Toward a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws

Keith R. Fisher

Document Type

Article

Publication Title

Harvard Journal of Law & Public Policy

Abstract

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but also to their state-chartered operating subsidiaries. The regulations threaten both to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state's sovereign authority over corporations chartered under its laws. Yet federal courts reviewing these initiatives have failed to devote any substantial analysis to challenges based on the Tenth Amendment. That failure is likely a consequence of the lack of any substantial doctrinal base in Tenth Amendment jurisprudence. This Article first explores the legal and policy implications of the preemption program and identifies the consumer protection interests at stake and the States' role in vindicating those interests. It then considers the importance of judicial review to the Framers' federalism design and endeavors to distill from their commentary and debates some substantive content for the Tenth Amendment that federal courts could credibly enforce. The Article concludes by suggesting a template for doctrinal analysis of Tenth Amendment issues arising from federal administrative action.

First Page

981

Last Page

1034

Publication Date

Summer 2006

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