Just days after President Barack Obama was touting the supposed achievements of Dodd-Frank on its 5th birthday, a unanimous judicial panel — including one of Obama’s own appointees — dealt the administration a huge defeat in its defense of the law.
And it gave CEI, the 60 Plus Association, and a courageous Texas community bank — co-plaintiffs in the case — a potential huge victory for American consumers and entrepreneurs being strangled by the red tape of Dodd-Frank and its Consumer Financial Protection Bureau (CFPB).
Today, a three-judge panel of the D.C. Circuit Court ruled unanimously that State National Bank of Big Spring had standing to challenge the constitutionality of the Consumer Financial Protection Bureau, the massive bureaucracy created by Dodd-Frank with virtually no accountability to Congress.
Though the decision was written by Judge Brett Kavanaugh, an appointee of President George W. Bush, it was joined by Judge Judith Rogers, who was appointed by President Bill Clinton, as well as Nina Pillard, an appointee of President Obama himself.
The Democratic-leaning panel ridiculed the lower court for its bizarre ruling that despite the fact that State National Bank was directly subject to the CFPB’s edicts — bank president Jim Purcell testified before Congress that the bank even had to stop issuing new mortgages and wire transfers because of CFPB rules — it somehow didn’t suffer injuries serious enough to have standing to challenge the bureau.
“The Supreme Court has stated that ‘there is ordinarily little question” that a regulated individual or entity has standing to challenge an allegedly illegal statute or rule under which it is regulated,” the appeals court wrote. “So it is in this case.”
The court said this is particularly true when the constitutionality of an agency or bureau was being challenged, as it was in this case, rather than that of a particular rule. The ruling cited another case in which CEI served as co-counsel, Supreme Court case Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, as precedent.
In that challenge to the operation of the PCAOB, created by the Sarbanes-Oxley Act governing public companies, the Supreme Court wrote that courts should not “require plaintiffs to bet the farm” by breaking laws to challenge the constitutionality of the regulating entity.
Now, since it is affirmed that State National Bank has standing to challenge the constitutionality of the bureau, the lower court will hear the merits of the challenge.
We argue that there are multiple constitutional defects of the CFPB — from not being subject to Congressional appropriations to not having the multi-member leadership of other independent agencies to having its leader initially appointed by a “recess” process similar to one that the Supreme Court declared illegal for the National Labor Relations Board — that cause it to lack the meaningful oversight the Constitution’s framer envisioned for government bureaucrats.
It’s a long process but it could go a long way toward freeing Americans not just of economic burdens but of new NSA-like threats to privacy from the massive database CFPB is building, as documented recently by Paul Sperry in the New York Post.
We are disappointed that the court ruled that the bank and several states did not have similar standing to challenge Dodd-Frank’s Financial Stability Oversight Council and are evaluating our options. But it is gratifying that there is bipartisan agreement for at least some accountability for the entities created by Dodd-Frank.
John Berlau is a senior fellow at the Competitive Enterprise Institute. He is the author of the book “Eco-Freaks.” Read more reports from John Berlau — Click Here Now.
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