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

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 to their state-chartered operating subsidiaries. These regulations threaten 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 faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence 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 with a modest suggested template for doctrinal analysis of Tenth Amendment issues arising from federal administrative action.