Texas Attorney General Ken Paxton and Oklahoma Attorney General Gentner Drummond filed a lawsuit against the U.S. Department of Health and Human Services (HHS) to remove an illegal regulation surrendering U.S. sovereignty over public health emergencies to the World Health Organization (WHO).
Under federal law, HHS was granted certain police powers to respond to public health emergencies. The rule at issue, finalized under Obama one day before former President Trump took office, gave the WHO authority to determine and define public health emergencies.
A group of states filed a petition with the Biden administration in 2022 seeking to eliminate the part of the federal code delegating emergency health powers to the WHO.
“Allowing decisions of the corrupt and inept WHO to bind the actions of the United States domestically is an unprecedented abdication of national sovereignty,” Paxton wrote. “The continued existence of this regulation is even more disconcerting when considering the WHO’s reliance and close ties to our geopolitical enemy, China, which was on full display during the COVID-19 pandemic.”
The Biden administration refused to remove the rule.
“The Biden Administration’s defense of granting the WHO the authority to determine when the federal government ought to violate the rights of our citizens is alarming, to say the least, and it must not be allowed to stand,” Paxton said in a press release. “Absolutely no foreign power should have the ability to exert police powers over Texas or any other state, and that is especially true for a foreign entity with as troubled of a history as the WHO.”
According to the lawsuit, HHS has the authority to enact rules to “prevent the introduction,
transmission, or spread of communicable diseases” either from foreign countries into
the U.S. or between the states.
When enforcing the rules, HHS may “inspect, alter, or destroy animals or articles found to be sources of dangerous infection” and may “provide for the apprehension and examination of individuals in certain infected states.”
Upon recommendation of the HHS Secretary, the President “may also authorize the detention of individuals under certain circumstances.”
The rule provides five definitions of what constitutes a “public health emergency.” The first two are definitions invoked by the director of the Centers for Disease Control and Prevention and HHS. The WHO provides the remaining three definitions.
The WHO defines a “public health emergency” as follows:
“Any communicable disease event the occurrence of which is notified to the World Health Organization, in accordance with Articles 6 and 7 of the International Health Regulations [IHR], as one that may constitute a Public Health Emergency of International Concern; or
“any communicable disease event the occurrence of which is determined by the Director-General of the World Health Organization, in accordance with Article 12 of the International Health Regulations [IHR], to constitute a Public Health Emergency of International Concern; or
“any communicable disease event for which the Director General of the World Health Organization, in accordance with Articles 15 or 16 of the International Health Regulations, has issued temporary or standing recommendations for purposes of preventing or promptly detecting the occurrence or reoccurrence of the communicable disease.”
In essence, the director general of the WHO, Tedros Adhanom Ghebreyesus, was given the ability to declare a public health emergency in the U.S. that could result in the confiscation of agriculture and forced quarantine of American citizens.
Although HHS said it wouldn’t rely solely on the WHO’s judgment of what constitutes a “public health emergency,” HHS admitted in 2017 that the declaration by the WHO or notification to the WHO of a “Public Health Emergency of International Concern” is a way for HHS and CDC to “define when the pre-communicable stage of a quarantinable communicable disease may be likely to cause a public health emergency.”
HHS then finalized a rule containing the WHO’s exact definitions verbatim.
Paxton and Drummond believe the Constitution prohibits federal agencies, including HHS, from delegating their decisions to foreign nations or international organizations without express provision or permission from Congress.
When the lawsuit was filed, plaintiffs said there was no treaty or international agreement requiring the U.S. to defer to the WHO. This may change with Biden signaling intent to sign on to the WHO’s pandemic accord granting it complete sovereignty over U.S. pandemics.
Yet, plaintiffs claim that even if there were such a treaty, Congress would need to implement it through a statutory process, which to date, they haven’t done.