# Amicus Curiae Brief — Barnett Bank of Marion Cty., NA v. Nelson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0604%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 25 ## Text BEST AVAILABLE COPY Supreme Court 1) InN THE NOV ¥ 1995 Supreme Court of the United States OCTOBER TERM, 199 nn BARNETT BANK OF MARION Counrry, N.A.., Petitioner, Vv. Tom GALLAGHER, INSURANCE COMMISSIONER OF THE STATE OF FLORIDA, ef al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit BRIEF IN SUPPORT OF PETITIONER AND SEEKING REVERSAL FILED BY AMICI CURIAE CONSUMER BANKERS ASSOCIATION, AMERICA’S COMMUNITY BANKERS, ARKANSAS BANKERS ASSOCIATION, GEORGIA BANKERS ASSOCIATION, MASSACHUSETTS BANKERS ASSOCIATION, MICHIGAN BANKERS ASSOCIATION, NEW MEXICO BANKERS ASSOCIATION, OHIO BANKERS ASSOCIATION, PENNSYLVANIA BANKERS ASSOCIATION, TENNESSEE BANKERS ASSOCIATION, VERMONT BANKERS ASSOCIATION, WESTERN INDEPENDENT BANKERS, CHASE MANHATTAN CORPORATION, CHEMICAL BANKING CORPORATION, FIRST INTERSTATE BANCORP, KEYCORP, SHAWMUT NATIONAL CORPORATION, AND WELLS FARGO & COMPANY DAVID W. RODERER * Eric L. HIRSCHHORN DONN C. MEINDERTSMA WILLIAM B.F. STEINMAN WINSTON & STRAWN 1400 L Street, N.W. Washington, D.C. 20005-3502 (202) 371-5700 Counsel for Amici Curiae November 1995 * Counsel of Record (Additional Counsel Listed on Inside Cover) WILeon - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 Of Counsel: MARCIA Z. SULLIVAN CONSUMER BANKERS ASSOCIATION 1000 Wilson Boulevard Suite 3012 Arlington, Virginia 22209 PHILIP GASTEYER AMERICA’S COMMUNITY BANKERS 900 19th Street, N.W., Suite 400 Washington, D.C. 20006 ARKANSAS BANKERS ASSOCIATION The Carvill Building 1220 W. Third Street Little Rock, Arkansas 72201 GEORGIA BANKERS ASSOCIATION 60 Hurt Plaza, Suite 1050 Atlanta, Georgia 30303 MASSACHUSETTS BANKERS ASSOCIATION 73 Tremont Street, Suite 306 Boston, Massachusetts 02108 DONALD HEIKKINEN MICHIGAN BANKERS ASSOCIATION 222 North Washington Square Suite 3209 Lansing, Michigan 48933 JOHN W. ANDERSON NEW MEXICO BANKERS ASSOCIATION P.O. Box 90880 Albuquerque, New Mexico 87109 JEFFREY D. QUAYLE OHIO BANKERS ASSOCIATION 27 West Broad, Suite 1001 Columbus, Ohio 43215 Louise A. RYND PENNSYLVANIA BANKERS ASSOCIATION P.O. Box 152 Harrisburg, Pennsylvania 17108 TimoTuy L. AMos TENNESSEE BANKERS ASSOCIATION 210 Venture Circle Nashville, Tennessee $7228 VERMONT BANKERS ASSOCIATION 29 Main Street Montpelier, Vermont 05601 WESTERN INDEPENDENT BANKERS 100 Spear Street Suite 1505 San Francisco, California 94105 JULIUS L. LOESER First INTERSTATE BANCORP 633 West 5th Street, Suite 700 Los Angeles, California 90071 DENNIS W. TOIVONEN CHASE MANHATTAN CORPORATION 2 Chase Plaza, 10th Floor New York, New York 10081 ARTHUR T. GUJA CHEMICAL BANKING CORPORATION 270 Park Avenue, 41st Floor New York, New York 10017 WILLIAM BLAKE KEYCoRP 127 Public Square Law Group, Second Floor Cleveland, Ohio 44114 J. MICHAEL SHEPHERD SHAWMUT NATIONAL CORPORATION 1 Federal Street, OF 0905 Boston, MA 02211 JOHN D. WRIGHT WELLS Farco & COMPANY 111 Sutter Street, 20th Floor San Francisco, CA 94136 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................-.-cccccceceeeeseeees INTEREST OF THE AMICI CURIAE......................... SUMMARY OF ARGUMENT .0.00000000..0....ccccccccccsecceeeeeee EEE EE I. THE McCARRAN-FERGUSON ACT WAS II. NOT INTENDED TO RESTRICT THE POW- ERS OF NATIONAL BANKS .....W... A. The Activities Of National Banks, Including Their Sales Of Insurance, Are Regulated By A Pervasive Federal Statutory Scheme .......... B. Florida May Not Interfere With The Au- thorized Operations Of National Banks Un- less Authorized By Coneress To Do So .......... C. The General Language Of The McCarran- Ferguson Act Is Not Directed At National Bank Powers, Including The Specific Power To Sell Insurance Granted By Section 92........ EVEN IF McCARRAN-FERGUSON APPLIES TO NATIONAL BANKS, SECTION 92 “SPE- CIFICALLY RELATES” TO THE BUSINESS OF INSURANCE WITHIN THE MEAN- ING OF SECTION 2(b) OF McCARRAN- FERGUSON AND ACCORDINGLY IS PRE- SERVED BY McCARRAN-FERGUSON .......... EE pibiinimsinnenitivenes 10 16 21 26 ii TABLE OF AUTHORITIES CASES Page Cook County Nat’l Bank v. United States, 107 U.S. a ae ee 8, 18 Davis v. Elmira Sav. Bank, 161 U.S. 275 (1896) .... 12 Deitrick v. Greaney, 309 U.S. 190 (1940) x Easton v. Iowa, 188 U.S. 220 (1908)... 10, 11 Farmers’ & Mechanics’ Nat’l Bank v. Dearing, 91 ee, Be I ee ersincsrennsennenienstiptinnniancinmamianimnen 13-14 Fidelity Federal Sav. & Loan Ass’n v. De La Cuesta, of) })lUll Res ee 20-21 First Nat'l Bank of Eastern Ark. v. Taylor, 907 F.2d 775 (8th Cir.), cert. denied, 498 U.S. 972 TLE eI LATE Sa 20 First Nat'l Bank v. California, 262 U.S. 366 STAIR AEN SCE A AER VISE 10 First Nat'l Bank v. Missouri, 263 U.S. 640 (1924). 12 First Nat'l Bank v. Fellows ex rel. Union Trust NO OE ys Sa 9 Franklin Nat'l Bank v. New York, 347 U.S. 373 C—O 14, 20 Guthrie v. Harkness, 199 U.S. 148 (1905) —.............. 11 McClellan v. Chipman, 164 U.S. 347 (1896) —....... 12 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 zz en ee 7 Missouri ex rel. Burnes Nat'l Bank v. Duncan, 265 I I Oe 14-15, 16 Morales v. Trans World Airlines, 504 U.S. 374 OO ————————————————————— passim Morton v. Mancari, 417 U.S. 5385 (1974) ................ 18 NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 115 8. Ct. 810 (1995) —..... 8,9 New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 115 S. Ct. 1671 9 22 Norman v. B. & O. R.R. Co., 294 U.S. 240 (1985) .. 71-8 Osborn v. Bank of United States, 22 US. (9 Winemt.) THB (RGBE) nnnnncncnnoccnccccccceccsncsccscscsecsnscseees 7 Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) _.... 17 Prudential Ins. Co. v. Benjamin, 328 U.S. 408 ee ee 17 iii TABLE OF AUTHORITIES—Continued Page Radzanower v. Touche Ross & Co., 426 U.S. 148 IIT setctrisanteinsitiiesiiicsseiiite 18-20 Ramapo Bank v. Camp, 425 F.2d 333 (3d Cir.), cert. denied, 400 U.S. 828 (1970) —........ 14 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 ge TAS RR LE 2° A 21 Shaw v. Delta Air Lines, 463 U.S. 85 (1983) ve 22 United Serv. Automobile Ass'n v. Muir, 792 F.2d 356 (3d Cir. 1986), cert. denied, 479 U.S. 1031 EER . 