you repeat. lou: you're crazy, warner. >> it's official, retired ravens linebacker ray lewis has joined espn. he will appear on monday night countdown, travelling to the cite of the game, sports center, and on the mike and mike show, where i used to work. imus: oh, yeah. what happened there? you realized they subject and got out, didn't you? >> no, someone said the disparaging remarks about him. imus: that's an unlistenable show, i guess they're okay guys, but holy god that show is awful and they're awful. oh, man, that really sucks. warner: well, i was given a choice. imus: and the sports show pretty good, is the one that pat o'brien is on. you ever heard that. warner: no. imus: that's pretty good laugher. [laughter] you know pat o'brien. >> sure. warner: finally, i man, that's it. imus: we're out of time. warner: finally, that's it,

mr. parrot. imus: okay, the mensa meeting is next, and the boy was just here the other day and this song is on the rodeo play list. ♪ ♪ ♪

♪ imus in the morning ♪ >> we're just not buying the headlines. good morning, everyone, i'm charles payne in for stuart. now, here is the big story, if you read the headlines and retail sales, you think that the consumer was back. listen sales up 1.1%, that was more than double what was expected. several banks raising for the quarter and they're on the band wagon. dig deeper and you'll find the

story. take out sales of gasoline and cut the gdp number in half, retail sales number in half, by the way, it was higher in february, gas prices. gas has been around $4 a gallon for most populated areas in this country and also consider this, american households are carrying less debt on record. the bottom line they have cash cash, but are not spending the money. the dow hit the record 7th day in a row. 544 points from 15,000. "varney & company" is about to begin. [ indistinct shouting ] ♪ [ indistinct shouting ] [ male announcer ] time and sales data. split-second stats. [ indistinct shouting ] ♪ it's so close to the options floor... [ indistinct shouting, bell dinging ] ...you'll bust your brain box. ♪ all onhinkorswim from td ameritrade. ♪

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>> the olympics, i would not be surprised if they won this. stuart: really. charles: it's a hot place, you go with the guy who has momentum into the final thing. all right, i may have gotten the country wrong, but the right continent. the first american pope in history, argentina's pope

francis i. over at varney we were making bets who the next pope was going to be. i am going to take a semi victory lap. >> you're right and i was wrong, and an irish catholic and i wasn't serious about that pick, but i do love the fact that he's taken the name st. francis, it's about kindness, and away from the fights in washington or wall street and kindness and bringing the church back to its roots. i cried. charles: i'm not catholic and i had a lump in my throat the size of a watermelon. and you talk about getting off on the right foot and amazing. my wife is catholic and puerto rican, so, you know, she was tweeting and calling and crying, and you know, it's funny i was telling you, if sotomayor was

exciting for the hispanic population in america, this is o one. great story. and samsung releases the highly anticipated galaxy 4 phone tonight. and some think it's an apple killer, but like i told stuart, you can only buy an etf that holds samsung shares. what's the real reason that samsung is not trading in the united states. it involves corporate intrigue. we've got that for you. and the dow best since 1996 and big banks are upping outlook on the economy and we're going to bring you the real headline after the break. the opening bell is next. friday night, buddy.

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and execute faster with our more intuitive trade ticket. i'm greg stevens and i helped create fidelity's options platform. it's one more innovative reason serious investors are choosing fidelity. now get 200 free trades when you open an account. >> all right. so we're a little less than 50 seconds away from the opening bell. nine straight days of rallies and i've got to tell you, e-mac, the most hated, most stealthy rally in the history of the stock market and it's going up liz: it's tracking the '03, '07 rally. what will knock the investors off the bull? any fights happening out of d.c. present a buying opportunity, buy on the dip anytime you see happening out of d.c. or thee federal reserve minutes or

anything out the federal reserve. charles: they'll create dips, but people should buy the dips? >> if you missed the dip last fall, happened in a blink of an eye, you have to be able to stay on the bull and ride it as fast as you can. charles: that's the characteristics we're seeing and as you can hear behind us the opening. [bell ringing] bell is ringing and the indications are that the markets are higher and check the big board early trading and first tick dow up 9 points and we'll probably see more of that. but here is a dose of retail reality because we have the numbers out yesterday according to the latest government data. department store sales, they fell 1% last month and just ask j.c. penney how well things have gone. take a look at the chart. down 21% coming into today's session, that's for the year after. sporting sales down 1%, and dick's sporting bad earnings report and headlines have all been positive about he retail sales, deutche bank and j.p. morgan up their gdp estimates

based in part on that report, but if you look at the numbers beneath it, it's hard to-- harder to make the case liz: we've been calling this since last summer, strip out auto sales, gasoline and building part of it 0.36%, that's the sales growth we're looking at. the brick and mortar buildings as you know, the department stores, furniture stores, not really hanging in, st. louis fed, as you pointed out showing that savings rates are dropping to 2.4%. so, consumers are out there, saying, what the heck, let's spend our savings down and enjoy the moment right now. so, you know, unadjusted inflation data, just adjusted, we did contract in retail sales. charles: that's amazing, we've pair paired-- pared our debt, but when people go to the gas station. >> absolutely aamazing. >> and when i said unadjusted

data. it shows contracted. charles: what does neil call you, wicked smart? >> i don't know, i think he just think i'm wicked. charles: no wicked smart. and blackberry on our death watch, but it's not one of those days. a million now smart phone from one of its established customers, we don't know who it is, but we can find out where the stock is, nicole. nicole: this is a really big deal. the stock right now is up 1.5% for blackberry. of course, we thought blackberry was on death watch at some point, but it's had a great run, a great year and now the blackberry 10, new smart phones get an order of 1 million, that's the largest order ever that blackberry hhs received. so, you can't write them off just yet and obviously, a huge order for them. and put them back in the competitive market, there are some people who love blackberry and don't want to give it up. charles: i guess the question might be, nicole, maybe you can talk to some traders about this, at what price, did they have to

