Toward a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws

By Fisher, Keith R. | Harvard Journal of Law & Public Policy, Summer 2006 | Go to article overview

Toward a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws


Fisher, Keith R., Harvard Journal of Law & Public Policy


Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but also to their state-chartered operating subsidiaries. The regulations threaten both to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state's sovereign authority over corporations chartered under its laws. Yet federal courts reviewing these initiatives have failed to devote any substantial analysis to challenges based on the Tenth Amendment. That failure is likely a consequence of the lack of any substantial doctrinal base in Tenth Amendment jurisprudence. This Article first explores the legal and policy implications of the preemption program and identifies the consumer protection interests at stake and the States' role in vindicating those interests. It then considers the importance of judicial review to the Framers' federalism design and endeavors to distill from their commentary and debates some substantive content for the Tenth Amendment that federal courts could credibly enforce. The Article concludes by suggesting a template for doctrinal analysis of Tenth Amendment issues arising from federal administrative action.

INTRODUCTION

After a promising start in life with the pedigree of the original Bill of Rights, the Tenth Amendment (1) fell into disrepute because of its role in the legal apparatus of racial discrimination. (2) It has since been alternatively dismissed as constitutional surplusage--a mere "truism" (3)--and honored as an "independent font of sovereignty." (4) In its periodic bouts with the commerce power, the Tenth Amendment has escaped precise or consistent analysis of its substantive content. It has been characterized as a "flimsy aid in withstanding federal power," (5) a "limit[] upon the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce," (6) a "thinly veiled rationalization" for judicial second-guessing of Congress's policy choices, (7) a "tautology" (that is, any powers reserved to the States are self-evidently a limitation on Congress's Article I enumerated powers), (8) a "misguided doctrine," (9) the basis for a "counter insurgency," (10) playing an "integral role ... in our constitutional theory," (11) and a "constitutional frog that turned into a prince ... [and] back into a frog." (12)

Federal intervention into the domain of commercial activities traditionally regulated by the States poses "perhaps our oldest question of constitutional law," (13) namely, the appropriate spheres of the sovereign authority of the federal and state governments and the proper relationship between them under our constitutional scheme. It also exposes the uneasy tension between the Commerce Clause (14) and the Tenth Amendment that has persisted for over 200 years of constitutional jurisprudence. Apart from the superficial clarity provided by cases such as New York v. United States (15) and Printz v. United States, (16) which bar congressional exercise of the commerce power in a manner that would "commandeer" state legislatures or executive branch officials, Tenth Amendment jurisprudence remains chaotic, conflicting, and rather rudimentary. It is astonishing that the meaning of a single declarative sentence enshrined in the Bill of Rights has evaded judicial construction establishing, at a minimum, some bedrock level of state sovereignty upon which the federal government cannot impinge.

In a previous decision, also named New York v. United States, the Court upheld the constitutionality of federal taxes on New York's sale of mineral waters from a spa in Saratoga Springs notwithstanding the state's claim that it was exercising an "essential government function." (17) That line of argument would not come to fruition until thirty years later in National League of Cities v.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Toward a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.