Administration changing health care law 'on the run'?

Reaction to delay of another ObamaCare provision

This is a rush transcript from "Your World," August 13, 2013. This copy may not be in its final form and may be updated.

Welcome, everybody. I'm really glad to have you tonight, because I have one of my favorite people on tonight. I'm Neil Cavuto, by the way.

And the White House saying it's, well, really just responding to some health care providers' concerns. So it is delaying that cap on individual's out-of-pocket medical expenses, only weeks after similarly delaying companies having to provide health care coverage for their workers.

Give it time to get it right was the idea.

Mark Levin all but says stick a syringe in it and kill it now, because this isn't about a law on life support. The constitutional attorney says this is really about a country on life support, and one Mark eerily spells out in his latest book, "The Liberty Amendments: Restoring the American Republic."

Well, Mark, I'm wondering as I finish reading this book whether it's already too late, the ways these guys are going.

MARK LEVIN, AUTHOR, "THE LIBERTY AMENDMENTS": Well, I hope it's not too late.

But my suggestion is, with ObamaCare and all the rest that is going on here, we need to breathe life back into the Constitution. I argue we're in a post-constitutional period for the most part. This is evidence of it. ObamaCare was passed unconstitutionally. Congress did not have the power to do this.

It was signed by the president, who did not have the power to sign this into law. And the Supreme Court twisted the Constitution and amended the Constitution to give its imprimatur to this, and now you see 2,700 pages, 20,000 pages of regulations. Pelosi said pass it and we will know what's in it. We pass and it we still don't know what is in it. And the president willy-nilly...

(CROSSTALK)

CAVUTO: Do you think they actually did know what was it and they just were not going to share it?

LEVIN: I think they did this massive law written by all these special interests and so forth and ideologues.

And they figured, as time went on, they would manipulate it, just as they are now. And if it falls, then they will push their single-payer plan.

The fact of the matter is, they have taken an entire private industry and turned it on its head. And doesn't it say something that more than three years after this thing passed, the American people really don't know what this law is all about? I have tried to figure it out. You have tried to figure it out. You work on this every day. And it's clear the president, too.

And so what do they do? They change the law on the run, which is utterly unconstitutional.

CAVUTO: But it's not unprecedented. The president's press conference last week saying any big piece of legislation, whether it was Medicare -- he actually mentioned Social Security -- they tinker along the way.

What do you make of that?

LEVIN: I studied that Medicare law, and it was passed in 1965, and they tinkered with it in 1966.

This isn't tinkering. This is rewriting.

CAVUTO: And that was $66 million law that became a trillion-dollar...

LEVIN: Which they expanded over time.

But this isn't tinkering through regulation and so forth. This is rewriting a statute, which of course the president doesn't have the power to do.

CAVUTO: You mention in your book, right at the outset, as you advise to revisit the Constitution, change things to get back to what it was supposed to be, that we are to blame for a lot of this, the American people, when you say: "The people are left lame-brained and dumbfounded about their representatives' supposed good deeds, which usually take the form of omnibus bills numbering in hundreds, if not thousands of pages, and utterly clueless about the effects these laws have on their lives. Of course, that's the point. The public is not to be informed, but indoctrinated, manipulated and misled."

Deliberately?

LEVIN: Absolutely deliberately.

Look how this law passed. It was actually passed at midnight. They made changes to it. Members voted on it. They weren't even sure what was in it. They tried to ram this through under an unconstitutional rule called the Slaughter Rule. They had to pull it back.

CAVUTO: Right. Right.

LEVIN: I threatened to sue them, among others. Then they use a budget process to pass the statute. The president signs it into law. The chief justice of the United States turns the Constitution on its head to impose this law on us, and now the president...

(CROSSTALK)

CAVUTO: Yes, I want to get to that.

LEVIN: Yes.

CAVUTO: You really save some particular vitriol for him.

LEVIN: Venom. Venom.

CAVUTO: And by -- he was essentially saying Congress did this, go back to Congress to fix this. And you argue that when a justice sort of throws it back in the lap of big government advocates, it's effectively doing no one any good. But what did you mean?

