CUOMO, ATTORNEY GENERAL OF NEW YORK v. CLEARING HOUSE ASSOCIATION, L. L. C., ET AL.
No. 08-453
SUPREME COURT OF THE UNITED STATES
Argued April 28, 2009—Decided June 29, 2009
557 U.S. 519
Barbara D. Underwood, Solicitor General of New York, argued the cause for petitioner. With her on the briefs were Andrew M. Cuomo, Attorney General, pro se, Michelle Aronowitz, Deputy Solicitor General, and Richard Dearing, Assistant Solicitor General.
Deputy Solicitor General Stewart argued the cause for the federal respondent. With him on the brief were Solicitor General Kagan, Matthew D. Roberts, Julie L. Williams, Daniel P. Stipano, Horace G. Sneed, and Douglas B. Jordan. Seth P. Waxman argued the cause for respondent Clearing House Association, L. L. C. With him on the brief were Edward C. DuMont, Catherine M. A. Carroll, Christopher R. Lipsett, Noah A. Levine, Anne K. Small, H. Rodgin Cohen, Robinson B. Lacy, and Michael M. Wiseman.*
*Briefs of amici curiae urging reversal were filed for Members of Congress by Linda Singer and David Reiser; for the State of North Carolina et al. by Roy Cooper, Attorney General of North Carolina, Christopher G. Browning, Jr., Solicitor General, Gary R. Govert, Special Deputy Attorney General, and Philip A. Lehman, Assistant Attorney General, and by the Attorneys General and other officials for their respective jurisdictions as follows: Troy King, Attorney General of Alabama, Richard A. Svobodny,
Briefs of amici curiae urging affirmance were filed for All Former Comptrollers of the Currency Since 1973 by Drew S. Days III, L. Richard Fischer, Seth M. Galanter, Howard N. Cayne, Laurence J. Hutt, and Nancy L. Perkins; for the American Bankers Association et al. by Theodore B. Olson, Mark A. Perry, and Amir C. Tayrani; for the Chamber of Commerce of the United States of America by Sri Srinivasan, Robin S. Conrad, and Amar D. Sarwal; and for the Financial Services Roundtable by Robert A. Long, Jr., Stuart C. Stock, Keith A. Noreika, and Hal S. Scott.
JUSTICE SCALIA delivered the opinion of the Court.
In 2005, Eliot Spitzer, Attorney General for the State of New York, sent letters to several national banks making a request “in lieu of subpoena” that they provide certain nonpublic information about their lending practices. He sought this information to determine whether the banks had violated the State‘s fair-lending laws. Spitzer‘s successor in office, Andrew Cuomo, is the petitioner here. Respondents, the federal Office of the Comptroller of the Currency (Comptroller or OCC) and the Clearing House Association, a banking trade group, brought suit to enjoin the information request, claiming that the Comptroller‘s regulation promulgated under the National Bank Act prohibits that form of state law enforcement against national banks.
The United States District Court for the Southern District of New York entered an injunction in favor of respondents, prohibiting the Attorney General from enforcing state fair-lending laws through demands for records or judicial proceedings. The United States Court of Appeals for the Second Circuit affirmed. 510 F. 3d 105 (2007). We granted certiorari. 555 U. S. 1130 (2009). The question presented is whether the Comptroller‘s regulation purporting to pre-
I
Section 484(a) of Title 12 U. S. C., a provision of the National Bank Act, 13 Stat. 99, reads as follows:
“No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized.”
The Comptroller, charged with administering the National Bank Act, adopted, through notice-and-comment rulemaking, the regulation at issue here designed to implement the statutory provision. Its principal provisions read as follows:
Ҥ7.4000 Visitorial powers.
“(a) General rule. (1) Only the OCC or an authorized representative of the OCC may exercise visitorial powers with respect to national banks, except as provided in paragraph (b) of this section. State officials may not exercise visitorial powers with respect to national banks, such as conducting examinations, inspecting or requiring the production of books or records of national banks, or prosecuting enforcement actions, except in limited circumstances authorized by federal law. However, production of a bank‘s records (other than nonpublic OCC information under
12 CFR part 4, subpart C ) may be required under normal judicial procedures.“(2) For purposes of this section, visitorial powers include:
“(i) Examination of a bank;
“(ii) Inspection of a bank‘s books and records;
“(iii) Regulation and supervision of activities authorized or permitted pursuant to federal banking law; and
“(iv) Enforcing compliance with any applicable federal or state laws concerning those activities.”
