## Facts

- The New York Attorney General investigated whether several national banks violated New York fair-lending laws by engaging in racially discriminatory mortgage lending.
- The Attorney General sent letters to national banks requesting nonpublic mortgage-lending data “in lieu of subpoena.”
- The Office of the Comptroller of the Currency (OCC) and the Clearing House Association sued to stop New York from seeking records or enforcing New York fair-lending laws against national banks.
- Plaintiffs relied on the National Bank Act (NBA) provision limiting “visitorial powers,” 12 U.S.C. § 484(a), and the OCC’s regulation, 12 C.F.R. § 7.4000, asserting exclusive federal visitorial authority over national banks.
- The district court enjoined the Attorney General from enforcing state fair-lending laws against national banks through record demands or judicial proceedings.
- The Second Circuit affirmed, treating the Attorney General’s efforts as prohibited visitorial activity under § 484(a) and the OCC regulation.

## Issues

1. Whether 12 U.S.C. § 484(a) and 12 C.F.R. § 7.4000 preclude a state attorney general from enforcing state fair-lending laws against national banks by characterizing such enforcement as prohibited “visitorial powers.”
2. Whether a state’s administrative demands for records from national banks constitute prohibited visitorial supervision distinct from judicial law-enforcement actions.

## Decision

- The Supreme Court held, 5–4, that the OCC regulation could not reasonably be read to preempt state judicial enforcement of nonpreempted state laws against national banks.
- The Court drew a distinction between (a) forbidden state “visitorial” supervision and (b) permissible state law enforcement through court actions.
- The Court ruled that New York could not use administrative oversight tools against national banks, including unilateral demands for nonpublic records styled “in lieu of subpoena.”
- The Court ruled that New York could bring judicial actions in state or federal court to enforce nonpreempted state fair-lending laws against national banks.
- Disposition: affirmed in part and reversed in part, leaving in place the bar on state visitorial actions while permitting state judicial enforcement.

## Legal Principles

- Under 12 U.S.C. § 484(a), national banks are not subject to state “visitorial powers,” except as authorized by federal law or exercised through the courts.
- “Visitorial powers” historically refer to supervisory oversight of corporate affairs (e.g., examinations, inspections, administrative demands for records), not ordinary law enforcement.
- A state’s power to enforce generally applicable laws through judicial proceedings is distinct from visitorial supervision and is not barred by § 484(a) solely because the defendant is a national bank.
- Agency deference does not extend to an interpretation that collapses the historical line between visitorial oversight and judicial enforcement and thereby claims broad preemptive effect beyond statutory ambiguity.
- States may sue national banks to enforce state laws that are not otherwise preempted, but they may not act as the banks’ administrative supervisor or examiner.

## Conclusion

The Court limited federal exclusivity to supervisory “visitorial” oversight and held that, while New York could not compel records through administrative demands, it could file lawsuits to enforce nonpreempted state fair-lending laws against national banks.


Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519 (2009)