you can't, don't be one. miss megyn up next. please remember, the spin stops here. i'm megyn kelly, live in new york city. and tonight -- >> new fallout after america's top law enforcement officer shares a shocking message. suggesting the state has to enforce the laws they like. >> plus, when did you learn that people -- >> a sneak peak ahead for lawmakers as they desperately try to hold the senate. and drama at the custody hearing of a massachusetts teen taken from her parents. the same group that fought in the terry schiavo case steps in. >> nothing is being done to teach her, to help her. >> tonight justina's father and

the folks who helped terry join us. a controversial bill in arizona puts the state on a collision course with religious freedom. breaking tonight, what is being called an unprecedented approach as the presidential administration already underfire for writing its own laws, now tells prosecutors across the country they can ignore some of the laws passed by the states if they see fit. good evening, everyone, i'm megyn kelly. for weeks we have tracked the growing controversy as the obama administration comes under fire for both liberal and conservative legal scholars. extending its power well past what the constitution allows. today a new twist, as america's top law enforcement officer, attorney general eric holder now tells a gathering of attorneys general from across the nation, these are states law enforcement

representatives that they only have to really enforce the laws that they believe in, that they believe are constitutional and can decide to ignore those they think might be discriminatory. republican congressman is set to testify tomorrow at a house hearing on the president's recent rash of executive actions. we begin with jonathan turley who is a constitutional attorney and a professor at the george washington university law school. this is quite something. under republican administrations and democratic administrations, attorneys general have decided in rare instances not to defend a law on the books. but to them, polling the states attorneys general and say, i wish you'd consider doing it to. in particular, the question is, on gay marriage, whether this is a bridge too far for eric holder. your thoughts. >> i find it troubling, not because he's speaking to his state counterparts.

the attorney general would reach out to his state counterparts and they'll try to coordinate their position on policy. the problem is not giving advice, but the specific advice that he's giving. you know, many of us were troubled by the role of attorney general holder and the administration in the last challenge. essentially the administration left that litigation in midstream and refused to defend the federal law. and it created a pileup in the courts. it's not clear who could defend the law. and the same thing happened with the sister case from california, hollingsworth, where ultimately the court found there wasn't standing to be heard in front of the supreme court. that's the price of this tactic, if you withdraw your defense from these -- of these laws. there may not be someone there who can advance the case. >> it's like these laws are

almost like criminal defendants who get a state appointed lawyer, but in their case, the state appointed lawyer doesn't show up, and nobody else hassed power to step into his shoes and so big shock, these laws tend to fall. >> that's what's so troubling. i happen to agree with the president in this area, i did not agree with how they handled doma and these cases. as lawyers, we have an obligation to the legal process. we should have a full and fair hearing of these issues. there's good faith arguments on both sides, i just don't agree with one side. >> but eric holder is saying, and he said it at the federal level, what was unusual about what he did at the federal level when he close not to defend the defense of marriage act, he had been defending it for a year and a half, and suddenly he went in and said, there is no good faith basis on which this could be defended. that was unusual, because he had just been defending it for a year and a half, all these state a.g.'s have been defending a law

that has been passed on their books by their constituents, signed into law with their governors, he's saying to them, maybe you guys don't have a good faith base to defend those laws, which were duly passed by electora electorates. attorney generals assert the right to be the sole defender of these laws. when they leave, when they are absent without leave, there's no one there. i thought what holder's mistake was, this is why i thought his advice was bad today. he didn't create a substitute, somebody that would guarantee a full and fair hearing, he was just saying pull the ladder up behind you. and that's a serious problem for the separation of powers. you know, doma was duly enacted by congress, and signed by bill clinton. and this is a problem that congress is facing, i'll be testifying tomorrow at the same hearing as the congressman, and this is one of the issues we're going to have too deal with it.

