Emasculation of the McCarran-Ferguson Act: A Study in Judicial Activism

In 1945 Congress enacted the McCarran-Ferguson Act (or the "Act"), declaring in its first section that regulation and taxation of insurance by the states is in the public interest. The Act preserved those areas, subject to some express limitations, as chiefly the responsibility and privilege of the states. The Act is a "constitutional" document in the general sense that its primary concern is with fundamental questions of allocation of power in a federal system, not with specific rules of either substance or procedure. That nature of the statute has been widely recognized, even to the point that, in rhetorical flourishes more than in serious scholarship, it has occasionally been intimated that it would be improper for even Congress to repeal or amend the Act, at least through normal processes of legislation.

It need not be labored that there is no such limitation on congressional power. Nevertheless, the widespread perception that McCarran has some degree of trans-statutory sanctity has helped preserve the Act intact for four decades.