This is a rush transcript from "On the Record," January 31, 2011. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: President Obama, House Minority Leader Nancy Pelosi and Senate Majority Leader Harry Reid all got bodyslammed today! A federal judge declared not just part but their entire national health care law is unconstitutional. Judge Roger Vinson declared Congress exceeded its authority by forcing Americans to buy health insurance.
Judge Vinson's decision is the second ruling by a federal judge declaring the individual mandate unconstitutional, but the first judge to go one step further and throw the entire health care law out. The Florida lawsuit is also the biggest one out there, brought on by mostly Republican governors and attorneys general from 26 states.
If you don't think this is huge, listen to the states -- Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.
Florida Attorney General Pam Bondi joins us live. Good evening.
PAM BONDI, FLORIDA ATTORNEY GENERAL: Good evening, Greta.
VAN SUSTEREN: That was not just a little bit of a victory, but it looks like you took -- you had a huge victory. Am I wrong?
BONDI: No, we had a huge -- you're we had a huge victory today. We're all excited, all 26 of our states, and of course, Oklahoma and Virginia, who have their independent lawsuits going, as well. So there's 28 of us total, and we are very, very pleased with Judge Vinson's ruling, Greta. It wasn't only a scholarly ruling, it was very complex but it was also very simple. And what it said is that the federal government cannot trample on our rights.
VAN SUSTEREN: All right, as an aside -- we always like -- I always liked rulings that I thought went my way, so I'm going to tease you about that one. So of course, you like the ruling, think it was well written. All right, now, will you oppose, if the federal government is willing, to go directly to the United States Supreme Court and bypass the court of appeals? Because time really is of the essence, and everyone knows this is going to be decided by the Supreme Court.
BONDI: It is. It is. And I have 25 other states to consult with, and we will be doing that tomorrow, having that very discussion. We needed the ruling first, of course, before we could make that decision. But I agree, time is of the essence and that is certainly something we will be closely looking at and reviewing tomorrow.
VAN SUSTEREN: All right, now, this -- declaring the entire statute unconstitutional, which is why it's so big. It's different from just simply the mandate. Those states that are not members of the lawsuit, the ones who aren't part of the 26, this applies to them, as well?
BONDI: Well, that's certainly our argument, that it applies to the entire country. But certainly, it does to the 26 states involved in this lawsuit, as well as the National Federation of Independent Business, who joined in our lawsuit, and they're playing a very, very big part in our lawsuit. And yes, what the court ordered was that it was non-severable and that it was inextricably bound. And so that means if one portion of it fails, the entire part fails. And that was the ruling that we were looking for.
VAN SUSTEREN: Now, there's a lot of machinery as part of this health care law, setting up exchanges. States are beginning to get -- move in that direction, insurance companies, people making individual decisions. Does everything, at least in the state of Florida, does it just stop? I mean, do you make the assumption that this is over?
BONDI: Well, that's certainly going to be our argument. We've been on the phone with the experts in every industry all afternoon. We just got this ruling late this afternoon. But that certainly is our argument. And as you said, time is of the essence because this is affecting our state financially, and it's affecting the entire country.
VAN SUSTEREN: Attorney General Bondi, thank you very much for joining us.
Former Florida attorney general Bill McCollum started this lawsuit. He filed it minutes after President Obama signed the law. That was March 23rd. Former Florida attorney general Bill McCollum joins us live. Good evening, sir.
BILL MCCOLLUM, FORMER FLORIDA ATTORNEY GENERAL: Good to be with you, Greta. My pleasure.
VAN SUSTEREN: I'm curious, let me jump way ahead and play law school hypothetical. You filed this lawsuit in March. At that time, the solicitor general of the United States was Elena Kagan, who's now on the Supreme Court. She was sworn in sometime in August. When this makes its way to the Supreme Court, is -- can she be a Justice on it, or must she recuse? And what would be the argument either way?
MCCOLLUM: Well, I'm not sure what it'll be. Obviously, I think that she has some problems potentially with this, particularly because of the severability issue. You know, the judge today was very careful in his ruling on that question, and he pointed out the history of this. And he made his decision because the individual mandate is so essential, and in part, because of the government's admissions. They admitted that the individual mandate requiring you to buy a health insurance policy or pay a penalty was the core and that the insurance provisions, at the very least, fell by the wayside and could not be sustained without it.
And then he went on to find that the rest of it couldn't stand, either. So I think that Justice Kagan has some issues potentially there. But I think you'd have to examine on the detail to see if she's going to be recused or not before this is heard. But you're right to question that, Greta, because it's going to be a close decision, probably a 5-to-4 decision.
