Assessing Court Deference to the Comptroller of the Currency's Regulations: Incidental Powers of Banks and Blackfeet National Bank

Abstract

In this article, I analyze the question of incidental powers of national banks, raised in Blackfeet National Bank v. Nelson, but not fully addressed: whether banking powers are limited to those enumerated in Paragraph 24 Seven of the National Bank Act. If not, whether courts usually defer to the Comptroller of the Currency's expansion of these powers. The Eleventh Circuit answered the question in the negative. The court's opinion exposes the deeply uncertain interpretation of incidental powers of banks. The timid but constant departure from the Chevron doctrine has allowed courts to stop the rapid expansion of banking powers by the Comptroller of the Currency. The result would be that the standard for judicial review of the Comptroller of the Currency's regulations is no longer under Chevron rule, but under the defunct Skidmore rule.