20, 22 United States v. United Continental Tuna Corp., tlt ES A al ETE 19 United States v. Corbett, 215 U.S. 233 (1909)... x United States v. South-Eastern Underwriters Ass’n, a RR ae 17, 24 United States v. Weitzel, 246 U.S. 583 (1918)... & CONSTITUTIONAL PROVISION OSS GS eee 17 STATUTES Ee - TITTLE aa a COS ~ 12 U.S.C. § 14 (1994) 00... aaa See 9 oe 8 ES ee 8 12 U.S.C. § 24 (Seventh) ........... sithtibengiteshiiedintpesen 9 TTT TL I LA 14 iE TR) LE 8-9 ES 8,14 SS ae eae See aan Fen 8,13 13 U.S.C. $6 GI-OT (1GB4) nnn. cnnncccccccccecccccceceeee 9 ET EES 2 I ON 7 ETS POR RE 18 EE EE SS Sa ene 14 a passim EN ee en ee 11-12, 14 I a ere 9, 20 ES AEN Oe ee ae 18 12 U.S.C. § 161 (1994) ........... si - : 9 iv TABLE OF AUTHORITIES—Continued Page re Ce i cectencieneeirccnnccincinmmnmeniapamytion 9 12 U.S.C. $8 181-200 (1904) ..................................--... 8 12 U.S.C. $§ 301-308 (1904) ...................................-. 9 I erent 9 EO 9 12 U.S.C. $§ 481-482 (1994) nnn nee eeeenenenenee 9 TE TEE 11 12 U.S.C. § 1818 (1994) spunea 9 TE EL A 17 i} & ) ° — FREESE essere passim Act of Sept. 7, 1916, ch. 461, 39 Stat. 752 9 Currency Act of 1863, Act of Feb. 25, 1863, ch. 58, I iniicntrccnieecintrntneitriiihinntarintineatiimatetie 6,8 Depository Institutions Deregulation and Monetary Control Act of 1980, Pub. L. No. 96-221, § 708, ft re 20 Fla. Stat. Ann. § 626.988(1) (West 1984 & Supp. Se ee ee = 16 Fla. Stat. Ann. § 626.988(2) (West 1984 & Supp. 0 REE ee eee or ee a ee «Se 6, 16 McCarran-Ferguson Act, Act of Mar. 9, 1945, ch. BD, Sa BI BD ccecctecntcnictencnesittciitccnialineintiteniemendl passim McFadden Act, Act of Feb. 25, 1927, ch. 191, § 7, 44 SS a ee eee 13, 20 National Bank Act, Act of June 3, 1864, ch. 106, ree re Stee SPENT. Dea 6,8 MISCELLANEOUS ES I re 10 58 Cong. Rec. 11153 (1916) —............ 18 OU Ee 24 ae 25 91 Cong. Rec. 1085-94 (1945) 25 91 Cong. Rec. 1487 (1945) _...... Sa a eee 17, 23 Black’s Law Dictionary 1286 (6th ed. 1990) _........ 24 H.R. Rep. No. 213, 79th Cong., Ist Sess. 1 (1945) oe 25 OCC Letter No. 475 (Mar. 22, 1989), reprinted in [1989-1990 Transfer Binder] Fed. Banking L. SS ee 21 v TABLE OF AUTHORITIES—Continued OCC Letter No. 623 (May 10, 1993), reprinted in (1998-1994 Transfer Binder] Fed. Banking L. Rep. (CCH) {| 83,505 : S. Rep. No. 481, 64th Cong., Ist Sess. 8 (1916) ...... S. Rep. No. 538, 64th Cong., 1st Sess. 7 (1916) (conference report) . Page or 18 In THE Supreme Court of the United States OcTOBER TERM, 1995 No. 94-1837 BARNETT BANK OF MARION COUNTY, N.A., Petitioner, v. Tom GALLAGHER, INSURANCE COMMISSIONER OF THE STATE OF FLORIDA, e¢7 al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit BRIEF IN SUPPORT OF PETITIONER AND SEEKING REVERSAL FILED BY AMICI CURIAE CONSUMER BANKERS ASSOCIATION, AMERICA’S COMMUNITY BANKERS, ARKANSAS BANKERS ASSOCIATION, GEORGIA BANKERS ASSOCIATION, MASSACHUSETTS BANKERS ASSOCIATION, MICHIGAN BANKERS ASSOCIATION, NEW MEXICO BANKERS ASSOCIATION, OHIO BANKERS ASSOCIATION, PENNSYLVANIA BANKERS ASSOCIATION, TENNESSEE BANKERS ASSOCIATION, VERMONT BANKERS ASSOCIATION, WESTERN INDEPENDENT BANKERS, CHASE MANHATTAN CORPORATION, CHEMICAL BANKING CORPORATION, FIRST INTERSTATE BANCORP, KEYCORP, SHAWMUT NATIONAL CORPORATION, AND WELLS FARGO & COMPANY Pursuant to Rule 37.3 of the Rules of this Court, amici curiae file this brief in support of Petitioner, Barnett Bank of Marion County, N.A., seeking reversal of the 2 judgment of the Court of Appeals for the Eleventh Cir- cuit. All parties have consented to the filing of this brief and their written consents have been filed with the Clerk. Florida law purports to prohibit certain national banks from selling insurance. In addition to its anticompetitive effect, the Florida statute at issue contravenes express statutory authorization in the National Bank Act for na- tional banks, including the Petitioner, to sell insurance. Be- cause the Florida law directly conflicts with the National Bank Act, the Florida law would be invalid under tradi- tional preemption analysis. The general language of the McCarran-Ferguson Act, which allows states to regulate the “business of insurance” except where Congress spe- cifically provides otherwise, does not vitiate the preemp- tive force of the express authorization in the National Bank Act. For these reasons, the judgment of the court of appeals that Florida may prohibit a national bank from selling insurance should be reversed. INTEREST OF THE AMICI CURIAE Amici have a direct interest in ensuring that national banks are permitted to continue to engage in sales of in- surance to the full extent authorized by federal law. Amici are national, regional, and state banking associations whose members include banks and savings associations through- out the United States. Amici also include financial insti- tutions that engage—directly or through affiliated institu- tions—in the sale of insurance products. Three national and regional associations join this brief on behalf of their members. Consumer Bankers Associa- tion, America’s Community Bankers, and Western Inde- pendent Bankers represent nearly 3000 banks and savings associations of all sizes that engage in diverse insurance activities as authorized by Congress. These associat.ons and their members have a direct interest in preserving such activities from restrictive and anticompetitive state laws. Laws of the states in which other members of these 3 associations operate preclude those members from con- ducting congressionally authorized insurance activities by prohibiting licensure of such activities. Descriptions of these associations follow: The Consumer Bankers Association (CBA) was founded in 1919 to provide a progressive voice for the retail banking community. CBA represents over 750 fed- erally insured banks and thrift institutions that hold more than eighty percent of all consumer deposits and more than seventy percent of all consumer credit held by fed- erally insured depository institutions in the United States. America’s Community Bankers (ACB) is the national trade association for over 1800 savings and community financial institutions, serving communities in every state. Members are federally and state chartered, stock and mu- tual in ownership, and FDIC-insured. The industry mem- bers that ACB represents have more than $1 trillion in assets, 270,000 employees, and 16,000 offices. Many of ACB’s member banks have long provided the public with insurance products and services through related entities under a variety of corporate structures. Western Independent Bankers (WIB) is the only re- gional multistate banking association in the United States. Its members consist of 250 independent community banks located in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyom- ing, as well as American Samoa and Guam. WIB’s mem- bers account for more than $34 billion in banking assets. Nine statewide banking