I have previously blogged about the constitutional issues raised by the recess appointment of Richard Cordray as CFPB Director, both on their own, here and here, and, in connection with lawsuits that have challenged President Obama’s contemporaneous NLRB recess appointments, here, here, and here. One of the issues flagged in those earlier blogs was that, in contrast to the NLRB actions, there did not yet appear to be a plaintiff that would have standing to challenge the Cordray appointment.
Recently, amidst an inordinate amount of deliberately sought publicity, a lawsuit was filed challenging the constitutionality of the CFPB itself, of the Financial Stability Oversight Council (FSOC), as well as that of the recess appointment of Richard Cordray as Director. State National Bank of Big Spring, Texas, et al. v. Geithner, et al., No. 1:12-cv-01032-esh. The case is an audacious court challenge to some of the more controversial aspects of the Dodd-Frank Wall Street Reform & Consumer Protection Act, namely Titles I and X. The case, however, is hampered — perhaps fatally — by the plaintiffs’ questionable standing to bring these claims; in particular, the asserted injury in fact mandated by the “case or controversy” clause of the Constitution seems rather attenuated.
The plaintiffs are a small ($275 million) national bank in Texas, and two non-profit organizations in the metropolitan Washington, D.C. area: the 60 Plus Association, a 7-million member seniors advocacy organization, and the Competitive Enterprise Institute, a conservative public-interest organization. Injury in fact to the latter two plaintiffs, or their members, seems rather remote, and only the plaintiff bank has a chance, albeit slim, of establishing standing.
A more detailed description of the lawsuit and some commentary on standing and other issues relevant to a motion to dismiss is attached here.