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Health Care Civil Wars

This is a rush transcript from "On the Record," March 31, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Tonight: It's beginning to feel like the "Thrilla in Manila," huge political fights erupting across the nation between governors and their attorneys general -- Michigan, Wisconsin, Nevada, Pennsylvania, Georgia, and that's only a few. Just how bad is it? Well, we'll give you a sample tonight.

We start in Nevada. Nevada governor Jim Gibbons joins us live. Good evening, Governor.

GOV. JIM GIBBONS, R - NEV.: Greta, good evening. And nice to be on your show.

VAN SUSTEREN: Nice to have you, sir. All right, I understand, sir, you want the state of Nevada to be part of this lawsuit that's been filed in Florida challenging the constitutionality of the mandate in the health care bill, is that so?

GIBBONS: Yes, that is correct. And any time you have an infraction of the constitutional rights, especially those of us in Nevada, I've taken an oath to protect the people of Nevada, and I will do so.

VAN SUSTEREN: Aren't you boss? Because the attorney general of your state says, you know, No dice, not going to file. Aren't you the boss of your state or not under the law?

GIBBONS: Under the law, I am. I asked the attorney general to participate in bringing a lawsuit against the federal government. She has said that she doesn't think that the state should be in there. I'm disappointed that she doesn't want to, as I do, protect the rights and the constitutional privileges of the people of Nevada.

VAN SUSTEREN: Under Nevada law, who makes the call on this, the governor or the attorney general?

GIBBONS: Well, it is unclear right now who makes that decision. I know that the law states that the attorney general shall bring a case when asked by the governor. She has written back that she thinks it would be a weak case and does not decide -- has not decided that she wants to participate. As a result, I am forced to look for alternative ways that will not cost the state legal fees in bringing about a suit to quell the abridgement of the rights under the Constitution.

VAN SUSTEREN: All right, let's assume that you're right that it's unconstitutional, and let's assume that she does not file it, but that the courts down in Florida say it's unconstitutional, winds its way all the way up to the Supreme Court, it's declared unconstitutional. You would get the benefit of the ruling in the state of Nevada, and it wouldn't cost you a dime in time or in labor. What's wrong with that?

GIBBONS: And that's -- and Greta, that's an argument that our attorney general has made. However, it is not the choice to stand by and hope that a lawsuit by some other state is going to protect the citizens of Nevada. My obligation under the oath I took, I am required to protect the people of the state of Nevada. I see this lawsuit or this piece of legislation as an abridgement to the rights of Nevadans. I'm obligated to protect those rights, whether it is an incremental encroachment or a vast step backwards in the freedoms of the people of this country. I have to bring that lawsuit. I am obligated to do it. I will do.

VAN SUSTEREN: Is there some mechanism -- I know that in the tobacco litigation, for instance, that private lawyers were brought on to be sort of acting attorney generals to represent the state to pursuit the tobacco companies in the name of the state, sort of private attorney generals. Is there any sort of provision or ability or legislative authority for to you sort of bypass your attorney general and do that?

GIBBONS: Well, there is no legislative provision that discusses it one way or the other. The legislature is silent on that matter. Therefore, we are looking at whether or not we can hire legal counsel on a pro bono or a free basis, not costing the taxpayer one penny, to do this action. And that's where we're looking now. We'll have that decision by the end of the week. We should be able to proceed knowing one way or the other whether we're going to have free legal counsel on this matter or not.

VAN SUSTEREN: Have any lawyers volunteered?

GIBBONS: We've been bombarded, Greta, by a number of law firms and individuals, lawyers wanting to participate, wanting to carry the water, so to speak, on this litigation, most saying they will do it for nothing. And I think the notoriety of being the legal counsel to the state of Nevada is of benefit to them. A lot of these companies and firms are constitutional law firms, and they themselves feel that there is a strong likelihood that the state will prevail on this matter. If they're willing to do it and willing to take it on for nothing, so be it.

VAN SUSTEREN: Do you have sort of a chilly relationship with her? She's a Democrat. You're a Republican. You know, what's the dynamics between the two of you?

GIBBONS: You know, I have the utmost respect for the attorney general in the state of Nevada. She may be a Democrat. I'm a Republican. We see this case vastly differently. I think there is a strong challenge to the rights and constitutional freedoms of the people of Nevada. She does not. We disagree. I'm prepared to move forward despite that agreement -- disagreement.

VAN SUSTEREN: Governor, thank you very much. And by the way, we're going to be out visiting your state very soon. So we'll look forward to that, as well. Thank you, Governor.

GIBBONS: Thank you, Greta.

VAN SUSTEREN: All right, now, across the country, from Nevada to the state of Pennsylvania, where there is another fight brewing tonight. Guess who is in hot water with Pennsylvania governor Ed Rendell? Well, of course, it's Pennsylvania attorney general Tom Corbett. Governor Rendell is mad that his attorney general bucked him and joined other states' attorneys general in suing the federal government. Now Pennsylvania governor Ed Rendell wants the attorney general to drop the suit. Will Attorney General Corbett drop the suit or go full speed ahead?

