world. name and town if you wish to owe peen. word of the day, do not be a popinjay when writing to the factor. miss megyn is next. the spin stops here, we're looking out for you. new developments on a pair of rulings today regarding obama care. the powerful d.c. circuit court of appeals concluding this morning that the way the federal health care exchange, healthcare.gov is set up violating the law. it concluded the subsidies offered to make health care affordable were never approved by congress. according to one harvard public health scholar. the ruling will significantly cripple obama care. another liberal scholar agreed, there's no use sugar coating it,

if this ruling is affirmed, it would throw the law into chaos. the vast majority of beneficiaries would be unable to afford think premiums and millions of people would drop out of the insurance marketplaces. the health care law does provide for subsidies to make insurance more affordable for some. it says that help can only go to folks who buy insurance through an exchange established by the state. got it? the state. not the federal government. the problem is, only 14 states and d.c. bothered to set up an exchange. the other 36 let the feds do it through healthcare.gov. nearly 90% of those who got coverage through the website received federal subsidies, subsidies that have now been ruled legal. all hell will break loose on

this already chaotic law. premiums will skyrocket. the dreaded death spiral were not enough people to enroll in obama care could very well doom this law once and for all. however, another very similar case was decided today by a different appeals court. that one came down in the administration's favor. the fourth circuit court of appeals in virginia ruling that congress did need to meet these subsidies. this will go do the u.s. supreme court. millions of people face another round of uncertainty, when it comes to their health care. something near and dear to their hearts. all thanks to a law most americans never wanted. jonathan turley, good to see you tonight. >> thank you. the administration suffered a bad blow in the d.c. circuit court of appeals. how is the supreme court likely

to rule? >> it's an interesting problem. these two circuits are divided by a river, you stand on one bank, and the health care is in robust health, and you stand on another and it's on life support. it's a real conflict, the judges looked at the same law and came to die ametrically opposed view. the fourth circuit said they would defer to the irs, what the irs said is the meaning of the law is the meaning of the law. >> let me just jump in. this is yet another circumstance where congress failed to say all that much in the law. they said state exchanges. the the irs said don't you worry. they don't mean states, they mean states or the feds. and they're all too happy to start rewriting the law, even

though the people's representatives were not there to approve it. >> i agree with the d.c. circuit opinion. i don't see the ambiguity. i find it odd that a line that says that tax credits are linked directly to states with state exchanges is viewed as somehow ambiguous. what happened is this interpretation came out when an unexpected event occurred. when 36 states decided not to create their own exchanges. and that promises a possible exodus and a cascading failure of the aca. and the administration stepped in and avoided it through this interpretation, what's really involved here is, big decisions are really not about health care. they're about how powerful federal agencies have become. the fourth sirks it says the law is what the irs says it is. the d.c. circuit says the law is what congress wrote as its meaning.

it's a real sharp dichotomy. i think what you're going to see is, the obama administration appeal will not be the supreme court, but the d.c. circuit as the end decision. >> there's a three panel commission acting on this today. that's just the next step, and if that court rules in the administration's favor, it's still going to go up to the supreme court, is it not? most likely? >> i think it is. >> the fact is, this is one of the largest federal programs ever attempted it should not go forward with questions of legitimacy. >> and what happens if this goes up to the u.s. supreme court. and let's say the supreme court rules in favor of the d.c. circuit as they did, and they say, you know what, the law said you only get these subsidies if. it didn't say state or federal, it specifically said state. that's how we're going to interpret the law. you have people across the political spectrum today saying

that cripples obama care. that will gut the law. at that points or a year from now at best, people have the subsidies, they bought the insurance. it goes away, the subsidies are now illegal. health care.com gets shut down, what happens? >> it will be a bloody mess. the president was found by the d.c. circuit to have seceded his authority, violating the separation of powers. in this case, that violation heads to the commitment of hundreds of billions of dollars in the past and future years. and that is a serious problem. now, no one's going to ask those people to pay the money back. but the entire premise of the aca is viability, is then at risk. i don't see how the aca can survive without this system. at least in the form -- it was originally designed to have. now, does that mean it will