significantly discount this? and even though a million is a big number, in the grand scheme of things for smart phones, is that really a large order these days? >> that's the thing, honestly they're shipping them out now. and the question is whether or not they can be sustainable. there was a stage in the launch from the announcement date to finally the launch and they lost the momentum with that. we'll know more of next quarter that's when they'll be telling and we're wrapping up the first quarter and the end of next quarter, that's what we'll know. charles: we have to tip our hats to them because they're off the death watch list. thanks, nicole. and several calling to bigger growth after reading yesterday's report on retail sales and i have to ask is this a-- read past the first paragraph. and by phone, peter schiff, i'm sure you're buying into the gung-ho optimism, aren't you? >> oh, absolutely. you know, all -- the increase in retail sales is mainly the

result of the prices going up. sure, people are spending more money because things cost more. in fact, the increase in import prices match the increase in retail sales and of course, if you look at the savings data that came out last week, with the savings rate plunged, how are americans affording higher priced gasoline and higher priced food? they're borrowing money and digging into their savings and struggling to make ends meet. charles: having said that ttough, peter, why is the market up and why does wall street, established firms on wall street, they seem to feel so much more confident now than they did just a few weeks ago. >> well, remember, they felt very confident before the financial crisis of 2008. and they bid stocks up to new highs, but i think, what's driving the market is inflation. the same thing that is enabling consumers to spend is pushing up prices, because the government has got interest rates or the fed has interest rates too low and they're printing this money and therefore, what are you going to do. you can't go down with the ship

by holding dollars or holding treasuries, you've got to get into something that the fed can't print. easiest thing for those people to do-- >> we've got to cut it short now, thanks a lot peter schiff. here is the the question, guys, are your pants getting tighter, i'm the not trying to be forward, but how about this a yolk-free egg mcmuffin, mcdop mcdonald's is rolling it out. whether it's healthy or not, people are probably going to buy this thing, how is mcdonald's. >> remember the big mac, fillet o fish and quarter pounder, and now you're going to have to add in egg whites. and obviously they're answering the customer pleas for something more healthy for breakfast. they'll have the egg white, egg mcmuffin talking about the fact instead of 300 calories, 250

calories on whole grain bread, bacon and white cheddar cheese and i for one am very, he very excited about the egg white delight. charles: you don't need it, you eat and drink everything you want and nothing changes, look great. >> don't tell my secrets. charles: samsung is going to unveil the galaxy s-4 tonight and there's buzz around this thing and here to help us sort it out. clayton morris. and it's an apple style presentation. >> rockefeller center. a time at night people are at home and babies to put down to sleep and they're going to be at the prime time event. samsung is the behemoth in the room and a challenge to apple. i'm not somebody who wants to put somebody on a death watch and i was here when we were talking about blackberry. i'm not going to-- >> you know we booked you to put them on the death watch. >> i didn't do it and people are saying is the samsung galaxy s-4

going to be the apple killer? no, the numbers don't match. there's hype about samsung and i like the competition and i carry the samsung galaxy s-3 and-- >> you prefer the samsung. >> i prefer ios simpler for what i want to do, but it means competition and excitement in the market. if i wanted to customize this and do things with the samsung i can't with the iphone, that's great. i'm not sure that a large part of the population wants all of that customization and apple has the sweet spot. charles: samsung has the moment the tum and buzz and maybe premature to say that apple is done, but-- >> i'm looking at the comp score numbers from the holiday quarter

show apple crushing samsung, and 7% growth compared to samsung's 1% growth i don't know how you could say that samsung is crushing apple liz: and the quarterly revenues, apple versus samsung's 52 billion, and google-- the thing is with this product that you're talking about has eye scrolling capability with the new samsung, what's that about? that sounds revolutionary. >> the idea as you're reading on the page and instead of having to tilt or scroll with your finger it will know where your eyes i looking at your pupils liz: for what reason? >> if my eyes are scrolling the page. >> like your own teleprompter operator. >> exactly. charles: and netflix, share what you watch on facebook, good idea. >> great idea. netflix has been wanting to do it around the world. they've done it, but couldn't do it here, old laws, 1988 robert

bourke supreme court decision they went through his video cassette rental list and published it in the newspaper and it was called bourke's law and you couldn't publish information about the video rentals. netflix couldn't share information on networks because of the 19 the 88 law. if i want to share a tv show that i'm watching and my friends can he see it, it's a huge boon for netflix, likely to jump on line and watching the shows as a result of me watching it. charles: thank you for coming up and updating on technology and old law. and a man of the people took the bus to work, lived on his own and cooked for himself. does that mean he's against capitalism as some have been suggesting? that's at the top of the hour. now, however, i do have your seven early movers, let's start with coca-cola. they've got an upgrade from

credit agrical. and vmware, this was big and they made some pretty popular suggestions. and j.c. penney, unupgraded the stock. btg upgraded it. lost 135,000 shares, they're nibbling. and needham says this stock is a buy, the target, they say it's 6 bucks on this. linked in, af bei've been pound the table on this one. goldman, 220 a share. the previous target 157. let's talk about men's clothing, christopher and banks, upped the target at piper jaffray, but say it's $9 stock instead of $6 and men's warehouse has been an unmitigated disaster and poor earnings, however talking strategic alternatives including some spin-offs and you can see that stock is up nice here this morning. all right, guys, listen we know we live in a regulation nation.

the latest case in point. well, new federal regulations that can actually ban rice crispies and fruit roleups in schools. and you know that john stossel is on it. (announcer) scottrade knows our clients trade and invest their own way. with scottrade's smart text, i can quickly understand my charts, and spend more time trading. their quick trade bar lets my accounfollow me online so i can react in real-time. plus, my local scottrade office is there to help. because they know i don't trade like everybody. i trade likee. i'm with scottrade. (announcer) scottrade. voted "best investment services company."

