odd -- audience, hearing still going on. u.s. ninth circuit. you have 3 judges on the panel, maybe leaning toward the washington state, here is lou. >> federal appeals court in san francisco is deciding fate of trump's executive order calling for extreme vetting. president trump said, he is confident he will prevail, even if he has to take the fight to the supreme court. >> we'll take it through the system, it is very important for the country regardless of me or whoever succeeds at a later date, we have to have security. >> a decision become at any moment. also tonight, senate confirming devos for education secretary. after a historic tie breaking vote by vice president pence. president trump said, democrats are playing politics with his nominees.

>> we are having a hard time getting approvals, it is only a delay tactics, it all politics. >> we take that up with rand i, matt and liz. >> and fox news, today learning that iran removed powerful missile from a launchpad east of tehran about the same time that trump administration put iran on notice. what is behind that about-face? a full report ahead. >> good evening i am tom sullivan in for lo lou dobbs legal argument for the vetting order wrapping up. trump administration tonight saying it is confident that the three-judge panel will restore president's executive order, fox news chief white house correspondent john roberts. reporter: the hearing was not to determine th the

constitutionality of the vetting order, 'it was about whether or not the president could keep that order in effect while the constitutional case gues goes forward. talking law and order president trump expressed frustration that he is in a legal battle at all. >> i can't believe that we're having to fight to protect the security in a court system to protect the security of our nation, i can't believe it, a lot of people agree with us. reporter: a career attorney tonight argued that there is no fight over power to address national security. he hasek pressed stater to authority to protect the national interest, that authority, derives from 1952 immigration and nationality act that states whatever the president finds --

>> while the law was crafted at height of cold war, homeland security secretary john kelly today said, its application is justs relevant new, and he fell on hid sword in front of congress, apologizing for not briefing them before the extreme vetting program was rolled out. >> in retrospect, i should have, this assaul -- is all on me, i should have delayed if a bit to talk to members of congress, in particular leadership of committee like this to prepare them for what was coming. reporter: 3 other points white house will make, ban does not target solely muslim, does not bar legal percent. residents and washington state and minnesota have no standing to bring the case on behalf residents, what white house

would not say is what president would do if ninth circuit does not reinstate the ban. >> i'm in the -- let's see where it goes first. our goal right now is to get to a points, we feel confident based on how the court has reacted in massachusetts. that we're going to be good. >> president today indicated that he is in it to win it. >> we'll take it through the system, it is very important for the country, regardless of me or whoever succeeds at a later date. we have to have security in the country. reporter: not likely that we'll hear anything from ninth circuit tonight in terms of a decision, we may tomorrow, some legal watchers think more likely later in the week. >> all right we'll wait. >> turning to capitol hill, senate today voting to confirm president trump's choice for education secretary, devos with vice president pence casting the historic tie breaking vote, senate democrats were fire for their

unprecedented b be on -- be obstructed. reporter: tom good evening, betsy devos has been sworn in as new education secretary after vice president pence made history, by being the decides vote. >> the senate being equally divided, the vice president votes in the affirmative and the nomination is confirmed. reporter: despite two republicans defecting, maine a colins and alaska murkowski, devos will be part of trump cabinet, even though she was a target of democrat, teacher union and education establishment from the beginning. >> not democrats who were bitter about the elect, it and the american people who are bitter about the nom nation. of betsy devos that is why

millions of calls, have poured into this capitol. reporter: democra dem spent about 24 hours to th floor. >> is this the best of the best? is this is a knowledgeable candidate what understands the federal law, is this a candidate who comes to us without conflict of interest? reporter: key republicans defend devos, noting that president trump did not want someone from the education establishment. >> would you be surprised that a republican president would be for charter schools, has appoint an education secretary who wants to give low income chance o children more choices. reporter: they passed a hurdle 52-47 setting up a final confirmation vote likely tomorrow evening if democrats insist on running out the clock again. john cornyn said that democrats can stall but the president will have his

