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A Presumption Against Agency Preemption, Nina A. Mendelson Jan 2008

A Presumption Against Agency Preemption, Nina A. Mendelson

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Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …


Chevron And Preemption, Nina A. Mendelson Jan 2004

Chevron And Preemption, Nina A. Mendelson

Articles

This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …