As the contestants gear up for tomorrow's Supreme Court arguments in the latest round of the OCC versus the states on the federal preemption of state law as it applies to national banks, the trade press is abuzz with speculation (paid subscription required). Certainly, the unprecedented economic meltdown, which popular perception often lays at the feet of lax regulation, as well as a changing of the guard in Washington, D.C. to one with a decidedly leftward tilt, give many states rights supporters hope that here, at last, the OCC monolith will be halted in its quest for world domination, that the lower courts' consistent support of the OCC's position will be reversed, and that the lion will lay down with lamb.
"Fat chance," sez I.
Anything's possible, and maybe Altio will re-think his support of the OCC in Watters v. Wachovia, or decide that this case presents distinguishable facts. Thomas is certainly free from the Wachovia recusal problem, and he's likely to follow his mentor Scalia, a dissenter in Watters, along with Chief Justice Roberts. It's fun to speculate, and to do so is a parlor game of banking legal nerds who've got nothing better to do when a hard 28-hour billing day is done than to pontificate about which way the wind will blow in the hallowed chambers of the SCOTUS. Well, I've also got a Shiner Bock or three to consume, but I always have a few spare minutes to bloviate.
I've read the briefs (and I give a hat tip to the states rights folks for keeping me well-informed of their arguments). I think the states have given the Court sufficient ammunition, if it wants to halt the OCC for whatever public policy reasons the majority wants to use, to rationalize its way to a state-friendly decision. If the Court strictly follows precedent, however, I don't see how they get there. Perhaps I'll find out, along with a truckload of other surprised bank lawyers. Until then, I agree with Morrison & Forester partner L. Richard Fisher: "You expect the Supreme Court to decide the case on the law, and not on social policy."
I also agree with Arnold & Porter partner Howard Cayne, that the brief filed by Barney Frank and a few of his cohorts, which attempted to inform the court about the intent of Congress regarding the extent of OCC preemption, will play little, if any, role in the Court's decision.
"The brief filed by individual members of Congress does not represent the views of Congress as a whole and therefore deserves little weight in conveying anything about what Congress meant to do in the National Bank Act in 1864 or any later enactments," he said.
I get a charge out of Barney telling anyone what the intent of Congress might be, since the National Bank Act was adopted over 140 years ago. I mean he's old, but not THAT old. In fact, I would think any filing by Barney Frank might have a negative impact on the states' case. That's just a personal prejudice showing through, however. I've always had an unreasonably hostile reaction to circus clowns.
As I told a reporter for the National Law Journal a few weeks ago, I feel the states' pain, in an almost Bill Clintonian manner. Nevertheless, a decision against the OCC will be a major surprise. On the other hand (as I've previously speculated), I also think that a decision for the OCC will not stop, and may well increase pressure on, Democratic legislators, in league with a more libertarian and pro-state rights crowd, to push for a federal legislative solution. In fact, I think Barney and the Boyz will definitely push that wagon down the road a way if the SCOTUS again goes against the states.
