Clearing House Ass'n v. Cuomo ( 2007 )


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  • 05-5996-cv (L) & 05-6001-cv (CON)
    Clearing House Ass’n v. Cuomo
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    _____________________
    August Term, 2006
    (Argued: December 4, 2006                                   Decided: December 4, 2007)
    Docket Nos. 05-5996-cv (L), 05-6001-cv (CON)
    _____________________
    THE CLEARING HOUSE ASSOCIATION , L.L.C.,
    Plaintiff-Appellee,
    OFFICE OF THE COMPTROLLER OF THE CURRENCY ,
    Plaintiff-Counter-Defendant-Appellee,
    — v .—
    ANDREW M. CUOMO,* IN HIS OFFICIAL CAPACITY A S
    ATTORNEY GENERAL FOR THE STATE OF NEW YORK ,
    Defendant-Counter-Claimant-Appellant.
    ___________________
    Before:        CARDAMONE and B.D. PARKER, Circuit Judges, and KOELTL, District Judge.**
    ___________________
    *
    Pursuant to Fed. R. App. P. 43(c)(2), Andrew M. Cuomo is automatically substituted for
    former Attorney General Eliot Spitzer in this action.
    **
    The Honorable John G. Koeltl, United States District Judge for the Southern District of
    New York, sitting by designation.
    1
    The New York State Attorney General appeals from two judgments of the United States
    District Court for the Southern District of New York (Stein, J.), both permanently enjoining him
    from investigating national banks and their operating subsidiaries for possible violations of
    federal and state fair lending laws.
    AFFIRMED in part, VACATED in part, and REMANDED in part with instructions.
    Judge Cardamone concurs in part and dissents in part in a separate opinion.
    ___________________
    CAITLIN HALLIGAN , Solicitor General (Dieter Snell, Deputy
    Attorney General; Michelle Aronowitz, Deputy
    Solicitor General; Richard Dearing, Julie Loughran,
    Shaifali Puri, Assistant Solicitors General, of
    counsel), New York, NY, for Andrew M. Cuomo,
    Attorney General of the State of New York,
    Defendant-Counter-Claimant-Appellant.
    ROBINSON B. LACY (H. Rodgin Cohen, Adam R. Brebner,
    Keith Levenberg, on the brief), Sullivan &
    Cromwell, LLP, New York, NY, for Plaintiff-
    Appellee The Clearing House Association, L.L.C.
    DOUGLA S B. JORDAN (Julie L. Williams, Daniel P. Stipano,
    Horace G. Sneed, on the brief), Washington, DC,
    for Plaintiff-Counter-Defendant-Appellee Office of
    the Comptroller of the Currency.
    ___________________
    BARRINGTON D. PARKER, Circuit Judge:
    The National Bank Act (“NBA” or “Act”) authorizes national banks to engage in a broad
    range of business activities, and also limits the exercise of “visitorial powers” over such banks.1
    1
    
    12 U.S.C. § 484
    (a) provides:
    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
    2
    The Office of the Comptroller of the Currency (“OCC”) is the agency Congress has entrusted to
    implement the NBA and to oversee the national banks’ exercise of their powers. This appeal
    concerns the residual authority of state officials in regards to laws pertaining to real estate
    lending, one of the banking activities governed by the NBA and OCC regulations.
    I
    In 2005, the New York State Attorney General began investigating evidence of possible
    racial discrimination in the residential real estate lending practices of several national banks and
    their operating subsidiaries. The Attorney General’s investigation was prompted by data that the
    federal Home Mortgage Disclosure Act (“HMDA”) requires lenders to make public. See 
    12 U.S.C. §§ 2801-10
    . The Attorney General observed that recent HMDA data appeared to indicate
    that a significantly higher percentage of high-interest home mortgage loans are issued to African-
    American and Hispanic borrowers than to white borrowers.
    On the basis of these apparent racial disparities, the Attorney General sent “letters of
    inquiry” to mortgage lenders implicated by the data, including several national banks and their
    operating subsidiaries.2 The letters stated that such disparities “are troubling on their face, and
    unless legally justified may violate federal and state anti-discrimination laws such as the Equal
    Credit Opportunity Act and its state counterpart, New York State Executive Law § 296-a.”3 “In
    or directed by Congress or by either House thereof or by any committee of Congress
    or of either House duly authorized.
    2
    The banks included Wells Fargo, HSBC, J.P. Morgan Chase, and Citigroup.
    3
    Section 296-a broadly prohibits creditors from discriminating on the basis of race, sex,
    national origin, or other protected grounds. Though not restricted to real estate lending, the
    3
    lieu of issuing a formal subpoena,” the letters requested that lenders voluntarily produce certain
    non-public information regarding their mortgage policies and practices, as well as data
    concerning loans related to real property in New York State.
    Soon afterwards, the OCC sued to enjoin the Attorney General’s investigative and
    enforcement efforts. A recently promulgated OCC regulation expansively interpreted the NBA’s
    visitorial powers provision, 
    12 U.S.C. § 484
    , to preclude state officials from enforcing national
    banks’ compliance with state or federal laws that concern activities authorized or permitted under
    the NBA. See 
    12 C.F.R. § 7.4000
    (a)(2)(iv). On the strength of this regulation, the agency took
    the position that any efforts by the Attorney General to investigate or to enforce provisions of the
    Equal Credit Opportunity Act and New York State Executive Law § 296-a against national banks
    or their operating subsidiaries were an unlawful exercise of visitorial powers.
    The Clearing House Association (“Clearing House”) – a consortium of national banks,
    including several that received letters of inquiry from the Attorney General – filed a similar
    complaint, seeking to enjoin the Attorney General from “investigating, requesting or issuing
    subpoenas for information concerning, or taking any other action to enforce federal and state
    discrimination-in-lending laws” against its national bank members and their operating
    subsidiaries.
    The Attorney General counterclaimed, arguing that the OCC’s regulation was unlawful
    statute specifically prohibits discrimination regarding “applications for credit with respect to the
    purchase, acquisition, construction, rehabilitation, repair or maintenance of any housing
    accommodation, land or commercial space.” 
    N.Y. Exec. Law § 296
    -a(1)(a). It further bars
    discrimination “in the granting, withholding, extending or renewing, or in the fixing of the rates,
    terms or conditions of, any form of credit.” 
    Id.
     § 296-a(1)(b).
    4
    and should be set aside under the Administrative Procedure Act (“APA”), 
    5 U.S.C. § 706.4
     In his
    Answer, the Attorney General asserted that racial disparities reflected in the HMDA data
    “established a prima facie case, under the federal Fair Housing Act,” 
    42 U.S.C. § 3605
    (a), as
    well as under New York State Executive Law § 296-a. The Attorney General contended that his
    investigation was not a prohibited exercise of visitorial powers, and that the OCC was not acting
    aggressively in this area. Alternatively, the Attorney General contended that he was empowered,
    as parens patriae, to sue under the Fair Housing Act (“FHA”), and that even if such a suit were
    considered a “visitation” it would come within § 484(a)’s exception for “visitorial powers . . .
    authorized by Federal law.”
    Following a trial on the merits, the United States District Court for the Southern District
    of New York (Stein, J.) deferred to the OCC’s interpretation of the statute, under Chevron
    U.S.A., Inc. v. Natural Res. Def. Council, 
    467 U.S. 837
     (1984), and concluded that the Attorney
    General’s investigation was prohibited. Office of the Comptroller of the Currency v. Spitzer, 
    396 F. Supp. 2d 383
     (S.D.N.Y. 2005) (“OCC v. Spitzer”). In a separate opinion, the court agreed
    with Clearing House that the FHA does not create an exception authorizing the exercise of
    visitorial powers otherwise prohibited under § 484(a). Clearing House Ass’n, L.L.C. v. Spitzer,
    
    394 F. Supp. 2d 620
     (S.D.N.Y. 2005) (“Clearing House v. Spitzer”). Accordingly, in both cases
    the court issued the declaratory and injunctive relief sought by the OCC and Clearing House.
    We affirm the district court’s judgment in OCC v. Spitzer. We affirm in part and vacate
    4
    The APA provides, in part, that a “reviewing court shall . . . hold unlawful and set aside
    agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
    discretion, or otherwise not in accordance with law.” 
    5 U.S.C. § 706
    .
    5
    in part the district court’s separate judgment in Clearing House v. Spitzer. We affirm that part of
    the Clearing House judgment granting Clearing House the injunctive relief provided in OCC v.
    Spitzer. We vacate, however, that part of the Clearing House judgment granting permanent
    injunctive relief against the Attorney General’s enforcement of the FHA. We hold that the
    district court lacked jurisdiction to decide the FHA claim, and we remand the case to the district
    court with instructions to dismiss that claim.
    II
    The NBA provides for the creation of national banks, and authorizes them to exercise
    certain enumerated powers, as well as “all such incidental powers as shall be necessary to carry
    on the business of banking.” 
    12 U.S.C. § 24
     Seventh. The OCC is the federal agency primarily
    responsible for overseeing “the business of banking” under the statute. NationsBank of N.C.,
    N.A. v. Variable Annuity Life Ins. Co., 
    513 U.S. 251
    , 256 (1995). To that end, the OCC has been
    granted broad authority by Congress “to prescribe rules and regulations to carry out the
    responsibilities of the office.” 12 U.S.C. § 93a. This includes the authority “to define the
    ‘incidental powers’ of national banks beyond those specifically enumerated in the statute.”
    Wachovia Bank, N.A. v. Burke, 
    414 F.3d 305
    , 312 (2d Cir. 2005); see also NationsBank, 
    513 U.S. at 257-59
    .
    Section 484 provides, in part, that “[n]o national bank shall be subject to any visitorial
    powers except as authorized by Federal law [or] vested in the courts of justice.” 
    12 U.S.C. § 484
    (a). The Supreme Court has defined visitation as “the act of a superior or superintending
    officer, who visits a corporation to examine into its manner to conducting business, and enforce
    6
    an observance of its laws and regulations.” Guthrie v. Harkness, 
    199 U.S. 148
    , 158 (1905)
    (internal quotation marks omitted). We recently observed that the purpose of the visitorial
    powers restriction is to “prevent inconsistent or intrusive state regulation from impairing the
    national system.” Burke, 
    414 F.3d at 311
    ; see also Watters v. Wachovia Bank, N.A., 
    127 S. Ct. 1559
    , 1568 (2007).
    In 1996, the OCC adopted a regulation clarifying that, under § 484(a), “the exercise of
    visitorial powers over national banks is vested solely in the OCC.” 
    12 C.F.R. § 7.4000
     (1997);
    
    61 Fed. Reg. 4862
    , 4869 (Feb. 9, 1996) (final rule). The OCC revised this regulation in 1999 “to
    clarify the extent of the OCC’s vistiorial powers” and to “codif[y] the definition of visitorial
    powers and illustrate[] what vistitorial powers include by providing a non-exclusive list of these
    powers.” 
    64 Fed. Reg. 60092
    , 60094 (Nov. 4, 1999) (final rule). The previous version of the
    rule had indicated that “[s]tate officials have no authority to conduct examinations or to inspect
    or require the production of books or records of national banks, except for the limited
    purpose[s]” specified in § 484(b).5 
    12 C.F.R. § 7.4000
     (1997). The revised rule added
    “prosecuting enforcement actions” against such banks as an example of prohibited state visitorial
    powers. See 64 Fed. Reg. at 60100.
    5
    