it is a serious problem, i alone can defend statutes as the representative of the united states. and then he's just not there to do it. >> i declare that this statute is indefensible and i don't care what the people of my state have said. in many of these states, the attorney general is of a different party than the sitting governor, you can see politics may find their way into it. we look forward to hearing your testimony tomorrow. >> thanks. >> all the best. >> he is going to testify on capitol hill about these power grabs, we've been watching at an executive level. the president's use of executive orders and executive action has caused a lot of consternation in the country. tim rice is a republican out of south carolina and author of a resolution titled, stop this overreaching presidency. he's being called -- good to see you, sir. professor turley's going to go in and talk to democrats in particular, and try to urge them to find a way to challenge this

president. now we see it, not just at the presidential level, but even at the attorney general level. it's -- i know that the state legislatures pass laws and the republican governors and the democratic governors sign them into law. we will tell you which laws are good and which laws are bad, and to hell with you if you don't like it. >> that's what our stock resolution is all about. article ii, section 3 of the constitution is clear that the president shall take care of the laws of the land. the president doesn't have the right under the con still tugs to pick and choose what laws or parts of laws he's going to enforce or who he's going to enforce them against. he's shown a pattern of doing this over and over again particularly with the affordable care act. >> my question to you, though, is what are you going to do? we had professor turley on the program before who said, the problem is, how do you force people to abide -- people in the

white house. how do you force them to abide by the constitution and limit their own powers? >> well, article ii -- the stop resolution 442 if the passed by the majority of the house of representatives only was the house as an institution would bring a lawsuit against the president to enforce his obligation into the constitut n constitution. >> you try to get a judge to declare that the president has done too much? exactly right. you know, the president -- >> if the judge issues it, who enforces the order? >> if the judge finds the president's actions unconstitutional, those actions will be null and void. the -- >> you need someone to enforce it, who would that be? someone who works for the president. >> well, if the president -- if the court finds that the president's actions are unconstitutional, i guess congress could go further. initially, what we have to determine, nobody argues with the president that has any discretion, right?

everybody knows the president's got some discretion. but here, particularly in the area of the affordable care act, when he delays the employer mandate now for two years, i'm a tax lawyer, a cpa. the supreme court has ruled in holding the affordable care act constitutional, that these mandates were attacks. the president has no right to delay a tax. he has no right to say that this group -- >> we have established the controversy over those behaviors, we have not established the path forward for lawmakers like you who want to challenge them. i think it's interesting you're looking into it. and even the democrats -- >> all the employer mandate. >> i have to go to a quick break. >> if the supreme court rules his decision was unconstitutional, the mandate will apply retroactively. >> we shall see. >> sir, thanks for being here. >> thank you, megyn. we're also digging into a stunning led line today from the

fda. federal health regulators are debating a technique that would allow babies to be created from the dna of three people, not just two. that's being called the dawn of designer babies and the implications are mind-boggling. trace gallagher has more. >> reporter: the hope of this technique is to some day eradicate mitochondrial disease which can contribute to epilepsy and other diseases. they want to begin testing on a small group of women who carry the defective gene. only the mom carries the gene, they use mom's egg but take out the mitochondrial dna. baby gets mom and dad's traits with the healthy donor's dna. it's a big time social and

ethical concern that will lead to designer babies where parents can pick eye color and intelligence and height. they believe it could lead to unintended disease down the road. this is a biologically extreme procedure that puts children at risk and that breaks a longstanding international consensus against producing genetically engineered humans. the fda would be the first government to ever approve this. there is risk, but you can't let the fear of the brave new world stop medical progress. >> it's a different issue than saying, i want to figure out if i should use this to make a taller baby or stronger baby or smarter baby. this may open the door for doing those things, but i'm not sure can you hold the baby's hostage and say we're not going to fix diseases because it might lead to a slippery slope. >> we should note the parents of

justina say she has mitochondrial disease. and whether she has it or not is at the center of the custody debate between them and the state of massachusetts. experts say they will allow this in small trials. >> thank you. also tonight -- >> when did you learn that people -- >> it wasn't -- >> it may be the most telling press conference we've seen since the obama carrollout. watch tonight as one top democrat fights to defend her vote and her senate seat. plus, a kelly file investigation after we learned the va has been destroying thousands of medical records as a way to deal with the backlog of troops not getting help. >> it's just a matter of getting in there and cancelling them ourselves. honestly? i wanted a smartphone that shoots great video.

