This is a RUSH transcript from "The O'Reilly Factor," March 27, 2012. This copy may not be in its final form and may be updated.
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O'REILLY: "Personal Story" segment tonight last Friday President Obama personalized the case of Trayvon Martin.
(BEGIN VIDEO CLIP)
OBAMA: You know if I had a son he'd look like Trayvon and you know I think they are right to expect that all of us as Americans are going to take this with the seriousness it deserves.
(END VIDEO CLIP)
O'REILLY: They referring to Trayvon's family. Now, on the campaign trail, Newt Gingrich objected to the President's remarks and he joins us now from Salisbury, Maryland.
So was it just the color reference? You used the word disgraceful which I thought was overly harsh, Mr. Speaker, or was it the color thing that you -- that you objected to there?
NEWT GINGRICH (R), PRESIDENTIAL CANDIDATE: Sure, look, object to personalizing in a way any young American who gets killed is a tragedy of any ethnic background for any reason and I think we -- all of us should be concerned in a case like this.
I'm glad that the district attorney has impaneled a grand jury. I think it has to go through that process. We have to find out with witnesses and evidence and the due process of law what happened.
And but I'm just -- all I was saying was that should be true of any American of any ethnic background whether it's a male or female.
O'REILLY: I don't -- I don't mind, I think the point is well taken that you want to include every victim of crime in your empathy.
But I -- if I were president and I think if you were president and you were faced with a national story which this has become, he was showing empathy in a personal way, the President was. And I didn't find that objectionable. I really didn't.
GINGRICH: Well that you know, we approached it slightly differently. I think the important thing is that we get to justice, that the grand jury render a judgment about whether or not somebody be indicted and that if they are indicted we get to a jury trial and they have an opportunity for the full justice of the law.
I think it's very important that this case be seen all the way through and the people have a sense that the American system does set out to protect people.
O'REILLY: Do you think the President polluted the case by his comments?
GINGRICH: No. Look, this is one of those cases that's going to be so massively on television that it will be very interesting to see how they pick a jury but I think that it's one of the -- it's a case you have to deal with.
We also should recognize that there are people every day somewhere in America somebody needs to be protected by the law and every day we have occasions that are tragic. And I think that's something we all have to recognize and try to continue to work on.
O'REILLY: All right. Now, turning to politics a lot of people are calling for you to get out of race. I don't know why they would do that. If you want to stay in the race, certainly you are entitled to do that. You've said that you want the arguments and the -- the ideas to be articulated that you have. I think that's valid.
But you don't really have much money. You can't win. So, it really is an intellectual exercise going forward. Is it not?
GINGRICH: You know, I'm talking here from Salisbury state where the turnout was so big they had to have an overflow room. They had to have television for the students who couldn't get in because people are interested in the ideas. They are interested in the concept. I just spent today, part of it in talking with people in the state capital here in Maryland. And there was a great interest in what's going on.
Yesterday I was in Delaware there was a lot of interest. Saturday I was at the Republican conservative leadership conference in Harrisburg, Pennsylvania. A thousand people were there.
I'm running for president. I have a set of ideas running for president. The frontrunner for president does not have a majority. There are some argument he is not going to get a majority. If he doesn't get a majority by June 26th when Utah votes we're going to have an open convention.
O'REILLY: So you're going there on a hope that that -- but you could do that anyway. You could get out and then if he didn't win, then you could be like that.
GINGRICH: I have no -- Bill -- Bill I have no incentive to get out because I have a set of ideas that include --
O'REILLY: No, I got it? I got it.
GINGRICH: That include $2.50 a gallon of gasoline and et cetera. So I have every incentive to stay in.
O'REILLY: I got it. But you don't have any money. You're going to spend your own money?
GINGRICH: If necessary. But that's not the point. We are raising some money. I would be glad for anybody who is watching us to go to Newt.org and donate. You know and I -- look, I'm open about it. I don't mind telling people I need to raise money.
O'REILLY: No, look. It's a tough -- it's a tough slot. Look, you want to run, you run. I mean, we say that to everybody. If you want to go, you go.
The Obama care stuff is getting very interesting. Because as we reported at the top of the program Justice Breyer he gave the Solicitor General a hard time. Kennedy kind of flat out said you've got a tremendous burden here. And I have said from the very beginning this is unconstitutional. It isn't even close if you really want to go by the Constitution.
You want to make a call on this, how you think the Supreme Court is going to go down on it?
GINGRICH: Yes I think -- first of all, I think your analysis is right. I think that it's almost certainly going to declare the mandate unconstitutional.
The secondary question that will be equally fascinating is do they then say since the Obama administration failed to write in a separatability clause that the entire bill is unconstitutional.
Remember, they were in conference Teddy Kennedy loses guys in his special election, the Republicans win the special election. They can't fix the bill. So they passed a badly marred bill which does not have a clause that says that any part of it is unconstitutional the rest still stands.
Technically there is a real likelihood the court is going to say the entire bill is unconstitutional because it's all connected. If that happens, the Obama administration is in an enormous mess and two years of bureaucratic effort are going to -- trying to unwind that is just going to be a nightmare.
O'REILLY: Is there any way in your opinion that the Supreme Court will uphold the law because that would be a huge victory for the President?
GINGRICH: Bill, I think, you know, I'm not an attorney so I don't want to speak you all of attorneys. Is there any way the court could vote that way? Sure. Is it likely? I'm with you. I think it's not likely. I think all the evidence is building, if you listen to the arguments; if you watch the questions. These judges are moving towards a declaration, maybe by a surprisingly big margin it could easily be as much as 6-3 or 7-2, on the narrow question of is it unconstitutional for the mandate.
Now whether they then also by probably 5-4 say by the way that invalidates the whole bill because that will be the next question the attorney general will come back and ask and say --
GINGRICH: -- gosh doesn't that mean the whole bill is invalid?
O'REILLY: Well it is practically speaking if the individual mandate goes out of bill it will be impossible for the feds to enforce it. It just won't do it and people just opt out and say we're not going to do it.
All right, Mr. Speaker good luck, we'll catch you down the road. Thank you very much.
O'REILLY: Plenty more ahead as the FACTOR moves along this evening.
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