    12 U.S.C. § 484
    (b) provides that, notwithstanding the restriction on visitorial powers in
    subsection (a):
    [L]awfully authorized State auditors and examiners may, at reasonable times and
    upon reasonable notice to a bank, review its records solely to ensure compliance with
    applicable State unclaimed property or escheat laws upon reasonable cause to believe
    that the bank has failed to comply with such laws.
    7
    In its present form, Section 7.4000 lists several examples of prohibited visitations,
    including “(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 C.F.R. § 7.4000
    (a)(2) (emphasis added).
    The regulation also addresses the exceptions included in § 484(a) for visitorial powers
    “authorized by Federal law” and “vested in the courts of justice.” The OCC construes the courts-
    of-justice exception as “pertain[ing] to the powers inherent in the judiciary” and “not grant[ing]
    state or other governmental authorities any right to inspect, superintend, direct, regulate or
    compel compliance by a national bank with respect to any law, regarding the content or conduct
    of activities authorized for national banks under Federal law.” 
    12 C.F.R. § 7.4000
    (b)(2); 69 Fed
    Reg. 1895, 1904 (Jan. 13, 2004) (final rule). OCC regulations do not directly interpret the
    “authorized by Federal law” exception, but rather provide a non-exclusive list of federal “laws
    vesting visitorial power in other governmental entities,” including state officials, to engage in
    particular visitorial acts. 
    12 C.F.R. § 7.4000
    (b)(1). These include, for example, “[v]erify[ing]
    payroll records for unemployment compensation purposes,” pursuant to the Internal Revenue
    Code, 
    26 U.S.C. § 3305
    (c); “[a]scertain[ing] the correctness of Federal tax returns,” under 
    26 U.S.C. § 7602
    ; and “[e]nforc[ing] the Fair Labor Standards Act,” under 
    29 U.S.C. § 211
    . 
    Id.
     §§
    7.4000(b)(1)(iii), (iv), (v).
    III
    We review a district court’s grant of a permanent injunction for abuse of discretion.
    8
    Shain v. Ellison, 
    356 F.3d 211
    , 214 (2d Cir. 2004). A district court abuses its discretion when it
    bases its decision on an error of law or a clearly erroneous finding of fact. Id.; S.C. Johnson &
    Son, Inc. v. Clorox Co., 
    241 F.3d 232
    , 237 (2d Cir. 2001). Although the parties disagree about
    the facts underlying the Attorney General’s investigation – especially the significance of the
    HMDA data as evidence of possible racial bias in mortgage lending – those facts are not at issue
    here. The only questions before us are legal ones.
    A
    Central to the parties’ dispute is the meaning of the term “visitorial powers” in § 484(a).
    The OCC argues that its interpretation of “visitorial powers” should be afforded Chevron
    deference while the Attorney General denies that the OCC’s interpretation is entitled to such
    deference. Under Chevron, we first ask whether Congress has spoken directly to the precise
    question at issue. Chevron, 
    467 U.S. at 842
    . If Congress’s intent is clear, both the court and the
    agency “must give effect to the unambiguously expressed intent of Congress.” 
    Id. at 843
    . If,
    however, “the statute is silent or ambiguous with respect to the specific issue,” we proceed to the
    second step of the Chevron analysis, in which “the question for the court is whether the agency’s
    answer is based on a permissible construction of the statute.” 
    Id.
    The Attorney General raises an initial argument that the Chevron framework does not
    apply to the OCC’s interpretation of the statute at issue here. The Attorney General argues that
    by limiting the visitorial powers that apply to national banks, Congress clearly did not intend to
    divest states of the authority to enforce their own otherwise non-preempted laws against such
    banks. Such authority, the Attorney General contends, is an intrinsic aspect of state sovereignty
    9
    and its exercise cannot be curtailed in the absence of a clear statement of Congressional intent.
    See, e.g., Gregory v. Ashcroft, 
    501 U.S. 452
    , 460 (1991) (“If Congress intends to alter the usual
    constitutional balance between the States and the Federal Government, it must make its intention
    to do so unmistakably clear in the language of the statute.” (internal quotation marks omitted));
    see also Diamond v. Charles, 
    476 U.S. 54
    , 65 (1986) (“[T]he power to create and enforce a legal
    code, both civil and criminal is one of the quintessential functions of a State.” (internal quotation
    marks omitted)). Accordingly, the Attorney General urges us not to afford Chevron deference to
    the OCC’s interpretation of the statute, as the district court did.
    The first question is whether a presumption against preemption applies to the OCC’s
    regulation interpreting § 484(a). Federal preemption can be express or implied, but in either case
    is primarily a question of Congressional intent. See Barnett Bank of Marion County., N.A. v.
    Nelson, 
    517 U.S. 25
    , 31 (1996). “Preemption can generally occur in three ways: where Congress
    has expressly preempted state law, where Congress has legislated so comprehensively that
    federal law occupies an entire field of regulation and leaves no room for state law, or where
    federal law conflicts with state law.” Burke, 
    414 F.3d at 313
    ; see also Fid. Fed. Sav. & Loan
    Ass’n v. de la Cuesta, 
    458 U.S. 141
    , 153 (1982). “Federal regulations have no less pre-emptive
    effect than federal statutes.” de la Cuesta, 
    458 U.S. at 153
    .
    Ordinarily, a presumption against preemption applies in areas of regulation traditionally
    allocated to the states. See Rice v. Santa Fe Elevator Corp., 
    331 U.S. 218
    , 230 (1947) (“[W]e
    start with the assumption that the historic police powers of the States were not to be superseded
    by the Federal Act unless that was the clear and manifest purpose of Congress.”). In Wachovia v.
    10
    Burke, we observed that this presumption “disappears” in the context of national bank regulation,
    which has been “substantially occupied by federal authority for an extended period of time.”
    Burke, 
    414 F.3d at 314
     (internal quotation marks omitted); see also Flagg v. Yonkers Sav. &
    Loan Ass’n, 
    396 F.3d 178
    , 183 (2d Cir. 2005). Historically, the Supreme Court has
    “interpret[ed] grants of both enumerated and incidental ‘powers’ to national banks as grants of
    authority not normally limited by, but rather ordinarily pre-empting, contrary state law.” Barnett
    Bank, 
    517 U.S. at 32
    . The district court, therefore, did not err in determining that no
    presumption against preemption applies to the regulation at issue here.
    For essentially the same reason, we also reject the Attorney General’s reliance on the
    somewhat broader principle that – whether or not a presumption against preemption applies –
    “[w]here an administrative interpretation of a statute invokes the outer limits of Congress’ power,
    we expect a clear indication that Congress intended that result.” Solid Waste Agency of N. Cook
    County v. U.S. Army Corps of Eng’rs, 
    531 U.S. 159
    , 172 (2001) (“SWANCC”). That broader
    principle is rooted in the doctrine of constitutional avoidance, which the Supreme Court has
    recognized may, in some instances, trump the deference typically afforded to an agency’s
    interpretation of the statute it administers. See id.; Edward J. DeBartolo Corp. v. Fla. Gulf Coast
    Bldg. & Constr. Trades Council, 
    485 U.S. 568
    , 575 (1988) (“[W]here an otherwise acceptable
    construction of a statute would raise serious constitutional problems, the Court will construe the
    statute to avoid such problems unless such construction is plainly contrary to the intent of
    Congress.”). The concern about reaching constitutional issues unnecessarily, and the
    corresponding demand for a clear statement from Congress, is “heightened where the
    11
    administrative interpretation alters the federal-state framework by permitting federal
    encroachment upon a traditional state power.” SWANCC, 
    531 U.S. at 173
    .
    The Attorney General has not demonstrated that acceptance of the OCC’s interpretation
    of § 484 would cast doubt on the constitutionality of the underlying statute. Cf. id.; DeBartolo,
    
    485 U.S. at 575-76
    . Nor do we see any reason to believe that such interpretation invokes the
    outer limit of Congress’s power so as to trigger a clear statement requirement. National banks,
    as creatures of federal statute, are subject first and foremost to federal law. As a result, the
    exercise of “traditional” state power in the context of national banking regulation is already
    substantially qualified. While national banks do not operate entirely free of state law obligations,
    “[s]tates 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’ & Mechs.’ Nat’l Bank v. Dearing, 
    91 U.S. 29
    ,
    34 (1875); see Watters, 
    127 S. Ct. at 1567
    . Where, as here, Congress has already expressed its
    intent to limit the role of the states in regulating national banks – especially when such conduct
    involves the exercise of powers granted to the banks by federal statute and regulation – we do not
    perceive the need for any further statement of intent to achieve the limitation at issue here. On
    this basis, we conclude that the district court did not err in finding that a clear statement was not
    required to justify the OCC’s interpretation of § 484(a).
    B
    We turn next to the Attorney General’s contention that § 484(a) is clear, and that the
    12
    statute precludes the interpretation the OCC has adopted.6 As we have already noted, the first
    question we ask in reviewing an agency’s construction of the statute it administers is “whether
    Congress has directly spoken to the precise question at issue. If the intent of Congress is clear,
    that is the end of the matter; for the court, as well as the agency, must give effect to the
    unambiguously expressed intent of Congress.” Chevron, 
    467 U.S. at 842-43
    . The two questions
    at issue here both concern the scope of visitorial powers encompassed by § 484(a). They are: (1)
    whether Congress intended to preclude state officials from enforcing non-preempted state laws
    that, like New York’s discrimination-in-lending law, concern the federally authorized activities
    of national banks; and (2) whether Congress intended to permit state officials to exercise
    otherwise prohibited visitorial powers by bringing actions in the “courts of justice.”
    (i)
    In construing § 484(a), we do not write on a blank slate. The Supreme Court interpreted
    “visitorial powers” in the context of the NBA for the first time in Guthrie v. Harkness, 
    199 U.S. 148
     (1905). At issue in Guthrie was whether the NBA precludes an individual shareholder from
    inspecting the books and records of a national bank. The Court examined various dictionary
    definitions of the term “visitorial,” and summarized its common law history. Based on these
    various sources, the Court concluded that the visitorial powers restricted by Congress in the NBA
    do not include “the common-law right of the shareholder to inspect the books of the
    corporation.” 
    Id. at 157
    . This conclusion followed from the Court’s acknowledgment that “[t]he
    6
    The Attorney General concedes on appeal, as he did below, that if the OCC’s regulation
    is upheld, it would bar his investigation and threatened enforcement action, except insofar as he
    asserts a right to proceed under the FHA. See OCC v. Spitzer, 
    396 F. Supp. 2d at 390
    .
    13
    right of visitation [is] a public right, existing in the state for the purpose of examining into the
    conduct of the corporation with a view to keeping it within its legal powers.” Id. at 158-59
    (emphasis added).
    The Attorney General suggests that although Guthrie involved a lawsuit brought by a
    private plaintiff, the Court’s opinion is consistent with the understanding that “visitation” refers
    primarily to examination of a corporation’s books and records for the limited purposes of
    managerial oversight and monitoring compliance with a bank’s charter, and that the term does
    not encompass enforcement of state laws of general applicability. This understanding, the
    Attorney General maintains, is reinforced by the text and structure of the NBA.
    In its current form, the NBA details the OCC’s specific examination powers over national
    banks in a different section from the visitorial powers restriction. See 
    12 U.S.C. § 481
    .
    Originally, these two provisions were set forth in the same section of the Act, which provided
    that national banks “shall not be subject to any other visitorial powers than such as are authorized
    by this act.” Act of June 3, 1864, ch. 106, § 54, 
    13 Stat. 99
    , 116 (emphasis added).
    Notwithstanding the NBA’s subsequent reorganization, the Attorney General argues that the
    visitorial powers language currently found in § 484(a) simply forbids the states from usurping
    those regulatory powers that the statute grants explicitly to the OCC. In this interpretation, §
    484(a) would act mainly as a constraint on the administrative powers exercised by state banking
    officials.
    As the court below pointed out, the Attorney General’s proposed reading ignores the fact
    that the NBA, both as originally enacted and in its present version, authorizes the OCC to sue in
    14
    its own name to redress certain violations – a power that might itself be considered visitorial.
    See OCC v. Spitzer, 
    396 F. Supp. 2d at 394
    ; Act of June 3, 1864, ch. 106, § 53, 
    13 Stat. 99
    , 116
    (codified at 
    12 U.S.C. § 93
    (a)); see also Guthrie, 
    199 U.S. at 157
     (“The visitation of civil
    corporations is by the government itself, through the medium of the courts of justice.”); Roscoe
    Pound, Visitatorial Jurisdiction Over Corporations In Equity, 
    49 Harv. L. Rev. 369
    , 372 (1936)
    (noting that at common law, visitorial powers were executed primarily by “the King act[ing]
    through his courts”).
    The Supreme Court’s decision in Wachovia v. Watters casts further doubt on the Attorney
    General’s interpretation. Watters involved the State of Michigan’s effort to enforce two statutes
    concerning mortgage lending against a national bank’s operating subsidiary, Wachovia
    Mortgage. The statutes imposed registration and disclosure requirements on mortgage lenders,
    including national bank operating subsidiaries and other state-chartered institutions. Watters,
    
