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Exorcising McCulloch: the conflict-ridden history of American banking nationalism and Dodd-Frank preemption.

Conventional wisdom holds that federal laws conferring banking powers on national banks presumptively preempt state laws seeking to control the exercise of those powers. This conventional wisdom originates with McCulloch v. Maryland, which established that nationally chartered banks are federal instrumentalities entitled to regulate themselves free from state law--even when national law fails to address the risks that state law seeks to regulate. Incorporated into the National Bank Act of 1864 by nineteenth-century precedents but then abandoned by the New Deal Court, McCulloch's theory of preemption is being revived today by the Office of the Comptroller of the Currency (OCC) to preempt broad swaths of state law.

This Article maintains that it is time to exorcise McCulloch's theory from our preemption jurisprudence. Far from historically sanctioned, McCulloch's theory that national banks are federal instrumentalities offends a deeply rooted tradition in American political culture and law that I call the "anti-banker nondelegation doctrine." This principle has been manifest in campaigns against national banks' immunities from political oversight, ranging from Andrew Jackson's 1832 veto of the charter of the Second Bank of the United States to Louis Brandeis's 1912 campaign against the "House of Morgan" as a 'financial oligarchy." In contrast to

McCulloch's view of banks as impartial instruments of the federal government, the American political system and the post-New Deal federal courts have adopted the view that federal law should not delegate unsupervised power to private banks to regulate their own operations. Accordingly, if federal regulators displace state laws regulating banking practices, then those federal regulators must explain how federal law addresses the risks that those state laws were attempting to control.

The most recent effort to eliminate McCulloch's theory of preemption is section 1044(a) of the Dodd-Frank Act. Section 1044(a) provides detailed standards governing the OCC's power to preempt state law. This Article argues that the OCC'S 2011 rules mistakenly revive McCulloch's theory of preemption. This revival contradicts not only section 1044(a); it also contravenes the general tradition of distrusting grants to national banks of immunity from state law. Like McCulloch, the OCC's rules draw irrational distinctions between states' general common law doctrines and states' rules specifically directed toward banking practices, and subject the latter to a sort of field preemption. This Article contends that such preemption is unprincipled and mistaken. Instead, it urges courts to follow the ordinary principles of conflict preemption--that is, to find state law preempted only where the OCC has specifically approved the banking practice forbidden by state law.
     A. Jackson's Veto Message and the
        Anti-Banker Nondelegation Doctrine
     B. McCulloch's Federal Instrumentality Theory
        and Banking as a Suspect Classification
        1. McCulloch's Distinction Between Banking-Specific
           Activities and Nonbanking Activities
        2. The National Bank Act of 1864 and the Judicial
           Exhumation of McCulloch
     A. The Panic of 1907 and Brandeis's Revival of
        the Anti-Banker Nondelegation Principle
     B. Judicial Retreat from McCulloch's Field
        Preemption, 1924-1948
     C. Replacing McCulloch with Modern Conflict Preemption
     A. Are the OCC's Preemption Rules Rationally Related
        to the Goal of Market Harmonization?
     B. Are the OCC's Preemption Rules Consistent with
        the Dodd-Frank Act's Standards for Preemption?
     A. Prodding the OCC into Exercising Its Expertise
     B. Presuming Preemption on Functional Grounds:
        A Presumption Against States' Protectionism and
        Expropriation of National Banks' Investments


The federal courts seem to assume a long, unbroken historical consensus that nationally chartered banks ought to be governed by the federal government to the exclusion of state regulation. Since the Supreme Court handed down McCulloch v. Maryland, (1) judges and scholars have commonly declared that "history" has called for centralized law governing nationally chartered banks. As Justice Breyer described preemption of state law under federal laws conferring powers on banks in Barnett Bank of Marion County v. Nelson:
   In using the word "powers," the [National Bank Act] chooses a legal
   concept that, in the context of national bank legislation, has a
   history. That history is one of interpreting 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. (2)

This "history," according to Justice Breyer, requires the presumption that "normally Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress explicitly granted." (3) Thus, there should be no need for judicial straining to figure out a way for state and federal law to coexist. If a bank is authorized by federal law to do something, then that bank's authorization preempts any state law that interferes with a banking power "that Congress explicitly granted"--even if the state law in question is neutral and does not discriminate against national banks. As Jamelle Sharpe describes the doctrine, courts review state regulation of national banks under a "Centralization Default," (4) derived from an alleged jurisprudential tradition of regarding state control of nationally chartered banks with suspicion.

The idea that American history implies this sort of "Centralization Default" has been defended administratively, as well. Consider, as an example of administrative reliance on alleged historical consensus, the justification for the preemption rules issued by the Office of the Comptroller of the Currency (OCC) in the summer of 2011. (5) The OCC's rules construed the Dodd-Frank Act's preemption clauses--which provide that a state consumer financial law is preempted, even if such a law does not single out nationally chartered banks for discriminatory treatment, if the state law "prevents or significantly interferes with the exercise by the national bank of its powers" (6)--as expressly codifying Barnett Bank's preemption standard. (7) Despite the reference to Barnett Bank, one might reasonably infer that this clause was intended to cut back on preemption of state law. After all, it contains unusual requirements that the OCC support preemption by making a "specific finding," (8) on a "case-by-case basis," (9) supported by "substantial evidence, made on the record of the proceeding." (10) Furthermore, the clause provides only Skidmore--not Chevron--deference for agency preemption findings, and it expressly bars field preemption. (11) How could such unusually specific statutory admonitions not be an effort to trim back on the preemption status quo?

