Federalism, Consumer Protection and Preemption: A Case for Heightened Judicial Review
35 Pages Posted: 7 Sep 2005
Date Written: September 2005
Should courts defer to the preemption decisions of federal agencies? The Supreme Court has not settled the controversy generated by this issue, and Circuit Courts have divided on the question. The focus in past case law and in the literature has been on agency versus judicial expertise. This article examines another aspect of the question - agency bias. It presents a case study of the actions of the Comptroller of the Currency (OCC) in the 1992-2005 period and compares that agency's stance to that of the FDIC. The conclusion drawn is that the OCC has not served as an unbiased forum for resolving disputes over preemption. Instead it has exhibited an overly aggressive viewpoint - ignoring the evolution of Supreme Court doctrine, ignoring legislative history and embracing the interests of the banking industry while minimizing the interests of consumers and state governments. Heightened judicial review of agency decisions tainted by self-interest is necessary.
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