    127 S. Ct. at 1565-66
    . They also granted to the commissioner of Michigan’s Office of Insurance
    and Financial Services “inspection and enforcement authority over registrants,” and “authorize[d]
    the commissioner to take regulatory or enforcement actions against covered lenders.” 
    Id. at 1566
    . The State argued – contrary to another recent OCC regulation, 
    12 C.F.R. § 7.4006
     – that
    operating subsidiaries are not themselves national banks, and that state laws regulating such
    subsidiaries are therefore applicable and enforceable. 
    Id.
    The powers granted to the commissioner under the Michigan statutes, the Court observed,
    were undeniably “visitorial” and thus, as the parties conceded, could not be applied to national
    banks themselves. “State laws that conditioned national banks’ real estate lending on registration
    15
    with the State,” the Court explained, “and subjected such lending to the State’s investigative and
    enforcement machinery would surely interfere with the banks’ federally authorized business.” 
    Id. at 1568
     (emphasis added). Citing § 484(a), as well as the OCC’s definition of visitorial powers
    in 
    12 C.F.R. § 7.4000
    (a)(2), the Court concluded that Michigan “cannot confer on its
    commissioner examination and enforcement authority over mortgage lending, or any other
    banking business done by national banks.” 
    Id. at 1569
    . Because the banks’ “authority to engage
    in the business of mortgage lending comes from the NBA . . . as does the authority to conduct
    business through an operating subsidiary,” the OCC’s exclusive visitorial powers under § 484(a)
    extend to operating subsidiaries engaged in mortgage lending just as to their parent national
    banks.7 Id. at 1572.
    In this regard, the Court in Watters concluded that the level of deference owed to the
    OCC’s regulation, § 7.4006, “is an academic question,” since that regulation “merely clarifies
    and confirms what the NBA already conveys: A national bank has the power to engage in real
    estate lending through an operating subsidiary, subject to the same terms and conditions that
    govern the national bank itself; that power cannot be significantly impaired or impeded by state
    7
    In Watters, the Court emphasized the unique characteristics of national bank operating
    subsidiaries, which are “licensed by OCC” and whose authority to carry on the business of
    banking – according to statute – coincides completely with that of the parent bank. 
    127 S. Ct. at 1571
    . The Court pointed out that Congress has distinguished operating subsidiaries from other
    “affiliates”of national banks. 
    Id.
     Accordingly, while we hold below that, in accordance with
    OCC regulations, the Attorney General is precluded from investigating either parent national
    banks or their operating subsidiaries for alleged violations of state fair lending laws, our reasons
    for this conclusion would not apply to the quite different question of whether a state investigation
    or enforcement action directed at any other type of national bank affiliate would necessarily
    violate § 484(a). Nor do we understand the OCC to have taken any position on this issue.
    16
    law.” Id. at 1572; cf. Burke, 
    414 F.3d at 321
     (upholding § 7.4006 on the basis of a Chevron
    analysis).
    Watters does not directly address the questions at issue here. Nevertheless, the Court
    implied that investigation and enforcement by state officials are just as much aspects of visitorial
    authority as registration and other forms of administrative supervision, and that the OCC was not
    clearly wrong to include in its definition of visitorial powers “[e]nforcing compliance with any
    applicable federal or state laws concerning” a national bank’s authorized banking activities. 
    12 C.F.R. § 7.400
    (a)(2)(iv); see Watters, 
    127 S. Ct. at 1568-69
    . Even more significantly, Watters
    emphasized that “in analyzing whether state law hampers the federally permitted activities of a
    national bank, [the Court] ha[s] focused on the exercise of a national bank’s powers.” 
    Id. at 1570
    .
    The Watters dissent maintained, as the Attorney General does here, “that
    nondiscriminatory laws of general application that do not ‘forbid’ or ‘impair significantly’
    national bank activities should not be preempted.” 
    Id. at 1574
     (Stevens, J., dissenting). The
    premise of the majority opinion, however, is that enforcement of a state law purporting to
    regulate a national bank’s exercise of the powers it has been granted under the NBA may
    constitute a prohibited visitation under § 484(a), whether or not the law itself directly conflicts
    with a federal statute or regulation.8
    8
    The Attorney General also argues that the OCC’s interpretation of § 484(a) is foreclosed
    by First Nat’l Bank in St. Louis v. Missouri, 
    263 U.S. 640
     (1924). In that case the Court upheld
    Missouri’s enforcement of a state statute prohibiting national banks from establishing branches,
    reasoning that because the statute itself was valid and not preempted, “the corollary that it is
    obligatory and enforceable necessarily results . . . and, since the sanction behind it is that of the
    17
    Although the precise scope of “visitorial” powers is not entirely clear from the text of §
    484(a), or the common law background of the term, we cannot agree with the Attorney General
    that the statute clearly precludes the interpretation the OCC has adopted. It seems clear to us,
    after Watters, that investigative and enforcement powers of the type the Attorney General has
    sought to exercise here are at least in some sense “visitorial,” whether or not they unambiguously
    fall within the scope of § 484(a). Cf. Nat’l State Bank, Elizabeth, N.J. v. Long, 
    630 F.2d 981
    ,
    989 (3d Cir. 1980) (concluding that while “[i]t is not clear just what ‘visitorial’ powers include . .
    . they do encompass examination of the bank’s books and records,” and thus enforcement of an
    otherwise non-preempted state “antiredlining” statute was barred by § 484(a), since such
    enforcement “no doubt would require examination of bank records”). Moreover, we are not
    prepared to conclude, as the Attorney General urges us to, that simply because a state statute is
    not substantively preempted by a contrary federal law, enforcement of that statute by state
    officials against national banks is necessarily permitted under § 484(a).
    (ii)
    The Attorney General maintains that even if his investigation may be construed as a
    visitation, it is nonetheless permitted under § 484’s express exception for visitorial powers
    “vested in the courts of justice.” To support this argument, the Attorney General relies primarily
    on what might be read as an alternative holding in Guthrie. Having concluded that the NBA’s
    state and not that of the national government, the power of enforcement must rest with the former
    and not with the latter.” Id. at 659-60. The Court’s opinion did not directly address the NBA’s
    restriction of state visitorial powers. Moreover, at the time, national banks had not been
    authorized by federal law to establish branches. Thus, unlike this case, St. Louis did not involve
    a state law that affected a national bank’s powers under the NBA.
    18
    visitorial powers restriction did not foreclose a shareholder from seeking to enforce his common
    law right of inspection against a national bank, the Court in Guthrie observed that such
    inspection, “even if included in visitorial powers as the terms are used in the statute,” would
    nevertheless “belong to that class ‘vested in the courts of justice’ which are expressly excepted
    from the inhibition of the statute.” Guthrie, 
    199 U.S. at 159
    .
    The Attorney General’s proposed interpretation of the “courts of justice” exception cuts
    too broadly. If a state official could sidestep the Act’s restriction on the exercise of visitorial
    powers simply by filing a lawsuit, the exception would swallow the rule. Moreover, as we note
    above, the sovereign’s bringing of an action in court was a primary means of exercising visitorial
    powers at common law. Because Guthrie involved a suit initiated by a private plaintiff, the only
    possible exercise of visitorial powers would have been by the court itself. See Guthrie, 
    199 U.S. at 158-59
     (“The right of visitation [is] a public right . . . .” (emphasis added)). Whatever the
    scope of the courts of justice exception, it cannot be as broad as the Attorney General suggests,
    since that interpretation would provide no effective restriction on the exercise of a state’s
    visitorial powers over national banks.
    C
    Since “Congress has not directly addressed the precise question[s] at issue,” we proceed
    to step two of the Chevron framework, under which we ask “whether the agency’s answer is
    based on a permissible construction of the statute.” Chevron, 
    467 U.S. at 843
    . We will defer to
    an agency’s statutory interpretation, so long as it is reasonable and does not conflict with
    Congress’s expressed intent. See 
    id. at 845
    ; Skubel v. Fuoroli, 
    113 F.3d 330
    , 336 (2d Cir. 1997).
    19
    An agency’s interpretation may be reasonable, and thus worthy of deference, “even if the
    agency’s reading differs from what the court believes is the best statutory interpretation.” Nat’l
    Cable & Telecomms. Ass’n v. Brand X Internet Servs., 
    545 U.S. 967
    , 980 (2005); see also G & T
    Terminal Packaging Co., Inc. v. U.S. Dep’t of Agriculture, 
    468 F.3d 86
    , 95 (2d Cir. 2006)
    (“[U]nless we find the [agency’s] construction of the statute to be arbitrary, capricious, or
    manifestly contrary to the statute, we must yield to that construction of the statute even if we
    would reach a different conclusion of our own accord.” (internal quotation marks and citation
    omitted)).
    The Attorney General makes two preliminary arguments for why we should not defer to
    the OCC’s interpretation of § 484(a). Both were properly rejected by the district court. First, the
    Attorney General argues that the OCC’s regulation, 
    12 C.F.R. § 7.4000
    , falls outside the scope of
    its delegated rulemaking authority. This argument fails because, as the district court pointed out,
    Congress conferred broad authority on the OCC to implement the NBA. See 12 U.S.C. § 93a.
    Accordingly, the Supreme Court has routinely deferred to the OCC’s interpretations of that
    statute where Congress’s intent is ambiguous:
    It is settled that courts should give great weight to any reasonable construction of a
    regulatory statute adopted by the agency charged with the enforcement of that statute.
    The Comptroller of the Currency is charged with the enforcement of banking laws
    to an extent that warrants the invocation of this principle with respect to his
    deliberative conclusions as to the meaning of these laws.
    NationsBank, 
    513 U.S. at 256-57
     (internal quotation marks omitted). We see no reason to depart
    from this settled principle here.
    Second, the Attorney General contends that no deference is owed to the regulation
    20
    because it interprets purely legal concepts, as opposed to technical matters within the OCC’s
    expertise. This contention is significantly more troublesome. We have previously observed that
    “an [administrative] agency has no special competence or role in interpreting a judicial decision.”
    New York v. Shalala, 
    119 F.3d 175
    , 180 (2d Cir. 1997) (internal quotation marks and citation
    omitted).
    The administrative record here consists almost entirely of the agency’s interpretation of
    case law, legislative history, and statutory text. See, e.g., 
    69 Fed. Reg. 1895
    , 1897-1900 (Jan. 13,
    2004) (final rule); 64 Fed. Reg 31749, 31751 (June 14, 1999) (NPRM). These are not subjects
    on which the OCC holds any special expertise, nor has the OCC identified any particularly
    technical aspect of the regulatory subject matter that the agency is “‘uniquely qualified’ to
    comprehend.” Geier v. Am. Honda Motor Co., 
    529 U.S. 861
    , 883 (2000) (quoting Medtronic,
    Inc. v. Lohr, 
    518 U.S. 470
    , 496 (1996)); see also Watters, 
    127 S. Ct. at 1584
     (Stevens, J.,
    dissenting). To warrant Chevron deference, we ordinarily require administrative agencies to
    “articulate a logical basis for their decisions, including a rational connection between the facts
    found and the choices made.” Skubel, 
    113 F.3d at 336
     (internal quotation marks omitted). Yet
    the OCC does not appear to have found any facts at all in promulgating its visitorial powers
    regulation. It accretes a great deal of regulatory authority to itself at the expense of the states
    through rulemaking lacking any real intellectual rigor or depth. Indeed, there is very little about
    the OCC’s rather cursory analysis that, in a different context, could justify this Court’s deference
    under Chevron. The OCC’s analysis is at or near the outer limits of what Chevron contemplates.
    Nevertheless, it does not follow that an agency’s attempts to harmonize its rulemaking
    21
    with judicial precedent – as the OCC has done here, see, e.g., 
    69 Fed. Reg. 1895
    , 1897-1900 –
    necessarily invalidate that rulemaking. Cf. Long Island Care at Home, Ltd. v. Coke, 
    127 S. Ct. 2339
    , 2350-51 (2007). We remain bound to uphold the agency’s rule so long as it is not
    “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 
    467 U.S. at 844
    . Because
    we conclude that the rule the OCC adopted is not inconsistent with judicial precedent, the
    Attorney General’s argument is unavailing.
    Rather than analyzing the OCC’s regulation in the abstract, we begin by emphasizing that
    the investigation and threatened enforcement action it would preclude in this instance concern
    real estate lending – precisely the same banking activity that was at issue in Watters. The
    authority of national banks to engage in that activity is a power that Congress has expressly
    granted under the NBA, subject to rules prescribed by the OCC. 
    12 U.S.C. § 371
    . It is thus
    “[b]eyond genuine dispute” that “state law may not significantly burden a national bank’s own
    exercise of its real estate lending power, just as it may not curtail or hinder a national bank’s
    efficient exercise of any other power, incidental or enumerated under the NBA.” Watters, 
    127 S. Ct. at 1567
    .
    In 2004, the OCC adopted a separate regulation detailing certain categories of preempted
    state law limitations on a national bank’s real estate lending powers, including laws that concern
    licensing and registration, loan-to-value ratios, disclosure and advertising, and interest rates. 
    12 C.F.R. § 34.4
    (a). That same regulation also sets forth categories of state laws that “are not
    inconsistent with the real estate lending powers of national banks and apply to national banks to
    the extent that they only incidentally affect the exercise of national banks’ real estate lending
    22
    powers.” 
    Id.
     § 34.4(b). These include contracts, torts, criminal law, zoning, and other broad
    subject areas that do not relate specifically to the business of banking. Id.
    In addition to being unencumbered by state laws that are preempted, either by the NBA
    itself or by OCC regulations, “real estate lending, when conducted by a national bank, is immune
    from state visitorial control” as a result of § 484(a). Watters, 
    127 S. Ct. at 1567
    . Such immunity
    attaches not because of any specific conflict between state and federal law, but because “[t]he
    NBA specifically vests exclusive authority to examine and inspect in [the] OCC.” 
    Id.
     In this
    regard, the NBA’s restriction on visitorial powers reflects Congress’s overall judgment that, in
    the context of national bank regulation, “confusion would necessarily result from control
    possessed and exercised by two independent authorities.” Easton v. Iowa, 
    188 U.S. 220
    , 232
    (1903); see Watters, 
    127 S. Ct. at 1568
    .
