Bench Memos

Dodd-Frank Constitutional Challenge Gaining Momentum

Great news today. Eight attorneys general from Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas, and West Virginia are joining the constitutional challenge to Dodd-Frank. MarketWatch has more:

The states are joining part of the suit that challenges a measure setting up the so-called “orderly liquidation authority,” which seeks to allow regulators to use taxpayer dollars to make payments to creditors and counterparties of a failing big bank so they don’t fail as well. (Those taxpayer dollars would later be recouped in fees on big banks).

The lawsuit argues that the provision is unconstitutional because it violates the rights of financial companies’ creditors during the liquidation. It adds that the “unconstitutional” system allows a big bank to be dismantled “without meaningful judicial review” and that it “unilaterally” chooses favorites among “similarly situated” creditors.

One of the plaintiff’s attorneys, former White House counsel C. Boyden Gray, believes that the addition of eight states will bring additional “gravitas” to the challenge. Eleven states, including Oklahoma, South Carolina, and Michigan, are now a part of the challenge to the Orderly Liquidation Authority. For more information about the case, visit

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