This is a rush transcript from "On the Record," April 23, 2010. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: First stop, the great state of Wisconsin. State Attorney General J.B. Van Hollen wants to sue the feds but he needs approval from the Wisconsin state assembly or the Wisconsin state Senate or the Wisconsin governor. So far, well, the Wisconsin Senate, House, and governor all say no.
So, now what? Wisconsin Attorney General J.B. Van Hollen joins us live. Good evening, sir. So a "no" from the assembly, Senate and the governor?
J.B. VAN HOLLEN, WISCONSIN ATTORNEY GENERAL: It is. We're 0-3, Greta, but the good news is we're not out of time. As I mentioned on your show before, the part of the law that is the most egregious doesn't go into effect until 2014. And in Wisconsin, we're going to have a new governor in a few months.
So I think there is still a great possibility. But we're going to be on hold until the first of the year now here in Wisconsin.
VAN SUSTEREN: You have Democratic governor right now and the Republican governors have been more anxious to go after the health care bill. Tell me what is the race like for governor if you think you might have a new governor by November?
VAN HOLLEN: The incumbent isn't running so he won't be there. There are two Republicans and a Democrat right now, running and the polls are close.
I think with the political climate not just in Wisconsin but nationally the prognosis for one of the Republicans getting elected is high. Both of them made it very, very clear they would give me the approval to file the lawsuit, and so hopefully one of them will get elected and we'll be able to proceed after the first of the year.
VAN SUSTEREN: Is there any ability for you, and I'm going to be rather flip, to go rogue? Could you go and represent yourself? Not as the attorney general, but any other vehicle you could get Wisconsin into this litigation?
Not that it matters tremendously, because no matter what happens with the litigation, it affects you whether you're in it or not.
VAN HOLLEN: There really isn't, Greta. There are ways for individual citizens impacted by the legislation to be able to file a lawsuit. But for me to do so individually I wouldn't have standing. I could only do as attorney general.
And certainly, if I didn't do it as attorney general I wouldn't represent the state or the citizens of the state. So me individually suing would be no different than anyone, and it really wouldn't make much sense. And I think ultimately we have a good chance of being able to get in the lawsuit down the road anyway.
VAN SUSTEREN: Do you agree that even if you don't get the lawsuit, should attorneys general prevail, since it's -- that would in a sense invalidate the statue and it would inure it to your position?
VAN HOLLEN: Absolutely. All we have to do is win one case and one federal district. Whether it's one of the attorney general based lawsuit or an individual who is bringing a lawsuit in the nation.
As soon as a federal district court finds that this law is unconstitutional, they will have an opportunity to enjoin the federal government from enacting whatever portion of the federal law they found unconstitutional, whether it's a small part or half of it or the entire thing.
And when that is done it will impact all of us. Once the law is enjoined from being implemented it will be enjoyed for the sake of the whole nation. So we definitely have great representation with others out this, but we want to be involved in this for important reasons as well.
VAN SUSTEREN: Attorney general, thank you, sir.
Now to the home of the NFL's number one draft choice, the state of Oklahoma. The Oklahoma attorney general is not suing the federal government, but that is not stopping the speaker of Oklahoma state house. Oklahoma State House Speaker Chris Benge joins us live. Good evening, sir.
So you want to go full speed ahead, I understand, and join the lawsuit.
CHRIS BENGE, OKLAHOMA STATE HOUSE SPEAKER: Good evening, Greta. Yes, we are. We feel like the debate that went on in Washington, basically the Congress ignored the vast majority of Americans. And so we're going to take up the cause ourselves and try to add to the momentum and try to bring this thing to a critical mass so we can challenge the constitutionality of the federal law.
VAN SUSTEREN: So your attorney general doesn't want in. But you want in. So are you going out and looking for the lawyer?
BENGE: Well, that is correct. Our attorney general made it very plain he was, he was really not interested himself in filing suit. He did state he would if we forced him to do, so but we felt with that attitude his effort would be lackluster at best.
So we have chosen to try to go it ourselves. And we will be looking for possibly attorneys out there that they may want to assist or use their own resources.