associations also join in this brief. Each state represented by these associations has enacted legislation purporting to prohibit or severely circumscribe the ability of banks, including national banks, to market insurance products. Each state association is described below: Arkansas Bankers Association has represented Arkansas banks and bank holding companies for 104 years. The 4 primary objective of the Association is to provide a forum for the financial community to address issues of state and national importance to the business of banking so as to promote a positive banking environment for member banks and customers. Georgia Bankers Association (GBA) is the statewide association representing commercial banks in the State of Georgia. GBA’s members collectively account for vir- tually all of the banking assets in the state. Massachusetts Bankers Association is a statewide as- sociation representing 192 banks and savings associa- tions in the Commonwealth of Massachusetts. Its members account for $150 billion in banking assets. Michigan Bankers Association has represented Michigan commercial banks and bank holding companies for over 100 years. It represents approximately 200 commercial banks in Michigan, which collectively account for vir- tually all of the banking assets in the state. New Mexico Bankers Association is the principal state trade association for the banking community in New Mexico. Its membership consists of sixty-nine banks and Savings institutions, which collectively account for over ninety percent of banking assets in New Mexico. Ohio Bankers Association is the principal state trade association representing 235 commercial banks in Ohio. Its members range in size from small community banks to large regional institutions. Pennsylvania Bankers Association (PBA) is the trade association representing approximately 250 commercial and savings banks in the Commonwealth of Pennsylvania. PBA’s members hold ninety-nine percent of the com- mercial banking assets in Pennsylvania. Tennessee Bankers Association (TBA) is the principal trade association for commercial banks, savings banks, savings associations, and trust companies in Tennessee. 5 All 249 state and federally chartered banks and trust com- panies in Tennessee, plus all twenty-seven state and fed- erally chartered savings institutions in the state, are mem- bers of TBA. Vermont Bankers Association (VBA) represents twenty-eight commercial banks and savings associations in Vermont. VBA provides legislative, regulatory and edu- cational services to its members. In addition to the above-named banking associations, Chase Manhattan Corporation, Chemical Banking Corpo- ration, First Interstate Bancorp, KeyCorp, Shawmut Na- tional Corporation, and Wells Fargo & Company join in this brief as amici. These institutions have a direct inter- est in exercising the full range of powers granted to national banks by Congress. Chase Manhattan Corporation is headquartered in New York, New York and operates two subsidiary banks with 304 consumer branches in three eastern states. It has total assets of $118.8 billion. Chemical Banking Corporation is headquartered in New York, New York and operates seven subsidiary banks with 458 branches in seven eastern states. It has total assets of $187.9 billion. First Interstate Bancorp is headquartered in Los Angeles, California and operates fourteen subsidiary banks with 1167 branches in thirteen western states. It has total assets of $56.9 billion. KeyCorp operates 15 commercial bank subsidiaries in fourteen states, with more than 1400 branch and affiliate Offices in twenty-five states. Shawmut National Corporation is headquartered in Boston, Massachusetts and operates five subsidiary banks with 364 branches in six states. It has total assets of $34 billion. Wells Fargo & Company is headquarted in San Fran- cisco, California and operates two banking subsidiaries 6 with 861 branches in two states. It has total assets of $51 billion. SUMMARY OF ARGUMENT In 1864 Congress enacted the National Bank Act,’ es- tablishing our modern national banking system. Among other things, the National Bank Act created a federal reg- ulatory structure for national banks. The act authorizes and directs the Comptroller of the Currency to charter and supervise the affairs of the national banks. The congres- sional design for the governance of the national banking system, which has been refined by numerous enactments over the years, delineates with care the limited role that the states may play with regard to such associations. This Court consistently has held that the states may neither frustrate the National Bank Act nor impair the functioning of national banks. In 1916 the Congress specifically authorized national banks located in small communities to sell insurance. 12 U.S.C. § 92° (“Section 92”). Section 92 expressly pro- vides that the Comptroller of the Currency is to prescribe rules and regulations governing sales of insurance by na- tional banks. The State of Florida has enacted a statute that pur- ports to prohibit certain national banks empowered by Section 92 to sell insurance—including the Petitioner— from doing so. Fla. Stat. Ann. § 626.988(2)(West 1984 & Supp. 1995). Florida’s attempt to prohibit national banks from exercising such authority squarely conflicts with Section 92. Florida seeks to avoid the preemptive effect of Section 92 by invoking Section 2(b) of the McCarran-Ferguson Act (“McCarran-Ferguson”), 15 U.S.C. § 1012(b), which 1 Act of June 3, 1864, ch. 106, 13 Stat. 99. This statute reenacted and amended the Currency Act of 1863, Act of Feb. 25, 1863, ch. 58, 12 Stat. 665. 2 All citations herein to the United States Code are to the 1994 edition unless otherwise noted. 7 Florida asserts deprives Section 92 of preemptive force. The court of appeals erroneously accepted Florida’s argu- ment. Pet. App. la-16a. The history of the federal bank- ing system, the text of its underlying statutory scheme, and the language, history, and purpose of McCarran-Ferguson demonstrate that Congress did not intend McCarran- Ferguson to diminish federal authority, or enhance state authority, over the activities of national banks. Nothing about McFarran-Ferguson evinces a congres- sional purpose to alter the carefully crafted balance of authority between federal and state governments under the national banking scheme. Rather, Congress carefully fashioned the two-pronged test of Section 2(b) of McCarran-Ferguson to ensure that federal statutes ex- pressly affecting insurance, such as Section 92, would re- main unimpaired. Section 92 explicitly authorizes national banks to sell insurance. Accordingly, that law “specific- ally relates to the business of insurance” and is not subject to McCarran-Ferguson. The need to maintain the in- tegrity and competitiveness of the national banking sys- tem, as well as to harmonize the congressional policy de- tailed in Section 92 with the limited congressional purpose reflected in McCarran-Ferguson, require that the decision of the court of appeals be reversed. ARGUMENT I. THE MeCARRAN-FERGUSON ACT WAS NOT IN- TENDED TO RESTRICT THE POWERS OF NA- TIONAL BANKS. A. The Activities Of National Banks, Including Their Sales Of Insurance, Are Regulated By A Pervasive Federal Statutory Scheme. National banks are creatures of federal law. Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 823 (1824). Congress possesses broad constitutional powers to charter banks, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819), and to maintain a national banking system, Norman v. B. & O. R.R. Co., 294 US. 240, 303 (1935). Congress devised the modern national banking system during the Civil War to provide a national currency and a federal banking system separate from the previous state-dominated system. See Act of Feb. 25, 1863, ch. 58, 12 Stat. 665; Act of June 3, 1864, ch. 106, 13 Stat. 99 (collectively referred to herein as the National Bank Act). As an essential element of the Na- tional Bank Act, Congress fashioned a federal framework to regulate the chartering and supervision of national banks. Congress placed the Comptroller of the Currency at the helm of that scheme. See, e.g., 12 U.S.C. § 1. “The National Bank Act constitutes ‘by itself a com- plete system for the establishment and government of Na- tional Banks.’” Deitrick v. Greaney, 309 U.S. 190, 194 (1940) (quoting Cook County Nat'l Bank v. United States, 107 U.S. 445, 448 (1883)). National banks are organized under federal law, 12 U.S.C. §§ 21-23, which empowers them to conduct their corporate affairs, e.g., 12 U.S.C. §§ 24, 29 (power to hold real property); see generally NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Ca., 115 S. Ct. 810 (1995) (“NationsBank’”). Inter alia, federal law sets the number and qualifications for directors, 12 U.S.C. §§ 71-78, determines the extent to which national banks may engage in branching, 12 U.S.C § 36, and establishes dissolution and receivership requirements, 12 U.S.C. §§ 181-200. The Comptroller, who is appointed by the President and confirmed by the Senate, 12 U.S.C. § 2, supervises the activities of national banks. NationsBank, 115 S. Ct. at 813; United States v. Weitzel, 246 U.S. 533, 540 (1918); United States v. Corbett, 215 U.S. 233, 240 ( 1909) (referring to the Comptroller's “comprehensive powers” over “the operations of national banks”). The Comptroller has plenary power, unimpeded by state laws, to charter national banks. After assessing a national bank association’s financial condition, including whether the association’s capital is sufficient, the Comptroller may the association to commence business. 12 U.S.C. §§ 26-28; see generally 12 U.S.C. §§ 51-67 (provisions governing national bank capital, stock, and stockholders). Each national bank must submit to the Comptroller reports concerning its condition, the dividends declared or paid, and the condition of the bank’s affiliates. 12 U.S.C. §§ 161, 164. The Comptroller has general rule- making power to regulate national bank activities, 12 U.S.C. § 93a, may set limitations and conditions on the making of certain loans by national banks, 12 U.S.C. § 371(a), appoints examiners to examine the affairs of national banks, 12 U.S.C. §$§ 481-482, may appoint and discharge conservators, 12 U.S.C. §§ 201-209, may ap prove national bank association consolidations, 12 U.S.C. § 215(a), and may impose regulatory sanctions and civil penalties for violations of banking laws or regulations, 12 U.S.C. § 1818. The Comptroller reports annually to Congress on these activities. 12 U.S.C. § 14. In addition to their general powers to conduct the busi- ness of banking and incidental activities, see 12 U.S.C. § 24 (Seventh); NationsBank, 115 S. Ct. 810, national banks may engage in various banking and related activi- ties specifically determined by Congress to be appropri- ate. Congress has constitutional authority to grant na- tional banks any powers, including trust and agency that are “appropriate or relevant to the banking business.” First Nat'l Bank v. Fellows ex rel. Union Trust Co., 244 U.S. 416, 4,9 (1917). Congress in 1916 expanded national bank powers by enacting Section 92, which authorizes national banks lo- cated in small towns to sell insurance and empowers the Comptroller to regulate this activity. Act of Sept. 7, 1916, ch. 461, 39 Stat. 752, 753. Section 92 provides: In addition to the powers now vested by law in national banking associations organized under the laws of the United States any such association lo- cated and doing business in any place the population ; : i i E if if ro rg a ‘ rf 5 z : oy E 5 e : A ze gé 1 E i r : 285 e BE B E : ; | g ment of any premium on insurance through its agency by its principal: And provided application for insurance. 12 U.S.C. § 92. A central purpose of Section 92 was to “enlarge” national bank powers, providing such institu- tions “with additional sources of revenue and plac{ing] them in a position where they could compete with local state bank and trust companies.” Letter from J. Skelton Williams, Comptroller of the Currency, to Sen. Robert L. Owen (June 8, 1916), reprinted in 53 Cong. Rec. 11001 (1916). B. Florida May Not Interfere With The Authorized Operations Of National Banks Unless Authorized By Congress To Do So. National banks operate outside the sphere of state reg- ulation of the business of banking. The national banking system is to be “ ‘independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the States.’” First Nat'l Bank v. California, 262 U.S. 366, 369 (1923) (quoting Easton v. lowa, 188 U.S. 220, 229 (1903)). 