In a long-awaited ruling on federal preemption of state enforcement actions under the National Bank Act, the United States Supreme Court has ruled in Cuomo v. Clearing House Association, L.L.C. No. 08-453 (June 29, 2009) that the Office of the Comptroller of the Currency regulations at 12 C.F.R. § 7.4000 do not preempt state enforcement actions against a national bank arising out of non-preempted state laws.
In overturning two lower court decisions, the Supreme Court noted in Cuomo that historically "visitation" was the right to oversee corporate affairs and that the National Bank Act plainly prohibits such state oversight of a national bank in that regard. However, the Court concluded that the National Bank Act's restriction related to corporate oversight is quite different from the power to enforce the law . Thus, although the National Bank Act and the OCC regulations prevent the New York state attorney general from threatening a subpoena on his own authority if his request for information was not voluntarily honored, Section 484(a) of the Act and the Regulations do not preclude judicial enforcement actions with respect to the alleged violation of non-preempted state laws.
Interestingly, the decision was authored by Justice Scalia, considered by many to be the staunchest conservative on the Court, who was joined in the opinion by Justices Stevens, Ginsburg, Souter and Breyer, who are often referred to as the "liberal wing" of the Court.