Last month, three states joined State National Bank of Big Spring, Texas, along with the Competitive Enterprise Institute and the 60 Plus Association, in a major lawsuit challenging the constitutionality of Dodd-Frank. The lawsuit is the latest example of the important role that state attorneys general can play when it comes to resisting the federal government’s excesses. From Obamacare to the Environmental Protection Agency, the Obama administration has learned that it must deal with attorneys general who are willing to go to court to enforce the Constitution’s limits on federal power.
Unfortunately, there is at least one Republican attorney general who would rather sit on his hands while the Obama administration takes a wrecking ball to our Constitution and our economy. Indiana’s Republican Attorney General Greg Zoeller was quoted by Bloomberg asserting that the Dodd-Frank challenge is “evidence that the country is in a ‘silly season’ before the election, and said that a Republican-only lawsuit ‘hurts our credibility in challenging federal laws.’ ” Mr. Zoeller apparently believes that his point is validated by the result of the Obamacare litigation, which he joined.
Chief Justice John G. Roberts Jr.’s decision in the Obamacare case was obviously a disappointment to conservatives. Still, it is pretty silly for Mr. Zoeller to suggest that the chief justice’s troubled opinion had anything to do with the partisan breakdown of attorneys general who joined the litigation. The allotment of six hours of oral arguments over three days demonstrates that the court took the case extremely seriously.
Additionally, it doesn’t seem that the lineup of attorneys general mattered at all to the 68 percent of respondents (including 48 percent of Democrats), who thought the court should strike down at least the individual mandate, or to the five justices who found that it was unauthorized under the Commerce Clause. Even the Indianapolis Star seems to disagree with Mr. Zoeller’s view. As the editors explained when they endorsed him, “Zoeller’s decision to challenge the case was largely vindicated both by the U.S. Supreme Court’s decision to hear the case and the nuanced decision the court handed down this year.”
The challenge to Dodd-Frank is equally serious. As former White House Counsel C. Boyden Gray and his co-author, Adam White, wrote in a recent Weekly Standard cover story: “Dodd-Frank is a gift to big banks,” and “Even if we take President Obama, Sen. Dodd, Rep. Frank, and the rest of Dodd-Frank’s supporters at face value when they protest that they actually intended to rein in Wall Street banks, the laws they passed accomplish the opposite result. Intentional or not, a kiss is still a kiss.”
Dodd-Frank’s kiss is intensified by an unconstitutional regulatory structure. The Consumer Financial Protection Bureau grants its director czar-like power, combining the authority with little legislative, executive or judicial oversight. Similarly, Dodd-Frank’s Orderly Liquidation Authority authorizes unaccountable corporate death panels, which are unrestrained by meaningful judicial scrutiny, while the Financial Stability Oversight Council has unchecked power to define “too big to fail.” In each instance, Dodd-Frank ignores our Constitution’s mandate for separation of power into three branches of government, housing it instead in one unaccountable agency.
Mr. Zoeller’s lack of interest in these problems doesn’t change the fact that our Constitution’s structure provides a remedy. If states sat around waiting for President Obama’s political allies to embrace that structure and join such lawsuits, they would never happen.
However, Mr. Zoeller is smart enough to understand that his standard would give partisan attorneys general the ability to veto very important disputes over the meaning of our Constitution and its limits on federal authority. At the end of the day, I think his real objection to the Dodd-Frank challenge is political, not substantive. If joining such a lawsuit is inconsistent with his re-election strategy or if he has strong alliances with Wall Street banks that oppose the litigation, then he should say so. What he shouldn’t do is insult the motives or intelligence of the courageous attorneys general who did choose to challenge the Obama administration on Dodd-Frank.
Ammon Simon is policy counsel at the Judicial Crisis Network and a former assistant attorney general of Missouri.
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