Monday, the US Supreme Court issued its opinion in Cuomo v. Clearing House Association and held that states may enforce certain consumer protection laws against national banks. Writing for a 5 to 4 majority, Justice Scalia concluded that while visitorial powers over national banks may be reserved for federal regulators, that power is separate and distinct from the power to enforce the law. Requests by the New York Attorney General for information related to lending practices of national banks in an effort to assess potential disparate impact of interest rates on minorities were permissible as an exercise of the state's authority to enforce laws and were not preempted as a visitorial power reserved for the banking agencies. In reaching this opinion, the Court rejected prior decisions of both the federal district court and the US Court of Appeals.
While the opinion is viewed as a "win" for the states' rights advocates in the banking arena, it does not give state attorneys general access to bank records and information directly. Instead, it requires judicial approval for state access to national bank records sought in connection with the enforcement of state laws.