This is a rush transcript from "On the Record," December 1, 2014. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Texas governor-elect and still the state's attorney general, Greg Abbott, insisting he will sue President Obama over his executive action on immigration. Governor-elect and current attorney general, Greg Abbot, joins us. Good evening, sir.
GREG ABBOTT, TEXAS GOVERNOR-ELECT: Good evening, Greta.
VAN SUSTEREN: Sir, tell me, what's the difference? Two Republican presidents have done essentially the same in terms of granting amnesty or not deporting someone, and the president has prosecutorial discretion on who he prosecutes, who -- as the head of the executive branch. So what's wrong with what he is doing compared to the others?
ABBOTT: Well, you raised two issues. Let me try to answer them both. First, with regard to other presidents doing this in the past, one, remember, no one ever filed a legal challenge about those issues so no court ruled on it. However, I can tell you there is a difference. The difference is both the Presidents Reagan and Bush were executing laws that were passed by the United States Congress when they issued those executive -- those executive orders.
What President Obama is doing is he is issuing an executive order because Congress will not pass a law. That's completely different. As it concerns the prosecutorial discretion, understand this, while the president or his attorneys may have the discretion whether or not to prosecute someone, they don't have the authority to give rights to people they are not prosecuting and put burdens on other agencies to carry out all these orders. So this is, as you know, far from prosecutorial discretion.
VAN SUSTEREN: See, I think that's sort of the key issue in terms of the prosecutorial discretion. He can say, "I'm not going to prosecute -- I'm not going to deport a single person here illegally." But what he can't do is say, "But I'm going give you work papers," because that's a legislative function. That's what he can't do.
ABBOTT: Greta -- yes, if that is what this case turns on, we have victory because there is no such thing as prosecutorial discretion to an entire class of people like this. Let me give you an easy example. If a president can do this, then a president could also say. "You know what? For the next for years of my presidency, I'm not going to prosecute anyone who does not pay their income taxes." That would be a way to give a writ large tax break to all Americans, and of course, that would lead to chaos with regard to our system. So you cannot have an at large decision to not prosecute an entire class of people. But it goes beyond that, Greta, because this is not just not prosecuting someone. This is giving rights and benefits to those who are violating the law. The president does not have that power.
VAN SUSTEREN: All right. In order for you to go to court, you have to sell something called standing. You have got to show you have been harmed. So, tell me how Texas is specifically harmed so can you even get in to the door of the courthouse.
ABBOTT: Several things, Greta. One, you yourself saw the results of DACA, the Deferred Action for Childhood Immigrants, and the way that that led to a thousand people a day coming across the Texas border from Central America. So the cause and effect relationship about these executive orders has already been established. It's anticipated that this presidential order will likewise have a similar cause and effect relationship with regard to future effort of people trying to come across the border.
In addition to that, Greta, because of the president's prior order, Texas has already sustained costs into the millions, maybe into the hundreds of millions of dollars. A third thing, Greta, that I will throw in to tell us another case. You may remember Massachusetts vs. EPA where the United States Supreme Court says that states have standing under parents' patriarch. The standing that Massachusetts has in that case is weaker than the standing Texas has in this case.
VAN SUSTEREN: I'm told we have to go. But just tell me quickly, when are you filing?
ABBOTT: Greta, it will be any day now. We are dotting the I's and crossing the T's.
VAN SUSTEREN: All right. Well, come on back as soon as do you. Thank you, sir.
ABBOTT: Thank you.