Yet the OCC reissued its 2004, pre-Dodd-Frank rules in almost identical terms in the summer of 2011. (12) Despite disavowing field preemption, (13) the OCC declared once more that nationally chartered banks may make non-real estate loans "without regard to state-law limitations concerning" a broad array of topics. (14) George W. Madison, the Department of Treasury's General Counsel, bluntly criticized the 2011 rule for "seem[ing] to take the position that the Dodd-Frank standard has no effect." (15) In response, the OCC predictably trotted out the argument from history: broad preemption had been a "pillar[]" of banking law for "nearly 150 years." (16) Broad preemption, the OCC argued, provided the uniformity of regulation necessary to promote a national market in financial services that would guarantee "prosperity and growth." (17)

The OCC also argued that nationally uniform rules were suggested not only by historical practice but also by the national scale of the financial services market. Technological change (e.g., Internet banking), legal change (e.g., the authorization of interstate bank branching), and increased mobility of consumers caused "[m]arkets for credit (both consumer and commercial), deposits, and many other financial products and services" to become "national, if not international, in scope." (18) Such national markets required "consistent, national standards, regardless of the location of a customer when he or she first becomes a bank customer or the location to which the customer may move after becoming a bank customer." (19) "[D]iverse and potentially conflicting state and local laws" raise compliance costs, and "national banks must either absorb the costs, pass the costs on to consumers, or eliminate various products from jurisdictions where the costs are prohibitive." (20)

In sum, the OCC has justified its preemption rule with a combination of historical precedent and alleged economies of scale achieved by having one set of uniform rules for a national industry. In this Article, I argue that the breadth of the OCC's rule defies both its historical and its policy-based justifications. The OCC's rule preempts state banking laws without making any specific findings about whether federal law adequately addresses the specific risks of bad banking behavior that the particular state banking laws attempt to remedy. Far from being justified by "nearly 150 years" of precedent, this de facto field preemption of state banking law runs afoul of a deeply rooted American legal and political tradition that I term the "anti-banker nondelegation doctrine."

Under this doctrine, national law would supplant state law only if the national lawmakers (whether Congress or agency rulemakers) actually set forth specific national regulatory standards to replace state law. Absent such specific supervision, opponents of private bankers have preferred the inefficiency of state law to the perceived corruption of bankers' self-regulation. But by broadly preempting state laws without inquiring whether federal law provides some substitute protections for the supplanted state rules, the OCC's preemption rule in effect gives private banks autonomy from public oversight. This interpretation runs counter to the anti-banker nondelegation doctrine.

This is not to say that the OCC's wholesale preemption of state banking law is unprecedented. As I argue in Section I.B, the OCC's preemption rule is best explained as a revival of McCulloch's theory that nationally charted banks are "federal instrumentalities" that enjoy the same immunity from state taxation and regulation as genuine agencies of the federal government. As I explain in Part II, however, McCulloch's federal instrumentality theory has long been discredited. Initially rejected by Jacksonian Democrats as an impermissible delegation of governmental power to private financial interests, the ideological underpinnings of McCulloch were further undermined by growing distrust of private bankers after the Panic of 1907, Woodrow Wilson's New Freedom campaign, and Louis Brandeis's campaign against the power of banks to regulate themselves without governmental oversight. Starting in the 1920s, the Supreme Court gradually loosened preemption doctrine to allow state laws to fill gaps in the National Bank Act on specific banking issues. By the end of the New Deal, McCulloch's distinction between general state laws and specifically bank-related state laws was in shambles, replaced by ordinary principles of conflict preemption.

In Part III, I argue that the OCC's 2004 and 2011 rules are a renewed effort to revive McCulloch's theory of field preemption. Under the OCC's rules, states' general common law doctrines are given deference, while states' rules specifically regulating banking practices are presumed to be preempted. The OCC has justified these rules as an effort to secure scale economies through nationally uniform regulations for banking practices that take place on a national scale. But by exempting state common law doctrines, the OCC's rules seem far too underinclusive for this objective. Instead, the OCC's rules seem better calculated to protect private banks' autonomy from state regulation, even when national bank regulators have made no specific findings about the reliability of private banks' self-regulation.

This objective suffers from two flaws: First, the OCC has never articulated any argument for special suspicion of states' banking-specific rules. Second, section 1044(a) of the Dodd-Frank Act, defining the scope of banking preemption, seems to repudiate such across-the-board preemption of state law. Both in its language and its legislative history, section 1044(a) expresses the same anti-banker nondelegation principle as that pressed by Andrew Jackson in 1832 against Nicholas Biddle or by Louis Brandeis in 1912 against the House of Morgan: the principle allowing state law to be set aside by federal regulators only after they specifically examine the risks controlled by state law.

In Part IV, I conclude by outlining a strategy for finally exorcising McCulloch from our preemption doctrine through ordinary rules of conflict preemption. State law should govern banks unless the OCC has specifically approved the banking practice that state law forbids. There are good reasons to nationalize banking policy, including scale economies in risk assessment and suppression of state protectionism. But the traditional suspicion of bankers' influence over the national government suggests that the OCC should approve the specific banking practices that state laws forbid only after making factual findings about the specific concerns addressed by the state laws that are preempted. This is not to say that the OCC could not simply ensure good banking practices by deregulating some aspects of banking and relying on markets untrammeled by state law. Rather, I argue that the adequacy of markets is a topic on which the OCC should bring its expertise to bear, rather than recite preemptive ipse dixit dating from McCulloch.


To understand the OCC's rule on preemption of state law, it is helpful to outline the two rival nineteenth-century theories about federalism and banking in a democracy. Both are deeply rooted in American anxieties about the relationship between democracy and finance, albeit in diametrically opposed ways. The "anti-banker nondelegation doctrine" is rooted in the fear that financiers corrupt democracy through wealth, specialized knowledge, and insider connections. The "federal instrumentality" theory is rooted in the opposite assumption: private bankers properly serve as quasi-governmental agents whose expertise serves federal policy. Under this theory, private bankers need protection from shortsighted democratic excesses of parochial state legislation. The authoritative expositions of these two theories were Chief Justice John Marshall's opinion in McCulloch v. Maryland (21) and President Andrew Jackson's message accompanying his veto of the Second Bank of the United States. (22) These articulations became the symbols of, respectively, the Federalist (and later Whig and Republican) and Democratic constitutional ideologies in the nineteenth century. Their influence lives on today: Jackson's rhetoric animates the attacks on banking preemption that led to the Dodd-Frank Act, while McCulloch's federal instrumentality theory gave life to the 1864 National Bank Act that, as I argue in Part IV, the OCC is attempting to revive with its 2004/2011 rules. (23) In assessing the latter, therefore, it is helpful to see both theories laid out in their pure forms.