    Likewise, the OCC’s regulation is “consistent with the intent of creating a national
    banking system that is subject to cohesive, uniform supervision by the primary regulator of
    national banks.” 64 Fed. Reg. at 60095. In our reading, § 7.4000 does not, as the Attorney
    General suggests, claim for the OCC unfettered authority to preempt the states from enforcing
    their own laws or otherwise alter the role that states have traditionally occupied in our “dual
    banking system.” Cf. Atherton v. FDIC, 
    519 U.S. 213
    , 221 (1997); Watters, 
    127 S. Ct. at 1573
    (Stevens, J., dissenting). Nor does the regulation change the extent to which national banks
    remain “subject to state laws of general application in their daily business.” Watters, 
    127 S. Ct. at 1567
    ; see also Barnett Bank, 
    517 U.S. at 33
     (recognizing the power of states to regulate
    national banks “where . . . doing so does not prevent or significantly interfere with the national
    23
    bank’s exercise of its powers”). Rather, the OCC’s regulation simply confirms that where, as
    here, a state law specifically concerns “activities authorized or permitted pursuant to federal
    banking law,” 
    12 C.F.R. § 7.4000
    (a)(2), its enforcement by state officials may constitute a
    prohibited visitation.
    In drawing the lines that it did in § 7.4000(a), the OCC reached a permissible
    accommodation of conflicting policies that were committed to it by the statute. As we have
    described above, the OCC’s regulation furthers Congress’s intent, through § 484(a) and other
    provisions of the NBA, to shield national banks “from unduly burdensome and duplicative state
    regulation” in the exercise of their federally authorized powers, such as real estate lending.
    Watters, 
    127 S. Ct. at 1567
    . At the same time, it preserves state sovereignty by leaving state
    officials free to enforce a wide range of laws that do not purport to regulate a national bank’s
    exercise of its authorized banking powers, as well as by not preempting state laws – including
    New York State Executive Law § 296-a – that do not directly conflict with such powers. Such
    laws, we note, remain enforceable by private parties, as well as by the OCC itself.9
    Furthermore, as the district court pointed out, the OCC’s interpretation of § 484(a) as
    restricting the authority of states to enforce certain otherwise non-preempted laws finds support
    in another recent Congressional enactment, the Riegle-Neal Interstate Branch Banking and
    9
    Executive Law § 296-a authorizes a cause of action for private plaintiffs who are injured
    on the basis of a protected ground. See, e.g., Dunn v. Fishbein, 
    507 N.Y.S.2d 29
     (N.Y. App. Div.
    1986). Although the issue is not before us, the parties do not dispute that private parties would
    remain free under the OCC’s regulation to bring individual or, where appropriate, class actions
    against national banks to enforce compliance with non-preempted state laws, regardless of the
    subject matter such laws concern. This understanding, moreover, is consistent with Guthrie’s
    construal of the right of visitation as an essentially public right. See Guthrie, 
    199 U.S. at 158-59
    .
    24
    Efficiency Act of 1994. The Riegle-Neal Act permits national banks to establish interstate
    branches, and provides that such branches remain subject to “[t]he laws of the host State
    regarding community reinvestment, consumer protection, [and] fair lending,” except when such
    laws are federally preempted or determined by the OCC to have a discriminatory effect on
    national banks. 
    12 U.S.C. § 36
    (f)(1)(A). However, the Act specifies that insofar as such state
    laws remain applicable, they “shall be enforced . . . by the Comptroller of the Currency.” 
    Id.
     §
    36(f)(1)(B). We need not determine today whether, by this provision, Congress intended to make
    the OCC’s enforcement authority exclusive with regard to interstate branches – a matter about
    which the OCC and the Attorney General, predictably, hold opposite views. It is sufficient to
    note that the Riegle-Neal Act, when read in conjunction with § 484(a), highlights the
    reasonableness of the OCC’s interpretation concerning the scope of its exclusive visitorial
    powers.
    Finally, we agree with the district court that the OCC permissibly interpreted the “courts
    of justice” exception under § 484(a) as pertaining only “to the powers inherent in the judiciary”
    and as not “grant[ing] state or other governmental authorities any right to inspect, superintend,
    direct, regulate or compel compliance by a national bank with respect to any law, regarding the
    content or conduct of activities authorized for national banks under Federal law.” 
    12 C.F.R. § 7.4000
    (b)(2); see OCC v. Spitzer, 
    396 F. Supp. 2d at 404-06
    . As we have indicated, the Attorney
    General’s proposed interpretation of this exception would swallow the rule. The notion that the
    exception was intended to permit lawsuits, as opposed to administrative actions, appears
    particularly misguided since at the time the NBA was enacted, visitorial powers were primarily
    25
    exercised through the bringing of actions in court. See, e.g., Guthrie, 
    199 U.S. at 157
     (“The
    visitation of civil corporations is by the government itself, through the medium of the courts of
    justice.”); see also OCC v. Spitzer, 
    396 F. Supp. 2d at 405
    .
    By contrast, the OCC has put forth a more reasonable interpretation that comports with
    the text of the statute, as well as Congress’s overall intent. The exception, as the OCC interprets
    it, confirms that § 484(a) does not strip the courts of any inherent authority they possess to issue
    subpoenas, for example, against a national bank, or to exercise jurisdiction over such a bank
    where it is otherwise proper to do so, simply because such acts in and of themselves might be
    considered “visitorial.” See, e.g., NLRB v. N. Trust Co., 
    148 F.2d 24
    , 29 (7th Cir. 1945);
    Overfield v. Pennroad Corp., 
    113 F.2d 6
    , 12 (3d Cir. 1940). At the same time, the OCC properly
    determined that this exception does not positively grant authority to state officials to accomplish
    what § 484(a) otherwise forbids “by invoking the power of the courts.” OCC v. Spitzer, 
    396 F. Supp. 2d at 406
    .
    We conclude that the district court did not err in deferring to the OCC’s interpretation of
    § 484(a), as set forth in 
    12 C.F.R. § 7.4000
    . Because we are not prepared to conclude that the
    OCC’s interpretation was arbitrary or otherwise not in accordance with law, the Attorney
    General’s Administrative Procedure Act counterclaim fails. 
    5 U.S.C. § 706
    (2)(A); see Motor
    Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 42-43
    (1983). We therefore affirm the declaratory and injunctive relief ordered by the district court in
    OCC v. Spitzer, 
    396 F. Supp. 2d at 407-08
    .
    26
    IV
    The Attorney General argues that even if he is precluded from enforcing New York State
    law against the national banks, under § 484(a) and § 7.4000, he nevertheless is permitted to bring
    an action against such banks to enforce the federal Fair Housing Act, in a parens patriae
    capacity. 10 The Attorney General first mentioned the FHA in his Answer to the OCC’s
    complaint, and only later clarified that the basis for a potential suit under that statute might be his
    parens patriae authority. The district court concluded that whether or not a state attorney general
    has standing to sue under the FHA as parens patriae, such an action would constitute a visitation
    and would not fall within the exception in § 484(a) for visitorial powers “authorized by Federal
    law.” Clearing House v. Spitzer, 
    394 F. Supp. 2d at 620
    .
    We note at the outset that the OCC did not address the issue of whether the FHA creates a
    federally authorized exception under § 484(a), and declined to take a position on this issue in the
    court below on the ground that it was not ripe for adjudication. In its brief to this Court, the OCC
    purports to have changed its mind regarding ripeness, and now aligns itself with Clearing House
    on the merits of the claim. We also note that while no party contested our jurisdiction over
    Clearing House’s claim, the Attorney General did argue below that the court lacked subject
    matter jurisdiction. Moreover, we have an independent obligation to ensure that subject matter
    jurisdiction exists, and we therefore raise the issue nostra sponte. Joseph v. Leavitt, 
    465 F.3d 87
    ,
    10
    The FHA prohibits “any person or other entity whose business includes engaging in
    residential real estate-related transactions to discriminate against any person in making available
    such a transaction, or in the terms or conditions of such a transaction, because of race, color,
    religion, sex, handicap, familial status, or national origin.” 
    42 U.S.C. § 3605
    (a).
    27
    89 (2d Cir. 2006); Palmieri v. Allstate Ins. Co., 
    445 F.3d 179
    , 184 (2d Cir. 2006).
    We perceive two aspects to this question of jurisdiction. The first is whether Clearing
    House has properly grounded its complaint in a federal question, consistent with the “well-
    pleaded complaint” rule. See Fleet Bank, Nat’l Ass’n v. Burke, 
    160 F.3d 883
    , 886 (2d Cir. 1998)
    (noting that the rule “requires a complaint invoking federal question jurisdiction to assert the
    federal question as part of the plaintiff’s claim, and precludes invoking federal question
    jurisdiction merely to anticipate a federal defense” (internal citations omitted)). The second is
    whether the FHA issue is ripe for adjudication. See United States v. Quinones, 
    313 F.3d 49
    , 58
    (2d Cir. 2002) (observing that “[r]ipeness is a constitutional prerequisite to the exercise of
    jurisdiction by the federal courts” (internal quotation marks omitted)).
    With regard to the first aspect, the district court correctly noted that “[i]t is beyond
    dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering
    with federal rights.” Shaw v. Delta Air Lines, Inc., 
    463 U.S. 85
    , 96 n.14 (1983); see also Fleet
    Bank, 
    160 F.3d at 888
    . Thus, the fact that the claim Clearing House is asserting might also serve
    as the basis for a defense to a potential state court action has no bearing on whether it has
    satisfied the well-pleaded complaint rule. See Clearing House v. Spitzer, 
    394 F. Supp. 2d at
    624-
    25. Moreover, since Clearing House seeks to prevent the Attorney General from enforcing one
    federal statute (the FHA) because such enforcement would conflict with another federal statute
    (the NBA), the issue of whether a federal question has been presented is even more
    straightforward than in cases such as Fleet Bank and Shaw, which involved actions brought to
    28
    challenge the threatened enforcement of state laws by state officials.11 See 
    id. at 624
    ; see also
    Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 
    535 U.S. 635
    , 650-51 (2002) (Souter, J.,
    concurring).
    Somewhat more difficult is the issue of ripeness, which the district court did not address,
    but which we find necessary to consider given that the Attorney General has not yet filed a
    lawsuit against any national banks on the basis of the FHA. Under Article III, our jurisdiction
    “extend[s] to all Cases . . . [or] Controversies.” U.S. Const. art. III § 2. We have observed that
    the purpose of the ripeness requirement is to ensure that a dispute has generated injury sufficient
    to satisfy the case or controversy requirement of Article III. See Quinones, 
    313 F.3d at
    58 n.5.
    This requirement “prevents a federal court from entangling itself in abstract disagreements over
    matters that are premature for review because the injury is merely speculative and may never
    occur.” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d at 90.
    The Supreme Court has advised that ripeness questions are “best seen in a twofold aspect,
    requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the
    parties of withholding court consideration.” Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 149 (1967).
    Whether the Attorney General may sue to enforce the FHA against national banks depends on
    our interpretation of that statute’s grant of standing, along with our understanding of § 484(a).
    Those questions might be viewed as purely legal ones which would not be significantly clarified
    11
    For the same reason, were the Attorney General to bring an action to enforce the FHA
    against a national bank in state court, the bank could unquestionably remove that action to
    federal court. See 
    28 U.S.C. § 1441
    ; cf. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation
    Trust for S. Cal., 
    463 U.S. 1
     (1983).
    29
    by further factual development. See Thomas v. Union Carbide Agric. Prods. Co., 
    473 U.S. 568
    ,
    581 (1985); Abbott Labs., 
    387 U.S. at 149
    .
    As to the second factor, however, we have serious doubts regarding any hardship that
    Clearing House might suffer were we to defer consideration of this issue. If this were only a
    prudential matter, we might be inclined to afford greater weight to the first aspect of the ripeness
    inquiry. Cf. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 
    538 U.S. 803
    , 814-15 (2003)
    (Stevens, J., concurring). In this case, however, the question of hardship for ripeness purposes
    coincides with the question of whether an “imminent injury in fact” has been established for
    purposes of standing. See, e.g., MedImmune, Inc. v. Genentech, Inc., 
    127 S. Ct. 764
    , 772 n.8
    (2007). The latter is an independent constitutional requirement. See Lujan v. Defenders of
    Wildlife, 
    504 U.S. 555
    , 560 (1992).
    The district court held that Clearing House and its members had suffered injury because
    “[t]he threat of litigation in this case is not merely conjectural or hypothetical.” Clearing House
    v. Spitzer, 
    394 F. Supp. 2d at
    626 (citing O’Shea v. Littleton, 
    414 U.S. 488
    , 496-97 (1974)).
    Although no enforcement action has yet been filed, the district court noted the Attorney
    General’s stated intention to file such an action in the absence of an injunction, as well as his
    belief that the HMDA data are sufficient to establish a prima facie case of racial discrimination
    under both federal and state fair lending laws. See 
    id.
    The Supreme Court has recognized that “where threatened action by government is
    concerned, we do not require a plaintiff to expose himself to liability before bringing suit to
    challenge the basis for the threat – for example, the constitutionality of a law threatened to be
    30
    enforced.” MedImmune, 
    127 S. Ct. at 772
    ; see also Steffel v. Thompson, 
    415 U.S. 452
    , 459
    (1974) (holding that where a threat of prosecution is concrete and not merely speculative, “it is
    not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to
    challenge a statute that he claims deters the exercise of his constitutional rights”). However, the
    various factors giving rise to that principle are mostly absent here. Because Clearing House
    challenges the Attorney General’s right to enforce the FHA against its members, but does not
    contest the validity of the federal statute itself or its applicability to national banks, there is no
    risk that the threat of enforcement would chill conduct in which the banks could otherwise
    legally engage. Cf. Marchi v. Bd. of Coop. Educ. Servs. of Albany, 
    173 F.3d 469
    , 478-79 (2d Cir.
    1999); St. Martin’s Press, Inc. v. Carey, 
    605 F.2d 41
    , 44 (2d Cir. 1979).
    Nor are Clearing House’s members faced with the dilemma confronted in Ex Parte
    Young, 
    209 U.S. 123
     (1908), where to test the validity of an allegedly unconstitutional state
    regulation, the company would have been required to find an agent or employee to disobey the
    regulation at the risk of a fine or imprisonment. 
    Id. at 145-46
    ; see also Yakus v. United States,
    