11 This Court long has recognized that where the federal regulatory mechanism deals with activities of national banks, the states may not circumscribe those activities even in areas that normally might be considered matters of state concern. In Easton v. lowa this Court held that because the National Bank Act established a mechanism to address the insolvency of a national bank, Iowa could not enforce a law penalizing a national bank’s officers for accepting deposits during a period of insolvency. ) E . ul fu fe : i 5 : é Easton, 188 U.S. at 238. A further illustration of the limited state power over national bank operations is the fact that state banking Officials explicitly are precluded from reviewing national bank records except in narrowly restricted circumstances. See 12 U.S.C. § 484(b) (permitting state examinations only to ensure compliance with applicable state unclaimed property or escheat laws, and then only if the state has reasonable cause to believe that those laws have been violated); see also Guthrie v. Harkness, 199 U.S. 148, 159 (1905) (“It was the intention that this statute [Rev. Stat. § 5241] should contain a full code of provisions upon the subject, and that no state law or enactment should undertake to exercise the right of visitation over a na- tional corporation.”); 12 U.S.C. §92a(c) (state bank- ing authorities may review Comptroller’s reports of ex- 12 amination of national banks insofar as the reports relate to the trust department of the bank but are not authorized by this provision to examine the books, records, or assets of the bank itself). In general, state attempts to regulate national banks must fail when the state law conflicts with federal law, frustrates the congressional purpose underlying the fed- eral banking statutes, or impairs the efficiency of national Davis v. Elmira Sav. Bank, 161 U.S. 275, 283 (1896). “General and undiscriminating” state laws are applicable to national banks, as to other busineses, so long as those laws do not impair the exercise by national banks of the powers Congress has entrusted to them. /d. at 290; First Nat'l Bank v. Missouri, 263 US. 640, 656 (1924); McClellan v. Chipman, 164 U.S. 347, 357 (1896). business they are empowered to conduct, a state cannot limit the ability of national banks to exercise that power unless Congress expressly has authorized the state to do so. On a few narrow and explicit occasions, Congress has done just that. 13 Branch banking is a notable example, particularly be- cause at the same time the Senate considered Section that enacted Section 92 also contained a provision to permit national banks to establish branches. S. Rep. No. 481, 64th Cong., Ist Sess. 8 (1916). floor debate the Senate agreed to an amendment that would prohibit such branching “in any State whose Statutes do not specifically authorize branches for banks having State charters.” 53 Cong. Rec. 11153 (1916). Moments later the Senate took up the provision that ultimately became Section 92. Jd. The lone issue dis- cussed about the insurance sale provision was whether the threshold population figure should be 3000, as the Comptroller and the Senate Banking and Currency Com- i recommended, or 5000, as requested by Sena- of Minnesota. Jd. The latter figure was d. Thus the Senate, fresh from debate on imposing state law limitations on branch banking, con- sidered Section 92 with not a single senator suggesting that this new power to act as insurance agent should be subject to state law restrictions. Although the branch banking provision was dropped in conference, S. Rep. No. 533, 64th Cong., Ist Sess. 7 (1916) (conference re- port), the state law limitation on branching was included the McFadden Act authorized national banks to establish branches eleven years later. Act of Feb. 25, 1927, ch. 191, § 7, 44 Stat. 1225, 1228 (current version at 12 U.S.C. § 36). Congress in other instances has authorized state law limitation on national bank powers. For example, Con- gress has provided that state laws limiting interest rates apply to national banks located in those states. 12 U.S.C. § 85; see generally Farmers’ & Mechanics’ Nat'l Bank vy. Dearing, 91 U.S. 29 (1875) (discussing forerunners of 12 U.S.C. § 85). Congress intended some of these pro- r 14 visions to ensure that national banks enjoy the same benefits that have been conferred by state legislatures on state banks. E.g., 12 U.S.C. § 29 (providing that in cer- tain circumstances, national banks may hold property for as long as a state-chartered bank would be permitted to do so under state law). Congress likewise has authorized national banks to act “as trustee, executor, administrator, [or] registrar of stocks and bonds,” so long as such au- thorization is “not in contravention of State or local law.” 12 U.S.C. § 92a; see also, e.g., 12 U.S.C. § 24 (Eighth) (permitting charitable contributions by national banks unless state law prohibits such contributions by state banking institutions); 12 U.S.C. §90 (permitting na- tional banks to give security for deposits by states or political subdivisions to the extent authorized by state law). In short, where Congress intends to permit state law to circumscribe federally created banking powers, Congress does so expressly and should not lightly be presumed to do so by implication. See Franklin Nat'l Bank v. New York, 347 U.S. 373, 378 & n.7 (1954). In Franklin, this Court held that New York could not prohibit a na- tional bank from using the term “savings” in its name because national banks had the right to receive deposits and pay interest on customers’ savings. Although the state law presented no direct conflict (because the Na- tional Bank Act does not expressly empower national banks to use “savings” in their names), the Court found no congressional intent to subject a “phase of national banking to local restrictions” by implication where Con- gress had done so “by express limitation in several other instances.” Jd. at 378; see also Ramapo Bank v. Camp, 425 F.2d 333, 344 (3d Cir.) (because National Bank Act provision on bank relocations contains no express grant of power to states, contrary state law preempted), cert. denied, 400 U.S. 828 (1970). Except as Congress has otherwise provided, “the State cannot lay hold of its general control of administration to deprive national 15 banks of their power to compete that Congress is author- ized to sustain.” Missouri ex rel. Burnes Nat'l Bank v. Duncan, 265 U.S. 17, 24 (1924) (Holmes, J.). Congress did not subject the “phase of national bank- ing” at issue here—insurance agency activity—to “local restrictions.” Section 92 accords the states no power over national banks. Congress explicitly acknowledged banks acting as agents for state-licensed insurance com- panies.