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OTR Interviews

Supreme tie a win for states vs Obama immigration action

This is a rush transcript from "On the Record," June 23, 2016. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: The U.S. Supreme Court tells President Obama, no, he can't do it. The deadlocked Supreme Court blocking the president's executive order immigration plan to shield millions of illegal immigrants from deportation.

The executive action also giving them the right to work legally here in the United States. Now this is a major blow to the president. This could have defined his legacy.

Texas Attorney General Ken Paxton has filed the suit and Texas Solicitor General Scott Keller, who argued the case. They both go ON THE RECORD.

Good evening, gentlemen.

KEN PAXTON, TEXAS ATTORNEY GENERAL: Hey, thanks for having us on.

SCOTT KELLER, TEXAS SOLICITOR GENERAL: Good evening, Greta.

VAN SUSTEREN: General, first to you, is this a dead lock or a smackdown of the president?

PAXTON: Well, you know, obviously four-four, but it gives us the win we were looking for. We won in the 50th Circuit, we won at the trial court, on a preliminary junction and so now we will go back and have the case and tried the case on the merits. But it's a win for Texas. It's a win for the United States.

VAN SUSTEREN: Scott, is this a decision about immigration or about executive power?

KELLER: Today is a great day for the separation of powers and the rule of law. This lawsuit has always been about executive overreach. And it's the Congress' job to write the laws. When the president is choosing which laws to enforce and which laws not to enforce, that should trouble every American. So this was fantastic victory pushing back on executive overreach.

VAN SUSTEREN: All right, Scott, you actually argued it. Tell me if I'm correct, is that you went to court and you got from a single district court judge, which is all you would have, obviously, an injunction.

And the federal judge telling the president he can't do it. It then went up to the Court of Appeals, the Fifth Circuit, two judges went your way and said the president couldn't do it. One thought, he could. And then from there, it goes to the Supreme Court. And because it's 4-4 tie, that the other decision stands.

Is that the procedure where we are?

KELLER: That's right. And now that the Supreme Court has ruled on this and it has affirmed what the lower court did, our injunction blocking the president's immigration policy is in force.

And, keep in mind, this was just a preliminary part of the lawsuit. So we will go back to the trial court. We'll put on additional evidence and we will continue to make the case as the Court of Appeals held that this was unlawful.

VAN SUSTEREN: You know, general, it's actually quite amazing. You know, stepping back, historically. And here is one federal judge who essentially told the president no and that he can't do it. And it's quite remarkable, isn't it?

PAXTON: It is remarkable. What's remarkable, the federal judge did it. He wrote a great opinion. It's also remarkable that you have a majority of the states that filed this lawsuit and it stuck together through a pretty long process. I think it says a lot about the merits of our case and how important this issue is to our states and our constitution.

VAN SUSTEREN: All right, General, in order to bring a case, you got to show you were hurt. How did this hurt to your state of Texas, that gave you a reason to sort of proceed on this.

PAXTON: So what we were able to demonstrate is this cost of drivers license. It's going to cost the state of Texas millions of dollars. Our legislature is not prepared for it. We never had a vote on it. It's not part of our budget. Congress never had a vote on it. And so it was actually fairly easy for us to show actual harm and a continuing cost that we haven't accounted for.

VAN SUSTEREN: You know it's interesting, Scott. I look and I thought how can that be a cost because I thought you pay for your drivers license. I mean, so how could that possibly a cost, why isn't it a wash?

But from what I understand and correct me if I'm wrong that Texas subsidizes drivers license so the more people that buy driver's license, the bigger the cost, whereas if you paid the full freight, you probably wouldn't have that. Or am I wrong.

(CROSSTALK)

PAXTON: No, that's right.

KELLER: No, you got it exactly right. We pay most of the cost of these drivers license. It's fairly expensive to issue them. And so, you know, we have a large state. This would be a large number of people. And it would cost the state millions of dollars and again it's not part of our budget. We haven't accounted for it.

VAN SUSTEREN: Scott, the president didn't like this decision. Today he said among other things, today's decision is frustrating to those who seek to grow our economy and bring rationality to our immigration system.

So I guess he's saying that you are trying not to grow the economy, doing something else, which isn't good, and that you're trying to be irrational to the immigration system.

Do you have a response for that?

KELLER: Well, the president has said many things throughout this case. He said that he took an action to change the law. He said that what this immigration policy was doing was granting illegal status. That's exactly what the courts below found and today the Supreme Court upheld those decisions. And so, yes, we agree. This was a change in the law. But it's Congress' job to change the law, not the president unilaterally.

VAN SUSTEREN: General, does this have a bigger, wider impact on presidential authority and executive actions beyond this particular, sort of narrow issue in Texas?

PAXTON: Well, certainly for us, that's what it was about. And because we have many lawsuits against federal government for really the same purpose, it's not so much about the policies. Those need to be debated by Congress. That their job. But it's really about what you are talking about.

The president's duty under the constitution is to execute and implement the law, not make them. And this is just one of many examples, whether you are talking about the EPA or the other lawsuits we have. This is exactly what we're trying to stop. And it's not just because it's President Obama. We don't want a Republican president doing this as well and we think the message needs to be sent.

VAN SUSTEREN: General, thank you. Scott, thank you both.

KELLER: Thank you.