    321 U.S. 414
    , 437-38 (1944). Nor is this a situation in which compliance with a challenged law,
    prior to its enforcement, would force Clearing House’s members to incur immediate expenses,
    make changes in their daily activity, or otherwise would affect their “primary conduct.” Cf. Nat’l
    Park Hospitality Ass’n, 
    538 U.S. at 810
    ; Abbott Labs., 
    387 U.S. at 152-53
    . As we have already
    emphasized, Clearing House and its members are required to abide by the fair lending provisions
    of the FHA regardless of whether the New York Attorney General has the authority to enforce
    those provisions.
    31
    Finally, we see no risk that, in the absence of an injunction, the Attorney General will
    continue to investigate Clearing House’s members prior to filing an enforcement action. Under
    state law, the Attorney General has broad authority to investigate illegality as well as the power
    to issue subpoenas. McKinney’s Exec. Law § 63(12); see OCC v. Spitzer, 
    396 F. Supp. 2d at 388
    . No analogous pre-enforcement mechanism exists under the FHA, however, and the
    Attorney General does not contend otherwise. Should the Attorney General ultimately decide to
    pursue an action to enforce the federal statute, Clearing House could assert its objection
    immediately before a court, without subjecting itself to any punitive consequences.
    For similar reasons, we see no contradiction between our decision to affirm the relief
    granted by the district court in OCC v. Spitzer and our determination that the FHA claim at issue
    is not ripe for adjudication. Although the Attorney General had not filed a lawsuit to enforce
    Executive Law § 296-a, the threat that he might do so became imminent when he issued letters of
    inquiry to the banks and their subsidiaries. Those letters – in which the Attorney General
    threatened to invoke his subpoena power – required the banks to take affirmative steps in
    response or else risk finding themselves in violation of state law, despite their belief that the
    Attorney General’s authority to enforce such law was federally preempted. Here, by contrast, the
    Attorney General never mentioned the FHA until after Clearing House filed this action. The
    Attorney General’s mere assertion, made during trial, that he had the authority to bring a parens
    patriae action under the FHA did not result in any direct or immediate consequences and did not
    require Clearing House’s members to alter their “primary conduct” in any way that would affect
    our ripeness analysis.
    32
    Because it was unripe, the district court lacked jurisdiction over Clearing House’s claim
    regarding enforcement of the FHA. We therefore vacate the injunction against the Attorney
    General’s enforcement of the FHA and remand the case to the district court to dismiss that claim.
    Prudential considerations also weigh in favor of this result. Despite the Attorney General’s
    stated intentions at the outset of the litigation, it is not certain that he will file an enforcement
    action under the FHA against national banks now or in the foreseeable future. Since it is unclear
    what the precise contours of such an action would be, we are neither sure of the exact harm that
    might be alleged nor of the relief that might be sought.
    Moreover, this Court has never had occasion to address the underlying question of
    whether a state attorney general has standing to sue as parens patriae under the FHA. Cf.
    Support Ministries for Pers. With AIDS, Inc. v. Vill. of Waterford, 
    799 F. Supp. 272
    , 279
    (N.D.N.Y. 1992) (concluding that New York State had parens patriae standing to maintain a suit
    under the FHA); Hous. Auth. of the Kaw Tribe of Indians of Okla. v. City of Ponca, 
    952 F.2d 1183
    , 1195 (10th Cir. 1991) (holding that a state housing authority could be considered a
    “person” for purposes of standing under the FHA). Though we do not believe it would be
    appropriate to do so in the first instance on the basis of the hypothetical action posited in this
    case, we note that both Congress and the Supreme Court have made clear that standing to sue
    under the FHA is extraordinarily permissive. See infra. As a result, the question of whether the
    NBA precludes state attorneys general from seeking to enforce the FHA against national banks is
    significantly more complicated than the district court’s analysis suggests.
    The FHA includes a broad remedial provision that allows any “aggrieved person” to bring
    33
    an action in district court on the basis of a discriminatory housing practice. 
    42 U.S.C. § 3613
    (a)(1)(A). The Supreme Court has interpreted the language of this provision as evincing “a
    congressional intention to define standing as broadly as is permitted by Article III of the
    Constitution.” Trafficante v. Metro. Life Ins. Co., 
    409 U.S. 205
    , 209 (1972) (internal quotation
    marks omitted); see also Havens Realty Corp. v. Coleman, 
    455 U.S. 363
    , 379 (1982) (holding
    that a non-profit organization had standing to sue under the FHA); Gladstone Realtors v. Vill. of
    Bellwood, 
    441 U.S. 91
    , 109-11 (1979) (holding that a municipality had standing to sue as an
    aggrieved person under the FHA, and reiterating Trafficante’s broad interpretation of standing
    under the statute).12 Congress itself “reaffirm[ed] the broad holdings of these cases” when it
    adopted amendments to the FHA in 1988. H.R. Rep. No. 100-711, at 23 (1988), as reprinted in
    1988 U.S.C.C.A.N. 2173, 2184 (citing Havens Realty and Gladstone). As the district court
    recognized, we have generally interpreted such broad grants of standing as reflecting
    “Congressional intent to permit states to enforce the rights protected by federal statutes through
    parents patriae actions.” Clearing House v. Spitzer, 
    394 F. Supp. 2d at
    628 (citing Connecticut
    v. Physicians Health Servs. of Conn., Inc., 
    287 F.3d 110
    , 121 (2d Cir. 2002)). In light of these
    powerful indicators that Congress intended expansive standing to enforce the FHA, we are
    reluctant to consider arguments for restricting that standing on the basis of what is at best an
    12
    At trial, the Attorney General maintained that he would have standing to sue under the
    FHA as an aggrieved person, based on the State’s proprietary interests, as well as in a parens
    patriae capacity. Both Clearing House and the OCC agreed below that such a proprietary claim
    was not ripe, and the district court declined to consider it because it was “conjectural.” Clearing
    House v. Spitzer, 
    394 F. Supp. 2d at
    627 n.1. The Attorney General has not sought to revive this
    claim on appeal, and so we likewise decline to address it here.
    34
    incomplete record.
    *     *      *
    For the foregoing reasons, we AFFIRM the district court’s judgment in OCC v. Spitzer.
    We AFFIRM in part and VACATE in part the district court’s separate judgment in Clearing
    House v. Spitzer, and we REMAND with instructions for the district court to dismiss the Fair
    Housing Act claim for lack of subject matter jurisdiction.
    35
    CARDAMONE, Circuit Judge, Concurring in part, and dissenting in part:
    By proscribing the enforcement of nonpreempted state law
    against national banks the Office of the Comptroller of the
    Currency, a bureau within the U.S. Treasury Department, has
    altered the compact between the state and national governments.
    That compact crafted by the framers of our Constitution
    envisioning two independent co-existing sovereigns will be
    dangerously weakened should this action by the Executive branch
    stand.    A co-equal relationship between the two sovereigns was
    built into the frame of our republican form of government.
    Changing that status to one more akin to parent-child or
    employer-employee tips the federalism scales and strips the
    states of a portion of the residual sovereignty granted them
    under the Tenth Amendment by casting the states into a permanent
    junior or inferior position vis-à-vis the national government.
    Thus, if the power to alter the relationship between the state
    and federal government is established, it portends the power to
    destroy the constitutional concept of federalism, an
    indispensable component of our free society.
    This case arose when the Attorney General of New York
    discovered significant disparities based on race in interest
    36
    rates charged by some national banks and their state chartered
    subsidiaries operating in New York.    He found, for example,
    minority borrowers at Wells Fargo Bank, J.P. Morgan Chase,
    Citigroup and HSBC paid higher rates of interest for mortgage
    loans than did white borrowers.    If discrimination is proved,
    such conduct violates New York and federal law.    Accordingly, the
    Attorney General launched an investigation into these banks'
    predatory practices.   Plaintiffs the Clearing House Association,
    L.L.C. (Clearing House) and the Office of the Comptroller of the
    Currency (Comptroller or OCC) moved to enjoin the state Attorney
    General and obtained a trial on the merits in the United States
    District Court for the Southern District of New York (Stein, J.),
    at the conclusion of which Judge Stein ruled the Attorney General
    could not enforce New York's nonpreempted laws against a national
    bank.   This ruling and the permanent injunction the district
    court later issued prompted the present appeal.
    With respect to the majority's view of this appeal, I agree
    with my colleagues that we lack subject matter jurisdiction to
    review the Fair Housing Act issue in Clearing House Ass'n, L.L.C.
    v. Spitzer (Clearing House v. Spitzer), 
    394 F. Supp. 2d 620
    (S.D.N.Y. 2005), and I concur in a remand.    But, I respectfully
    37
    dissent from that portion of the majority opinion affirming in
    part the district court's judgment in Clearing House v. Spitzer
    and affirming the court's separate judgment in Office of the
    Comptroller of the Currency v. Spitzer (OCC v. Spitzer), 
    396 F. Supp. 2d 383
     (S.D.N.Y. 2005).    I do not believe Chevron deference
    is due to the promulgation by the OCC of 
    12 C.F.R. § 7.4000
    barring New York State from enforcing its civil rights laws in
    this case.
    DISCUSSION
    I     Federalism
    A principal issue on this appeal is federalism, which is
    focused on the tension that exists, as here, when a state law and
    a federal regulation conflict.    Federalism is built into the
    structure of our Constitution that establishes a system of dual
    sovereigns, that is, the state and the federal government.    In
    the felicitous words of Chief Justice Salmon Chase, "The
    Constitution, in all its provisions, looks to an indestructible
    Union, composed of indestructible States."    Texas v. White, 74
    U.S. (7 Wall.) 700, 725 (1868).    As James Madison, the father of
    the Constitution, wrote in an essay in support of the
    Constitution's adoption
    38
    The powers delegated by the proposed
    Constitution to the federal government are
    few and defined. Those which are to remain
    in the State governments are numerous and
    indefinite. . . . The powers reserved to the
    several States will extend to all the objects
    which, in the ordinary course of affairs;
    concern the lives, liberties, and properties
    of the people, and the internal order,
    improvement, and prosperity of the State.
    The Federalist No. 45, at 303 (James Madison) (Sesquicentennial
    ed., 1937).
    At the adoption of the Bill of Rights, the Tenth Amendment
    enshrined the concept of federalism:    "The powers not delegated
    to the United States by the Constitution, nor prohibited by it to
    the States, are reserved to the States respectively, or to the
    people."   U.S. Const. amend. X.    The Supreme Court believes that
    one of the great benefits of the federalist system is that it
    serves as a built in check on abuses of governmental power by a
    state or by the federal government, so long as there is a
    "healthy balance of power" between them.     Gregory v. Ashcroft,
    
