Concurring in part, and dissenting in part:
By proscribing the enforcement of non-preempted state law against national banks the Office of the Comptroller of the Currency, a bureau within the U.S. Treasury Department, has altered the compact between the state and national governments. That compact crafted by the framers of our Constitution envisioning two independent co-existing sovereigns will be dangerously weakened should this action by the Executive branch stand. A coequal relationship between the two sovereigns was built into the frame of our republican form of government. Changing that status to one more akin to parent-child or employer-employee tips the federalism scales and strips the states of a portion of the residual sovereignty granted them under the Tenth Amendment by casting the states into a permanent junior or inferior position vis-a-vis the national government. Thus, if the power to alter the relationship between the state and federal government is established, it portends the power to destroy the constitutional concept of federalism, an indispensable component of our free society.
This case arose when the Attorney General of New York discovered significant disparities based on race in interest rates charged by some national banks and their state chartered subsidiaries operating in New York. He found, for example, minority borrowers at Wells Fargo Bank, J.P. Morgan Chase, Citigroup and HSBC paid higher rates of interest for mortgage loans than did white borrowers. If discrimination is proved, such conduct violates New York and federal law. Accordingly, the Attorney General launched an investigation into these banks’ predatory practices. Plaintiffs the Clearing House Association, L.L.C. (Clearing House) and the Office of the Comptroller of the Currency (Comptroller or OCC) moved to enjoin the state Attorney General and obtained a trial on the merits in the United States District Court for the Southern District of New York (Stein, J.), at the conclusion of which Judge Stein ruled the Attorney General could not enforce New York’s nonpreempt-ed laws against a national bank. This ruling and the permanent injunction the district court later issued prompted the present appeal.
With respect to the majority’s view of this appeal, I agree with my colleagues that we lack subject matter jurisdiction to review the Fair Housing Act issue in Clearing House Ass’n, L.L.C. v. Spitzer (Clearing House v. Spitzer), 394 F.Supp.2d 620 (S.D.N.Y.2005), and I concur in a remand. But, I respectfully dissent from that portion of the majority opinion affirming in part the district court’s judgment in Clearing House v. Spitzer and affirming the court’s separate judgment in Office of the Comptroller of the Currency v. Spitzer (OCC v. Spitzer), 396 F.Supp.2d 383 (S.D.N.Y.2005). I do not believe Chevron deference is due to the promulgation by the OCC of 12 C.F.R. § 7.4000 barring New York State from enforcing its civil rights laws in this case.
*127DISCUSSION
I Federalism
A principal issue on this appeal is federalism, which is focused on the tension that exists, as here, when a state law and a federal regulation conflict. Federalism is built into the structure of our Constitution that establishes a system of dual sovereigns, that is, the state and the federal government. In the felicitous words of Chief Justice Salmon Chase, “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Texas v. White, 74 U.S. (7 Wall.) 700, 725, 19 L.Ed. 227 (1868). As James Madison, the father of the Constitution, wrote in an essay in support of the Constitution’s adoption
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The Federalist No. 45, at 303 (James Madison) (Sesquicentennial ed., 1937).
At the adoption of the Bill of Rights, the Tenth Amendment enshrined the concept of federalism: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X. The Supreme Court believes that one of the great benefits of the federalist system is that it serves as a built in check on abuses of governmental power by a state or by the federal government, so long as there is a “healthy balance of power” between them. Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The framers recognized that whatever state powers were surrendered to the new federal government, they were limited so as to be with respect to “certain enumerated objects only”; the states retained “a residuary and inviolable sovereignty over all other objects.” The Federalist No. 39, at 249 (James Madison). Federalism assumes the state and federal governments have concurrent authority over the people, Printz v. United States, 521 U.S. 898, 919-20, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Hence, in Printz the Supreme Court ruled it unconstitutional for Congress to commandeer the chief law enforcement officer of each local jurisdiction to conduct background checks of prospective handgun purchasers under the Brady Act. Such a command under the Act, the High Court ruled, violates states’ residual sovereignty by compelling them to administer a federal regulatory program. Id. at 932-33, 117 S.Ct. 2365.
In the case at hand, we do not have the federal government compelling the states to take some action. Instead, we have a federal executive official — the Comptroller of the Currency — usurping “residual power reserved to the states.” Here, the power usurped is the police power to investigate certain national banks and their operating subsidiaries doing business in New York allegedly guilty of discriminatory lending practices in the state.
