Should the Supreme Court Hear the Multi-State Lawsuit Against 'Obamacare' Immediately?

This is a rush transcript from "On the Record," February 2, 2011. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Senate Republicans fought hard but were unable to get the votes to repeal the health care law today. But one repeal did pass the Senate today with bipartisan support 81-17. It involves the 1099 provision which forces small businesses to file a tax form every time they make a payment for goods over $600. We spoke to Utah U.S. Senator Orrin Hatch.

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VAN SUSTEREN: Senator, nice to see you, sir.

SEN. ORRIN HATCH, R-UTAH: Nice to see you.

VAN SUSTEREN: You had a vote on health care. What was it you voted on?

HATCH: It was on whether or not to get rid of 1099. The way they do it is adding more taxes. We can't do that. We have so many taxes now people can't afford to pay them. They are spending us blind. If the tax money would go to pay down the deficit people might consider it, but they will just spend more.

VAN SUSTEREN: It was part of the health care Bill and required people to submit 1099's for how much money and service?

HATCH: Hardly any. It was an obnoxious paperwork saddle on small business and all businesses that would require all kinds of paperwork that nobody would look at and cost millions of unnecessary dollars. It's just typical.

But it is a very good thing today because in one sense, the Democrats brought it up. They've been admitting the health care bill needs a lot of work. There are a lot of things they can change, a lot of things that aren't right. Why didn't they do that when they did the health care Bill?

VAN SUSTEREN: Which is where I'm leading you to, the fact that no one bettered to read the statute in those 2,700 pages. Now this mad scramble when I assume you could be attending to other business you are trying to fix something declared unconstitutional in Florida that the might wait to years to decide and all the stays are scrambling to try to figure out what to do. That's where we are.

HATCH: It is very difficult to fix. That's why we had two bills, one to do away with the job killing employer mandate, putting all kinds of burdens on employees. And the other is the unconstitutional individual mandate.

And the Florida judge in Florida found the individual mandate was unconstitutional. I think he got it right. It was a penalty that if you didn't buy something that the government ordered you to buy. That's the first time in the history - and we had five witnesses today in front of the judicial committee admitted this was the first time in history. Three of whom testified they didn't see anything wrong with the invocation of the commerce clause, and two very tough lawyers, one a professor and the other a Supreme Court advocate both said this has never been done before and it shouldn't be done now.

VAN SUSTEREN: I guess the added burden is the fact you are spending time on the 1099 for a statute that was never read. We've now got the problem in the Florida court. There's a decision that could be decided swiftly by the Supreme Court like they did in the gore-Bush when they reached beyond the appellate court.

Would you call for an immediate decision by the United States Supreme Court? Pick this up and decide it.

HATCH: I think the court should expedite it, because it is that important. Either the bill is unconstitutional or it is not. I think it is. I don't see any way the government can abuse the commerce clause to force people to buy something they don't want to buy.

VAN SUSTEREN: You are a lawyer. Is there any excuse for the Supreme Court not to do it? Everyone agrees that the Supreme Court has decided. Is there any reason for the Supreme Court not to do it swiftly?

HATCH: Sometimes the Supreme Court takes the position it would be well to have the ideas and analysis by the circuit court of appeals.

VAN SUSTEREN: Do you buy that in this case?

HATCH: No I don't. Everybody understands this. This is an important issue. It's a very extensive issue. It is going to be life or death for that health care bill. And a lot of people are predicting to go forth with Kennedy making the determination.

I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court. That means the lower court decision will be the acting law.

VAN SUSTEREN: There's one in Michigan that has the reverse side.

HATCH: Michigan would have to live with that and the rest of us would have to live with the other. The fact is it is important that the Supreme Court decide this.

I'm not convinced it has to go five-four. I actually believe there are justices like Breyer and Ginsburg, and of course Kennedy, who will go with the four justices who are considered a little more conservative.

VAN SUSTEREN: The bill signed last march. Either that day or the day after, Florida filed its lawsuit seeking to have it declared unconstitutional. Justice Kagan wasn't sworn in until August. She was at the Justice Department as solicitor general. If she had nothing to do with figuring out how to defend against the health care, did you think she should disqualify herself?

HATCH: That's her decision in any event.

VAN SUSTEREN: What would you think?

HATCH: Well, I personally believe she should recuse herself because I'm sure she participated in discussions at the White House, participated in discussions in the solicitor general's office. These issues were brought up by me throughout the process. So it wasn't something that just suddenly appeared. Again, I think it is going to be up to her what she does.

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