cabinet. >> they know we'll be successful, so stunts like staying up all night and making speeches, i am not sure who they are trying to impress. reporter: mitch mcconnell, said that disfunction fatigue will set in if democrats insist on spending 36 hours to vote in each cabinet nominee. >> thank you, mike. we're following a developing story out of iran, it appears that the iranians have removed a ballistic missile from a launchpad, jennifer griffin is at the pentagon tonight with exclusive new satellite imagery. reporter: u.s. officials have been monitoring this launchpad since iran launched a medium range mystic missile from it a week ago, images from fox news show a flurry of activity at

the launchpad 140 miles each east of tehran. that launch prompted an emergency meeting of u.n. security council, and a day later white house issued a strong warning. >> as of today, we're officially putting iran on notice. reporter: this image from february 3, shows over course of 5 days, iran quickly kleined ucleaned up the kiet, cite, u.s. officials tell fox news that missile has been removed. it is a surprising about-face, and motives are not clear. the image sat international photos, shows iran prepared to launch a missile that is used to put a satellite to space, this missile using same component as those needed for a intercloc intercontinental

ballistic missile. >> president trump has criticize various agreement reached between iran and obama administration and u.n. as being weak and ineffective. instead of buying thank towe thankful to u.s. for these agreement, iran is feeling imboldens. >> speaking publicly for the first time since trump took office. >> he said be thankful, no we're not thankful, why should we be thankful, for sanctions? for breeding the is lame coul the -- islamic state for setting fire to the area. >> not clear why iran moved that missile from the launchpad, expert say it could be a technical problem or perhaps iran is reacting to the new sanctions from washington. tom. >> thank you jennifer grin griffin, ninth circuit court of appealed wrapped up hearing, a decision -- well,

it could come is the any time, we're coming right back with much more stick around, we'll be right back. >> president trump said he will not back down on his extreme vetting executive order. >> this court case would be helpful to keeping the wrong people out of the country, we're being very tough with the vetting. tougher than ever before. >> we take unup the president's fight to make america safe again with randy evans. >> and dhs secretary john kelly gives an important update for that great wall on the southern border. >> i would like to see we would be well underway within two years. >> we'll faul talk about that expch morand much more, next, stay with us. achoo! ...answer it. with zicam cold remedy. it shortens colds, so you get better, faster. colds are gonna call. answer them with zicam! zicam. get your better back.

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tom: homeland security secretary john kelly making it clear that president trump's extreme vetting executive order is lawful, and constitutional. kelly testifying before a house committee also criticizing washington state federal judge's ruling halling -- halting the order. >> i havin nothing but respect for our judges but they live in a different world than i do, i am paid to worse case it. he is paid in an academic environment to make a call, i don't criticized him for that, that is his job. i am the one that is charged

with protecting the nation, the homeland, and intent to do that. tom: he has real deal job, we're standing by for this ninth circuit court of appealing ruling one hours hearing has taken place. and we'll find out it could come at any moment what happens in san francisco, joining me now, former chairman of republican national lawyers association, randy evans, randy. this whole case get toes work. y -- wonky because of legal rules about it, i have a cheat sheet here what happens if they rule this way or that way, what is our take on ninth circuit, there some question whether they have right to be? >> well, that is right, really, there are three basic issues that will be at play, first is called standing, whether or not these two states have ability to bring the laws to do that, they have to show they have been agriefd o agrieved or harmed.

that are being limited because people can't get back in. the obvious question is, why are those people believe, i think that if the court of ninth circuit follows the law the case should be kicked out on the standing issue alone. tom: that is key, if they follow the law, you know the reputation of ninth circuit is liberal and most overturned circuit court of any of them by the supreme court, so, do you believe that always follow the law? well, i think that ninth circuit is the most liberal circuit in the country, and they are most reversed, i think a little bit of a disadvantage, should this liberal circuit, decide to up hold the band, then it would go to u.s. supreme court, where it would end up a 4-4 tie, leaving in place the district court judge's ruling in washington. you could think about how

crazy that would be, think about additional time pressure that would put on the timing, of judge gorsuch 's nomination, and confirmation before u.s. senate, it would put pressure to move that faster up the track. tom: i was listen to to conference call there was a back and forth that solicitor general for state of washington said if you go along with our idea, the judge in seattle will have a hearing week from friday to have a hearing on merit. so it sounds like they are still thinking about speeding it up, but i would not expect that would change anything. >> well, i think. with that is an admission on second part whether or not that federal government in specifically president trump got his day in court.

