Test of Constitutionality of Dodd-Frank Act

Jenna Greene at The Blog of Legal Times had a post yesterday citing eight additional states -- including Ohio -- joining a lawsuit challenging the constitutionality of the Dodd-Frank Act, Consumer Financial Protection Bureau, and CFPB Director Richard Cordray’s appointment.

The suit, filed last June, by State National Bank, the 60-Plus Association, a non-partisan seniors advocacy group; and the Competitive Enterprise Institute, a non-profit public interest group,is challenging "the unconstitutional creation & operation of the Consumer Financial Protection Bureau (CFPB),an agency created by Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act…. The unconstitutional appointment of CFPB Director Richard Cordray and the unconstitutional creation and  operation of the Financial Stability Oversight Council…"

That complaint proports "Titles I and X of the Dodd=-Frank Act comprise unprecedented violations of the ‘basic concept of separation of powers and the checks & balances that flow from the scheme of a tripartite government, citing U.S. v. Nixon, 418 U.S. 683.

Ms. Greene reported "the original suit focused in large part on the Consumer Financial Protection Bureau, complaining that it 'aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,' as former White House counsel C. Boyden Gray, founder of Boyden Gray & Associates in Washington, said when the suit was filed.

Michigan, Oklahoma, and South Carolina joined the suit in September, challenging as well “the unconstitutional creation and operation of a new authority for the ‘orderly liquidation’ of financial institutions under Title II of the Dodd-Frank Act ("Orderly Liquidation Authority").

Federal officials filed a motion to dismiss in November stating the " lawsuit cobbled together an array of disparate challenges to the constitutionality of three titles of an act of Congress and the constitutionality of the President’s appointment of an executive officer. Despite the roving allegations of unconstitutionality set forth in the Amended Complaint, not one of the statutorily authorized actions that Plaintiffs speculate might someday cause them harm has yet occurred. As such, each of the Plaintiffs’ various claims of injury falls far short of the imminent, non-conjectural injury required to demonstrate Article III standing and, for similar reasons, each of their claims is unripe."

A motion was filled Feb. 13th. to allow Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas and West Virginia plaintiffs to join the suit.