In discussing federalism in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court observed the healthy balance between state and federal sovereignties is an obligation of all government officials. Id. at 578, 115 S.Ct. 1624. It is so vital in preserving our freedom that a court should not refuse to intervene when the federal or state government has “tipped the scales too far.” Id. The record on this appeal *128reveals that an administrative official in the Executive branch — not Congress — has tipped the scales too far, which should in my view prompt us to intervene.
II Visitorial Power Under the National Bank Act
A. National Bank Act
I turn now to the statutory backdrop for this litigation. The National Bank Act, 12 U.S.C. § 21 et seq. (2001), first enacted in 1863 and reenacted in 1864, provides for the formation and regulation of national banks. See U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 449, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). Rather than displacing the state banking system, the National Bank Act established what has come to be known as the dual banking system, in which federal and state chartered banks coexist in relative “competitive equality.” See generally First Nat’l Bank in Plant City v. Dickinson, 396 U.S. 122, 131-33, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). National banks are federal instrumentalities, in that they are organized and exist under the laws of the United States, but they are also privately owned businesses headquartered in a particular state and, in general, subject to the laws of that state. See Nat’l Bank v. Commonwealth, 76 U.S. (9 Wall.) 353, 361—62, 19 L.Ed. 701 (1869); Guthrie v. Harkness, 199 U.S. 148, 157, 26 S.Ct. 4, 50 L.Ed. 130 (1905); Keith R. Fisher, Toward a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws, 29 Harv. J.L. & Pub. Pol’y 981, 1002-03 (2006).
B. Visitorial Power
Section 484 of the National Bank Act provides that
[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized.
12 U.S.C. § 484(a) (2001). Whether New York State is attempting to exercise “visi-torial powers” over national banks is a matter of controversy in this case. The American legal scholar Roscoe Pound traced the history of visitorial jurisdiction, beginning with canon law, from which the concept originated, when visitations by bishops to parishes took place to remedy abuses and to make sure church matters were handled decently and in order. In the common law America inherited from England all corporations are subject to visitation to ensure their abiding by the purposes of the charter that created them. Roscoe Pound, Visitatorial Jurisdiction over Corporations in Equity, 49 Harv. L.Rev. 369 (1936).
Early interpretations of the term emphasized the supervisory nature of visitorial authority. See, e.g., First Nat’l Bank of Youngstown v. Hughes, 6 F. 737, 740 (1881), appeal dismissed, 106 U.S. 523, 1 S.Ct. 489, 27 L.Ed. 268 (1883). In Guthrie, the Supreme Court explained that visitation is the “act of a superior or superintending officer, who visits a corporation to examine into its manner to conducting business, and enforce an observance of its laws and regulations.” 199 U.S. at 158, 26 S.Ct. 4; see also Watters v. Wachovia Bank, N.A., — U.S. -, 127 S.Ct. 1559, 1568, 167 L.Ed.2d 389 (2007) (same).
The state Attorney General has not expressed an interest in analyzing national banks’ activities under their national banking charter, but instead is exercising his authority under the state’s police power to investigate civil rights violations being committed by New York entities in New York. In response to troubling indicia of *129discrimination in the terms of mortgages issued in New York, see generally Manny Fernandez, Racial Disparity Found Among New Yorkers with High-Rate Mortgages, NY. Times, Oct. 15, 2007, at Bl, the Attorney General asserts his right to conduct reasonable investigations of national banks — -just as he does of other citizens located in New York — as part of his duty to enforce a state law of general application. Under § 296-a of New York’s Human Rights Law it is an unlawful discriminatory practice for a bank to discriminate against an applicant for credit because of the applicant’s “race, creed, color, national origin, ...” N.Y. Exec. Law § 296-a (McKinney 2005). The statute expressly states the Human Rights Law “shall be deemed an exercise of the police power of the state” to protect “the public welfare, health and peace of the people of this state.” Id. § 290(2).
C. Authority of States to Enforce Nonpreempted State Laws Against National Banks
While the precise contours of the term “visitorial powers” in the national banking context have not been fully delineated, it is clear that virtually from the inception of the National Bank Act the term was not understood to preclude state enforcement of nonpreempted state laws. See Waite v. Dowley, 94 U.S. 527, 528, 534, 24 L.Ed. 181 (1876) (affirming, in suit brought by town treasurer, state court judgment imposing penalty on national bank cashier for failing to comply with state law).
