notified members of congress. that hearing continues. you hear what jack king said about that. good to be with you, melissa. happening now starts right now. have a great day everybody. >> will take it from here. a fox news alert as a vice president mike pence is about to arrive on capitol hill. he will be ready to cast a tie-breaking vote to confirm betsy devos as secretary of education. the senate expected to vote on her nomination less than an hour republicans hold a 52-48 majority. this could be his first attempt,

stent as presiding over the he will be casting that deciding vote to confirm betsy devos. mike, what's going on? >> that's right, john. we are outside the capital entrance awaiting the arrival of mike pence. a historic moment, as you mentioned. the first to have a tie-breaking vote from a vice president for a cabinet secretary from our research we have done. publicans here on capitol hill shortly behind executive office. bottom line, most republicans, like betsy devos because they feel she's going to shake up the education in thisthey feel it nn up at this point. the teachers unions of the country have come out strong against her. we've seen rallies, we know

offices have been lighting up the phone calls. people protesting betsy devos is nomination. mike pence is basely blaming democrats obstruction. it he's probably saying he's going to come up here as vice president and to cast the deciding vote and she will be the next education secretary, that is, unless of course, we have another replica defection. we've had to democrats -- whenf the phones are ringing off the hook. the teachers unions have been effective in mobilizing trying to protest betsy devos. those folks are strongly behind betsy devos, those. mitch mcconnell says this is the slowest cabinet process.

george washington, of course was thrilled because he was at starting a whole new system of government. republicans are making the case that democrats have just been running the clock. they are doing this needlessly and trying to deprive the new president of his full team. today is a critical vote in the senate for one member of president trump's team and we know the senate wants to get four cabinet secretaries done this week. an ambitious schedule in the senate which is not known for moving quickly after divorce, there would liked to do jeff sessions for attorney general, price and steve minutiae. if they run all the hours. saturday morning before we are done, that's why this and it. we await vice president pence's arrival on capitol hill. >> jon: at mike emanuel on a day in which history is excited to be made. never before has a vice president had to cast a tie-breaking vote for a nomination of cabinet secretary. we'll see it shortly in the case of betsy devos, we believe.

it mike, when the vice president gets there, we will get back to you. thanks very much. ♪ meantime, a huge legal showdown looping right now with the federal appeals court set to hear arguments for and against president trump's immigration orders. a hello, welcome to happening now. i'm jon scott. >> jenna: hi, everybody. i'm jenna lee. the president will decide which noncitizens can enter the country in the interest of our national security. opponents say the troubled man violates the cons dish and because muslims. we are awaiting the start of those arguments a little later on this afternoon. it let's get the latest from our chief white house crest on it, john roberts. it john? >> there's no question about the legal maneuvering around here. at a call, 6:00 p.m., as a

president and justice department try to get get a temporary restraining order overturned and to get his extreme betting program reinstated. it let's take a look of the starting lineup tonight of judges. a three-judge panel at the ninth circuit court of appeals. at william kami will be on the telephone for phoenix. he was a carter pointy, richard clifton will be on the phone in hawaii. she was appointed by barack obama in 2014. a few minutes ago, the president said he will take the fight to reinstate his order as far as he needs to go. listen here. >> it's very important to the country, regardless of need or whoever succeeds at a later dat date. >> he said that we need to have security in this country. forming argument that the white house is going to argue today. at first of all, the central argument that the doj is making on behalf of the white house is at the president has expressed statutory authority to suspend entry of any class of aliens.

