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.
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. …