OTR Interviews

Virginia Attorney General: Obama Administration Has Talked Cooperatively and Acted Uncooperatively on Legal Challenge to Health Care Reform Law

This is a rush transcript from "On the Record," April 25, 2011. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Why won't the Supreme Court decide it now? Virginia asked the Supreme Court to fast-track their decision on the constitutionality of the national health care law. The Supreme Court refuses. The high court may consider the constitutionality of the health care law later after it goes through the lower appellate courts.

Of course that means more time, more taxpayer money, and more uncertainty in the short run for Americans. This news comes before the justices prepare to takeoff for their yearly three month summer vacation. Earlier today, Virginia Attorney General Ken Cuccinelli went "On the Record."

(BEGIN VIDEOTAPE)

VAN SUSTEREN: Nice to see you, sir.

KEN CUCCINELLI, VIRGINIA ATTORNEY GENERAL: Good evening.

VAN SUSTEREN: The Supreme Court didn't exactly go your way. You asked for expedited relief to have them consider the constitutionality or lack thereof of the national health care law. And under rule 11 is says they may do it if the case is of such imperative public importance as to justify deviation from normal procedure and require immediate determination. What didn't you convince them of?

CUCCINELLI: The timing with which we brought this was tough to begin with and is probably the best explanation. Wednesday, two days from now, is, as I recollect, the last scheduled oral argument for this term.

VAN SUSTEREN: When I hear that I think to myself, well, do the American people know this may be the next to the last day but the Supreme Court takes the entire summer off. All nine justices have health care so they are not particularly worried. And they have a lifetime appointment. So I'm not too sympathetic to the fact that they have the whole summer off and you are two days away from a scheduling deadline.

CUCCINELLI: You mean you're not sympathetic to the court, not the decision.

VAN SUSTEREN: No.

CUCCINELLI: They have discretion and they haven't taken one of these in a long time like this. But the calendar didn't work to our advantage. We really can't read a lot more into that. Two of the justices have publicly said, have made comments that indicate they intend -- expect I should say, expect the court to take this case. We all know that's where it is going to end up.

So the result is, we end up arguing in front of a three-judge panel may 10th. We've already briefed the case in the appellate court. Whoever loses we will end up in the Supreme Court in their next term. But what it does is it pushes a decision back to June, 2012, probably in the case. In that year -- we are going see billions spent under this law that may or may not be in place come next June.

VAN SUSTEREN: That is absolutely appalling. It is not even just the money that the states are spending trying to decide whether they should implement something or not, but people in this country worry about their health care. They want to know what they should do, and they don't have the certainty.

I don't know what the Supreme Court is going to do but to take the summer off and say let's push it off for a year because they have no worries themselves because they are all taken care of to me is just appalling for a public servant.

CUCCINELLI: Well, obviously we wish this had gone another direction. Frankly, I would rather lose on a motion to expedite than on the case as a whole. We have to turn and focus on winning the case, not just the 4th circuit the level that is going to decide this forever is the Supreme Court, or at least until somebody makes changes in federal law.

I would have much rather seen this done quickly. Virginia expects to spend 20, 30 million dollars just getting ready, just administrative costs. That doesn't get a single person one more Band-Aid of health care. As you said, people are concerned about their health care and we need this resolved as soon as possible for us to get to real health care reform, hopefully market-based free market reforms.

VAN SUSTEREN: What I also don't get is that all this was a request to decide this now, rather than later so there's certainty, whatever direction it goes.

But President Obama has been quoted as saying in December of 2009 this will be the most important piece of social legislation since the Social Security act passed in the 1930s and the most important reform of our health care system since Medicare passed in the 1960s. He said we can't and for the politics of delay and defeat when it comes to health care.

Yet his justice department opposed you in trying to get the Supreme Court to give up their three month vacation, just to consider something that is so immensely important to Americans.

CUCCINELLI: Every step of the way they talked cooperatively and acted uncooperatively. When it came decision time they opposed efforts to move this case along quickly, even in their briefs, saying this is terribly important and so on, much as you've quoted. They said similar things in their briefs and yet came out opposing speeding the case along. There's really no sense to it on the administration's part.

VAN SUSTEREN: You talk about the briefs. I'm holding up a page here from the brief. They say, well why do you need an expedited consideration in the Supreme Court, in the court of appeals. The reason is because those judges recognize how important it is. Yet, that's what the justice department fights on. I can't understand the Justice Department on this one.

CUCCINELLI: It is circular logic at best. And we've been seeing that on the procedural side of this case for the duration of the case, not to mention in our view, we've been seeing it in some of their substantive arguments as he try redefine some words.

But now we're stuck with the traditional longer road. We're going to try to hurry it along as quickly as we can. If we were to lose in the 4th circuit we will go immediately to the Supreme Court. And I would bet you if the federal government loses in the 4th circuit they will request a review so they can drag it out farther.

VAN SUSTEREN: All I can say is that I would be ashamed if I were on the Supreme Court knowing this is so important. I'm not talking whether it should be decided in our favor or against you, but I would be ashamed if something so important to the nation and to people, I would push it off for a year. We I know the decision is going to come to me to make the hard decision. I would be ashamed.

CUCCINELLI: We had 28 governors supporting what we were doing. In Virginia we had people who don't agree with our legal position, Democrats in the House of Delegates who were supporting our effort to expedite. They said ken we need to know, whether you win or lose. They are trying to write budgets, restructuring parts of Virginia government this going on in every state, in the private sector.

And it is that uncertainty that we were trying to eliminate as quickly as possible. Lord knows, our economy needs as much uncertainty removed as possible so we can press ahead for the American people.

VAN SUSTEREN: I'll be curious to see how the justices spend their summer vacation. If I find out I'll be sure to let everybody know how they are enjoying their summers. Thank you.

CUCCINELLI: Thanks, Greta.

(END VIDEOTAPE)