at the federal law gives the president broad authority to impose restrictions on entry of immigrant and nonimmigrant third-party aliens for whatever period the president deems necessary. argument number two, this is only a temporary measure while new screening center put in place to protect against terrorist attacks. argument number three, this does not apply to legal permanent residents, unlike what washington state and minnesota claim in the district court. the fourth argument here, that washington state and minnesota do not have "standing" in this case. the constitution stipulates that the federal government has exquisite control over who gets in the country. "congress did not commit in east procedural right." the white house also stepped on its message a little bit last

night, releasing a list of 78 terrorist attacks across the globe. they're saying they're not getting appropriate tension by the media. certainly, jenna, some of these terrorist attacks did not become headlines, but the headlines also included things like paris and orlando and san bernardino and brussels, which got saturation coverage by the media for days. the list might have been a little broader than the white house would've liked. >> jenna: john, thank you very much. it >> jon: we are also continuing to stand by for our top story this hour. as you mentioned at the top of the hour, a contentious vote lies ahead in the u.s. senate. at present trumps nomination of patsy devos to be secretary of education expected in less than an hour. vice president pence will likely be called in to break a tie after two republicans said they will not support her nomination. after an all-night session with democrats trying to turn a third republican senator against a nominee they insist is not qualified. meanwhile, democrats appear to be united in the opposition to

trump nominees. a headline in "the washington post" reads, virtually all sonic democrats vote against cabinet picks. we seem to have turned an interesting page in this country, aaron, where democrats are just saying flat out that they will not support any of the president's nominees. that's not the way traditionally adds work. >> no, that is generally not the case. a good example recently as the early opposition to neil gorsuch is supreme court nomination. democrat's are pretty strong against that and and a way thae are not used to seeing with the sprinkler nomination. i think this is just kind of a continued journey towards further and further polarization. up votes i didn't used to be part of the issues are now inherently partisan. the other big thing here is this

is just a sign of how incensed the democratic party base is by president trump. they want their members to vote against pretty much every thing he does. republican said that for a number of years and they think it's their turn. it's going to be very hard for these democrats to go along with much of anything president trump does going forward in these first few weeks are any indication. it is going to jonah, are democrats simply ripping a page from the obama playbook here? >> to a certain extent, i think that's fair. once i bring a knife, snacks they bring the gun. the escalation of the polarization that we've seen for 30 years is just getting worse and worse. the democrats are recognizing that it was in their political interest to be pure obstructionists for obstructionism sake much earlier and president trump's administration then republicans came to the conclusion and

president obama's administration. it was until the stimulus basically forced their hand where obama went unilaterally with it or at least that's where publicans felt, where republicans learned they can all pose obama and not pay a price. democrats are and they could oppose trump from day one without paying a price, certainly in mainstream media. the moment where donald trump could reach across the aisle and won over some democrats may have already passed, given what the democrats are doing. it >> jon: we should expect, aaron, that virtually every cam and ebony from here on out is going to be voted on a long party line? >> i don't know if it's going to be 5248 on every vote, i think you're going to see a majority of democrats voting against most or all of these. democrats view this as a strategy that worked for republicans. republicans won big and the

midterms in 2010, 2014. at that one back of the presidency in 2016 on largely a strategy opposing obama. it they argued that was purchased in a bold's. the fact is that we are in a country where the majority of states are red, leaning states and a majority of congressional states are red leading district districts. they have an interest in carving a divide between the two parties because they had that kind of inherent advantage. i'm not sure if he had democrats have is obvious and endgame here. it's not as much a political calculation as it is them reacting to what their base basically demands of them. it >> jon: interesting that so much is coming to a head and the betsy devos nomination. >> i think aaron makes a good

point here. the problem for the democrats is first of all, what they are doing is grotesquely hypocritical given that they've said that any obstruction to obama was not illegitimate but actually racist. now they are doing it from day one on things like cabinet appointments. you would think they would want to get the government at least up and running. the democrats are a party of government, so when they obstruct government, it's a more difficult conversation for them to make with voters. in terms of devos, the remarkable thing here come of most passionate intensity is to stop this woman who is considered essentially a double figure by the teachers union. they're saying bad things about jeff sessions, they were saying bad things about other people, the one thing they're going to the mattresses on is the one person who wants to get to inner-city kids and to potentially hurt teachers unions, which are basically a cash cow for the democratic party. it's gone fascinating. really interesting, we will be

watching it all. perhaps in this hour. thank you gentlemen. >> jenna: a manhunt intensifies in florida. police can be closing in on these two accused killers. john kelly testifies on capitol hill for the first time telling lawmakers how president trump's immigration order was implement it ct and repair corrosion before it ever becomes a problem. because safety is never being satisfied. and always working to be better.

