Is Government-Mandated Health Care Constitutional?

Published August 26, 2009

| FoxNews.com

This is a RUSH transcript from "The O'Reilly Factor," August 25, 2009. This copy may not be in its final form and may be updated.

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BILL O'REILLY, HOST: In the "Impact" segment tonight: Many liberal Americans want a government-run health system. They call it a single-payer deal, whereby the government would tell us what the health insurance situation would be, and in some cases force us to acquire premiums. But a big question is emerging: Is that constitutional?

Here now, our "Is It Legal?" team, attorney and FOX News analyst Lis Wiehl, author of the great book, "Face of Betrayal."

LIS WIEHL, FOX NEWS LEGAL ANALYST: It's a good book.

O'REILLY: And attorney and FOX News anchor Megyn Kelly. You just interrupted my lead by Lis. It was…

MEGYN KELLY, CO-HOST, "AMERICA'S NEWSROOM": It's a good book.

O'REILLY: OK. All right, Kelly, this is new, all right? This constitutionality thing. But I think it's a serious play. What do you say?

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KELLY: There are some questions, and they have been totally ignored, interestingly enough.

O'REILLY: They have been?

KELLY: By most of the media.

O'REILLY: Right.

KELLY: And by most constitutional scholars. Everyone just assumes that President Obama and the Democrats can impose this tax on us, this — basically the legislation coming out of both Houses of Congress proposed would say you have to get health insurance, and either have to get it through your employer, if you don't have it through your employer, you have to pay for it. You have to buy it if you don't.

O'REILLY: Yeah, but if you're government-funded…

KELLY: Right.

O'REILLY: But they do this in Massachusetts already.

KELLY: They say if you don't do it, then you'll be fined by the federal government there.

O'REILLY: Right.

KELLY: And there's a real question about whether the Congress has the power to do that to you. They'd be doing it probably under their Commerce Clause power, which is the broadest power that they have. But the courts in the past decade or so have really cracked down a little bit more on Commerce Clause power and just don't give Congress an empty check.

O'REILLY: So are you saying it is not constitutional to force people to buy health care?

KELLY: I'm saying that would require days and weeks of research.

O'REILLY: Days and weeks.

KELLY: So we don't have that.

O'REILLY: And you don't have that, do you, Kelly?

KELLY: And not only do I not have it…

O'REILLY: Yeah.

KELLY: ...but the constitutional scholars don't have it yet.

O'REILLY: What do you say?

WIEHL: Constitutional scholars are all over the place.

O'REILLY: Constitutional?

WIEHL: I say that it is constitutional. I don't like a lot of parts of this health plan but the…

O'REILLY: I don't care what you like or not like.

WIEHL: But Commerce…

O'REILLY: Why is it constitutional? All right, nobody, hold it, Wiehl.

KELLY: Any time somebody drives a truck…

O'REILLY: Wiehl, stop talking. Nobody understands what the Commerce Clause is.

WIEHL: Right.

O'REILLY: Please explain it briefly.

WIEHL: OK. Article I in the constitution, the Congress has the power to regulate interstate commerce. That is anything that goes from one state to the other.

O'REILLY: OK, so what?

WIEHL: So a trucker — They can — and takes your lettuce from one state to the other. They can…

O'REILLY: What does that have to do with health care?

WIEHL: Health care itself may be local. Your doctor may be in your state but the medical supplies that come to you, the medical equipment, all of the things.

O'REILLY: So what? Why can they make you buy anything?

WIEHL: Because they can regulate interstate commerce. Those things go through interstate.

O'REILLY: OK.

WIEHL: They can force you.

O'REILLY: Now I want the audience to know this is total BS. This is why people hate lawyers.

KELLY: This is the Constitution.

O'REILLY: This is nuts. All right, here's the question, Kelly. And I'm going to give one more shot, Wiehl. The government is saying you have to buy health insurance. You have to do it.

KELLY: Right.

O'REILLY: I say that's unconstitutional. The federal government doesn't have the power to force an American to buy anything.

KELLY: That is the distinction between this case and most of the cases that come under the Commerce Clause power. It's more like a taxing power. I mean, the Congress has the power to tax us, too. Let's not fool ourselves.

O'REILLY: OK, but this is it has nothing to do with taxes.

KELLY: Well, no, but…

O'REILLY: It has defining — they're defining, I understand it. But I think on the upfront, Wiehl, the government cannot buy that dress, Wiehl. You have to buy that dress because it's good for you. They can't tell to you buy anything.

WIEHL: Or they can tax you. They can't tell you to buy it, or they can tax you. Megyn's absolutely right one way or the other.

O'REILLY: But they're telling you to buy it, and if you don't, you're punished.

WIEHL: Because and they're also saying you are going to get a benefit, a government benefit.

O'REILLY: I think the Supreme Court would say…

KELLY: You have a decent point because…

O'REILLY: Yeah.

