POWER TO REGULATE COMMERCE COMPREHENDS

THE POWER TO CONTROL ENTITIES HAVING A SUBSTANTIAL

EFFECT
Black's Law Dictionary, 2nd Ed. states:
The power to regulate commerce, vested in congress, is the power to prescribe
the rules, by which it shall be governed The power embraces within its
control all the instrumentalities by which commerce may be carried on, and the
means by which it may be aided and encouraged.
Article one Section 8 of the Constitution states congress shall have the power to
regulate commerce among the several states. This commerce clause is the legal
bedrock for all federal regulation of business activity that crosses state lines. Every
piece of federal economic regulation from the Sherman Antitrust Act (1890) to all of
the 1930s New Deal securities and The National Bank Act of 1933 has been made
constitutional by reference to the Commerce Clause.
In Federal Reporter, Vol. 66, No. 100, p. 28595). The OCC stated:
Federal authority over national banks stems from several constitutional
sources, including the Necessary and Proper Clause and the Commerce Clause
of the United States Constitution. . McCulloch v. Maryland.
In McCulloch v. Maryland, 17 U.S. 316, 406-408 (1819) the court noted that,
Among
the enumerated powers, we do not find that of establishing a bank or creating a
corporation. But there is no phrase in the instrument which, like the Articles of
Confederation, excludes incidental or implied powers and which requires that
everything granted shall be expressly and minutely described. [W]e find the great
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powers, to lay and collect taxes; to borrow money; to regulate commerce; The
power being given, it is the interest of the Nation to facilitate its execution. The court
concluded that the Necessary and Proper Clause required a construction that Congress
may exercise the implied powers to effectuate the enumerated powers.
In United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) the court said:
The power of Congress over interstate commerce is plenary and complete in
itself, may be exercised to its utmost extent, and acknowledges no limitations
other than are prescribed in the Constitution.
To this end " [T]he bank is an instrument which is 'necessary and proper
for carrying into effect the powers vested in the government of the United
States.." Easton vs Iowa, 188 US 220, 231 Thus national banks perform a
public function.
PRIVATE PARTIES ENDOWED WITH STATE POWERS GOVERNMENTAL IN
NATURE ARE INSTRUMENTALITIES SUBJECT TO CONSTITUTIONAL
LIMITATIONS
In Terry v. Adams, 345 U. S. 461(1953) (Democratic primary considered state
action for constitutional limitations) the court said [W]hen private individuals or
groups are endowed by the State with powers or functions governmental in nature;
they become agencies or instrumentalities of the State and subject to its constitutional
limitations. "It is apparent that Jaybird activities follow a plan purposefully
designed to exclude Negroes from voting and,. to escape the Fifteenth Amendment's

command that the right of citizens to vote shall neither be denied nor abridged on
account of race.
How is this different where, as the court in Easton, at-p.231 said The whole
opinion of the Court in the case of McCullough v. Maryland is founded on and
sustained by the idea that the bank is an instrument which is 'necessary and proper
for carrying into effect the powers vested in the government of the United States.'"
NATIONAL BANKS is an instrument and participant in Commerce carrying into
effect the powers vested in the government of the United States following a plan
purposely designed to deny homeowners of due process and equal protection and
escape the 5th Amendment.
National Banks mortgage lending powers are granted by the NBA. The power to
foreclose is incidental to its federally granted powers. All by virtue of the Commerce
Clause and All-- under color of federal law.
Alexander Hamilton believed in a symbiotic relationship between agriculture,
commerce, and manufacturing, and that progress in each of these sectors was
necessary for Americas economic development. (Report of Credit II, Dec. 1790)
In Montgomery County v. Federal National Mortgage Association, 13-1752
(2014), the court was Convinced that mortgage lending has a substantial effect
on the nations economy. Thus, the Fourth Circuit held that the tax exemption was
a necessary and proper exercise of Congress Commerce power. By implication,
foreclosures also have a substantial effect on the nations economy.
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The

Substantial Effect Test determines the extent that Congress may control private
entities engaged in Commerce. Congress Commerce power may be exercised in
individual cases without showing any specific effect upon interstate commerce if
in the aggregate the economic activity in question would represent a general
practice . . . subject to federal control. Wickard v. Filburn, 317 U.S. 111, 127,128
(1942)
No elaborate explanation is needed to make evident the broad impact of
commercial lending on the national economy or Congress power to regulate
activities pursuant to the Commerce Clause. Lewis v. BT Investment Managers,
Inc., 447 U.S. 27, 38, 39 (1980)
By extending credit, national banks reach every manner of commercial
enterprise in the stream of commerce such, that its effect can properly be termed
pervasive.
Congress, having power to create a system of national banks, is the judge as
to the extent of the powers which should be conferred upon such banks, and has
the sole power to regulate and control the exercise of their operations. Easton:
238
Clearly such power is derived from the Necessary and Proper and Commerce
Clauses and "comprehends the control for that purpose.... For this purpose they
are the public property of the nation, and subject to all the requisite legislation
by Congress. United States v. Rand, 389 U.S. 121 (1967)
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NATIONAL BANKS ARE PUBLIC NOT PRIVATE CORPORATIONS