they really didn't give anyone an opportunity to be heard, any kind of record. imagine in joining president of u.s. who determined that national interest of the country, is at stake. and he wants to vet more severely or significantly i have the people coming in, and have you a sitting district court judge in washington deciding, oh, no, i'm going to overrule the president's determination of what is in the the best interest of the nation, you can see why i think they are backing off that a little bit. and they are insisting, no, we'll have a really fast hearing. tom: i know this is not a back gathering case, i was listen about judge in phoenix, 85-year-old, he was asking about, has anyone really been arrested from any of these 7 country, i don't think that happened, byron york reported this 60 people from since 9/11

have been arrested, the facts get mixed up in these cases. >> they do, that is president carter's appointee you are talking about. he is the one that was expressing some suspicious about has anyone been arrested? breyer -- prior to that answer was yes that is is how president obama's administration decided these are countries where we flie need to do better vetting, had they had a full hearing before issuing a national ban ebasically overruling president. they would have known that before today. tom: these questions would have been answered. >> right. tom: thank you for your expertise. >> thank you. tom: breaking news, at lift 4 tornadoes have ripped through the south. causing widespread damage, one of the hardest hit areas, new orleans, tornado demolished homes and businesses leaving

thousands of people without power. fortunately no deaths have been reported, there are injuries though. louisiana governor, has declared a state of emergency. >> be sure to join in tonight's poll, do believe that democrats are sincere in their effort, cast your vote on twitter. >> and reminder, follow lou on twitter, @lou dobbs. like the show on facebook and inst instagram. >> on wall street, record breaking day. volume 3.4 billion shares, markets recording 2.1 trillion dollars in paper gains since back in the election november 8. >> trade gap opening 502 billion last year, not good. that is largest trade deficit

we've had in 4 years. >> listen to lou's reports 3 times a day coast-to-coast on the salem radio network. >> up next, tension are flaishinflaring between president trump and democratic lawmakers in california. >> california in many ways is out of control, as you know. and from a economi a economy stand point, people are leaving california and going to texas that run in a different manner, we will certainly not sta stand for sanctuary cities let alone states.

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tweeting, i don't know putin, i have no deals in russia, the haters are going crazy, yet obama can make a deal with iran, number one in terror, no problem. >> joining me now mike gallagher. columnist liz peak. and where do you want to start? the world is crazy right now. >> that is what liz says. >> it is crazy. >> what do you make of the haters? they really are -- their heads are exploding still, it has been three months. >> there is no question, but look, i think that part is that yes, they lost, but i think it is worse they never imagined they could lose, they never imagined this person they considered a clown, and et cetera, could grab the attention of the american people, and win an election over hillary clinton. it was unimaginable. but i think, in this issue of putin bromance, i think that

this is a shockingly over played story now for months. and you look at who else -- elevated putin to world stage it was president obama, his country's economy was shrinking who brought him back from the dead it was obama giving him control of what was going in syria. >> i don't understand why. >> is an obsession with trying to have this animosity and antagonism toward russia. tomorrow i am going to have senator lindsey graham on the show, i am going to ask him, what do you want to do? do you think that american people want to go to war with russia, president trump's possession that been i'd rather you know, have a highly respect from a distance, i am not buddies, but i don't want world war iv with russia, what is fun to watch from side, this is all they got left, you g

about impeachment protesters throwing bricks through win ors at berkeley, you have all this craziness there is nothing left. tom: they don't have -- they are a minority, but problem is they want to rebuild their party. party. >> of course,. tom: does this connection with the people that are out there in rural america in red states of 2600 counties, that donald trump won? does it sell them on this is party. >> i think that is important question for democrats, i would argue no, it does not. because let's face it the people who elected donald trump, the surprise voter, was the blew collar worker who -- blue collar worker who always supported democrats, and finally said, enough, i don't like what you are doing. and one thing that obama was popular but his policies were not popular, there were a lot of things he did, that people

