(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CUOMO, ATTORNEY GENERAL OF NEW YORK v.
CLEARING HOUSE ASSOCIATION, L. L. C., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 08–453. Argued April 28, 2009—Decided June 29, 2009
To determine whether various national banks had violated New York’s
fair-lending laws, the State’s Attorney General, whose successor in
office is the petitioner here, sent them letters in 2005 requesting “in
lieu of subpoena” that they provide certain nonpublic information
about their lending practices. Respondents, the federal Office of the
Comptroller of the Currency (Comptroller or OCC) and a banking
trade group, brought suit to enjoin the information request, claiming
that the Comptroller’s regulation promulgated under the National
Bank Act (NBA) prohibits that form of state law enforcement against
national banks. The District Court entered an injunction prohibiting
the Attorney General from enforcing state fair-lending laws through
demands for records or judicial proceedings. The Second Circuit af
firmed.
Held: The Comptroller’s regulation purporting to pre-empt state law
enforcement is not a reasonable interpretation of the NBA. Pp. 2–15.
(a) Evidence from the time of the NBA’s enactment, this Court’s
cases, and application of normal construction principles make clear
that the NBA does not prohibit ordinary enforcement of state law.
Pp. 2–11.
(i) The NBA provides: “No national bank shall be subject to any
visitorial powers except as authorized by Federal law, vested in the
courts . . . , or . . . directed by Congress.” 12 U. S. C. §484(a). Among
other things, the Comptroller’s regulation implementing §484(a) for
bids States to “exercise visitorial powers with respect to national
banks, such as conducting examinations, inspecting or requiring the
production of books or records,” or, as here pertinent, “prosecuting
enforcement actions” “except in limited circumstances authorized by
2 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Syllabus
federal law.” 12 CFR §7.4000(a)(1). There is some ambiguity in the
NBA’s term “visitorial powers,” and the Comptroller can give authori
tative meaning to the term within the bounds of that uncertainty.
Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837. However, the presence of some uncertainty does not ex
pand Chevron deference to cover virtually any interpretation of the
NBA. Pp. 2–3.
(ii) When the NBA was enacted in 1864, scholars and courts un
derstood “visitation” to refer to the sovereign’s supervisory power
over the manner in which corporations conducted business, see, e.g.,
Guthrie v. Harkness, 199 U. S. 148, 157. That power allowed the
States to use the prerogative writs to exercise control if a corporation
abused its lawful power, acted adversely to the public, or created a
nuisance. Pp. 3–4.
(iii) This Court’s consistent teaching, both before and after the
NBA’s enactment, is that a sovereign’s “visitorial powers” and its
power to enforce the law are two different things. See, e.g., Trustees
of Dartmouth College v. Woodward, 4 Wheat. 518, 676, 681; Guthrie,
supra, at 159, 157; First Nat. Bank in St. Louis v. Missouri, 263 U. S.
640, 660. Watters v. Wachovia Bank, N. A., 550 U. S. 1, 21, distin
guished. And contrary to the Comptroller’s regulation, the NBA pre
empts only the former. Pp. 4–7.
(iv) The regulation’s consequences also cast its validity into
doubt: Even the OCC acknowledges that the NBA leaves in place
some state substantive laws affecting banks, yet the Comptroller’s
rule says that the State may not enforce its valid, non-pre-empted
laws against national banks. “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.” St. Louis, supra,
at 660. In contrast, channeling state attorneys general into judicial
law-enforcement proceedings (rather than allowing them to exercise
“visitorial” oversight) would preserve a regime of exclusive adminis
trative oversight by the Comptroller while honoring in fact rather
than merely in theory Congress’s decision not to pre-empt substan
tive state law. This reading is also suggested by §484(a)’s otherwise
inexplicable reservation of state powers “vested in the courts of jus
tice.” And on a pragmatic level, the difference between visitation and
law enforcement is clear: If a State chooses to pursue enforcement of
its laws in court, its targets are protected by discovery and proce
dural rules. Pp. 7–9.
(b) The Comptroller’s interpretation of the regulation demonstrates
its own flaw: the Comptroller is forced to limit the regulation’s sweep
in areas such as contract enforcement and debt collection, but those
Cite as: 557 U. S. ____ (2009) 3
Syllabus
exceptions rest upon neither the regulation’s nor the NBA’s text. Pp.
9–11.
(c) The dissent’s objections are addressed and rejected. Pp. 11–13.
(d) Under the foregoing principles, the Comptroller reasonably in
terpreted the NBA’s “visitorial powers” term to include “conducting
examinations [and] inspecting or requiring the production of books or
records of national banks,” when the State conducts those activities
as supervisor of corporations. When, however, a state attorney gen
eral brings suit to enforce state law against a national bank, he is not
acting in the role of sovereign-as-supervisor, but rather sovereign-as
law-enforcer. Because such a lawsuit is not an exercise of “visitorial
powers,” the Comptroller erred by extending that term to include
“prosecuting enforcement actions” in state courts. In this case, the
Attorney General’s threatened action was not the bringing of a civil
suit, or the obtaining of a judicial search warrant based on probable
cause, but the issuance of subpoena on his own authority if his re
quest for information was not voluntarily honored. That is not the
exercise of the law enforcement power “vested in the courts of jus
tice,” which the NBA exempts from the ban on the exercise of super
visory power. Accordingly, the injunction below is affirmed as ap
plied to the Attorney General’s threatened issuance of executive
subpoenas, but vacated insofar as it prohibits the Attorney General
from bringing judicial enforcement actions. Pp. 13–15.
510 F. 3d 105, affirmed in part and reversed in part.
SCALIA, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed an opin
ion concurring in part and dissenting in part, in which ROBERTS, C. J.,
and KENNEDY and ALITO, JJ., joined.
Cite as: 557 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
_________________
No. 08–453
_________________
ANDREW M. CUOMO, ATTORNEY GENERAL OF NEW
YORK, PETITIONER v. THE CLEARING HOUSE
ASSOCIATION, L. L. C., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
JUSTICE SCALIA delivered the opinion of the Court.
In 2005, Eliot Spitzer, Attorney General for the State of
New York, sent letters to several national banks making a
request “in lieu of subpoena” that they provide certain
non-public information about their lending practices. He
sought this information to determine whether the banks
had violated the State’s fair-lending laws. Spitzer’s suc
cessor in office, Andrew Cuomo, is the petitioner here.
Respondents, the federal Office of the Comptroller of the
Currency (“Comptroller” or “OCC”) and the Clearing
House Association, a banking trade group, brought suit to
enjoin the information request, claiming that the Comp
troller’s regulation promulgated under the National Bank
Act prohibits that form of state law enforcement against
national banks.
The United States District Court for the Southern Dis
trict of New York entered an injunction in favor of respon
dents, prohibiting the attorney general from enforcing
state fair-lending laws through demands for records or
judicial proceedings. The United States Court of Appeals
for the Second Circuit affirmed. 510 F. 3d 105 (2007). We
granted certiorari. 555 U. S. ___ (2009). The question
presented is whether the Comptroller’s regulation pur
porting to pre-empt state law enforcement can be upheld
2 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
as a reasonable interpretation of the National Bank Act.
I
Section 484(a) of Title 12, U. S. C., a provision of the
National Bank Act, 13 Stat. 99, reads as follows:
“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 or directed by Congress or by either House
thereof or by any committee of Congress or of either
House duly authorized.”
The Comptroller, charged with administering the National
Bank Act, adopted, through notice-and-comment rulemak
ing, the regulation at issue here designed to implement
the statutory provision. Its principal provisions read as
follows:
Ҥ7.4000 Visitorial powers.
“(a) General rule. (1) Only the OCC or an author
ized representative of the OCC may exercise visitorial
powers with respect to national banks, except as pro
vided in paragraph (b) of this section. State officials
may not exercise visitorial powers with respect to na
tional banks, such as conducting examinations, in
specting or requiring the production of books or re
cords of national banks, or prosecuting enforcement
actions, except in limited circumstances authorized by
federal law. However, production of a bank’s records
(other than non-public OCC information under 12
CFR part 4, subpart C) may be required under normal
judicial procedures.
“(2) For purposes of this section, visitorial powers
include:
“(i) Examination of a bank;
“(ii) Inspection of a bank’s books and records;
“(iii) Regulation and supervision of activities au
Cite as: 557 U. S. ____ (2009) 3
Opinion of the Court
thorized or permitted pursuant to federal banking
law; and
“(iv) Enforcing compliance with any applicable fed
eral or state laws concerning those activities.” 12
CFR §7.4000 (2009).