* Congress kept in the hands of the Comptroller, and out of the hands of the states, authority over the en activities of the national banks them- selves. In granting national banks the power to act as insur- ance agents, Congress could have permitted banks to exercise that power only where in accord with state law. Congress also could have provided that national banks may act as insurance agents subject to “such rules and reg- ulations as the State insurance authorities may prescribe.” Or Congress might have provided that national banks may act as general insurance agents to the “same extent as state-chartered banks” or only if such activity were “not in contravention of State law.” Congress did not select any of these options. Section 92 does not contemplate any state role in determining whether national banks may sell insurance. Congress chose to retain federal supremacy over the power of *“(A national banking] association located and doing business in any place the population of which does not exceed five thousand - . » May, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authoriites of the State in which said bank is located to do business in said State.” 12 U.S.C. § 92. 16 national banks to act as insurance agents and reposed in the Comptroller authority to prescribe any necessary rules. The Florida antiaffiliation law provides that “[nJjo insurance agent . . . who is associated with . . . a finan- cial institution shall engage in insurance agency activities.” Fla. Stat. Ann. § 626.988(2) (quoted in full at page 5 of Petition). The Florida law by its terms imposes this restriction upon national banks as well as state chartered institutions. Jd. § 626.988(1)(a) (see Pet. at 4-5). Flor- ida singles out banks, including national banks and affili- ated persons, banning them from the insurance market- place despite the express language of Section 92.‘ Flor- ida’s law thus seeks to do precisely what Justice Holmes described as forbidden—‘“to deprive national banks of their power to compete.” See Missouri ex rel. Rurnes Nat'l Bank, 265 U.S. at 24. C. The General Language Of The McCarran-Ferguson Act Is Not Directed At National Bank Powers, Including The Specific Power To Sell Insurance Granted By Section 92. Mc-Carran-Ferguson was not intended to restrict na- tional bank insurance activities authorized by federal law. Neither its text nor its legislative history contains any reference to banking. Until 1944 many believed that the issuance of insur- ance contracts was not a transaction in “commerce.” In that year this Court held that Congress has power under 4That the Florida statute is riddled with exceptions—i.e., it exempts from the restriction banks that are not subsidiaries or affiliates of a bank holding company and are located in a city having less than 5000 residents, as well as “grandfathered” banks engaged in insurance sales prior to enactment, Fla. Stat. Ann. § 626.988 (1) —demonstrates that the law’s true purpose is to protect the income of independent insurance agents. See generally Brief of American Bankers Association et al. as Amici Curiae, Point II; Brief of Florida Bankers Association as Amicus Curiae, passim. 17 the Commerce Clause, U.S. Const. art. 1, § 8, cl. 3, to regulate insurance activity and had exercised that power permissibly in enacting the Sherman Act. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944). In the eyes of Congress, South-Eastern Underwriters threatened long-standing state regulation and taxation of the business of insurance in two ways. First, federal laws enacted under Commerce Clause authority could, by im- plication, be applied to supersede state regulation of insurance. Second, even in the absence of legislation under the Commerce Clause, the “dormant” commerce power might be construed to restrict state regulation of insurance activity. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429 (1946).° McCarran-Ferguson states that it was enacted so that “silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation” of the insurance business by the state. 15 U.S.C. § 1011 (emphasis added). In the words of Senator O’Mahoney, which were confirmed by Senator Ferguson, what Con- gress sought to assure was that “no existing law and no future law should, by mere implication, be applied to the business of insurance” simply because the law might relate to commerce. 91 Cong. Rec. 1487 (1945) (emphasis added). To this end, Section 2(b) of McCarran-Ferguson provides that a federal law may only preempt state in- surance laws if the federal enactment “specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). ® Before South-Eastern Underwriters, “negative implication from the commerce clause was held not to place any limitation” on state insurance regulation, Benjamin, 328 U.S. at 414, and the Supreme Court routinely had upheld state regulation of the insurance ac- tivities of out-of-state companies, e.g., Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869). 18 Accepted principles of statutory construction, as applied by this Court to the federal banking laws, confirm this conclusion: [A] statute dealing with a narrow, precise, and spe- cific subject is not submerged by a later enacted statute covering a more generalized spectrum. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974)) (footnote omitted); see also Cook County Nat'l Bank, 107 U.S. at 448, 451 (describing National Bank Act as “a complete system for the estab- lishment and government of national banks” and stating that as a specific, comprehensive statute on a particular subject, the National Bank Act prevails over a general— though in that instance an earlier-enacted—statute). In Radzanower an action was brought against a na- tional bank for alleged violations of the Securities Ex- change Act of 1934. The bank was headquartered in Boston but the action was brought in the Southern District of New York. The district court dismissed the action because the special venue provision of the National Bank Act then in force, 12 U.S.C. § 94 (1970), required that a lawsuit against a national bank be brought in the district where the home office of the bank was located. The court of appeals affirmed. In this Court the plaintiff-petitioner claimed that the applicable venue provision was not that of the National Bank Act but that of the Securities Ex- change Act of 1934. The latter provision permitted a securities fraud action to be brought in any district where the violation occurred or where the defendant might be found. Writing for the Court, Justice Stewart first noted that 12 U.S.C. § 94 evidenced a specific intent by Congress to 19 limit the courts in which a national bank could be sued. Radzanower, 426 U.S. at 152. Invoking the rule of stat- utory construction that the specific overrules