    501 U.S. 452
    , 458 (1991).   The framers recognized that whatever
    state powers were surrendered to the new federal government, they
    were limited so as to be with respect to "certain enumerated
    objects only"; the states retained "a residuary and inviolable
    39
    sovereignty over all other objects."    The Federalist No. 39, at
    249 (James Madison).   Federalism assumes the state and federal
    governments have concurrent authority over the people, Printz v.
    United States, 
    521 U.S. 898
    , 919-20 (1997).    Hence, in Printz the
    Supreme Court ruled it unconstitutional for Congress to
    commandeer the chief law enforcement officer of each local
    jurisdiction to conduct background checks of prospective handgun
    purchasers under the Brady Act.    Such a command under the Act,
    the High Court ruled, violates states' residual sovereignty by
    compelling them to administer a federal regulatory program.      
    Id. at 932-33
    .
    In the case at hand, we do not have the federal government
    compelling the states to take some action.    Instead, we have a
    federal executive official -- the Comptroller of the Currency --
    usurping "residual power reserved to the states."    Here, the
    power usurped is the police power to investigate certain national
    banks and their operating subsidiaries doing business in New York
    allegedly guilty of discriminatory lending practices in the
    state.
    In discussing federalism in United States v. Lopez, 
    514 U.S. 549
     (1995), the Supreme Court observed the healthy balance
    40
    between state and federal sovereignties is an obligation of all
    government officials.    
    Id. at 578
    .   It is so vital in preserving
    our freedom that a court should not refuse to intervene when the
    federal or state government has "tipped the scales too far."      
    Id.
    The record on this appeal reveals that an administrative official
    in the Executive branch -- not Congress -- has tipped the scales
    too far, which should in my view prompt us to intervene.
    II   Visitorial Power Under the National Bank Act
    A.   National Bank Act
    I turn now to the statutory backdrop for this litigation.
    The National Bank Act, 
    12 U.S.C. § 21
     et seq. (2001), first
    enacted in 1863 and reenacted in 1864, provides for the formation
    and regulation of national banks.      See U.S. Nat'l Bank of Or. v.
    Indep. Ins. Agents of Am., Inc., 
    508 U.S. 439
    , 449 (1993).
    Rather than displacing the state banking system, the National
    Bank Act established what has come to be known as the dual
    banking system, in which federal and state chartered banks
    coexist in relative "competitive equality."      See generally First
    Nat'l Bank in Plant City v. Dickinson, 
    396 U.S. 122
    , 131-33
    (1969).   National banks are federal instrumentalities, in that
    they are organized and exist under the laws of the United States,
    41
    but they are also privately owned businesses headquartered in a
    particular state and, in general, subject to the laws of that
    state.   See Nat'l Bank v. Commonwealth, 76 U.S. (9 Wall.) 353,
    361-62 (1869); Guthrie v. Harkness, 
    199 U.S. 148
    , 157 (1905);
    Keith R. Fisher, Toward a Basal Tenth Amendment:    A Riposte to
    National Bank Preemption of State Consumer Protection Laws, 
    29 Harv. J.L. & Pub. Pol'y 981
    , 1002-03 (2006).
    B.    Visitorial Power
    Section 484 of the National Bank Act 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.
    
