OTR Interviews

How Long Until 'Obamacare's' Inevitable Showdown in the Supreme Court?

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: Twenty-six state attorneys general are popping the champagne cork tonight. They won. At least this round they won. Federal judge Roger Vinson tossed out the entire national health care bill.

And one of those AGs is former two-term U.S. senator Mike DeWine. He's also Ohio's new attorney general. Ohio Attorney General Mike DeWine joins us live. Good evening, sir.

MIKE DEWINE, OHIO ATTORNEY GENERAL: Good evening, Greta. Good to be back with you. Thank you.

VAN SUSTEREN: Nice to have you back. What do you think the thoughts are in the United States Senate, where you used to be a United States Senator? What do you think the thoughts are tonight after the judge's ruling?

DEWINE: Well, I think if you're in the White House or you're a Democrat in the United States Senate, you know that, ultimately, this is going to be decided by the United States Supreme Court. But I would think that you would have to be looking at an alternative plan. What happens if, in fact, this is declared unconstitutional? The decision by the judge today is very persuasive.

Now, of course I'm against Obama health care, and I think it's unconstitutional. But I think it's very well written, very, very powerful decision. And I think if you're President Obama or Harry Reid, you got to be thinking, OK, if this is declared unconstitutional, where do we go?

There's clearly a consensus in this country that we need to have a bipartisan health care plan. No one is happy with the way health care is in this country or didn't think that we don't need to make some changes. But the American people have been by an overwhelming margin clearly have serious problems with Obama health care. And I think, you know, ultimately, the Supreme Court very well may accept our argument that this is unconstitutional, that it's a reach, that Congress and the president simply went much, much too far.

VAN SUSTEREN: General, let me ask you -- I mean, the whole idea -- I mean, this can -- we -- this can languish in the U.S. court of appeals for the next two or three years, then languish for another two years to the Supreme Court. That's sort of the usual routine. Or there's a special rule, Rule 11 of the Supreme Court, in which it says that they can -- that you can bypass the courts of appeals, and it will be granted only upon a showing that the case is of such imperative public importance as to justify a deviation from normal appellate practice and require immediate determination in this court.

Do you agree with me, two things. One is that this is of imperative public importance, that this -- that's number one. And number two, do you agree with me that there's no need to do any more -- you don't have to take any evidence. You don't even have to do anything but change the cover sheet on the briefs that have been filed down below to put the Supreme Court, and this can go right to the United States Supreme Court. It can be decided so that we don't spend years languishing, fighting, spending money and making wrong decisions, that this could be done -- this could be done within 30 days if they really cared, if everyone really put his nose to the grindstone on this.

DEWINE: Well, Greta, you might be able to get it done in 30 days. I don't -- I'm not sure the Supreme Court could get it done in 30 days. But I do agree with you, this is very, very important. The faster this is resolved one way or the other...

VAN SUSTEREN: Sixty days.

DEWINE: ... I think we -- OK. I think we're -- this country would be much better off. And you're absolutely right. You know, both parties agree with the facts. There's no dispute about the facts. The law has been -- the arguments have been made. This case, if it could go to the Supreme Court directly from here, I think it would be in the best interests of the country and the people.

VAN SUSTEREN: You know, General, this is an emergency. People are sick. People are hurting. People are confused. People want to have health care. Some have preexisting problems, or you know, whatever it is, is that, you know, I actually -- I actually think it could be done in 30 days. They've got -- each Justice has got two or three or four clerks. It really is not that complicated. The only question is the breadth of the commerce clause. And frankly, we could probably all sit around a table over a cup of coffee and figure that one out. This is not that complicated. And I think if -- you know, if they want to drag it out, if everyone wants to drag it out, you know, we will suffer. You know, the American people will suffer more.

DEWINE: Right. Greta, I agree with you this needs to move forward. As far as I'm concerned, you know, I'd like to see the United States Supreme Court have this case tomorrow. And I think you're right. Although people can disagree, reasonable people can disagree about this case, we know what it comes down to, and that is the breadth of the commerce clause.

My position and I think the position, it would seem, of the judge today was simply that if, in fact, this law is constitutional, it will be a stretching of the commerce clause beyond anything that we have ever seen in this country before. Maybe that's what the Supreme Court will decide. I certainly hope not. I think not. But that is the issue.

VAN SUSTEREN: But at least we'll...

DEWINE: It is a commerce clause...

VAN SUSTEREN: But at least -- and...

DEWINE: ... issue right on it.

VAN SUSTEREN: And so we'll know what it is so that we can then move on and address the next problem. Anyway, I'm going to take the last word on that. Attorney General, thank you, sir.

DEWINE: Thank you, Greta.