The regulation-by-enforcement critique has made an impact at the Securities and Exchange Commission, and scholars are beginning to turn this critique against other agencies. Using this critique, this Note demonstrates that the federal combination rules for the lending-limit law should be rewritten. Under the lending-limit law, national banking associations may lend only a certain percentage of their unimpaired capital and unimpaired surplus to any one borrower. Although the combination rules include several per se rules pursuant to which loans made to two borrowers will be aggregated, they also grant the Office of the Comptroller of the Currency (OCC) the power to determine ad hoc whether to aggregate two loans. This power to determine on an ad hoc and even on a post hoc basis whether a violation of the law has occurred is an affront to the rule of law and is unfair to the industry. The combination rules should be amended to remove the OCC’s power to make ad hoc determinations.
Douglas C. Dreier, The Lending-Limit Combination Rules: Regulation by Enforcement at the OCC , 62 Duke Law Journal 1747-1778 (2013).
Available at: http://scholarship.law.duke.edu/dlj/vol62/iss8/8