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>> is there a specific time frame? a day, a week, a month -- >> i am sponsoring the bill, where you can keep it on a permanent basis. that is one of the fixes that needs to be made to the affordable care act. and i am supporting that. >> when did you learn that people would be able to keep their plans? >> it wasn't -- >> was it after the law was written, i guess? did you have any time line on when you realized this would be the case? >> well, once again, as i said earlier, it wasn't clear that they were selling -- they had to go and cancel that. >> that clears that up. >> you got it? you got it now? >> well, i've got it, here's a

tip. if you are not going to answer those questions, do not hold your press conference close to the exits. the reporters will follow you. they will go with you into the parking lot and say -- >> is that like the white house press briefing? >> this is not get smart, you do not go down in the basement and talk on your shoe. >> we're standing in the parking lot, and would you please explain? and she didn't. the one thing here is, this should not be a tough question at this point. there needs to be an answer among democrats at this point. they cannot continue to live in fantasy land. they cannot continue to live in a world in which they say, well, it's a little dicey right now, but it's going to be okay. it's going to be the march on saturday. the problems continue to pile up, the disappointments continue to pile up. that's true, but they still haven't addressed the fundamental concern which is

they made a false promise to the american people with this law, there is going to be a huge electoral consequence of that. they haven't figured out what to say. >> the president has admitted they've fallen short. they're falling short right now of their initial numbers they wanted by the end of open enrollment, which is the independent of march, which is 7 million. in anticipating the failure to reach that goal, you have kathleen sebelius coming out and talking about, 7 million was never -- that's not -- i don't know where that -- well, i'll let you hear it from her. >> first of her, 7 million was not the administration, that was a cbo congressional budget office prediction when the bill was first signed. i'm not quite sure where they even got their numbers. >> who knows? >> oh, we do. >> well, i think success looks like at least 7 million people having signed up by the end of march 2014.

>> hello, kathleen. videotape magic. >> but here's the thing, she knows. here's the reality for her. she is the marked woman, inside the administration, when the time comes to take the fall, it's going to be her, everybody knows it, at this point she's grasping at straws. >> the problem is, denying reality. >> this sort of dishonest talking points about this law pervade the administration. it's not just sebelius, who is going to be put on the ice flow, and cast back to kansas. what about the rest of the administration, the president, he throws fake numbers out. >> the president just tonight, speaking of his supporters came out and said look, we have 4 million so far. can we talk to a nice person.

maybe they watched the president speaking, a nice newscast. you know those folks, people that come in with all this information, but it's just wrong. we didn't get the lie of the year, that was you. >> gut look, again, this is this parallel universe in which the president is inviting democrats to come live. this is going to be okay. what he has to tell them is this, whatever number they come out with a month from now, and say, it was 4 million, 5 million, 6 million, they will declare it a great victory. as long as that bailout train rolls to the insurance industry, it's going to be okay, and they're going to call it a victory. guess what, the newscast that the president thinks people ought to be watching will agree with him. it's a massive success. he feels content. >> i'm not quite sure where they

even got their numbers. chris, good to see you. >> you bet. >> where on earth -- we're pulling the 7 million out of the -- coming up, new developments in the fight of justina. her father is back with us, with an exclusive interview on the emotional painful court hearing yesterday and the gag order remains in place. remains in place. but luke will not be deterred. ♪ with an innovative showerhead remains in place. but luke will not be deterred. plus wireless speaker, kohler is the proud sponsor of singing in the shower. i'm tto guard tir manhood with train depend shields and guards. the discreet protection that'just for guys. now, it's your turn. get my training tips at guardyourmanhood.com

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new questions about the va and a claims yis is after audio recordings reveal the veterans affairs discuss a backlog of medical requests surfaces and the tapes suggest that those employees decided the best way

to deal with the crisis. >> this evidence showing that thousands of veterans went years without getting their checkups and some did not get them at all. mostly because the hospitals are understaffed. also because veterans medical files were destroyed to eliminate the backlog. former marine and va employee says they get 3,000 requests every month. every six months they have about 13,000 backlogged exam requests. the wait list accounted against their efficiency levels. so he alleges the hospital would cancel older requests, destroy the files and now the daily caller has obtained audio to back up that claim, listen.

