• With: Newt Gingrich

    This is a rush transcript from "On the Record," January 9, 2013. This copy may not be in its final form and may be updated.

    GRETA VAN SUSTEREN, FOX NEWS HOST: Is President Obama acting like the "Bypasser-in-Chief?" The White House is making it crystal clear that President Obama could bypass Congress on everything from the debt ceiling to gun control, for starters Vice President Biden saying today the president may impose gun control with an executive order.

    Former speaker of the House, Newt Gingrich, joins us. Nice to see you, sir.


    VAN SUSTEREN: All right, your thoughts...

    GINGRICH: And I have to say ... you have the most amazing program tonight that I can remember!

    VAN SUSTEREN: It's quite vast and quite varied, I'd say.

    GINGRICH: Remarkable.

    VAN SUSTEREN: You don't want to miss any of it. And nobody wants to miss you, either. So tell me, the president -- the vice president says that the president may use an executive order for -- to impose gun control. Your thoughts.

    GINGRICH: Well, the president can try to do almost anything, if he wants to. The question is, will he get away with it? And the two natural stands are, first, somebody will file a lawsuit saying that it's illegal and unconstitutional.

    But second, the House Republicans have an opportunity, when the continuing resolution comes up at the end of March, to simply zero out the authority, to say, No money shall be spent. Now, that's so clear under our Constitution. It goes all the way back to the Magna Carta, a copy of which sits in the Capitol dome.

    I think that it would be a very interesting fight. I mean, the president, clearly, coming off this election, is going to push everything he can to the edge. He has no interest in negotiating. He wants to push the country as far as he can.

    Sooner or later, the House Republicans have to decide that they're going to cheerfully draw lines in the sand, and the Constitution gives them the power. The greatest power the Congress has is the power of the purse, and all they have to say is, You have no money to do this.

    VAN SUSTEREN: All right, we have three co-equal branches of government. That's a given. I'm curious. When can a president use an executive order and when can't he? Is there a line of demarcation?

    GINGRICH: Well, an executive order comes from the idea of "to execute the law."

    VAN SUSTEREN: So he's...


    GINGRICH: So as long as it's -- basically, the Congress passes a law. The president wants to execute that law, so he issues an order saying, We're going to do the following things. But what he can't do is write a new law.

    VAN SUSTEREN: So let's take -- let's take first the example of gun control. If he issues an executive order, where he has an idea in his mind about what gun control should be, can he issue an executive order? Is that executing an order, or is that just making up his own?

    GINGRICH: Making up his own.

    VAN SUSTEREN: OK. So that's where the line is drawn.

    GINGRICH: And at that point, the correct answer by the Congress is to cut off the money and to say, No money shall be spent to do this.

    VAN SUSTEREN: All right. Well, I don't know how he's going to -- I don't even know if money comes into play with gun control, if he's going to...

    GINGRICH: Sure, they can cut off ATF, I mean, whatever -- in other words, a president sitting in the White House can't execute anything. He's going to order somebody to do something. And if the Congress does it and says to those people, whether it's Alcohol, Tobacco and Firearms or the FBI or the border patrol, says, No money can be spent to implement this, period...

    VAN SUSTEREN: All right. All right, well, who -- but then -- I mean, now he's engaged in a really ugly battle...

    GINGRICH: Yes.

    VAN SUSTEREN: ... a very ugly battle.

    GINGRICH: Right.

    VAN SUSTEREN: And he's going to say that the Republicans are against law enforcement, they don't want the streets -- they don't want the borders protected because they've just cut off the funding for the border.

    GINGRICH: On the 100th anniversary of the birth of Richard Nixon -- Nixon, who did several things that got him in deep trouble, would never have dreamed of the level of power grab that Obama, at least according to Biden and according to others, is trying to do.

    The same thing with the National Labor Relations Board, which has now decided, based on an obscure 1935 rule, that they will be involved in non- union companies because they've decided to reinterpret what that law means.

    VAN SUSTEREN: Well, a power grab in my mind is when you do something you simply don't have the lawful authority to do.

    GINGRICH: He doesn't. The president doesn't.

    VAN SUSTEREN: OK. And so that if there's no law that he would be executing by virtue of an executive order with gun control, instead, he's got to look to Congress to doing it, that would be an unlawful exercise. That would be a power grab.

    GINGRICH: Right. And the two ways you deal with it are you either take him to court or the Congress cuts off the money.

    VAN SUSTEREN: Does Congress have the sort of wherewithal -- I mean, do they have the drive to do that?

    GINGRICH: We don't know yet. I mean, I would think the number one task the House Republicans are faced with as they go off to their planning retreats this week and next week is simple. The real power of the Congress is to not spend money. Are they prepared, starting with the continuing resolution and with the sequester -- are they prepared to say to the president, We're not going to spend the money?

    VAN SUSTEREN: Now, but looking at the horizon, at this Congress and this speaker of the House, and -- do you see them united enough to do something like that?

    GINGRICH: Oh, I think if they talk it through, they could be that united. I think that, in fact, they're much more unified than people believe and that this would actually be a fairly easy fight because it goes to the heart of the Republican coalition, which is a smaller government, less spending, more balanced budget coalition.