12 CFR §7.4000 (2009).
By its clear text, this regulation prohibits the States from “prosecuting enforcement actions” except in “limited circumstances authorized by federal law.”
Under the familiar Chevron framework, we defer to an agency‘s reasonable interpretation of a statute it is charged with administering. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). There is necessarily some ambiguity as to the meaning of the statutory term “visitorial powers,” especially since we are working in an era when the prerogative writs—through which visitorial powers were traditionally enforced—are not in vogue. The Comptroller can give authoritative meaning to the statute within the bounds of that uncertainty. But the presence of some uncertainty does not expand Chevron deference to cover virtually any interpretation of the National Bank Act. We can discern the outer limits of the term “visitorial powers” even through the clouded lens of history. They do not include, as the Comptroller‘s expansive regulation would provide, ordinary enforcement of the law. Evidence from the time of the statute‘s enactment, a long line of our own cases, and application of normal principles of construction to the National Bank Act make that clear.
A
Historically, the sovereign‘s right of visitation over corporations paralleled the right of the church to supervise its institutions and the right of the founder of a charitable institution “to see that [his] property [was] rightly employed,” 1 W. Blackstone, Commentaries on the Laws of England 469 (1765). By extension of this principle, “[t]he king [was] by law the visitor of all civil corporations,” ibid. A visitor could inspect and control the visited institution at will.
This relationship between sovereign and corporation was understood to allow the States to use prerogative writs—such as mandamus and quo warranto—to exercise control “whenever a corporation [wa]s abusing the power given it . . . or acting adversely to the public, or creating a nuisance.” H. Wilgus, Private Corporations, in 8 American Law and Procedure § 157, pp. 224-225 (J. Hall ed. 1910). State visitorial commissions were authorized to “exercise a general supervision” over companies in the State. I. Wormser, Private Corporations § 80, pp. 100, 101, in 4 Modern American Law (1921).
B
Our cases have always understood “visitation” as this right to oversee corporate affairs, quite separate from the power to enforce the law. In the famous Dartmouth College case, Justice Story, describing visitation of a charitable corporation, wrote that Dartmouth was “subject to the controling authority of its legal visitor, who . . . may amend and repeal its statutes, remove its officers, correct abuses, and generally superintend the management of [its] trusts,” and who is “liable to no supervision or control.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 676, 681
In Guthrie, supra, we held that a shareholder acting in his role as a private individual was not exercising a “visitorial power” under the National Bank Act when he petitioned a court to force the production of corporate records, id., at 159. “[C]ontrol in the courts of justice,” we said, is not visitorial, and we drew a contrast between the nonvisitorial act of “su[ing] in the courts of the State” and the visitorial “supervision of the Comptroller of the Currency,” id., at 159, 157.
In First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640 (1924), we upheld the right of the Attorney General of Missouri to bring suit to enforce a state anti-bank-branching law against a national bank. We said that only the United States may perform visitorial administrative oversight, such as “inquir[ing] by quo warranto whether a national bank is acting in excess of its charter powers.” Id., at 660. But if a state statute of general applicability is not substantively
Our most recent decision, Watters v. Wachovia Bank, N. A., 550 U. S. 1 (2007), does not, as the dissent contends, post, at 552, “suppor[t] OCC‘s construction of the statute.” To the contrary, it is fully in accord with the well established distinction between supervision and law enforcement. Watters held that a State may not exercise “‘general supervision and control‘” over a subsidiary of a national bank, 550 U. S., at 8, because “multiple audits and surveillance under rival oversight regimes” would cause uncertainty, id., at 21. “[G]eneral supervision and control” and “oversight” are worlds apart from law enforcement. All parties to the case agreed that Michigan‘s general oversight regime could not be imposed on national banks; the sole question was whether operating subsidiaries of national banks enjoyed the same immunity from state visitation. The opinion addresses and answers no other question.
The foregoing cases all involve enforcement of state law. But if the Comptroller‘s exclusive exercise of visitorial powers precluded law enforcement by the States, it would also preclude law enforcement by federal agencies. Of course it does not. See, e. g., Bank of America Nat. Trust & Sav. Assn. v. Douglas, 105 F. 2d 100, 105-106 (CADC 1939) (Secu-
In sum, the unmistakable and utterly consistent teaching of our jurisprudence, both before and after enactment of the National Bank Act, is that a sovereign‘s “visitorial powers” and its power to enforce the law are two different things. There is not a credible argument to the contrary. And contrary to what the Comptroller‘s regulation says, the National Bank Act pre-empts only the former.
