thanks for watching. ms. megyn is next. i'm bill o'reilly. remember, the spin stops here. we are definitely looking out for you. breaking tonight a bombshell about the president's health care law from the president's own justice department. welcome to "the kelly file." i'm megyn kelly. just last week as president obama was claiming that he was sincere but mistaken in his repeated promises that if you liked your health care plan you could keep it under obama care, top attorneys in his justice department were telling ale federal court something very different. first, here is the president last week. >> there is no doubt that the way i put that forward unequivocally ended up not being accurate.

it was not because of my intention not to deliver on that commitment and that promise. we put a grandfather clause into the law but it was insufficient. >> got that? he intended to deliver on his promise with the grandfather clause, but the clause proved insufficient. he stressed that the only people affected by the broken promise were those on the small 5% of the public individual market. not on the employer-sponsored or group health care plan. as it turns out, oas the president offered those excuses to you his administration was arguing something different to a federal court saying, i quote, we'll put up the graphic in a moment. in a moment. the control room says it has a misspelling so we'll fix it and put it up. even under the grandfathering provision, it is projected that more group health plans will transition to the requirements

under the regulations as time goes on. what does that mean? look at it for a second. even under the provision that's supposed to save you, the it is projected that a majority of group health plans -- hello, that's employer-based health plans, not individual markets. a majority will have lost their grandfather status by the end of 2013. would you look at the date on that? the date of this memo that the d.o.j. argued this in federal court was october 17, 2013. this brief was pending and alive and still is as the president was telling you he meant to take care of anyone in the individual market with the grandfathering provision. it's only the individual market, not employer-based health care. got it. the president says x and the d.o.j. says n s not x.

so not only do we have a provision that the president knew it would happen, as for the claims last week and over the last couple of weeks we are talking about the pew any portion of the individual market, just 5%. those are the only ones that will lose their health plans. it's not that. you hear it there. employer-based coverage. employer-based coverage is also at issue. remember, president obama has said over and over again since this broke and we saw the policies getting cancelled he's come out repeatedly to try to urge a belief that the debacle affects only a small percentage of the population. >> for the vast majority of people who have health insurance that works, you can keep it. for the fewer than 5% of americans who buy insurance on your own, you will be getting a better deal. we are talking about 5% of the population who are in what's called the individual market. they are out there buying health insurance on their own.

you have an individual market that accounts for about 5% of the population. our working assumption, my working assumption was that the majority of those folks would find better policies at lower costs or the same cost. >> andrew mccarthy is a former federal prosecutor. he posted a link to this brief in his column. it's all here, black and white, what the doj was doing. >> absolutely. this was part of the fraud from the beginning. the this provision itself, the grandfather collision. it's to say they had a grandfather provision. it was drafted. the republicans in 2010 tried to turn it into a meaningful safe harbor. they were voted down by every democrat. >> every one. >> including the ones out there

crusading that you should get your health care back. >> claiming they were confused. they believed the president. >> right. >> the president hasn't been truthful because if you look at the regulations there is no meaningful grandfathering. >> no. >> nay sayers. this brief is significant. this ises the administration in a dogfight the about obama care. >> yes. >> who's the client. you mentioned the justice department. the defendant is kathleen sebelius's department of health and human services. they administer obama care. >> this is all over -- >> the religious liberty mandate. >> and the contraceptions employers will have to provide to employees. so the administration tells the court -- take out the legalese. what does it say? >> what they are saying basically is we have the grandfather provision.

they don't say, by the way, that's what the president is relying on to say if you like your health care plan you can keep it, period. we have the this grandfather provision. but it's fading away. in fact, by the end of 2013, we anticipate that most of what was covered by the grandfather provision would lose their coverage. >> the shocking thing is it's not only those on the individual. it is most group health plans. >> they cite to a kaiser study about employer health plans. the whole thing. they cite to page in the federal register also about employer health plans and basically estimates that 7 of 10 people on the high end estimate who have employer health plansing get their coverage at work will close their coverage. >> we talked about the piece a