By its clear text, this regulation prohibits the States from
“prosecuting enforcement actions” except in “limited cir
cumstances authorized by federal law.”
Under the familiar Chevron framework, we defer to an
agency’s reasonable interpretation of a statute it is
charged with administering. Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837
(1984). There is necessarily some ambiguity as to the
meaning of the statutory term “visitorial powers,” espe
cially since we are working in an era when the prerogative
writs—through which visitorial powers were traditionally
enforced—are not in vogue. The Comptroller can give
authoritative meaning to the statute within the bounds of
that uncertainty. But the presence of some uncertainty
does not expand Chevron deference to cover virtually any
interpretation of the National Bank Act. We can discern
the outer limits of the term “visitorial powers” even
through the clouded lens of history. They do not include,
as the Comptroller’s expansive regulation would provide,
ordinary enforcement of the law. Evidence from the time
of the statute’s enactment, a long line of our own cases,
and application of normal principles of construction to the
National Bank Act make that clear.
A
Historically, the sovereign’s right of visitation over
corporations paralleled the right of the church to supervise
its institutions and the right of the founder of a charitable
institution “to see that [his] property [was] rightly em
ployed,” 1 W. Blackstone, Commentaries on the Laws of
England 469 (1765). By extension of this principle, “[t]he
4 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
king [was] by law the visitor of all civil corporations,” ibid.
A visitor could inspect and control the visited institution
at will.
When the National Bank Act was enacted in 1864,
“visitation” was accordingly understood as “[t]he act of
examining into the affairs of a corporation” by “the gov
ernment itself.” 2 J. Bouvier, A Law Dictionary 790 (15th
ed. 1883). Lower courts understood “visitation” to mean
“the act of a superior or superintending officer, who visits
a corporation to examine into its manner of conducting
business, and enforce an observance of its laws and regu
lations.” First Nat. Bank of Youngstown v. Hughes, 6 F.
737, 740 (CC ND Ohio 1881). A State was the “visitor” of
all companies incorporated in the State, simply by virtue
of the State’s role as sovereign: The “legislature is the
visitor of all corporations founded by it.” Guthrie v. Hark
ness, 199 U. S. 148, 157 (1905) (internal quotation marks
omitted).
This relationship between sovereign and corporation
was understood to allow the States to use prerogative
writs—such as mandamus and quo warranto—to exercise
control “whenever a corporation [wa]s abusing the power
given it, or, . . . or acting adversely to the public, or creat
ing a nuisance.” H. Wilgus, Private Corporations, in 8
American Law and Procedure §157, pp. 224–225 (1910).
State visitorial commissions were authorized to “exercise
a general supervision” over companies in the State.
I. Wormser, Private Corporations §80, pp. 100, 101, in 4
Modern American Law (1921).
B
Our cases have always understood “visitation” as this
right to oversee corporate affairs, quite separate from the
power to enforce the law. In the famous Dartmouth Col
lege case, Justice Story, describing visitation of a charita
ble corporation, wrote that Dartmouth was “subject to the
Cite as: 557 U. S. ____ (2009) 5
Opinion of the Court
controlling authority of its legal visitor, who . . . may
amend and repeal its statutes, remove its officers, correct
abuses, and generally superintend the management of [its]
trusts,” and who are “liable to no supervision or control.”
Trustees of Dartmouth College v. Woodward, 4 Wheat. 518,
676, 681 (1819) (concurring opinion). This power of “gen
era[l] superintend[ence]” stood in contrast to action by the
court of chancery, which acted “not as itself possessing a
visitorial power . . . but as possessing a general jurisdic
tion . . . to redress grievances, and frauds.” Id., at 676.1
In Guthrie, supra, we held that a shareholder acting in
his role as a private individual was not exercising a “visi
torial power” under the National Bank Act when he peti
tioned a court to force the production of corporate records,
id., at 159. “[C]ontrol in the courts of justice,” we said, is
not visitorial, and we drew a contrast between the nonvisi
torial act of “su[ing] in the courts of the State” and the
visitorial “supervision of the Comptroller of the Currency,”
id., at 159, 157.
In First Nat. Bank in St. Louis v. Missouri, 263 U. S.
640 (1924), we upheld the right of the Attorney General of
Missouri to bring suit to enforce a state anti-bank
branching law against a national bank. We said that only
the United States may perform visitorial administrative
——————
1 JUSTICE THOMAS’s opinion concurring in part and dissenting in part
(hereinafter the dissent) attempts to distinguish Dartmouth College on
the ground that the college was a charitable corporation, whose visitors
(unlike the State as visitor of for-profit corporations) had no law
enforcement power. See post, at 7, n. 1. We doubt that was so. As
Justice Story’s opinion in Dartmouth College stated, visitors of charita
ble corporations had “power . . . to correct all irregularities and abuses,”
4 Wheat., at 673, which would surely include operations in violation of
law. But whether or not visitors of charitable corporations had law
enforcement powers, the powers that they did possess demonstrate that
visitation is different from ordinary law enforcement. Indeed, if those
powers did not include the power to assure compliance with law that
demonstration would be all the more forceful.
6 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
oversight, such as “inquir[ing] by quo warranto whether a
national bank is acting in excess of its charter powers.”
Id., at 660. But if a state statute of general applicability is
not substantively pre-empted, then “the power of enforce
ment must rest with the [State] and not with” the Na
tional Government, ibid.2
Our most recent decision, Watters v. Wachovia Bank,
N. A., 550 U. S. 1 (2007), does not, as the dissent contends,
post, at 18, “suppor[t] OCC’s construction of the statute.”
To the contrary, it is fully in accord with the well estab
lished distinction between supervision and law enforce
ment. Watters held that a State may not exercise “ ‘gen
eral supervision and control’ ” over a subsidiary of a
national bank, 550 U. S., at 8, because “multiple audits
and surveillance under rival oversight regimes” would
cause uncertainty, id., at 21. “[G]eneral supervision and
control” and “oversight” are worlds apart from law en
forcement. All parties to the case agreed that Michigan’s
general oversight regime could not be imposed on national
banks; the sole question was whether operating subsidiar
ies of national banks enjoyed the same immunity from
state visitation. The opinion addresses and answers no
other question.
——————
2 The
dissent attempts to distinguish St. Louis by invoking the prin
ciple that an agency is free to depart from a court’s interpretation of the
law. Post, at 16–17 (citing National Cable & Telecommunications Assn.
v. Brand X Internet Services, 545 U. S. 967, 982 (2005)). This again
misses the point. St. Louis is relevant to proper interpretation of 12
U. S. C. §484(a) not because it is authoritative on the question whether
States can enforce their banking laws, but because it is one in a long
and unbroken line of cases distinguishing visitation from law enforce
ment. Respondents contend that St. Louis holds only that States can
enforce their law when federal law grants the national bank no author
ity to engage in the activity at issue. Even if that were true it would
make no difference. The case would still stand for the proposition that
the exclusive federal power of visitation does not prevent States from
enforcing their law.
Cite as: 557 U. S. ____ (2009) 7
Opinion of the Court
The foregoing cases all involve enforcement of state law.
But if the Comptroller’s exclusive exercise of visitorial
powers precluded law enforcement by the States, it would
also preclude law enforcement by federal agencies. Of
course it does not. See, e.g., Bank of America Nat. Trust &
Sav. Assn. v. Douglas, 105 F. 2d 100, 105–106 (CADC
1939) (Securities Exchange Commission investigation of
bank fraud is not an exercise of “visitorial powers”); Peo
ples Bank of Danville v. Williams, 449 F. Supp. 254, 260
(WD Va. 1978) (same).
In sum, the unmistakable and utterly consistent teach
ing of our jurisprudence, both before and after enactment
of the National Bank Act, is that a sovereign’s “visitorial
powers” and its power to enforce the law are two different
things. There is not a credible argument to the contrary.
And contrary to what the Comptroller’s regulation says,
the National Bank Act pre-empts only the former.
C
The consequences of the regulation also cast doubt upon
its validity. No one denies that the National Bank Act
leaves in place some state substantive laws affecting
banks. See Brief for Federal Respondent 20; Brief for
Respondent Clearing House Association, L. L. C. 29; post,
at 16–17. But the Comptroller’s rule says that the State
may not enforce its valid, non-pre-empted laws against
national banks. Ibid. The bark remains, but the bite does
not.