C
The consequences of the regulation also cast doubt upon its validity. No one denies that the National Bank Act leaves in place some state substantive laws affecting banks. See Brief for Federal Respondent 20; Brief for Respondent Clearing House Association, L. L. C. 29; post, at 552. But the Comptroller‘s rule says that the State may not enforce its valid, non-pre-empted laws against national banks. Post, at 552-553. The bark remains, but the bite does not.
The dissent admits, with considerable understatement, that such a result is “unusual,” post, at 556. “Bizarre” would be more apt. As the Court said in St. Louis:
“To demonstrate the binding quality of a statute but deny the power of enforcement involves a fallacy made apparent by the mere statement of the proposition, for such power is essentially inherent in the very conception of law.” 263 U. S., at 660.
In sharp contrast to the “unusual” reading propounded by the Comptroller‘s regulation, reading “visitorial powers” as limiting only sovereign oversight and supervision would produce an entirely commonplace result—the precise result contemplated by our opinion in St. Louis, which said that if a state statute is valid as to national banks, “the corollary that it is obligatory and enforceable necessarily results.”
This reading is also suggested by § 484(a)‘s otherwise inexplicable reservation of state powers “vested in the courts of justice.” As described earlier, visitation was normally conducted through use of the prerogative writs of mandamus and quo warranto. The exception could not possibly exempt that manner of exercising visitation, or else the exception would swallow the rule. Its only conceivable purpose is to preserve normal civil and criminal lawsuits. To be sure, the reservation of powers “vested in the courts of justice” is phrased as an exception from the prohibition of visitorial powers. But as we have just discussed, it cannot possibly be that, and it is explicable only as an attempt to make clear that the courts’ ordinary powers of enforcing the law are not affected.3
II
The Comptroller‘s regulation, therefore, does not comport with the statute. Neither does the Comptroller‘s interpretation of its regulation, which differs from the text and must be discussed separately.
Evidently realizing that exclusion of state enforcement of all state laws against national banks is too extreme to be contemplated, the Comptroller sought to limit the sweep of its regulation by the following passage set forth in the agency‘s statement of basis and purpose in the Federal Register:
“What the case law does recognize is that ‘states retain some power to regulate national banks in areas such as contracts, debt collection, acquisition and transfer of property, and taxation, zoning, criminal, and tort law.’ [citing a Ninth Circuit case.] Application of these laws to national banks and their implementation by state
authorities typically does not affect the content or extent of the Federally-authorized business of banking . . . but rather establishes the legal infrastructure that surrounds and supports the ability of national banks . . . to do business.” 69 Fed. Reg. 1896 (2004) (footnote omitted).
This cannot be reconciled with the regulation‘s almost categorical prohibition in
III
The dissent fails to persuade us. Its fundamental contention—that the exclusive grant of visitorial powers can be interpreted to preclude state enforcement of state laws—rests upon a logical fallacy. The dissent establishes, post, at 541-543 (and we do not at all contest), that in the course of exercising visitation powers the sovereign can compel compliance with the law. But it concludes from that, post, at 545, that any sovereign attempt to compel compliance with the law can be deemed an exercise of the visitation power. That conclusion obviously does not follow. For example, in the course of exercising its visitation powers, the sovereign can assuredly compel a bank to honor obligations that are in default. Does that mean that the sovereign‘s taking the same action in executing a civil judgment for payment of those obligations can be considered an exercise of the visitation power? Of course not. Many things can be compelled through the visitation power that can be compelled through the exercise of other sovereign power as well. The critical question is not what is being compelled, but what sovereign power has been invoked to compel it. And the power to enforce the law exists separate and apart from the power of visitation.
