by Brian Wolfman
As Jeff Sovern reported in January, the Supreme Court has taken on an important case concerning the right of states to enforce their consumer protection and civil rights laws against national banks. The case is Cuomo v. Clearing House Association, S. Ct. No. 08-453. The federal regulator of national banks -- the Office of the Comptroller of the Currency (OCC) -- has, under the National Bank Act, "visitorial" power over national banks. That power preempts the states from engaging in certain substantive regulation within OCC's purview. See, e.g., Watters v. Wachovia Bank, 127 S. Ct. 1559 (2007). But the question in Cuomo is the validity of an OCC regulation that says OCC's visitorial power preempts state enforcement authority, even when the state law or regulation being enforced is not substantively preempted. Just to restate the argument: According to OCC, perfectly valid state laws may not be enforced by duly authorized officials of the very states that enacted them. That's a pretty strong form of preemption, don't you think?
Here is an an amicus brief from a range of consumer advocacy groups, led by the Center for Responsible Lending, and including my group (Public Citizen), as well as AARP, the National Consumer Law Center, U.S. PIRG, and others. Eric Halperin of the Center for Responsible Lending is counsel of record for the these amici.
The brief for the party seeking to upend OCC's pro-preemption policy -- New York AG Andrew Cuomo -- as well as all the other amicus briefs on the no-preemption side can be found here. The Supreme Court's docket for the case is here.
The case will be argued on April 28, and a decision will be issued by the end of June.
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