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>> ♪ on to that box of rice krispies or a place to hide it from the authorities, it might be a collectible item. federal regulators are looking at a ban from rice krispies and fruit rollups at the schools.

john stossel is here, you've been preaching about this, but seems to be nuttier and nuttier every day. >> it does because they keep passing more laws. this one you cite i think is actually reasonable. if the federal government is going to take millions from us to ship it to washington and then ship it back to the state in what they call, what's it called, the healthy hunger-free kids act, then they've got to have some rules. charles: really? >> yeah. charles: listen, it'd be great if we didn't ship it to them in the first place. >> that would be better and they banned rice krispies because rice is neither a vegetable nor a whole grain, but if you're going to give away money you do need rules. the upsetting part, they estimate the number of extra man hours this will cost local governments to comply will be 926,000, that's more than 100 years. all of these laws just eat up people people's-- >> you talk about the illegalness of living almost

anymore, almost everything we do feels like it could skirt the law somehow. >> a defense lawyer wrote a book called "three felonies a day" saying most activity people commit three felonies a day. charles: i thought it was just like jimmy carter, just sinning in my mind, the law every day. >> and there are 300,000 laws with criminal penalty, it's hard to not just break some rules and nobody ever goes to congress and says, look at the laws i've repealed, and no kid ever asked his congressman, what laws have you repealed? it's always what laws did you pass, like that makes life better liz: they're treating the lemonade stand girl like she's bootlegging lemonade. is there an increase in government activity with these kinds of rules? >> yes, because they keep having more rules and every once in a while some annoyed neighbor will complain and then they have to ban the garage sale or that lemonade stand

liz: and why listen to the one cranky neighbor when we've been living with lemonade stands and garage sales for decades, centuries. >> there's a law on the book, the bureaucrat says i guess i'm not doing my job. how do we know if the lemonade is safe? how do we know the kids aren't-- they're so young, maybe this is a child labor violation? in new york city when i tried to open one, it would have taken 65 days, more than two months to get the legal permits. i had to have a fire extinguisher. so, if he doesn't feel he's doing his job when he said lemonade stand owner where is your fire extinguisher. charles: and before you came 0 on clayton morris trying to get bourke on the supreme court and went through his video watching and looked at the list and it became public information and because of that people couldn't share the netflix list on the internet. they come back to harm us in

many ways, economically and a lot of ways. you're a defender of liberty and freedom. >> it's funny, you used both wards to make people think about it, what's the difference, liberty and freedom. and there's only two ways to do things, voluntary and force, we need rule of law, but every day they add more stuff. charles: but you kind underscored the problem, and you were okay with the rice krispies ban. >> the government has to-- >> and we agree that the government has got to have a law, then we kind of open up that door and run amok. >> so let's have fewer federal food programs that go into every cranny of our country and let people make their own decisions. charles: i tell you what, we'll watch the show he, illegal everything on stossel tonight 9

eastern of course it's must-watch tv. and speaking of illegal everything, tomorrow is vice day on fox business, you're going to love it, we are going to bring you of drugs, porn, all day. and there's a stealth stealth rally and pulled back to 1585 right now. and the white house spent $277,000 a year for three calligraphers, now one local tv reporter is taking them to task. he printed up his own invitations and i want you to see if you can tell the difference. that's next. [ shapiro ] at legalzoom, you can take care of virtually

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>> well, we told you last week that the white house has three calligraphers who make more than $277,000 combined. now, i want to you take a look at this. here is a white house invitation the very expensive calligraphers have made. beautiful stuff. here is one made with just a computer and a printer. you can't even tell the difference. and why can't the white house just get a computer and a printer? >> because they're job creators, don't you know that? and the feedback on the internet is blowing up. this is getting into a heated controversy, again, once again, having to do with spending and

even beyond that. the fight is this: you can't have the white house issuing, you know, invitations it state department dinners or state dinners, rather, that are printed over at staples because you'd create an international incident. one comment on the internet said well, the white house auto pens and the military when there's a deceased soldier, why do we need the three calligraphers in the white house and when the white house is canceling white house tours. charles: i think that's the issue, the opulence of the white house spending in the face of everyone else taking it on the chin. >> that's right. charles: at 10 we're going to have a debate whether pope francis is pro capitalism. that's next.

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choose ishares for their etfs. ishares by blackrock. call 1-800-ishares for a prospectus which includes investment objectives, risks, charges and expenses. read and consider it carefully before investing. risk includes possible loss of principal. >> so is the pope anti-capitolist? i'm charles payne in for stuart varney. welcome to a new hour of "varney & company," critics of pope francis i is quick to point out his involvement in the argentine's crisis more than a decade ago. he spoke about the growing gap between the rich and poor and tyranny of the markets and perhaps we should look the at his humility and insistence on simplicity in his life. he's he a hard worker and self-starter and rode the bus and subway in buenos aires, for

us those are capital ideas and conservative ones at best. ♪ we're going to get to the pope and the markets in just a minute. but first, joining us now is senator angus king from maine. senator, you're an independent and you represent the middle. now, i want to talk about the budget, because ron paul writes he's made serious concessions with spending and tax increases. on the other end of this how do you suggest that president obama somehow come and meet him in the middle? >> i'm not sure the budget is coming out of the house as much as any new revenues to solve the budget problems. by the way, i think we could learn something from the vatican if you lock everybody in a room with 500-year-old plumbing, we might get a deal here. charles: you know what? i tell you what, i'm for it. i thiik that's the most bipartisan thing that will be