Considerable authority supports the proposition that states have the authority to enforce such laws against national banks. For example, the Supreme Court held in 1924 that the National Bank Act did not impede the ability of a state attorney general to bring an action against a national bank to enforce a valid state law prohibiting the establishment of branch banks. First Nat’l Bank in St. Louis v. Missouri, 263 U.S. 640, 659-60, 44 S.Ct. 213, 68 L.Ed. 486 (1924); see also First Nat’l Bank of Bay City v. Fellows, 244 U.S. 416, 421-22, 37 S.Ct. 734, 61 L.Ed. 1233 (1917) (considering and denying on merits state attorney general’s quo war-ranto action testing authority of national bank to engage in trust services under state and federal law); Minn. v. Fleet Mortgage Corp., 158 F.Supp.2d 962, 966 (D.Minn.2001) (holding that state could bring action to enforce state fraud and deceptive trade practice laws against national bank); Alaska v. First Nat’l Bank of Anchorage, 660 P.2d 406, 425-26 (Alaska 1982) (holding that state could sue national bank to enforce state consumer protection laws); Peoples Savs. Bank v. Stoddard, 359 Mich. 297, 102 N.W.2d 777, 782, 796-97 (1960) (applying, in suit brought by state attorney general, state antitrust law to national bank); cf. Dickinson, 396 U.S. at 129, 130, 138, 90 S.Ct. 337 (denying declaratory and injunctive relief to national banking association following state comptroller’s letter requesting national bank to cease and desist activities prohibited by state law and incorporated into federal law under 12 U.S.C. § 36(c)); Brown v. Clarke, 878 F.2d 627, 629, 632 (2d Cir.1989) (affirming, in suit brought by state banking commissioner, judgment barring national bank from engaging in branching activity prohibited by state law and incorporated into federal law under 12 U.S.C. § 36(c)); Utah ex rel. Dep’t of Fin. Insts. v. Zions First Nat’l Bank of Ogden, 615 F.2d 903, 904, 906 (10th Cir.1980) (same); Nuesse v. Camp, 385 F.2d 694, 700 (D.C.Cir.1967) (finding state banking commissioner could intervene in suit to enjoin Comptroller of Currency from authorizing national bank to open branch in contravention of state law as incorporated into federal law under 12 U.S.C. § 36(c)); Jackson v. First Nat’l *130Bank of Valdosta, 349 F.2d 71, 75 (5th Cir.1965) (“[W]here there is authority to proceed against national banking associations, even if in terms it is only authority to proceed against violations of state law, the subsumption of state substantive law as the regulating principle for national banking associations concerning branching carries with it the right of the State Superintendent of Banks to see to it that that substantive law is enforced.”).
Not only have federal and state courts repeatedly affirmed the authority of states to enforce nonpreempted state law against national banks, Congress has also emphasized the importance of the dual banking system generally and, more specifically, the importance of the ordinary application of state laws to national banks. When Congress enacted the Riegle-Neal Interstate Banking and Branching Efficiency Act in 1994, it specifically subjected interstate branches of national banks to the laws of their host states in the areas of community reinvestment, consumer protection, fair lending, and intrastate branching. See 12 U.S.C. § 36(f) (2001). The House Conference Report stated that
States have a strong interest in the activities and operations of depository institutions doing business within their jurisdictions, regardless of the type of charter an institution holds. In particular, States have a legitimate interest in protecting the rights of their consumers, businesses, and communities.... Congress does not intend that the Interstate Banking and Branching Efficiency Act of 1994 alter this balance and thereby weaken States’ authority to protect the interests of their consumers, businesses, or communities.
H.R.Rep. No. 103-651, at 53 (1994), as reprinted in 1994 U.S.C.C.A.N. 2068, 2074.
Ill Section 7.4000 is Not Entitled to Chevron Deference
A. Action of the OCC
It is against this statutory and case law background that, in 1999, the Comptroller issued a revised regulation interpreting § 484’s prohibition on the exercise of visi-torial powers over national banks to preclude states from enforcing in court non-preempted state laws. 12 C.F.R. § 7.4000. Rather than preempting state law, § 7.4000 preempts the ability of a state government to enforce concededly non-preempted state law. By limiting the power of the state to enforce applicable state law and vesting that authority in a federal agency under § 7.4000, the usual constitutional balance of power between the states and the federal government is heavily tilted towards the federal government, and the Tenth Amendment is put in peril. Because there is no evidence that Congress planned for such a shift to occur, § 7.4000 must be set aside.
