I submitted a comment letter to the Office of the Comptroller of the Currency regarding its proposed rule on interchange fees as non-interest fees and charges and its preemption order thereunder regarding the Illinois Interchange Prohibition Act.

My comment letter does not address the policy wisdom of the Illinois law. Rather, it focuses on the legal infirmities of the OCC rule. If we take the Major Questions Doctrine and the Unitary Executive Theory seriously, it is hard to see the authority for the OCC rule for national banks. (Yes, laugh away—we all know that these doctrines only apply in one direction, but let’s at least call out the hypocrisy.)

For Federal savings associations, the authority is even thinner; the OCC claims in a footnote that they have comparable powers, but the sole authority it cites subjects the Federal savings associations’ power to transfer funds to “applicable law,” which would be both the Illinois statute and federal antitrust laws, such that Federal savings associations cannot receive interchange fees that violate either the Illinois statute or federal antitrust laws.