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Tuesday, November 28, 2006

Comments

Brian

I'm not convinced of anything about this case, nor do I have any idea whether the Court will find the OCC's position unreasonable. But I was surprised that the bank's brief - - which you'd think reflexively would stress deference to OCC - - spent most of its time simply explaining why the statute and regulation's language means that the bank should win this case. In other words, the brief simply explained why its view of the legal authorities was the most persuasive view. Though I would have expected something else, I ended up thinking that was a very effective way to argue the case.

Deepak

Well, it's certainly true that the Court doesn't need to reach the deference issues I mentioned; the narrowest way to decide the case is simply to find that these regs aren't a reasonable interpretation and that's that. But if that what's in the cards, why did the Court take these cases in the first place? There was no conflict at all, nor was one likely to emerge, and it's hard to believe that the Court really cares that much about the consumer protection at stake or that the four Justices see this case as an opportunity to resurrect Tenth Amendment jurisprudence.

Perhaps the Court saw this as an extreme kind of administrative overreaching that it wanted to curb. But, if so, why not do so in a way that attempts to tackle the interaction between regulation and preemption, a problem that's beginning to appear in other areas as well (FDA and NHTSA regulations, to take two very important examples)? I guess I'm just not convinced yet that this is just a case about banking law -- but we'll know more in a few hours.

Brian

I wonder whether academic questions about deference will even figure much in the decision. Note in this regard the large difference between Michigan's question presented (on which the Court supposedly grant cert.) -- which very abstractly asked whether deference ought to be accorded, the answer to which would simply result in a remand, not a winner - - and the bank's question presented - - which concretely asks whether the preemption of the Michigan regulatory scheme is lawful. It seemed to me that the bank's question presented was a more useful way of looking at the case. When you get down to it, Michigan's basic argument is that the OCC's position is an unreasonable interpretation of the statutory scheme, and, thus, there would be no basis for granting the OCC deference anyway, that is, no reason to defer even if the OCC were authorized in this circumstance to preempt with Chevron-type power.

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