514
Kennedy, J., dissenting
Superintendent of Insurance to liquidate an insolvent insurance company, the process of winding up the activities of the insolvent insurance company begins. No new policies issue, and existing policies are recalled and settled. See § 3903.19. The Ohio priority statute does not regulate the ongoing business of insurance; it facilitates disbursement of a defunct insurance business' assets in a way the Ohio Legislature deems equitable. As we were careful to note in National Securities, the McCarran-Ferguson Act "did not purport to make the States supreme in regulating all the activities of insurance companies." 393 U. S., at 459 (emphasis omitted). The McCarran-Ferguson Act does not displace the standard preemption analysis for the state regulation of insurance companies; it does so for the state regulation of the business of insurance. Ibid. That the Ohio statute is within the class of state laws applicable to insurance companies does not mean the law regulates an integral aspect of the contractual insurance transaction.
In my view, one need look no further than our opinion in National Securities to conclude that the Ohio insolvency statute is not a law "enacted . . . for the purpose of regulating the business of insurance." Even so, our decisions in Pireno and Royal Drug further undercut the Court's holding, despite the majority's attempt to distinguish them. My disagreement with the Court on this point turns on a close interpretation of 15 U. S. C. § 1012(b), which states as follows:
"No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, . . . unless such Act specifically relates to the business of insurance: Provided, That . . . [the federal antitrust statutes] shall be applicable to the business of insurance to the extent that such business is not regulated by State Law."
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