OTR Interviews

Inside the historical challenge to 'ObamaCare'

After a first day of technicalities, the Supreme Court will focus on the key issue: whether it's constitutional to require Americans to buy health insurance

 

This is a rush transcript from "On the Record," March 26, 2012. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Florida Attorney General Pam Bondi is one of the 26 attorneys general challenging President Obama's health care law. She was sitting at counsel's desk today in the United States Supreme Court. Attorney General Pam Bondi joins us. Nice to see you.

PAM BONDI, FLORIDA ATTORNEY GENERAL: Nice to see you, Greta.

VAN SUSTEREN: OK, so let's get the inside scoop since they won't let us have cameras in the courtroom. Tell me -- tell me what it looked like. What was it like inside the courtroom?

BONDI: Well, it was a packed courtroom. There was a lot of excitement in the courtroom. Shannon was in the courtroom, as well, and it was great to see her.

And I think the Justices -- they were all very well versed, and they seemed excited to be there. They seemed very interested in the case, which is always very important to us. And I think they asked some very intelligent questions.

The one Shannon just discussed, that Justice Alito asked about, you know, Today you're saying it's a penalty, but tomorrow you're going to say it's a tax -- that helps us definitely tomorrow with the mandate argument.

VAN SUSTEREN: You know, what's sort of interesting, though, is that, you know, we've all been in court and we hear judges or justices ask questions, and you're so convinced they're going to go your way. And then all of a sudden, you read the argument and you feel like you got hit by a 2-by-4 right between the eyes.

BONDI: That's right.

VAN SUSTEREN: And you think, What in the world was I thinking when I thought those questions indicated a particular view?

BONDI: That's exactly right. And that's -- even in murder trials. And you never try to predict. I never do a head count. I never guess.

You know, remember when we were in the 11th circuit, everyone kept saying, Oh, they lost because you have two Democrats and a Republican, and we had the best bipartisan decision in the country right now out of the 11th circuit court of appeal.

So you can't -- you can't really do a numbers game. And you're right. You can't predict based on the questions the Justices ask. But they were very engaged today. That was very encouraging.

And again, like you said, they gave us an unprecedented amount of time, and tomorrow we have two full hours to argue the mandate and why it's unconstitutional.

VAN SUSTEREN: OK. That's the -- that's the big deal. At least, I think it's the most important argument is tomorrow. Now, we do expect a decision on all the stuff by the end of June, right?

BONDI: End of June, yes.

VAN SUSTEREN: OK, not a guarantee, but 99 percent sure we're going to get it by the end of June either way.

BONDI: Yes.

VAN SUSTEREN: All right, tomorrow, the mandate. Tell me, why is it that you believe that the federal government did not have the authority to write a statute with that mandate?

BONDI: OK, under the commerce clause, which is what they're trying to say how they can regulate this -- that under the commerce clause, they can force us to purchase a product simply by sitting here. They can force us all! Every single American will be told to purchase insurance. If you don't purchase that insurance, you're going to be penalized.

They cannot do that. There is no case on point. There is no case even close.

VAN SUSTEREN: If -- I mean, but if -- if it were just the state of Florida, they definitely couldn't do it because there wouldn't be anything interstate.

BONDI: Right.

VAN SUSTEREN: It wouldn't cross state lines. They couldn't force everybody in Florida to do it alone. It has to have some effect on interstate commerce, right?

BONDI: Right.

VAN SUSTEREN: Is their argument that because there's a high likelihood, not a -- not all of us, but a high likelihood that we're all going to need medical care, that that somehow affects interstate commerce? Is that the argument on the government's side?

BONDI: I think that is going to be one of their arguments, certainly. But that's no different than saying, Well, at some point, we're all going to need food. But they can't tell us what food to purchase.

You know, at some point, we're all going to want to drive a car, but they can't tell us what kind of car to purchase. Right now, there is no activity. Someone is just sitting in their living room.

And if they're able to do this -- you know, we have a federal government with limited powers, and if they are able to exercise this unlimited power, it truly goes so much farther than health care. And if they're able to do this, they are able to do anything. And we firmly believe it's unconstitutional.

Now, that's one way. Their second argument is going to be that they can regulate this by their taxing ability, so that's where I think...

VAN SUSTEREN: They said it wasn't a tax!

BONDI: Exactly!

VAN SUSTEREN: I mean, that -- I mean, that -- I don't -- I don't understand how they can sell that one because that was the way they sold...

BONDI: I don't, either.

VAN SUSTEREN: ... it to pass. They said this isn't a tax when they...

BONDI: Right.

VAN SUSTEREN: ... when they persuaded everybody.

BONDI: Right. It's like -- you know, Greta, when you argue a criminal case and you try to argue in the alternative. It just doesn't work.

VAN SUSTEREN: Not -- not -- it's not persuasive.

BONDI: It doesn't work.

VAN SUSTEREN: You try to.

BONDI: That's right.

VAN SUSTEREN: All right, since you are the -- the state attorney general, there's a big controversy down in Florida, Trayvon Martin, a young man who was killed. Is there -- I mean, what have you done?

BONDI: Well, I've spoken with Trayvon's family. My heart goes out to them. They're actually wonderful, wonderful people. I've spoken with their attorneys. Originally, we had an attorney from the local area, a state attorney. As attorney general, I don't have jurisdiction to handle the case, only the state...

VAN SUSTEREN: Because it doesn't cross county lines.

BONDI: Exactly.

VAN SUSTEREN: Much sort of like what we're seeing with the -- the whole thing with the interstate commerce on a federal level.

BONDI: Exactly.

VAN SUSTEREN: So you can't -- you can't go and arrest him.

BONDI: No, I can't. But I can have a voice. And I called the state attorney in the local county and I spoke with him. And he has done nothing wrong, but based on the high profile nature of the case and based on the fact of the appearance that he's wrapped up with the police department -- he has done nothing wrong -- he agreed. He thought it would be in the best interests of the case for him to remove himself from the case.

So I met with the governor, and the governor and I decided to appoint Angela Corey, a great prosecutor from Jacksonville. She is just tough as nails. She's one of the few elected state attorneys who still actually gets in the courtroom and tries death penalty cases.

She's already assigned two of her top prosecutors to the case. Today she met with Trayvon's parents and Trayvon's lawyers. She's been working very hard. I have been in constant contact with the Florida Department of Law Enforcement. The Sanford Police Department's backed off. That's the local police. FDLE -- they're handling the case, and they are doing a thorough investigation, as well as the Justice Department and the United States attorney, who I've been in constant contact with, as well.

You know, I can tell you, when you have a 17-year-old boy who's walking home and he's shot and killed, there are way too many unanswered questions. And we have got to have all of those questions answered, and right now, they're not answered.

VAN SUSTEREN: And boy, I'll tell you, temperament is -- is tense. Anyway...

BONDI: It is.

VAN SUSTEREN: Nice to see you. Thank you very much.

BONDI: Thank you.