the general, even where the general law is the later-enacted of the two, id. at 153, as well as the “ ‘cardinal principle . . . that repeals by implication are not favored,’” id. at 154 (quot- ing United States v. United Continental Tuna Corp., 425 U.S. 164, 168 (1976) (footnote omitted)), the Court held that the national bank venue provision prevailed. The Court also noted that “[t])he legislative history of the Securities Acts does not indicate that Congress con- sidered banks as likely defendants in actions brought under those acts.” Id. at 155 n.11. Radzanower is analogous to this case. The Court there noted that “[w]hen Congress enacted the narrow venue provisions of the National Bank Act, it was focusing on the particularized problems of national banks.” Jd. at 153. Seventy years later in the Securities Exchange Act, Congress “enacted a general venue provi- sion applicable to the broad universe of potential defend- ants.” Id. at 153-54. So too here: When Congress en- acted Section 92 in 1916, it focused on the particularized issue of national bank sales of insurance and the public policies favoring such activity. Decades later Congress included in McCarran-Ferguson a general provision di- rected to state regulation of the business of insurance, saying nothing in the statute or legislative history about national banks. Radzanower found no “clear intention” on the part of Congress in enacting the general securities fraud venue provision to effect a “pro tanto repeal” of the specific banking venue provision. /d. at 154 (noting that repeals by implication are not favored). The Court’s observation that the Securities Act “was enacted primarily to halt securities fraud, not to regulate banks,” id. at 157, applies with equal vigor here: McCarran-Ferguson was intended to preserve existing state regulation of the business of 20 insurance as against implied congressional intrusion, not to regulate banks or, for that matter, even to override express federal statutes relating to the business of insur- ance. See First Nat'l Bank of Eastern Ark. v. Taylor, 907 F.2d 775 (8th Cir.), cert. denied, 498 U.S. 972 (1990) (holding that McCarran-Ferguson was “not directed at the activities of national banks”); see also United Serv. Automobile Ass'n v. Muir, 792 F.2d 356, 364 (3d Cir. 1986) (state antiaffiliation law not within scope of McCarran-Ferguson because, inter alia, “banks are not entities within the insurance industry”), cert. denied, 479 U.S. 1031 (1987). As with the securities acts, the text and legislative history of McCarran-Ferguson contain no reference to banks. See Radzanower, 426 U.S. at 155 n.11. Section 92 expressly authorizes the Comptroller to over- see sales of insurance by national banks and to prescribe “rules and regulations” to govern national banks acting as insurance agents.° Unlike the McFadden Act and the other provisions noted above, Section 92 does not con- template any state-law limitations on such activities. Florida’s law directly conflicts with the statutory power specifically bestowed by Section 92: Florida has attempted absolutely to prohibit Petitioner, which is a national bank, from exercising its Section 92 right to sell insurance. Un- der traditional preemption analysis, Florida’s law would fall because it interferes with the congressional scheme. E.g., Franklin Nat'l Bank, 347 U.S. at 378-79 (power im- plicit under the federal banking laws for banks to use word “savings” in advertising preempts New York law prohibiting use of that term); Fidelity Federal Sav. & Loan Ass'n v. De La Cuesta, 458 U.S. 141 (1982) (Cali- ®* The enactment of Section 92 in 1916 marked one of the first congressional grants of rulemaking authority to the Comptroller. More than sixty years would pass before Congress explicitly granted the Comptroller broad rulemaking powers. Depository Institutions Deregulation and Monetary Control Act of 1980, Pub. L. No. 96-221, § 708, 94 Stat. 182, 188 (codified as amended at 12 ~U.S.C. § 98a). 21 fornia law prohibiting due-on-sale clause in loan instru- ments preempted by federal law permitting same); see also Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (state law preempted where federal law “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject”). Nothing in the text, legislative history, or purpose of McCarran-Ferguson al- ters this conclusion.” II. EVEN IF McCARRAN-FERGUSON APPLIES TO NATIONAL BANKS, SECTION 92 “SPECIFICALLY RELATES” TO THE BUSINESS OF INSURANCE WITHIN THE MEANING OF SECTION 2(b) OF McCARRAN-FERGUSON AND ACCORDINGLY IS PRESERVED BY McCARRAN-FERGUSON. Even if McCarran-Ferguson applies to national banks, Section 2(b) does not save the Florida statute from pre- emption by Section 92. Section 2(b) provides: 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 insur- 7 Because the Florida law flatly prohibits bank participation in insurance sales, this case presents only the issue whether a state may deny a national bank or its employees a license to engage in insurance activities. The Court need not address the extent, if any, to which states may require national banks to conform to insur- ance regulations that otherwise apply to licensed insurance agents. Should such issues arise, the Comptroller has the express authority under Section 92 to deal with them. Indeed, the Comptroller long has encouraged national banks to comply with state insurance licensing laws that neither discriminate against nor stand as an obstacle to national banks. He has issued opinion letters asserting that national banking laws preempt state licensing requirements in only those narrow circumstances. See OCC Letter No. 475 (March 22, 1989), reprinted in [1989-1990 Transfer Binder] Fed. Banking L. Rep. (CCH) { 83,012; OCC Letter No. 623 (May 10, 1993), reprinted in [19938-1994 Transfer winter) Fed. Banking L. Rep. (CCH) { 83,505. 22 ance . . . unless such Act specifically relates to the business of insurance. 15 U.S.C. § 1012(b) (emphasis added). The language, history, and purpose of Section 2(b) compel the conclu- sion that Section 92 cat relates” to the business of insurance.® When read in conjunction with Section 2(b), Section 92 is seen to preempt the conflicting Florida law because Section 92 explicitly authorizes insurance sales by national banks and therefore “specifically relates to the business of insurance.” In ordinary parlance, “specifically relates” means no more than that the law refers in some explicit sense to or has a connection with that subject. “The or- dinary meaning of [‘relating to’] is a broad one—‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with.’” Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992) (quoting Black’s Law Dictionary); see also New York State Con- ference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 115 S. Ct. 1671, 1677 (1995) (“in the normal sense of the phrase,” the term “relates to” means “has a connection with or reference to”) (quoting Shaw v. Delta Air Lines, 463 U.S. 85, 96-97 (1983) (internal quota- tion marks omitted) ). Thus the plain meaning of Section 2(b) is that federal law preempts state insurance regula- § Because Section 92 specifically relates to the business of insur- ance and therefore preempts the Florida antiaffiliation statute, this Court need not determine whether the Florida statute was “en- acted for the purpose of regulating the business of insurance” under the first prong of Section 2(b). Should the Court reach that is- sue, however, the first prong does not shield the Florida statute from preemption. The Florida statute was enacted to regulate the con- duct of banks, not to regulate the business of insurance. See United Service Automobile Ass’n v. Muir, 792 F.2d at 364 (holding that “affiliation between insurers and banks has no integral connection to the relationship between insured and the insurer’); see also Brief of American Bankers Association et al. as Amici Curiae, Point II; Brief of Florida Bankers Association as Amicus Curiae, passim. 23 tion if the federal provision bears an express relation to the business of insurance. Senator Ferguson, the Senate sponsor of McCarran- Ferguson, confirmed this conclusion during floor debate on the legislation. The purpose of the “specifically re- lates to” provision, he explained, was to assure that fed- eral legislation be accorded preemptive force only if it does more than relate generally to interstate commerce: What we have in mind is that the insurance business, being interstate commerce, if we merely enact a law relating to interstate commerce, or if there is a law now on the statute books relating in some way to interstate commerce, it would not apply to insurance. We wanted to be sure that the Congress, in its wisdom, would act specifically with reference to insurance in enacting the law. 91 Cong. Rec. 1487 (1945) (emphasis added). Section 92 speaks directly and unambiguously to the business of insurance, and its relation to that business is not “by mere implication.” Id. (colloquy between Sens. O’Mahoney and Ferguson). Among other things, it states that certain national banks may “act as the agent for any fire, life or other insurance company .. . by soliciting and selling insurance” and precludes national banks from guaranteeing the “payment of any premium on insurance policies.” 12 U.S.C. § 92 (emphasis added). Indeed, the stated purpose of Section 92 is to permit national banks to engage in the sale of insurance. The congressional con- cern underlying McCarran-Ferguson—that federal law not be construed by mere implication to override state insur- ance law—has no application to this case. Further demonstrating that “specifically relates to” carries no more than its obvious meaning (i.e., refers to in a specific manner), Congress provided elsewhere in Section 2(b) that state laws are shielded from preemp- tion only where such laws have the purpose to “regulat[e]” —and not simply relate to—the business of insurance. 15 U.S.C. § 1012(b) (emphasis added); see Morales, 504 24 U.S. at 383-84 (distinguishing between “relating to” and “regulate”). “Regulate” means “[t]o fix, establish, or con- trol; . . . to direct by rule or restriction; to subject to governing principles or laws.” Black’s Law Dictionary 1286 (6th ed. 1990). Congress did not limit the category of preemptive federal statutes to those that regulate the business of insurance, however. The contrasting termi- nology used deliberately by Congress to distinguish be- tween the two prongs of Section 2(b), cannot be dis- missed as easily as the Respondents suggest. The court of appeals contended that Section 92 does not specifically relate to the business of insurance because Congress enacted the provision before this Court’s de- cision in South-Eastern Underwriters, at a time when Congress did not believe that it had power to “regulate” the business of insurance. Pet. App. 15a. Given Con- gress’ choice not to use the term “regulate” to describe the federal laws that preempt state insurance regulation, however, this conclusion is erroneous. See Morales, 504 U.S. at 385-86 (holding that when Congress uses the word “relate” it conveys a different—and far broader— meaning than “regulate” ). Moreover, given that when McCarran-Ferguson was enacted there were no existing federal laws that evidenced an intent to “regulate” the business of insurance, the court of appeals’ novel interpretation of the phrase “relates to” as meaning “regulates” makes no sense. E.g., South- Eastern Underwriters, 322 U.S. at 544 (noting that before 1944 “Congress had at no time attempted to control the insurance business”). Congress had not “regu- lated” insurance prior to 1945, McCarran-Ferguson was intended to retain the preemptive effect not only of fu- ture acts of Congress but of federal statutes then in force. 91 Cong. Rec. 479 (1945) (colloquy between Sens. Mur- dock and Ferguson). “Specifically relates” thus means nothing more than that a law expressly relates to insur- ance. Section 92 passes this test. for the purpose of regulating the business of insurance . . . unless such Act specifically so provides.” 91 Cong. Rec. 488 (1945) (Senate) (emphasis added); id. 1085-94 (House). Had Congress enacted that language, ” state law. H.R. Rep. No. 213, 79th Cong., Ist Sess. 1 (1945) (conference report) (emphasis added). Congress agreed to, and President Roosevelt approved, the conference version. Act of March 9, 1945, ch. 20, 59 Stat. 34. Thus Congress expressly considered and re- jected the very formulation that the court of appeals has imposed in the decision under review. ae 0 See a oe oe eee anes to insurance activities, then, see Morales, 504 U.S. 383-84, it will preempt conflicting state laws that iain insurance. Section 92 fits comfortably within the type of federal law that specifically relates to the business of in- surance and accordingly is preserved by the second prong of McCarran-Ferguson’s Section 2(b). , a era oe Np aN es ek eso Dai. aA 2 bag e Rem aid. & el --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0604%3A19. Public record. Not legal advice.