The dissent argues that the Comptroller‘s expansive reading of “visitorial powers” does not intrude upon “the his-
States, on the other hand, have always enforced their general laws against national banks—and have enforced their banking-related laws against national banks for at least 85 years, as evidenced by St. Louis, in which we upheld enforcement of a state anti-bank-branching law, 263 U. S., at 656. See also Anderson Nat. Bank v. Luckett, 321 U. S. 233, 237, 248-249 (1944) (state commissioner of revenue may enforce abandoned-bank-deposit law against national bank through “judicial proceedings“); State ex rel. Lord v. First Nat. Bank of St. Paul, 313 N. W. 2d 390, 393 (Minn. 1981) (state treasurer may enforce general unclaimed-property law with “specific provisions directed toward” banks against national bank); Clovis Nat. Bank v. Callaway, 69 N. M. 119, 130-132, 364 P. 2d 748, 756 (1961) (state treasurer may enforce
The dissent seeks to minimize the regulation‘s incursion upon state powers by claiming that the regulation does not “declare the pre-emptive scope of the [National Bank Act]” but merely “interpret[s] the term ‘visitorial powers.‘” Post, at 555. That is much too kind. It is not without reason that the regulation is contained within a subpart of the Comptroller‘s regulations on “Bank Activities and Operations” that is entitled “Preemption.” The purpose and function of the statutory term “visitorial powers” is to define and thereby limit the category of action reserved to the Federal Government and forbidden to the States. Any interpretation of “visitorial powers” necessarily “declares the pre-emptive scope of the NBA,” ibid. What is clear from logic is also clear in application: The regulation declares that “[s]tate officials may not . . . prosecut[e] enforcement actions.”
IV
Applying the foregoing principles to this case is not difficult. “Visitorial powers” in the National Bank Act refers to a sovereign‘s supervisory powers over corporations. They include any form of administrative oversight that allows a sovereign to inspect books and records on demand, even if the process is mediated by a court through prerogative writs or similar means. The Comptroller reasonably interpreted this statutory term to include “conducting examinations [and] inspecting or requiring the production of books or rec-
When, however, a state attorney general brings suit to enforce state law against a national bank, he is not acting in the role of sovereign-as-supervisor, but rather in the role of sovereign-as-law-enforcer. Such a lawsuit is not an exercise of “visitorial powers,” and thus the Comptroller erred by extending the definition of “visitorial powers” to include “prosecuting enforcement actions” in state courts, §7.4000.
The request for information in the present case was stated to be “in lieu of” other action; implicit was the threat that if the request was not voluntarily honored, that other action would be taken. All parties have assumed, and we agree, that if the threatened action would have been unlawful the request-cum-threat could be enjoined. Here the threatened action was not the bringing of a civil suit, or the obtaining of a judicial search warrant based on probable cause, but rather the Attorney General‘s issuance of subpoena on his own authority under New York Executive Law, which permits such subpoenas in connection with his investigation of “repeated fraudulent or illegal acts . . . in the carrying on, conducting or transaction of business.” See
Accordingly, the injunction below is affirmed as applied to the threatened issuance of executive subpoenas by the Attorney General for the State of New York, but vacated insofar as it prohibits the Attorney General from bringing judicial enforcement actions.
*
*
*
The judgment of the Court of Appeals is affirmed in part and reversed in part.
It is so ordered.
The Court holds that the term “visitorial powers” as used in the National Bank Act (NBA),
I
A
The NBA provides that “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized.”
This Court‘s decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), provides the framework for deciding this case. “In Chevron, this Court held that ambiguities in statutes within an agency‘s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005). Accordingly, “[i]f a statute is ambiguous, and if the implementing agency‘s construction is reasonable, Chevron requires a federal court to accept the agency‘s construction of the statute, even if the agency‘s reading differs from what the court believes is the best statutory interpretation.” Ibid.
OCC is “the administrator charged with supervision of the [NBA],” NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 256 (1995), and it acted through notice-and-comment rulemaking procedures in promulgating the regulation at issue in this case, see 69 Fed. Reg. 1895 (2004). As a result,
B
The majority concedes that there is “some ambiguity as to the meaning of the statutory term ‘visitorial powers.‘” Ibid. Yet it concludes that OCC‘s interpretation of
Because the NBA does not define “visitorial powers,” the ordinary meaning of the words chosen by Congress provides the starting point for interpreting the statute. See Dean v. United States, 556 U.S. 568, 572 (2009) (“We start, as always, with the language of the statute” (internal quotation marks omitted)); Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning“). In 1864, when the NBA was enacted, “visitation” was generally defined as “[i]nspection; superintendence; direction; [and] regulation.” 2 A. Burrill, A Law Dictionary and Glossary 598 (2d ed. 1860); see also 2 J. Bouvier, A Law Dictionary 633 (rev. 4th ed. 1852) (defining “visitation” as “[t]he act of examining into the affairs of a corporation“). With respect to civil corporations, “visitation” was conducted “by the government itself, through the medium of the courts of justice.” Id., at 634. The Court has previously looked to these definitions in examining the meaning of “visitorial powers” for purposes of the NBA. See Guthrie v. Harkness, 199 U.S. 148, 158 (1905).