while back. it was shocking when we saw it about the estimates from the administration on how many people would lose their policies. or have them changed significantly over obama care. what we have now is the department of justice running into court and touting it. today, present day. that was 2010 right after obama care was passed. this is present day, them going into court saying trust the judge. the majority of people who have group health plans will be cancelled. >> that's right. >> what does that mean? what does cancelled mean in the group health care context. it doesn't mean the same for people who have employer-based insurance as it does for those in the individual market. >> the word is transition. they don't say cancel. they say lose your coverage which means you won't have the same coverage you have now. >> we're not breaking up. we are transitioning into new relationships that have nothing else to do with one another. >> now you're hurting me. that's exactly rieg. basically they are taking you from what you have now to

something they prescribe which you would never get on your own if you had your own choice. >> it speaks not only to the individual market but to small businesses and group health care. the polls show the majority of the american people do not believe this president. they believe he's been dishonest abouting . having reviewed this brief, your thoughts. >> this is as insidious as it gets. the grandfather clause was what he looked everyone in the country in the eye over and said if you like your plan, you can keep your plan. this shows they never thought the grandfather clause was real many the first place. >> and the president last week said it was sincere that it was accurate. query why the people of the justice department put this in writing. thank you. >> thank you, megyn. >> 5.5 million americans lost their health insurance under obama care and now wonder if they will be insured come january 1. that's in limbo. tonight president obama reaching out to some of the strongest

supporters in a conference call saying this fight isn't over. >> i have run my last political campaign, but i have one more campaign in me. that's making sure this law works. and we are not backing off one bit. >> marc trgs hiessen is a fellow at the american enterprise institute and a former speech writer. clearly not backing down on the law. >> he has two democratic factions pulling him in opposite directions. the first is 200,000 people of his liberal base. they are terrified by the failure of obama care. to them it's not just the signature achievement of the obama administration. it's big government liberalism. if this fails, the liberal project will be set back for a generation. then you've got a different group. vulnerable congressional democrats. they are not so concerned about the survival of the libel ral project. they are concerned about their own political survival. they are pushing obama care to fix the law and do things like

allow people to keep their plan on the individual man market. these people think it's a capitulation and a betrayal. he's stuck between two groups, one of which doesn't want him to capitulate or make changes. one could go with the republicanss if he doesn't do something to change the law in ways the presidenten doesn't want to change it. >> how on earth will he assure the american people who want changes, who want to be protected that he's to be believed, that his representations are trustworthy when he's sacrificed the trust already. we saw it from the polls. then his lieutenants in the democratic party. take it beyond the president. don't seem to have a foothold in reality. i say it because of the froling example. we played this on the friday show. nancy pelosi was asked about what was clearly false. the president's repeated false assurances on if you like your plan you can keep your plan. something the president admitted

was inaccurate. listen to ms. pelosi juxtaposed against the president himself. >> did i ever tell my constituents if they like their plan they could keep it? i would have if i had ever met anybody who liked his or her plan. but that was not my experience. flz as far as the affordable care act is concerned, what the president said was completely accurate. >> there is no doubt that the way i put that forward un equivocally ended up not being accurate. >> hello! >> ended up not being accurate. >> she's saying it is accurate and the president is saying it wasn't. >> she's lonely on the democratic side now. she lost 39 democrats voting with the republicans on the keep your plan bill. >> how are we to believe these people? she's on kwoez meet. why should the american people believe anything she says?

>> president obama learned the rule of holes. when you are in a hole, stop digging. pelosi is there with the shovel digging in further. >> the basement. i love basements. >> the fact is, look, his approval rating is 39%. that's what george bush's approval rating was at this time. >> 38%. >> 50% of the country thinks he's dishonest. he lost the center of the country. he's losing the liberal base. young voters under 30 now disaof prove of him by 20 points. he's lost the center. he lost trust. the problem for him with trust is this is a center right country. people gave him the benefit of the doubt because they liked him and trusted him and thought he had the right intentions. when any president loses it, it's dangerous. when a president who isn't intellectually and philosophically in tune with the country loses likability and trust he's finished.

this is dangerous for him. >> the thing with obama care is it's like you don't have to take my word for it. sit and wait. you will see whether we are right or wrong. >> absolutely. >> this brief tells it like it is. these cancellations are going to come. they are already starting to come for some in the small business world and they will come more this time next year because the companieses were granted a one-year extension. >> thanks, megyn. >> new suggestions tonight that obama care could, in fact, be repealed. not just a theoretical kper sides but it could be done. just like another controversial health care law was nearly 25 years ago. judge andrew napolitano is next on whether it is too late with obama care. fierce reaction after the education secretary calls out white suburban moms.