collapse? it would collapse unless congress would be willing to make massive changes and massive subsidies to back those up. >> and good luck with that with a gop controlled house and the law more unpopular than ever. professor jonathan turley, thank you. >> thank you, megyn. the white house dismissed the ruling saying it has no practical impact for now. josh ernest spent the majority of the media briefing taking tough questions about the violence raging in gaza, about the shootdown of the passenger plane in ukraine and about why with all of this going on, the president is tonight at a fund-raiser. the second one he has attended today and just one of six over the next three days. ed henry is live at the white house tonight. ed? >> the president will be on to san francisco and then los angeles to continue that fund-raising. six as you say over the course

of three days is under fire tonight because despite all the crisis you just laid out, fund-raising has dominated his schedule over the last few weeks. remember last week, just hours after the jetliner was downed over ukraine, he continued that schedule in new york city with fund-raising. two weeks ago, it was the border crisis in texas dominating the agenda. i pressured josh ernest on why the midterm elections are consuming so much of the president's time, listen. >> what about the president's time? what about the fact that there's five workdays this week, and three of them he's fund-raising? >> i think i will hazard a guess that a significant portion of the president's time each of those days will be dedicated to participating in the daily briefing, getting updates from this national security team about the situation on the ground. making phone calls to world leaders. >> the white house's point

tonight is that the trappings of office follow the president wherever he goes, he can get secure phone lines on air force one, talk to world leaders, huddle with his national security team. they sort of have this worried mentality, they don't worry about the optics of all this. the fact that on wednesday the president was expected to go on jimmy kimmel's late night talk show and they cancelled that show. they understand some of this criticism is taking hold. >> thank you. it's not just the media or political pundits. top members of his own party have taken note. today democratic senator dianne feinstein of california said this. >> look, i'm not going to tell the president what to do. but i think the world would very much respect his increased attention on this matter. >> i think the leader of the free world has to be strong. and this is a time where strength is necessary.

>> robert zimmerman is with me now. wow! dianne feinstein. not going easy on the president, your take on it. >> she was pressing her point of view about the foreign policy crisis we're facing. >> do you agrow with her? >> i think the president has been strong. he has shown leadership -- >> you have to do it continuously. >> absolutely, that's part of the drill. you look at the president's record, even netanyahu gave the president great credit, we had peace talks moving forward. >> but at a -- you heard the questioning with ed henry. out of five days this week, three of them he's going out on fund-raisers, he does it at a politically sensitive time all the time. the night after the benghazi murderses, he went out to vegas and fund-raised. did he go to the border to visit the crisis? no, he went to austin and had a fund-raiser. as the plane comes down, he goes

to more fund-raisers. the crisis continues this week, more fund-raisers. >> all his critics would embrace him and support him if he didn't participate in fund-raisers. in fairness both parties play the political game. after 9/11, when george w. bush used the tragedy of 9/11 exploited it in the midterm elections, my party criticized him for doing it. now you're seeing the president criticized by republicans. >> dianne feinstein is not a republican. >> no, she's not. i don't call that a criticism. >> she's asking for leadership. >> it doesn't mean he should abdicate his responsibilities to build his coalition and major y majority. fund-raising at the expense of governing, that's not the issue. >> does this show an anxiety about losing the senate?

>> there's no question going into the midterms that the senate is up for grabs, and he could swing either way. it's critical to his governance, as it is for every president. but let's try to put this in some sort of realistic perspective. the issue is not the president's fund-raiser. it's the hypocrisy of the right wing republicans. when they saw a republican president engage in fund-raising, they didn't advocate -- the bigger point is -- >> it's not just the republicans. >> who cares what the pundits are going to say. when you hear dianne feinstein coming out and saying, leadership would be great right now, that would be terrific, mr. president, people perk up and say, this is crossing party lines now. >> she's talking about one aspect of his policy she differs with him on. >> she's ripping on the fund-raisers many. >> here's the reality, if you want to -- i find fund-raising abhorrent. if you want to change the

system, then you've got to step up and try to put laws in place to provide more transparency, support the udall amendment. democrats are doing that, republicans are supporting the status quo, which means special interest money, and increased super pac dependence. >> the risk to him is that he runs the risk of looking insensitive. no words can adequately express the sorry we feel over this loss. i'm out of here i got to go to a fund-raiser, where it costs $10,000 for an individual and $32,000 for a couple. >> had we repealed citizens united. >> no response to my math joke? >> actually, it wasn't bad. >> i took a real risk. both math and a joke. >> we're out of time. >> great to be with you. >> here's the truth, i got that from my husband.

