The Supreme Court heard oral arguments this morning in an important preemption case, Cuomo v. The Clearinghouse Association, which we've discussed here before. The question in the case is the extent to which the Office of the Comptroller of the Currency can prevent the states from enforcing their own non-preempted state consumer protection and anti-discrimination laws against banks. The OCC acknowledges that the state law in question is not preempted as a substantive matter, and even that the state law applies and may be enforced by private parties, but relies on a novel theory of "enforcement preemption" over state enforcement authority that is said to flow from the federal government's "visitorial powers" under the National Bank Act.
The transcript of the oral arguments has just been released and is available here. Barbara Underwood, Solicitor General of New York, argued the anti-preemption position, joined by all 49 other states as amici. The pro-preemption provision was argued by Malcolm Stewart for the federal government and Seth Waxman for the banks. You can finding all of the briefing in the case here and SCOTUSBlog's detailed argument preview here.
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