Federalism, Consumer Protection and Regulatory Preemption: A Case for Heightened Judicial Review
U of Pennsylvania Journal of Business and Employment Law, Vol. 10, p. 273, 2008
32 Pages Posted: 2 Apr 2008
This Article explores agency power to preempt state consumer protection legislation. It presents a case study of preemption based on an aggressive posture toward non-acquiescence on the part of the Comptroller of the Currency. The non-acquiescence documented is not only to the uniform decisions of the circuit courts, but also to the United States Supreme Court's statements of the law governing conflict preemption in the field of banking law. The case study also documents agency non-acquiescence to the stated intent of Congress, whenever available in a statute's legislative history. This aggressive posture toward non-acquiescence is a troubling assertion of executive power because of the lack of effective judicial review. The Article documents that under the Chevron deferential standard of review, executive power to broadly set aside state law will not be effectively restrained. The conclusion is that heightened judicial review is justified at least when an agency exhibits that it has not acted as an unbiased forum for the claims of affected industry members, consumers and state governments.
Keywords: Consumer protection, preemption, agency nonacquiescence, banking law, Chevron deference
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