over the last few weeks, a growing number of editorial writers have questioned why the obama administration has been caught off guard by the series of crisis. especially since several of them came with early morning signs months ago. chris salizza threw the white house a lifeguard. brit hume is our senior fox news political analyst. he joins me now. brit, the point of that assertion is what? >> this president is having a hard time. george w. bush left office with a low popularity rating. and after having waged an unpopular war, the case is made. it wasn't made, you may recall, when barack obama was running and bush was still president. that the job was too hard. we all thought that the anointed one was going to come in and we were going to be back in clover again. the last time we had this

argument that chris cillizza is making was back in the carter administration. may i quote to you from a book by the conservative commentator and author, steven heyward, who wrote a book called the age of reagan. he took note of some of these comments we're making, hearing about now and from the time. this from barbara tuckman. the job of president is too difficult for any single person. joseph craft, the presidency as an institution is in trouble. the fire hydrant of the nation. newsweek magazine has defeated the last five men that have held them, it is in danger of becoming a game nobody can win. that's the argument cillizza is making. those arguments were made halfway through the reagan administration at the end of the

carter administration. >> even when george w. bush was in trouble, were the writers trying to throw him a lifeline? >> this is an argument made by liberals on behalf of democratic presidents who are having a hard time. >> let's kick it around for fun. these are the reasons, the decline of the bully pulpit as a persuasion mechanism. they failed to articulate their point as well as they needed to. deep partisanship and the splintering of the mainstream media, the rise of social media. >> well, all those things have happened. i don't see how they -- i don't see how they make the presidency all that much more difficult. president obama's not in trouble because the mainstream media have splingterred. he's not in trouble because of social media. he's not in trouble necessarily because of the partisanship. the trouble he's in tonight, think of this, this presidency took office, thinking about how

he was going to bring the country together. he passes his health care initiative on a totally partisan basis. this court decision is as good an example you'll see of why it's unwise to do that. >> if he had offered things to the republicans that were tempting to them and he didn't. and a number of them, there will be a cadri of them that would have voted for the measure, at which point it would have become a bipartisan bill. there would have been republicans willing to join democrats in congress to fix it, as it is there aren't any. the house of representatives is in the hands of the republican party and firmly so, largely because of this very bill. this is the problem that he created for himself by choosing to go the route he went. >> the obama care bill was rammed down the throats of the american congress.

the white house wouldn't have it, they changed the rules in the 123459 and pushed it through. now they seem shocked that these same people's representatives and states who bore the brunt of the law aren't willing to work with them on a solution. >> that's exactly right, and this is a question -- the difference between being smart which the question is, and being wise, which i think he evidently is not. this was a very unwise thing to do and to do it the way he did it. this is the kind of thing that happened. the way you overcome partisanship is, you compromise. we have a lot of republicans that don't want to compromise. i'm not praising them tonight. this president has never mastered the knack of creating allegiances with some in congress in exchange for their votes. on the stimulus, which was liz first major initiative to try to revive the economy, he didn't have any republican support at

all. if he had had it, he would be in much better shape politically with his party now that these things have become a problem. >> if you are going to a fund-raiser and the price is $10,000 for an individual or $32,000 for a couple, don't you say, kim who? i'll meet you there. >> what does the splintering of the mainstream media have to do with that? >> how dumb do they think married people are? there's breaking news tonight on the irs, with accusations that the agency may have lied to a judge about evidence it claimed was missing. the latest on lois lerner's missing hard drive. the political and legal fallout ahead. plus -- palestinians are winning some new sympathy with daily reports about civilian casualties in this battle with

israel. john bolton takes a critical look at what's really going on here. and first on the kelly file, the head of the marine corps just went after the commander in chief with a very public and harsh critique. this is almost never done. oliver north weighs in on why a sitting member of why the joint chiefs appears to be challenging the white house. >> i think the world is a -- needs to be taken seriously. in that light, it comes back to the united states of america, the matter of what's our role in it? what's our responsibility? do we have one? well, did you know words really can hurt you? what...? jesse don't go! jesse...no! i'm sorry daisy, but i'm a loner. and a loner gotta be alone. heee yawww! geico.