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>> jenna: a fox news alert and a big story here. new satellite images show that iran has been preparing a new missile for launch. at that missile has been removed from the launchpad raising new questions about iran's intent and the timing here. >> hi, jenna, there has been a

flurry of activity that officials have been watching closely since iran launched missiles on generator a night, prompting an emergency meeting of the u.n. security council in a day later, the white house issued a strongly worded statement putting iran on notice. days later, u.s. officials watched as iran quickly cleaned up the site and prepared another missile on the same launchpad at a site located 140 miles east of tehran. we are learning this morning that that new missile has been removed from the launchpad, is not clear why. new satellite imagery from february 3rd obtained exclusively by fox news from image stat international shows that the missile was used to put a satellite into space but at the pentagon is concerned because this missile uses the same components used.

they issued a new warning to the white house suggesting a response to president trump this friday, february 10th, the anniversary of iran's revolutio revolution. it's not clear why iran removed that missile from the launchpad. it could be a technical problem or perhaps, iran is reacting to the news the sanction has been put on them by washington. >> jenna: thank you very much. if we are going to be talking about how the u.s. should be dealing with iran in the wake of a new missile test track or not. on the heels of the countries supreme leader mocking. more on that in just a few moments. it john? >> jon: it right now, president trump homeland security is testifying on capitol hill for the first time since his swearing-in. extending his actions to lawmakers concern about how president trump's immigration order has been implemented. peter barnes joins us now with more on that.

>> the dhs secretary is parachuting the legal battle over the order that temporarily bands people from seven majority muslim countries. friday, as you called, a federal judge blocked that order saying it could harm certain immigrants and their employment, education, freedom to travel. an appeals court in san francisco will hear oral arguments on the case later today at the house homeland security hearing going on right now, secretary john kelly, said the president is on ferment, legal, and constitutional ground to issue his order. >> he will prevail and be able to take the steps necessary to protect our nation. americans must feel safe to walk on the street, go to a mall, or a nightclub anywhere and anytime. fear must not be the status quo as it hasn't so many parts of the world.

>> kelly said the president moved quickly with his order son targeted countries could not exploit a window to travel to the u.s. before the ban took effect. it just in the last hour or so and immune along with equal shares of the white house, the president said has a administration mistake the order "through the system" ." this going to peter barnes, joining us from washington. thank you, peter. >> jenna: amanda berry is using her ordeal to help other people have gone missing. her new mission just ahead. plus, rising tensions between iran and the united states. iran's supreme leader mocking president trump. we'll talk about what could happen coming up next she looks years younger than she should.

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>> jon: fox news alert, mike pence is a vice president of the u.s., but he has president of the u.s. senate and he is on his way to capitol hill right now. we believe that we have seen the motorcade it, yes, there it is. it the vice president's motorcade just committed to pull up to the capital building where he will cast a tie-breaking vote for the first time ever on a cabinet nomination. no vice president has been called upon to break a tie on a cabinet nomination until, we believe, today. we believe that the final tally on the nomination of betsy devos, the secretary of education will be 50-50. the vice president of the senate and mike pence will cast the vote. in the meantime, democrats are continuing to do what they can to stall the devos nomination. there's patty murray who is well

in the senate right now. there is vice president mike pence heading up the stairs with bodyguards and some obvious support staff on his way to serve as president of the senate and perhaps break this type. if that's what we expect. it >> jenna: democrats have been going for about 30 hours, john. while some of us were sleeping, they were on the senate floor and making sure this is continuing. it they are checking to take it to the absolute end before the vote has to take place and that's what we are inching towards at this moment. it is a historic day for the vice president to cast the ballot, as john was mentioning, for a cabinet nominee. the vice president has done this before for other issues in the past, but not a cabinet member. the last time that a vice president broke a tie >> jon: dick cheney.

