Fla. Attorney General Gets Backup, But Is Health Care Reform Legal Challenge 'Ridiculous'?

This is a rush transcript from "On the Record," April 14, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Battle over health care opens on a new front. Now, as you know, the Florida attorney general filed one of the lawsuits against the federal government. He said the new health care law is unconstitutional. Well, now Florida State Representative Bryan Nelson wants to give his state's attorney general some back-up. Representative Nelson just introduced an amendment that the federal government won't like. Representative Nelson joins us right now.

Good evening, sir. And what is this amendment that you have filed?

STATE REP. BRYAN NELSON, R-FLA.: Thank you, Greta. Thanks for having me on. What we're trying to do is, we all know that there's a big mandate to the Medicaid funding for the state governments. But what a lot of people maybe don't realize is they could also be subject to the taxes up to $700 per person for health care if they don't buy it. So what we're doing, we're including those folks that -- rather than have an individual lawsuits, we're trying to add them into the lawsuit that the AG is presenting.

VAN SUSTEREN: Is this in any way similar to the Virginia statute or not? Because Virginia has filed separately from Florida. They have -- they have raised the issue of constitutionality based on the commerce clause. But they also have this mandate -- they say it's unconstitutional -- that Virginia can't order people to do this.

NELSON: Yes, I think it's a lot like the -- the -- this lawsuit going on in Virginia. You know, we -- the 19 states we have, we've had some criticism that, you know, we're spending taxpayer dollars to file this lawsuit. And we've got some outside counsel, which we're -- our share of the cost is only $6,000. And like I've told people, to save a billion dollars just in Medicaid funding for $6,000 attorney fees I think's a great use of assets.

VAN SUSTEREN: All right, now, I take it you are a Republican, is that correct, sir?

NELSON: Yes, ma'am, that is.

VAN SUSTEREN: All right. Now, in filing your amendment, have you had any conversation with the state attorney general, McCollum, or with anyone in his office? Are you working together in any form, even a -- you know, a fax or a tweet back and forth?

NELSON: We have not tweeted back and forth. We've discussed the amendment last Friday, and we also had them in there this morning to go over how the lawsuit will match up with what is already in the court system today.

VAN SUSTEREN: How likely is it that this will become law and become law prior to this lawsuit going through the federal system in Florida, because they is a scheduling order and scheduling of filings of pleadings through mid-September? Does this Florida statute have any likelihood of passing, and when?

NELSON: I think so, yes, ma'am. And I think because our session ends the last Friday in April, I would say we've got another two weeks to go. I feel pretty confident we will get this bill passed out before the end of session.

VAN SUSTEREN: Do you have a Republican legislature in Florida or a Democrat?

NELSON: It is a Republican legislature.

VAN SUSTEREN: Do you have support from your colleagues?

NELSON: Yes, I think everybody has been supportive. We have the Florida health care freedom act, which is kind of the impetus of this. We saw the bill coming down from D.C., and they started out with that act, and now we are moving into OK, because this could go into September before we get in suit settled, we thought this might be another avenue to add other people into the lawsuit so that we have additional people supporting this movement.

VAN SUSTEREN: Sir, thank you very much.

NELSON: Thank you for having me on, Greta.

VAN SUSTEREN: Former solicitor general Charles Fried served under President Reagan and he calls the health care lawsuits again the federal government "nonsense." Why? He joins us live. Good evening, sir.


VAN SUSTEREN: I guess I should add you are a Republican and served in the Reagan Justice Department, you are a President Obama supporter and I assume voted for President Obama, is that correct, sir?

FRIED: I don't know whether I'm a President Obama supporter, but I did vote for him because I couldn't vote for Sarah Palin.

VAN SUSTEREN: You have said this lawsuit in Florida is ridiculous. Why?

FRIED: That's correct, it is ridiculous, because, first of all they say that they are going to pass a statute which will exempt Florida citizens from the reach of the act. If the act is unconstitutional you don't need it. And if the act is constitutional, it is useless, because we fought a civil war about that. State legislatures can't just bow out of the constitutional federal statute.

So that's nonsense, and I think any serious person knows that.

So, the question is, is it constitutional? And it seems to me, though there are a lot of things to object in this, and I would be the first to say so, the constitution is not one of them. If you don't like it, repeal it or amendment it. But don't ask the courts to do the job for you, because they won't.

VAN SUSTEREN: Well, a couple of things. You and I both practiced law maybe you have more certainty than I do, but courts have oftentimes surprised me. The Supreme Court has oftentimes issued decisions that have surprised me.

The issue that will confront the federal judge, and the Supreme Court if it goes on, is whether or not the Commerce Clause gives the federal government the power to do this. Is this a simple way to look at it?

FRIED: Yes, it's a very good way to look at.

VAN SUSTEREN: And does the constitution in your opinion, sir, enable them?

FRIED: It certainly does. The statute which I have front of me, I bothered to read it, says that the health insurance industry is an $854 billion dollar industry. That sounds like commerce.

The Supreme Court just five years ago with Justice Scalia in the majority said that it is all right under the Commerce Clause to make it illegal for California for residents in California to grow pot for their own use, because that has affect on interstate commerce.

Well, if that has affect on interstate commerce, what happens in an $854 billion national industry certainly does.

VAN SUSTEREN: Is there any possibility, in your mind, or any thought that you could be wrong?

FRIED: Well, I suppose I could. But I'll tell you what, I would be happy to come on this program and eat a hat which I bought in Australia last month made of kangaroo skin.


VAN SUSTEREN: Hang on to that hat. I don't know if you are going to win or lose. The video from it will spike the ratings, so do not do anything with that hat.


FRIED: Greta, what are you going to do if they come out the way I say they will?

VAN SUSTEREN: See, this is where I differ from you. I don't know how they are going to come out on this. I don't know. I think this is one of those cases where it depends on who the judge is and almost the luck of the draw.

There are so many cases surprise me, whether it is Gore vs. Bush, people who were uncertain about that, there are so many five-four decisions. I have so many times walked into the courtroom and thought something was going to be decided one way and walked out hearing something very different. I wouldn't daresay this either way.

FRIED: I daresay that, because I looked at that 2005 lawsuit about the pot in California. If somebody growing pot in their basement is interstate commerce and Scalia said so, I don't know where you are going to get five votes the other way.

VAN SUSTEREN: Except I've seen the Supreme Court reverse themselves. The most incredible landmark decision Plessy vs. Ferguson, who would have thought that. It was valid law for 70 years before Supreme Court some wisdom.

FRIED: Greta, this was five years ago, and Scalia was in the majority.

VAN SUSTEREN: All I can say is, sir, I have no idea what is going to happen. But hang on to that hat.

FRIED: I will, I value it.


VAN SUSTEREN: All right, thank you sir. Good luck sir.

FRIED: Bye-bye.

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