>> i'm still taking orders. >> should be cancelled? >> cancelled. >> it's just a matter of getting in there and cancelling them ourselves. >> the female voice goes on to say, those patients may have gotten treatment elsewhere. the ig sent the complaint back to the va hospital, he sent a letter to congress, and a few months later he was fired. leaders did purge some of those requests, but still were treating those who needed it, and the whistle-blower's contention is, you cannot treat those who need it because their files have been destroyed. we tried to contact the va several times today, they did

not call us back. joining me now with reaction, fox news contributor, and ceo of concerned veterans for america. i don't understand whether they just got rid of old x-rays that they decided weren't necessary. the office of special council seemed to say, we don't need to look into this any further, basically what happened was every va was told they could do a mass purge of all outstanding imaging orders. and that's basically what happened out in los angeles. is that all this is? >> that's why they wouldn't comment on it, of course. >> there's some of that, they were so far backlogged, there are cases that have been resolved. we're going to deal with that. this isn't new news. they've been fudging numbers and appointment dates for a long time. this should be alarming, whatever adjective you want to pick. they're deleting, they are -- and the marines have stepped up and said, i will not be a part of this. i will call my office and i will

not throw other vets under the bus to try to make my performance metrics look better. he believes in the interviews, he knows that there were legitimate appointments with veterans still waiting who were cancelled to make performance metrics look better. it's all about bureaucratic cya. that's what you see. >> in the law, you look for corroborating evidence. this is on paper, they did this to cover up the fact that there's a backlog. do we have veterans out there complaining that they've had appointments and they can't get in to have these appointments and there's a backlog. nobody ever calls them. do we have that? >> i think we do. got an e-mail from a friend of mine whose buddy he served with at that los angeles facility. waited months or years, never heard back at all. almost died because he didn't get the medical. didn't get the examination needed to identify what he was suffering from. and later on in that audio, they

talk about dismissively, some of them have died, and some of them have other appointments, so let's just delete them. they're not -- this is -- they're not thinking of veterans as customers, they're thinking of them as numbers through a process. customers need to be served one by one, each one of these has a story, they've served on the battlefield of this country and deserve to be taken care of. bureaucrats are covering their butts. >> what's the big deal? so you go to another hospital. the va doesn't call you back. go to another hospital. >> you cannot go to another hospital. you don't have a choice, and that's something that washington should address. this facility, if it had a cometer, a way the vets could go somewhere else to get this care, it may be accountable to provide better service. those in charge of the hospital can't get fired. there's no accountability and there's no portability and there's no trans parents. you ask for comment they don't give it because they don't have to, they hide behind their

paperwork and titles and no one holds them accountable. if a veteran could choose, that would be a great option. unfortunately, they cannot. if you're stuck, you're stuck. >> my mom devoted most of her career to helping vets at the albany, new york hospital. there are some who want to cover up malfeasance or negligence. >> big controversy over a bill in arizona. there is news with that group of nuns devoted to helping the elderly and poor and their fight with the government. the obama administration questioned whether they were religious enough to get the exemption. that's what they claim. >> the elderly are at risk. no one to speak for them, stand up and express to the world and

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well, the, look. the problem with this bill is, it's not entirely clear, i've been trying to catch up on it sometime now, exactly whether the bill would do what supporters say or whether it would do more which is what critics say. it's one thing for a bill to say if it could say that, exactly, that it would be possible to be legal on religious grounds to deny goods or services in support of a gay marriage.