there is her research, it's been more than eight years since there is a tie in the u.s. senate and there apparently is going to be one today. democrats, as jenna mentioned, spent all night trying to find one more republican to join them in opposition to betsy devos. if they were able to a compass that, then her nomination would have been gone to defeat, it appears to be a 50/50 tie with all 48 democrats voting against the divorce nomination. >> jenna: we should mention that this pattern will likely repeat itself. the democrats intend, is our understanding, they will again do 30 hours of debate, essentially, and keep the clock running it to the absolute last point and have a vote for, example senator sessions to be returning general. they're going to be tired. i don't think i'm going out on a

limb there, john. it shows exactly what the democrats in ten days this time around, to slow the nominations, so the process as much as they possibly can. it's gonna taking advantage -- >> jon: they say they will use all 30 hours of debate. it >> jenna: we don't have that much time. there are escorting tensions between iran and the united states. their leader mocking president trump calling him a newcomer. this coming after eight new sanctions levied on iran by the chubb administration after their ballistic missile tests. he is editor-in-chief of the jerusalem post, co-author of a new book "the weapon was her" "

i want to mix into this pot the exclusive report having a pentagon, that over the last week or so, iran was attempting to do another missile test, or so we thought. they have taken that missile down sometime after the national security advisor mike flynn put them on notice. we don't know why. it could be any number of reasons. we don't read too much into it, mark. here's the question. we've been in a certain paradigm with iran over the past eight years, how do we think creatively to break that paradigm? to move this relationship in the direction that we want? >> jenna, i think it's worth remembering that iran is an enemy of the united states. the directory want to move it and as you want you to turn the iranians from further aggression and we want to make sure the iranians don't use the nuclear deal they reached with the united states and other countries to take what i call "a patient pathway" ."

it's good that the national security advisor, mike flynn, has put the iranians on notice. the treasury department has followed up with new sanctions and i expect many, many more. it >> jenna: what do you think about it? considering your knowledge of israel, our key ally in the middle east. >> i think there's a change in the tone, rhetoric. what we have seen over the past year and a half and plus since the iran deal was reached between the p5 plus one and iran that was toned down. it seemed iran could get away with things that it wasn't allowed to violate in the past. now, that has changed and as flynn has put iran on notice, this new escalation in rhetoric by the supreme leader, we should look at it as rhetoric, the point is, i think the iranians understand that this change here in the white house and the administration in washington also might mean some different significance from their perspective when it comes to the iran deal. from israel's perspective ultimately, it wants to see that

if the deal is already there, it is a fact, it needs to be enforced. the radiance need to know that they cannot violate, test ballistic missiles, though it might not be included in the deal. >> jenna: let's talk a little bit more about the rhetoric, mark. they say the rhetoric from iran is hot, you don't want to meet that with equally hot rhetoric. it's going to explode. that's one theory. we've seen the rhetoric from the obama ministries with tempers. what do you think as a result of all that talk? >> i think it's a distention between rhetoric and action. the obama administration had very soft action. they continued their aggressive activities. i think the supreme leader is really afraid of donald trump. it they are seeing a team of administration officials who are

going to be much tougher, so i would expect this kind of rhetorical outrage from iran, i think it matches some deep-seated fears of what the united states is willing to do and what they are finally willing to use all instruments of the american power. it >> jenna: that leads to an interesting question of what gift of unpredictability when it comes to leadership of a foreign policy? >> from israel's perspective at least, it could mean that iran will recalculate. it might decide that it needs to, because of the fact they don't know it trumpet might do, they don't what the repercussions will be, of how they unloaded that launcher. it might be a satellite launch vehicle, but if it also has the capability to carry potential, a one-day nuclear warhead. this could also be an indication

that they are recalculating, reconsidering what their action should be, because they understand that this has changed and they don't know what how td what is happening in the white house. >> jenna: i'm going have to leave it there. it thank you so much gentleman. we'll be right back with more happening now