B. Regulation Not Authorized Under the Supremacy Clause
To avoid facing the conflict this regulation poses to the balance crafted by the Tenth Amendment, the majority applies to § 7.4000 the deferential review laid out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The majority’s apparent assumption is that a federal regulation preempting a state’s ability to enforce state law is no more troubling or problematic than a regulation substantively preempting state law. I strongly disagree. By leaving state substantive law in place, while at the same time denying the state any role in enforcing that law, § 7.4000 erodes a key aspect of state sovereignty, confuses the paths of political accountability, and allows a federal regulatory agency to have a substantial role in *131shaping state public policy. The likely result of which is a plain transgression on our republican form of government and a violation of the Tenth Amendment.
Further and significantly, the Supremacy Clause in article VI, clause 2 grants the power to preempt state law to the Congress, not to appointed officials in the Executive branch. Even when there is preemption by a federal agency, it may only occur within the scope of authority unmistakably delegated to it by Congress. Such authority does not exist here. In such cases, it is well established that an agency’s construction of a statute that upsets the usual constitutional balance between federal and state powers is never entitled to deferential review under Chevron. See Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). Instead, the courts require a clear indication that Congress intended that result. Id. The requirement for a clear expression of congressional intent
... stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority. This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.
Id. at 172-73, 121 S.Ct. 675; see also Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395 (“If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.”).
C. Law Enforcement Core Aspect of State Sovereignty
It is difficult to imagine a more core aspect of state sovereignty than the authority to pass and enforce valid non-preempted state laws. “[T]he power to create and enforce a legal code, both civil and criminal is one of the quintessential functions of a State.” Diamond v. Charles, 476 U.S. 54, 65, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). The Supreme Court has repeatedly emphasized that states’ ability to pass and enforce their own laws is an essential attribute of state sovereignty. See, e.g., United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (“Each [state] has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses.”); cf. Calderon v. Thompson, 523 U.S. 538, 556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (“Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.”).
In criminal law, the doctrine of dual sovereignty has evolved to protect the substantial state interest in the enforcement of its criminal code. The Supreme Court has explained that separate federal and state prosecutions for the same unlawful act do not offend the Double Jeopardy Clause because “[f]oremost among the prerogatives of sovereignty is the power to create and enforce a criminal code” and “[a] State’s interest in vindicating its sovereign authority through enforcement of its laws by definition can never be satisfied by another State’s enforcement of its own laws.” Heath v. Alabama, 474 U.S. 82, 93, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); see also Bartkus v. Illinois, 359 U.S. 121, 137, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (holding that a federal prosecution cannot “displace the reserved power of States over state offenses” and that the opposite result *132“would be in derogation of our federal system”).
D. St Louis v. Missouri
But it is not necessary to turn to the constitutional principles underlying the dual sovereignty doctrine to demonstrate that nonpreempted state laws may be enforced by a state against national banks. The Supreme Court has addressed this precise issue in a precedent that is now over eighty years old. In St. Louis, the attorney general of Missouri brought a quo warranto proceeding in Missouri state court against a national bank alleging that the bank had violated a state law prohibiting the establishment of branch banks. 263 U.S. at 655, 44 S.Ct. 213. The national bank responded by asserting, inter alia, that, even if the state statute could be validly applied to a national bank, the state could not maintain a proceeding in court to enforce it. Id. at 655, 660, 44 S.Ct. 213. The Supreme Court soundly rejected this argument, stating
... since the sanction behind [the state statute] is that of the State and not that of the National Government, the power of enforcement must rest with the former and not with the latter. To demonstrate the binding quality of a statute but deny the power of enforcement involves a fallacy made apparent by the mere statement of the proposition, for such power is essentially inherent in the very conception of law.
Id. at 660, 44 S.Ct. 213.
The majority’s attempts to distinguish St. Louis are unavailing. Although St. Louis did not discuss the term “visitorial powers” by name, the result in that case would have been logically impossible were the OCC’s interpretation of the term correct. In affirming Missouri’s authority to enforce valid state laws against a national bank, the Supreme Court in St. Louis drew a distinction between permissible state action “to vindicate and enforce its own law,” on the one hand, and impermissible state action to “enforce a law of the United States” or “call the bank to account for an act in excess of its charter powers,” on the other. Id. It is no coincidence that the state actions that the St. Louis Court indicated would be impermissible under the National Bank Act — actions to ensure that a national bank is complying with its charter or the law of its creation — line up precisely with the definition of “visitorial power” provided by the Court in Guthrie. See Guthrie, 199 U.S. at 158, 26 S.Ct. 4 (explaining visitation).