The dissent admits, with considerable understatement,
that such a result is “unusual,” ibid. “Bizarre” would be
more apt. As the Court said in St. Louis:
“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 concep
tion of law.” 263 U. S., at 660.
8 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
In sharp contrast to the “unusual” reading propounded by
the Comptroller’s regulation, reading “visitorial powers” as
limiting only sovereign oversight and supervision would
produce an entirely commonplace result—the precise
result contemplated by our opinion in St. Louis, which
said that if a state statute is valid as to national banks,
“the corollary that it is obligatory and enforceable neces
sarily results.” Id., at 659–660 (emphasis added). Chan
neling state attorneys general into judicial law
enforcement proceedings (rather than allowing them to
exercise “visitorial” oversight) would preserve a regime of
exclusive administrative oversight by the Comptroller
while honoring in fact rather than merely in theory Con
gress’s decision not to pre-empt substantive state law.
This system echoes many other mixed state/federal re
gimes in which the Federal Government exercises general
oversight while leaving state substantive law in place.
See, e.g., Wyeth v. Levine, 555 U. S. ___ (2009).
This reading is also suggested by §484(a)’s otherwise
inexplicable reservation of state powers “vested in the
courts of justice.” As described earlier, visitation was
normally conducted through use of the prerogative writs of
mandamus and quo warranto. The exception could not
possibly exempt that manner of exercising visitation, or
else the exception would swallow the rule. Its only con
ceivable purpose is to preserve normal civil and criminal
lawsuits. To be sure, the reservation of powers “vested in
the courts of justice” is phrased as an exception from the
prohibition of visitorial powers. But as we have just dis
cussed, it cannot possibly be that, and it is explicable only
as an attempt to make clear that the courts’ ordinary
powers of enforcing the law are not affected. 3
——————
3 We reject respondents’ contention that the Riegle-Neal Interstate
Banking and Branching Efficiency Act of 1994, §102(f)(1)(B), 108 Stat.
2349, 2350, 12 U. S. C. §36(f)(1)(B), establishes that the Comptroller’s
Cite as: 557 U. S. ____ (2009) 9
Opinion of the Court
On a pragmatic level, the difference between visitation
and law enforcement is clear. If a State chooses to pursue
enforcement of its laws in court, then it is not exercising
its power of visitation and will be treated like a litigant.
An attorney general acting as a civil litigant must file a
lawsuit, survive a motion to dismiss, endure the rules of
procedure and discovery, and risk sanctions if his claim is
frivolous or his discovery tactics abusive. Judges are
trusted to prevent “fishing expeditions” or an undirected
rummaging through bank books and records for evidence
of some unknown wrongdoing. In New York, civil discov
ery is far more limited than the full range of “visitorial
powers” that may be exercised by a sovereign. Courts may
enter protective orders to prevent “unreasonable annoy
ance, expense, embarrassment, disadvantage, or other
prejudice,” N. Y. Civ. Prac. Law Ann. §3103(a) (West
2005), and may supervise discovery sua sponte, §3104(a).
A visitor, by contrast, may inspect books and records at
any time for any or no reason.
II
The Comptroller’s regulation, therefore, does not com
port with the statute. Neither does the Comptroller’s
interpretation of its regulation, which differs from the text
and must be discussed separately.
Evidently realizing that exclusion of state enforcement
of all state laws against national banks is too extreme to
be contemplated, the Comptroller sought to limit the
——————
visitorial power pre-empts state law enforcement. That provision
states that some state laws respecting bank branching “shall be en
forced” by the Comptroller. We need not decide here whether convert
ing the Comptroller’s visitorial power to assure compliance with all
applicable laws, see infra, at 12, into an obligation to assure compliance
with certain state laws preempts state enforcement of those particular
laws. Even if it had that effect it would shed no light on the meaning of
“visitorial powers” in the National Bank Act, a statute that it does not
refer to and that was enacted more than a century earlier.
10 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
sweep of its regulation by the following passage set forth
in the agency’s statement of basis and purpose in the
Federal Register:
“What the case law does recognize is that ‘states re
tain some power to regulate national banks in areas
such as contracts, debt collection, acquisition and
transfer of property, and taxation, zoning, criminal,
and tort law.’ [citing a Ninth Circuit case.] Applica
tion of these laws to national banks and their imple
mentation by state authorities typically does not af
fect the content or extent of the Federally-authorized
business of banking . . . but rather establishes the le
gal infrastructure that surrounds and supports the
ability of national banks . . . to do business.” 69 Fed.
Reg. 1896 (2004) (footnote omitted).
This cannot be reconciled with the regulation’s almost
categorical prohibition in 12 CFR §7.4000(a)(1) of “prose
cuting enforcement actions.”4 Nor can it be justified by the
provision in subsection (a)(2)(iv) which defines visitorial
powers to include “[e]nforcing compliance with any appli
cable . . . state laws concerning” “activities authorized or
permitted pursuant to federal banking law,”
§7.4000(a)(2)(iii). The latter phrase cannot be interpreted
——————
4 The prohibition is not entirely categorical only because it is subject
to the phrase at the end of the sentence (applicable to all of the regula
tion’s enumerated “visitorial powers” forbidden to the States): “except
in limited circumstances authorized by federal law.” This replicates a
similar exception contained in §484(a) itself (“No national bank shall be
subject to any visitorial powers except as authorized by Federal law”),
and certainly does not refer to case law finding state action nonpre
empted. If it meant that, §484(a)’s apparent limitation of visitorial
powers would be illusory—saying, in effect, that national banks are
subject to only those visitorial powers that the courts say they are
subject to. Cases that find state action nonpre-empted might perhaps
be described as “permitting” the state action in question, but hardly as
“authorizing” it. In both the statutory and regulation context, “federal
law” obviously means federal statutes.
Cite as: 557 U. S. ____ (2009) 11
Opinion of the Court
to include only distinctively banking activities (leaving the
States free to enforce nonbanking state laws), because if it
were so interpreted subsection (a)(2)(iii), which uses the
same terminology, would limit the Comptroller’s exclusive
visitorial power of “regulation and supervision” to distinc
tively banking activities—which no one thinks is the case.
Anyway, the National Bank Act does specifically authorize
and permit activities that fall within what the statement
of basis and purpose calls “the legal infrastructure that
surrounds and supports the ability of national banks . . . to
do business.” See, e.g., 12 U. S. C. §24 Third (power to
make contracts); §24 Seventh (“all such incidental powers
as shall be necessary to carry on the business of banking”).
And of course a distinction between “implementation” of
“infrastructure” and judicial enforcement of other laws can
be found nowhere within the text of the statute. This
passage in the statement of basis and purpose, resting
upon neither the text of the regulation nor the text of the
statute, attempts to do what Congress declined to do:
exempt national banks from all state banking laws, or at
least state enforcement of those laws.
III
The dissent fails to persuade us. Its fundamental con
tention—that the exclusive grant of visitorial powers can
be interpreted to preclude state enforcement of state
laws—rests upon a logical fallacy. The dissent estab
lishes, post, at 8–9 (and we do not at all contest), that in
the course of exercising visitation powers the sovereign
can compel compliance with the law. But it concludes
from that, post, at 11, that any sovereign attempt to com
pel compliance with the law can be deemed an exercise of
the visitation power. That conclusion obviously does not
follow. For example, in the course of exercising its visita
tion powers, the sovereign can assuredly compel a bank to
honor obligations that are in default. Does that mean that
12 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
the sovereign’s taking the same action in executing a civil
judgment for payment of those obligations can be consid
ered an exercise of the visitation power? Of course not.
Many things can be compelled through the visitation
power that can be compelled through the exercise of other
sovereign power as well. The critical question is not what
is being compelled, but what sovereign power has been
invoked to compel it. And the power to enforce the law
exists separate and apart from the power of visitation.
The dissent argues that the Comptroller’s expansive
reading of “visitorial powers” does not intrude upon the,
“ ‘the historic police powers of the States,’ ” post, at 20,
(quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218,
230 (1947)), because, like federal maritime law, federal
involvement in this field dates to “ ‘the earliest days of the
Republic,’ ” post, at 21 (quoting United States v. Locke, 529
U. S. 89, 108 (2000). For that reason, the dissent con
cludes, this case does not raise the sort of federalism
concerns that prompt a presumption against pre-emption.
