When the Supreme Court agreed this month to hear yet another preemption case, legal experts began arguing over the reasons why.
The court gave no explanation Jan. 16 when it said it would take New York Attorney General Andrew Cuomo's case involving a state's right to get data from national banks to assess compliance with state discrimination laws. But it was only in April 2007 that the high court issued its decision in Watters v. Wachovia, which barred states from investigating federal institutions.
Some sources figure the justices merely want to confirm the scope of the Office of the Comptroller of the Currency's preemption powers. Others suspect the court wants to address how preemption relates to discrimination laws.
Several sources said the New York case offers Justice Clarence Thomas, who recused himself from the Watters case, a chance to weigh in on the issue. (He has recused himself numerous times from cases involving Wachovia Corp., which employed his son, but Wells Fargo & Co. bought Wachovia last month.)
Still, many observers remain surprised the court granted the petition, because preemption was widely considered a firm precedent.
"The tantalizing question is, having just decided" Watters, "what in the world are they doing with this case?" said Jonathan R. Macey, a professor at Yale University Law School. "I thought they decided the Watters case wrongly. But if you assume they decided the Watters case correctly, then what are they doing with this case?"
The new case stems from a 2005 investigation by the New York Attorney General's Office into whether several banking companies — including Citigroup Inc., JPMorgan Chase & Co., and Wells Fargo — made higher-priced mortgages to black and Hispanic borrowers than to white ones.
Mr. Cuomo, who inherited the case from his predecessor, Eliot Spitzer, argues that federal preemption does not block a state from prosecuting discriminatory lending practices. On the other side of the case is The Clearing House Association LLC, which represents several large banks and originally sued Mr. Spitzer for seeking the lending data.
The Clearing House won the case on appeal in late 2007.
But some observers say the Supreme Court has not said whether preemption speaks to an institution's practices that go beyond banking or consumer protection laws. The Watters decision specifically blocked states from charging subsidiaries of national banks with consumer violations.
"I was surprised they took this one," said Ron Glancz, a partner at Venable LLP. "But I think there may be some question as to the states' role, particularly with respect to the enforcement of antidiscrimination laws."
Art Wilmarth, a George Washington University law professor, agreed states may retain some enforcement powers.
"The ability of a state to enforce its antidiscrimination law is part of the state's general police power or authority to protect its residents from abusive transactions," he said.
Others said the court may want to spell out how far the OCC's authority reaches, including whether a state has enough "visitorial power" to simply gather information about an institution.
"The court's decision to grant cert in this case may well be to clarify the scope of the exclusivity of the OCC's visitorial powers," said Howard Cayne, a partner at Arnold & Porter LLP.
Greg Taylor, a vice president and senior counsel at the American Bankers Association, said the case "will provide even more finality" on preemption. "To the extent that Watters may have left anything open, this will make the law even more clear."
The Watters case was decided by a 5-3 vote. Justice Thomas is believed by some to have favored the dissent.
"Based on past records, one would suspect that he would be more inclined to the state side of things, which would potentially present a fourth vote," Prof. Wilmarth said.
"This case seems to be the strongest possible state sovereignty case I can imagine. That would attract Thomas, and then I would say: How would [Justices Anthony] Kennedy and [Samuel] Alito feel? They're at least potential swing votes."
Though the U.S. solicitor general urged the court not to take the case, the attorneys general of the 49 other states filed a brief in support of New York's position.
Watters was not the OCC's first victory. It has won four preemption cases over the past 15 years.
"This is a case over who has the authority to enforce the law against national banks. We have a long line of cases that have concluded that it is only the OCC that can enforce these laws," Mr. Cayne said.
Camden Fine, the chief executive of the Independent Community Bankers of America, agreed with that assessment.
"There must be a justice that wants to take a closer look at … the law, but I still believe, given the overwhelming body of court opinions, the OCC has never lost a jurisdiction case before the Supreme Court," Mr. Fine said.
"So while there may be a justice or two justices that have questions, that doesn't mean the OCC is going to lose that case."
The case is expected to be argued in April. The court asked New York to file its brief by Feb. 25. The Clearing House has until March 25 to respond.
The court is expected to issue a decision before its term ends in July.
