This is a rush transcript from "On the Record," January 26, 2010. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: Senator Orrin Hatch says President Obama and the Democrats have an arrogance of power and are trying to do something unconstitutional. Senator Hatch went "On the Record."
(BEGIN VIDEOTAPE)
VAN SUSTEREN: Senator, nice to see you, sir.
SEN. ORRIN HATCH, R - UTAH: Well, nice to see you.
VAN SUSTEREN: Senator, there's, of course, the big issue of whether the health care bill will get passed ever and signed by the president. But jumping ahead, assuming that for some reason that it does get passed, even though I know that you're fighting against passing this particular bill, does it have constitutional issues down the road that we ought to be focusing on?
HATCH: Well, it does have serious constitutional issues. Number one, this will be the first time in history that individual citizens in this country will be forced to buy something they may not want. And they may be forced to buy a federal version of something they don't want. You know, the commerce clause has always been used to involve matters involving activities that substantially affect interstate commerce. Well, you can't justify telling people that they have to buy something they don't want.
VAN SUSTEREN: Is there any statute that you know of or legislation where the Congress has told people they must buy something, or anything remotely similar that we can gage this particular legislation against that?
HATCH: They cite everybody has to buy automobile insurance. Well, that is not true. You don't have to drive a car. You can choose not to drive a car. If you drive a car, yes, the state requires you to buy auto insurance. But that's the state, that's not the federal government.
Watch Greta's interview with Sen. Hatch
The federal government -- liberty depends upon limitations on the federal government. And that's why the commerce clause has never been used to go so far as to tell people they have to buy something they don't want.
VAN SUSTEREN: I thought with automobile the justification for the insurance is driving is a privilege, not a right, which is why states are able to do that.
HATCH: You said it better than I did. Driving is a privilege. It is a state run situation. If the state requires to you buy automobile insurance, you have to do it. But even then you don't have to drive. You could say I'm not going to buy it. And you have that right as a citizen, that's one of your liberties that you can assert.
If the Congress of the United States mandates that you have to buy insurance policy, health insurance policy, that will be the first time in history the Congress has gone that far.
If they can force to you buy a health policy that they designed or a health policy period, then they can force to you do anything. There would be no limitation on Congress as to what they can for the citizens to do. And the constitution just doesn't give that type of leeway.
VAN SUSTEREN: And you wrote an op-ed piece that appeared in the "L.A. Times" where I say it, and you also talked about the tax issue, whether or not there can be a disparity in the excise tax and whether that would be a possible challenge should this bill get passed.
HATCH: Well, the excise taxes have to be applied uniformly.
VAN SUSTEREN: By the constitution?
HATCH: By the constitution and by the interpretations ever sense by the Supreme Court. In this particular case, they provide an ability in the bureaucrats to determine about 17 states that might not be as required to pay that Cadillac insurance, and that would be a violation of constitution which requires all excise taxes to be uniform.
VAN SUSTEREN: I knew coming here what your positions were on those constitutional issues.
HATCH: There is other, too.
VAN SUSTEREN: OK, go ahead.
HATCH: There are some others, but let me just mention one other, and that is the cornhusker deal. In other words, they made a deal with the senator from Nebraska that Nebraska would never have to pay its share of the Medicaid costs while every other state does, which means that all 49 other states will have to pay Nebraska's share.
That isn't right either, because that again has to be uniform and it just violates the constitution. It's filled with anti-constitutional principles.
And, frankly, I hope the House does not take the Senate bill. They could and we would be saddled with that doggone thing. I don't think they will. I think there are better thinkers over there about doing that, but if they did we would be stuck with some really unconstitutional approaches towards health care.
VAN SUSTEREN: The reason I was sort of curious, and I've read your op-ed piece, is in the event that you are right on these constitutional issues, it would be enormously difficult or we would have quite a problem in our country should the legislation be passed and then declared unconstitutional.
So it seems to me that those issues to the extent they can be resolved before we get a bill implemented would be quite wise.
HATCH: It would be. And frankly, there are legal experts who differ with me on these items. But people are more and more coming to the conclusion that I'm right on them and that we should not go that far as to impose mandatorily on people healthcare principles or healthcare costs they don't want to pay.
VAN SUSTEREN: We can't get an advisory opinion on the United States Supreme Court. They don't do that kind of thing, so we are treading on new territory on this particular issue.
HATCH: You summed that up well. The Supreme Court does not give advisory opinions, and that's been established law for a long time.
VAN SUSTEREN: All right, so where are we on the health care bill today? If you are a betting man, and you're probably not a betting man, but where is this bill? Is it going to get passed or not?
HATCH: I don't think it is. And frankly the Democrats are saying let's go back and strip it down and start working on it. You can't work on something that has a bad foundation. You can't build a house on a bad foundation. You should just tear down what you have and start over.
And if they would start over on a step-by-step basis, I think there are a number of issues that we could have agreement on where we would work together on those issues.
Right now the Republicans are very upset with what they've tried to foist off on American people. And there isn't a lot of desire to work with them on -- especially on what they've done so far.
But if we started over, went on a step-by-step basis, really worked on things we could agree on, I think we could come up with a healthcare bill that would work pretty well.
VAN SUSTEREN: If the Republican senators are upset, give me the behind-the-scenes color. You walk down the hall and you see for instance Majority Leader Harry Reid. What do you say to him? "Nice day," or "Lousy bill" or what do you say to him?
HATCH: I'm very friendly to Harry and I'm very friendly to everybody else. You can get really irritated with what they do, but that doesn't necessarily mean you attack them personally.
VAN SUSTEREN: But don't you want to collar them into a corner and say let's talk about this? How does it work?
HATCH: I've told a number of them how stupid their approach is.
VAN SUSTEREN: You use the word "stupid"?
(LAUGHTER)
HATCH: Of course. I tell them how ridiculous and stupid some of their approaches are.
VAN SUSTEREN: Their response?
HATCH: They laugh and say tell us how to do it better. I would love to do that.
There are a lot of health care bills that I've worked on that are now law that worked, and I've worked on them in a bipartisan way with Kennedy, with Harkin, with Dodd, with Henry Waxman. Take the act that created the modern generic drug industry, that was Henry Waxman, one of the most liberal people in the whole Congress who I happened to like.
And I like all of the others too, and I can say I would be happy to work with them. But the health committee bill without any Republican input, the Pelosi bill without any Republican input, the Reid bill without any Republican input, including without any real Democrat input.
And then they come to you and say, take it or leave it. That isn't the way you do legislation around here. And it was an arrogance of power. They knew they had 60 votes and felt they could get together 60 votes, which they did, and they didn't need Republicans.
Well, on something that involves one-sixth of the American economy that is this costly and this important and affects every living American, if you pass something on a strictly partisan basis, you know it is a lousy bill.
The Chip bill, we had to fight really hard. It took two years to take care of the Child Health Insurance Program, that was a Hatch-Kennedy bill. And when we got through we had close to 80 votes. It's was a bipartisan vote. Everybody said this is a really good bill and it turned out to be a real good bill as originally written. Now they've distorted that bill.
Because what they want to do is get to a single payer system, and that is socialized medicine, really, by having the federal government dominate everything in health care. If we do that, we have to be the stupidest people on earth. I use that word again, because, in all honestly, we know the federal government and the bureaucrats here in Washington are not going to handle it as well as states.
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