said all day long. on the budget situation, you know, it's interesting because obviously the president has taken a different tact here recently going into the sequester deal and sort of went to the people to make his case and the country's not falling apart. sequestration might have been a ploy, if you will, to sort of put the g.o.p. in a box, but seems to be working against the president and might be changing the whole tenor of this debate. >> well, i think the issue on sequestration, i think the president did sort of overestimate the effects and what i'm seeing is that it's having serious effects, but in limited populations. for example, there are 4700 people that work at the naval ship yard in southern maine and they're taking a 20% pay cut and a day off without pay for the next 22 weeks. that's a significant impact and i'm getting e-mails from people who won't be able to make their mortgage payments and living paycheck to paycheck. it's going to have a significant

effect, but it's not as broad-based and i think for that reason you're not going to see the sort of political uprising that perhaps the president and the democrats were expecting. charles: but senator king, you started off this discussion referencing revenue and there are two schools of thought with respect to that. one that says we can go out and take it from people who are successful, but detractors say if you do that, ultimately you destroy the golden goose which has been the american economy. what would be your suggestion be, back to the white house to find some sort of mutual ground where they could, maybe, strike something of a grand bargain? >> well, the first thing i want to say, i myself almost a capitalist and started a business in the late '80s, it was very successful so i believe in the american dream and the opportunity to have a successful business. on the other hand, what we're talking about is how to solve this deficit problem which everybody agrees is a serious problem in a way that makes sense, it makes sense in terms. economy and i think what we're

talking about now in the budget committee, i'm on my way back right now, is half cuts to programs, including entitlements and half revenues not by raising be taxes, but by going back and looking at the tax code for all those deductions, exclusions and those kinds of things, which, by the way, if you add those up today it's over a trillion dollars a year, and it hasn't really been examined since 1986, all those things that go in one day, they stay forever. and that's where i think we need to look at a balance, overall if you go back to 2011, 60% cuts and about 35%, 45, 40% revenues. charles: and we've got to wrap it up, but i've got to tell you it sounds like a logical smart thing. on the way back, cut off the water in the building and maybe you'll get somewhere. appreciate your time this morning. >> absolutely, we're working on it. charles: thanks a lot. and what do you know, white smoke billowed from the sistene chapel signaling election of

pope francis. in the first address analysts said he'll be a humble pope asking the crowd to bless him and rome fell silent. david, you've covered latin america for the wall street journal for a long time. and he lived by humble means, but does it mean he's anti-capitalist? >> like all popes, he has a preference for the poor not capitalists per se. but this guy was in a tough street fight in latin america for many years against the marxists, under liberation theology were trying to usurp the power of church and calling themselves marxist christians and the church right away saw that was not the way to liberation. that in fact was another form of slavery they were fighting in the form of communism in europe. so he had a pitched battle with the marxist liberation theologists and he and cardinal-- i was going to say pope

benedict, cardinal ratzinger back then, took them ten or 15 years, and every single day and went against that populace political strike in argentina. this guy maybe not pro capitalist, but certainly anti-marxist. >> the catholic herald is saying he's a critic of capitalist coming from the right not so much from the left and what david is saying is absolutely right. in south america and latin america, and certainly in nicaragua where david's wife is from, you have catholic church officials operating in the government to the point where pope john paul said, listen, you are a bishop first not a government official first, you're a bishop. whether or not he's a-- it's not an issue it's for whether he's for debt restructuring around the world and how do you do it to benefit all of society, including jobs. charles: let's be honest, guys, we know that both sides of the equation-- on both sides of the atlantic are going to try to find a way

to sway the pope or use the pope's words for their argument because that's a big argument now. austerity is the buzz word. in america and europe we don't want to deal with it, and know whether the pope is on your side or not. >> you'll have people using his words. but warned against golden mouthed politicians promises that cannot be fulfilled. so beware of the golden mouthed politicians. charles: and the market is up 59 points, all right, nicole, we want to go to you because this is a news flash, carnival cruises having more trouble with their ships. nicole: i can't believe it. if i were sitting in that boardroom i'd say oye, again, again? what they endured with the triumph stuck in the gulf of mexico for days, and this does

not compare, but yesterday another headline that makes people not want to go on cruises. the carnival cruiseline dream ship has power, but it's stuck at a dock and originally thought they didn't lose power and there were periodic interruptions to elevators and toilets. what if i were in one of those elevators, what if i were on the toilet hoping that it would work, these are things you just don't want to hear and obviously headlines, the stock is slightly to the down side. in the meantime, they are working diligently and put their entire fleet under a microscope after what's happened with the triumph, you remember that, getting stuck in mexico. >> and got to talk about samsung, this is pretty big, a phone coming out tonight, radio city music hall. what about apple, how is that affecting them. >> and there was a buy rating on apple, somebody is hot on apple for once here, you see it at 433 nowhere near 700, but at least an up arrow and the right direction for the people along

that one and watching for the headlines, twitter plans mobile music app using sound cloud, and i guess that will be competition to apple? it's hard to sort of get what that's going to be, but that will be something we'll continue to follow as well. charles: all right, btig like apple and j.c. penney, bottom fishing. >> there's another story circulating to j.c. penney and we'll get to that later. charles: can't wait. why can't the average american investor get a piece of the samsung stock? is the company afraid to trade openly in u.s. markets? is it about security, political intrigue? or a little both. we've got the details 10:26, california is taking less money after raising taxes on just about everybody. mike reagan is here. air not surprised, we are not surprised, but it's incredible -- the first question, of