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the death toll continues to climb on both sides of the conflict between israel and hamas today. the palestinians seem to be winning new sympathy as they bear the brunt of the losses, despite many, many attempts on their part to kill israelis. here's a little of what we've seen on tv over the last 48 hours. >> they killed innocent children, women and elders. we're using the building as a shelter, they thought this place was safe. >> they hit us with missiles, destroy our houses. >> i'm sorry for every death,

whether it's israeli or palestinians. the numbers and facts are very clear. they do undermine the whole israeli prop canada that is trying to dehumanize palestinians. >> joining me now, john bolton who is a former u.s. ambassador to the united nations. this seems to be the strategy, to get out there and talk about the civilian deaths, which no one likes to see, but israel's defenders say they try to avoid. and hamas is putting these people in the line of fire, there's not much israel can do about it, if they want to stop the rocket fire coming into isra israel. >> very cynical, somewhat successful, otherwise, you have to say israel, your civilians are going to be in jeopardy, because of the barbaric way hamas uses its civilians to shield its casualties.

>> to americans who don't pay as much attention to this. you see the children wailing and the devastating scenes with the dead bodies, i mean, what do they need to understand? >> they need to understand that the instigator of this has been hamas, and i think more fundamentally, iran, which has supplied the longer range, more sophisticated rocket capabilities. >> why does iran want to see this war going on between israel? >> they're two sides of the same coin. they're ways to put military pressure on israeli civilians to keep israel pinned down and not focus on iran's nuclear program which tends to move along. hamas has conducted war over the state of israel for years. unless you're prepared to say, you can only engage in war in a limited fashion, israel has a

right and an obligation, a moral obligation to protect its own civilians, we would feel the same way. >> andy mccarthy has an interesting piece out today. where he talks about the hamas charter, article 7 which says the time will not come, until muslims will fight the jus and kill them. until jus hide between rocks and trees many there is a ju hiding behind me, come on and kill him. >> how is netanyahu going to negotiate with these people? >> i don't think you should negotiate with terrorists, the palestinian authority has demonstrated it's not interested in negotiations either, by forming a coalition with hamas. this should result in both of them being shunned in my view, instead the obama administration has just given over $50 million more humanitarian assistance for the palestinian authority. >> and now today the faa banned all u.s. aircraft from flying to the airport. israel responded by saying, gee,

thanks a lot, that's going to help a lot. meaning it's not going to help us at all. what are your thoughts? >> i would like to know who influenced the faa's decision. this puts economic pressure on israel to increase the likelihood they'll agree to a cease-fire. in my way of thinking, it proves the opposite. it's why israel can't live under this constant threat of being rocketsed. >> they don't seem shy about defending themselves. >> why should they be? >> international public opinion in my view can take a flying leap. when your civilians are being attacked by terrorists. you do what you have to do to protect your people, especially in a democratic society. >> you've explained why iran likes this fighting. why is hamas -- do they take their marching orders from iran? oh, look at what's happening to us, poor us and the evil israel. >> i think it's a combination of things, it's what iran wants to do, i think this is terrorists

behaving like terrorists behave. they're motivated by ideology, not motivated by the same factors that affect the average american suburban household. they're motivated by a desire to destroy the state of israel. every time we tell israel to negotiate a cease-fire, that day gets a little closer. a dramatic imagine in new york city today, where the flags flying over the brooklyn bridge were replaced with white flags. why do the nation's top marine take on the commander in chief. an extraordinary moment on tape colonel oliver north is here next. plus, the terror group isis taking its war on christians to a whole new level. telling them to convert to islam leave their homes or die. see why the administration had to say about this right after the break. >> the future, i don't know what is going to happen to us.