On the other hand, as the majority concludes, “visitorial powers” could be limited to conducting examinations of national banks or otherwise interfering with their internal operations. To support this argument, the majority briefly alludes to the common-law history of visitation. See ante, at 525-526; see also United States v. Shabani, 513 U.S. 10, 13 (1994) (“[A]bsent contrary indications, Congress intends to adopt the common law definition of statutory terms“). In so doing, the majority fully accepts petitioner‘s argument that “Congress invoked a then-familiar common law term of corporate governance—visitation—to clarify that the States, traditionally the supervisors of private corporations doing business within their jurisdictions, had no authority to examine the condition of a national bank, respond to any perceived financial risk, or hold the bank to its charter or the laws of its creation.” Brief for Petitioner 21-22. Under the majority‘s view, any construction of
But contrary to the majority‘s determination, the common-law tradition does not compel the conclusion that petitioner‘s definition of visitation is the only permissible in
With respect to churches, charities, and universities, a visitor‘s duties were narrow. In the university setting, for example, the “power of the visitor [was] confined to offences against the private laws of the college; he ha[d] no cognizance of acts of disobedience to the general laws of the land.” 2 S. Kyd, Law of Corporations 276 (1794) (emphasis in original). The visitor‘s duties were equally narrow in the governance of ecclesiastical and charitable institutions. See 1 W. Blackstone, Commentaries on the Laws of England 467-472 (1765); Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 673-677 (1819) (Story, J., concurring). If the sweep of a visitor‘s authority with respect to civil corporations was the same, the majority would have a stronger argument that the “visitorial powers” prohibition was similarly limited. See ante, at 525-526. However, the common-law tradition instead suggests that visitorial powers were broader with respect to civil corporations, including banks.
Historically, visitorial authority over civil corporations was exercised only by the sovereign who had broad authority to assure compliance with generally applicable laws. See Blackstone, supra, at 469 (“The king being thus constituted by law the visitor of all civil corporations, the law has also appointed the place, wherein he shall exercise this jurisdiction: which is the court of king‘s bench; where, and where only, all misbehaviors of this kind of corporations are enquired into and redressed, and all their controversies de
States have traditionally exercised their visitorial powers over civil corporations by invoking the authority of the judiciary to “compel domestic corporations or their officers to perform specific duties incumbent on them by reason of their charters, or under statutes or ordinances or imposed by the common law.” Pound, supra, at 375 (emphasis added); see also S. Merrill, Law of Mandamus § 158, p. 194 (1892) (explaining that “under the visitorial power of the state, any breach of duty by a private corporation may be corrected by” the writ of mandamus and that the duty “may be imposed by [the corporation‘s] charter, by the general statutes, or by the common law” (footnotes omitted)). As Merrill explained, such actions were employed to compel common carriers and certain other civil corporations to adhere to “statutory or common law” duties, including the duty to “exten[d] to all without discrimination the use of their services.” Id., § 162, at 200; see also J. Grant, A Practical Treatise on the Law of Corporations in General, As Well Aggregate as Sole 262
Even before enactment of the NBA, several States enacted laws granting banking commissioners specific authority to investigate compliance with generally applicable laws and to use the courts to ensure observance therewith. See, e. g., Act of Feb. 23, ch. 14, § 2, 1838 Mass. Acts p. 303 (authorizing banking commissioners to “visit” a bank and “examine all [its] affairs” to determine whether it had “complied with the provisions of law applicable to [its] transactions“); Act of May 14, ch. 363, § 12, 1840 N. Y. Laws pp. 307-308 (authorizing banking commissioners to bring judicial actions against banks “found to have violated any law of this state . . . in the same manner and with the like effect as any incorporated bank may be proceeded against for a violation of its
Petitioner contends, and the majority agrees, that this understanding of the common law confuses the sovereign‘s “enforcement of general laws that apply equally to all actors within a State, like the ban on discrimination found in