course, does this make you even edge further into moving in ultimately with stuart? >> you know, i may end up, get a room ready. i mean, you look at the story that i sent back to you about california, they're taking what, 19% less money last month than a year ago. and we had this conversation on this show just a few weeks ago, when california was the fact that look at the money that just came in. my gosh, we're back in the black and we're doing great. what did i tell you? i said, everybody got caught with a retroactive proposition 30, now they've had time to in fact deal with it, talk to their account ants and guess what? less money going into the state coffers. you've got los angeles, 200 million dollars in debt. you know how many people showed up to vote for a new mayor? 16% of the people in this area showed up to vote for a new mayor. that's how much we don't care about what's going on in los angeles. there's 200 million dollars in debt. and one other thing, and saw

john stossel, talk about bills, sacramento, three fridays ago the state legislature by law had to put down all of their legislation for 2013, over 2000 pieces of legislation. 1300 from the assembly, 800 from the senate and 10 constitutional amendments. charles: absolutely incredible. dave asman want today ask you a question. >> hi, mike. when the federal government is bragging about the money it's bringing in right now, and initially when you raise taxes it looks great for the first several months or so because you've got the new income, but what you don't see are the businesses packing up and not expanding and moving on. are you seeing more folks, more businesses in california moving to other states with lower taxes? >> that's exactly what's going on. you've got this big battle now between texas that's coming in here and looking for people, or companies, if you will, oregon's coming in, washington's coming in and people are moving out. about 17 businesses a month leaving the state of california and what's interesting, when they go through the numbers they

tell you there's 14 million taxpayers in the state of california. and i started thinking about that. there's 30 million people who live here. why are only 14 million paying taxes. what are the other 16 million people in fact doing? and so, people are leaving the state, going to arizona, going to nevada. going to new jersey to live with varney liz: you know, mike reagan, e-mac here, i think the metro area of san francisco has left the past ten years, but from where you sit, what is the feedback you're hearing from the taxpayers in california. are they waking up, noticing what's going on in sacramento? are they getting it, what's wrong with the tax structure in the state? what are you hearing? >> if there's a good side to it in the election last tuesday, the fact they didn't vote to increase sales taxes once again, in los angeles, and they're trying to do that, the mayor was threatening us of course with losing our fire department and police department, sounds familiar.

i don't think they've really woken up yet and what you have an is two-thirds super majority in sacramento of in fact, democrats, and that causes a problem because they can do anything and everything they in fact want to do. and so i don't think that california has woken up to this yet, but they will and they will rue the day they voted to raise taxes in november. charles: mike, as much as i would love for you to move to new jersey so i could hang out with you, we need you there and be the alarm clock and it's going to go off soon other or later. >> i love being a canary. >> a warrior not a canary. charles: the latest attack on your privacy, the obama administration plans to give all spy agencies access to your financial data. that's right, the white house is using terror as an excuse, but could your bank records be exposed? that's a big question. all rise, the judge is next. first, clayton morris has his doubts about the samsung being able to crush apple. >> here is what-- the numbers from the holiday quarter show ample crushing

samsung in manufacturing sales, and that means that with 7% growth, compared to samsung's 1% growth, i don't know how you could say that samsung is crushing apple.

>> well, some bad news for j.c. penney. cid group is putting a 1% surcharge on all of j.c. penney invoices and they opened on an upgrade, but turned negative on

the news and the shares are down right now. and headed to mickey d's, a healthier option to the menu, a yolk-free egg mcmuffin, i can't wait. it will save about 50 calories from the original. mcdonald's shares are down. a and one of blackberry's established customers ordered, and they're pulling back. and the white house is working on having them look at all of your financial information. is that prevention of terrorism? the nudge is next. judge is next.

>> well, according to a reporter, reuters, the obama administration is drawing up a plan that will give all u.s. spy agencies access to american citizen's financial information. the white house is using terror as an excuse, but is your privacy worth the risk? all rise, judge andrew napolitano, well, he's here, he's down in d.c. and judge, this is right up your alley, sounds like something you'd be all in favor of. >> my goodness, charles, good morning, thanks for having me. i'm in the hinter lands in d.c. this morning. this is lawful only because the congress has said it is lawful, but it absolutely, profoundly, directly violates the fourth amendment which says that only a

search warrant issued by a judge, based on the probability of criminal behavior, can justify this kind of intrusion. what kind of intrusion are we talking about? we're talking about every check you cash, every deposit you make, every financial transaction, that hundreds of millions of innocent, law abiding americans conduct on a daily basis, will be available for all 16 that we know of, american federal government spy agencies, notwithstanding the natural rights of privacy, notwithstanding the fourth amendment, notwithstanding common decency, notwithstanding the president's oath to uphold the constitution. charles: i've got it tell you, judge, and may say that all of the attention on the white house put on cyber security might have led up to this. in other words, you help to overcreate the hype, overcreate the anxiety and the fear and zing them with something like this. that's what a cynic may say, but

this isn't the first time we've seen this sort of script play out. >> you know, the congress in the patriot act and the electronic privacy act of 1986 hints about invading your privacy, basically lets fbi agents and all federal agents for that matter, go to banks, hand write their own search warrants and look at the documents. it doesn't authorize it to share with anyone. it doesn't authorize them to use it in a criminal prosecution, but this extension of that, which allows every spy agency to look at anything they want without any kind of a documentation whatsoever, so the ctim, you, me, asman, e-mac, the folks watching us now will never know that the government has this information, really brings the brave new world or -p1984 right into your checkboo. this is not what the american people bargained for.

