This is a rush transcript from "On the Record," Sept. 14, 2010. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: And tonight, we are live in Florida. And hours ago, in the Pensacola, Florida, federal courthouse, the showdown began, 20 states joining together, taking on the feds over the health care law. "On the Record" was in the courtroom, and we have the inside story.
VAN SUSTEREN: Well, we're in Pensacola, outside the federal courthouse, where they just had a hearing on a motion to dismiss brought by the federal government attempting to dismiss the lawsuit brought by the states of the four gentlemen who are here with me. We have the state of Utah, Florida, Alabama and a representative from Louisiana.
So let's start with the home state, Florida. How did you do?
BILL MCCOLLUM, FLORIDA ATTORNEY GENERAL: I think we did well today. I think the judge, particularly on the Florida and state's case with regard to Medicaid and the overpowering nature of it, made comments like, you know, This is a Catch-22 for the states. The states are powerless. The states are stuck with it. Those are the kind of things that tend to lead me to believe that he's listening to our side of that, at least on being sympathetic to it.
I also think we have the better end of the argument on the individual mandate today, and I think just, again, listening to what he said about the way he perceived this, I think he's going to rule in our favor on this motion.
Now, much of this, Greta, today was stage play. It was stage play by the attorneys because we're really arguing the case for further down the road, too, on the motion for summary judgment that's now going to come up December 16th, which, by the way, was a big win today with the end of this hearing. He set a timetable that said, Look, assuming I rule against the Justice Department and for the states in this case, and we have -- we go forward. Then we're going to have a summary judgment series of motions and we're going to hear those on December 16th. That's a very fast track thing. That's good for us.
VAN SUSTEREN: And the lawyers, you always -- lawyers always come out of the courthouse and say what a great day that you had, right?
VAN SUSTEREN: ... never come out and say, Oh, it was a terrible day. So let -- let me go to you now. In terms of today, what made you worried? Because you can't come out of the courthouse totally confident.
MARK SHURTLEFF, UTAH ATTORNEY GENERAL: I'm pretty confident. What I'm confident mostly about was that there was discussion about standing and whether states that passed a law, like Virginia did, that prohibited citizens or states from being required to pay for insurance. And there was some discussion about whether any had done that prior to this lawsuit being filed. I just want to point out that Utah did file it. The judge just said, Well, it only takes one, so maybe it'll be Utah.
But what I thought was most extraordinary in there today, kind of the surprising thing that happened from the government -- as you know, throughout this law, this 2,700 pages, it talks about commerce clause, commerce clause, commerce clause authority. The judge pointed out, Well, that's not what they were saying, and that's what they were saying. They were saying it is not a tax. He said, Even the president of the United States said this is not a tax. And then the government's attorney, the federal government's attorney, turns around says. yes, but it is a tax.
VAN SUSTEREN: Well, explain, though, why it makes a difference whether it's called a tax or a penalty because lawyers get hung up on those words, and that's why there's a lot of time spent on it. I mean, what is the legal difference in this case, calling it a tax or a penalty?
SHURTLEFF: Well, what we're talking, Greta, about here is states' rights, 10th Amendment versus federal government, what their enumerated powers are. The extent of that power -- this is not in their enumerated powers, this ability to tax individuals or to require to you buy individual insurance.
VAN SUSTEREN: That the feds do not have?
SHURTLEFF: They do not have that authority. So they have to look somewhere else, like the commerce clause or the taxing clause. They looked at the commerce clause. They realize now that's not going to fly. This is not interstate commerce. So now they're starting to argue, Well, it's our broader taxing power. So that's what you heard today, as well, It really is our taxing power. I think the judge saw it as being disingenuous. Clearly, that's what they intended. That's what they've said. And they're going to be held to what they intended when they passed the act.
VAN SUSTEREN: Well, I guess the interesting thing about the tax, where we all sort of get caught on our words, is that when the statute was passed, no one wanted to call it a tax because no one wants to be in the position of imposing or raising taxes. So the House didn't call it a tax. The Senate didn't call it a tax. The president didn't call it a tax. And so now the state is -- the government is sort of in an awkward position, saying, It's a tax, so it's within our powers. So politics does play a little role.
TROY KING, ALABAMA ATTORNEY GENERAL: Look, of course it does. But you know, what I saw in court today is never has so much history been so greatly rewritten in such a short amount of time. They're trying to erase what happened. But we're here today to do what should have happened in Congress's House. They should have protected the Constitution. The voices of the American people weren't heard in Congress. The voices of the Founding Fathers were silenced.