LEVIN: What he did is, he said that the penalty provisions under ObamaCare are taxes, and taxes, Congress has the power to levy.

They're not taxes. The president's -- he signed the bill. He said they're not.

CAVUTO: Right.

LEVIN: The authors of the bill said it's not a tax.

So the chief justice of the Supreme Court rewrites the bill and changes the meaning of the bill in order to uphold the bill. If he had thrown it back to Congress, I wouldn't have a problem with it, because that temporary Congress was gone. There was a new Congress. The American people did speak. They threw that Congress out of office, that House of Representatives.

And so now what is happening? This law is a disaster. It's going to put insurance companies out of business. It's going to put people out of work.

CAVUTO: Maybe that was the intent all along.

LEVIN: I believe it is.

CAVUTO: Yes.

LEVIN: But whatever the intent is, this is not the way you legislate and this is not the way you execute. Utterly unconstitutional in both respects.

CAVUTO: Which is why you also advocate not only for term limits for Congress, but term limits on the Supreme Court. Right?

LEVIN: Yes, 12-year term limits for Supreme Court justices for a very simple reason.

If you understand the history of the republic and what the framers had in mind, they never, ever, ever would have believed that five lawyers -- and, by the way, if one switches side all of a sudden, the Constitution is different than it was the day before -- that five lawyers could have such an impact on society as to matters of policy.

CAVUTO: Well, they had to know that was possible.

(CROSSTALK)

LEVIN: Well, they didn't think it was possible.

CAVUTO: Really?

LEVIN: They thought the other branches would rise up and address it.

And, moreover, remember, when the Constitution was established, it was the states that had the authority, not the federal government, as it is today.

CAVUTO: What do you think happens to this now? Another delay. Republicans are saying, defund it, even if it risks the government shutdown to force it.

LEVIN: No, no, no.

CAVUTO: What do you think of that?

LEVIN: A handful of conservatives are fighting the good fight.

The Republican Party has surrendered. The Republican Party, despite Karl Rove coming on here, telling you there's 1,000 ways to kill it, there's not 1,000 ways to kill it. And the fact of the matter is they won't even make an argument against it. They had these phony votes on repealing that they knew Harry Reid would never even consider.

CAVUTO: Right.

LEVIN: The power of the purse is the only way to address this.

(CROSSTALK)

CAVUTO: Is it realistic, when even Senator Ted Cruz is among the early supporters of the defunding mechanism, says he has an uphill fight and it probably wouldn't pass?

LEVIN: Well, it is. Every fight is an uphill fight.

(CROSSTALK)

CAVUTO: I agree with you on that, but when even the advocates are saying they're going nowhere...

LEVIN: But let me tell you what I'm saying.

I'm saying that if we knock out the discretionary spending or at least have a fight on it -- the American people need to know there's some people -- that there's one party that is on their side, that rejects this.

And we talk about this 1995 shutdown. I was there, too, and I remember this 1995 shutdown. You know what we got out of it? Almost a balanced budget. Welfare reform. Two more Republicans elected to the Senate. They lost eight or nine House seats, which they were going to lose likely anyway. This is not about a knockout punch on ObamaCare. This is about doing what the left does, starting the process of unraveling it.

CAVUTO: But mainstream also counter, not your favorite friends, the mainstreamers, it also reelected Bill Clinton.

LEVIN: Oh, really, like Bill Clinton wasn't going to be reelected anyway? Who did he run against? I think it was Bob Dole, wasn't it?

CAVUTO: So, you don't think the shutdown and how it was handled had anything to do with it?

LEVIN: The mainstream Republicans, they promote these very nice people, very honorable people, in that case a war hero, but very weak presidential candidates, and then they blame conservatives.

They don't fight this legislation and then when conservative rise up and say it's time to stop it, they fight conservatives. And they're very good with the bureaucratese and the argument and the scare tactics, just like the left, because the Republican leadership today is for the status quo. Show what are we going to do about ObamaCare? Is it here to stay?

CAVUTO: But if you -- you raised some hackles when you said if you had a choice between Chris Christie and Hillary Clinton, you don't know who you would vote for.