VAN SUSTEREN: And as a practical matter, every Oklahoma lawyer who hears this for or against the suit will probably knock on the door after watching tonight and offer to do it at no charge, because this is a fascinating intellectual issue for a lawyer. And I bet you get 100 lawyers volunteering to do it at no charge.
BENGE: I would expect we'll have a lot of interest in this.
VAN SUSTEREN: What is your governor's view on this?
BENGE: I had not had a discussion with the governor about it, so I'm not sure what his position is at this point, but we will find out, because we do have a piece of legislation moving through the process that would call for opt out of the new federal healthcare law.
And then also it has a piece in there that would allow the legislature to pursue it on its own. The government will have a chance to -- go ahead. I'm sorry.
VAN SUSTEREN: Remind, is the governor Democrat or Republican in your state?
BENGE: Our governor is Democrat governor.
VAN SUSTEREN: That's why you're not speaking to him much, I guess, as I look at politics goes in this country.
BENGE: Actually, Greta, to be honest, we have a good relationship with our governor. But I don't know how he stands on this particular issue.
VAN SUSTEREN: Speaker, thank you, sir. We'll be watching.
BENGE: Thank you.
VAN SUSTEREN: Now to Florida, where Floridians are about to vote directly on health care. Not through their politicians in Washington.
The Florida State Senate and State House passed a resolution the citizens vote on in November. It's a proposed state constitutional amendment that would ban the government from forcing people to buy health insurance. Florida State Senator Kerry Baker sponsored that resolution and joins us live. Good evening.
CAREY BAKER, FLORIDA STATE SENATOR: Good evening, Greta.
VAN SUSTEREN: Well now, this is an interesting new twist that you put on the November ballot. Do -- I mean even if it is actually voted in favor, do you expect it to have any sort of teeth? Or is this mostly ceremonial and to make a point?
BAKER: No, no. This is real, Greta. This is about challenging the unconstitutional healthcare act. And I think what is more important is, as the fourth largest state, we are a voice to be heard. And this was passed in the Florida house, in the Florida Senate. Of course, you know our attorney general is bringing suit.
So there is a tremendous ground swell of Floridians that are demanding health freedom. And this constitution amendment will give them a chance to speak their voice in November. And it cannot be ignored.
VAN SUSTEREN: You know, it's going to be interesting, because your attorney general is spearheading this, filed a federal district court in Florida. And it should probably be resolved in the trial court level probably by October, that portion of it.
What you have to do is whether or not the interstate commerce clause covers this or doesn't, gives authority or doesn't to do this health care regulation. And then it will go up to the court of appeals and make its way up eventually to the Supreme Court.
Meanwhile, how does your amendment change that? How is it different?
BAKER: It's different only in the sense it makes a huge statement about where Floridians feel on this issue, as well as it will be a November issue.
We'll pass it in November and placed in our constitution. It can't be rescinded by the legislature. It's there forever to protect Floridians not only against the unconstitutional acts by the federal government but also protects Floridians from the state government that oversteps its bounds.
And Greta, my partner in this, Representative Scott Plakon and I have been working on this issue since last June. There is overwhelming support and we think we are on tremendous sound constitutional grounds. I think this will be a game-changer.
VAN SUSTEREN: Could you have define it by statute and moved it a little faster?
BAKER: Well, actually, we're working on that as well. To support the Attorney General Bill McCollum, I am working this now, trying to add a statutory piece to give us immediate standing in court, and then we'll follow that up with our constitutional amendment in November.
VAN SUSTEREN: Does your statute mirror the statute that is in existence in state of Virginia? The state of Virginia has gone its own way and they have their own statute saying that Virginia can't compel it. Is your statute in Florida going to look like the Virginia statute?
BAKER: It will. It will -- not identical, but the general theme that Floridians have the right to not participate in some government mandated program, that they have the right to decide for themselves what healthcare plan is best for them and their families. So the intent is identical.
VAN SUSTEREN: State senator, thank you, sir. We'll be watching this as well. Thank you, sir.
BAKER: Thank you.
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