We have not invoked the presumption against pre
emption, and think it unnecessary to do so in giving force
to the plain terms of the National Bank Act. Neither,
however, should the incursion that the Comptroller’s
regulation makes upon traditional state powers be mini
mized. Although the sovereign visitorial power of assur
ing national-bank compliance with all laws inhered in the
Federal Government from the time of its creation of na
tional banks, the Comptroller was not given authority to
enforce nonpre-empted state laws until 1966. See Finan
cial Institutions Supervisory Act of 1966, Tit. III, 80 Stat.
1046–1055. A power first exercised during the lifetime of
every current Justice is hardly involvement “from the
earliest days of the Republic.”
States, on the other hand, have always enforced their
general laws against national banks—and have enforced
their banking-related laws against national banks for at
Cite as: 557 U. S. ____ (2009) 13
Opinion of the Court
least 85 years, as evidenced by St. Louis, in which we
upheld enforcement of a state anti-bank-branching law,
263 U. S., at 656. See also Anderson Nat. Bank v. Luckett,
321 U. S. 233, 237, 248–249 (1944) (state commissioner of
revenue may enforce abandoned-bank-deposit law against
national bank through “judicial proceedings”); State by
Lord v. First Nat. Bank of St. Paul, 313 N. W. 2d 390, 393
(Minn. 1981) (state treasurer may enforce general un
claimed-property law with “specific provisions directed
toward” banks against national bank); Clovis Nat. Bank v.
Callaway, 69 N. M. 119, 130–132, 364 P. 2d 748, 756
(1961) (state treasurer may enforce unclaimed-property
law against national bank deposits); State v. First Nat.
Bank of Portland, 61 Ore. 551, 554–557, 123 P. 712, 714
(1912) (state attorney general may enforce bank-specific
escheat law against national bank).5
The dissent seeks to minimize the regulation’s incursion
upon state powers by claiming that the regulation does not
“declare the pre-emptive scope of the [National Bank Act]”
but merely “interpret[s] the term ‘visitorial powers.’ ” Post,
at 20. That is much too kind. It is not without reason that
the regulation is contained within a subpart of the Comp
troller’s regulations on Bank Activities and Operations
that is entitled “Preemption.” The purpose and function of
the statutory term “visitorial powers” is to define and
thereby limit the category of action reserved to the Federal
Government and forbidden to the States. Any interpreta
tion of “visitorial powers” necessarily “declares the pre
emptive scope of the NBA,” ibid. What is clear from logic
is also clear in application: The regulation declares that
“[s]tate officials may not . . . prosecut[e] enforcement
——————
5 Allof these cases were decided before Congress added to §484 its
current subsection (b), which authorizes “State auditors and examin
ers” to review national-bank records to assure compliance with state
unclaimed-property and escheat laws. See 96 Stat. 1521.
14 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of the Court
actions.” 12 CFR §7.4000(a). If that is not pre-emption,
nothing is.
IV
Applying the foregoing principles to this case is not
difficult. “Visitorial powers” in the National Bank Act
refers to a sovereign’s supervisory powers over corpora
tions. They include any form of administrative oversight
that allows a sovereign to inspect books and records on
demand, even if the process is mediated by a court
through prerogative writs or similar means. The Comp
troller reasonably interpreted this statutory term to in
clude “conducting examinations [and] inspecting or requir
ing the production of books or records of national banks,”
§7.4000, when the State conducts those activities in its
capacity as supervisor of corporations.
When, however, a state attorney general brings suit to
enforce state law against a national bank, he is not acting
in the role of sovereign-as-supervisor, but rather in the
role of sovereign-as-law-enforcer. Such a lawsuit is not an
exercise of “visitorial powers” and thus the Comptroller
erred by extending the definition of “visitorial powers” to
include “prosecuting enforcement actions” in state courts,
§7.4000.
The request for information in the present case was
stated to be “in lieu of” other action; implicit was the
threat that if the request was not voluntarily honored,
that other action would be taken. All parties have as
sumed, and we agree, that if the threatened action would
have been unlawful the request-cum-threat could be en
joined. Here the threatened action was not the bringing of
a civil suit, or the obtaining of a judicial search warrant
based on probable cause, but rather the Attorney Gen
eral’s issuance of subpoena on his own authority under
New York Executive Law, which permits such subpoenas
in connection with his investigation of “repeated fraudu
lent or illegal acts . . . in the carrying on, conducting or
Cite as: 557 U. S. ____ (2009) 15
Opinion of the Court
transaction of business.” See N. Y. Exec. Law Ann.
§63(12) (West 2002). That is not the exercise of the power
of law enforcement “vested in the courts of justice” which
12 U. S. C. §484(a) exempts from the ban on exercise of
supervisory power.
Accordingly, the injunction below is affirmed as applied
to the threatened issuance of executive subpoenas by the
Attorney General for the State of New York, but vacated
insofar as it prohibits the Attorney General from bringing
judicial enforcement actions.
* * *
The judgment of the Court of Appeals is affirmed in part
and reversed in part.
It is so ordered.
Cite as: 557 U. S. ____ (2009) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–453
_________________
ANDREW M. CUOMO, ATTORNEY GENERAL OF NEW
YORK, PETITIONER v. THE CLEARING HOUSE
ASSOCIATION, L. L. C., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
JUSTICE THOMAS, with whom THE CHIEF JUSTICE,
JUSTICE KENNEDY, and JUSTICE ALITO join, concurring in
part and dissenting in part.
The Court holds that the term “visitorial powers” as
used in the National Bank Act (NBA), 12 U. S. C. §484(a),
refers only “to a sovereign’s supervisory powers over cor
porations,” which are limited to “administrative oversight”
including “inspect[ion of] books and records on demand.”
Ante, at 14. Based on this definition, the Court concludes
that §484(a) does not pre-empt a “state attorney gen
eral[’s] . . . suit to enforce state law against a national
bank.” Ibid. I would affirm the Court of Appeals’ deter
minations that the term “visitorial powers” is ambiguous
and that it was reasonable for the Office of the Comptrol
ler of the Currency (OCC) to interpret the term to encom
pass state efforts to obtain national bank records and to
enforce state fair lending laws against national banks.
Accordingly, I respectfully concur in part and dissent in
part.
2 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
I
A
The NBA 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).
Through notice-and-comment rulemaking, OCC issued a
regulation defining “visitorial powers” as 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 CFR
§7.4000(a)(2) (2005). OCC further concluded that 12
U. S. C. §484(a)’s “vested in the courts of justice” exception
pertains only to the “powers inherent in the judiciary and
does not grant 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 CFR
§7.4000(b)(2). The Court of Appeals upheld OCC’s regula
tion as reasonable. See 510 F. 3d 105 (CA2 2007).
This Court’s decision in Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984),
provides the framework for deciding this case. “In Chev
ron, this Court held that ambiguities in statutes within an
agency’s jurisdiction to administer are delegations of
authority to the agency to fill the statutory gap in reason
able fashion.” National Cable & Telecommunications
Assn. v. Brand X Internet Services, 545 U. S. 967, 980
(2005). Accordingly, “[i]f a statute is ambiguous, and if the
implementing agency’s construction is reasonable, Chev
ron requires a federal court to accept the agency’s con
Cite as: 557 U. S. ____ (2009) 3
Opinion of THOMAS, J.
struction of the statute, even if the agency’s reading differs
from what the court believes is the best statutory interpre
tation.” Ibid.
OCC is “the administrator charged with supervision of
the [NBA],” NationsBank of N. C., N. A. v. Variable Annu
ity Life Ins. Co., 513 U. S. 251, 256 (1995), and it acted
through notice-and-comment rulemaking procedures in
promulgating the regulation at issue in this case, see 69
Fed. Reg. 1895 (2004). As a result, 12 CFR §7.4000 falls
within the heartland of Chevron. See United States v.
Mead Corp., 533 U. S. 218, 229–230 (2001); see also, e.g.,
Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735,
739 (1996) (deferring to OCC’s interpretation of the term
“ ‘interest’ ” in the NBA). “It is our practice to defer to the
reasonable judgments of agencies with regard to the
meaning of ambiguous terms in statutes that they are
charged with administering,” and “that practice extends to
the judgments of the Comptroller of the Currency with
regard to the meaning of the banking laws.” Ibid. The
majority does not disagree. See ante, at 3. As a result, the
only disputed question is whether the statutory term
“visitorial powers” is ambiguous and, if so, whether OCC’s
construction of it is reasonable.