LEVIN: Yes.

CAVUTO: And that raised the -- all right, Levin is turning away from the party.

LEVIN: No, no, wait a minute. I will never vote for Hillary Clinton.

CAVUTO: So did you mean that you would have passed up that vote?

LEVIN: I told you before, with Barack Obama, I would vote for an orange juice can over Barack Obama.

CAVUTO: Yes, you did.

LEVIN: I will never vote for Hillary Clinton. She is Barack Obama in a dress as far as I'm concerned.

As for Chris Christie, I will do everything I can in my little way to make sure he is not the nominee.

CAVUTO: Why don't you like him?

LEVIN: It's not a personal -- it's not a matter of like. He is a Gerald Ford Republican.

Despite all the huffing and puffing, your home state of New Jersey is still a financial disaster. Is he better than the Democrats that preceded him? Yes. What isn't and who isn't? I'm all for that. But he didn't sign on to challenge ObamaCare. Why not? That was a free -- he didn't have to pay a cent to do that.

In my view, he is weak on immigration reform, he's an amnesty guy. He's a greenie when it comes to the EPA. He just signed 10 out of 15 gun control laws.

CAVUTO: Well, he cut a millionaire's tax and he submits smaller budgets each year.

LEVIN: I will bet he has done 10 great things, but he hasn't done enough.

And the point is if we keep nominating Republicans, moderates from the Northeast, we will keep getting our lunch handed to us. What is our example of a great victorious president? A solid conservative president, the most conservative we ever nominated to run for president, other than maybe Goldwater, Ronald Reagan, wins two landslides, and the Republican Party spends its entire time trying to figure out how to not nominate somebody like that.

CAVUTO: So, the moderate route is not the way to go?

LEVIN: Why would we support a moderate route when we're living in a post-constitutional period, when we have ObamaCare, Dodd-Frank, all these other things being done that are truly ripping at the heart of this nation, hollowing out the military, doing all these other things?

What does a moderate mean? What does the Republican Party stand for today?

CAVUTO: Well, do you like out there?

LEVIN: Well, I like the conservatives. And the more conservative, the better.

CAVUTO: Who is a conservative?

LEVIN: I like Ted Cruz.

CAVUTO: OK.

LEVIN: I like Mike Lee. I like Rand Paul.

I like -- well, that may be it.

CAVUTO: Really?

OK.

LEVIN: Well, there's some governors I like. Walker has been pretty good and some -- and a few others.

But I'm not here to nominate anybody. I'm here to say, America, it's time to put Nixon, Ford, Rockefeller, Scranton behind us, or we're going to get our lunch handed to us again. It's time to embrace constitutional conservatism, because the country is in dire straits.

CAVUTO: All right, let's look at the landscape now, the potential guys out there and what they're advocating.

And you hear from a lot of Tea Party types, Mark, that they would rather lose on principle than win with mediocrity, to your point, moderate- type candidates. Do you agree with that? Do you agree that all these Tea Party challengers, conservative challengers to what they call RINO Republicans, Republican in name only types, is a worthy pursuit?

LEVIN: I don't really believe that's what they believe. It's not what I believe.

CAVUTO: I know that they...

LEVIN: No, I think they believe we win with principled candidates, not that we nominate principled candidates and lose.

CAVUTO: You don't think it divides the vote and hands the election to the Democrats?

LEVIN: I think the mush candidates divide the vote and hand the election to the Democrats.

For all this talk about how many Tea Party candidates lose, if we went down the list of Republican establishment candidates that lose, even millionaires and billionaires, like in California, Whitman and on and on, it would far outnumber the conservative Tea Party candidates.

But, look, this isn't a game where you're guaranteed wins and you're guaranteed losses. The country is in dire straits. The Republican Party today under the Republican leadership offers nothing. What are they going to do about ObamaCare? They're going to hold hearings?

Well, great, hold all the hearings you want. Obama is laughing. He is implementing or not as he chooses to. Why are we not making the case, the legislative case, the power of the purse case? The House of Representatives, if it means nothing, then why are we electing Republicans to the House of Representatives? Of course they have power. Read the damn Constitution. The House of Representatives is where taxing, spending and borrowing begins and ends.