The Wisconsin Supreme Court‘s decision in Attorney General v. Chicago & Northwestern R. Co., 35 Wis. 425 (1874)—which has been referred to as “the leading American case for the visitorial jurisdiction of equity,” Pound, 49 Harv. L. Rev., at 380—illustrates the point. In that case, the state attorney general sought a writ of injunction to “restrain the two defendant companies from exacting tolls for the carriage of passengers or freight in excess of the maximum rates established by” Wisconsin law, 35 Wis., at 432. The attorney general “appl[ied] for the writ on behalf of the public,” id.,
As a result, the majority‘s conclusion that when “a state attorney general brings suit to enforce state law against a national bank, he is not acting in the role of sovereign-as-supervisor, but rather in the role of sovereign-as-law-enforcer,” ante, at 536, cannot be reconciled with this leading case or the general common-law understanding on which the decision rests. At common law, all attempts by the sovereign to compel civil corporations to comply with state law—whether through administrative subpoenas or judicial actions—were visitorial in nature. Thus, even if the sovereign‘s law enforcement and visitorial powers were at one time distinct, by common law, they had merged at least with respect to the enforcement of generally applicable public laws against civil corporations. See Thompson, supra, § 460, at 556 (“The police power, in its visitorial aspect, as exercised by congress and the several states, extends to the minutest details of the banking business” (emphasis added)). By construing visitation so narrowly, the majority implicitly rejects the efforts of William Blackstone, James Kent, and Roscoe Pound, see supra, at 541-542, in elucidating the historical meaning of this concept. Like OCC, each of these venerable legal scholars understood visitation of civil corporations to include the power to enforce generally applicable laws through judicial actions. See ibid.
Thus, although the text and history of visitation do not authoritatively support either party‘s construction of the statute, OCC‘s decision to adopt a more modest construction than could have been supported by the common-law and dictionary definition reinforces the reasonableness of its regulation. Put simply, OCC selected a permissible construction of a statutory term that was susceptible to multiple interpretations.
C
Petitioner nonetheless argues that the original structure of the NBA compels us to adopt his reading of “visitorial powers.” When enacted in 1864, the “visitorial powers” clause was preceded by a statutory provision directing the Comptroller of the Currency to appoint persons “to make a thorough examination into all the affairs of [every banking] association” and to “make a full and detailed report of the condition of the association to the comptroller.” Act of June 3, 1864, ch. 106, § 54, 13 Stat. 116. In addition, the “visitorial powers” clause was succeeded by a sentence concerning the
Petitioner‘s argument is undermined, however, by other structural attributes of this subchapter. In
Other exceptions in
In sum, the NBA‘s structure does not compel the construction of
D
The majority also accepts petitioner‘s contention that OCC‘s construction of “visitorial powers” is unreasonable because it conflicts with several of this Court‘s decisions. See ante, at 526-529. But petitioner cannot prevail by simply showing that this Court previously adopted a construction of
This Court‘s only decision directly addressing the meaning of “visitorial powers” is Guthrie, which held that the NBA did not prohibit a suit brought by a private shareholder seeking to inspect the books of a national bank, 199 U.S., at 157. In so holding, the Court contrasted “the private right of the shareholder to have an examination of the business in which he is interested” with a visitor‘s “public right” to examine “the conduct of the corporation with a view to keeping it within its legal powers.” Id., at 158-159. Guthrie thus draws a line between enforcement of private rights and the public act of visitation that is consistent with the definition of visitation embraced by OCC. See id., at 158 (“In no case or authority that we have been able to find has there been a definition of this right, which would include the private right of the shareholder to have an examination of the business in which he is interested . . .“). The agency has never taken the position that the “visitorial powers” prohibition extends to private action.
Nor does this Court‘s decision in First Nat. Bank in St. Louis v. Missouri, 263 U.S. 640 (1924) (St. Louis), foreclose OCC‘s construction of the statute. In that case, the State of Missouri brought a quo warranto proceeding in state court “to determine [the national bank‘s] authority to establish and conduct a branch bank in the City of St. Louis.” Id., at 655. The Court first held that federal law did not authorize national banks to engage in branch banking. See id., at 656-659. “Having determined that the power sought to be exercised by the bank finds no justification in any law or authority of the United States,” the Court then concluded that “the way is open for the enforcement of the state statute.” Id., at 660.
