Supreme Court Invites Solicitor General Views in NBA Preemption Cases
The Court sought the Solicitor General's input on National Bank Act preemption in Cantero, Conti and Kivett, signaling a possible ruling on a circuit split that could reshape OCC-enforced banking law and supervision nationwide.
Per Ballard Spahr, the Supreme Court on October 6 took a further step toward resolving the split over the scope of National Bank Act preemption, inviting the Solicitor General to express the government's views in Cantero, Conti and Kivett. A request for the Solicitor General's views typically signals that at least one Justice wants briefing on a case the Court may decide, and can precede a grant of certiorari.
Why it matters: the National Bank Act's supremacy clause underpins the OCC's authority to issue binding rules, order restitution, and bring enforcement proceedings against national banks, federal thrifts and their affiliates without state banking regimes displacing federal supervision. The controlling question — whether a state-law claim is "incurred by ... entering into any transaction" of the type the Act prohibits, and what the Commencement Date provision excludes — determines whether state courts retain concurrent jurisdiction over suits against federally chartered institutions.
What to watch: the Solicitor General's brief, any grant of certiorari in the three cases, and which circuit test the Court adopts. The outcome reaches beyond banking: every federally insured depository, its fintech partnerships, and state regulators' enforcement leverage are in scope.