Here’s one thing Big Government Conservatives adore: sovereign immunity. You can’t take your case against the state of Texas to court unless given permission by the Legislature. And in recent months, two giant organizations, neither of them state agencies — the Texas Windstorm Insurance Association and the Lower Colorado River Authority, are claiming the state’s sovereign immunity.
So much for the American Revolution.
For all their libertarian “Hands-Off-Texas” rhetoric, what Big Government Conservative pols like Rick Perry really mean is, “Hands off me and mine. The hell with you.” In many ways, the success of Big Government Conservatism depends upon a big deception: convincing libertarian-minded conservatives that unapproachable state authority is compatible with individual rights. It’s not.
In today’s Houston Chronicle, Purva Patel reports that the Texas Windstorm Insurance Association is trying to protect itself from lawsuits filed in connection with its denial and underpayment of hurricane damages to Texas families.
The Texas Windstorm Insurance Association, facing hundreds of lawsuits stemming from hurricanes Ike, Dolly and Rita, wants to limit how much it pays if it loses in court.
In two separate cases, the state-created insurer has filed motions seeking immunity from paying penalties, policyholder attorneys’ fees and other expenses arising from litigation against it.
TWIA argues it’s an instrument of a government agency, and as such is entitled to sovereign immunity that protects governments from some legal liability.
But lawyers for policyholders say the association is effectively a private company, and that immunity would let the insurer escape consumer protection laws. More than 900 lawsuits against TWIA could hinge on how courts rule on the immunity question.
And, the Lower Colorado River Authority, facing a lawsuit from the city of San Antonio water system, has claimed sovereign immunity, a move that means its water contracts with the city of Austin and other government entities are not enforceable. It’s a recipe for chaos. Here’s the LCRA’s legal argument, from its petition to the court:
As a government entity, LCRA is immune from suit unless and except to the extent the Legislature has clearly and unambiguously waived that immunity. The party suing a government entity must establish the waiver of immunity by reference to a statute or to express legislative permission.
Both TWIA and the LCRA love to crow about their independence. They want to eat their cake and have it, too. You can’t touch them because they’re part of the state. You can’t hold them accountable because they are not part of the state.
The current fights they’re in are significant to the future of Texas. In the case of the LCRA, if it can’t be held to its word, all those depending upon it for water are suddenly uncertain. That means that planning our way out of the state’s water woes will be greatly complicated.
In the case of TWIA, their immunity claim could mean that millions of coastal Texans are effectively without enforceable insurance against hurricane damage. TWIA is the insurer of last resort. That’s why it was created.
Libertarian-minded conservatives in America and around the world are opposed to sovereign immunity. The International Society for Individual Liberty advocates “revoking the government’s license to kill: the case for abolishing sovereign immunity laws.”
To quote from the description of a recent book critical of sovereign immunity, Sovereign Immunity or the Rule of Law: The New Federalism’s Choice:
When the courts invoke sovereign immunity to shield government or its agents from the consequences of violation of constitutional norms, the rule of law and the basic fabric of society suffer.
Politicians like Rick Perry are relying upon anti-government teabaggers for their success. It will be interesting to see how they explain their support for this ultimate power of the state to supporters bent on dismantling the state.
Full disclosure: I am engaged professionally in opposing this state power grab, but it’s a case of matching my work to beliefs I already held.