Additionally, plaintiffs argued in Wednesday's filing that Dodd Frank's codification of so-called “too big to fail” is a real injury to small banks, because it gives big banks an “enormous competitive advantage.”

Sam Kazman, general counsel of private plaintiffs Competitive Enterprise Institute, said when the same federal appeals court hearing the Dodd-Frank suit ruled Jan. 25 that several National Labor Relationship Board recess appointments were unconstitutional, it effectively resolved one major issue in his case's challenge against the constitutionality of CFPB Director Richard Cordray's appointment.

“Rather than address the constitutional validity of this law, the federal government has, through its motion to dismiss, chosen to attack the standing of 11 states, two nonprofit groups, and one small but courageous community bank in Texas, as well as the ripeness of their claims,” Kazman said. “We look forward to the court's resolution of these preliminary issues, and we are hopeful that we'll be able to proceed to litigate the merits of our case.”