this was never consented to when we direct the federal government to protect our freedom. this is invasion of our freedom by the people we hired to protect it. charles: and would work out and obviously there's got to be challenges to this. could they implement this and be in place for a few years before the supreme court ultimately rules on something like this? >> great, great question, charles. if they don't use the information they acquire about us in a criminal prosecution, we will not have the standing to challenge it, nor will we even know that they have this information. you see, before the patriot act, when the government wanted information about you or from a custodian of your information, your computer server, your post office, your telecom server, it was, it would give you notice that it was looking for this. after the patriot act, it gets this information without you knowing it. and unless they're going to use information in a criminal prosecution against you, you're not in a position to challenge it. so, they're looking for a couple of needles in a haystack of 330

million people. they could take all the hay they want to look at the needles and people on the hay will never know it's been taken, if you'll excuse the barn yard analogy liz: it's e-mac here, which agencies, how many agencies can have access to our checking account and banking data and can congress have access to it, the oversight committee? >> that's a superb question. as far as i know the oversight committee cannot and as far as i know, there are 16 publicly known and identified federal agencies whose principal purpose is to conceal and keep secrets. there may be other agencies that do this about the existence of which the feds don't even want us to know, but they've publicly identified 16, some in the military, some on the civilian side. all reporting directly or indirectly to the president and he is about to authorize all of them to share all of this information about all of us with

each other. >> what about the irs, judge? >> no, not yet, not yet. >> not yet. you think that-- they also report to the president. you know what bothers me so much, this is a president when he was a senator fiercely opposed all of this and stood firmly on the ground of defending the civil liberties of the constitution was written to keep the government from interfering with. and when he became president, he's done more than 180 degrees, he thinks he can kill people and take our financial data. we never authorized any president to do this. charles: and we never authorized and to your point, he run on thon-- he didn't run on this. and i want to see where this ends up, like obituaries. like all of the samsung phones, why can't we invest in the

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>> time now for a market check. and look at this big board. 14,500, a week, two weeks ago who would have thunk it, up 50

points right now. we just reported that cit may be putting a 1% surcharge on j.c. penney invoices. nicole, hearing that and it might ab rumor, but how is it affecting the stock? >> these are things especially on wall street and through trading desks and there's some 100% back and you have to be wary of. right now, we now before the opening bell, they had a 22 price target and there was talk of cip and hurt a name like sears and when i'm talking to people on wall street, people don't confirm that and j.c. penney stock is going haywire, up and down and low as 15.27 intraday and j.c. penney is a name that's been battered the last year. obviously, ron johnson came in and working hard to turn around the company and there have been questions whether he's staying on as ceo.

and i think it was monday there's rumors he's leaving and the stock soared. charles: right. nicole: of course they have to come out and say, no, absolutely the ceo and cfo are staying. charles: if he stepped away tomorrow, the stock would be up 15, 20% easy. the guy worked hard, but came in and too much of a quote and unquote revolutionary. it's easier to sell ipads and iphones than-- thanks, nicole. we've been asking why can't investors investor directly into samsung? a former state department senior advisor, christian, thanks for joining us. americans are buying samsung products like crazy and we'd like to own appeals of the company, too, what's the deal? >> the mechanical reason, technical reason is that samsung is not listed on any exchange not on the new york stock exchange, not nasdaq. now, the real reason behind that, a couple of reasons and

culpability on both sides of the pacific, but basically with samsung you have a culture of, frankly, impunity where you don't want a lot of scrutiny. listing in the united states would bring a degree of scrutiny that frankly well-positioned company, company that comprises 1/5 of south korea's gdp doesn't want now. charles: what do you mean scrutiny? what kind of scrutiny don't they want? >> well, samsung is one of just a handful conglomerates, family run conglomerates and thought to have strong political ties that are unpalatable. the current chairman, mr. lee was found guilty of tax evasion and embezzlement and that was thought to be the tip of the iceberg, this was a couple of years ago, this is a company thought to have a slush fund for politicians and judges and journalists. it took a step buying or one of

the prominent newspapers, and incidentally that chairman was pardoned by south korea's former president just because this chairman was so important to bringing the winter olympics to south korea so that's pretty handy if you can arrange it. those are the types of dealings that are common in south korean business that it just doesn't want to ever have to put into a sec filing. >> and it's interesting, you talked about the former president. now, the new president who they elected a couple of weeks ago says she's going to come down hard on the conglomerates. the irony, her father helped put them together before he was assassinated when he was running the country and she is saying it's time for them not to be dismantled, but to level the playing field in the country. could that ultimately make them play fair around the world? >> it could, if it happens. i find it -- it's one you have to see to believe. you hear of tales across the pacific, and the philippines the flavor of the month supposedly taking anti-corruption steps

that have been elusive for the past decades or centuries depending how you want to count. on the other hand indonesia going through a very real anti-corruption effort over the last decade that sent various provincial governors to jail. until you start to see them squeal, i don't think you can assess this as a move against the chummy nature of south korean business. charles: imagine that, a president not being honest during a campaign season. we appreciate it. >> thank you. charles: even "the washington post" is saying the honeymoon is over for president obama. in the polls, well, they're reflecting that reality. so is the president willing to compromise? we're going to ask a democratic congressman next. ♪ [ cows moo ] [ sizzling ] more rain... [ thunder rumbles ] ♪

