This is a rush transcript from "On the Record," March 27, 2012. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Day two of the Supreme Court showdown over President Obama's health care law, and today a heated battle over the individual mandate. Can the government force to you buy health insurance? And if yes, is there anything the government cannot make you buy?
(BEGIN VIDEO CLIP)
JUSTICE ANTONIN SCALIA, US SUPREME COURT: How do you define the market that broadly, health care? It may be that everybody needs health care, but not everyone needs a heart transplant. Not everybody needs a liver transplant.
DONALD VERRILLI, SOLICITOR GENERAL: That's correct. But you never know --
SCALIA: Could you define the market? Everybody has to be buy food. So you define the market as food. Therefore everybody's in the market. Therefore you can make people buy broccoli.
VERRILLI: No, that's quite different. That's quite different.
(END VIDEO CLIP)
VAN SUSTEREN: Democrat Congressman Rob Andrews helped write the health care legislation. He joins us. Good evening, sir.
REP. ROB ANDREWS, D-N.J.: Greta, usually better to have you here in Washington. But it's good to be with you remotely.
VAN SUSTEREN: It's nice to have you. To start this is that there has to be interstate commerce. The federal government can't get involved unless it's interstate commerce, is that right?
ANDREWS: That's correct.
VAN SUSTEREN: To paraphrase what one of the justices said is can you force someone into commerce so you can regulate the person?
ANDREWS: I don't think you can. But when someone's in commerce anyway because they use the hospital emergency room if the need arises, then the cost of their care is either borne by them as a matter of individual responsibility or borne by the rest of the community. So the person's in commerce already.
VAN SUSTEREN: So by the hypothetical that most of us are likely going to need some health care, sometime -- some of us -- you could be hit by a truck tomorrow and there is no health care. But for the most part the government's theory that at some point, we are going to need health care, probably, therefore it affects interstate commerce and can be regulated by the federal government.
ANDREWS: Yes. And it imposes a responsibility in our neighbors if we don't choose to take that responsibility ourselves. A person who says that I am going to opt out of buying health insurance for myself is in effect saying that should they need it in an emergency situation that the taxpayers and other premium payers should pick up the tab.
Now, you can argue that that's a bad policy decision. But I don't think it's beyond the constitutional authority of the duly elected legislative branch and the president.
VAN SUSTEREN: Is there something that the government -- is there a limit to the government's power in this?
ANDREWS: Yes, there is. I think the limitation is if someone's not going to engage in the use of a product or service, then certainly you can't penalize them if they don't buy it. So, for example, someone may never play baseball or never be interested in baseball. So forcing them to buy a baseball ticket would be inapposite, would not be something that would make sense and would be beyond the power of the government under the commerce clause.
VAN SUSTEREN: So hypothetically, if I signed a paper saying I refuse any medical care, no one can take me to the hospital, don't do anything at all -- would that fall within something -- would I be forced in if -- could I be forced into the commerce anyway?
ANDREWS: Well, there is a religious exemption to this. If someone as a matter of religious faith believes that refusing health care is a matter of principle, then they are permitted to do that. But if it is not a matter of religious judgment, then, no, because you would be visiting this cost on your neighbor, you would be subject -- which by the way, this is why Mitt Romney and Newt Gingrich and Chuck Grassley and Bill Frist and a lot of good conservatives originated this idea, because it's a principle of personal responsibility.
VAN SUSTEREN: Did you hear the discussion with the attorney general of Texas about had this been called a tax at the outset, and instead it was politically unpopular -- nobody likes to raise taxes -- but had it achieved a different pathway, you could have achieved what you wanted in terms of an individual mandate without now having this battle in the Supreme Court?
ANDREWS: Well, I wouldn't accept the premise that it is not a tax. The mechanism to collect the penalty is through the Internal Revenue Code. As a matter of fact, what this really is --
VAN SUSTEREN: But that's -- from the very beginning, we could go back to tape after tape, no this is not a tax. So it's hard to sell to the American people or ignore the YouTube tapes suddenly we're calling it a tax --
ANDREWS: But here's the legal reality. A person who does not assume responsibility and buy health care pays a penalty --
VAN SUSTEREN: Penalty. Not a tax. A penalty is different from a tax.
ANDREWS: Collected by the internal revenue service. And a person who does buy health care receives a subsidy through their tax refund. So this is a tax mechanism that is used, and --
VAN SUSTEREN: I don't think -- you know what, I don't think tax is defined by who collects it.
ANDREWS: How would you define it?
VAN SUSTEREN: You could have the internal revenue service collect a penalty, it doesn't resolve it as a tax.
ANDREWS: Is there any penalty collected by the revenue service that isn't called a tax?
VAN SUSTEREN: Then why didn't you call it a tax.
ANDREWS: I did say I didn't. I don't think constitutionally it makes a difference.
VAN SUSTEREN: I don't know what the Supreme Court is going to decide on that.
ANDREWS: I don't either.
VAN SUSTEREN: I think we are going to learn by the end of June.
ANDREWS: But you know what, though, Greta, I do think this one thing. I think the truly conservative decision here would be to let the law stand, to show deference to the elected branches, and then let the people decide in the election. Let the people decide in the election.
VAN SUSTEREN: You know what, let me take you to task on that. You guys pass a law -- I don't know how many read it --
ANDREWS: I read it.
VAN SUSTEREN: It's shipped out to HHS, and there is I don't know how many thousands of rules that are being created and implemented that affect all of us that elected officials are not making. That's the nature of the way this is done, but the elected officials are not writing this law that are affecting us.
ANDREWS: I would disagree with that. The elected people made the decision to have the employer mandate, to have the benefits package, to close the donut hole and eliminate the preexisting condition discrimination. I think the court will and should defer to the elected branches and let this matter be decided by 130 million voters in November and not nine justices in June.
VAN SUSTEREN: All right, we will see what happens come June. I am sure we will have more time to talk about it t. Congressman, thank you, sir.
ANDREWS: I look forward to it. Thanks, Greta.