Legal Challenges Await Health Care Bill

This is a rush transcript from "On the Record," March 22, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: The health care fight is going to the courts. Attorneys general in at least 14 states plan to sue the federal government. One of them is Virginia attorney general Ken Cuccinelli. Nice to see you, sir.


VAN SUSTEREN: Welcome back.

CUCCINELLI: Glad to be here, although...

VAN SUSTEREN: All right...

CUCCINELLI: ... I wish it were better circumstances.

VAN SUSTEREN: At 11:15 tomorrow morning, we understand the President of the United States is going to sign the law.


VAN SUSTEREN: When are you going to court?

CUCCINELLI: We'll be in court tomorrow. We'll file in the Eastern district of Virginia, the Richmond division, in the "rocket docket." And we'll be off to the courts to question the constitutionality of the individual mandate in particular.

VAN SUSTEREN: All right, so your pleadings are ready. They're ready to go.

CUCCINELLI: They're already drafted.

VAN SUSTEREN: You've already proofread them?

CUCCINELLI: I've already proofread them, yes, I have.

VAN SUSTEREN: All right, now, what is the allegation? What's the complaint?

CUCCINELLI: Well, this year, Virginia passed what we called the Health Care Freedom Act on a bipartisan basis. It blocks individual mandates for health care for Virginia citizens. Obviously, the individual mandate of the federal bill is in conflict with that, so we will go to court to defend the Virginia statute.

And normally, as you know, the supremacy clause would lead to the federal bill trumping, except when it is not constitutional, and that's where our allegation that the bill is unconstitutional comes in. They have overreached the commerce clause here, and we don't think the commerce clause can support this bill.

VAN SUSTEREN: All right, in order for you to win, you've got to get what aspect declared unconstitutional? Because you have the conflict. The state says, Don't do the mandate.


VAN SUSTEREN: The fed says, Do the mandate. You've got to declare this unconstitutional, or the judge does...


VAN SUSTEREN: ... in order to get the state law to trump the federal.


VAN SUSTEREN: So what's the unconstitutional aspect?

CUCCINELLI: The unconstitutional aspect is that the individual mandate on Americans that they must buy health insurance or face penalties overreaches the authority of the Congress under the commerce clause. Buying health insurance can be said to be an act in commerce. Not buying health insurance, doing nothing, is not an act in commerce. And it has never before been included in a federal law to mandate that individual citizens buy something from some other entity, another citizen, another company.

VAN SUSTEREN: One of the problems I foresee you having is the idea of what affects the commerce or not.


VAN SUSTEREN: It is so broad. It's such -- I mean, it's such a stretch. I mean, the most unusual things are said to affect commerce. I mean, you could run into a judge who could say, OK, well, the fact that we may have to get medical supplies from another -- another state to take care of your ill or your sick or your injured in Virginia may affect interstate commerce, so for that reason you lose.

CUCCINELLI: There are no cases directly on point with what we're dealing with. Otherwise, this wouldn't be such an open question. But in '95, I want to say, with the Lopez (ph) case and 2000 in Morrison -- I may be switching my years there -- the Supreme Court clearly said there are limits to the commerce clause. Even the dissents in one of those said there are limit to the commerce clause. If all you have to do is be alive and breathing to be regulatable under the commerce clause, there are no limits. So the Supreme Court has said there are limits.

And like I said, we've never before had a situation where Congress has ordered Americans, effectively, to buy something. And it'll be our position that this is beyond that scope. And we're going to have some debate about that. If it were an easy question, perhaps even the folks who passed the bill yesterday wouldn't have done so.

VAN SUSTEREN: It seems to me that you're -- out of all the states that I've seen so far, you are in (INAUDIBLE) the strongest argument because you have this particular Virginia statute.


VAN SUSTEREN: I mean, is there any other state that has a statute like that pending?

CUCCINELLI: I understand -- pending? Absolutely.

VAN SUSTEREN: I mean that has enacted. I mean enacted.

CUCCINELLI: I am told that Idaho has passed a law to instruct their AG to sue. I'm not sure if they -- if it includes the anti-mandate provision that gives us standing. And that standing debate, ripeness debate, those sorts of things that happen before you get to the main event, are a big challenge in constitutional cases. And Virginia is in an excellent position, better than many others, to get over that first hurdle and get to the contest about the commerce clause.

VAN SUSTEREN: Can we expect a filing by noon, that soon?