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>> all right. let's bring in larry levin from the cme. larry? listen, you're buying all of this positive spin and the retail sales numbers fantastic, and banks raising gdp estimates. it feels giddy. >> it does feel a little giddy. i would agree and i don't know if i'm buying it all. the markets want to go higher with the records in place and everybody talking about it and everybody wants to jump on the band wagon and this is what you get when you you're sitting here an all-time high and everybody in the market helps to propel

the market higher regardless of that news. but there's a lot of giddiness out there. charles: there was a time when i started on wall street the belief was that the stock market was a harbinger or would tell you what was going to happen six month later and in other words, that's the role it played and i think that was diminished when you peak one month before the great recession, but could that be back in place and could the market actually be saying that things are going to get better? >> you know, again, people want to believe that and you've got to wealth factor in place that the government is really behind, right, if the stock market is doing well and then everybody is doing well. i think if you're out there without a job or if you're out there, a person who maybe has your house in foreclosure, you're not feeling at that great about things. it's a relative situation and some are better than others and i don't think that this shows that the economy is getting better, i think that it it shows that we're within a record and people want to be long the stock market when it's going on and that's higher without which there's really no trouble at all. >> we'll stick with answer a, giddy, thanks a lot.

appreciate it. >> here it is, and a new washington post/abc poll that shows the public press and president obama on the economy nearly neck and neck with the g.o.p. and gets worse for the president much the job approval rating is down 5 points from january. joining the company now, democratic congressman from kentucky. congressman, it seems like perhaps this might start to pressure or persuade the president to move more to the middle, but you think he's going to be more willing to compromise? >> i think's he been willing to compromise. if you look at the deal maker in the fiscal cliff, he started by asking for 1.4 trillion dollars worth of new revenue and ended up settling for 600 billion dollars over ten years, i mean, that's more than a 50% compromise just on that one item. charles: well. >> talked about being sympathetic to changes on the social security and i think a lot of ways. charles: with all due respect, sir, i mean, compromise in the sense that the other side gets a

little of what they want. the president didn't get all the money, but the shield of 41 in tax hikes to $1 in spending cuts, that's a little lopsided. >> well, that's on top of the 1.2 trillion dollars that was already cut as part of the budget control act in 2011. so, we're in about 3-1 already in terms of cuts versus revenue, which is about the ratio the simpson-bowles recommended. charles: that's a ratio i think most americans like. you guys know, i suspect you probably understand that the american isn't looking for a ratio more draconian than that? >> well, i think what the american people are looking for, are people who are working together and appear to be working together in an organized confident way to deal with our national challenges and there's too much dysfunction. i think the whole, first the fiscal cliff and then the sequester debate has damaged that confidence and it hurts the president, it hurts the members of congress as well. charles: the tour that the

president went on for sequestration, city to city, you know, bashing republicans, it feels like that almost everyone says, he overmade his hand and it's an overreach and it back fired. i'm hoping to your point we don't see those sorts of gimmicks anymore and perhaps the dinners and reaching across the aisle, that will happen. should we be more hopeful that some kind of compromise or even a grand bargain could be struck? >> i think there's reason to hope. i get a sense from the new members of congress, both republicans and democrats, that they've come with a lot less ideological baggage than maybe the last few classes of the members of the house have come with. they seem more pragmatic and prone to want to go get something done. i'm working as part of an immigration group that's making great progress on a bipartisan way in addressing that challenge. so, i think there's some reason that we hope that we can work together. charles: let's just say it doesn't happen, you know, even though, i've got to tell you everyone is feeling better about it happening. let's say it doesn't happen.

will we go back to the demonization and finger pointing or use this as a launching pad to just try harder, better the next time around? >> yeah, i think both sides are pretty much finished with the demonization. you know, we're all engaged to a certain extent in political theater and we all go back to our districts and we've got our bases and we need to feed red meat, too, and that's part of the crazy world we live in. but i think the mentality is different now and i think there's a much greater realization that even from our base, our base supporters, we're hearing, you know, we're tired of finger pointing and get something done and everybody is hearing that now so i think it's having its effects. charles: amen, thank you, we appreciate your time this morning. >> charms, thank you. charles: and nba star derrick rose says he isn't mentally prepared to play. this is after recovering from an injury and getting all-clear from doctors. remember, this guy is making millions of dollars. so should they withhold his pay

until he's ready? fox news host brian kilmeade is next.

♪ (train horn) vo: wherever our trains go, the economy comes to life. norfolk southern. one line, infinite possibities. >> all right. let's take a look at the big board. looking for a 9th straight day of higher gains. yesterday we were up and today we're popping as much after the pope's election was announced and not sure of the connection. but this is the longest string of gains for the dow since 1996. and right now we are at 58

points. and today, gas dropped a penny since last week, national average for a gallon of regular 3.70. next check the price of oil. trading up $92.78. the latest reading on 30-year fixed. 3.63%, up 11 from last week, we're hours away from the release of the new samsung galaxy 4 and they've raised their price target on apple today, at least one firm did, said it's a buy not neutral. and hey, brian kilmeade, he's next. your big picture. with the fidelity guided portfolio summary you choose which accounts to track and use fidelity's analytics to spot trends, gain insights, and fige out what you want to do next. all in one place. i'm meredith stoddard and i helped create the fidelity guided portfolio summary. it's one more innovative reason serious investors are choosing fidelity.