marriage is a sacrament. and one can make, though chris chibz differ, one can mick a case someone in the business of photography or baking cakes should be able to say no to services or a cake involve in a marriage ceremony this, bill would allow businesses to refuse to sell or provide services to a gay couple, anyone who is gay. if they can, or medical services, perhaps, to someone on the basis of fact they're homosexual and their religion for bids homosexuality, that seems to me that is a magnitude greater than legal rights to deny services to a gay wedding

where religion is purely involved in the sacrament of marriage. >> what is this about? we hear from folks on the religious right they say they feel religion is under attack i look at the bill and wonder whether this is a reaction, an overreaction, to people who feel under attack on this score, and in, in the end, you know, they may have thrust back in a way that is deeply offensive in a way to many and dangerous to folks who are -- needing medical services being denied. >> well, that is right. and i think it's a little hard to tell with the bill not having been signed and put into affect and tested, it was a would be in the courts. exactly how the bill would play out f it's fact it would go so far as to allow christian doctor deeply conservative in his views

to deny treatment it's hard to imagine this, but i suppose it's possible, if that is the case it seems to be a big huge overreach. but i, look. this goes to a larger question. it's do people of faith feel they're rights and sensibilities are under assault? but i don't think we're far from the most where someone will propose in congress the public accommodation section of the civil rights act of 1964 would be amended to say a restaurant or a hotel or transportation service you could not deny that to a person not only because of race, ethnicity or sexual orientation.

i think that is broblly coming. maybe in the today, or tomorrow, but before long. >> it's interesting. senator rand paul got into hot water but a lot of libertarians feel we never should have had those public accommodations laws and shouldn't be debating this because businesses should rise or fail based on public backlash against them when they denied services back in civil rights area to black asks today, it would be to gays and lesbians that is not the law, however. >> but you raise an interesting point going to the question of where being gay stands now, in the public's feelings sentiment on this issue of gay marriage is shifting rapidly. in favor of of it. in favor of having it be accepted and tolerateed and made part of our national life. that does raise a possibility if nothing were to happen here,

anyone denied service to someone based on the fact they're performing a gay marriage ceremony or were already married would be bad for business. it's a possibility that exists >> i like the blue tonight. that may be my favorite so far. >> thank you. i got this in scotland last summer. it's got the st. andrews cross on the sleeve. >> fancy. >> i like it. >> you're so fancy, brit. enjoy florida. >> up next, drama in a custody hearing. a group that fought for terry schiavo now steps into this one we speak to the girl's father, lou pelletier as well as one of the groups fighting this fight >> every time i see her, my knees buckle. it's tearing apart the family. d,

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hospital for the flu, doctors there disagreed with the tufts diagnosis. they accused the parents of medical abuse. they called in the state department of children and families and before you know it, they were before a judge who ruled that the state should have custody of this young girl and she's been in their custody for a year. lou is her father, he's fighting to get his daughter back. a grassroots organization is lending support to the family. >> we saw your wife literally being taken out on a stretcher. what was so upsetting that she collapsed? >> everything we were hoping for to happen yesterday blew up. from finding out that the new medical facility, the people that were going to be in charge

of her medical care weren't going to be her tufts doctors, instead it was going to be umass in worcester, massachusetts. the constitutional lawyers we brought in to assist us, were being blocked from seeing her. number three, it was crushing to find out she was being moved from the facility she's in which was in framingham, to a dcf run facility to marimac facility, which is purely psych, not medical. >> the folks at boston hospital believe this is in her head because they disagree with the diagnosis she received at tufts. the reporter on the scene said they could hear you almost a floor away yelling inside the

courtroom. what were you yelling about? >> twin going back and forth because my oldest daughter was obviously upset. our whole family was enraged with what went on. having my wife pass out on the floor of the hallway. i finally went into the courtroom and the judge was there and i just looked at him and i said, how can you look yourself in the mirror? it was just -- we just went through this on friday where i wasn't there, my wife and my daughter were there, and by accident her shirt lifted up. >> justinas. >> in your supervised visit you saw her shirt lifted up? >> yes, with the five dcf employees and the state trooper in the room. >> that was not a usual event? >> normally there's two troopers, this time there was