    12 U.S.C. § 484
    (a) (2001).    Whether New York State is attempting
    to exercise "visitorial powers" over national banks is a matter
    of controversy in this case.    The American legal scholar Roscoe
    Pound traced the history of visitorial jurisdiction, beginning
    with canon law, from which the concept originated, when
    visitations by bishops to parishes took place to remedy abuses
    and to make sure church matters were handled decently and in
    order.   In the common law America inherited from England all
    42
    corporations are subject to visitation to ensure their abiding by
    the purposes of the charter that created them.   Roscoe Pound,
    Visitatorial Jurisdiction over Corporations in Equity, 
    49 Harv. L. Rev. 369
     (1936).
    Early interpretations of the term emphasized the supervisory
    nature of visitorial authority.    See, e.g., First Nat'l Bank of
    Youngstown v. Hughes, 
    6 F. 737
    , 740 (6th Cir. 1881), appeal
    dismissed, 
    106 U.S. 523
     (1883).    In Guthrie, the Supreme Court
    explained that visitation is the "act of a superior or
    superintending officer, who visits a corporation to examine into
    its manner to conducting business, and enforce an observance of
    its laws and regulations."   
    199 U.S. at 158
    ; see also Watters v.
    Wachovia Bank, N.A., 
    127 S. Ct. 1559
    , 1568 (2007) (same).
    The state Attorney General has not expressed an interest in
    analyzing national banks' activities under their national banking
    charter, but instead is exercising his authority under the
    state's police power to investigate civil rights violations being
    committed by New York entities in New York.   In response to
    troubling indicia of discrimination in the terms of mortgages
    issued in New York, see generally Manny Fernandez, Racial
    Disparity Found Among New Yorkers with High-Rate Mortgages, N.Y.
    43
    Times, Oct. 15, 2007, at B1, the Attorney General asserts his
    right to conduct reasonable investigations of national banks --
    just as he does of other citizens located in New York -- as part
    of his duty to enforce a state law of general application.   Under
    § 296-a of New York's Human Rights Law it is an unlawful
    discriminatory practice for a bank to discriminate against an
    applicant for credit because of the applicant's "race, creed,
    color, national origin, . . ."   
    N.Y. Exec. Law § 296
    -a (McKinney
    2005).   The statute expressly states the Human Rights Law "shall
    be deemed an exercise of the police power of the state" to
    protect "the public welfare, health and peace of the people of
    this state."    
    Id.
     § 290(2).
    C.    Authority of States to Enforce Nonpreempted
    State Laws Against National Banks
    While the precise contours of the term "visitorial powers"
    in the national banking context have not been fully delineated,
    it is clear that virtually from the inception of the National
    Bank Act the term was not understood to preclude state
    enforcement of nonpreempted state laws.    See Waite v. Dowley, 
    94 U.S. 527
    , 528, 534 (1876) (affirming, in suit brought by town
    treasurer, state court judgment imposing penalty on national bank
    44
    cashier for failing to comply with state law).
    Considerable authority supports the proposition that states
    have the authority to enforce such laws against national banks.
    For example, the Supreme Court held in 1924 that the National
    Bank Act did not impede the ability of a state attorney general
    to bring an action against a national bank to enforce a valid
    state law prohibiting the establishment of branch banks.   First
    Nat'l Bank in St. Louis v. Missouri, 
    263 U.S. 640
    , 659-60 (1924);
    see also First Nat'l Bank of Bay City v. Fellows, 
    244 U.S. 416
    ,
    421-22 (1917) (considering and denying on merits state attorney
    general's quo warranto action testing authority of national bank
    to engage in trust services under state and federal law); Minn.
    v. Fleet Mortgage Corp., 
    158 F. Supp. 2d 962
    , 966 (D. Minn. 2001)
    (holding that state could bring action to enforce state fraud and
    deceptive trade practice laws against national bank); Alaska v.
    First Nat'l Bank of Anchorage, 
    660 P.2d 406
    , 425-26 (Alaska 1982)
    (holding that state could sue national bank to enforce state
    consumer protection laws); Peoples Savs. Bank v. Stoddard, 
    102 N.W.2d 777
    , 782, 796-97 (Mich. 1960) (applying, in suit brought
    by state attorney general, state antitrust law to national bank);
    cf. Dickinson, 
    396 U.S. at 129, 130, 138
     (denying declaratory and
    45
    injunctive relief to national banking association following state
    comptroller's letter requesting national bank to cease and desist
    activities prohibited by state law and incorporated into federal
    law under 
    12 U.S.C. § 36
    (c)); Brown v. Clarke, 
    878 F.2d 627
    , 629,
    632 (2d Cir. 1989) (affirming, in suit brought by state banking
    commissioner, judgment barring national bank from engaging in
    branching activity prohibited by state law and incorporated into
    federal law under 
    12 U.S.C. § 36
    (c)); Utah ex rel. Dep't of Fin.
    Insts. v. Zions First Nat'l Bank of Ogden, 
    615 F.2d 903
    , 904, 906
    (10th Cir. 1980) (same); Nuesse v. Camp, 
    385 F.2d 694
    , 700 (D.C.
    Cir. 1967) (finding state banking commissioner could intervene in
    suit to enjoin Comptroller of Currency from authorizing national
    bank to open branch in contravention of state law as incorporated
    into federal law under 
    12 U.S.C. § 36
    (c)); Jackson v. First Nat'l
    Bank of Valdosta, 
    349 F.2d 71
    , 75 (5th Cir. 1965) ("[W]here there
    is authority to proceed against national banking associations,
    even if in terms it is only authority to proceed against
    violations of state law, the subsumption of state substantive law
    as the regulating principle for national banking associations
    concerning branching carries with it the right of the State
    Superintendent of Banks to see to it that that substantive law is
    46
    enforced.").
    Not only have federal and state courts repeatedly affirmed
    the authority of states to enforce nonpreempted state law against
    national banks, Congress has also emphasized the importance of
    the dual banking system generally and, more specifically, the
    importance of the ordinary application of state laws to national
    banks.   When Congress enacted the Riegle-Neal Interstate Banking
    and Branching Efficiency Act in 1994, it specifically subjected
    interstate branches of national banks to the laws of their host
    states in the areas of community reinvestment, consumer
    protection, fair lending, and intrastate branching.   See 
    12 U.S.C. § 36
    (f) (2001).   The House Conference Report stated that
    States have a strong interest in the
    activities and operations of depository
    institutions doing business within their
    jurisdictions, regardless of the type of
    charter an institution holds. In particular,
    States have a legitimate interest in
    protecting the rights of their consumers,
    businesses, and communities. . . . Congress
    does not intend that the Interstate Banking
    and Branching Efficiency Act of 1994 alter
    this balance and thereby weaken States'
    authority to protect the interests of their
    consumers, businesses, or communities.
    H.R. Rep. No. 103-651, at 53 (1994), as reprinted in 1994
    U.S.C.C.A.N. 2068, 2074.
    47
    III    Section 7.4000 is Not Entitled to Chevron Deference
    A.   Action of the OCC
    It is against this statutory and case law background that,
    in 1999, the Comptroller issued a revised regulation interpreting
    § 484's prohibition on the exercise of visitorial powers over
    national banks to preclude states from enforcing in court
    nonpreempted state laws.   
    12 C.F.R. § 7.4000
    .   Rather than
    preempting state law, § 7.4000 preempts the ability of a state
    government to enforce concededly nonpreempted state law.    By
    limiting the power of the state to enforce applicable state law
    and vesting that authority in a federal agency under § 7.4000,
    the usual constitutional balance of power between the states and
    the federal government is heavily tilted towards the federal
    government, and the Tenth Amendment is put in peril.    Because
    there is no evidence that Congress planned for such a shift to
    occur, § 7.4000 must be set aside.
    B.    Regulation Not Authorized Under the Supremacy Clause
    To avoid facing the conflict this regulation poses to the
    balance crafted by the Tenth Amendment, the majority applies to
    § 7.4000 the deferential review laid out in Chevron U.S.A., Inc.
    v. Natural Resources Defense Council, 
    467 U.S. 837
     (1984).       The
    48
    majority's apparent assumption is that a federal regulation
    preempting a state's ability to enforce state law is no more
    troubling or problematic than a regulation substantively
    preempting state law.   I strongly disagree.   By leaving state
    substantive law in place, while at the same time denying the
    state any role in enforcing that law, § 7.4000 erodes a key
    aspect of state sovereignty, confuses the paths of political
    accountability, and allows a federal regulatory agency to have a
    substantial role in shaping state public policy.     The likely
    result of which is a plain transgression on our republican form
    of government and a violation of the Tenth Amendment.
    Further and significantly, the Supremacy Clause in article
    VI, clause 2 grants the power to preempt state law to the
    Congress, not to appointed officials in the Executive branch.
    Even when there is preemption by a federal agency, it may only
    occur within the scope of authority unmistakably delegated to it
    by Congress.   Such authority does not exist here.    In such cases,
    it is well established that an agency's construction of a statute
    that upsets the usual constitutional balance between federal and
    state powers is never entitled to deferential review under
    Chevron.   See Solid Waste Agency of N. Cook County v. U.S. Army
    49
    Corps of Eng'rs, 
    531 U.S. 159
    , 172 (2001).      Instead, the courts
    require a clear indication that Congress intended that result.
    