did not approve of, when he said i' 4 more year, a referendum on my policies, voters said forget it. everything that democrats are doing now, chuck schumer? is he really going to win the hearts and minds of people in wisconsin. >> on one of the examples that the democrats are talking about is, be on -- work for republicans, we'll do that and we'll win. that reminds of my a left agenda radio state network, and it failed. you can't just copy somebody without getting -- with getting the same result. tom: you are one of the iconic veterans of our industry, you know about grassroots nature of our, people can protest that is okay, you want to scream, and il, and carry yell and carry a sign, but i believe what is most important is way that president trump is

calling out corruption of media, he is right when he talks about stories that are picking and choosing winners and losers, look at new york media here, ignoring as second of stop and frisk leading to arrest of a vicious alleged killer of a young beautiful jobber, medi jogger, media is not covering that, because stop and frisk works but they don't want to admit it. >> he is a chess player. it immediately yanks chain of media, and all they are talking about is about yes, we do there is a lot offer they -- terrorism, that, that played into his hand. >> right, i think what trump should do it regain his balance and his popularity, he edneeds to go out and talk to the people. i think -- >> no.

>> he does not need to regain his popularity. >> i do. >> no. tom: you have to argue later, we're out of time. liz and mike gallagher, thank you very much. >> thank you. >> up next, california may need to brace itself to lose billions of federal money? david horowitz takes that up next. >> this flat lin liners draws and daring stunt, you have to watch your step, we'll show you the video. up next.

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tom: president trump is engaged in a political war with the democratic leaders of california. >> i am have much opposed to sanctuary cities. they breed crime. there are lots of problems. if we have to, we'll defund. we give tons of money to california. bill: defund is your weapon of choice. >> i don't want to defund anybody. i want to give them the money they need to operate as a city or state. certainly that would be a weapon. tom: conservative commentator david horowitz author of the book, "big agenda." this defunding business. going to happen? does he have the power? >> this is just the beginning.

>> we have our state senate publicly said half his family is here illegally and he's authoring a bill that would make the home state a sanctuary state. we are going to welcome criminal terrorists and anybody else who wants to run across the border. he should be prosecuted for sedition as should the governor and the mayors of our big cities, as should janet napolitano who made the university of california berkeley a sanctuary campus. this is defines of federal law. i'm hoping when jeff sessions gets in as head of the department of justice that he will prosecute them. hillary clinton said her dream is for open borders. the democrats don't care enough about this country and its security. particularly the time when war

has been declared on us by these islamic terrorists and they want to come across our borders. tom: if you look it up, the head of the california senate kevin deloen bragged about the fact that half his family is illegal. they have fake driver's licenses and fake i.d. are they voting with the fake i.d.? >> elected officials support this throughout our state. the democrats. they all need to be prosecuted. this is lawlessness. this is worse than the riots at berkeley. much worse. you have a major american party that's anti-american. no country can exist as trump has said, without borders. i have written "big agenda"

deals with this. he doesn't take seriously enough the threat. tom: they have been talking about breaking up the state of california or people within the state red counties versus blue and breaking it into two separate states. >> you are talking about secession. we already had one civil war over secession. americans will not stand for california seceding, nor should they. breaking the state up pills more a technical issue. there is no quick fix to this. this is a political battle. and it begins with calling things by their right name. democrats commit sedition, they need to be prosecuted. we shouldn't pussy-foot around this issue. until that becomes the dialog, you can't advance the security of the country.

how can we have a secure country if we have people openly defying the department of homeland security. tom: tell me about your new book about president obama's book "the big agenda." >> he's not intimidated by political correctness. he says things as they are. one of the most important things he said was in the second debate, he said, hillary, you have to understand hillary has tremendous hatred in her heart. the democratic party is a party of hate. they see people who disagree with them in a basket of deplorables as sexist, racist, homophobe. trump is not intimidated by that language. that's why the republican congress did nothing for six years. they voted to fund obamacare and fund the illegal amnesty even

though they were pledged not to because they were scared of being called obstructionist and racist. donald trump is cut from a different mold. tom: i know somebody else like that, too. that would be you. david horowitz. you are not intimidated by anybody. >> i waited 30 years for donald trump. tom there are proof there is a thin line between brave and crazy. watch this adrenaline junky walk across a slack line in yosemite national park. while it's legal, yosemite says they don't encourage it.