A. Jackson's Veto Message and the Anti-Banker Nondelegation Doctrine

President Andrew Jackson's opposition to the Second Bank of the United States had deep cultural and constitutional roots. Since before the ratification of the Constitution, Americans in the economically peripheral Southern and Western regions had been deeply suspicious of banks and the Eastern financial elites they represented. Western Pennsylvanians' opposition to the chartering of the Bank of North America in 1786 was an early manifestation of this suspicion, (24) as was, during the ratification debates, Anti-Federalist opposition to granting Congress the power to charter corporations. (25) The Anti-Federalists believed this power would benefit only speculators at "constant expence to the public." (26) The most obvious precedent for Jackson's opposition to the Second Bank of the United States was Madison and Jefferson's opposition to the First Bank of the United States. (27) The opposition to the First Bank came largely from the South and West, expressed in constitutional terms by three leading Virginian politicians--James Madison, then a Congressman; (28) Edmund Randolph, President Washington's Attorney General; (29) and Thomas Jefferson, Washington's Secretary of State. (30) Their opposition was expressed in constitutional and textual terms as a worry that an implied power to charter the First Bank would destroy "the essential characteristic of the government, as composed of limited and enumerated powers." (31) But underlying these legal arguments was a deeper ideological opposition to high finance, associated with large Northeastern cities--in the opposition's bitter phrases, "speculators & Tories" (32) or stockjobbers. (33) The suspicion that private bankers could corruptly manipulate public officials was a deeply entrenched aspect of Anglo-American ideology, dating back to the South Sea Bubble of 1720. (34) The 1720 financial scandal wracked English politics and inspired twelve dozen essays written by John Trenchard and Thomas Gordon between 1720 and 1723, collectively republished as Cato's Letters. (35) The broad message of Cato's Letters was that officials were always at risk of being corrupted by financial elites in complex ways that voters would not be able to detect. More than a century after the South Sea Bubble popped, Andrew Jackson used its example in his opposition to the Second Bank: "I do not dislike your Bank any more than all banks," Jackson informed Nicholas Biddle, President of the Second Bank, "[b]ut ever since I read the history of the South Sea Bubble I have been afraid of Banks." (36)

In his attack on the Second Bank, Jackson transformed the idea that financiers tend to "capture" the government through insider connections and specialized knowledge into the platform of the Democratic Party. (37) When vetoing the Second Bank, Jackson argued that congressional delegations of power, revenue, and immunities to private corporations should be subjected to what we would call, in modern constitutional parlance, "strict scrutiny": Unless absolutely necessary, such privileges should be deemed outside Congress's implied power under Article I to adopt means necessary and proper for the execution of express powers. According to Jackson's veto message, the federal charter's various grants of exclusive privileges to the Bank were improper because they were not strictly "necessary" for any legitimate federal policy beyond enriching the Bank's investors. (38) In particular, Jackson objected to Congress's decision to grant the Bank exclusive banking privileges in Washington, D.C., (39) an exclusive role as the federal government's fiscal agent, and a special tax exemption not enjoyed by state-chartered banks. "It can not be 'necessary' or 'proper,'" President Jackson complained in his veto message, "for Congress to barter away or divest themselves of any of the powers vested in them by the Constitution to be exercised for the public good.... This restriction on themselves and grant of a monopoly to the bank is therefore unconstitutional." (40)

Unlike Southern opposition to the Bank, which was largely rooted in a desire to prevent federal state-building rather than a desire to control financial elites, (41) Jackson's objection was not that Congress was exercising too much power over banking, but that it was not exercising enough. By delegating exclusive privileges for a fifteen-year period to a single private corporation, Congress was abdicating its responsibility to oversee self-interested private actors. Jackson disliked state-chartered banks as much as the Second Bank of the United States, but state-chartered banks were at least beyond the control of the "great capitalists" like Nicholas Biddle, who, Jacksonians believed, had special influence over federal legislators like Henry Clay and Daniel Webster (42): "The States in which these institutions are situated, can at all times control them, and would effectually interpose to prevent such abuses of power." (43) Democrats were familiar with the idea that democratic processes available through state institutions (44) could legitimize enterprises that would otherwise exercise questionable powers. (45) The problem with the Second Bank was that it stood outside those state democratic processes yet was not subject to federal supervision by the President (who controlled only a fifth of the directors of the Second Bank) or Congress (which, according to Jackson, had bargained away its right to increase the Bank's contribution or grant privileges to rival institutions).

Jacksonian opposition to the Second Bank shows that the anti-banker nondelegation theory was--and remains--perfectly compatible with the goal of imposing nationally uniform laws on banks for the sake of market harmonization. Protecting state power, for Jackson and his "hard money" followers, was a means to the end of controlling financiers, not an end in itself. The important thing was that the banks be democratically controlled, (46) not that any particular level of government control them. Jackson's argument was not that Congress could not charter a national bank, but that Congress could not create such a bank as a self-regulating private institution, liberated from state law yet only minimally supervised by federal officials. The policies of the Jackson and Van Buren Administrations suggest that Democrats were not averse, in principle, to the creation of national institutions that could impose centralized order on banking. For example, the "pet bank" policy adopted by Levi Woodbury, Roger Taney's successor as Jackson's Secretary of the Treasury, forced the national government's "hard money" agenda on private banks by conditioning eligibility to receive federal deposits on not issuing bank notes in small denominations. (47) Replacing "pet banks" with the "independent Treasury system," President Van Buren further strengthened central control of federal revenue by delegating to six federal agencies the duty of holding federal revenue without the power either to lend it themselves or to deposit it in state-chartered banks for private lending. (48) Antebellum Democrats simply disliked public aid to either state- or federally chartered private banks, (49) and they opposed Whig and Republican proposals to secure state-chartered bank notes with federal securities. (50) But "hard money" Democrats eventually became the most enthusiastic supporters of U.S. Treasury Secretary Salmon Chase's proposal to create "greenback" paper money as legal tender notes, because these notes had no connection to private banks. (51)

In sum, the anti-banker nondelegation theory was not a theory of states' rights but a theory of bankers' wrongs. It was a theory of nondelegation, not decentralization. Arguments about the benefits of nationally uniform banking law are, therefore, nonrespo"sive to the theory's demand for active democratic supervision of banking. Federal preemption of state banking laws is perfectly consistent with this theory as long as federal regulators actively supervise private bankers. Such preemption violates the anti-banker nondelegation theory only when it gives private bankers freedom to set banking policy without active democratic supervision.

