Fascinating
Supreme Court opinion by Justice Scalia today. The
Forbes headline, of course, is that this is a rare pro-consumer decision by a
decidedly pro-business Roberts Court.
The Wall Street Journal is horrified at
Scalia's betrayal and his support for "
Spitzerism." Eliot
Spitzer is
happy about the result but sorry that it came too late to mitigate the effects of the financial crisis.
Scalia's opinion vindicates the rather unremarkable principle that states can enforce their laws against discrimination or fraud against businesses that operate within their borders. The case began in 2005 when then Attorney General
Spitzer sent a letter demanding information from several banks as part of an inquiry into discriminatory lending. The banks sued to stop the inquiry, arguing that because they were "national banks" regulated by the federal government, a state Attorney General couldn't enforce state anti-
discrimination laws against them.
Spitzer (and his successor Andrew
Cuomo) admitted that state
regulation of national banks was clearly prohibited by federal banking laws but argued that their actions as law enforcement officers was distinct from regulation.
Scalia and the liberal wing of the Supreme Court agreed.
The most important aspect of this decision is what it means for "New Federalism" -- the theory, oft espoused by
Spitzer in his AG days, that when federal enforcement of consumer protection, investor protection or civil rights laws is lax or non-existent, the states can and should step in to fill the void. You'd think that after everything that's happened to our economy the notion that having both federal and state cops on the financial fraud beat is a good idea would not be controversial, but the decision was 5-4.
This is what I love about Scalia and his brand of judicial conservatism. Every once in a while he'll surprise you. By contrast, I don't think we're ever going to be surprised very much about the opinions of Roberts or Alito (although I'd be happy to be proven wrong).