CAVUTO: It does start there, indeed.

When you talk about going after party heavyweights, when you were last with me, you criticized John Boehner as well, the speaker. Donald Trump, as you know after the fact, had a golf round with the speaker. And wouldn't you know, your name and criticism came up. This is from a little earlier, Donald Trump.

(BEGIN VIDEO CLIP)

DONALD TRUMP, CHAIRMAN & CEO, TRUMP HOTELS & CASINO RESORTS: I think they are doing a lot about it. And I see a lot happening. But he is in a very difficult position because he's got different groups of people. CAVUTO: So, you don't think -- you don't think he is dragging his feet on this? And you didn't get any sense, expressed by some conservatives like Levin, that the speaker is only giving lip service to these scandals?

TRUMP: I don't think he is dragging his feet.

And I think there are a lot of things going to happen. And we will see what happens. But I don't think he is dragging his feet at all.

(END VIDEO CLIP)

CAVUTO: He is not dragging his feet at all.

LEVIN: By the way, I happen to like Donald Trump.

CAVUTO: Yes. He's just wrong on this issue, you think?

LEVIN: Well, I have my own view of Boehner.

To me, it's not, oh, this guy believes this and this guy believes this. I believe what I believe. I see what I see. Boehner is slow- walking, piecemeal amnesty.

CAVUTO: But Ronald Reagan, for whom you worked, he was also famous for, I would rather get, what, 70, 80 percent of the loaf than no loaf at all.

LEVIN: Right.

CAVUTO: So, he made deals. He and Tip O'Neill would...

(CROSSTALK)

CAVUTO: So, what of that?

LEVIN: Well, where have we gotten 70 or 80 percent?

With Boehner, I will take 60 percent. If we can get 70 or 80 percent, I'm all for it.

CAVUTO: I got you.

LEVIN: But I -- but when you're announcing in advance we're only one- half of one-third on there, OK, he just surrendered. Or when he is saying, we will not shut down the federal government, he just surrendered.

Hide your cards and play tough, man.

CAVUTO: I see.

You talk about how you change the Constitution to address this stuff. Leaving aside there are lot of constitutional purists, probably just like you, who say, when you start that, actually, you're going to hurt the Constitution, because you're changing it willy-nilly, you say?

LEVIN: The Constitution is being changed willy-nilly all the time.

Every time the Supreme Court meets, and we sit here in June on the edge of our chair with some breathtaking decision that comes out that has no constitutional basis or very, very thin basis, that is amending the Constitution. When the president of the United States, as today, suspends some part of a federal law or chooses not to enforce another part of a federal law because he disagrees with it...

CAVUTO: Has he broken the law?

LEVIN: Yes.

CAVUTO: So, the law is null and void?

LEVIN: Well, I can declare it null and void.

CAVUTO: Right.

LEVIN: The problem is the system is broken, which is exactly my point. Who is going to enforce this? Boehner is not. And he can't on his own.

CAVUTO: But Mark Levin says change the Constitution to get us back to essentially simplicity here, limit taxes and spending. But how can you do that? What would be written in the Constitution and what would connote waste vs. substance.

LEVIN: I'm not saying change the Constitution to do it. I'm saying breathe the life back into the Constitution.

CAVUTO: You want it written somewhere, much like Ronald Reagan did, a constitutional amendment for a balanced budget, which is 44 states --

LEVIN: That's correct. That's correct. And Congress isn't going to do it.

CAVUTO: Why?

LEVIN: And so what -- why? Because they designed it. They created this. They're doing it every day.

CAVUTO: And they like to spend.

LEVIN: They can't control themselves. They are drunk. And they are drunk with power.

CAVUTO: They say, look, the proof is in the pudding. This is more liberals who say deficits are coming down, the economy is doing better than it was, Mark Levin is wrong.

LEVIN: The debt is not coming down.

They could talk about deficits all they went. Wow, we went from $1.4 trillion to half-a-trillion. That's a victory? That's a disaster. We hadn't had half-a-trillion-dollar deficits until this president came into power. So the problem is it is piling on, piling on.