SHURTLEFF: We've come here today to listen to those voices. We've come here to say that contrary to what Alcee Hastings said the night before they voted on this, when he was asked, What do you think about the Republicans' efforts to stop this vote, and he said, They won't succeed. And they said, Well, what about the procedural rules? And he said, There are no rules tomorrow. Well, there might not have been rules the day that it passed, but there are rules here today. And the rules are what we are here to vindicate and the rules are found in the Constitution! And I think this is a great day for the states that stood up for the Constitution and the Founding Fathers, and I think it's a great day for the Founding Fathers and the Constitution.
VAN SUSTEREN: Well, another word, though, everyone -- there was a lot of discussion about today -- and I'll throw it to the state of Louisiana -- was the whole idea that the federal government can regulate interstate commerce, something -- an activity that has a substantial impact on interstate commerce. So now the big question is whether it is an activity or not. What was that discussion about?
JOHN SINQUEFIELD, LOUISIANA SPECIAL PROSECUTOR: Well, Greta, first of all, I'd like to say Buddy Caldwell (ph), the attorney general of Louisiana, sends his regards. He's in Austin today. One of our lawyers couldn't have put it better in there today. And he said there's a lot at stake in this courtroom, the future of health care in this nation, unprecedented intrusion on the sovereignty of the state and on the rights of citizens. And the question, can average citizens or citizens below average income be forced and coerced into buying government health programs or penalized or taxed in an illegal manner?
VAN SUSTEREN: But they can if the -- the federal government has the ability to intervene if it's interstate commerce. So the question is, is whether or not this statute is interstate commerce. A broad definition, you lose. A narrow definition of interstate commerce, of what the federal government can do, you win. And the question that the president -- or that the judge, actually, was focusing on is whether or not requiring someone to buy insurance, this mandate, is economic activity or not?
SINQUEFIELD: Greta, in 40 years of Louisiana courtrooms, I tried not to guess at judges until they rule. But right at the end, if you were there, you heard him say that on one count, he's going to deny their motion to dismiss. That means -- or he predicted he would. That means that this suit is going to go forward.
SHURTLEFF: Our lawyers did a great job in there. And on the commerce clause, I think we're going to win. I think we're going to win on the other issues. I think the American people are behind us on these issues, and as one of the attorney generals said, we're there doing what Congress should have done.
VAN SUSTEREN: All right...
MCCOLLUM: Greta, let me just make one comment. This is going to go to the United States Supreme Court. It's probably going to be a 5-to-4 decision. There are going to be four liberal Justices are going to say the commerce clause applies.
VAN SUSTEREN: That's what you're predicting now.
MCCOLLUM: I'm predicting that now, but I'm going to tell you, five of them are going our way. I'm going to predict that right now because this is the greatest intrusion by the federal government and the greatest effort to extend the commerce laws ever in history. Now, that's why they are bailing out, like Attorney General Strickland (ph) said, and trying to go on the tax issue. We went on that, too, by the way. There's nothing in the law that allows them to do this kind of thing, nothing in the Constitution that allows the kind of tax they're proposing.
They're very weak on this. We're going to win.
VAN SUSTEREN: Back home in Alabama, what's the reaction? What -- have you sort of read the tea leaves? (INAUDIBLE)
SHURTLEFF: Well, the folks in Alabama are like folks across the country. They feel disenfranchised. They feel like their rights were trampled. they feel like this was a late night vote-buying deal. And what made it even worse is they weren't buying votes with their own money, they were using our money to buy votes for things we don't want, whether it was Ben Nelson's deal, whether it was the deal over in Louisiana -- in Alabama, I think we long for the good old days when legislation passed and failed in the Congress based on whether it was good or bad public policy, not on -- not whether you can find enough money to buy enough votes to get your way. It was outrageous what has happened.
But there is always a higher authority. And the Congress still answers to its coequal branch of government that's housed in buildings just like this. And what we heard today are the echoes of the Constitution, and I believe they're going to grow more deafening. People in Alabama are cheering this on. They do not want their money used to buy votes to put in place a system they don't want or need and that violates the Constitution.
VAN SUSTEREN: We have repeatedly asked for a representative from the government to go "On the Record" about this story. So far our, requests have been denied. They are welcome, of course, any time.