The Supreme showdown over 'ObamaCare': A 'microcosm' of the upcoming presidential election

This is a rush transcript from "On the Record," June 8, 2012. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: A suit doesn't just land in the Supreme Court. There are months, even years of battles in the lower courts. Our next two guests have been leading the charge against the health care law, Florida attorney General Pam Bondi and Virginia Attorney General Ken Cuccinelli.

Good evening to both of you.


VAN SUSTEREN: All right, first to you...


VAN SUSTEREN: Good evening, Pam. First to you, Pam. Tell me, your expectation, no doubt, is that it is going to be reversed. But I'm curious, in the event it is not reversed, what plans does Florida have?

BONDI: Well, Greta, I mean, it's going to -- it's going to be a disaster, of course, if it's not. It's going to drive millions of people into subsidized taxpayer federal government regulations and coverage. It's going to be a job killer for millions. And it's -- it's going to be a disaster for Florida. But we are hopeful it will be overturned. We're very hopeful.

And you know, sitting here, thinking about it, Greta, this -- the question of "ObamaCare" is truly a microcosm of the upcoming presidential election, if you think about it. Do we want to live in a federal government-regulated society, or do we want to live in a society of individual liberty and freedom? And that's what it's all about!

VAN SUSTEREN: Attorney General Cuccinelli, if the Supreme Court declares the mandate provision in this very lengthy bill unconstitutional, what happens to the rest of the bill? Because it has many, many other provisions.

CUCCINELLI: The least predictable part of this case is the remedy. The remedy was, what do they do if they find the mandate unconstitutional? Where I can look at some of the case law of five, the five longest-serving Supreme Court justices, and see what they might do on the mandate question, what they would do on the remedy is much more up in the air.

And the oral argument was very helpful in that respect. It really looked like a number of justices were taking strong positions to clear out the whole bill.

Justice Kennedy had a back and forth with Ed Kneedler for the federal government, why Kneedler was trying to say, Look, you take as little as possible, and Justice Kennedy said, You know, I really think that to be respectful of a co-equal branch, Congress, we really need to wipe the whole slate clean, send it back to Congress to start over. And Kneedler argued with him and he finally just said, I don't -- I don't accept your premise.

So there's a strong possibility -- and obviously, it's what Pam and I are hoping for -- that if they find the mandate unconstitutional, they will also rip the whole law out. And then people like Pam and I and a lot of others are going to be watching like hawks to make sure all the pieces come out.

VAN SUSTEREN: You know, I don't know how -- Pam, and I'll put this to you. If the Supreme Court strikes the mandate as unconstitutional, I don't know how the Supreme Court does anything but throw the entire bill out, the entire law out, because, as I recall, there's no -- there's no severability clause, which is something that is routinely put into the statute so that the -- so that the court can strike different parts of it, the rest of the statute will stand.

Am I right that there's no severability clause in it? Because I think that's a killer to the statute, unless the Supreme Court can come up with some, you know, wild idea why it's OK not to put it in.

BONDI: And Greta, more than that, there was a severability clause in the original draft and it was removed. So there is no severability clause. You're absolutely correct.

And you know, what Ken said, regardless of what happens, this debate is long from over. Either we go back to the drawing board and we find a health care system that is legal and ethical and constitutional, or if we don't prevail, then it's more important than ever to elect conservatives into office right now.

VAN SUSTEREN: And what's sort of peculiar is that your -- General Bondi, your -- your case is in the Supreme Court being argued, and yours, General Cuccinelli -- it's in the Supreme Court. You have a separate Virginia one. It's on a little different track. What's different about yours?

CUCCINELLI: Ours is in the 4th circuit. Pam's came out of the 11th circuit. The 4th circuit rejected ours on jurisdictional grounds, which you know means they wouldn't get to the merits. Virginia has a law that is older than the federal law that says no Virginian can be ordered to buy health insurance against their will. And...

VAN SUSTEREN: Older by a day or two, though, we should say...


CUCCINELLI: It's about 13 days.

VAN SUSTEREN: OK. All right.

CUCCINELLI: Yes. But so what?


CUCCINELLI: And it's important...

VAN SUSTEREN: It wasn't like it's some long-standing...

CUCCINELLI: No, no, no, no, no, no.



CUCCINELLI: We were -- there's no question, the legislators were targeting...

VAN SUSTEREN: This bill.

CUCCINELLI: ... the prospects for the federal legislation. And so the Virginia law...

BONDI: Absolutely.

CUCCINELLI: ... was put in place, and what the 4th circuit said is we didn't have the right to defend our law against the unconstitutionality of the federal law. No appellate court, including the Supreme Court, in the history of this country has ever told a state they didn't have the right to defend their own (INAUDIBLE) law.

VAN SUSTEREN: So -- so that's the issue you're asking the Supreme Court to decide in your case?

CUCCINELLI: Yes. What we'd like to see is the Florida case -- obviously, the legislation ruled unconstitutional because of the mandate, and then to apply that ruling to the Virginia case, which would effectively overrule the 4th circuit. Then we tie up everything in a bow right there.

VAN SUSTEREN: All right, and General Bondi, have you cleared the decks because we're sort of sitting on pins and needles, all of us, wondering which way the -- you know, when the decision's going to come down and which way it's going to be. But are you just, like, all on standby, waiting? Because I assume the state can't really -- I mean, it's sort of in limbo right now, what to do.

BONDI: We all are. And Ken and I spoke yesterday. Of course, you know, I think all the states are in limbo, and it's Florida along with 25 other states. And again, we went up there with the best opinion in the country. So we can only hope for the best, Greta. And I know any day now -- but you know what? Regardless, we need finality and we need to move on and we need a resolution to this issue.

VAN SUSTEREN: Well, think we're going to get one very soon, at least by July 1st. It's just when between now and July 1 we don't know.

BONDI: That's right.

VAN SUSTEREN: Thank you, both.

CUCCINELLI: Good to be with you.