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and a 30-tablet free trial. >> well, the white house tours are back on, but it seems like there's a little bit of miscommunication between the president and his press secretary who canceled them in the the first place. now, the president says, quote, it was not a decision that went up to the white house, but what the secret service explained to us was that they were here, they were going to have to have furloughs on some folks and press secretary jay carney said something different said, quote, we had to cancel the tours, it's our job to cancel the tours. the secret service cannot cancel them. company, jay carney might have to polish up that resume', i don't know. david: threw the secret service under the bus. isn't that wild the first thing the president thinks of doing, we weren't doing it, it was the secret service, these guys are the ones of all the people that you throw under the bus, the secret service. charles: but of all the things they canceled the pettiness was

the white house tour and now what, ultimately i would love for the president to say the buck stops here and we messed up. liz: and we won't have that, and we have the three calligraphers at the white house sending out lovely invitations and i think it's chipping away at the president's credibility, unfortunately. his ratings are drifting down to where george w's were in 2007. i'm not a political analyst, just a business journalist who likes to read the number chls when you see 41 approval rating from gallup, why, why is it dropping? >> at least the press room. charles: hard to ignore it anymore. another good thing, the chicago bulls star derrick rose injured his knee almost a year ago. now, the doctors finally cleared him to play of after months of rehab, but says he doesn't want to come back until he's mentally ready to play. all right, let's bring in brian kilmeade who is on the radio right now. kilmeade. >> listen, you know, if a guy says he's not ready to play,

okay, i have no problem with that, but here is where i start to wonder. why does the team have to pay this guy if he doesn't want to play? >> so, derrick rose, one of the best players in the nba blows out his knee, still in his 20's and a bright future ahead of him and charles you're upset doctors cleared him to play, but derrick rose chicago bulls superstar says i don't think i'm ready to play. you don't think he should be be paid? i'd go with the athlete on this, charles. charles: you know, i know you probably do, but here is the thing, i wonder how many people watching and listening could do that at work, listen i'm physical, but the job is kind of straining me mentally, you know, i'm not going to come in except on friday to pick up my check. >> and i should define, too, charles, i think that everybody listening would say if we're on vacation and want to extend the vacation for whatever reason or if we feel we're too sick to come in, we're not paid if we ran out of vacation days. and these guys are special and

we're talking to the great charles payne on the fox business network and our listeners, and your viewers have come together in a way only which america can. here is what i'm saying, athletes are special, derrick rose's talent is special, there are special rules. the world is not fair. you tell me that all the time in the hall when you jump on an elevator and insist on getting on yourself and telling me, tough, brian, i'm charles payne. so derrick rose is saying the same thing, my knee doesn't feel good i'll meet new the playoffs, if i don't meet you in the playoffs i'll meet you next season. if you want you can cut me because he has rare talent. charles: one of the things that makes the guys special, at least when they were growing up was their toughness, willis reed limping onto the field. michael jordan in the rookie season being hurt and team saying you don't have to pay the rest of the year and he insisted on playing and what makes him special, not necessarily the ability to dunk, but put themselves at risk with the

prima donnas they've become. >> and in chicago where michael jordan did what he did, however, a pain tlhreshold can't be judged. and we used to be hard on kareem abdul jabar, migraines, and we found out that they're so debilitating, you have to turn off the lights in your house, can't bounce a basketball and can't just take an excedrin. if he says he can't jump off his left or right foot and perform to his optimum. we won't remember that if next year the bulls win 70 games and we wouldn't be complaining if the bulls didn't drop the 11 of the last 18 and slumping into the post season. charles, you're panicking. charles: i'm not panicking, i happen to be a derrick rose fan. this problem is not physical, everyone agrees, both sides agrees it's not physical, it's a mental thing and sometimes

that's tough for us to understand. again, this is the reason why we revere athletes not just because they can do things physically that they can do, but sometimes inspire us in the face of long odds, this is not the case. brian i'm getting the wrap signal and you can't ride the elevator with me. >> no? appreciate the opportunity. charles: another decision for president obama on the keystone pipeline. but, even if the white house does approve it, the president remains skeptical how many jobs it would even create. that's next. [ shapiro ] at legalzoom, you can take care of virtually

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>> all right. right now i'm going to try and make you guy some money. right now i like lending tree. you see the commercials. back then doug was having a trouble getting a mortgage and what the heck, created this company because of that. he they do mortgages and help people with auto loans, student loans, debt consolidation, it's a relatively small number and not coming on strong. the last two quarters, beat the street by 750%, they're capturing market share and i think the whole idea of people using experts on the internet to help them with things, ala angie's list, another stock on fire. high risk name because it

doesn't trade a lot of volume, but a major breakout. definitely look at lending tree, i hate cute symbols, but this time make an exception. the approval of the keystone pipeline, the president is skeptical how many jobs it will create if built. the u.s. chamber of commerce says 250,000 permanent jobs, permanent jobs. company, is the president just avoiding reality? what the heck is going on. david: always talking about the jobs that wind mills will create and when the wall street journal investigated the jobs, they weren't there. the president saying 60,000, 80,000 and the journal found 200 jobs. when it comes to the public sector he's big how many jobs to create. and the private sector, no, that's not going to create jobs. liz: and dismissing what his own state department is saying, up to 5,000, 6,000. charles: didn't the unions say between direct and indirect it was a million, a crazy number sort of like, hey, let's get it done here.

david: and he's caught between two strong constituencies and the environmentalists and unions. i think eventually goes with the unions not only because of the union, but because of the tax revenue. liz: there's more environmental risk in shipping the oil via truck, you know, more pollution that way, or train, or, you know, by rail. you know, or tanker. i mean, so, what is he talking about? and by the way if we don't use it here, china gets it and they have no pollution standards. charles: bingo, there you go. hey, the highlight reel next. i love making money. i trto be smart with my investments. i also try to keep my costs down. what's your plan? ishares. low cost and tax efficient. find out why nine out of ten large professional investors choose ishares for their etfs. ishares by blackrock. call 1-800-ishares for a prospectus which includes investment objectives, risks, charges and expenses. read and consider it carefully before investing. risk includes possible loss of principal.

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