OTR Interviews

Will Obama Put Off a Supreme Court Showdown Over Health Care Reform Until After the 2012 Election?

Will the United States pay a heavy price for not fast-tracking the appeal of Obama's national health care law to the Supreme Court?


This is a rush transcript from "On the Record," August 15, 2011. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Did President Obama drag his feet going to the Supreme Court? And if he does, who is he thinking of, himself or the American people? On Friday he got dealt a blow when the United States court of appeal to the 11th circuit when the court held two to one that the individual mandate in the new health care law is unconstitutional. Two months earlier, another court of appeals, the sixth circuit, decided the opposite, holding it is constitutional.

So now the president has to make a decision, either go to the Supreme Court right away and ask them to decide this important matter as soon as possible, or he can drag it out probably past election 2012 by simply going back to the entire 11th circuit court and asking them to rethink what the 11 appellate judges decided Friday.

Florida Attorney General Pam Bondi is leading the multi-state health care lawsuit. She joins us from Tallahassee. Nice to see you, Pam. And any word from the Justice Department? Are they going to the 11th circuit court or go to the Supreme Court right away?

PAM BONDI, FLORIDA ATTORNEY GENERAL: Greta, all the states, all 26 states, we're speaking with the national federation of independent business, no word yet from department of justice.

Let me tell you, if President Obama tries to make this political, just like he did with the debt ceiling -- look what his goal was with the debt ceiling, to drag it out until after 2012. And we hope he doesn't do that here and make this political. We have a bipartisan decision by two judges in favor of our ruling. This needs to get to the Supreme Court as soon as possible. It is morally indefensible and ethically indefensible if he places politics over our constitutional rights.

VAN SUSTEREN: As a practical matter I read in today's "Baltimore Sun" that the state of Maryland land got $27 million dollars Friday to begin developing insurance exchanges. If it goes to the Supreme Court and the Supreme Court agrees with the 11th circuit, declares this mandate unconstitutional, there is a serious gutting of this law as people have to rethink this. There's a practical reason for taxpayers. We know the Supreme Court is going to decide it one way or the other.

BONDI: Greta, that's right, $27.2 million to Maryland, a total of $185 million dollars went out Friday to states. Let me tell you, I'm proud that in Florida Governor Scott is not taking any of this money, because this is unconstitutional. This is what we've been saying all along. We are not getting wrapped up in this money.

Greta, it also affects our businesses. Businesses aren't wanting to hire. The Heritage Foundation just did a study that showed there was a correlation between Obamacare passing and people being hired dropping the number of people being hired.

So yes, you are right, everyone is getting tied up in this money, and that's why it has to go to the Supreme Court as soon as possible. It is in the best interests of all Americans, all businesses. And to me that's the most important thing right now.

VAN SUSTEREN: It would not be unusual to go to the full court that's the legal advice. That may not be the -- perhaps not a good decision for America as we stand by and spend money. He might need legal advice to get it decided quickly. That is one issue he has a right to ask the full court to decide this.

BONDI: However, if you recall, initially, we asked the 26 states, national federation of independent business, we asked that the court hear this, all the judges at once. You know who objected? The federal government. They didn't want it to be heard. They didn't want all the judges to hear it at the same time. So I'll find it interesting now if they go back, because they lost, they want to do that to drag it out past 2012 election. We need get to the Supreme Court.

VAN SUSTEREN: We should probably explain to the viewers, now that there's a certain number of days, for the federal government to make a decision whether to go immediately to the Supreme Court or ask for a full court. But if they decide to go to the full court 11th circuit, we will not get to a position of getting the matter to the Supreme Court by January 1st. So it is not going to be decided today in the term for the Supreme Court which will necessarily bring us past 2012.

BONDI: Past the election, you are right. We are all meeting. We are meeting with Paul clement, a former solicitor general under President Bush who argued the case for us. We are all meeting, discussing our options, because we all have the goal of getting it to the Supreme Court as soon as possible and taking politics out of this.

VAN SUSTEREN: We should remind the viewers the sixth circuit decided differently on the individual mandate. You asked to have the entire statute thrown out. But the 11th circuit only held in your favor determining the individual mandate is unconstitutional, am I right?

BONDI: Yes, they did. But even the federal government has acknowledged that without the mandate the rest of it basically can't stand. Of course we hope that they would have thrown out the entire thing. But without the mandate, they can go anywhere. They've even acknowledged that.

VAN SUSTEREN: It takes away the funding unless you do one of two things, go massively into debt or massively raise taxes. Those are the choices.

BONDI: Exactly.

VAN SUSTEREN: Let us know when you hear from the Justice Department. Thank you, Pam.

BONDI: Thank you, Greta.