Opinion - House bill presumes Senate treaty role and undermines presidential discretion

It’s not every day that one house of Congress initiates legislation that tells the other house what its job should be. But that’s exactly what the House bill, No WHO Pandemic Preparedness Treaty Without Senate Approval Act, does.

The legislation, which cleared by the Rules Committee on Monday, would prohibit U.S. acceptance of a World Health Organization (WHO) pandemic prevention, preparedness and response agreement unless approved as a treaty by a two-thirds vote of the Senate.

The House Foreign Affairs Committee reported the measure July 11 by a party-line vote of 24-23.  The bill’s title minces no words as to what it’s about: the “No WHO Pandemic Preparedness Treaty Without Senate Approval Act” — not an easily manageable acronym.

The bottom line is that any agreement reached on pandemic preparedness and response by the World Health Assembly, the governing body of the WHO, is “deemed to be a treaty that is subject to the constitutional requirement for Senate ratification by a two-thirds vote.

But the bill skips one essential: Article Il, Section 2 of the Constitution provides that the president “shall have power, by and with the advice and consent of the Senate to make treaties….”  As the 2022 edition of The Constitution Annotated makes clear, the treaty-making power begins with executive negotiations with other nations. Once these are completed, “the President submits the treaty to the Senate.” The president’s decision to submit it for Senate approval is discretionary.

A treaty cannot be “deemed” to have been submitted by the president to the Senate. By omitting any presidential role once an agreement is reached, the pact somehow magically appears whole cloth in the Senate’s in-box for action. If approved by the Senate, it would still presumably have to be signed by the president for official ratification before the other parties to the agreement are notified.

In bypassing the White House initially, the bill precludes the possibility of the president adopting the measure as an international “executive agreement,” requiring no action by Congress.  According to the Senate’s website listing, “About Treaties,” only 6 percent of the pacts negotiated with other nations are submitted to the Senate as treaties. The rest are finalized as executive agreements and signed by the president without Senate approval. The extraordinary House mandate on the Senate would surely be unprecedented if enacted, though the other body is unlikely to embrace the bill if it shows-up on its doorstep.

So, what is behind the House’s attempt to make this more difficult, urgent and complicated than needed? The Foreign Affairs Committee’s report, in its 11-paragraph “summary and purpose,” warns generally that it deserves treaty consideration because of its “potential breadth and intrusiveness.” Moreover, it’s because of “lingering public distrust of the WHO given its manipulation by the Chinese Communist Party and its deadly cover-up that contributed to the global COVID-19 pandemic.”

Citing the final report issued by the Foreign Affairs Committee’s minority staff in the previous Congress under then ranking, now chairman, Michael McCaul (R-Texas), the current report asserts “it is beyond doubt that the [Chinese Communist Party] actively engaged in a cover-up designed to obfuscate data, hide relevant health information, and suppress doctors and journalists who attempted to warn the world of the of the COVID-19 outbreak.”

In December 2021, the World Health Assembly established an Intergovernmental Negotiating Body to draft the pandemic accord. So far, negotiators have met nine times to consider various drafts. When negotiating authority expired in May without an agreement, the negotiating authority had to be extended until May 2025. The Foreign Affairs Committee report characterizes the attempted drafts to date as “aspirational slogans.” Secretary of State Antony Blinken said of the negotiations, “I don’t see that coming to a conclusion in the near term. There’s just not a consensus on it.”

The reason the Rules Committee was scheduled to consider the bill this past Monday, just 13 legislative days before the pre-election recess, is that this seems to be a “Get China theme week.” Four other anti-China bills cleared the Rules Committee Monday relating to: Confucius institutes and “Chinese entities of concern”; Chinese dominance of electric vehicles; protecting U.S. innovation from China; and protecting American agriculture from foreign adversaries (like China).

The Rules Committee also granted a rule on Monday for a six-month, stop-gap continuing appropriations bill — a must-pass bill before the Oct. 1 fiscal year drop-dead date to stave off a government shutdown.

It is sometimes difficult to understand what drives legislative scheduling decisions. When in doubt, look for a pattern of throwing messaging bills onto the floor as filler between taking-up essential legislation to keep the government and country operating.

Don Wolfensberger is a 28-year congressional staff veteran, culminating as chief-of-staff of the House Rules Committee. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).

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