VAN SUSTEREN: Which is sort of interesting because if it's a tie, whoever takes it up first wins. So there's going to be a race to the Supreme Court, whether it's your case or the one in Michigan, which went the other way because if it ends up being an eight-person Supreme Court -- and that's just hypothetical discussion -- we have no idea what's going to happen -- you want to get there first.
All right, you mentioned the severability clause, and I want to -- this is what the judge said today. "The lack of severability in this case is significant because one had been included in the earlier version of the act, but it was removed in the bill that subsequently became law," which is in some way -- it's hard to be sympathetic to the people who are proponents of the bill because writing that clause in the bill is so elementary, and they deliberately took it out. So they really can't cry foul at this point on that issue.
MCCOLLUM: Oh, I think he's absolutely right on it. And I think the judge picked up particularly well on it. I also found it interesting, Greta, that his Swiss watch analogy he brought up a couple times in the argument, the oral argument over the summary judgment motions, wound up in his opinion. He didn't use the term "Swiss watch," but he talked about a finely tuned watch and all these different parts. And how do you separate them, he said?
How do we find a way, you know, in addition to the intent, where he found that Congress pretty well laid out the intent that the severability clause wasn't going to be there. But in addition to that, he said, How can the court separate these different parts? They're all interconnected. You expect me to sit there? That's not our job. That's clear from other severability rulings.
We can't untangle all the insurance provisions and decide which one's which if we were going to separate them. And clearly, he said, the insurance provisions admittedly all have to go. But how do I figure out which ones? And when you look at the end product, it all fits together like a watch. And that's what he made his decision on, that and the history precedent you cited that Congress left this clause out, and it looked like it did it intentionally.
VAN SUSTEREN: And I bet they're kicking themselves tonight about it. But anyway, Attorney General, thank you, sir.
VAN SUSTEREN: Texas Attorney General Greg Abbott joins us live. Attorney General Abbott, nice to see you.
GREG ABBOTT, TEXAS ATTORNEY GENERAL: You too, Greta. Thanks.
VAN SUSTEREN: OK, now what do you do? It's declared unconstitutional. You're one of the players in this. And Texas, I imagine, has started to make some steps forward, and industry in Texas and citizens of Texas. Do you tell them all to just stop, or do you tell them to continue to act as though the statute is still in effect in your state?
ABBOTT: Well, first, I want to congratulate General McCollum for taking the lead on this, getting this thing going, congratulate General Bondi for her taking the baton and continuing to run with it and all the other states that are involved in this.
But Greta, we've been involved this afternoon in advising people in our state legislature, which is now in session, as well as people across the state of Texas that this an incredibly important ruling for them and for their liberty interests and for their business interests. But this is one federal district court ruling. We won't know the finality of this until the Supreme Court rules on it.
I think it is prudent for our legislature to continue making preparations so we can be ready in the event this district court ruling is overturned. But we are hopeful, based upon both this decision today, the decision out of Virginia, and most importantly, the analysis that is contained in those decisions, which makes clear that if these decisions are overturned, the federal courts will have to be breaking new ground, making new law, expanding the commerce clause beyond where it has ever been taken before.
VAN SUSTEREN: General -- General, OK, we all agree the Supreme Court is going to make the ultimate decision whether this judge was right or the one in Michigan or the one in Virginia. The Supreme Court's going to make that decision. But what you just said is that you're going to proceed as though this is still in effect. It's going to have enormous cost to your state and everybody else. Now, that may be the more prudent thing if it turns out to be declared constitutional when it gets to Supreme Court.
But bottom line is this is a very, very simple case. You don't have to spend weeks and months to brief it. You can just change the cover sheet, ship it up to the United States Supreme Court. If both sides agree and the Supreme Court took it, this could be decided in 60 days, if anyone wanted to be smart. Do you agree with me?
ABBOTT: Agree completely but for one thing. You said if both sides agree. We both know that the U.S. Department of Justice will not agree and that as a result...
VAN SUSTEREN: And whoever doesn't agree...
ABBOTT: ... I think it's going to have to go...
VAN SUSTEREN: Whoever doesn't agree is playing games with the American people in the health care because this is going to be decided by the Supreme Court, so get it up there. Everyone should get it up there and let the Court decide it and we'll see who's playing games, whoever's dragging his feet.
ABBOTT: Agree completely. I think the U.S. Department of Justice is playing the delay game if they wait this out through the court of appeals. It's wasting America's time and money in this interest. We need to get it up to the U.S. Supreme Court, which will ultimately decide this case. We need to get there as quickly as possible.
VAN SUSTEREN: Attorney General, thank you, sir.
ABBOTT: Thank you, Greta.