This is a rush transcript from "On the Record," January 2, 2014. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Is the Obama administration breaking the law? That is what 11 Republican attorneys general alleged. They're blasting the president's ObamaCare fixes and insisting the administration's illegal actions must stop. The A.G.s taking their case directly to HHS Secretary Kathleen Sebelius.
Texas attorney general and gubernatorial candidate, Greg Abbott, joins us. Good evening, sir.
GREG ABBOTT, TEXAS ATTORNEY GENERAL: Happy New Year, Greta.
VAN SUSTEREN: Happy New Year to you. So, you and your 10 other attorneys general, tell me, why do you say the president is breaking the law?
ABBOTT: Greta, this is the fiat presidency. The president is supposed to enforce the laws, not forbid the enforcement of laws. What we're seeing, time after time after time, over the past few months, the president has found the ObamaCare law put him and his political future in a corner, he goes about trying to change the law. Repeatedly now over the past few months, the president has forbid the enforcement of the law or changed the law to suit his ends. He does so unconstitutionally. Only Congress can pass a law. The president does not have the power to make up the law and judge its credibility, acting as a court. We got away from that when we got away from Britain, Greta. Now we have the president acting like a king over the United States.
VAN SUSTEREN: Where do you're draw the line? Because Congress legislates. They write the laws and the president is supposed to execute them, but there's some level of discretion. You see that even in plea bargaining. They can drop one charge and agree to another. That's the executive branch. So where do you draw the line? How do you know the president has crossed the line to going beyond executing the law and actually legislating?
ABBOTT: Because the courts had been abundantly clear that the executive branch does not have the authority to, writ large, just wholesale, completely eliminate the enforcement of a whole section of a particular statue. That's exactly what the Obama administration has done.
The president himself and Secretary Sebelius, with regard to saying, OK, this part of the ObamaCare law we're going to put off an entire year. Greta, that's an entire section of the ObamaCare law.
ABBOTT: They're not doing it for one person, Greta. They're doing it for everyone.
VAN SUSTEREN: Here's the issue, General, as I see it. In order to -- you've got to figure out a way to get into court. It seems to me that every judge, when something comes before it, looks at a statue and the clear language, looks to see whether or not you're right or wrong. In this instance, the language of the statute, I must admit, is quite murky on terms of what should be done. You look then to legislative intent, which was for everybody to pitch into the pot, pour money in the pot and that would keep the costs down for everybody. Now the president comes in and takes some people out after paying into the pot. That's the challenge.
Does that completely change the intent of the legislation? So now how do you get that situation before a judge?
ABBOTT: That raises the tough question and that is standing. Do states have standing to challenge this? Do employers or individuals have standing to challenge this? We believe what the president is doing is clearly unlawful. But we don't know who has standing to challenge it.
VAN SUSTEREN: What are you waiting for? That's what I don't understand. Members of Congress say they don't have standing. So now we have the state attorneys general. So what are you waiting for?
ABBOTT: Well, because we're taking first steps first. The first thing is, there's an open comment period where we're providing comments to the United States secretary of Health and Human Services, letting them know that what is going on is illegal and what they can do to correct it, to insure legal action doesn't have to be required. So, Greta, what we're basically doing is we are exhausting administrative procedures. After that, we will be determining the appropriate course will be.
VAN SUSTEREN: All right. Now I take it all the attorneys generals who signed on to this letter to HHS are all Republicans, right?
ABBOTT: They are. Greta, if you saw the date of the letter, it was December 26, the day after Christmas. This is something that had to be put together on short notice. I know there's going to be more attorneys general who agree with this who simply didn't have time to join in.
VAN SUSTEREN: I expect you might pick up other Republicans. Is there any indication at all that any Democrat attorney general, who has a very specific job in a state, is going to join with you so that you get out from underneath the shadow of it looking like a political gesture?
ABBOTT: Greta, I know there are Democrats, whether they be attorneys general or members of Congress, who are against what the president is doing. For political reasons, they're unable to come out and say that. As you remember, it was the 26 Republican attorneys general who brought the lawsuit challenging Obamacare in the first part, and that was all in one party. The Democrats, even though some may have disagreed with the law, decided not to challenge it.
VAN SUSTEREN: Which is interesting. The lawyers, the attorney general are supposed to enforce the law and not be governed by political agreement. If there are those out there on either side of aisle, it's too bad that politics would trump their job responsibilities, if they believe that the law has been violated.
ABBOTT: That's the case. Of course, in this case, this is a rare situation. The first time I've seen it in the United States of America history where a president is so violating the standards of what the law sets forth, such as with the employer mandate.
Greta, this isn't deciding. OK, maybe they should apply to someone or not apply to someone. He, writ large, said, OK, the employer mandate is not going to apply this year. We've never seen a president do anything like that with any law in the past. It's time we have a president who's going to obey the Constitution and enforce the laws, not make them up.
VAN SUSTEREN: I would simply like to see the third branch of government sort this out. What's intriguing is the fact that we can't get this dispute to the third branch of government to decide whether the president is right or wrong, because of the peculiar nature of the fact that you can't get in the door.
ABBOTT: Well, one way if could be solved, Greta, and that is the U.S. House of Representatives has already passed a provision that would solve a lot of this. If the president were to call Harry Reid and say, I want you to agree with the House of Representatives and pass the law that they pass, that would solve it tomorrow. But the president won't do that.
VAN SUSTEREN: Attorney General, nice to see you, sir. Thank you.
ABBOTT: You, too, Greta. Thank you.