B
The majority concedes that there is “some ambiguity as
to the meaning of the statutory term ‘visitorial powers.’ ”
Ibid. Yet it concludes that OCC’s interpretation of §484(a)
is not entitled to deference because the Court “can discern
the outer limits of the term ‘visitorial powers’ even
through the clouded lens of history” and these outer defi
nitional limits “do not include . . . ordinary enforcement of
the law.” Ibid. I cannot agree. The statutory term “visi
torial powers” is susceptible to more than one meaning,
and the agency’s construction is reasonable.
Because the NBA does not define “visitorial powers,” the
4 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
ordinary meaning of the words chosen by Congress pro
vides the starting point for interpreting the statute. See
Dean v. United States, 556 U. S. ___, ___ (2009) (slip op.,
at 3) (“We start, as always, with the language of the stat
ute” (internal quotation marks omitted)); Asgrow Seed Co.
v. Winterboer, 513 U. S. 179, 187 (1995) (“When terms
used in a statute are undefined, we give them their ordi
nary meaning”). In 1864, when the NBA was enacted,
“visitation” was generally defined as “[i]nspection; super
intendence; direction; [and] regulation.” 2 A. Burrill, A
Law Dictionary and Glossary 598 (1860); see also 2 J.
Bouvier, A Law Dictionary 633 (1852) (defining “visita
tion” as “[t]he act of examining into the affairs of a corpo
ration”). With respect to civil corporations, “visitation”
was conducted “by the government itself, through the
medium of the courts of justice.” Id., at 634. The Court
has previously looked to these definitions in examining the
meaning of “visitorial powers” for purposes of the NBA.
See Guthrie v. Harkness, 199 U. S. 148, 158 (1905).
OCC’s interpretation of “visitorial powers” to include
both “[r]egulation and supervision of activities authorized
or permitted pursuant to federal banking law” and
“[e]nforcing compliance with any applicable federal or
state laws concerning those activities,” 12 CFR
§§7.4000(a)(2)(iii), (vi), fits comfortably within this broad
dictionary definition of “visitation.” And, in turn, peti
tioner’s demand for nonpublic information to force na
tional banks to comply with state fair lending laws under
threat of judicial action would appear to qualify as an
attempt to “superinten[d]” the banks’ federally authorized
operations “through the medium of the courts of justice.”
See Burrill, supra, at 598; Bouvier, supra, at 634.
On the other hand, as the majority concludes, “visitorial
powers” could be limited to conducting examinations of
national banks or otherwise interfering with their internal
operations. To support this argument, the majority briefly
Cite as: 557 U. S. ____ (2009) 5
Opinion of THOMAS, J.
alludes to the common-law history of visitation. See ante,
at 3–4; see also United States v. Shabani, 513 U. S. 10, 13
(1994) (“[A]bsent contrary indications, Congress intends to
adopt the common law definition of statutory terms”). In
so doing, the majority fully accepts petitioner’s argument
that “Congress invoked a then-familiar common law term
of corporate governance—visitation—to clarify that the
States, traditionally the supervisors of private corpora
tions doing business within their jurisdictions, had no
authority to examine the condition of a national bank,
respond to any perceived financial risk, or hold the bank to
its charter or the laws of its creation.” Brief for Petitioner
21–22. Under the majority’s view, any construction of
§484(a) that fails to preserve the right of the States to
enforce through judicial action their generally applicable
laws against national banks is unreasonable and, there
fore, not entitled to deference. See ante, at 6–7.
But contrary to the majority’s determination, the com
mon-law tradition does not compel the conclusion that
petitioner’s definition of visitation is the only permissible
interpretation of the term. Indeed, a more thorough ex
amination of §484(a)’s common-law ancestry suggests the
opposite. As the majority notes, see ante, at 3–4, the
concept of visitation originated in Roman and canon law in
which the term was used to describe the church hierar
chy’s authority over its own institutions, see Pound, Visi
tatorial Jurisdiction Over Corporations in Equity, 49
Harv. L. Rev. 369, 369–370 (1936). The practice of visita
tion later expanded to include the supervision of charities,
universities, and civil corporations. Ibid.
With respect to churches, charities, and universities, a
visitor’s duties were narrow. In the university setting, for
example, the “power of the visitor [was] confined to of
fences against the private laws of the college; he ha[d] no
cognizance of acts of disobedience to the general laws of
the land.” 2 S. Kyd, Law of Corporations 276 (1794) (em
6 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
phasis in original). The visitor’s duties were equally nar
row in the governance of ecclesiastical and charitable
institutions. See 1 W. Blackstone, Commentaries on the
Laws of England 467–472 (1765); Trustees of Dartmouth
College v. Woodward, 4 Wheat. 518, 673–677 (1819)
(Story, J., concurring). If the sweep of a visitor’s authority
with respect to civil corporations was the same, the major
ity would have a stronger argument that the “visitorial
powers” prohibition was similarly limited. See ante, at 3–
4. However, the common-law tradition instead suggests
that visitorial powers were broader with respect to civil
corporations, including banks.
Historically, visitorial authority over civil corporations
was exercised only by the sovereign who had broad au
thority to assure compliance with generally applicable
laws. See Blackstone, supra, at 469 (“The king being thus
constituted by law the visitor of all civil corporations, the
law has also appointed the place, wherein he shall exercise
this jurisdiction: which is the court of king’s bench; where,
and where only, all misbehaviors of this kind of corpora
tions are enquired into and redressed, and all their con
troversies decided”); 2 J. Kent, Commentaries on Ameri
can Law 241 (1827) (explaining that “visitation of civil
corporations is by the government itself, through the
medium of the courts of justice”). “Civil corporations,
whether public, as the corporations of towns and cities; or
private, as bank, insurance, manufacturing, and other
companies of the like nature, are not subject to [private]
visitation. They are subject to the general law of the land,
and amenable to the judicial tribunals for the exercise and
the abuse of their powers.” Id., at 244; see also J. Angell &
S. Ames, Law of Private Corporations §684, p. 680 (4th ed.
1852) (“Civil corporations, whether public or private, being
created for public use and advantage, properly fall under
the superintendency of that sovereign power whose duty it
is to take care of the public interest; whereas, corpora
Cite as: 557 U. S. ____ (2009) 7
Opinion of THOMAS, J.
tions, whose object is the distribution of a private benefac
tion, may well find jealous guardians in the zeal or vanity
of the founder, his heirs, or appointees”).
States have traditionally exercised their visitorial pow
ers over civil corporations by invoking the authority of the
judiciary to “compel domestic corporations or their officers
to perform specific duties incumbent on them by reason of
their charters, or under statutes or ordinances or imposed
by the common law.” Pound, supra, at 375 (emphasis
added); see also S. Merrill, Law of Mandamus §158, p. 194
(1892) (explaining that “under the visitorial power of the
state, any breach of duty by a private corporation may be
corrected by” the writ of mandamus and that the duty
“may be imposed by [the corporation’s] charter, by the
general statutes, or by the common law” (footnotes omit
ted)). As Merrill explained, such actions were employed to
compel common carriers and certain other civil corpora
tions to adhere to “statutory or common law” duties, in
cluding the duty to “exten[d] to all without discrimination
the use of their services.” Id., §162, at 200; see also J.
Grant, A Practical Treatise on the Law of Corporations in
General, As Well Aggregate as Sole 262 (1854) (explaining
that mandamus was available when corporations “re
fuse[d] to perform a duty cast upon them by the law of the
land”).1
——————
1 By looking to Justice Story’s concurrence in Trustees of Dartmouth
College v. Woodward, 4 Wheat. 518 (1819), for authoritative guidance,
see ante, at 4–5, the majority seemingly rejects the distinction between
the visitor’s role in supervising civil corporations and the visitor’s far
more limited role in supervising private institutions such as churches,
universities, and charitable organizations. See ante, at 5, n. 1. In
Woodward, the Court addressed the scope of the visitor’s authority over
a private college—not a civil corporation. See 4 Wheat., at 562–563
(“The corporation in question is not a civil, although it is a lay corpora
tion. It is an eleemosynary corporation. . . . Eleemosynary corporations
are for the management of private property, according to the will of the
donors. They are private corporations” (emphasis in original)). Visitors
8 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
Even before enactment of the NBA, several States en
acted laws granting banking commissioners specific au
thority to investigate compliance with generally applicable
laws and to use the courts to ensure observance therewith.