CUCCINELLI: I don't think noon is unreasonable, yes, if they actually sign it at 11:15.

VAN SUSTEREN: So you'll be watching from your office, watching, then you get a signal, OK, it's good to go.

CUCCINELLI: Something like that.

VAN SUSTEREN: Essentially.

CUCCINELLI: Other people will be watching, but yes. And we are more or less across the street. We're a block from the courthouse, so...

VAN SUSTEREN: Filing's not a problem.

CUCCINELLI: Filing is not a problem. Weather won't even be a problem, so...

VAN SUSTEREN: Indeed. Thank you, sir. Good luck. And of course, we'll be following this very closely.

CUCCINELLI: Well, good luck we can use. Thank you, Greta.

VAN SUSTEREN: Thank you, sir.

South Carolina attorney general Henry McMaster also plans to sue the federal government. He joins us on the phone. Good evening, sir.

HENRY MCMASTER, SOUTH CAROLINA ATTORNEY GENERAL (Via telephone): Good evening. How are you?

VAN SUSTEREN: I'm very well. Now, Virginia has a state statute that says that you can't have this mandate, you can't force people to buy health insurance. What do you have in your state that enables you to think that you might have any sort of success in suing the federal government over this health care statute?

MCMASTER: Well, that -- that refers to the standing, and we are in the process of voting on one of those now. It's being considered. And I understand there are a lot of other states that are considering the same thing. But still, even -- because of this bill, there are a lot of things that all the states will have to do to accommodate the bill, and we believe that that gives us standing.

The big question is, what does the Congress think gives them the authority to require people all over the country to buy health insurance if they don't want to buy it? There's nothing in the Constitution that allows that, and the 10th Amendment expressly prohibits it.

VAN SUSTEREN: All right, well, so the attorney general from Virginia is going to file tomorrow morning after 11:15, could even be by noon, after the president signs, if they're going to go to court. When do you intend to file a lawsuit?

MCMASTER: The same time. There are -- we now have, we think, about 10 state attorneys general, and there may be a number more that will join with us, and we'll be filing in Florida. Attorney General Bill McCollum is in Florida, and we're working with him and there'll be a group of us filing with him. We understand the president plans to sign the bill at 11:15. We'll be filing shortly after that.

VAN SUSTEREN: All right, now, I've got a list here that has Florida, South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, North Dakota, South Dakota, Alabama, Michigan, Virginia, Idaho and Colorado. Have you been on conference calls and talking to these, or people who work in your office? I mean, how much of a coordinated effort is it among the states that so far have threatened to file suit?

MCMASTER: It's highly coordinated. We've had a number of conference calls. And I think you do have the right list. All of those have not said for sure whether they won't -- whether they will be able to do it or not. There are some others that are interested, as well. We think we'll have at least 10, and there may be more than that.

VAN SUSTEREN: Why aren't you filing in South Carolina? Why are you filing in Florida? What gives you the position to go there?

MCMASTER: Well, that's just the way it worked out. It could have been in any federal district court in any of the states, but all things considered, we felt that was the best place to do it. And of course, Attorney General Bill McCollum is working on it. And we are ready to go. We'll be ready right after the president signs the bill.

VAN SUSTEREN: Do you have any idea -- is there a cost associated with this to South Carolina? Is that -- I mean, have you been able to quantify that, this health care legislation?

MCMASTER: You mean the cost of maintaining the action or the impact it'll have on the state?

VAN SUSTEREN: Yes. No. The impact, the impact on the state.

MCMASTER: Oh, the impact on the state will be enormous. We can't afford this. But again, that's not the real question. The question is for us, for those attorneys general who are joining together here in our effort that'll be filed in Florida, the question is simply one of the Constitution. The Constitution just does not allow this.

The Constitution gives the federal government specific express powers. It doesn't have any other than those, and the 10th Amendment says so. So this is really off the scale. We've never seen anything like this. And of course, we're all concerned that once we go down this unconstitutional road, we don't know where we're going to end up. We don't know what'll be next. But this is bad enough, and so that's why we're raising the question. It is because it is unconstitutional. It is an assault on the state sovereignty and the liberty of the people, and it's got to be stopped.

VAN SUSTEREN: Attorney General, thank you, sir. And of course, we'll be following it, so we hope'll you come back, sir, as the case progresses. Thank you, sir.

MCMASTER: Thank you, Greta.

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