Is the 'Individual Mandate' Constitutional?

This is a rush transcript from "The Five," November 14, 2011. This copy may not be in its final form and may be updated.

ERIC BOLLING, CO-HOST: Right to our top story today. The Supreme Court announced that it will hear the Obamacare case. Twenty-six states brought on that suit. And the big question is: Is the individual mandate constitutional?

And if public opinion is any indication, Obamacare could be in big trouble. A Rasmussen poll out today says 55 percent of Americans want it repealed. Only 37 percent don't.

Kimberly, let's go through the process right now. So, the Supreme Court is going to hear it. What's next? How do the judges fall? It's 5- 4, what do you think?

KIMBERLY GUILFOYLE, CO-HOST: Right. I mean, that's what the smart money is on, 5-4. But keep in mind, it could go 5-4 either way. And especially when you look at the most recent jurisprudence on this, where you have two justices from two different appellate courts ruling, conservative justices, and backing up Obamacare.

So, this one is anybody's to win. I mean, it's not certain which way they're going to go whatsoever. But at issue is whether or not this individual mandate should be struck down, whether or not you're able to compel an individual, you know, an American, U.S. citizen, to actually purchase healthcare insurance. If they fail to do so, can you penalize them?

BOLLING: Right. Bob, the pushback is what Kimberly points out. The Commerce Clause in the Constitution, whether or not that should be applied in the case where the government is telling you to buy a product.

BOB BECKEL, CO-HOST: But that was -- if you read what the conservative justice, the appellate court said, that's what they made their case on, on the Commerce Clause. Now, if they go by the law and the precedent, there is no doubt in my mind that this Obama healthcare law will be made the law of the land. The Supreme Court will agree to it, or -- if they do their job. If they do --

BOLLING: Curiosity, what precedent -- you are citing a precedent. I don't see any precedent.

BECKEL: Well, if you look at the appellate court decisions, they've said a number of things about the Commerce Clause. They believe it works.

But Supreme Court can do what they did with Gore v. Bush, and become hacks and play the political game. And basically make a decision that had nothing to do with the law and had everything to do with their politics.

BOLLING: Gore versus Bush versus --

DANA PERINO, CO-HOST: Well, that didn't take long.

BOLLING: Right. The Commerce Clause -- application of Commerce Clause to the government, telling every American to buy -- they have to buy a product, demanding you buy something.

PERINO: So, this is the most amount of states that have ever come together to challenge a federal law, 26 states. There's also a state of Virginia lawsuit that could be combined to be heard. One thing is that public opinion of this law has gotten worse over time.

You remember Vice President Biden said the more people learn about it, the more they're going to like it. That's not true. The White House doesn't talk about this bill anymore. They prefer they don't hear anything about it.

Last week in Ohio when there was a vote, 88 counties, all counties voted against the individual mandate. But the problem for people out there who don't like it is that public opinion doesn't matter when it comes to the Supreme Court.

BOLLING: Excuse me.

PERINO: The reason that the question is being asked is not just because of a precedent, it's because there's a division amongst the courts.

That's why the Supreme Court is going to take it up.

BOLLING: Can we talk about the National Federation of Independent Businesses is also suing the Obama administration on the grounds that the constitutionality of the law far exceeds anything that they see, they feel is in this book right here.

What do you think when the job creators are somewhere around 70 percent of all new jobs in America thinks this is unconstitutional and will hurt their business.

BRIAN KILMEADE, CO-HOST: Well, it's interesting. I go back to the 55 percent you have in your open. Fifty-five percent of the country right now wants to repeal according to the Rasmussen poll.

But I believe President Obama can't lose. Here's why -- it's very unpopular. The stat read is very unpopular. If it's rejected, sentiment goes his way. People will go, this poor guy passed a massive health care bill but those bad Republicans don't.

Now, if it gets rejected, it's better for the country and the economy.

That's good. But for President Obama, he becomes a sympathetic figure.

If does get repealed within the Supreme Court, Bob, then he wins. And he won on every level.

BECKEL: Let me say, I'm not going to say good point yet. The fact of the matter is, if this is done on the law, this may be like Brown versus Board of Education. I would not be surprised to be a unanimous court support this law, because it ought to support it. And if they don't, they are playing politics, like I said. I know Dana didn't like it.

PERINO: You're setting it up. This is what you are going to see tomorrow morning. They're already -- both sides, the right and the left, is going to set it up that whatever the decision is, it's going to either be absolutely right or absolutely illegitimate. And the debate is going to rage on.

BOLLING: I'll tell you what the more -- at least one of the big debates is going to be -- let's fast forward. They are going to hear original arguments, opening arguments in the spring. It may be decided by 2012.