B. McCulloch's Federal Instrumentality Theory and Banking as a Suspect Classification

McCulloch v. Maryland, (52) a major target of Jackson's veto message, (53) set forth an entirely different model of Congress's authority to delegate powers to private bankers, founded on an entirely different attitude toward bankers' trustworthiness in advancing the public interest.

In holding that the Second Bank was immune from Maryland's tax, Chief Justice Marshall reasoned that the Bank was an agent of the federal government, despite the fact that the federal government did not actually control the president of this private institution who was answerable only to the Bank's mostly private board of directors. (54) In Marshall's reasoning, the Bank counted as a de facto federal agency because it acted as the federal government's exclusive fiscal agent. It was entitled to use federal revenue deposited in its vaults for private banking ventures such as redeeming state bank notes to limit the supply of paper currency. Whatever the Bank did within the scope of this agency was beyond the power of the states to control, for the same reason that the states could not control the letters held by a federal postmaster, the customs receipts held by a customs official, or the damages won by a U.S. Attorney. "Those means are not given by the people of a particular State," Marshall reasoned, "but by the people of all the States. They are given by all, for the benefit of all--and upon theory, should be subjected to that government only which belongs to all." (55)

Taken literally, this theory implied that the Bank should be immune not only from state taxation but also from every other sort of state law--whether contract, tort, property, or criminal law. In Marshall's words, "[T]he States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." (56) But this literal reading would make the Bank a law unto itself, as there was no federal code of tort, contract, crimes, or property that would restrict its operations if state law were preempted. (57) Therefore, Marshall's theory of immunity enshrined in McCulloch would plainly have to be constrained to prevent the Bank from becoming a self-governing dictatorship.

McCulloch offered a limiting principle to constrain the field preemption that it unleashed--the distinction between the banking operations of the Second Bank and all other aspects of the Bank. This limiting principle became the backbone of preemption doctrine in banking law from the end of the Civil War until the 1920s and is the essential principle that the OCC seeks to revive, so examining the distinction at its origins can clarify the character of the OCC's preemption claims.

1. McCulloch's Distinction Between Banking-Specific Activities and Nonbanking Activities

Chief Justice Marshall's discussion in McCulloch of state taxes not preempted by the Bank's charter illustrates the distinction between banking operations and other nonbanking activities:
   This opinion does not deprive the States of any resources which
   they originally possessed. It does not extend to a tax paid by the
   real property of the bank, in common with the other real property
   within the State, nor to a tax imposed on the interest which the
   citizens of Maryland may hold in this institution, in common with
   other property of the same description throughout the State. But
   this is a tax on the operations of the bank, and is, consequently,
   a tax on the operation of an instrument employed by the government
   of the Union.... (58)

What do these two permissible taxes (on the bank's real property and on bank stock owned by private citizens) have in common? First, they are nondiscriminatory: they do not single out institutions affiliated with the federal government. Nondiscrimination, however, was not sufficient to save a state tax from preemption under McCulloch's principle of supremacy--a point the Court made explicit ten years later in Weston v. City Council. (59)

In addition, a state tax on a private institution could not control federal "operations." The McCulloch Court distinguished between state burdens on federal operations and ordinary state laws affecting private institutions purely in their private capacities by invoking the concept of "resources which [the state governments] originally possessed." (60) Even absent the creation of a federally chartered bank, states would contain land and people. State law, therefore, did not control the operations of the Bank by asserting power over such land and people. When federal agencies like the Bank purchased real estate or sold shares of stock within a state, they took the private property rights to the seller's land or the buyer's payment as they found them--defined by state law. In the Weston Court's characterization of the McCulloch Court's dicta, "property acquired by that corporation in a state was supposed to be placed in the same condition with property acquired by an individual." (61) By contrast, state taxation of federal tax revenue or federal bond proceeds deposited in a federally chartered bank's vaults tapped a source of wealth that would not exist but for the special collective effort of the entire Union. The latter tax was preempted because it attacked the Second Bank as the federal government's fiscal agent rather than as an ordinary holder of private property defined by state laws preexisting that federal charter.

For Chief Justice Marshall, this conceptual division between a private institution's nonfederal existence and its federally authorized operations provided a crisp way to avoid conflict:
   [W]e have an intelligible standard, applicable to every case to
   which the power may be applied .... We are relieved, as we ought to
   be, from clashing sovereignty; from interfering powers; from a
   repugnancy between a right in one government to pull down what
   there is an acknowledged right in another to build up; from the
   incompatibility of a right in one government to destroy what there
   is a right in another to preserve. (62)

One does not need to be a twentieth-century legal realist, however, to see that Marshall's distinction between wealth created by the Union and the states' original wealth rests on a legerdemain of what Daryl Levinson has called constitutional "framing." (63) The boundary between federal business and private business could contract and expand with the judge's willingness to alter the frame with which a transaction was viewed. As Professor Arthur Wilmarth has noted, Marshall conceded in Osborn v. Bank of the United States (64) that the Second Bank engaged in private banking operations but argued that this private banking business was "inseparably connected" to its "public functions" of supplying currency for the federal government's transactions. (65) In other contexts, Marshall drew lines separating what was private from what was federal. Marshall conceded in Weston, for instance, that all of the land of those states formed after the ratification of the Constitution was once owned by the federal government. (66) Why, then, were not all state taxes on real estate within such states an invasion of wealth created by the federal government? Chief Justice Marshall brushed this reductio ad absurdum aside by noting that the federal government does not continue to hold federal land after it is auctioned off to private citizens, whereas the federal government does maintain long-term relationships with federal bondholders until the bonds mature. (67)

But this response seems like a non sequitur: Why can the federal government not take credit for creating the states that entered the Union after ratification? Such states, after all, had no original resources until they were created by federal statute. The Taney Court's later effort to distinguish between private persons' federally created wealth and their nonfederal wealth in Dobbins v. Commissioners illustrates the futility of the distinction. (68) In Dobbins, the Court held that the income of a captain of a U.S. revenue cutter was exempt from a county tax imposed on "all offices and posts of profit." (69) But, as counsel for Erie County noted, the tax on Captain Dobbins's income could be viewed as a tax on one of Erie County's private citizens. (70) The federal government did not create Captain Dobbins, after all. Even if the federal government created his ship, why was his labor not part of those "resources which [the states] originally possessed" under McCulloch? The Dobbins Court reasoned that Congress appropriated the money that paid Dobbins's salary and that taxing that salary would vary the compensation of federal officers, thereby affecting the operation of a federal statute. (71) In the Court's words, "[T]he officer, as such, [is no] less a means to carry into effect these great objects than the vessel which he commands, the instruments which are used to navigate her, or than the guns put on board to enforce obedience to the law." (72) If "[t]hese inanimate objects ... cannot be taxed by a state, because they are means," then the officer could likewise not be taxed. (73) Such reasoning invited later formalistic distinctions between salaries that were directly defined by law and federal employees' incomes that were not so specifically defined by Congress. (74)