Right now, Attorney General Tom Corbett joins us live. Good evening, sir. And your governor wants to you jump out of this lawsuit. Are you going to?

TOM CORBETT, PENNSYLVANIA ATTORNEY GENERAL: Well, Greta, thank you for having us on. And no, today we sent a letter back to the governor respectfully declining his request. He understands that in Pennsylvania, as the elected attorney general, I am an independent officer. I have a duty under the Commonwealth Attorneys Act. I have a duty under the Constitution of the United States and the constitution of Pennsylvania to protect the rights of Pennsylvanians, and I filed this lawsuit. As compared to maybe some other states, in Pennsylvania, I'm independent at this point in time and have the right to bring this suit on behalf of the people of Pennsylvania.

VAN SUSTEREN: So no matter how many times the governor of that state calls you or writes you, it's totally up to you. And is there any chance that you'll bend a little bit and think, you know, Well, maybe -- maybe I'll let the other ones go ahead with it, the other states, because I'll get the benefit of it even if it rules in your favor?

CORBETT: Greta, no. The governor and I do get along. Obviously, we disagree on this point. And as you can see, across this country, there are a lot of people that disagree on this point. That's the beauty of our Constitution, that although we have a disagreement, we have a court system, and the court system is going to make the determination as to whether this legislation passed by Congress is constitutional or not. We respect each other in that regard. And I respect the governor for what he does. And I know he respects me and my decisions.

VAN SUSTEREN: What about -- and maybe this is a little bit cheap, but why not just let the other states' attorneys general go forward? Because if, indeed, this is declared unconstitutional, this mandate provision in the health care provision, is that even if you don't spend a dime or don't spend a minute, you could sit back and reap all the benefits of it.

CORBETT: Well, Greta, if you recall, back in December, we sent a letter to the leadership in the Senate and the House in Washington, telling them that we were prepared to file suit on the Cornhusker compromise. That did not come about. We shifted because of the requirement that individuals have to purchase insurance. I think I would be not living up to my oath to defend the people of Pennsylvania and just rely upon everybody else to defend it. I want to have a voice in this. We do. We have consultations with the staff and with Attorney General McCollum on a regular basis. So we are involved in this litigation.

VAN SUSTEREN: I suppose, too -- and I guess it -- I should admit that it's probably not going to take a tremendous amount of work out your office. Somebody's going to write a brief on this particular issue representing the states, attorney generals who are filing. Someone's going to oppose it, the federal government, and then it will be decided. So it's not like it's hugely expensive. Is that -- I mean, that's my analysis of it. It's not going to be, like, lots of witnesses.

CORBETT: Well, Greta, that's exactly right. I don't think there'll be very many witnesses on this at all. I think this is going to be a lot in the pleading...

VAN SUSTEREN: I don't think there'll be any.

CORBETT: That's exactly right. There be a lot -- it'll be on the pleadings. But we will work closely. As you know, attorneys general work together on many lawsuits. You mentioned earlier in the show the tobacco lawsuit, with hiring outside lawyers. But it's not uncommon for multi- state investigations to be conducted where our lawyers work together. We'll be working with the Florida attorney general's office on this one.

VAN SUSTEREN: All right. And am I right that what you object to in this legislation is the mandate, ordering people to have to buy health insurance? That's what you find unconstitutional?

CORBETT: I definitely find that unconstitutional. I don't think that Congress can cause a person to make a purchase. As you know, what's in play here...

VAN SUSTEREN: Unless...

CORBETT: ... is the commerce clause...

VAN SUSTEREN: Yes, I was going to say, unless the commerce clause, and it's really going to boil down to how the clause is interpreted. If it's interpreted very broadly, you lose. If it's interpreted very narrowly, you win.

CORBETT: That's exactly right. And that's a battle that needs to go to the courts, needs to go to the Supreme Court. Can Congress require somebody to commit an act? And in many cases, they look at the marketability of a product or something like that. But in a case like this, there's a free choice issue. And the people do not want to make a purchase. And as a result, if they don't make the purchase, there is a fine. There is a penalty that's going to be imposed for not exercising the opportunity to purchase. I think that's a bridge too far.

I think that we all know that we need health care reform. We're not against that. We're not talking about that. What we're talking about is the Constitution of the United States. And really, it boils down to, do the ends justify the means? And in this case, abridging the Constitution to me is not a justifiable means.

VAN SUSTEREN: Attorney General, thank you. And of course, we have invited the governor on, and maybe some day -- and maybe he'll come next week and join us to tell us the other side, but he has an invitation. Thank you, sir.

CORBETT: Thank you for having us.

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