Transcript: David Rivkin live with Laura Ingraham

(Original air date: February 1, 2011)

Ingraham: Really good news yesterday in Federal District Court in Florida.  Joining us now is lead counsel for the successful ObamaCare challenge, David Rivkin.  David, great to talk to you.

Rivkin: Good to be here, Laura, and thanks very much.

Ingraham: Are you guilty of any of the isms that George Bush was talking about yesterday?

Rivkin: No, I don’t think so.

Ingraham: Nativism, populism, protectionism. All the isms are apparently what’s really the problem in the United States. Anyway, I don’t want to drag you into that, but David, let’s talk about this Florida case.  I loved how Judge Vinson not only, of course, did the right thing on the Commerce Clause, saying “You can’t do this. The Constitution is meaningless if you say that requiring people to buy insurance is permitted under the Commerce Clause.”  But then he went a step further and quotes Obama back to the Justice Department!

Rivkin: Yes, it’s an excellent opinion, Laura, and I really think it takes us to another level. It’s a 78-page opinion.  It really provides an important legal baseline for the appeals court to take into account. It was beautifully argued, extremely well written, and goes, as you point out, well beyond the Commerce Clause, and has an excellent analysis of why Justice’s [Justice Department’s] arguments regarding the so-called Necessary and Proper Clause — which I believe is going to be the most consequential legal argument down the road — why that clause does not support the mandate.

Ingraham: Let’s talk about what’s next because now we’ve had — and correct me if I’m wrong — two district courts rule that the [individual] mandate is unconstitutional and one uphold it.  Is that correct?

Rivkin: Two, actually, have upheld it.  One in Virginia in the Liberty University case upheld the mandate, and the second one, which is probably the one you are thinking about, in Detroit — the Thomas Moore case.

Ingraham: So right now is there any chance this could get fast-tracked to the Supreme Court or are they holding back on that?

Rivkin: DOJ is holding back on that.  Virginia has asked the DOJ for this when their case was decided in December.  The DOJ has said no and the case is on schedule in the Fourth Circuit.  In all likelihood, the Obama Administration is not interested in fast-tracking this case.  It would have been ideal, of course, but they would like to run out the clock and delay the presentation of this case to the Supreme Court as much as possible.  So I personally think what we’re going to get is hopefully an expedited consideration in the Eleventh Circuit, and we’ll be done with it — again, ideally — by late fall of this year, and the case will be sort-worthy and should be considered by the Supreme Court early in 2012 with the argument in January or February and a decision probably in June of next year.

Ingraham: Let’s talk about where you think this could possibly go in the court.  I clerked on the court and predicting what’s going to happen there is always a fool’s errand, but given what you know about the justices and their bedrock views on the Commerce Clause — if you had to guess right now how it would go down, how would it go down?

Rivkin: I’m quite hopeful — and again we’re speculating, as you said — it would be a 5-4 decision in our favor, and the reason for that is Justice Kennedy is the swing vote [who] cares very deeply about federalism.  In fact, I would say this is the one area where he’s been the leading voice in the court.  If you look at his opinions going back to the Lopez case — a very important case affirming limitations of the Commerce Clause — which struck down the Gun-Free School Zones Act.  He wrote a really strong concurrence that in a moving fashion emphasized the uniqueness of the dual sovereignty system with federal government exercising limited and enumerated powers and the states exercising general police powers.  He called it the most distinctive feature of American constitutionalism. And if you look at his decision in the Comstock case, which came out in May of last year, he has a much briefer concurrence but echoes very much same themes.  So this is an issue, Laura, which Kennedy feels very strongly about.

Ingraham: Well all I know is that all these folks out there who maybe haven’t focused on the judicial branch and the judicial appointments, we are reminded once again how important it is for Republicans to win the presidency and to have that power of appointment again at the Supreme Court, because heaven forbid something happens and we lose one of these conservative justices on the court, this is all over.

Rivkin: That is correct.  I’m hopeful that all of the conservative justices are in good health and the balance in the court will not change.  But you’re absolutely right.  It is enormously consequential.  If, of course, one of the more liberal justices retires and President Obama has another appointment, it would not change the balance.  But if one of the conservative justices for whatever reason steps down, it would fundamentally change the equation.

Listen to the podcast here: David Rivkin live with Laura Ingraham

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