See, e.g., Act of Feb. 23, ch. 14, §2, 1838 Mass. Acts p. 303
(authorizing banking commissioners to “visit” a bank and
“examine all [its] affairs” to determine whether it had
“complied with the provisions of law applicable to [its]
transactions”); Act of May 14, ch. 363, §12, 1840 N. Y.
Laws pp. 307–308 (authorizing banking commissioners to
bring judicial actions against banks “found to have vio
lated any law of this state . . . in the same manner and
with the like effect as any incorporated bank may be
proceeded against for a violation of its charter”). Indeed,
Congress modeled the NBA after New York’s supervisory
regime. See J. Knox, A History of Banking in the United
States 422 (1903) (reprint 1969).
Petitioner contends, and the majority agrees, that this
understanding of the common law confuses the sovereign’s
“enforcement of general laws that apply equally to all
actors within a State, like the ban on discrimination found
in New York Executive Law §296–a” with “an exercise of
visitorial powers.” Brief for Petitioner 24; see also ante, at
7 (concluding that “a sovereign’s ‘visitorial powers’ and its
power to enforce the law are two different things”). But
this narrow conception of visitorial powers does not fully
capture the common law. In a section entitled “Visitorial
——————
historically did not have “law enforcement power” over churches,
universities, and charitable organizations. See supra, at 5–6. But
there is strong evidence that visitors of civil corporations—i.e., sover
eigns—were so empowered. See supra, at 6–7. The distinction between
these species of visitation is crucial because it yields divergent under
standings as to the scope of the visitor’s power to enforce generally
applicable laws in court. Moreover, the majority’s failure to confront
this important difference leaves a gap in its historical analysis that, in
turn, undermines its conclusion that OCC’s interpretation of §484(a)
was unreasonable.
Cite as: 557 U. S. ____ (2009) 9
Opinion of THOMAS, J.
power,” one treatise explained that “[a]s a general rule the
state has the same control, in this respect, over corpora
tions that it has over individuals.” C. Elliott, Law of
Private Corporations §90, p. 80 (rev. 3d ed. 1900); see also
1 S. Thompson, Commentaries on the Law of Private
Corporations §475, p. 580 (2d ed. 1908) (“In its visitorial
capacity the state checks and controls corporate affairs,
even for the protection of those who deal with them”). If
the sovereign’s power of visitation was limited to oversight
of “corporate affairs,” visitation would not parallel the
sovereign’s control over individuals or allow the sovereign
to protect through judicial action the rights of individuals
who “deal with” the corporation. See ibid.
The Wisconsin Supreme Court’s decision in Attorney
General v. Chicago & Northwestern R. Co., 35 Wis. 425
(1874)—which has been referred to as “the leading Ameri
can case for the visitorial jurisdiction of equity,” Pound, 49
Harv. L. Rev., at 380—illustrates the point. In that case,
the state attorney general sought a writ of injunction to
“restrain the two defendant companies from exacting tolls
for the carriage of passengers or freight in excess of the
maximum rates established by” Wisconsin law, 35 Wis., at
432. The attorney general “appl[ied] for the writ on behalf
of the public,” id., at 531, in order “ ‘to correct abuses and
save the rights of the people,’ ” id., at 572. The court found
that the attorney general’s visitorial power included en
forcement of generally applicable law against civil corpo
rations through courts of equity. See id., at 529–530. As
the court explained, the common-law understanding of
visitorial powers had expanded beyond its ecclesiastical
roots to include such authority. See id., at 530 (“The
grounds on which this jurisdiction rests are ancient; but
the extent of its application has grown rapidly of late
years, until a comparatively obscure and insignificant
jurisdiction has become one of great magnitude and public
import”).
10 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
As a result, the majority’s conclusion that when “a state
attorney general brings suit to enforce state law against a
national bank, he is not acting in the role of sovereign-as
supervisor, but rather in the role of sovereign-as-law
enforcer,” ante, at 14, cannot be reconciled with this lead
ing case or the general common-law understanding on
which the decision rests. At common law, all attempts by
the sovereign to compel civil corporations to comply with
state law—whether through administrative subpoenas or
judicial actions—were visitorial in nature. Thus, even if
the sovereign’s law enforcement and visitorial powers
were at one time distinct, by common law, they had
merged at least with respect to the enforcement of gener
ally applicable public laws against civil corporations. See
Thompson, supra, §460, at 556 (“The police power, in its
visitorial aspect, as exercised by congress and the several
states, extends to the minutest details of the banking
business” (emphasis added)). By construing visitation so
narrowly, the majority implicitly rejects the efforts of
William Blackstone, James Kent, and Roscoe Pound, see
supra, at 6–7, in elucidating the historical meaning of this
concept. Like OCC, each of these venerable legal scholars
understood visitation of civil corporations to include the
power to enforce generally applicable laws through judicial
actions. See ibid.
In the end, OCC was presented with a broad dictionary
definition of “visitation” and a common-law history sug
gesting that the scope of the visitor’s authority varied in
accordance with the nature of the organization under
supervision. It is possible that the “visitorial powers” are
narrower than OCC concluded. But a visitor’s powers
could also be broader. There is support for the proposition
that visitation includes enforcement of all generally appli
cable laws. See supra, at 5–10. OCC instead interpreted
“visitorial powers” to prohibit only enforcement of laws
concerning “activities authorized or permitted pursuant to
Cite as: 557 U. S. ____ (2009) 11
Opinion of THOMAS, J.
federal banking law.” 12 CFR §§7.4000(a)(2)(iii) and (iv).
States are thus free to enforce applicable laws that do not
regulate federally authorized banking activities, see
§7.4000(a)(3), “including, for example, criminal, tax, zon
ing, and labor and employment laws,” Brief for Federal
Respondent 15 (citing 69 Fed. Reg. 1896).
Thus, although the text and history of visitation do not
authoritatively support either party’s construction of the
statute, OCC’s decision to adopt a more modest construc
tion than could have been supported by the common-law
and dictionary definition reinforces the reasonableness of
its regulation. Put simply, OCC selected a permissible
construction of a statutory term that was susceptible to
multiple interpretations.
C
Petitioner nonetheless argues that the original structure
of the NBA compels us to adopt his reading of “visitorial
powers.” When enacted in 1864, the “visitorial powers”
clause was preceded by a statutory provision directing the
Comptroller of the Currency to appoint persons “to make a
thorough examination into all the affairs of [every bank
ing] association” and to “make a full and detailed report of
the condition of the association to the comptroller.” Act of
June 3, 1864, ch. 106, §54, 13 Stat. 116. In addition, the
“visitorial powers” clause was succeeded by a sentence
concerning the compensation due to the examiners. See
ibid. Petitioner contends that the placement of the “visi
torial powers” clause between these two provisions indi
cates that it originally meant to ban States only from
conducting the particular type of “thorough examination”
of banking affairs described in the neighboring provisions.
And, petitioner adds, §484 currently resides in the sub
chapter of the statute entitled “Bank Examinations,”
which still includes a provision directing the Comptroller
to appoint examiners “to make a thorough examination of
12 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
all the affairs of the bank and . . . make a full and detailed
report of the condition of said bank to the Comptroller of
the Currency.” 12 U. S. C. §481.
Petitioner’s argument is undermined, however, by other
structural attributes of this subchapter. In §484(b), for
example, Congress provided that “[n]otwithstanding” the
statute’s visitorial-powers prohibition, “State auditors and
examiners may . . . review [a national bank’s] records
solely to ensure compliance with applicable State un
claimed property or escheat laws.” Such review does not
fall within petitioner’s definition of “visitorial powers”
because the enforcement of state property laws is in no
way associated with national bank examinations or inter
nal operations. Thus, were §484(a) to have the meaning
petitioner assigns, there would have been no reason for
Congress to identify the §484(b) authority as an exception
to §484(a)’s “visitorial powers” prohibition, as the author
ity granted in §484(b) would never have been eliminated
by §484(a).
Other exceptions in §484 also support OCC’s construc
tion of the statute. For example, §484(a) includes an
exception for visitations “authorized by Federal law.” One
type of visitation authorized by law is described in 26
U. S. C. §3305(c), which provides that “[n]othing contained
in [§484] shall prevent any State from requiring any na
tional” bank to provide payroll records and reports for
unemployment tax purposes. Similarly, 12 U. S. C. §62
permits state tax officials to inspect national bank share
holder lists. Both provisions would be unnecessary if
“visitorial powers” were limited to bank examinations and
internal operations.