National banks are instrumentalities of the Government. Easton, 188 U.S. 220,
239
NATIONAL BANKS are not so private an entities as they would have you
believe that they should not be subject to the 5th Amendment. National banks were
created under the Penumbra of the Constitution, and sired by the Necessary and
Proper and Commerce Clauses. Preemption of State visitorial powers is tested under
the Supremacy Clause. (12 U.S.C. 484) Even the banks ability to perform its
operations is governed under federal law.12 USC 21-43.
The NBA provides for the creation of national banks, and authorizes them to
exercise certain enumerated powers, as well as all such incidental powers as shall
be necessary to carry on the business of banking. 12 U.S.C. 24 Seventh.
Congress granted broad authority to the OCC to prescribe rules and
regulations to define the incidental powers of national banks beyond those
specifically enumerated in the statute., Wachovia Bank, N.A. v. Burke, 414 F.3d
305
In the OCCs publication National Banks and The Dual Banking System
(2003) p.11 states:
Supervision of most national banks is conducted through a network of over
60 field offices located throughout the country, while the largest, most
complex national banks are supervised by teams of examiners actually
stationed on premises at those banks.
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If national banks are such private entities why are government regulators stationed
on the premises to ensure compliance with the governmental purpose? Private entities
do not have the government quartered on their premises, and are not established
instrumentalities of the federal government.
Page 17 states:
The long-range goals of Congress for the national banking system supporting a
stable national currency, financing commerce, acting as private depositories, and
generally supporting the nations economic growth and development So,
today, national banks operate pursuant to federal authority contained in a
federally granted charter. [B, U]
Thus, under color of federal law.
The bank is an instrument which is 'necessary and proper for carrying into
effect the powers vested in the government of the United States.'"Easton, p. 231
Thus, ownership to control a corporation is not necessary under the Necessary and
Proper Clause.
In providing mortgage lending, national banks carry into effect the powers vested
in the government through the Commerce Clauseand a governmental function is
performed. Since the government has authorized mortgage lending it necessarily
implies authority to foreclose as part of the general lending functionsalso a
governmental function. Federal Land Bank v. Bismarck Co. of St. Paul, 314 U.S.
95 (1941)
The challenged activity here is foreclosures governed by 38-38-101, thus
establishing a nexus between the government and the private party to attribute the
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conduct of national banks to that of the government under the 5th Amendment Due
Process and Equal Protection.
Blum vs. Yaretsky, 457 US 991 (1982)
In Easton, 231 the court said [W]e cannot concur in the suggestions that national
banks, in respect to the powers conferred upon them, are to be viewed as solely
organized and operated for private gain. The court made it clear that the principles
enunciated in McCullough v Maryland, 17 U.S. 316(1819), and in Osborn v Bank of
the United States, 22 U.S.738(1824) were still applicable to the present system of
national banks. The court citing Osborn said that "The bank is not considered as a
private corporation whose principal object is individual trade and individual profit, but
as a public corporation created for public and national purposes. The court noted the
private business nature of the bank but concluded that the private parts of the bank were
subsumed by its public nature which benefits the nation.
In view of the holding in Osborn which was approved and held applicable to
later national bank corporations not directly created by Congress in Easton, why
should we now consider national banks private corporations?
Osborn made it clear that banks charter of incorporation not only creates it,
but gives it every faculty which it possesses. The power to acquire rights of any
description, to transact business of any description, to sue on those contracts, is
given and measured by its charter, and that charter is a law of the United States.
Take the case of a contract, which is put as the strongest against the Bank. . . [H]as
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this being a right to make this particular contract? [T]his question, too,
depends entirely on a law of the United States. p. 823
Did the national bank charter grant national banks the right to include power of
sale provisions that would obviate the need for meaningful hearing in a mortgage
contract? Is this not the right to deprive a person of procedural due process? Is the act
of foreclosing without a meaningful hearing within the scope of a law of Congress?
John Locke said nearly 300 years ago Nobody can transfer to another more power
than he has in himself. TWO TREATISE OF GOVERNMENT, BOOK II This
includes Congress.
Osborn tells us that national bank foreclosures must be done under the
authority of the federal charter, which is a law of the United States and therefore
under color of federal law. Thus National banks could be considered
governmental actors.
CONSTITUTION CONSTRAINS GOVERNMENTAL ACTION BY
WHATEVER INSTRUMENTS OR MODE THAT ACTION IS TAKEN
Judge Scalia in Lebron vs National Railroad Passenger Corp., 513 US
374,392 said:
If Amtrak is, by its very nature, what the Constitution regards as the
Government, congressional pronouncement that it is not such can no more
relieve it of its First Amendment restrictions than a similar pronouncement
could exempt the Federal Bureau of Investigation from the Fourth
Amendment. The Constitution constrains governmental action "by whatever
instruments or in whatever modes that action may betaken." (Cite) And under
whatever congressional label. .: "That the Congress chose to call it a
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corporation does not alter its characteristics so as to make it something other

