Wenstrup: Constitutionally guaranteed rights and liberties were ignored during COVID-19

Washington, D.C. - Select Subcommittee on the Coronavirus Pandemic Chairman Brad Wenstrup (R-OH) opened this week's hearing titled “Churches vs. Casinos: The Constitution is not Suspended in Times of Crisis” by explaining how government officials at the federal, local, and state levels did not uphold their constitutional responsibility to protect civil liberties during the COVID-19 pandemic. 

Arbitrary lockdowns and stay-at-home orders stripped Americans of their freedoms, while the issuance of restrictive vaccine and mask mandates imposed on their civil liberties. Chairman Wenstrup argues that as the data surrounding COVID-19 transmissibility became clearer, government officials should have adapted their mitigation strategies and answered for their unconstitutional directives. He also highlights Associate Justice of the Supreme Court of the United States Neil Gorsuch’s argument that the government’s response to COVID-19 was one of “the greatest intrusions on civil liberties in the peacetime history of this country.” Chairman Wenstrup concludes his remarks by noting the importance of learning from the mistakes made during the COVID-19 pandemic in order to protect individual civil liberties during future times of crisis in America.

Below are Select Subcommittee Chairman Wenstrup’s remarks as prepared for delivery.

Today the Select Subcommittee is holding a hearing to examine the constitutionality of actions taken by federal, state, and local governments and agencies in responding to the COVID-19 pandemic.

In the earliest stages of the pandemic, people—including our public health authorities—were scared. There simply was no data about the novel virus and many public health experts feared the worst.

Accordingly, many countries—including our own—seemingly began to “blindly” issue restrictive mandates. 

We were told to shutdown society. We were told “15 Days to Slow the Spread.”

By late-April 2020, 42 states—collectively, governing approximately 316 million people—mandated stay-at-home orders.

These state and local orders effectively mandated social distancing—restricting communal gatherings of families, friends, and neighbors.

They closed businesses deemed “nonessential” from operating.

They closed churches, restricting parishioners and congregants from attending religious services.
And they closed the schools, restricting the ability for our children to gain an education. 

They rushed to impose and enforce seemingly arbitrary and unnecessary orders.

In Michigan, Governor Whitmer told residents that they could not travel to their in-state vacation homes and ordered stores to stop selling “nonessential” items, such as seeds, soils, plants, and other gardening supplies.

In Rhode Island, the Governor ordered mandatory quarantining for out-of-state New Yorkers. The Governor set up police checkpoints on I-95 to stop vehicles with New York license plates and sent the National Guard door-to-door to search for fleeing New Yorkers in order to enforce this mandate.

In California, Los Angeles County sheriff’s deputies arrested a man paddle boarding by himself for violating Governor Newsom’s stay-at-home order; an order that included shutting down all the state’s beaches.

And an order that Governor Newsome would violate himself on numerous occasions.
At this time, public health experts did not know if any of these directives would have any impact whatsoever on slowing the spread.

However, they knew these orders would be significantly burdensome to the daily lives of all Americans; they should have known that many of these orders likely infringed on people’s constitutional rights and civil liberties.

These concerns prompted then-Attorney General Barr to warn that “the Constitution is not suspended in times of crisis.”

Unfortunately, federal, state, and local governments and agencies continued to enact restrictive policies that arguably ignored constitutionally granted individual rights and liberties.
  
When little information was known about the virus at the beginning, it was hard to determine what was “reasonable” or “necessary” in responding to this unprecedented novel virus. 
But, as data changes so must our decision making.

This, however, was rarely the case during the pandemic.

Time and again, in the face of new evidence questioning the usefulness of specific COVID-19 measures—including lockdowns, social distancing, school closures, and masking requirements—governments refused to adapt or provide an explanation as to why their directives were “necessary.” 

Instead, the temporary “15 days to flatten the curve” mantra, too easily became “1151 days to infringe on individual liberties.”

The 15 days to slow the spread was meant to provide hospitals and communities a one-shot opportunity to prepare for a never-seen before influx that could cause them to be overwhelmed.

Instead, it turned into a seemingly endless cycle of government overreach. 

Associate Justice of the Supreme Court Neil Gorsuch identified this problem early on in the pandemic. To Justice Gorsuch, “Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner.” 

The rights guaranteed to every American under the Constitution should never be put on hold. Patrick Henry, a Founding Father, once said that the Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.

Nonetheless, the government pushed the Constitution to its limits. These actions, to Justice Gorsuch, represented “the greatest intrusions on civil liberties in the peacetime history of this country.”

These “intrusions” were not limited to the actions of state and local governments.

In Spring 2020, the federal government restricted international travel and later issued an eviction moratorium—the latter which was ultimately held unconstitutional by the Court.

Most notably, President Biden announced an executive order to mandate vaccination for Medicare and Medicaid providers; Federal Contractors; Employers with 100 or more employees; and Federal employees, among others.

These mandates were unscientific, did not consider previous infection, and were most of all unconstitutional. The President never had the authority to issue such a directive.

Finally, the Biden Administration strong-armed big tech companies to shut down healthy debate in the name of “science.”

We are holding this hearing today to look back to help prepare for a future pandemic.

To determine what went wrong and to recommend how to do it better.

To make sure that individual civil liberties are protected, even during times of crisis.

It is clear that our response to the pandemic failed to protect individual liberties. 

Benjamin Franklin stated “[t]hose who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

I would like to ask for unanimous consent to add Justice Gorsuch’s opinion in Arizona v. Mayorkas to the record.