Prior to the Civil War, the McCulloch Court's distinction between federally authorized banking operations and ordinary corporate property turned out to be not only conceptually limp but also politically untenable. South Carolina blatantly ignored the spirit of McCulloch's two-part test at its creation (75) and again construed the decision into desuetude in 1832 at the height of the nullification crisis. (76)

The problem with McCulloch was not, however, merely sectional. It was also ideological. By preempting state taxes even when those taxes did not discriminate against federal property, the doctrine seemed to confer special privileges on private parties with connections to the federal government. As Justice Thompson--not a Southerner but a New Yorker--inveighed, McCulloch's immunity doctrine made federal bondholders "a privileged class of public creditors, who, though living under the protection of the government, are exempted from bearing any of its burthens." (77) As President Jackson noted in his veto message, exempting a nationally chartered bank from taxes that state-chartered banks had to pay conferred an unfair competitive advantage on one private party over another. (78) As one state court judge characterized the opposition to the Second Bank's special federal privileges in the eyes of its opponents, "[T]his is a great monied monopoly, which, in the hands of the General Government, will become a gulph in the vortex of which, every minor institution will be swallowed up." (79) Unsurprisingly, the Taney Court did not cite McCulloch until the Civil War, (80) after which it upheld federally issued "greenback" currency. (81)

2. The National Bank Act of 1864 and the Judicial Exhumation of McCulloch

While McCulloch's distinction between banking-specific and all other state laws may have been conceptually indeterminate and arguably in-egalitarian, the distinction was politically congenial to the new Republican-dominated Congress and Court after the Civil War. The National Bank Act of 1864 expressly adopted McCulloch's dicta on permissible taxes by banning taxes on national banks' deposits but authorizing taxes on the value of private shareholders' stock and banks' real property, so long as these taxes were imposed in a nondiscriminatory fashion. (82) As with the antebellum distinction in Dobbins, the conceptual foundation for this distinction seemed shaky. For instance, in Van Allen v. Assessors, the Court upheld a state tax on private shareholders' stock on the theory that such a tax was no different than any other tax on personal property. (83) Chief Justice Chase noted in partial dissent that such a tax constituted "an actual, though indirect, taxation of" the federal bonds in the banks' vaults; (84) the banking associations in question, "resembl[ing]" the Bank of the United States, were "entitled to all the protection and all the immunities to which that bank was entitled." (85) Although Chase denounced what he took to be the majority's departure from McCulloch and Osborn, (86) the majority was faithful to the central formalism of McCulloch in distinguishing between prohibited state taxes on banking operations (such as bank deposits) and permitted state taxes on activities falling within the states' original powers (such as the owning of real estate or corporate shares).

Why rely on such a practically meaningless distinction? Like the McCulloch Court, the postwar Congress and Supreme Court were trying to divide resources between the states and the federal government by those resources' proximity to the business of banking. Taxes on real estate or private citizens' "moneyed capital" (87) were taxes on the resources ordinarily available to states. Taxes on deposits, by contrast, taxed a banking activity specifically authorized by a federal charter and were therefore an attack on federal resources. That the two sorts of taxes had identical practical effects did not detract from the value of the distinction as an apparently simple way of dividing taxing power between state and federal spheres. On this theory, good (formalistic) fences made good neighbors.

In particular, the McCulloch dividing line was intended to perform the same function after the Civil War that it performed under the antebellum Court--to assuage state fears that federally conferred immunity would eat up state jurisdiction. As the Court reassuringly emphasized, nationally chartered banks were "governed in their daily course of business far more by the laws of the State than of the nation" and "lilt is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional." (88) Even when a state tax imposed administrative duties identical to those imposed by the National Bank Act, the Court would tolerate the state law if the tax did not touch the banks' deposits but instead was legally incident on types of property not unique to banking. (89)

Using McCulloch to define banks' tax liabilities under state law was a familiar enterprise. But how would McCulloch apply to state regulation of nationally chartered banks? The Supreme Court relied on a distinction analogous to the line between nonbanking property (e.g., real estate and private stock shares) and bank deposits. State laws that specifically targeted banking practices like the charging of interest or the taking of deposits were subjected to a strict rule of field preemption: if any provision of federal law remotely addressed the topic covered by state law, then the latter was preempted. In Farmers' & Mechanics' National Bank v. Dearing, for instance, the Court refused to clarify ambiguous terms in the National Banking Act in a manner that would subject the nationally chartered bank to state usury penalties. (90) The Court justified this result on "[t]he reasoning of Secretary Hamilton and of this court in McCulloch v. Maryland ... and in Osborne [sic] v. The Bank of the United States." (91) Since Congress had established federal banks as a means to execute federal policy, the Dearing Court reasoned, "the States can exercise no control over them, nor in any wise affect their operation, except in so far as Congress may see proper to permit." (92) To allow states to set the penalty as well as the interest rate would ensure that a nationally chartered bank "would be liable, in the discharge of its most important trusts, to be annoyed and thwarted by the will or caprice of every State in the Union." (93)

The Court was equally hostile to state regulations specifically directed at deposit-taking when such laws were applied to nationally chartered banks. In Easton v. Iowa, for instance, the Court held that the National Bank Act preempted an Iowa law that imposed criminal liability on bank officers for committing fraud if they accepted deposits after knowing that their bank had become insolvent. (94) As in Dearing, the Court invoked McCulloch and Osborn; it stated that, despite being private institutions, national banks were also federal instrumentalities that could not be subject even to state laws that did not directly conflict with any federal rule, (95) because "confusion would necessarily result from control possessed and exercised by two independent authorities." (96) Iowa's law could not stand, not because some provision of the National Bank Act specifically prohibited it or even duplicated it, but rather because the Court presumed that the existing rules contained within the National Bank Act were exclusive: "It thus appears that Congress has provided a symmetrical and complete scheme for the banks to be organized under the provisions of the statute." (97)

