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Eight More States Will Join Legal Challenge to Dodd-Frank Act

Joe Mont | February 14, 2013

A legal challenge to the Dodd-Frank Act, with a particular focus on provisions granting the Secretary of the Treasury “liquidation authority” over failing banks, has enlisted eight more state attorneys general  to the cause.

Attorneys general from Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas and West Virginia are asking the U.S. District Court for the District of Columbia to join a lawsuit, first filed in June. The lawsuit currently includes three private plaintiffs (State National Bank of Big Spring, Texas; the 60 Plus Association, and the Competitive Enterprise Institute) and the Republican attorneys general of Oklahoma, South Carolina, and Michigan.

The lawsuit challenges the constitutionality of Orderly Liquidation Authority (OLA) powers to liquidate financial companies if the Federal Deposit Insurance Corporation and Federal agree such a move is needed. Among the complaints detailed is their ability to do so with only 24 hours notice and that there is no meaningful legal recourse for the company because an immediate gag order is placed on all parties. In an earlier statement they referred to it as “death panels for American companies.”

The OLA can liquidate financial companies with no advance warning,” a statement issued on Wednesday by the Competitive Enterprise Institute says. “It acts in secret, with minimal accountability to Congress, the president or the courts,” the group wrote. “The government decides how much to give each investor during the liquidation process, and the states have no ability to ensure they recoup the value of their investments at a level commensurate with Wall Street banks.”

In addition to Title II, the private plaintiffs in the lawsuit are challenging the creation of the Financial Stability Oversight Council and the Consumer Financial Protection Bureau, as well as the validity of a recess appointment that installed the Bureau's director. A ruling last month by a federal appeals court invalidated similar recess appointments made by President Barack Obama to the National Labor Relations Board.

The suit's main points on  this front are that the CFPB was established with too much independence—that Congress cannot set its budget (funding is determined as a total portion of the Federal Reserve's budget); that the president cannot remove the director except in special circumstances; and that the courts must give CFPB decisions extra deference.