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similar to the way a health care law was with with repealed 25 years ago. judge andrew napolitano is a judicial analyst. many people may not remember the 1989 catastrophic coverage act. it was big. it was unpopular. it died a painful month 17 months after it wases passed. >> i didn't remember it until one of your producers sent it to me. this was a parting gift by reagan to the generation ofseni, by increasing your premiums have capped to the maximum exposure. guess what. most of them didn't realize they had to pay the premiums. some thought by paying the premiums they would get their worst fears relieved which is what happens if i have to go into a nursing home. what happens if it didn't cover nursing homes. >> if you have to pay more for the greater good. >> correct. the there was no

misrepresentation by reagan in 1988 as there was by barack obama in the years leading up to this as recently as a month ago. >> once it was implemented. >> people had to pay the $2,000 additional premium with whether they wanted it or not, needed the additional premium. there was an uproar. george h.w. bush, the newly elected president said we have to get rid of this. >> we have to get '02 of it. >> it's not signing. let's undo it. the congress, a democratic congress undid it by majority vote. >> the turning point in the debate was when a group of people literally jumped on the car of dan rostencowski, then chair of the ways & means committee. here it is. >> very famous clip. >> look. this is how ticked off people were. they felt that things had been misrepresented to them. critical mass was reached. the law was repealed, judge. are we reaching critical mass

with obama care? >> i think we are reaching critical mass for two reasons. one, it doesn't work mathematically. two, the five and a half million people who will lose their policies between now and december 31, just 45 or oh 50 days from now are are people the president set out to help. he will have betrayed his own people by materially misleading them. they will not forgive or forget because this hurts them. what do you do when you don't have health care. you don't have the means to get the product that you once had. >> especially when the fix may not work for the vast majority of people it's intended to help now. you mentioned there was no fraud, misstatement, erroneous representation, whatever you want to call it. here we have a different scenario. you're a judge. it's right here. >> the brief you discussed with

andy mccarthy, a fine lawyer is profound. the president of the united states is a lawyer, a legal scholar, a law student, chairman of the harvard law review. apologies to my friend stanford in chicago. nevertheless he's presumed to know these things. his justice department was before federal judges arguing the opposite of what he was telling the american people. who do we believe? lawyerses with an obligation to be honest. new developments after a democratic senator suggests all colleagues knew the president's pledge was not accurate and they knew it all along. a former white house insider weighs in. plus, anger and backlash after president obama decides to skip the 150th anniversary of the battle of gettysburg.

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this nation under god shall have a new birth of freedom that government of the people, by the people, for the people shall not perish from the earth. >> it is one of the greatest known speeches in american history. a ceremony tomorrow commemorates the 150th anniversary of the gettysburg address. one person who will not be in attendance, president obama. even though on a number of occasions he purported to

identify closely with president lincoln, announcing his candidacy in 2007 in springfield, illinois. the city lincoln called home. a concert for his first presidential inauguration was held at the lincoln memorial. evidence sworn into office both times using the lincoln bible. from the pittsburgh tribune review, celine says the reaction has been shock. people are stunned. what are people saying? >> well, even amongst his most ardent supporters in town and people who don't agree with him politically, they are stunned by his decision not to attend the gettysburg address. it's the 150th anniversary, one of the most pivotal speeches in our nation's history. it was one of the worst times that the country was going through. lincoln goes to town and decides,s you know, the does this the two-minute speech

that's 270 words long. you know, the townspeople wanted the president to be there. today thought it would be a moment to bridge this historical moment and bring it to the president. he decides not to come and they are disappointed. >> he's sending the interior secretary which is, you know, sort of interesting. this is a war -- the gettysburg battle is viewed as the turning point of the war, a war about slavery. >> right. >> the president claims to have a close identifying -- identification with president clinic con. you couldn't think of a bigger moment to go mark that than this. they haven't really told us what the problem is. jay carney says the schedule hasn't changed. last we checked he has to speak at the wall street journal annual council from 3:00 to 4:00 p.m. >> gettysburg is possibly a