KELLY: …normally they can't tax you unless they had the power to regulate the behavior they want to tax you for in the first place. So we're back to the Commerce Clause and do they have the power…

O'REILLY: I don't want to hear it. Give me a headache. I'm going to go on the record as saying now this is unconstitutional. The federal government cannot force you to do or buy anything, OK.

In Florida, Wiehl, there is a law that if you feel threatened, you can shoot somebody and kill somebody.

WIEHL: Right.

O'REILLY: A guy sitting in a car. Some other guy came in the car, tried to beat him up or something. He had a gun. And when the guy saw the gun, he started run away. The guy shot him dead.

WIEHL: Right.

O'REILLY: This is the guy who shot him, OK. And then they tried to prosecute this guy.

WIEHL: The guy was in jail for two years trying to be...

O'REILLY: Two years?

WIEHL: Waiting, yeah.

O'REILLY: Yeah?

WIEHL: The court got this one right. They let him out. They have in Texas and in many other places sort of castle laws. Your home is your castle.

O'REILLY: Right, right.

WIEHL: Somebody comes into you castle, you can shoot them, no question.

O'REILLY: Even if they're running away.

WIEHL: Even if they're running away. We had that case a couple years ago in Texas, right. In Florida, they've expanded that. It's like — stand by your guard laws. And it happens not just to be in your home, but also in your car.

O'REILLY: So this guy, he was in jail for two years.

KELLY: Yeah, awaiting trial.

O'REILLY: And then a Florida court said no, he had a right to shoot the guy even though the guy was running away. Do you concur?

KELLY: There was a question about whether he was running away first of all.

WIEHL: Exactly.

KELLY: But I agree that a court reached the right ruling because the law as written doesn't say that you lose the right to use deadly force if your aggressor is in retreat.

O'REILLY: OK.

KELLY: Now Floridians don't that. They can rewrite the law.

O'REILLY: Sure.

KELLY: But as it stands now, I think the court got it right.

O'REILLY: So I just want to be clear. So if you're attacked in Florida, Texas, a couple other states and then you show a gun and then the guy goes whoa, I'm getting out of here, you can still plug the guy. Shoot the guy right there?

KELLY: Trying to incentivize criminals not to behave badly in the first place.

O'REILLY: Right, I got — I know what the inhibitor is finally.

OK, finally, Oprah Winfrey, Kelly, and what is it, Memimaz?

KELLY: Dr. Oz.

O'REILLY: OK, Dr. Oz. Is that any relation to the wizard? Because I don' t know. There he is, OK. He looks a little like the wizard, same kind of little grin.

KELLY: He knows a lot.

O'REILLY: Now, some Internet sites said Oprah and Dr. Oz were endorsing diet pills.

KELLY: And this Resveratrol, which is supposed to be some sort of aging cure. Maybe your viewers have seen this. I've seen this all over the Internet. It's got her picture or his picture, and it really makes it sound like they're endorsing some product. And you think oh, wow, Oprah likes it. OK, it must be good. Wrong, wrong, wrong. This company has used Oprah's image and Dr. Oz's image without their approval…

O'REILLY: That's unbelievable.

KELLY: …to market their goods and has created Web sites with their names in the title of the Web site.

O'REILLY: That's unbelievable.

KELLY: Yes. And they're using it to defraud people from their money. And when people order these products, and then they find out that they don't work, they're not giving refunds. They continue to charge the credit card month after month.

O'REILLY: OK, so.

KELLY: And now they're in a lot of trouble.

O'REILLY: This is beyond brass, Wiehl.

KELLY: Yeah.

O'REILLY: I mean, this is — so what can happen here? Shouldn't the authorities go and arrest these people, No. 1? They should arrest them on fraud, right?

WIEHL: Absolutely, because they're violating, what's it called, federal law called cyber squatting, which I never heard of.

O'REILLY: Cyber squatting.

WIEHL: Cyber Squatting. Sounds like something you do in the gym. It sounds naughty. Cyber squatting is a federal law. They're violating that. And here's the kicker. If somebody goes out and actually buys these products on the endorsement of Dr. Oz and Oprah, and then gets sick or worse, you know, from the product, who are they going to sue? They can try to go after the site, obviously, but we've already…

O'REILLY: All right, but Oprah…

WIEHL: They're going to sue Oprah and the doctor.

O'REILLY: Oprah and the doctor have sued the site.

KELLY: They sued, and there is a criminal investigation underway at the state level in Florida. We don't yet whether…

O'REILLY: Well, you have got to get these guys.

KELLY: Yeah.

O'REILLY: In the state of Florida, you've got to get these guys. All right, ladies, thank you. I want you to make one promise.

WIEHL: What?

O'REILLY: I never want to hear the words Commerce Clause again.

KELLY: We don't either.

O'REILLY: "Is It Legal?" everybody.

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