    Id.
       The requirement for a clear expression of congressional
    intent
    . . . stems from our prudential desire not to
    needlessly reach constitutional issues and
    our assumption that Congress does not
    casually authorize administrative agencies to
    interpret a statute to push the limit of
    congressional authority. This concern is
    heightened where the administrative
    interpretation alters the federal-state
    framework by permitting federal encroachment
    upon a traditional state power.
    
    Id. at 172-73
    ; see also Gregory, 
    501 U.S. at 460-61
     ("If Congress
    intends to alter the usual constitutional balance between the
    States and the Federal Government, it must make its intention to
    do so unmistakably clear in the language of the statute.").
    C.    Law Enforcement Core Aspect of State Sovereignty
    It is difficult to imagine a more core aspect of state
    sovereignty than the authority to pass and enforce valid
    nonpreempted state laws.      "[T]he power to create and enforce a
    legal code, both civil and criminal is one of the quintessential
    functions of a State."       Diamond v. Charles, 
    476 U.S. 54
    , 65
    (1986).       The Supreme Court has repeatedly emphasized that states'
    50
    ability to pass and enforce their own laws is an essential
    attribute of state sovereignty.     See, e.g., United States v.
    Wheeler, 
    435 U.S. 313
    , 320 (1978) ("Each [state] has the power,
    inherent in any sovereign, independently to determine what shall
    be an offense against its authority and to punish such
    offenses."); cf. Calderon v. Thompson, 
    523 U.S. 538
    , 556 (1998)
    ("Our federal system recognizes the independent power of a State
    to articulate societal norms through criminal law; but the power
    of a State to pass laws means little if the State cannot enforce
    them.").
    In criminal law, the doctrine of dual sovereignty has
    evolved to protect the substantial state interest in the
    enforcement of its criminal code.      The Supreme Court has
    explained that separate federal and state prosecutions for the
    same unlawful act do not offend the Double Jeopardy Clause
    because "[f]oremost among the prerogatives of sovereignty is the
    power to create and enforce a criminal code" and "[a] State's
    interest in vindicating its sovereign authority through
    enforcement of its laws by definition can never be satisfied by
    another State's enforcement of its own laws."      Heath v. Alabama,
    
    474 U.S. 82
    , 93 (1985); see also Bartkus v. Illinois, 
    359 U.S. 51
    121, 137 (1959) (holding that a federal prosecution cannot
    "displace the reserved power of States over state offenses" and
    that the opposite result "would be in derogation of our federal
    system").
    D.   St. Louis v. Missouri
    But it is not necessary to turn to the constitutional
    principles underlying the dual sovereignty doctrine to
    demonstrate that nonpreempted state laws may be enforced by a
    state against national banks.    The Supreme Court has addressed
    this precise issue in a precedent that is now over eighty years
    old.    In St. Louis, the attorney general of Missouri brought a
    quo warranto proceeding in Missouri state court against a
    national bank alleging that the bank had violated a state law
    prohibiting the establishment of branch banks.     
    263 U.S. at 655
    .
    The national bank responded by asserting, inter alia, that, even
    if the state statute could be validly applied to a national bank,
    the state could not maintain a proceeding in court to enforce it.
    
    Id. at 655, 660
    .    The Supreme Court soundly rejected this
    argument, stating
    . . . since the sanction behind [the state
    statute] is that of the State and not that of
    the National Government, the power of
    52
    enforcement must rest with the former and not
    with the latter. 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.
    
    Id. at 660
    .
    The majority's attempts to distinguish St. Louis are
    unavailing.   Although St. Louis did not discuss the term
    "visitorial powers" by name, the result in that case would have
    been logically impossible were the OCC's interpretation of the
    term correct.   In affirming Missouri's authority to enforce valid
    state laws against a national bank, the Supreme Court in St.
    Louis drew a distinction between permissible state action "to
    vindicate and enforce its own law," on the one hand, and
    impermissible state action to "enforce a law of the United
    States" or "call the bank to account for an act in excess of its
    charter powers," on the other.   
    Id.
       It is no coincidence that
    the state actions that the St. Louis Court indicated would be
    impermissible under the National Bank Act -- actions to ensure
    that a national bank is complying with its charter or the law of
    its creation -- line up precisely with the definition of
    "visitorial power" provided by the Court in Guthrie.    See
    53
    Guthrie, 
    199 U.S. at 158
     (explaining visitation).
    E.   Traditional Federal-State Balance Upset
    Not only does § 7.4000 upset the traditional federal-state
    balance by intruding upon a core state function, but it does so
    in a way that potentially blurs the distinct lines of political
    accountability between citizens and the federal and state
    governments.
    The theory that two governments accord more
    liberty than one requires for its realization
    two distinct and discernable lines of
    political accountability: one between the
    citizens and the Federal Government; the
    second between the citizens and the States.
    If . . . the Federal and State Governments
    are to control each other, and hold each
    other in check by competing for the
    affections of the people, those citizens must
    have some means of knowing which of the two
    governments to hold accountable for the
    failure to perform a given function.
    Lopez, 
    514 U.S. at 576-77
     (Kennedy, J., concurring).    By keeping
    state law in effect, but removing from state executives the power
    to enforce that law in court, § 7.4000 confuses which
    governmental entity citizens should hold accountable for the
    enforcement of state laws against national banks.   If the OCC
    fails adequately to enforce state law against national banks,
    state officials could bear the brunt of public disapproval while
    54
    federal officials remain insulated from the electoral
    ramifications of their enforcement policies.      Cf. New York v.
    United States, 
    505 U.S. 144
    , 169 (1992) (raising parallel concern
    in context of federal legislation compelling states to regulate
    disposal of radioactive waste).    "Accountability is thus
    diminished when, due to federal coercion, elected state officials
    cannot regulate in accordance with the views of the local
    electorate in matters not preempted by federal regulation."         
    Id.
    Similarly, the federal government is unlikely to be as
    motivated or as effective as the states in responding to the
    complaints of a particular state's citizenry regarding the
    enforcement of that state's laws.      Here, amici for appellant echo
    numerous state officials, consumer groups and academic authors in
    expressing concern that the OCC may lack the capability and
    commitment to protect consumers with the vigor applied by state
    attorneys in the past.     See, e.g., U.S. Gen. Accounting Office,
    OCC Consumer Assistance:    Process is Similar to That of Other
    Regulators but Could be Improved by Enhanced Outreach 23-24
    (2006) (noting concerns of local officials and consumer group
    representatives); Fisher, supra, at 1006 (commenting on state
    officials' proactive enforcement of consumer protection statutes
    55
    in cases that federal agencies were "unable or unwilling" to
    pursue).
    Perhaps of most concern is the role § 7.4000 gives to a
    federal agency in shaping state policy.   While the regulation
    does not mandate that a state legislature institute a particular
    regulatory regime, there is no doubt that the ultimate contours
    of state policies will be shaped by the decisions the OCC makes
    regarding how to -- and how not to -- enforce state laws against
    national banks.   As the Supreme Court has observed, "[e]xecutive
    action that has utterly no policymaking component is rare."
    Printz, 
    521 U.S. at 927
    .
    In light of the implications that § 7.4000 has for state
    sovereignty and the core state function of the enforcement of
    valid state law, a clear statement of congressional purpose to do
    so is necessary to support the OCC's interpretation of the term
    visitorial powers.   Because Congress has provided no such
    indication, the regulation should be set aside and the district
    court's judgments in OCC v. Spitzer, supra, and Clearing House v.
    Spitzer, supra, vacated.
    IV   Watters Decision
    Finally, the Supreme Court's recent decision in Watters does
    56
    not lead to a contrary result.    In Watters, the Supreme Court
    confronted the question of whether a state can exercise
    visitorial powers over national bank operating subsidiaries.      127
    S. Ct. at 1564.   There was no question that the state statute at
    issue in that case constituted an exercise of visitorial power
    over such subsidiaries.   Id.    The statute attempted to empower
    the state banking commissioner with general supervision and
    control over the operating subsidiaries and subjected them to
    various licensing, registration, and inspection requirements.
    Id. at 1565-66.   In finding that the National Bank Act's
    prohibition on the exercise of visitorial powers applied to
    national bank subsidiaries to the same extent that it applied to
    national banks, Watters reaffirmed the basic principle that "when
    state prescriptions significantly impair the exercise of [the
    national bank's] authority, enumerated or incidental under the
    NBA, the State's regulations must give way."     Id. at 1567.
    Watters thus concerned the relatively familiar case in which
    a state statute was substantively preempted by federal law.     The
    questions raised by the regulation at issue in this case are very
    different.   Here, there is no dispute that Congress could -- but
    has chosen not to -- preempt the state law that the New York
    57
    Attorney General is attempting to enforce.   The crucial question
    is rather whether the OCC can interpret the National Bank Act to
    limit state regulation of national banks in this way.   This case
    calls on this Court to determine whether Congress aimed to vest
    the enforcement of valid state law against national banks
    entirely in the hands of a federal agency.   As the majority
    concedes, Watters had no occasion to address directly this unique
    and complex question.
    CONCLUSION
    Accordingly, for the reasons stated above, § 7.4000 should
    be set aside and OCC v. Spitzer, supra, and Clearing House v.
    Spitzer, supra, vacated.   Thus, while I concur in the majority's
    determination that the Fair Housing Act claim in Clearing House
    v. Spitzer, should be dismissed, I respectfully dissent from that
    part of the majority's decision that affirms the district court
    judgments.
    58
    59
    

Document Info

Docket Number: 05-5996-cv (L) & 05-6001-cv (CON)

Filed Date: 12/4/2007

Precedential Status: Precedential

Modified Date: 9/17/2015

Authorities (59)

jacinta-skubel-by-parents-next-friends-michael-eva-travis-hardy-by , 113 F.3d 330 ( 1997 )

Steffel v. Thompson , 94 S. Ct. 1209 ( 1974 )

United States v. Wheeler , 98 S. Ct. 1079 ( 1978 )

Shaw v. Delta Air Lines, Inc. , 103 S. Ct. 2890 ( 1983 )

Gregory v. Ashcroft , 111 S. Ct. 2395 ( 1991 )

United States National Bank v. Independent Insurance Agents ... , 113 S. Ct. 2173 ( 1993 )

Nationsbank of North Carolina, N. A. v. Variable Annuity ... , 115 S. Ct. 810 ( 1995 )

United States v. Lopez , 115 S. Ct. 1624 ( 1995 )

Barnett Bank of Marion County, N. A. v. Nelson , 116 S. Ct. 1103 ( 1996 )

Atherton v. Federal Deposit Insurance Corp. , 117 S. Ct. 666 ( 1997 )

Printz v. United States , 117 S. Ct. 2365 ( 1997 )

Solid Waste Agency of Northern Cook County v. United States ... , 121 S. Ct. 675 ( 2001 )

Farmers' & Mechanics' National Bank v. Dearing , 23 L. Ed. 196 ( 1875 )

Watters v. Wachovia Bank, N. A. , 127 S. Ct. 1559 ( 2007 )

Minnesota Ex Rel. Hatch v. Fleet Mortg. Corp. , 158 F. Supp. 2d 962 ( 2001 )

Clearing House Ass'n, LLC v. Spitzer , 394 F. Supp. 2d 620 ( 2005 )

Office of the Comptroller of the Currency v. Spitzer , 396 F. Supp. 2d 383 ( 2005 )

53-socsecrepser-793-medicare-medicaid-guide-p-45499-state-of-new , 119 F.3d 175 ( 1997 )

First National Bank in Plant City v. Dickinson , 90 S. Ct. 337 ( 1969 )

Easton v. Iowa , 23 S. Ct. 288 ( 1903 )

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