Alert January 27, 2009

Supreme Court Agrees to Hear National Bank Act Preemption Case

The Supreme Court agreed to hear the appeal of the Clearinghouse v. Cuomo decision from the Second Circuit. As reported in the December 4, 2007 Alert, the Second Circuit held in that case that the OCC’s exclusive visitorial powers promulgated under National Bank Act regulations preempted and precluded the New York Attorney General’s attempts to investigate and enforce state law housing discrimination claims. The Second Circuit found the OCC’s conclusion that national banks cannot be investigated and sued by the Attorney General regarding the business of banking was properly afforded Chevron deference, as it was not “manifestly contrary” to the National Bank Act. The Supreme Court accepted the case to determine the scope of the OCC’s visitorial powers, on the questions of whether the regulations are entitled to judicial deference under Chevron and invalid because they are inconsistent with the authoritative construction of the National Bank Act by the Supreme Court in First National Bank in St. Louis v. Missouri, 263 U.S. 640 (1924).Click here for a copy of the Supreme Court’s order accepting review of the case.