20-minute helicopter flight from washington, d.c. or new york city. he's going to have private briefings with hagel, closed press, that's it. along with the wall street journal thing. it's incredibly disappointing. lincoln wasn't asked to speak initially for this event. he was only asked to give a few appropriate remarks. obama has been asked to attend this event for over a year. according to the national parks service he's never been at the gettysburg battlefield. >> he did participate in the public service announcement for pbs that includes, you know, everyone from president obama to jimmy carter to our own bill o'reilly. here is a bit of that. >> that this nation under god. >> shall have a new birth of freedom. >> and government by the people. >> of the people. >> for the people. >> shall not perish from the earth. >> good enough?

>> probably not. at least to the people i have talked to in gettysburg. they are disappointed. anybody can upload a speech on youtube and watch it. that's not the same as the president being there. >> do they now question his relationship with president lincoln? >> yes, absolutely. even james mcpherson, the gettysburg historian will be speaking there tomorrow said he was stunned the president wasn't attending. >> wow. we'll see. it doesn't look like it will change. >> no. >> some asked why he couldn't at least send the vice president. thank you for being here. >> thanks for having me. breaking details on the top story that the obama administration's department of justice represented in a court filing just weeks ago an estimate that tens of millions of americans could lose their employer-based work insurance, their group work insurance. a former white house insider reacts next. and why the secretary of

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new fallout tonight as a democratic senator suggests all of her democratic colleagues knew president obama's you can keep your health care promise was not accurate. >> were you misled? >> he should have been specific. we all knew. the point of the plan is to cover things people need like preventative care, birth control, pregnancy. >> ed henry is live for us tonight at the white house. >> good to see you. the pressure building on the president. this is the seventh monday since

the october 1 rollout. every one of those weeks he's been playing defense. now over the comments that suggest democrats knew all along people were likely to get cancellation notices, they say it's for good reason because the plans will be better. that's still in dispute. there is a washington post report over the weekend saying the administration has a new goal which is just to get 80% of those people who go online to sign up for obama care. only 80% of them to enroll. that suggests they are scaling back expectations there. when jay carney was pressed about it, he did nothing to knock it down. when i pressed him on the fact that means up to 20% of people who go online could end up not being able to enroll. in some cases people could, instead of finishing it online could finish on the phone or by mail which we have already heard has been difficult. the president is on defense. that's why tonight he spoke to

try to rally his political base, organizing for action with the conference call. that's why joe biden was in houston talking about the economy. he was asked about the website. when are you going to get that fixed. he added, god willing. maybe they need divine intervention. >> unbelieve able. join me now, karl rove, assistant to president george w. bush and a fox news contributor. when you start the quoting my great aunt helen. you would say, good night. she'd say, god willing. that's not a good sign for obama care. that's my armchair analysis. >> you had senator gillibrand saying we all knew. of course. the congressional budget office in december of 2009 issued a report saying people will lose their coverage. they repeated it in march of 2010. in april of 2010 the chief actuary at president obama's health & human services said cbo

is right. the number will be bigger. the numbers were updated this year. we had studies from the national center for policy analysis. from the american action forum and half a dozen health economists and economic firms saying people will be losing their coverage. everybody knew the story is the white house press corps consulted the the president. a part-time intern could have found out it wasn't true. >> now we know just last week as the president was looking into the cameras saying, i'm sorry, but when i said that, i heldsin that people would not get cancelled. as recently as two weeks prior to him saying that, karl, last week, two weeks prior, his doj is filing a brief in the federal courts where you have a

