have you guys seen the lawsuit against Dodd frank law that is circulating in the net, do you guys think they have a solid case. A Texas community bank on June 21 filed what lawyers say is the first suit directly challenging the constitutionality of the Dodd-Frank Act and the creation of the Consumer Financial Protection Bureau.
Represented by former White House counsel C. Boyden Gray, the State National Bank of Big Spring, Tex., along with The Competitive Enterprise Institute and the 60 Plus Association allege that the law lacks effective checks and balances to assure the public of accountability.
“As a whole, Dodd-Frank aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,” said Gray, founder of Boyden Gray & Associates in Washington, in a statement.
The suit, filed in U.S. District Court for the District of Columbia, targets Title 1 and Title 10 of Dodd-Frank, Gray said in an interview. Title 1 focuses on the government’s designation of systemically risky enterprises, while Title 10 covers the creation of the CFPB. The suit also challenges the January recess appointment of CFPB head Richard Cordray on the grounds that the Senate was not in recess, Gray said.
According to a news release detailing the complaint, which at press time was not available, the plaintiffs complain that Congress “exercises no ‘power of the purse’ over the CFPB, because the agency’s budget — administered essentially by one person — comes from the Federal Reserve, amounting to approximately $400 million that Congress cannot touch or regulate.”
The other banking regulators — the Federal Reserve, the Federal Deposit Insurance Corp. and the Office of the Comptroller of the Currency — are also funded independently from the Congressional appropriations process. Those agencies are not targeted in the suit.
Gray pointed out that the FDIC’s role is different than the CFPB, since it is funded by fees from banks that are “the recipients of government largess in the form of deposit insurance.” He said the suit seeks to make the CFPB subject to the appropriations process.
The plaintiffs also complain that “the President cannot carry out his constitutional obligation to ‘take care that the laws be faithfully executed’ because the President cannot remove the CFPB Director except under limited circumstances.”
Courts have held the president lacks the power to remove the leaders of all independent agencies on policy grounds (as opposed to gross wrongdoing) based on the U.S. Supreme Court’s 1935 decision that President Franklin Roosevelt acted unconstitutionally when he fired a member of the Federal Trade Commission.
Gray said the suit seeks to give the president authority to fire the head of the CFPB, much like cabinet members can be fired.The plaintiffs also complain that “Judicial review of the CFPB’s actions is limited, because Dodd-Frank requires the courts to give extra deference to the CFPB’s legal interpretations.”
The U.S. Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. held that courts should defer to agency interpretations of statutes unless they are unreasonable.
The Dodd-Frank suit focuses on Section 1022 of the act, which states that “the deference that a court affords to the [CFPB]…shall be applied as if the Bureau were the only agency authorized to apply, enforce, interpret, or administer the provisions of such Federal consumer financial law.”
Gray said it was unprecedented to include such a deference standard in a law — as opposed to allowing courts to apply it as they see fit. “It takes discretion away from the courts,” he said.
While Gray acknowledged that “all individual features we challenge, you can find here and there in other agencies,” he said the CFPB combines them all, with a resulting lack of accountability.
One thing unique about the CFPB is that it is overseen by the Dodd-Frank Financial Stability Oversight Council, but the plaintiffs say the council’s review “is practically nonexistent” and that it can “overturn a CFPB regulation under only limited circumstances.”
A CFPB spokeswoman said the suit is little more than a rehash of faulty allegations.
“This lawsuit appears to dredge up old arguments that have already been discredited,” said CFPB spokeswoman Jen Howard via email. “We’re going to keep our focus on the important work Congress created us to do — making markets work for consumers and responsible providers.”
This article originally appeared in The National Law Journal.