Michigan Attorney General Gets Expert Backing in Health Care Lawsuit

This is a rush transcript from "On the Record," April 8, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Michigan Attorney General Mike Cox is locking horns with his state's governor, Jennifer Granholm. He is suing the federal government, and the governor is, of course, opposing him.

Well, the attorney general just got some back-up. Earlier, Attorney General Cox went "On the Record."


VAN SUSTEREN: Nice to see you, sir.


VAN SUSTEREN: I'm very well. So you're having this little heated dispute with Governor Granholm who is the governor of the great state of Michigan. But I understand now you've got at least a law professor on your side that you are encouraging the media to talk to. Who's the law professor and what's he saying?

COX: It's Professor Randy Barnett from your old school, Georgetown, who's saying that this is a very strong lawsuit, that never before has any court interpreted the commerce clause, the ability for Congress to you must buy a product, that the commerce clause has always been about regulating economic activity. It's never been about telling people they have to buy a private product, and if they don't, they get fined. And I think, intuitively, Americans understand that and that it's -- not only is it unconstitutional, but that it's unfair and un-American.

VAN SUSTEREN: You know, I don't know if you're going to win or lose. But there's one thing that's plain to me, this is not going to be an expensive lawsuit at all. It's going to be done only on briefs.

COX: Right.

VAN SUSTEREN: And one assistant attorney general from one of the states (INAUDIBLE) is going to write this. Everyone else is going to sign on and the federal government will respond. And it's not going to take an enormous amount of time, and it's going to at least give us some idea before the law is implemented in full whether or not this is constitutional or not.

COX: Greta, you're absolutely right. You know, there's now 18 of us that are in the northern district of Florida, so we're pooling our resources. This is really going to be about looking at the language of the statute that was passed last week and say, Does this pass constitutional muster? There won't be any need for any factual hearings. It's all about what the statute says and whether that's permissible under the interstate commerce clause or under Article 1 of the Constitution.

And I think it's a very defined fight, and I think we'll get to the Supreme Court. And I think Justice Kennedy will make the difference. And I think ultimately, he's going to say that Congress can regulate producers and people who go in the marketplace to sell things, but they can't tell a would-be buyer, You have to buy something. And I think it's something that I've seen on your show. I certainly have heard it.

You know, I think a good way to approach this is when President Bush was president and there was a Republican Congress, that if the House and the Senate and the president signed a bill saying every American, as a part of being an American, has to buy a .38 special, people would be outraged and say, How could we do this? How can government tell a regular citizen to do this?

And this suit is really no different than that. Here we're tell -- the Congress is telling citizens that if you don't buy this product from a private company, we're going to come after you and we're going to fine you.

VAN SUSTEREN: All right, now, our governor -- the two of you must really be locking horns because she has volunteered or has at least made some contact with Attorney General Holder to help the federal government...

COX: Right.

VAN SUSTEREN: ... fight this lawsuit that you are filing. What's your relationship like with her? Have you spoken to her? Have your office, have your staffs spoken to each other? Is this a rather collegial disagreement, or are you guys at each other's throats?

COX: Well, I don't know that we're at each other's throat. In fact, you touched on it when you interviewed her last week. In Michigan, I've been a crusader in going after our biggest insurance companies for abuses of consumers. But here the case is clearly -- you know, between the governor and I -- as you know, Greta, she's the former attorney general, was my immediate predecessor. We just view this differently from our approach to constitutional law. And for me and for the lawyers I've joined with, it's pretty clear that this is a dramatic -- a dramatic reach, dramatic overstep compared to what Congress has done before.

VAN SUSTEREN: All right, now, you are running for governor in a...

COX: Right.

VAN SUSTEREN: ... rather hotly contested race.

COX: Right.

VAN SUSTEREN: I also understand that you're about to hop on the "tea party express" bus, I think it's over in Esconava (ph), Michigan.

COX: Right.

VAN SUSTEREN: Why are you doing that?

COX: Well, they asked me to come along and talk about the lawsuit. I'm not going there as a politician. I'm going there as the attorney general and talking about protecting people's liberties and protecting people from this gross intrusion by Congress. You know...

VAN SUSTEREN: Are you riding the bus?

COX: No, no. But I'll be meeting them at different stops all across Michigan. And I have to tell you, it isn't really a partisan venture because everywhere I go now -- and I go in a drug store or go in a gas station to get a Diet Coke and a Twix bar, people come up and tell me, I'm a Democrat and I'm afraid of this. I'm afraid of what government's doing in grabbing out and infringing on our freedoms.

And so I welcome the chance to talk to the tea party folks because they're concerned about the drift that we have in our form of government. They're concerned about a federal government that's reaching in and trying to take the place of states. They're concerned about the idea of individual liberties. And there was a time, and I think that time's coming back, where Republicans and Democrats shared that view that we should be careful about overly intrusive federal government.

VAN SUSTEREN: Well, we're going to be watching this case very closely because...

COX: Right.

VAN SUSTEREN: ... we're all going to learn an awful lot about the commerce clause in the next few weeks and months to come.

COX: Right.

VAN SUSTEREN: Nice to see you. And I'm sure -- I hope you'll come back as this lawsuit proceeds.

COX: Absolutely, Greta. And I think it's great what you're doing. You're helping people understand the constitutional law. And I can't think of a better service.

VAN SUSTEREN: I'm just trying to understand it myself because these are untested waters. So like I said, I'm -- I'm getting an education, as well, so we'll see.

COX: Good. Thank you. Have a great night.

VAN SUSTEREN: Thank you.


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