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The AEI Federalism Project conducts and sponsors original research on American federalism, with particular emphasis on federal and state business regulation, legal developments and the role of the courts, and the prospects for rehabilitating a constitutional federalism that puts states in competition for productive citizens and businesses. Through its AG Watch, the Federalism Project monitors and comments on the increasingly active role of state attorneys general.

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Supreme Court Update

June 21, 2006

H2O Squared

posted by Will Wilson @ 1:16 pm

We’ve been puzzling out the various tie-breakers all week and here is what we’ve got: if the USA beats Ghana, and the adjacent tribuatary over the berm loses to or ties the navigable-in-fact water, then the Roberts concurrence faces the Corps of Engineers in a winner-take-all penalty kickoff. Otherwise, the Scalia plurality holds. Sometimes. Sometimes, we’ll use the Stevens or Breyer dissent just for kicks. Not always. The Court has decided that we aren’t sure yet and might not be sure for some time.

So let’s forget water, and focus on this week’s much more important SCOTUS development: Watters! That is, Watters v. Wachovia, which received a cert grant Monday.

The question presented in Watters, “Whether federal banking law bars states from regulating the activities of state-chartered subsidiaries of national banks,” has been answered in the affirmative by the 6th Circuit in Watters, by the the 2nd Circuit in Wachovia Bank v. Burke, 414 F.3d 305 (2d Cir. 2005), and even by the oft-erratic 9th Circuit in Wells Fargo Bank v. Boutris, 419 F.3d 949 (9th Cir. 2005).

We’ll find out next term about the preemption status of the National Bank Act. We can only hope that the Watters won’t get muddied. (You had to see that pun coming. You had to.)