Immune To You: Big Government Conservatives


justice(1)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.”

The Libertarian Party believes revoking sovereign immunity is the best way to fight environmental degredation.

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.

Author: Glenn W. Smith

Glenn W. Smith has spent the past 30 years in journalism and politics, where he’s made a name for himself as a writer, campaign manager, activist, think tank analyst and, as Daily Kos founder Markos Moulitsas says, a “legendary political consultant and all-around good guy.” “There’s no one like him,” says author George Lakoff. CNN commentator Paul Begala says, “He has unmatched experience, a graceful pen (or pixel nowadays) and deep insight into the best and worst of us.” Novelist Sarah Bird speaks of his “lucid and lyrical” prose. And, she says, he’s fun. Huffington Post founder Arianna Huffington says Glenn writes with “grace and abundant humor” and “uses his colorful experiences in Texas to enlighten us all.”

Smith led Ann Richards’ successful 1990 campaign for Governor of Texas. He worked for former Texas Lt. Gov. Bill Hobby and U.S. Senator Lloyd Bentsen. Earlier, Smith was a political reporter for the Houston Chronicle and the Houston Post. He’s coordinated national campaigns for groups such as In 2004, he authored the highly acclaimed book, The Politics of Deceit: Saving Freedom and Democracy from Extinction. He also wrote Unfit Commander, a book that detailed George W. Bush’s mysterious disappearance from military service.

In 2004, Smith was featured in the film, Bush’s Brain, a documentary about Karl Rove. Smith provided commentary on Rove’s role as then-President Bush’s senior advisor. He has made numerous media appearances with Chris Mathews on Hardball, Joe Scarborough, Brit Hume, and many others. He writes a regularly for top national web sites, including FireDogLake and Huffington Post.

As a senior fellow at George Lakoff’s prestigious Rockridge Institute in Berkeley he studied, wrote and taught on the power of metaphor and narrative in political communications. He also lectured on religion and politics at the Starr King School for Ministry in Berkeley. As a sponsor and organizer, he has pulled together numerous national events with progressive religious leaders. He also organized a celebration of Dr. Martin Luther King at Riverside Church in New York City as well as “Freedom and Faith” bus tours, which was a nationwide campaign for social justice and progressive values.

Smith’s play, Double Play, which explored American Western myths and legends, was held over to sold-out audiences. He’s even written and performed songs in the Americana tradition, such as his best-known song, “Helping Marty Robbins,” a tribute to his hometown, Houston.

Most recently, Smith is the creator of DogCanyon, a political and cultural web site covering state, national and global issues from a Texas perspective. DogCanyon is an exhilarating and unique site that gets the connections between politics and culture and explores both the personal side of politics and the ups, down, craziness and beauty of “life its ownself,” as humorist Dan Jenkins would say. DogCanyon offers heartfelt personal essays, hard-hitting political analysis, and, most importantly, laughs.

As Paul Begala said, Smith writes in “the finest, firmest, fearless tradition of Texas essayists like Molly Ivins.”

4 thoughts on “Immune To You: Big Government Conservatives”

  1. So long as no one credible to them forces the teabaggers to confront this pretty big cognitive dissonance, they can freely overlook it as they continue supporting Governor Thirty-Nine Percent and other big-gummint conservatives. Would be interesting for Ron Paul to take Goodhair on on this.

  2. I know what you mean about disliking having stuff shoved down your throat……Just of like the Health Care Reform bill.

    1. Do you really believe that a health care system based on for-profit insurance, a system that depends upon unnecessary suffering and death, is preferable to some role for the cooperate democratic institution we call government? How could any ideology hold in the face of the disease, suffering and death that could be relieved — at no real cost to us or anything we old dear? Today, the system is a form of human sacrifice. Or Sophie’s Choice, where we must choose one child to die so the other can live.

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