fiduciary obligation not to mislead the court telling the judge that this goes well beyond the individual market. goes to the group insurance market and they believe a majority of group health plans will lose their grandfather status by the end of 2013. that was their original estimate. now the end of 2014. the president gave corporation as one-year extension. >> you saw the report that came out of the newspaper chain which took a look at the individual rules and regulations, looked at the individual policies and discussed it with the companies and state insurance companies and concluded in the group market. in the individual market which are roughly 75 million policies. between 32 and 52 million of the policies are going to be cancelled this year or next. that's a big chunk. >> somebody who worked in the white house, how do you have a president who makes an h hs

secretary to completely gut a chance of grandfathering. you have the department of justice going in late october arguing this to a federal court as the president gets ready to tell us, oh, it was sincerely held. i was inaccurate. this is blaring in front of a federal judge. how does it happen? do they not communicate? >> no, no. look, i wrote about this in my column two weeks ago thursday. an address like the president made the promises, goes through a process called staffing. the staff secretary has a draft of the president's remarks from all the senior aides to the president and other parts of the government like in this instance to the secretary of health & human services. this was looked at by a dozen and a half of the senior aides. they knew it was a lie and collaborated because they thought the white house press corps isn't going to say anything about this. it's president obama saying it and people would believe it.

we used the promise to sell it. we have to use the promise to make people feel comfortable. we know it's a lie. the president's people were either unwilling to say, mr. president, you have a responsibility to tell the american people the truth. this served our purpose as well. shame on them. >> how shortsighted is that? >> enormously shortsighted. remember. we have 4.2 million cancellations thus far. remember this. that's not #.2 million people. that's 4.2 million policies. most policies cover multiple people. cover your spouse, your family. those are the policies cancelled in 29 of the 50 state and the district of columbia. 51 jurisdictions, we have numbers from 29 of them. the other 21 states, 22. including texas. but the regulations are applied

everywhere. all the requirements that will kick the plans out of compliance and make them not qualified to make coverage more expensive will have a huge impact. 32 to 52 million out of the 75-man policies. >> i think they believe -- >> it was deliberate. >> they were going to come up on health care.gov would be so dalzing people would say, thank you for getting my group insurance or individual insurance policy cancelled because i love what i'm seeing on health care.gov. >> the essentially benefits provision requires all things to be in there including for single men to have maternity coverage including things for addiction treatment and mental health. pluses up the benefits and requires them to be expensive. a medical lost ratio drives up costs. younger people have to pay higher premiums. >> they will subs dice a lot of policies.

>> sure. >> most people really aren't going to -- most people had their policieses cancelled, don't qualify for subsidies or they don't offset the costs in the way of premiums. they knew it would happen. you cannot say we'll require all the additional benefits. we're not going to layer on the things that will drive up costs and not have premiums go up for the vast majority of americans who had coverage, liked what they had and will lose their plans. >> several of the architects of obama care admitted they knew premiums would go up for in particular the younger people. they knew it. >> that's the whole purpose of it. >> good to see you. >> the secretary of education taking serious heat for calling out white suburban moms who had the nerve to complain about the education system. we'll tell you what he said. we want to know what you think.

go to the kelly file. like the show page and send me a tweet @megyn kelly using the hash tag # kelly file. do you believe the president knew? ♪

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program common core approved in 5 states and the district of columbia. saying the moms who were complaining about this, he says this. they realize that, quote, all of the sudden their child isn't as brilliant as they thought and their school isn't as good as they thought it was. has a problem with the white suburban mother belief. late today mr. duncan said he regretted the statement and its clumsy phrasing. joining me now, dana laesh and julie riginski former adviser to senator frank lautenberg. let me start with you. you home school your children. common core is a big deal with parents who have children in public schools because it is changing the way we test our children and in some ways educate them. so it's controversial. tell us why the secretary of education seems to be so upset with people like you.