than what it actually is . . ."
In this case, a corporation subject to the Fifth Amendment.
In Lebron, p.398 the court said:
Amtrak is not merely in the temporary control of the Government; it is
established and organized under federal law for the very purpose of pursuing
federal governmental objectives, under the direction and control of federal
governmental appointees.It is in that respect no different from the so-called
independent regulatory agencies which are run by Presidential appointees
with fixed terms.
Like Amtrak, national banks are not merely in the temporary control of the
Government. They were established and organized under federal law for the very
purpose of pursuing federal governmental objectives, under the permanent direction
and control of a governmental appointee[s] with a fixed term. (Comptroller of the
Currency)
Justice Scalia said:
But it does not contradict those statements to hold that a corporation is an agency
of the Government, for purposes of the constitutional obligations of Government
rather than the "privileges of the government," when the State has specifically
created that corporation for the furtherance of governmental objectives, and not
merely holds some shares but controls the operation of the corporation through its
appointees. Lebron: 399
In Lebron, control by the government is exercised by a number of appointees by
the President, and confirmed by the senate to the board of Directors, while in national
banks, control by the government vests in the Comptroller of the Currency, who is

appointed by the President for a 5 year term and confirmed by the Senate. 12 U.S.Code
2.
As Justice Scalia said, The Constitution constrains governmental action by
whatever instruments or in whatever modes that action may be taken." Lebron,
p.392
Both prongs in Lebron are satisfied to determine that NATIONAL BANKS is a
federal Instrumentality with a governmental function: The First Prong----fostering
commerce, and the very vital public purpose of the government to stabilize economic
and social conditions. Barnes v Anderson National Bank of Lawrenceburg, 169
SW2nd 833,838 (1943); and, The Second, involves the extent to which the federal
government retains control over the national banks corporation's efforts to achieve its
objectives under the Commerce and Necessary and Proper Clauses. Because they have
a Substantial Effect on Commerce, it MUST comprehend control for that purpose,
and to the extent necessary they are the public property of the nation, and subject
to all the requisite legislation by Congress. United States v. Rand, supra Therefore
NATIONAL BANKS, is a governmental actor subject to the 5th Amendment.
In Federal Land Bank of St. Louis v. Priddy, 295 U.S. 229,231-234 (1935) the
court said of land banks ".... They are 'instrumentalities of the federal government,
engaged in the performance of an important governmental function. The court noted
similarities to national banks. It concluded that land banks, although concededly
federal instrumentalities possess also characteristics of private business corporations
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distinguishable from the government itself, and from corporations wholly government
owned and created to affect an exclusively governmental purpose.
Yet, though the court in Priddy distinguished the land banks from wholly
government owned and created to effect an exclusively government purpose because
the bank had characteristics of private business corporations, six years later Scotus
decided Federal Land Bank v. Bismarck Co. of St. Paul, 314 U.S. 95 (1941) without
resort to the two prong test applied in Lebron. The court determined that the lending
functions were governmental not proprietary and said [W]hen Congress
constitutionally creates a corporation through which the federal government lawfully
acts; the activities of such corporation are governmental.
In FEDERAL LAND BANK OF WICHITA vs BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF KIOWA, STATE OF KANSAS, 368 U.S.
146 (1961) the court, citing Bismarck at 9 said If the enabling Act is constitutional
and if the instrumentality's activity is within the authority granted by the Act, a
governmental function is being performed.
The conclusions drawn from Bismarck and County of Kiowa, as self-evident
truths, are that if the lending activities are governmental, and foreclosure is part of
the general lending functions as held, then foreclosure is a governmental activity
and the federal land bank governmental actors subject to the 5th amendment
because they must foreclose under color of federal law.

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The same is true for NATIONAL BANKS N.A. predicated on the same
premise. Scotus cases support the conclusion that NATIONAL BANKS, as a
federal instrumentality, is subject to the 5th Amendment when pursuing
foreclosures.
Before this court are three cases that justify this conclusion, Bismarck, Kiowa and
Lebron whose approach may differ, but their analysis would arrive at the same
conclusion.
Congress, having the power to create national banks for a governmental
objective must be able to control them under the necessary and proper clause and
the commerce clause to effectuate the governmental objective. Congress must also
be able to control their private attributes to the extent necessary so as not to
undermine the governmental objective. The two prong test in Lebron firmly
imprints the mark of governmental actors on national banks like NATIONAL
BANKS N.A.
CONCLUSION
In view of the foregoing arguments, Appellant believes she is still the Real
Party in Interest and that the arguments and the issues should be decided in her
favor and remanded back to the federal court to proceed accordingly.
Respectfully,

_______________,

Dated:______________, 2015
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Lisa Kay Brumfiel

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