Likewise, the Court held in First National Bank of San Jose v. California that the National Bank Act preempted California's law providing for the escheat to the state of bank accounts that were unclaimed for more than twenty years, to the extent that the state law applied to nationally chartered banks. (98) As with Iowa's law in Easton, no specific provision of the National Bank Act addressed the abandonment of bank accounts with which California's law explicitly conflicted. Instead, the Court emphasized that the National Bank Act generally authorized national banks to receive deposits, a power that reasonably implied the right to repay the deposit on the demand of the rightful accountholder despite the passage of time. (99) This general federal authorization to repay accounts did not express any specific policy about abandoned accounts--California was manifestly dealing with an issue that Congress simply had overlooked. Nevertheless, the Court presumed that Congress's silence indicated an intention to exclude any state law specifically directed to the management of bank accounts. The basis for this presumption of field preemption was less a judicial inquiry into the likely beliefs of Congress, however, than McCulloch's idea that national banks were federal instrumentalities "designed to be used to aid the government in the administration of an important branch of the public service." (100) Therefore, according to the Court, "the States can exercise no control over them, nor in any wise affect their operation, except in so far as Congress may see proper to permit." (101) The Court was not willing to infer any such permission from Congress's silence on the topic of abandoned accounts.

In sum, the Court invoked McCulloch to bar states from filling the gaps in the National Bank Act with state laws if those state laws specifically targeted activities integral to the business of banking. The aforementioned examples of these activities include the charging of interest (Dearing), the acceptance of deposits (Easton), and the maintenance of accounts (First National Bank of San Jose). For state laws singling out banking practices, the Court construed McCulloch to require a presumption of field preemption. Federal law was presumed to act "like an eraser that rubs out state law in a given area, leaving only federal law," (102) even when nothing in the federal law specifically addressed the issue covered by the state law. Insofar as states regulated banking-specific activities (such as deposit-taking or lending money at interest), the National Bank Act was presumed to be "a symmetrical and complete scheme for the banks" that implicitly excluded any state gap-filling on topics not covered by the Act. (103) In effect, state laws specifically addressing banking practices fell into a "suspect classification" under which the Court would presume preemption absent very specific statutory authorization.

But the Court completely abandoned this presumption of preemption when states imposed laws on nationally chartered banks that were less closely tied to the business of banking. As it stated in First National Bank of San Jose, nationally chartered banks' "contracts and dealings are subject to the operation of general and undiscriminating state laws" because such laws "do not conflict with the letter or the general object and purposes of congressional legislation." (104) Likewise, in Easton, the Court gave its blessing to state criminal laws by noting that "[u]ndoubtedly a State has the legitimate power to define and punish crimes by general laws applicable to all persons within its jurisdiction." (105) This proposition did not mean that such general state laws were never preempted by the National Bank Act. If there were some provision of the Act (say, its anti-preference policy regarding distributions to creditors) that contradicted a state's common law rule, then the state's rule would have to give way. (106) Such a specific conflict between state and federal law, however, would not be presumed. Instead, the Court relied on an opposite presumption, absent some specific congressional intention to the contrary, that nationally chartered banks were "governed in their daily course of business far more by the laws of the State than of the nation." (107)

This tolerance of "general laws" ensured that state common laws of contract, property, and corporations would generally escape preemption unless there was a specific conflict between a common law rule and some policy contained within the National Bank Act. In McClellan v. Chipman, for instance, the Court allowed Massachusetts to enforce its prohibition on preferential transfers to creditors against a nationally chartered bank, even though such a rule prohibited a particular exercise of a power expressly conferred by the National Bank Act to receive real estate in satisfaction of debts. (108) The Commonwealth's prohibition of the national bank's power to receive real estate in a preferential transfer was not significant and created "no express conflict," because the state law barred the exercise of the national bank's powers only "under particular and exceptional circumstances." (109) The Court reasoned that "[n]o function of such banks is destroyed or hampered by allowing the banks to exercise the power to take real estate, provided only they do so under the same conditions and restrictions to which all the other citizens of the State are subjected." (110) Subjecting the bank to the general background provisions of state contract law was not a significant burden on the exercise of federally conferred powers even when that law completely foreclosed one such exercise (receiving preferential transfers), because the National Bank Act presupposed that nationally chartered banks would engage in business, "as to their contracts in general, under the operation of the state law." (111)

In contrast to its decisions dealing with state laws specifically addressing banking practices, the Court upheld general state laws even when they overlapped with specific provisions of the National Bank Act. For instance, the private right of shareholders to inspect a nationally chartered bank's books under state law, for instance, served some of the same functions as the powers of the Federal Comptroller of the Currency to inspect a bank's accounts. In Guthrie v. Harkness, the Court nonetheless held a state law granting this right to private citizens not preempted (112) because the Court was "unable to find any definition of 'visitorial powers'"--the term used in the federal statute--"which can be held to include the common law right of the shareholder to inspect the books of the corporation." (113)

What made the states' general rules of common law less subject to preemption than their rules specifically addressing banking practices? The Court had practical reasons to want to preserve states' common law rules. In 1882, Congress enacted a statute eliminating nationally charted banks' power (which had existed since 1863) to remove cases to federal court, (114) thereby reducing the capacity of the federal courts to fashion general federal common law to govern the banks' transactions pursuant to Swirl v. Tyson. (115) Thus, the alternative to subjecting banks to state law was frequently anarchy.

This practical explanation, however, cannot explain why the Court did not simply allow state law to apply in any case where the federal statute did not address the mischief targeted by that state law. Why not simply use conflict preemption to define the scope of state power over national banks and allow state statutes--even statutes specifically regulating deposit-taking, lending, or other banking-specific activities--to fill gaps in the National Bank Act where the latter was silent or unclear? The answer cannot be that general laws intrude less into the business of banking than banking-specific state laws. Massachusetts's law at issue in McClellan prohibiting debtors from preferentially transferring real estate to banks practically impedes a bank's business just as much as Iowa's law at issue in Easton prohibiting bank officers from accepting deposits. The difference between the two, therefore, cannot be explained adequately by a desire to protect a national market with uniform rules suitable for interstate banking.