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be its largest campaign against christians indeed the largest campaign against christians in modern history. katherine harris is live in washington with what's happening now and how the state department is reacting. katheri katherine? >> the ultimatum was posted on the group's twitter feed, facing a deadline to convert to islam. hundreds of families in northern iraq are affected. the christians on the syrian border have lived in these villages for hundreds sometimes 2,000 years dating back to the time of christ. they carrie arabic writing which reads long live the islamic state as this christian reads. >> our future is uncertain, our house is now gone, they took it and put it under their name.

they wrote islamic state on, now what many. >> asked about the expulsion of christians, the state department condemned the action. >> these are abombenable acts, we are very clear they demonstrate isil's mission to divide and destroy iraq. >> a key department position has been vacant since october. >> i look forward to nominating our next ambassador at large for international religious freedom to help lead these efforts. >> christians face higher rates of religious harassment in the middle east and north africa than any other region. in 2010, christians had dropped to only 5%. >> thank you. >> you're welcome. also developing tonight, it's almost unheard of for a

marine officer to openly criticize the white house. general james amos appeared to go after the commander in chief last week saying the disaster in iraq could have been avoided if only we had done things differently. >> i find it hard to believe, knowing how iraq left in 25010, the marines, and what it looked like whm the last u.s. forces left, that we would be in the position we're in today in iraq, had we had the right forces, the right leadership, the right mentoring, the right government -- >> courage was the last word. colonel oliver north is the host of war stories and author of the new book, counterfeit lies. explain to the audience who he is and why this is so unusual?

>> general amos is the commandant of the marine corps, it's about somebody in washington stood up and told everyone what they know to be true. it's clear that general amos. he is a friend, i have not spoken to him about it, knowing we were going to talk about this. i'm making an observation. it's not just about iraq, it's about the abysmal state of our military and general amos' marines. he isn't specifically talking about the president, he's talking about national leadership. he realizes that the finest military that's ever exited on this earth is being systematically dismantled and we're calling them all home and throwing them out of the service. for the first time since the american revolution, every single american in a uniform is a volunteer. and if we can't retain today the

quality of the force we're going to need tomorrow we won't be able to protect our citizens or interests around the globe. what he said is very important. it was not an off mike accident. he knew that mike was on, he sent a clear message about the need for strategy, retaining the right people in our military. and what most needs to be done issen sadding up for america's interest. the leadership of the nation needed to pay attention to this. >> talking about the absence of leadership and the absence of courage. he went on to suggest the president has -- or the leadership, has a naive world view. listen. >> we may think we're done with all these nasty, thorny tacky little things going on around the world. i would argue if you're in that region, it's not a little thing

for you. it's a big deal for them. we may think we're done with them, they're not done with us. >> does this mean he'll get in trouble? >> it means he probably won't get a high paying job when he's out of the army. i remember a general who resigned he his commission and made a statement about carter. everyone in iraq realizes that obama should have negotiated that status of forces agreement. he starts talking about that and he means it, his marines took a horrible blow fighting in iraq for seven plus years. we're not going to have the

defense if we keep cutting the defense budget. kudos for general amos for speaking this way. he knows diplomacy oath works if it's backed up by military prowess. >> he talked about the growing concerned about the troops becoming disillusioned about the gains being disappeared. >> thanks, megan. >> there is breaking news tonight, with new accusations about the irs, the evidence it claimed was missing, what it told a court and what it told congress next. a dramatic image in new york city today, where the american flags flying over the brooklyn bridge were replaced by white flags. the kelly file investigation on what this was about just ahead. >> surrender? there used to be a war and they waived the white flag, surrendering. for my retirement.