>> we'll have a wall, we'll have a border. we have to stop drugs from coming into our country. if they can't handle it or maybe they can or can't, or maybe he needs help. he seemed will technology get help from -- he seemed willing to get help from us. he has a problem and it's a problem for us. tomus.. tomtom * stay with us. show me minivans with no reported accidents. boom. love it. [struggles] show me the carfax. start your used car search at the all-new carfax.com. or keeping a hotel's guests cuttinconnected.i to 35,000 fans... businesses count on communication, and communication counts on centurylink.

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tom: president trump met with a group of sheriffs at the white house an doubled down on his promise to serve as the law and order president. >> we are committed to securing our borders, to reduce crime, illegal drugs and human trafficking, especially if border counties. we are also committed to working with law enforcement to stop border attacks. tom: joining me, jeff dewitt. the sheriffs gave him a letter, they were applauding him. they like him a lot. the law enforcement community.

do you see that in your state? >> no question. arizona is on the front lines from the crime to the drugs to the extra cost to our taxpayers. you see our elected sheriffs there. they are elected by the people to be the sheriffs. very, very supportive. we have a director at homeland that wants to enforce the laws and a president enforcing laws. president trump is actually enforcing laws that are already on the books it was the previous administration and previous president who chose to ignore the laws and circumvent congress. he campaigned all over the country and said this is what he's going to do. the people elected him and he's going to get it done. i love the talk he had with the mexican president and the quotes with bill o'reilly. if mexico need help on their side of the border, we'll help

them out, too. tom were that was interesting. -- tom: that was interesting. he was talking about drugs, human trafficking, their rifle. there are a lot of -- terrorism. a lot of different things happening at the border. if he's going to get mexico on board, which one would they say that's a great idea, we'll work with you on that? >> there is no question mexico has a huge problem with the drug cartels and are unable to control them on their side of the border. which is why so many drugs and so much crime streams over the border. that's why you see the border sheriffs asking for help. it can get done here quickly. but the drug cartels run part of mexico. that's where donald trump says if you have need our help, we'll give you our help. donald trump should never be underestimated in getting anything done.

i worked with him closely on the campaign and he is a man of action who can accomplish whatever he puts his mind to. tom: i manage everyone who works for him has to run at fast forward speed. general kelly was talking about the fact that the wall will be well under way within two years. that, also. donald trump is a builder. you would think that would be something that he's going to do. but a lot of people say that's not going to happen. what's your assessment? >> my assessment is it will happen. there were laws passed 11 years ago by congress to lay out the ground work. but when it was passed it was by people who love to talk but don't like to do. they wanted to go back and tell their people they passed a law so they could get re-elected.

but now we have a man in office who want to do something. the framework is there. here in arizona, a lot of people including myself would like to see that happen quickly because it will stop a lot of the problems we have here. when people talk about the cost of the wall, they are forgetting about the massive cost to our taxpayers in not having the wall. > tom: i have seen $100 billion a year. >> arizona alone is $1 bia year. so a $12 billion what you is a savings. tom: chicago mayor rahm emanuel gets brutally honest with democrats. >> it ain't going to happen in 2018. take a chill pill.

if you think it's going to be a quick turn around like that, it's not. tom: matt schlapp, gill trotter, they weigh in on that and more coming up next. polident's unique micro clean formula works in just 3 minutes, killing 99.99% of odor causing bacteria. for a cleaner, fresher, brighter denture every day. (snap) achoo! (snap) achoo! achoo! (snap) (snap) achoo! achoo! feel a cold coming on? zicam cold remedy nasal swabs shorten colds with a snap, and reduce symptom severity by 45%. shorten your cold with a snap, with zicam.

