Virginia's Case Against 'Obamacare' on Fast Track to Supreme Court?

This is a rush transcript from "On the Record," February 3, 2011. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Senate Majority Leader Harry Reid is watching Virginia very closely. The state's attorney general is knocking on the door of the Supreme Court. He's wasting no time to get a final answer on the constitutionality of the health care law. Yes or no?

Ken Cuccinelli is asking the Supreme Court to take the case now and decide it. Attorney General Ken Cuccinelli went "On the Record."


VAN SUSTEREN: Sir, nice to see you.


VAN SUSTEREN: OK, so you won in the federal court in Richmond, Virginia. And the government is appealing to the fourth circuit. You want to go beyond the fourth circuit and skip to the United States Supreme Court, right?

CUCCINELLI: That's correct.


CUCCINELLI: Well, it is the right thing to do. It is the right thing to do for Virginia. It is the right thing to do for our private businesses, for America this is not a normal case, as you know. There's no witnesses, no transcripts of witness testimony, no documents. This is a pure legal argument that you don't have an opportunity in the appellate courts to refine the record, if you will, and to focus the case, which is something the Supreme Court could been fit from in most cases.

We don't have that here. We are going to have a rerun of the same legal arguments at each level of court. And we now have two courts that have ruled the individual mandate is constitutional and two that have ruled it is not, one of which threw out the entire law.

And so we clearly have a split and a great deal of uncertainty across the country about whether or not this law is going to be enforced in a year and a half or so and massive costs to prepare for the law to be enforced.

VAN SUSTEREN: All right, every time a lawyer wants to do something unusual. You call the other side and you say, look, this makes a lot of sense that we should do this procedure, because it is going to be decided by the Supreme Court any way.

Did you call the Justice Department and say, will you join me and asking the Supreme Court to hear this case and forget the appellate stage?

CUCCINELLI: Yes, we did do that. I started those discussions last October. Shortly after the decision came in Richmond in December. The Department of Justice informed us that they would not join us in a motion to expedite. So then we essentially started the protest of deciding whether or not we would go on our own, and that is what we have decided to do. Obviously, we announced today that we are in the process of making that motion to the Supreme Court.

VAN SUSTEREN: Frankly, I think it is nuts. Because we know it is going to the Supreme Court. You must have said to the justice depth when you called why would you want to waste all this time in the court of appeals doing in? Why don't you join us? Maybe you didn't say that. I would have drilled in and said, join us. Were you forceful and did they give awe explanation why they don't want the Supreme Court to decide it?

CUCCINELLI: They didn't say anything directly, but their public statement was Virginia has its own statute so it needs to go separately the courts, which makes no sense at all. That has nothing to do with the constitutionality of the federal act. And that is the over-arching question that touches on dozens of these cases across the country. It is what you call an excuse.

VAN SUSTEREN: An excuse. Either they don't like you. Sometimes lawyers do things paw they don't like the other side, sometime they are being jerks. Sometimes they think it is the smart thing to do, efficient thing to do, sometimes politically examine expedient. What is your theory why the Justice Department doesn't want to have the Supreme Court to decide it?

CUCCINELLI: Certainly, I've gone out of my way to maintain professional courtesies with the department of justice. And they've acknowledged in their briefs this case is of the utmost importance, meaning the constitutionality of the health care law that's the focus not Virginia's law the constitutionality of the health care law.

So I can only assume for some reason or another they think they going to have a better chance later, or they're just putting off the inevitable able and they think we are going to win and don't want if get there with any alacrity.