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house investigators claiming the irs has yet again misled them over the agency's ever growing targeting scandal. back in july, the irs told congress that a hard drive belonging toe lois lerner, the former irs official at the center of this investigation was irraparably broken. her data may have been recoverable after all. joining me now chris steiger wa walt. i'm looking at this, the declaration that was submitted in the case that's been brought against the irs said the lerner computer was no longer operational, no data was able to be recovered. they claim the it expert came before them and said, data was

recoverable and we recommend the agency seem outside assistance in recovering the data, but this wasn't done. what does this mean? >> i think what you have is a case where the irs officials stories are shifting by the day what's particularly worrisome, these are not statements they're making in a appreciation conference, but statements they are submitting under oath to federal judges in congressional testimony you are making yourself vulnerable to perjury charges, obstruction charges. >> this is all conflicting information and it's recent, chris, the declaration that was offered in court was july 18, 2014. no data was able to be recovered. data was recoverable.

i haven't directly 4erd it, but i don't see how you square that. >> it's like there's not enough blanket to go around the bed and people's toes are popping out. they tried one story another story. we're in a third or fourth iteration, why couldn't they get it. remember this, never forget this, in this sequence, lois lerner is the person who we have e-mail evidence that says she had a conversation right before -- remember that stage press conference where a planted question popped this story out to the front page, where the president then learned about, he said? this is the same woman who prior to that moment sent a message to it and said, do people know that corning wants to snoop through our e-mails? by the way, is our instant chat

message recordable by congress? she knew something was up, she wanted to launch this story in a more flattering way. . she won't tell us what happened. and this thing stinks. >> the democrats came out today and said, everything the gop said is false. this investigator said he was unable to recover the data on her hard drive, he told investigators he didn't think miss learner's hard drive crash was deliberate. if that's what the i.t. department within the irs thinks, what do we care if there's conflicting testimony? >> well, we care in a few respects, megan. the fact that it wasn't deliberate doesn't speak to whether they made an honest effort to salvage the data. you can whack it with a hammer, throw it in the ocean and still extract the data from it, if it

really was just a scratch, why couldn't that data be recovered? the administration's problem right now is that they don't have an explanation for how the e-mails and hard drive disappeared in the first place. once they had it, why they weren't able to salvage it. it's not that difficult a thing to do. >> good to see you. >> thank you. a dramatic scene in new york city today where the american flags were replaced by white flags that typically signal surrender. the kelly file investigation is next. plement good bacteria found in two parts of your digestive tract. i'm doubly impressed! phillips' digestive health. a daily probiotic.

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a dramatic scene in lower manhattan today, where two american flags flying on top of the iconic brooklyn bridge were replaced with two white flags. trace gallagher has more. >> the brooklyn bridge is considered a terrorist target so it has police guards 24-7 on both sides of the bridge as well as video surveillance. and yet at 3ug 30 in the morning, someone or some group was able to block out the bridge lights, climb over or around blocked gates. maneuver up a quarter mile of a steel cable, unclip the steel

fasteners holding the flags and lower the 20x11 american flags and replace them with bleached out american flags. >> there's an indication they have experience climbing in construction or bridgework. >> for now, all police have to go on is surveillance tape that shows a group of four or five people crossing the bridge on foot at 3:00 in the morning. police do not believe it's related to terrorism or politics, but the truth is, they don't know what it means. some others believe they do. listen. >> my first reaction to that is that whoever decided to replace an american flag with a surrender flag is saying to the world that we're giving up, that we're surrendering, which we are

now. >> a bicycle group jokingly took responsibility for the flags saying they were surrendering bike lines. people have been tweeting the show. what is your tip for staying in shape. i have a very good tip for you, and i will give it to you after this. follow me on twitte twitter @megynkelly. tell me what you do. i would like to educate jon stewart and his clapping studio audience to let them know hamas is an offshoot of the muslim brotherhood. they were part of the -- ♪ don't miss a step...

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regret later. i lift three weights between 25 and 35 pounds. they're 4, 3 and my little thatcher who turns one-year-old tomorrow. what do you do? we'll see you tomorrow night with marco rubio. welcome to hannity, this is a fox news alert. violence is escalating between israel and hamas. the death toll is rising by the hour with no end in sight. a rocket fire wounded one israeli today and prompting the faa to prohibit all u.s. airlines from flying to or from tel aviv for 24 hours. the u.s. is now sending $47 million in humanitarian aid to gaza to help the palestinians? john huddi is standing by on the border, with the