In sum, the NBA’s structure does not compel the con
struction of §484(a)’s text that petitioner advocates. If
anything, given the manner in which Congress crafted
exceptions to the “visitorial powers” ban in the statute, the
Cite as: 557 U. S. ____ (2009) 13
Opinion of THOMAS, J.
opposite is true.2
D
The majority also accepts petitioner’s contention that
OCC’s construction of “visitorial powers” is unreasonable
because it conflicts with several of this Court’s decisions.
See ante, at 4–7. But petitioner cannot prevail by simply
showing that this Court previously adopted a construction
of §484 that differs from the interpretation later chosen by
the agency. “A court’s prior judicial construction of a
statute trumps an agency construction otherwise entitled
to Chevron deference only if the prior court decision holds
that its construction follows from the unambiguous terms
of the statute and thus leaves no room for agency discre
tion.” Brand X, 545 U. S., at 982. These decisions do not
construe §484 in a manner that trumps OCC’s regulation.
——————
2 Contrary to the majority’s conclusion, see ante, at 8–9, n. 3, peti
tioner’s structural argument is also undermined by the Riegle-Neal
Interstate Banking and Branching Efficiency Act of 1994 (Riegle-Neal),
108 Stat. 2338, which authorized national banks to operate interstate
branches. The statute provides that “[t]he laws of the host State
regarding community reinvestment, consumer protection, fair lending,
and establishment of intrastate branches shall apply to any branch in
the host State of an out-of-State national bank to the same extent as
such State laws apply to a branch of a bank chartered by that State”
unless federal law separately pre-empts their application or the Comp
troller determines that application of the state law would have a
“discriminatory effect” on the national bank branch. See id., at 2349–
2350, 12 U. S. C. §36(f)(1)(A). Riegle-Neal further provides that “[t]he
provisions of any State law to which a branch of a national bank is
subject under this paragraph shall be enforced, with respect to such
branch, by the Comptroller of the Currency.” See id., at 2350, 12
U. S. C. §36(f)(1)(B). The United States has interpreted the “shall be
enforced” language to provide OCC with exclusive enforcement author
ity. See Brief for Federal Respondent 46–48. This construction rein
forces OCC’s interpretation of §484(a). If OCC has exclusive authority
to enforce state law with respect to interstate branches of national
banks, it would be reasonable to interpret the statute to operate simi
larly with respect to the national banks themselves.
14 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
This Court’s only decision directly addressing the mean
ing of “visitorial powers” is Guthrie, which held that the
NBA did not prohibit a suit brought by a private share
holder seeking to inspect the books of a national bank, 199
U. S., at 157. In so holding, the Court contrasted “the
private right of the shareholder to have an examination of
the business in which he is interested” with a visitor’s
“public right” to examine “the conduct of the corporation
with a view to keeping it within its legal powers.” Id., at
158–159. Guthrie thus draws a line between enforcement
of private rights and the public act of visitation that is
consistent with the definition of visitation embraced by
OCC. See id., at 158 (“In no case or authority that we
have been able to find has there been a definition of this
right, which would include the private right of the share
holder to have an examination of the business in which he
is interested . . .”). The agency has never taken the posi
tion that the “visitorial powers” prohibition extends to
private action.
Nor does this Court’s decision in First Nat. Bank in St.
Louis v. Missouri, 263 U. S. 640 (1924) (St. Louis), fore
close OCC’s construction of the statute. In that case, the
State of Missouri brought a quo warranto proceeding in
state court “to determine [the national bank’s] authority to
establish and conduct a branch bank in the City of
St. Louis.” Id., at 655. The Court first held that federal
law did not authorize national banks to engage in branch
banking. See id., at 656–659. “Having determined that
the power sought to be exercised by the bank finds no
justification in any law or authority of the United States,”
the Court then concluded that “the way is open for the
enforcement of the state statute.” Id., at 660.
Petitioner contends, and the majority agrees, see ante,
at 5–6, and n. 2, that St. Louis stands for the proposition
that a State retains the right to enforce any state law that
is not substantively pre-empted with respect to national
Cite as: 557 U. S. ____ (2009) 15
Opinion of THOMAS, J.
banks, see 263 U. S., at 660 (“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. . . . What the state is seeking to
do is to vindicate and enforce its own law . . .”). Under this
view, then, because the New York fair lending laws are
not substantively pre-empted, he is not exercising “visito
rial powers” by enforcing them.
Respondents counter that the holding of St. Louis is not
so broad. In their view, the Court held only that a State
may enforce its laws against a national bank when federal
law grants the bank no authority to engage in the underly
ing activity at issue. See Brief for Respondent Clearing
House Association 33–34. Here, federal law expressly
authorizes national banks to make mortgage loans. See
12 U. S. C. §371(a). Thus, unlike in St. Louis—in which
the relevant state-law-proscribed conduct in a category
that was wholly beyond the powers granted to national
banks—petitioner seeks to superintend the manner in
which the national banks engage in activity expressly
authorized by federal law. According to respondents, then,
§484(a)’s ban on unauthorized visitation provides the
“controlling reason” forbidding state enforcement that was
absent from St. Louis, see 263 U. S., at 660.
There is no need to decide which party has the better
argument. The St. Louis decision nowhere references
§484(a) or addresses “visitorial powers.” Thus, as noted
above, even if the decision is best read to support peti
tioner’s view of the statute, that conclusion is insufficient
to deny Chevron deference to OCC’s construction of
§484(a). “Since Chevron teaches that a court’s opinion as
to the best reading of an ambiguous statute an agency is
charged with administering is not authoritative, the
agency’s decision to construe that statute differently from
a court does not say that the court’s holding was legally
16 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
wrong. Instead, the agency may, consistent with the
court’s holding, choose a different construction, since the
agency remains the authoritative interpreter (within the
limits of reason) of such statutes.” Brand X, 545 U. S., at
983. A judicial decision that fails to directly confront the
provision at issue cannot be deemed to have adopted the
“authoritative” construction of the statute.3 Petitioner’s
reliance on other decisions of this Court is misplaced for
this very same reason. See First Nat. Bank in Plant City
v. Dickinson, 396 U. S. 122 (1969); Anderson Nat. Bank v.
Luckett, 321 U. S. 233 (1944); First Nat. Bank of Bay City
v. Fellows, 244 U. S. 416 (1917); Easton v. Iowa, 188 U. S.
220 (1903); Waite v. Dowley, 94 U. S. 527 (1877); National
Bank v. Commonwealth, 9 Wall. 353 (1870). None of these
decisions addressed the meaning of “visitorial powers” for
purposes of §484(a), let alone provided a definitive con
struction of the statute.
Finally, this Court’s decision in Watters v. Wachovia
Bank, N. A., 550 U. S. 1 (2007), supports OCC’s construc
tion of the statute. Watters addressed whether the NBA
——————
3 The majority’s suggestion that the Court’s decision in First Nat.
Bank in St. Louis v. Missouri, 263 U. S. 640 (1924), is not “authorita
tive” falls short of the mark. See ante, at 6, n. 2; see, e.g., ante, at 7–8
(“[R]eading ‘visitorial powers’ as limiting only sovereign oversight and
supervision would produce an entirely commonplace result—the precise
result contemplated by our opinion in St. Louis”). According to the
majority, irrespective of which party has the better reading of that case,
it “would still stand for the proposition that the exclusive federal power
of visitation does not prevent States from enforcing their law.” Ante, at
6, n. 2. But that conclusion rests on the assumption that the St. Louis
Court shared the majority’s conception of law enforcement and visita
tion as categorically distinct for purposes of §484(a). It is impossible to
verify that assumption, however, because the bank never raised the
“visitorial powers” defense in that case. See Reply Brief for Petitioner
6. If the Chevron doctrine is to have any interpretative value, an
agency’s construction of a statute cannot be foreclosed by a prior
judicial decision in which the provision in question was neither raised
by the parties nor passed upon by the court.
Cite as: 557 U. S. ____ (2009) 17
Opinion of THOMAS, J.
pre-empted the application of certain Michigan laws to the
mortgage-lending activities of an operating subsidiary of
a national bank. See id., at 7–8. In deciding that issue,
the Court did not reach the question presented here. But
the Court was fully aware that the Michigan statutes
granted state banking commissioners the very enforce
ment authority that petitioner seeks to exert over the
national banks in this case. See id., at 9–10 (citing Mich.