>> this thing about arnie duncan is he needs to meet the many, many diverse families who provide more diversity, education than he realizes. we home school our kids. i have two boys, aged 12 and 8. at a certain anyone they decide if they would rather go to a traditional school. they get to make the choice with our input. i'm worried as a parent because common core isn't just going to affect public schools. it's already affecting private school and standardized testing which ultimately, no matter which route you go to teach your children will will affect those who choose to home school. it doesn't teach to children in manner best suited to them. it removes district sovereignty. all the way to washington, d.c. it's bad uh news. >> common core has been the subject of debate in the country in recent months and years. what is the secretary of education doing inject ing race into the matter? why is he saying it's white

suburban moms who think little sally is perfect? >> i thought at first when i read it i was appalled. then i realized he's talking about people like me and my friends. we obsess about getting our kids into the best preschools, into the best kindergartens and go to harvard. what that does, i have friends who teach in public schools. i hate myself for this. while i have a baby i'm sure i will be a horrible person in ten years who tell it is teacher how to teach. instead of letting the teacher do their job oh. again, i'm speaking -- >> you're a white city mom. >> i am. >> does he get it done when he says tonight, i used clumsy phrasing i regret. >> yeah. >> that was to day that. >> i'm sorry. >> i live in st. louis city. our schools barely have

accreditation. that's also a concern. for arnie duncan to inject race, school choices is common ground that common core has given the opposition. everybody wants quality education. the thing about common core. talk about telling teachers how to do their job. it actually binds our teachers. i know many fabulous teachers who are up in arms over common core. it suggests bureaucrats know better than the educators. >> can you imagine if he said, it's only inner city black moms who are complaining. >> well, no. >> imagine the blowback if he said that. >> i'm not defending the phraseology. >> where is his apology to the white suburban moms. what is the clumsy phrasing. >> he probably shouldn't have said it. i understand who he's talking about. >> he get as relative pass. some are calling for him to resign. do you think he would survive if he said, it's only black inner

city moms. >> of course not. he's talking about the latte drinking, suburban driving affluent moms who care more about the kids getting good grades than learning something. >> just because you live in the suburbs doesn't mean you are affluent. >> that's what he's referring to. >> where is the accountability on that. >> this is how the white house sees it is issue. >> i want to know the president's reaction to arnie duncan's comments that white suburban moms are pushing back on common core standards. >> i haven't spoken to the president. i haven't seen arnie's comments. >> is that an appropriate way for the secretary of enl indication to talk about people by qualifying them by race? >> i didn't see the comments. >> that's helpful. >> not acceptable.

>> what if the foot was on the other shoe? >> legitimately -- >> i mean the other foot. that's not right. now i'm confused. he should not have phrased it that way. having said that. he's talking about a very specific type of mom. >> i disagree with that. >> there is a huge illness in the country of entitled moms saying -- >> now you're doing it. >> excuse me? >> now you're doing it. saying entitled mothers are white suburban mothers. >> it under scores -- we have heard the word affluent, entitled. the people i have heard criticizing common core depend upon public education and have no recourse. >> as a matter of fact, i grew up the daughter of a white suburban mom. we were neither affluent nor entitled. >> amen. >> he's a 5-year-old fighting leukemia and wanted to be batman

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come true to be batkid the city council man thought it was an appropriate time to tweet about how wasteful the big event was sending out this saying, quote, waiting for miles the batkid and wondering how many thousands of san francisco kids living off snap food stamps could have been fed from the money. the twitter reaction was quick andly vicious calling him everything from a wet blanket to things we cannot repeat. the council man got the picture and tried to send this tweet. loved the brave little batkid saving san francisco. inspiring to see him and make-a-wish foundation unite us all around compassion for our children. after that failed to calm critics he rushed out a press release that the good folks of gotham for a day, otherwise known as san francisco should have worded his response differently even if a fraction of those who took steps to eradicate hunger in san francisco. he's the same council man who

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i was just reading some tweets and people aren't happy with mr. mar. t not at all. keep them coming. follow us on twitter. and follow us on facebook. thanks for watching. see you tomorrow. god willing. i stand by what i said there. >> the left doubles down on the obama care lies. >> the fact is it doesn't matter what we are saying here. what matters is what happens at the kitchen table of the american people. >> did oprah winfrey use the race card? >> i think there is a level of disrespect for the office that occurs because he's african-american. >> he warned us about the dangers of obama care back in 2009. >> i promise you it is worse for doctors, for patients. >> four years later the prophecy is sadly being fulfilled. >> but the reality is it hasn't