Respondents counter that the holding of St. Louis is not so broad. In their view, the Court held only that a State may enforce its laws against a national bank when federal law grants the bank no authority to engage in the underlying activity at issue. See Brief for Respondent Clearing House Association 33-34. Here, federal law expressly authorizes national banks to make mortgage loans. See
There is no need to decide which party has the better argument. The St. Louis decision nowhere references
As the Court explained, although “the Michigan provisions at issue exempt[ed] national banks from coverage . . . [t]his [was] not simply a matter of the Michigan Legislature‘s grace. For, as the parties recognize, the NBA would have preemptive force, i. e., it would spare a national bank from state controls of the kind here involved.” Id., at 13 (citations omitted); see ibid. (explaining that “real estate lending, when conducted by a national bank, is immune from state visitorial control“). The Court‘s conclusion in Watters that
II
Petitioner also argues that three different background principles trigger a clear-statement rule that overcomes any Chevron deference to which OCC‘s construction of
First, petitioner contends that OCC‘s regulation, which interprets
National banks are created by federal statute and therefore are subject to full congressional control. The States “can exercise no control over them, nor in any wise affect their operation, except in so far as Congress may see proper to permit.” Farmers’ and Mechanics’ Nat. Bank v. Dearing, 91 U.S. 29, 34 (1875); see also Watters, 550 U. S., at 10 (“Nearly 200 years ago, in McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court held federal law supreme over state law with respect to national banking“). As a result, the only question presented by this case is whether Congress has seen it “proper to permit” the States to enforce state fair lending laws against national banks. OCC‘s reasonable conclusion that
Second, petitioner argues that a clear statement is required because “the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). There should be no presumption against pre-emption because Congress has expressly pre-empted state law in this case. See Altria Group, Inc. v. Good, 555 U. S. 70, 98 (2008) (THOMAS, J., dissenting) (“[T]he presumption against pre-emption ‘dissolves once there is conclusive evidence of intent to pre-empt in the express words of the statute itself‘” (quoting Cipollone v. Liggett Group, Inc., 505 U. S. 504, 545 (1992) (SCALIA, J., concurring in judgment in part and dissenting in part))); see, e. g., Riegel v. Medtronic, Inc., 552 U.S. 312, 315-316 (2008) (construing the express pre-emption provision of the Medical Device Amendments of 1976,
In any event, this presumption is “not triggered when the State regulates in an area where there has been a history of significant federal presence.” United States v. Locke, 529 U. S. 89, 108 (2000). National banking is the paradigmatic example. “In defining the pre-emptive scope of statutes and regulations granting a power to national banks,” this Court has taken the firm view that “normally Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress explicitly granted.” Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 33 (1996). As a result, federal legislation concerning national banks is “not normally limited by, but rather ordinarily pre-empt[s], contrary state law.” Id., at 32. As with general maritime law,
Last, petitioner argues that Chevron deference is inapplicable because OCC‘s regulation declares the pre-emptive scope of the NBA. And, the majority flatly asserts that “[i]f that is not pre-emption, nothing is.” Ante, at 535. But OCC did not declare the pre-emptive scope of the statute; rather, it interpreted the term “visitorial powers” to encompass state enforcement of state fair lending laws. The pre-emption of state enforcement authority to which petitioner objects thus follows from the statute itself—not agency action. See Smiley, 517 U. S., at 744 (“This argument confuses the question of the substantive (as opposed to pre-emptive) meaning of a statute with the question of whether a statute is pre-emptive. We may assume (without deciding) that the latter question must always be decided de novo by the courts. That is not the question at issue here; there is no doubt that § 85 pre-empts state law” (emphasis in original)).
Here, Congress—not the agency—has decided that “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law.”
Petitioner‘s federalism-based objections to Chevron deference ultimately turn on a single proposition: It is doubtful that Congress pre-empted state enforcement of state laws but not the underlying state laws themselves. But it is not this Court‘s task to decide whether the statutory scheme established by Congress is unusual or even “[b]izarre.” See ante, at 529. The Court must decide only whether the construction adopted by the agency is unambiguously foreclosed by the statute‘s text. Here, the text, structure, and history of “visitorial powers” support the agency‘s reasonable interpretation of
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For all these reasons, I would affirm the judgment of the Court of Appeals.