows the WHO to adopt “regulations” related to “quarantine” and “procedures designed to prevent the international spread of disease,” among other things; such rules become binding unless a member rejects them within a specified period.
If the Biden White House succeeds in cooperating with the WHO to pass the treaty under Article 21, at least four groups should step forward to sue.
The first should be U.S. Senators. If the Article 21 gambit succeeds, they will have been prevented from exercising their constitutional treaty powers. Entrepreneurial members should be gathering a coalition now, as assembling a majority, or near majority, of the Senate would signal strong opposition to the administration’s proposed actions.
Second are state governments, which should argue that the contours of the treaty impose on them obligations that overstep federal authority. So far, 24 governors have signed a letter opposing the agreement, on the grounds that it would “empower the WHO . . . with the authority to restrict the rights of U.S. citizens, including freedoms such as speech, privacy, travel, choice of medical care, and informed consent.” They, and their states’ attorneys general, should also be preparing coalitions now. Courts will likely be alarmed by the treaty’s potential to conscript state officials and resources to do the bidding of an international body.
Third, businesses, trade organizations, and other entities likely to be undercut by WHO mandates should sue the administration if the agreement passes. These groups, working collaboratively with the U.S. Chamber of Commerce, should argue that the unconstitutionally adopted treaty existentially threatens their operations.
Finally, private individuals, particularly those who reasonably foresee infringement of their constitutional rights, should file suit if the treaty passes. The last pandemic showed us that government actors are prone to abandoning religious freedom when it conflicts with their powers. One suspects that unelected officials in Geneva would be particularly scornful of the needs of America’s diverse religious communities. Now would be a good time for leading religious freedom organizations to start lining up potential litigants, if the need arises.
Such lawsuits are fraught, given issues of standing, but the stakes are too high for this usurpation to go unchallenged. Americans lost the better part of a year because of heavy-handed and ultimately destructive expert overreach. Had some governors not bucked the establishment, one can only imagine for how much longer normal life would have been disrupted. The United States must not adopt a treaty that further entrenches conformity and centralizes more power in an unelected expert class.
Photo by Lian Yi/Xinhua via Getty Images