Department of Treasury v. Fabe, 508 U.S. 491, 9 (1993)

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Cite as: 508 U. S. 491 (1993)

Opinion of the Court

against an insolvent insurer is a "law enacted . . . for the purpose of regulating the business of insurance," within the meaning of § 2(b) of the McCarran-Ferguson Act.5

II

The McCarran-Ferguson Act was enacted in response to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944). Prior to that decision, it had been assumed that "[i]ssuing a policy of insurance is not a transaction of commerce," Paul v. Virginia, 8 Wall. 168, 183 (1869), subject to federal regulation. Accordingly, "the States enjoyed a virtually exclusive domain over the insurance industry." St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531, 539 (1978).

The emergence of an interconnected and interdependent national economy, however, prompted a more expansive jurisprudential image of interstate commerce. In the intervening years, for example, the Court held that interstate commerce encompasses the movement of lottery tickets from State to State, Lottery Case, 188 U. S. 321 (1903), the transport of five quarts of whiskey across state lines in a private automobile, United States v. Simpson, 252 U. S. 465 (1920), and the transmission of an electrical impulse over a wire between Alabama and Florida, Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 (1878). It was not long before the Court was forced to come to terms with these decisions in the insurance context. Thus, in South-Eastern Underwriters, it held that an insurance company that conducted a substantial part of its business across state lines was engaged in interstate commerce and thereby was subject to the antitrust laws. This result, naturally, was widely perceived as a threat to state power to tax and regulate the

5 Compare the result reached by the Sixth Circuit in this litigation with Gordon v. United States Dept. of Treasury, 846 F. 2d 272 (CA4), cert. denied, 488 U. S. 954 (1988), and Idaho ex rel. Soward v. United States, 858 F. 2d 445 (CA9 1988), cert. denied, 490 U. S. 1065 (1989).

499

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