If Bob is right and Mitt Romney is the GOP representative, boy, this is going to be so hard -- so hard -- for him to deal with. Right and smack dab in the middle --

BECKEL: And plus the fact if Republicans -- if it does -- if they do hack out and they go against it for political reasons because they're not supposed to look at polls by the way. And I wouldn't look at that poll particularly, but with all due respect to Rasmussen. But the fact of the matter, the Republicans are going to be left with this dilemma.

There are still 40 million people uninsured in America. Now, what are you going to do about it?

BOLLING: All right. We have another dilemma. President Obama for the second time in a couple of months has called Americans -- has called Americans lazy. Take a listen to this.


PRESIDENT BARACK OBAMA: We have been a little bit lazy, I think, over the last a couple of decades. We've kind of taken for granted, well, people want to come here and we aren't out there hungry selling America and trying to attract new businesses into America.

DONALD TRUMP, TRUMP ORGANIZATION: My take on that is it's disgusting. He allows other countries to manipulate currencies and make it impossible for to us do business and then he calls this country lazy. I think it's disgusting.


BECKEL: You know what's disgusting is you guys put that dude on the air in the morning.

KILMEADE: He's fantastic guest.


BECKEL: He's actually not a bad guy, but he knows nothing about what he was talking about.

KILMEADE: But I will say this, the fact that the president of the United States has called us soft, we've lost our competitive edge and now, we're called lazy. To me, this has got to be the guy who addressed the Jets at halftime in the Patriot game last night because they came out so flat. He's trying desperately to flatten out our country and diffuse us and get us off our high horse.

Why is he so determined to bring us down?

BECKEL: Brian, as usual, we take this out of context here. And what he was talking about was business. He said we've gotten somewhat lazy.


BECKEL: And he said we haven't gotten and promoted United States business.

PERINO: All right. Like the Keystone pipeline.

BOLLING: Who is being lazy? What do you mean American businesses have been lazy? I'm trying to figure what he means.

BECKEL: I think --


BECKEL: I agree with it. I think we've all gotten lazy.

BOLLING: He is an apologist. He's apologized to Muslims in Cairo in June of 2009.


BOLLING: He apologized to the French about the way Americans look at Europeans.

BECKEL: Well, that was a disgrace (ph).



BECKEL: I wouldn't apologize to the French for anything.

GUILFOYLE: They should apologize to us.

KILMEADE: Yes, for eating snails. Whose idea was put to --


BECKEL: -- Frenchmen in the world.

PERINO: He says that it's the last two decades. The last two decades would include the Clinton period which I thought was the Garden of Eden when it comes to businesses.

President Obama has his jobs council that's made of lots of different people including G.E.'s head. I don't whether he's not listening to them or what. But this is the second time President Obama has said something like this. To me, that means they have done some sort of research on their left and that this language works.

The business owners that I talk to last week, the small business owners, they would absolutely be offended and insulted.

BOLLING: Blame anything. Blame everyone. It's -- Americans are lazy. Technology is killing jobs in America.

BECKEL: Now, you're --


BOLLING: Everyone except the real culprit, which is over-regulating and overtaxing.

BECKEL: Oh, come on. Get out of here.

GUILFOYLE: Well, listen, this is sort of his approach. I agree with Dana that probably he is getting advice that this some kind of rhetoric that's going to work. I don't get that because, to me, I think this is going to anger people, stirring the pot. He shouldn't use that kind of language.

However, it's like a parenting approach. This is the way he thinks that he's going to motivate the people. OK, kids we want to be emancipated. We don't want that kind of parenting.

BOLLING: Reverse psychology.


KILMEADE: You're not going to be on time for the show, Kimberly. I'm sure you never know what to wear.


BECKEL: This is what happens when you take American exceptionalism to the nth degree here. This is in direct relationship to the multinational corporation of the United States who got overseas and exported jobs. And, yes, they've gotten lazy by getting jobs back here because they don't care about American jobs.


BECKEL: Exactly. That was a business conversation.

GUILFOYLE: We're not a lazy country.

BOLLING: What do you mean lazy?

BECKEL: I would say, if you take a company overseas to get cheap labor and keep your taxes, your profits over there.

BOLLING: It's not lazy. It's good business.

BECKEL: Oh, that's good business. I consider it anti-American.

PERINO: Within the next few days, I would argue that when it comes to an economic topic, you will argue that globalization is the reason that we're not doing --

BECKEL: Well, part of that is true.

PERINO: Well, they tried to have it both ways.

BOLLING: The reason for no global warming is laziness.

BECKEL: No, that's you and Galileo --


PERINO: Global warming?

BOLLING: We're going to have to leave it there.

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