We’re used to IJ cases taking unexpected twists and turns, but occasionally something truly dizzying happens. That is the situation in a new IJ economic liberty case on behalf of two independent motels nestled in Tillamook County on Oregon’s rough southern coast. When the pandemic hit, both motels sprang into action to ensure guest health and safety. Ultimately, though, in late March 2020, Tillamook County ordered lodging for everyone but essential workers to close. Our clients reluctantly complied, believing that they could safely remain open but also ready to obey the law.
Then, in May 2020, a small town inside Tillamook County voted to defy the county’s closure and reopen lodging to the public. The county threatened a lawsuit but did nothing except demand that everyone else in the county remain closed.
That was too much for our clients. Fearing bankruptcy, the motels brought a constitutional lawsuit in federal court. IJ decided to take this case to trial on the motels’ claim that similar businesses should be treated similarly under the law. The case isn’t fundamentally about whether COVID-19 was serious enough to warrant lodging closures. It’s about whether the Constitution requires the government to enforce regulations—whatever they are—evenhandedly. That’s a core economic liberty question.
As we were preparing our case, something truly astonishing happened. During a deposition, a county commissioner testified that the lodging closure had, in fact, been a sham. No one had been required to close. Rather, mandatory-seeming language in the closure order was a sleight of hand designed to mislead citizens into believing a law existed when, in fact, it didn’t. Throughout the pandemic, the county had been deceiving the public, our clients, and the court.
This deception raises grave constitutional questions. Can the government trick you into closing your business? Can the government give up pretending that a law is real in one place—by doing nothing when the one town’s motels reopened—but double down and continue to insist that the law is real in others, even though it isn’t?
The U.S. Supreme Court has long made clear that Americans have a right to expect “some minimum standard of decency, honor, and reliability in their dealings with their Government.” Tillamook County appears to have fallen short of that minimum. We scrambled to present this new evidence, but the court entered final judgment for the county on a separate legal question just days after the deposition. We filed a motion to reopen the case based on the new evidence in September.
IJ went into this case intending to vindicate the fundamental principle that the government must enforce regulations equally. We’re now in a fight over an even more fundamental principle: The government cannot encroach on our liberty through deception and manipulation, perhaps especially when it believes that deceiving us is for our own good. An honest government is dangerous enough. A dishonest one is intolerable.
Jeff Rowes is an IJ senior attorney.
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