five. the shirt lifted up and they see these severe dark red lines from where her port was. that's either a sign of poisoning, sepsis getting to the system or some other critical thing. if they hadn't seen it and raised a red flag, she could be dead today. that's poisoning going into her system because it wasn't working. >> needless to say you're not satisfied with the care justine is getting outside of your custody. what are you doing in this case. everyone followed the terry schiavo case, it was the issue about the value of a single person's life and how we define that. why would you step in on a case like this? >> we were moved and touched and our hearts broke at the fact that the dignity of justina is not being cared for properly. i moved as a father, just sympathizing with lou, saying if this was my daughter i would want someone to speak up and

speak out on her behalf. we became involved to mobilize the nation and get people to hear the story. >> is that happening? >> it's beginning to happen. we're starting to ask people to call the judge, dcf. we'll have a vigil outside the facility where justine is being held. approaching lawmakers, things of this nature, to raise awareness, to build pressure upon the state of massachusetts for this injustice. >> what the main thing is, this is on court records, the only abuse you've been accused of is doing what the tufts doctors wanted you to do, and what the insurance companies paid for. why would they pay for these procedures that were totally unnecessary. the doctors said do it, you did it, and another hospital said that's abuse. based on that case you lose custody of your child for a year. now the year is over and you're not getting her back. now she's going to yet another

facility. and the question is, how long can they keep her away from you? has anybody answered that question for you? >> no, just like they've ignored the fact that her sister was medically diagnosed. because the problem with mitochondrial disease it's still in its infancy as far as testing. they can treat it, but dna testing is still in its infancy. my daughter jessica, it came back positive. there's a genetic marker for it. there's a high probability one of her sisters have it. you're looking at treating the symptoms, if the treatment is working, it quacks like a duck, it is a duck. it sounds like it's mito chon treeial disease, it is. >> that's what the tufts doctor was saying. we're going to have much more

with lou and with keith right after this break. some time? the next time you nt a dvd, don't bother rewinding it. the way i see it, it's t next guy's problem. oh, larry. she thinks i'm crazy. mm-hmm. but would a crazy person save 15% on car insurance in just minutes? [ chuckles ] [ malennouncer ] 15 minutes for a quote is crazy. with esurance, 7½ minutes could save you on car insurance. welcome to the modern world.

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we're back now with lou and keith mason. let me ask you as someone who fought in the terry schiavo case. that was a question whether this woman was potentially brain dead. that was the argument whether she should be kept on feeding tubes or not. ultimately the decision was not. the folks in that case said this is about government intrusion on the family's decision. do you believe that this is also a case of government intrusion? >> absolutely. and i think it's dimmenationing the dignity of the human person.

that's what we're seeing is the state of massachusetts stepping in and with the medical care being diminished, seems like she's so -- under such poor care with the government. >> how do you decide, though. >> lou's detractors say she had to be taken away from the parents. they were imagining an illness and having surgeries performed based on that. >> i think the facts are clear. you look atler under the care of her family, and under the care of the government, it seems to me the government is treating her as a piece of property. that's what's mobilizing us to step in. >> the question of the gag order has this been discussed, you believe that's why there was a police officer at the visitation on friday? >> it's possible, but the gag order just like permanent

custody was pushed off until march 17th or 24th, another month where they kick the can down the road. a child's life is on the line, they don't care. let's kick the can down the road so they can buy themselves more time. >> we're glad you're speaking out. it's a story in which our viewers have a lot of interest. >> people can -- prayers are the number one thing we can ask for. >> thank you so much. we'll continue to follow it. [ male announcer ] hands were made for playing. legs, for crossing. feet...splashing. better things than the joint pain and swelling of moderate to severe rheumatoid arthritis. if you're trying to ma, now may be time to ask about xeljanz. xeljz (tofacitinib) is a small pill, not an injection or infusion, for adults with moderate to severe ra for whom methotrexate did not work well.

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♪ h-o-t-w-i-r-e ♪ hotwire.com we promised you an update on the little sister. we'll have it for you tomorrow. welcome to hannity, we have a jam packed edition of the show. america, are you ready? let's roll. >> on the left. >> i'd much rather spend the money on food stamps than a strong military. >> what exactly are president obama's priorities? continuing reaction to his decision to gut the military. >> that brings me to my first question. >> oh, boy, here we go. >> and another round of ask sean coming your way, you ask, i answer. >> i never trust her. in