Yes, I know. You're all stunned into silence by the fact that today's post is about today's Watters v. Wachovia decision. After all, I've only blogged on the subject of federal preemption generally, and specifically on this case, maybe more times than the late Anna Nicole Smith created potential fathers of her future offspring. But, since I haven't had a chance to read the decision in detail and to think about it, I'll only be able to give a few off-the-cuff preliminary observations. For in-depth snark, you'll just have to "hold your Watter" (couldn't resist).
ScotusBlog has its usual fine roundup of news articles discussing the decision. Differing preliminary reactions and analysis can be garnered there.
Now, I'm not the kind of guy who shouts "I told you so," as I'd be entitled to do in light of my July 26, 2005 posting on this issue, when I said, "National banks and their operating subsidiaries are clearly preempted from the application of these types of state laws." No, but I will repeat "I told you so," over and over again in a Ben Stein-like soft monotone until you grab a taser and come after me.
Man, that NAR "friend-of-the-court" brief on behalf of Watters must have been persuasive, eh?
As I expected after the oral arguments, Justice Ginsberg appeared to be the OCC's "best buddy," and the fact that she wrote the majority opinion comes as no surprise. Roberts' and Scalia's dissent also is less 
than surprising, given their comments and questions during oral arguments. That Alito sided with strong federal preemption, and that Stevens sided with Scalia on anything, might appear to raise an eyebrow, but only on The Rock, who raises his eyebrow as a reflex. It just goes to show you that most of the time you're standing there looking for a fastball, the pitcher will throw you his changeup.
Justice Thomas continued to recuse himself and, therefore, remained inscrutable. Still Watters often run deep, don't they?
So much for pundits (and some wishful thinkers) who thought that the fact that the Supreme Court agreed to hear the appeal in the first place, in the face of an absence of disagreement among the federal
circuit courts of appeal, indicated that a majority of the court wished to put the brakes on the OCC's expansive interpretation of federal preemtion. As I blurted out inadvertently last year, it was just as likely that the SCOTUS wanted to stop the futile resistance of states' rights rear guard freedom fighters to the Borg's OCC's planting of operating subsidiary seed pods in every nook and cranny of our economy.
As for the backstop argument that Tenth Amendment poses any obstacle to federal preemption in this area, Justice Ginsberg gave that contention a dismissive wave of a limp wrist.
Watters’ alternative argument, that 12 CFR §7.4006 violates the Tenth Amendment to the Constitution, is unavailing. As we have previously explained, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U. S. 144, 156 (1992). Regulation of national bank operations is a prerogative of Congress under the Commerce and Necessary and Proper Clauses. See Citizens Bank v. Alafabco, Inc., 539 U. S. 52, 58 (2003) (per curiam). The Tenth Amendment, therefore, is not implicated here.
That's it. That's the extent of the 10th Amendment discussion. "As we have previously explained..." What she also wanted to say, but did not "and which you states' rights dead-enders can't seem to get through your thick reactionary skulls...MMMMWWAAAAAHAHAHAHA!!!!" She then circled the room three times on her broom, flanked by her flying monkey wingmen, before settling back into her seat to continue her incantations from the Dark Side of federalism.
Bankers were overjoyed.
"Avoiding a patchwork of duplicative and conflicting federal and state regulation makes it easier for national banks to grant credit to customers across state lines," said Ed Yingling, president of the American Bankers Association.
I HATE a patchwork. Hate it in my pants, hate it in my banking regulations.
Thrifts were also elated.
"[The decision] reaffirms a long line of cases that support federal preemption for national banks and their operating subsidiaries," said Patricia A. Milon, chief legal officer, American (sic) Community Bankers, according to a statement.
The OCC did not publicly gloat. They acted as magnanimously as you would expect of a benevolent dictator.
We are pleased that the Court’s decision supports the ability of national banks to continue to conduct business activities in their operating subsidiaries as they are now doing. We will continue to supervise national banks and their subsidiaries to assure that their customers are treated fairly and receive the strong protections available under federal laws and regulations.
Behind closed doors, however, were heard the honks of party horns, screams of "In your FACE!" and "Don't you BRING that weak-a** Tenth Amendment into MY house!", and, as Comptroller Dugan entered the room, shouts of "Hail Caesar!"
OTS Director John Reich piped in with a hearty "me, too."
Director John Reich noted that, “implicit in the Court’s decision is recognition of an important public policy served by a nationwide lending standard for U.S. chartered depository institutions and their subsidiaries that are already subject to federal law.” He added, “today’s decision is consistent with the Court’s decision in 1982, in Fidelity Federal Savings and Loan Assn. v. De la Cuesta, in which the Court then recognized the ability of federal thrifts to operate under nationwide standards administered exclusively by the OTS.”
Dugan sighed and smiled indulgently at the "tag along" so typical of the OCC's little brother. Hey, OTS, this day belongs to the OCC. Quit riding on its coattails. "Implicit" my shish kabob!
There was some speculation that state regulators and their enablers (including NAR and the rest of the anti-OCC crowd) will take their fight to Congress, perhaps as part of the threatened predatory lending and/or subprime lending legislation. Fat chance of success there, says this corner of the peanut gallery, although with this Congress, who can say with any certainty? Barney and the boys will definitely use the threat of a federal legislative clipping of the wings to pressure the OCC to become a more robust enforcer of state consumer protection laws.
Now that the OCC's position on this issue has been vindicated, I suppose that saves the bacon of those cheeky Department of Homeland Security lawyers who, in an advance notice of proposed rulemaking that Texas Tech law professor Ann Graham jumped all over in January, cited the OCC's brief in the Watters v. Wachovia case in support of expansive federal preemption. They'll now have an actual decision to use as precedent, which is always preferable, even to an administration that tends to push the envelope of the law at every opportunity.