E. Traditional Federal-State Balance Upset
Not only does § 7.4000 upset the traditional federal-state balance by intruding upon a core state function, but it does so in a way that potentially blurs the distinct lines of political accountability between citizens and the federal and state governments.
The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If ... the Federal and State Governments are to control each other, and hold each other in check by competing for the affections of the people, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function.
Lopez, 514 U.S. at 576-77, 115 S.Ct. 1624 (Kennedy, J., concurring). By keeping state law in effect, but removing from state executives the power to enforce that law in court, § 7.4000 confuses which governmental entity citizens should hold ac*133countable for the enforcement of state laws against national banks. If the OCC fails adequately to enforce state law against national banks, state officials could bear the brunt of public disapproval while federal officials remain insulated from the electoral ramifications of their enforcement policies. Cf. New York v. United States, 505 U.S. 144, 169, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (raising parallel concern in context of federal legislation compelling states to regulate disposal of radioactive waste). “Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation.” Id.
Similarly, the federal government is unlikely to be as motivated or as effective as the states in responding to the complaints of a particular state’s citizenry regarding the enforcement of that state’s laws. Here, amici for appellant echo numerous state officials, consumer groups and academic authors in expressing concern that the OCC may lack the capability and commitment to protect consumers with the vigor applied by state attorneys in the past. See, e.g., U.S. Gen. Accounting Office, OCC Consumer Assistance: Process is Similar to That of Other Regulators but Could be Improved by Enhanced Outreach 23-24 (2006) (noting concerns of local officials and consumer group representatives); Fisher, supra, at 1006 (commenting on state officials’ proactive enforcement of consumer protection statutes in cases that federal agencies were “unable or unwilling” to pursue).
Perhaps of most concern is the role § 7.4000 gives to a federal agency in shaping state policy. While the regulation does not mandate that a state legislature institute a particular regulatory regime, there is no doubt that the ultimate contours of state policies will be shaped by the decisions the OCC makes regarding how to— and how not to — enforce state laws against national banks. As the Supreme Court has observed, “[executive action that has utterly no policymaking component is rare.” Printz, 521 U.S. at 927, 117 S.Ct. 2365.
In light of the implications that § 7.4000 has for state sovereignty and the core state function of the enforcement of valid state law, a clear statement of congressional purpose to do so is necessary to support the OCC’s interpretation of the term visi-torial powers. Because Congress has provided no such indication, the regulation should be set aside and the district court’s judgments in OCC v. Spitzer, supra, and Clearing House v. Spitzer, supra, vacated.
IV Watters Decision
Finally, the Supreme Court’s recent decision in Watters does not lead to a contrary result. In Watters, the Supreme Court confronted the question of whether a state can exercise visitorial powers over national bank operating subsidiaries. 127 S.Ct. at 1564. There was no question that the state statute at issue in that case constituted an exercise of visitorial power over such subsidiaries. Id. The statute attempted to empower the state banking commissioner with general supervision and control over the operating subsidiaries and subjected them to various licensing, registration, and inspection requirements. Id. at 1565-66. In finding that the National Bank Act’s prohibition on the exercise of visitorial powers applied to national bank subsidiaries to the same extent that it applied to national banks, Watters reaffirmed the basic principle that “when state prescriptions significantly impair the exercise of [the national bank’s] authority, enumerated or incidental under the NBA, the *134State’s regulations must give way.” Id. at 1567.
Watters thus concerned the relatively familiar case in which a state statute was substantively preempted by federal law. The questions raised by the regulation at issue in this case are very different. Here, there is no dispute that Congress could— but has chosen not to — preempt the state law that the New York Attorney General is attempting to enforce. The crucial question is rather whether the OCC can interpret the National Bank Act to limit state regulation of national banks in this way. This case calls on this Court to determine whether Congress aimed to vest the enforcement of valid state law against national banks entirely in the hands of a federal agency. As the majority concedes, Watters had no occasion to address directly this unique and complex question.
CONCLUSION
Accordingly, for the reasons stated above, § 7.4000 should be set aside and OCC v. Spitzer, supra, and Clearing House v. Spitzer, supra, vacated. Thus, while I concur in the majority’s determination that the Fair Housing Act claim in Clearing House v. Spitzer, should be dismissed, I respectfully dissent from that part of the majority’s decision that affirms the district court judgments.