The distinction between general and banking-oriented state laws was driven less by bankers' needs for regulatory uniformity in a national market and more by judges' needs for doctrinal simplicity. McCulloch provided a relatively crisp way to divide federal jurisdiction from state jurisdiction, so the federal courts adapted McCulloch's state taxation rules to state regulation. Like state taxes on real property or corporate stock blessed by McCulloch, state common law rules seemed to fall within the states' "original" powers rather than to exploit federally created resources. By contrast, state rules aimed at banking, like state taxes imposed on banks' deposits, seemed to attack a subject (nationally chartered banking) that was purely a product of federal law. Treating banking-specific activity as a suspect classification that state laws could not address without triggering preemption was simply an easy way to translate McCulloch's tax-based inquiry into the context of regulation.


Whatever its advantages in terms of doctrinal clarity, the McCulloch Court's distinction between suspect banking-specific laws and general laws had one striking disadvantage: it prohibited states from addressing issues that neither Congress nor any federal agency had ever actually considered. The reason was simply that the presence or absence of a federal law addressing some topic was orthogonal to McCulloch's test. States could not, therefore, flu gaps in federal banking regulations with their own banking-specific rules. In practical effect, McCulloch delegated the duty of filling gaps in federal regulatory schemes away from states and to the officers of private banking corporations. Such preemption might have made sense if one viewed national banks' officers as "upon much the same plane as are officers of the United States." (116) The success of Louis Brandeis and Woodrow Wilson's attack on private bankers' power during the presidential campaign of 1912, however, made this understanding of nationally chartered banks politically untenable. McCulloch's theory of national banks as federal instrumentalities beyond the control of states' banking-specific laws had been tacitly repudiated by the New Deal Court for half a century when the OCC attempted to revive it in 2004.

By the early twentieth century, the notion that privately owned banks were the equivalent of disinterested federal officials had become completely indefensible. Between 1907 and 1914, the Democratic Party made opposition to legal privileges for private bankers the centerpiece of their political platform, culminating in Woodrow Wilson and Louis Brandeis's "New Freedom" campaign of 1912. Like Andrew Jackson's veto message of 1832, this campaign created a political climate in which McCulloch's theory of banking immunity from state law was politically--and, eventually, judicially-doomed.

A. The Panic of 1907 and Brandeis's Revival of the Anti-Banker Nondelegation Principle

The end of McCulloch's privileging of private bankers as federal officials was a long time coming. Greenbackers, Anti-Monopoly Party members, and Populists had railed against the power of financial elites since the end of the Civil War, (117) but these attacks had little political traction in a two-party system where neither party would espouse the anti-banking cause. (118) Although William Jennings Bryan made hostility to banks a major part of the Democratic Party's platform in 1896, he had been so thoroughly trounced in the election that embrace of an anti-banking agenda seemed like political suicide. (119)

The Panic of 1907, however, changed everything. Brought on by a coincidence of events--the San Francisco earthquake and the resulting loss of capital reserves, an unsuccessful but highly leveraged effort to corner the copper market, and a resulting fear that lenders in that effort would be illiquid--the Panic exposed the fragility of a financial system essentially rooted in the self-governance of decentralized bankers. (120) J.P. Morgan almost single-handedly staved off a full-blown depression by pledging his own resources and strong-arming other bankers to do likewise, thereby guaranteeing the deposits of illiquid but solvent banks. (121) Despite the arguably heroic quality of his intervention, Morgan's determination of the nation's fate by negotiating with other Wall Street elites in his private library rubbed against democratic sensibilities. Farmers, workers, and middle-class professionals all rebelled against this notion of being governed by the "House of Morgan." (122)

The moment was ripe for reevaluation of national banks' privileges and immunities. The first sign of trouble for the idea of self-governing banks was the newly elected Democratic Congress's rejection of the "Aldrich Plan" in 1912. A proposal of the National Monetary Commission, the Aldrich Plan--named for stalwart conservative Republican Senator Nelson Aldrich--proposed a self-governing association of national banks to stave off future runs and panics by pooling their deposits free from meddling politicians, (123) thus effectively codifying the power that J.P. Morgan had informally wielded in 1907. The Democratic Congress, newly elected between 1910 and 1912, hooted the plan down, thereby setting the stage for a showdown over the legal status of banks during the 1912 presidential election. (124)

Like Jackson's 1832 veto message, Woodrow Wilson's "New Freedom" campaign focused on the illegitimacy of bankers' exercising governmental power without democratic oversight. Inspired by Louis Brandeis's denunciation of "the Money Trust," the New Freedom platform asserted that investment bankers fostered inefficient and undemocratic monopolies in utilities, railroads, and manufacturing by sitting on "interlocking directorates" of corporate boards. (125) The campaign was fueled by the Pujo Committee's 1912 investigation into the influence of bankers over industry. (126) The Committee's report concluded that a system of interlocking directorates allowed a handful of bankers to govern the nation. Louis Brandeis's essays in Harper's Weekly publicized the Pujo Committee's findings and reinforced the idea that bankers formed a "financial oligarchy" (127) resulting in "the suppression of industrial liberty, indeed of manhood itself." (128) Brandeis called for a variety of reforms to curb bankers' power, including more disclosures to investors of bankers' fees and influence (129) and stricter prohibitions on bankers' conflicts of interest when sitting on multiple boards. (130) Soon thereafter, Congress enacted the 1913 Federal Reserve Act, which included the key Brandeisian principle that banks in the federal reserve system must be subject to the supervision of a Federal Reserve Board appointed by the President. (131)

Beyond this supervision of banks, however, the Federal Reserve Act incorporated an assumption that Andrew Jackson would readily have embraced: private bankers could not be trusted to determine the nation's financial policies without some form of democratic oversight. This anti-banker nondelegation doctrine implied that federal law should not preempt state banking rules unless federal officials had actually evaluated the particular risks addressed by state law. In effect, Brandeis's assault on government by bankers was also an assault on McCulloch's theory of field preemption.

