CEI Remembers Justice Antonin Scalia


CEI general counsel Sam Kazman on meeting Justice Scalia a few years ago:

“I met Justice Scalia only once. It was a brief encounter at a reception a few years ago. I introduced myself and mentioned how much I’d enjoyed his footnote in Massachusetts v. EPA, the 2007 decision in which the Supreme Court held, 5-4, that the agency could regulate carbon dioxide under the Clean Air Act. In his dissent Scalia wrote that, by the majority’s logic, “everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’”

“Then I took a CEI “Durbin Dollar” out my wallet. It’s a knock-off of a $5 bill with Lincoln’s face replaced by that of Senator Dick Durbin, whose supposedly pro-consumer Durbin Amendment almost killed off free checking. Scalia got the joke immediately. Handing him the dollar, I mentioned that I’d always dreamed of being photographed bribing a Supreme Court justice. Scalia put his arm around my shoulder, smiled and said ‘I’m all yours.’” 

CEI senior attorney Hans Bader on the passing of Justice Scalia in a letter to The Washington Post:

“I’m saddened by the passing of Supreme Court Justice Antonin Scalia. He applied the law faithfully, as written, rather than twisting it to cater to special-interest groups, and that obviously made him many enemies.

“Mr. Scalia’s sterling record as a judge made me come to regret my youthful opposition to Ronald Reagan, the president who appointed him. Mr. Scalia’s death dims the hope that the Supreme Court will act as an impartial interpreter of the law rather than making the law up to suit ideological fads.”

In a U.S. Supreme Court case decided last June, King v. Burwell, CEI challenged an IRS regulation imposed under the Affordable Care Act that allows subsidies on both state and federally-established health insurance exchanges. In CEI’s opinion, the IRS violated the law enacted by Congress, which gave states the choice to either set up such exchanges themselves or stay out of the program. Although, ultimately the court decided against us, we took solace in Justice Scalia’s scathing dissent in the plaintiffs’ favor:

“This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.”


“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”


“Ordinary connotation does not always prevail, but the more unnatural the proposed interpretation of a law, the more compelling the contextual evidence must be to show that it is correct. Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that “Exchange established by the State” means “Exchange established by the State or the Federal Government”? Little short of an express statutory definition could justify adopting this singular reading.”