We have a $90 trillion unfunded liability. And what are we the people supposed to do? Sit around like this destruction is inevitable? When the framers of the Constitution -- I'm not seeking to change it. I'm looking at it under Article 5, the Second Amendment process.

CAVUTO: So, you're looking to add a lot of stuff to it.

LEVIN: I'm looking to control what is going on with the federal government, unravel the ruling class, and bring the power back to the states and the people, where the federal government conducts itself as the Constitution intended, and the very framers who wrote that Constitution also wrote Article 5, the Second Amendment process.

And you know what they said? Hey, folks, we have done the best we can. But we also know that government go oppressive. And we wrote a Constitution to make sure this centralization wouldn't occur, but we can't guarantee it. But you can.

There's two ways of amending the Constitution, one that has been 27 times, where Congress proposes amendments to the states, and the states have to ratify, and a second, where the states propose amendments to themselves, and three-fourths of the states have to ratify.

CAVUTO: But that takes pent-up rage, right? And you talk about in this book that it doesn't go through that normal process. There will be a point at which, to paraphrase and all, the masses revolt. Are we near that?

LEVIN: Well, George Mason said there needs to be pathway to controlling an oppressive Congress and an oppressive government short of violence.

And this is the one that we have provided the American people. And I'm saying, America, this is your Constitution, this is your country. Look at it. The amendments I propose, every single one of them in those chapters has strong scholarship behind them explaining what I believe the framers would have considered. And I am not saying that I have unassailable knowledge.

People can propose whatever they want. The point is that there really is no other way to address it. If there is, well, then somebody tell me what it is, because electing another president doesn't affect reform on the Supreme Court. Electing a new Congress doesn't affect reform when you have a president fundamentally transforming America, and electing a conservative president doesn't fundamentally reform what is going on in Congress.

We the people, through the Constitution, through the amendment process, which is legitimate and judicious, we should consider that.

CAVUTO: Let me ask you something. Reading your books, you're a great writer. You're obviously a very smart lawyer. You know the Constitution through and through. And then I hear your radio show, where you rev it up a notch and yell. You will scream at...

LEVIN: It's called passion.

CAVUTO: No, no, I love it. I think it's very entertaining.

But is that by design?

LEVIN: No, no.

CAVUTO: Do you then take this and the passion that you have and raise it to the point where you will yell at liberal guests or have a field day with them?

LEVIN: People who know, this is my personality. I don't go to a dinner table and start yelling at people, but if some liberal is there and they stick their finger in my face and they won't be quiet, then I address them when they keep doing that to me.

I have a fury in me about what is happening in this country. I see it dissolving in front of me. I see politicians who are flimflamming the American people. I do not see a party standing up to it.

I'm a lifelong Republican. I served in the Reagan administration for eight years. I see timidity and cowardice and cronyism. I see people struggling to keep jobs and run their businesses, and the president of the United States flying off to Martha's Vineyard and sending his dog in another jet. I see exactly the opposite of what the framers intended, a constitutional republic where the people...

CAVUTO: But he is on vacation. Congress is on vacation, August, is off, $2 billion to $3 billion added to the aforementioned debt a day.

LEVIN: Yes.

Look, let me look at it the other way. If we could guarantee that they wouldn't pass any laws or spending, I would triple their salaries and send them away for five years.

(LAUGHTER)

CAVUTO: But now we can't afford them to do that, right? They got to fix something. They got to fix the messes they made.

LEVIN: And this is the problem.

They're not going fix what they have designed, which is exactly why I have written that book. If we think that Congress is going to fix itself or the president is going to fix himself or the Senate is going to fix itself, it ain't going to happen.

CAVUTO: Barack Obama, how do you think history is going to remember him?

LEVIN: How is history going to remember?

It depends who writes the history books. If the liberals write it, he will be the greatest president in American history. If serious people write it, he will be down there with John Tyler and James Buchanan and so forth.

CAVUTO: Wow.

Mark Levin, "The Liberty Amendments: Restoring the American Republic," left to right, you got to read this to get some historical perspective of what the hell is going on. Fair and balanced, try it.

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