B. Judicial Retreat from McCulloch's Field Preemption, 1924-1948

In short, the early twentieth century saw a revival of the anti-banker nondelegation doctrine remarkably similar to the Jacksonian principles that led to the first downfall of McCulloch. By the 1920s, the Court itself had beaten a steady retreat from its earlier confident assertions that nationally chartered banks were federal instruments beyond state control. Instead, the Court repeatedly used ordinary principles of conflict preemption to uphold state laws specifically targeting banking practices where there was no conflict with the National Bank Act.

There were signs of trouble for McCulloch even before the 1920s. First National Bank of Bay City v. Fellows ex rel. Union Trust Co. was ostensibly a nationalistic decision in which the Court upheld the Federal Reserve Act of 1913 by finding that Congress had the power to authorize national banks to hold securities as trustees in probate proceedings. (132) The Court summarily dismissed the notion that delegating broad supervisory powers to the Federal Reserve Board violated the nondelegation doctrine. But buried in the decision was a sign of judicial impatience with McCulloch: the Court upheld the power of state courts to enforce state limits on national banks. (133) Setting aside nineteenth-century decisions prohibiting state courts from issuing writs of habeas corpus against federal officers, the Court upheld state courts' power to supervise national banks by noting the urgent need for state probate courts to secure determinations of the powers of trustees. (134) As Justice Van Devanter noted in dissent, the idea of allowing state courts to enforce state laws against federal instrumentalities was flatly inconsistent with the McCulloch Court's idea that national banks' officers stand "upon much the same plane as [do] officers of the United States." (135) By 1917, McCulloch's equation of private bankers with federal officials had apparently worn thin.

First National Bank in St. Louis v. Missouri was the first decision overthrowing McCulloch's analysis to uphold a state law. (136) In First National Bank in St. Louis, the Court upheld Missouri's law barring banks from opening branch offices within the state. (137) Ignoring McCulloch's principle of field preemption, the Court instead applied only those precedents, like McClellan, that allowed state laws to be enforced where they did not conflict with any specific provisions of the National Bank Act. The majority began by noting that the National Bank Act "by fair construction of the statutes" did not empower nationally chartered banks to form branches unless they had such powers under a previous state charter. (138) It was "self evident" that a state statute prohibiting the formation of branches could not frustrate the purpose of a federal statute that did not authorize branches. (139) Given that the state statute did not conflict with the National Bank Act, the majority concluded that "the way is open for the enforcement of the state statute.' (140) In other words, the Court ignored, without expressly overruling, McCulloch's theory of field preemption and instead applied ordinary conflict preemption. In his dissent, Justice Van Devanter correctly asserted that "principles ... settled a century ago in the days of the Bank of the United States" dictated that Missouri's banking-specific statute should be preempted insofar as it applied to "corporate instrumentalities of the United States." (141)

The destruction of McCulloch's immunity for national banks was completed in the New Deal Courts of Chief Justices Hughes, Stone, and Vinson. From 1934 until 1948, the Court repeatedly applied ordinary conflict preemption, while ignoring the idea that banks should be free from state oversight even when federal law did not endorse banks' policy choices, to uphold the application of states' banking-specific laws to nationally chartered banks. In Lewis v. Fidelity & Deposit Co., the Court held that states could prohibit a bank from being appointed a depository of state or local government revenues unless the bank provided a bond creating a lien on all of the bank's assets to ensure faithful performance of the contract. (142) The Court began and ended its analysis with the question of whether the National Bank Act's prohibition on preferences for creditors implicitly prohibited such a bonding requirement. Finding no conflict, the Court upheld the Georgia statute without any reference to McCulloch. (143) Likewise, in Wichita Royalty Co. v. City National Bank of Wichita Falls, the Court followed Erie Railroad v. Tompkins in applying Texas's law to the question of whether a bank was responsible for a depositor's trustee's misappropriation of a deposit for personal use. (144) Again, there was no mention of McCulloch's prohibition on subjecting national banks to states' banking-specific laws.

Finally, in Anderson National Bank v. Luckett, the Court virtually overruled its 1923 opinion in First National Bank of San Jose when it held that Kentucky could deem that certain bank accounts were abandoned and, therefore, would escheat to the State upon notice to accountholders and after a defined interval of time. (145) The Court attempted to distinguish First National Bank of San Jose by characterizing Kentucky's statute as less "unusual" and "harsh" than California's and, therefore, less of a deterrent to depositors' entrusting their funds to a national bank. (146) But the Court's recharacterization of McCulloch's holding represented the complete repudiation of McCulloch's theory of field preemption. According to the Luckett Court, the Kentucky statute was consistent with McCulloch, because it "does not discriminate against national banks, cf. McCulloch v. Maryland, 4 Wheat. 316, by directing payment to the state by state and national banks alike, of presumptively abandoned accounts." (147) Such a statement flew in the face of the Marshall Court's understanding of McCulloch. As noted earlier, the Weston Court specifically rejected this idea that nondiscrimination against the federal government sufficed to satisfy McCulloch's principle of supremacy. (148) The Luckett Court also noted that there was not "any word in the national banking laws which expressly or by implication conflicts with the provisions of the Kentucky statutes." (149) This observation, while true, was irrelevant under Easton and Dearing, under which such a conflict was presumed absent clear federal authorization for state regulation of federal instrumentalities.

The Luckett Court, in short, adopted sub silentio a new and narrower reading of banks' immunity that permitted states to impose regulations on lending and deposit-taking, so long as the states did not thereby discriminate against any nationally chartered banks or contradict any policies of the federal government. This implicitly narrower reading did not mean that banks never received the benefits of preemption. If a federal statute contained a specific provision preempting a state law, then, of course, that state law could have no effect. (150) Moreover, the preemptive provision of the federal statute could be implicit rather than explicit; if some state law contradicted the spirit or purpose of federal banking law, it would be set aside. (151) Federal courts could exercise a lot of creativity in inferring such implied federal purposes from federal statutes because, during the 1940s, the New Deal Court embraced a robust judicial purposivism in statutory interpretation. (152) This purposivism could be the occasion of much judicial hand wringing about the degree to which federal banking law permitted judges to invent principles of federal common law to govern national banks. (153)
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Title Annotation:Introduction through II. The Second Demise of McCulloch's Federal Instrumentalilty Theory B. Judicial Retreat from McCulloch's Field Preemption 1924-1948, p. 1235-1268
Author:Hills, Roderick M., Jr.
Publication:University of Pennsylvania Law Review
Date:Apr 1, 2013
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