Comp. Laws Ann. §§445.1661 (West 2002), 493.56b (West
Supp. 2005)); see also 550 U. S., at 34 (STEVENS, J., dis
senting) (describing §§445.1661 and 493.56b as “state
visitorial oversight”).4
As the Court explained, although “the Michigan provi
sions at issue exempt[ed] national banks from coverage . . .
[t]his [was] not simply a matter of the Michigan Legisla
ture’s grace. For, as the parties recognize, the NBA would
have preemptive force, i.e., it would spare a national bank
from state controls of the kind here involved.” 550 U. S.,
at 13 (citations omitted); see ibid. (explaining that “real
estate lending, when conducted by a national bank, is
immune from state visitorial control”). The Court’s con
clusion in Watters that §484(a) deprives the States of
inspection and enforcement authority over the mortgage
lending practices of national banks lends weight to the
——————
4 The majority contends that Watters is “fully in accord with the well
established distinction between supervision and law enforcement.”
Ante, at 6. But this argument ignores the reach of the statutes that the
Court assumed were visitorial in Watters. The Michigan laws at issue
in Watters allowed for much more than “ ‘general supervision and
control’ ” of the operating subsidiaries of national banks. Ante, at 6.
They also included provisions permitting the state attorney general to
“take any appropriate legal action to enjoin the operation of the busi
ness” and allowing the commissioner “[t]o bring an action in . . . circuit
court in the name and on behalf of this state” to enjoin “any unsafe or
injurious practice or act in violation of this act or a rule promulgated
under this act.” Mich. Comp. Laws Ann. §§445.1661(e) (West 2002);
493.56b (West Supp. 2005).
18 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
agency’s construction of the statute.
II
Petitioner also argues that three different background
principles trigger a clear-statement rule that overcomes
any Chevron deference to which OCC’s construction of
§484 otherwise might be entitled. I disagree. None of
petitioner’s arguments provide a doctrinal basis for refus
ing to defer to the agency’s reasonable construction of this
statute.
First, petitioner contends that OCC’s regulation, which
interprets §484(a) to pre-empt state enforcement of state
law but not the substantive state law itself, undermines
important federalism principles and therefore triggers a
requirement that Congress clearly state its pre-emptive
intentions, see Gregory v. Ashcroft, 501 U. S. 452, 460
(1991) (“[I]f Congress intends to alter the usual constitu
tional balance between the States and the Federal Gov
ernment, it must make its intention to do so unmistakably
clear in the language of the statute” (internal quotation
marks omitted; alteration in original)). Petitioner is incor
rect because OCC’s construction of the statute does not
alter the balance of power established by the Constitution.
National banks are created by federal statute and there
fore are subject to full congressional control. 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.” Farmers’ and Mechanics’ Nat. Bank v.
Dearing, 91 U. S. 29, 34 (1875); see also Watters, 550 U. S.,
at 10 (“Nearly 200 years ago, in McCulloch v. Maryland, 4
Wheat. 316 (1819), this Court held federal law supreme
over state law with respect to national banking”). As a
result, the only question presented by this case is whether
Congress has seen it “proper to permit” the States to
enforce state fair lending laws against national banks.
OCC’s reasonable conclusion that §484(a) answers that
Cite as: 557 U. S. ____ (2009) 19
Opinion of THOMAS, J.
question in the negative does not alter the federal-state
balance; it simply preserves for OCC the oversight respon
sibilities assigned to it by Congress. See id., at 22 (“Regu
lation of national bank operations is a prerogative of
Congress under the Commerce and Necessary and Proper
Clauses. The Tenth Amendment, therefore, is not impli
cated here” (citation omitted)).
Second, petitioner argues that a clear statement is
required because “the historic police powers of the States
[are] not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress,” Rice v.
Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). There
should be no presumption against pre-emption because
Congress has expressly pre-empted state law in this case.
See Altria Group, Inc. v. Good, 555 U. S. ___, ___ (2008)
(THOMAS, J., dissenting) (slip op., at 9) (“[T]he presump
tion against pre-emption ‘dissolves once there is conclusive
evidence of intent to pre-empt in the express words of the
statute itself’ ” (quoting Cipollone v. Liggett Group, Inc.,
505 U. S. 504, 545 (1992) (SCALIA, J., concurring in judg
ment in part and dissenting in part)); see, e.g., Riegel v.
Medtronic, Inc., 552 U. S. ___, ___ (2008) (slip op., at 2)
(construing the express pre-emption provision of the
Medical Device Amendments of 1976, 21 U. S. C. §360c
et seq., without any reliance on the presumption against
pre-emption).
In any event, this presumption is “not triggered when
the State regulates in an area where there has been a
history of significant federal presence.” United States v.
Locke, 529 U. S. 89, 108 (2000). National banking is the
paradigmatic example “In defining the pre-emptive scope
of statutes and regulations granting a power to national
banks,” this Court has taken the firm view that “normally
Congress would not want States to forbid, or to impair
significantly, the exercise of a power that Congress explic
itly granted.” Barnett Bank of Marion Cty., N. A. v. Nel
20 CUOMO v. CLEARING HOUSE ASSN., L. L. C.
Opinion of THOMAS, J.
son, 517 U. S. 25, 33 (1996). As a result, federal legisla
tion concerning national banks is “not normally limited by,
but rather ordinarily pre-empt[s], contrary state law.” Id.,
at 32. As with general maritime law, Congress’ “legis
lat[ion] in th[is] field from the earliest days of the Repub
lic” and its creation of an “extensive federal statutory and
regulatory scheme” means that an “ ‘assumption’ of non
pre-emption is not triggered.” Locke, supra, at 108. That
the States may also have legislated alongside Congress in
this area, see ante, at 12–13, does not alter this conclusion,
see, e.g., Franklin Nat. Bank of Franklin Square v. New
York, 347 U. S. 373 (1954).
Last, petitioner argues that Chevron deference is inap
plicable because OCC’s regulation declares the pre
emptive scope of the NBA. And, the majority flatly asserts
that “[i]f that is not pre-emption, nothing is.” Ante, at 13.
But OCC did not declare the pre-emptive scope of the
statute; rather, it interpreted the term “visitorial powers”
to encompass state enforcement of state fair lending laws.
The pre-emption of state enforcement authority to which
petitioner objects thus follows from the statute itself—not
agency action. See Smiley, 517 U. S., at 744 (“This argu
ment confuses the question of the substantive (as opposed
to pre-emptive) meaning of a statute with the question of
whether a statute is pre-emptive. We may assume (with
out deciding) that the latter question must always be
decided de novo by the courts. That is not the question at
issue here; there is no doubt that §85 pre-empts state law”
(emphasis in original)).
Here, Congress—not the agency—has decided that “[n]o
national bank shall be subject to any visitorial powers
except as authorized by Federal law.” 12 U. S. C. §484(a).
Indeed, the majority agrees that it is the “statutory
term”—and not OCC’s regulation—that “define[s] and
thereby limit[s] the category of action reserved to the
Federal Government and forbidden to the States.” Ante,
Cite as: 557 U. S. ____ (2009) 21
Opinion of THOMAS, J.
at 13. As a result, OCC has simply interpreted that term
to encompass petitioner’s decision to demand national
bank records and threaten judicial enforcement of New
York fair lending laws as a means of obtaining them. As
Smiley showed, a federal agency’s construction of an am
biguous statutory term may clarify the pre-emptive scope
of enacted federal law, but that fact alone does not mean
that it is the agency, rather than Congress, that has ef
fected the pre-emption.
Petitioner’s federalism-based objections to Chevron
deference ultimately turn on a single proposition: It is
doubtful that Congress pre-empted state enforcement of
state laws but not the underlying state laws themselves.
But it is not this Court’s task to decide whether the statu
tory scheme established by Congress is unusual or even
“[b]izarre.” See ante, at 7. The Court must decide only
whether the construction adopted by the agency is unam
biguously foreclosed by the statute’s text. Here, the text,
structure, and history of “visitorial powers” support the
agency’s reasonable interpretation of §484. Petitioner has
not identified any constitutional principle that would
require Congress to take the greater step of pre-empting
all enforcement of state lending laws (including private
enforcement) even though its central concern was the
allocation of the right to exercise public visitation over
national bank activities.
* * *
For all these reasons, I would affirm the judgment of the
Court of Appeals.