This is a rush transcript from "On the Record," April 6, 2010. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Tonight: Two more states, two more health care lawsuits. But this time, a twist. We're live at Caesar's Palace in Las Vegas, Nevada, so let's start with the governor of Nevada. Moments ago, Governor Jim Gibbons and special legal counsel Mark Hutchison went "On the Record."
VAN SUSTEREN: Governor, Mark, nice to see both of you.
MARK HUTCHISON, NEVADA ATTORNEY: Thank you.
GOV. JIM GIBBONS, R - NEV.: Greta, thanks for having us on your show.
VAN SUSTEREN: All right, Governor, this is an executive order signed by?
GIBBONS: The governor of Nevada, myself. And today, Nevada joined 14 other states in their litigation against the federal government on the nationalized health care plan.
VAN SUSTEREN: All right, now, Mark is not your state's attorney general.
GIBBONS: No, he's not. Actually, he's special counsel. The attorney general refused to bring a lawsuit, as required under the law. We felt the law allows us to hire special counsel. Mark has volunteered his firm to come into the state and kind of take over and marshal all of the resources, marshal the people, marshal the case on behalf of Nevada.
VAN SUSTEREN: All right, Mark, you're not charging a dime?
HUTCHISON: Not charging a dime.
VAN SUSTEREN: Why are you doing this?
HUTCHISON: Well, it's -- as a lawyer, you can appreciate this is the big issue of the day. You go to law school to do big issues and big cases, and there's nothing bigger right now than this. And the bottom line is we believe that this law is unconstitutional, and I'm glad to be part of the effort to try to challenge this law.
VAN SUSTEREN: Governor, have you heard from the attorney general since you did this?
GIBBONS: We have not. But we've been in touch with Florida throughout the whole process. They, you know, have explained to us what their case is about and why they feel that Nevada could join. And so we have been working throughout the time in coordination with those other states to bring Nevada up to speed and into this litigation.
VAN SUSTEREN: All right, but I mean, by talking to your attorney general, the Nevada state attorney general -- she declined to do this. So she must not be -- she's not going to be too happy with this one.
GIBBONS: Well, we have not heard whether or not she's going to take any action in her belief that the law doesn't allow us. We think the law actually enables us to do this. And so I'm sure that she's right now looking over the law and seeing whether or not she has an opportunity to intercede and either join us or stop us at some point.
VAN SUSTEREN: If you hadn't joined and the statute were declared unconstitutional, you would have enjoyed the fruits of it. By joining it, is it really sort of a statement of solidarity with the other states? Is that why you're joining it?
GIBBONS: It's for two reasons, Greta. The number one reason is I took an oath of office to protect the people of the state of Nevada and their Constitution, to defend the Constitution. So my obligation comes from my oath of office about the Constitution and the people of Nevada.
Secondly, I think it is a statement about our belief, fundamental belief that the Constitution does not permit the intrusion the federal government is undertaking with this law. So we have, you know, just a foundational belief that the bill is wrong. The approach is wrong. The trespass on the rights of the citizen is wrong. And yet we have that obligation then, despite these other states, despite their effort, to protect our citizens, as well.
VAN SUSTEREN: Will the headlines tomorrow be, Governor goes rogue?
VAN SUSTEREN: No? I mean, because you're not using your attorney general and you got outside counsel?
GIBBONS: Well, you know something? I think every one of us, including those in the media, appreciates defending the Constitution. I think if it were a 1st Amendment right challenge, every media, every outlet would be on board in supporting this. There's no difference in this one.
I mean, under Article 1 of the Constitution, if the government is allowed to proceed with telling you what you must buy, when you do nothing in regard to that, all of our Article 1, Section 7 limitations of federal power are for naught. They're out the window. There's no reason to stop the federal government from deciding on what you eat that day.
VAN SUSTEREN: Have you talked to any other governors?
GIBBONS: Well, I've been on the phone with my friends in Idaho and looking forward to their effort in this, as well -- Utah -- mostly the surrounding governors.
VAN SUSTEREN: Have you had a chance yet to talk to any of the state attorneys generals who are on board?
HUTCHISON: Not yet, Greta. We're scheduled for a conference call tomorrow. And then the judge has scheduled a scheduling conference next week.
VAN SUSTEREN: So there's no filing schedule so far. The judge hasn't said, OK, we want to hear first from the plaintiffs in this case. Of course, that would be your position.
VAN SUSTEREN: So you know, there's no filing schedule yet.
HUTCHISON: Right. Not yet. We'll meet with the judge next week.
VAN SUSTEREN: And do I understand it right, Mark, that this really, whether you win or lose, will depend largely on the commerce clause and whether or not the feds can do this to the states, can order the states, and if the court sort of has a broad definition of commerce clause, you lose. If it's narrow, you win.
HUTCHISON: Right. Yes. The commerce clause is the basis that Congress passed this legislation, particularly the individual mandate, which for the first time in United States history requires U.S. citizens to purchase a service or good in order to maintain their good standing with the United States government. Otherwise, they're going to get chased down by one of these 16,000 IRS agents, and that's unprecedented. And the justification is the commerce clause. So the court will decide whether or not the commerce clause can be stretched that far.
VAN SUSTEREN: All right, Governor, I know that you can't take sides because you are the Republican governor, but there's a hot race June 8th here in this state, with 12 people vying for the Republican nomination to the Senate. What do you make of this hot race?
GIBBONS: Well, I think you see the -- actually, the firestorm of politics in Nevada, no different than the firestorm of politics that's brewing across the nation. I think there's going to be tremendous changes in the United States Senate, House of Representatives. A lot of the House seats across this country are going to change hands. And even in Nevada, we're going to see different make-up of our own bicameral legislative house, as well.
VAN SUSTEREN: Well, thank you both for talking to us. And of course, we're going to follow this lawsuit very carefully and very closely because it's fascinating.
GIBBONS: Greta, thank you.
HUTCHISON: Thank you, Greta.
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