tom: in our onli poll we asked you are you concerned that technology and wall street con gop rats have launched a furious

attack against trump? and 79 per will be said yes, you better believe it. >> i happen to know how dishonest the media is. i happen to know stories about mow that should be good or booed, i don't mind a bad story that's true. stories that should be a positive story when they make them totally negative. i understand the dishonesty of the media better than anybody. and i let people know it. tom: well, the mainstream media, they just keep proving his point. >> president trump told a u.s. military audience that there have been terrorist attacks that no one knows about because the media choose not to report them. it has been a busy day for presidential statement divorced from reality.

>> as we know, since 2000, there have been a couple dozen suspicious deaths of journalists in who came out against the government. donald trump made no secret about going after journalists and his distaste for any news that doesn't agree with him here. do you think this is a dangerous path he's heading down? tom: joining me now attorney and political analyst gail trotter and chairman of the american conservative union, matt schlapp. will we start seeing journalists being bumped off? what was she talking about? >> it's not a laughing matter. i do think vladimir putin has done some things i find abhorrent. poll after poll shows that reporters by 70-80% tend to vote democrat. we all know that most members of the media are left within.

this is just a fact. i think what the trump administration would like is a little balanced coverage. tom: this does seem to be a little bit of rope-a-dope. the president goes out there and says the media is doing this wrong and doing that wrong. the media reacts he single time. whatever else is going on, they report on themselves and their hatred and animosity toward president trump. >> that's right. you would think at some point's trolling the media. it's the administration's responsibility to call out left-wing journalists who aren't doing the job of objective reporting. thrift report about nancy sinatra saying she was complaining that donald trump and the first lady were going to dance to her father's song at

the inauguration. who reported that? cnn. why is it important that that fake news is called out? because it's an all-out assault on the truth by the media outlets. tom: i am old enough to remember it. there was a hatred of richard nixon by the media. he finally made a major mistake and they got him. this seems very similar in that nixon did not like the media, the media didn't like nixon. is this the same sort of thing we are seeing now? >> i give donald trump great credit for the fact that he calls it like it is. that's one of the reasons why he won the republican nomination and he's president. the media tends to be left wing and he calls them out on it. he hasn't been right on everything he said. but the under lying charge that

the media is trying to discredit him as a legitimate president its absolutely correct and donald trump is right to push back on it. a lot of us around the country are rooting him on in this fight. tom: this buzz about leaks coming out of the white house, and the question is where are they coming from, is there an attack from the bureau krats? forget the media, the bureaucrats that maybe don't like donald trump? what is the buzz in washington? >> leaks are nothing new in washington. but we have seen a greater tsunami of leaks at an earlier stage than we would have seen in other administrations. we have a lot of protections for federal workers in the government. but we need to reconsider these rules. if these leaks are happening and they are violating federal law, maybe some of those protections

should be rolled back because otherwise we are not fulfilling the will of the people hop elected donald trump to come to washington and do something. >> there are too many leaks i believe coming out of the white house and out of the white house team. i would urge them all, they have to work as a team against the left. i urge lisa murkowski and susan collins to wake up and reamize we have to fight the left. fighting each other isn't going to get us anywhere. tom: it seems as though they are digging their heels in for a long fight. this isn't something they are going to kiss and make up over in a matter of days. at least not from where i see it. how but, gail? >> the 11th commandsment of ronald reagan that we should not insult if he lowe republicans might be the hardest all the commandsments. but matt is right that we need

to come together. tom: that's it for us tonight. lou will be back tomorrow. among his guests, nigel farage, ambassador john bolton and ed rollins. for now, good night from new york. kennedy: donald trump has a message for all of the haters. quit acting so crazy. why is he speaking out? the 5r9y panel is here to discuss. hillary clinton is back with her first video since blowing the election. and she has a message for the ladies. are you suffering from headline stress disorder? the latest media malady sweeping the nation. grab a seat. the doctor is in. by the chair on her chiny-chin-chin, betsy devos is the secretary of education thanks