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Editorial: Banks are bound by state laws

Wednesday, July 1, 2009
(Updated 3:35 am)

State laws can be enforced against national banks, the U.S. Supreme Court ruled in a case from New York on Monday.

The outcome pleased N.C. Attorney General Roy Cooper and should be good for consumers here.

"It's critical that states have the right to enforce their laws against unfair loans and irresponsible lending practices," Cooper said. He had filed a brief supporting New York's position, contending states have a better record of protecting consumers' interests than do federal regulators.

The court didn't address that point. Its concern was with the principles of law and whether the National Bank Act of 1864 -- that's right, a 145-year-old federal law -- protects national banks from enforcement actions of the states. Finding an answer required, to some extent, peering "through the clouded lens of history," Justice Antonin Scalia wrote for the majority.

A key to the ruling was drawing a distinction between "visitorial powers" reserved to the federal Office of Comptroller of the Currency, which include examination, supervision and regulation of banks, and ordinary enforcement of laws. The latter function opens the door for state authorities to ensure compliance with their own laws. While state laws may be pre-empted by federal statutes, an interpretation that the National Bank Act overrides even non-pre-empted state laws is "bizarre," Scalia wrote.

States don't have free license, he added: "An attorney general acting as a civil litigant must file a lawsuit, survive a motion to dismiss, endure the rules of procedure and discovery, and risk sanctions if his claim is frivolous or his discovery tactics abusive. Judges are trusted to prevent 'fishing expeditions' or an undirected rummaging through bank books and records for evidence of some unknown wrongdoing."

National banks can't be used as political punching bags for ambitious state attorneys general. But they can be held accountable under state laws for their impact on consumers whom attorneys general are sworn to protect.

The court was right to preserve that principle.

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