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soldiers. >> the battle has somehow slipped out of the headlines recently. it's going to get more aggressive. we are already seeing that as evidence on the street. they are using the decaying bodies of isis fighters by the roadsides as a warning to isis sleeper cells, but also to the locals who might support them. not to mention the serious health risks of leaving dead bodies out for weeks in a city that has little access to water. nevertheless, locals don't seem to mind, seeing it instead as payment for isis sins. >> they destroy humanity. it they insulted people and humiliated women and elderly, everyone. the last thing is to leave their bodies in the street as an insult to them. we can bury them now if you wanted to, but we want to insult them. >> meanwhile, the battle

continues to rage with iraqi troops now beginning their assault across the river to the old city where the streets get too small for armored vehicles and were isis using many civilians as shields. collateral damage continues to rise. the casualties, civilian or military are significant. there are reports today about the morale within isis, some people saying that they are bringing doctors notes to avoid getting out of the front lines, citing back pain and headaches as a reason for not fighting. that being said, there are still thousands of dedicated isis fighters willing to put on their lives for the cause. >> jenna: what insight. benjamin, thank you. >> jon: talk by the future of obamacare and i with house speaker paul ryan making it clear that legislation to replace it will be completed this year. he says it may take longer to

actually implement the replacement plan. this, is a "wall street journal" editorial. it reads in part "all of a sudden, the prez is filled with stories about republicans retreating from their promise to repeal and replace obamacare." the orderly transition to a more stable and affordable health care system is merely beginning. joining us now, liz smith, a former deputy campaign manager for martin o'malley. tony, what do you think about that slip of the editorial? >> i think it analyzes the situation right. at this a huge policy, health care, that is. it's going to require some give and take. i reminded the press into my democratic friends, when obamacare is being processed

through the legislation, it received a lot of opposition from democrats. nearly 40 congressional democrats voting against it. for passage in the senate, they have to do it through reconciliation that we didn't have enough votes to do it otherwise. from the 23 different co-ops coming to have eight completely debunked. 400,000 less this year than last year. that's because obamacare never made health care affordable. it was going to liz is shaking her head. >> there are 400,000 people less because the muslims uninsured is at an all-time low. that's just arithmetic. let's look at republicans and how it has shifted. they went from repeal to repeal and replace to repair to donald trump saying let's wait a year until we do this.

that's because this works for the constituents and a repeal and hurt state budgets. that's because congress people and they go home on the weekends, they are these loud protesters. this is true, grassroots protests. there are a lot of trump voters who like obamacare too. >> jon: if there are problems with this thing, why rush to find a replacement? why not take some time? >> i agree. that has been the democratic position for a long time. hillary clinton actually ran on repairing obamacare. barack obama, for the last two years, has said we need to fix this law. it is not perfect. we need to lower the cost of prescription drugs. i'm glad the republicans have come up to the democratic position. >> barack obama did not assign

or even entertain at one of those. those are repair bills by the way. the reality is we are getting caught up by this vernacular. ed is going to be repealed and replace and part of the replacement is to fix it. you do that by lowering costs and bringing in changes to the system. art of the trump and i would say at ryan's proposals, use the emphasis on lowering the premiums, getting rid of some of these rules and regulations, which are already making the insurance markets more affordable. >> jon: it let's move our panel to another controversy old topic. the wall. senator tom is holding a conference right now he discuss this on "fox & friends" this

morning. >> we are redirecting it towards immigration and away from this family reunification where bureaucrats don't think we have enough and an unlimited refugee system. it >> jon: it liz, what about that proposal, not basing immigration on family reunification, but unemployment needs. >> they are against measures like a tom cotton's. he is right about a few things. our system is broken and wages are too low. it has proposal is not the way to go about it. when it comes to immigration reform, people want to see how we address millions of undocumented immigrants. >> i think with high skilled labor, there is a push for the

visa programs to be enhanced. if that is a bipartisan measure, but i think the other idea that is introduced as america should not have immigration system used against it. that's why the borders goes to target some of the holes in that system. when you look at a refugee program or going to countries that we know don't have adequate betting on their side. we need to make sure we have extreme vetting on our side to make sure we understand who is coming to our country. that's where i think he's going to have a lot of support as well. we are finally talking about it. we've done nothing about it in eight years of obama, now this is part of a congressional organization. >> jon: thank you both. >> jenna: up next, what a meeting later today the white house could tell us about the future of foreign policy and trump administration

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>> jenna: president trump is looking for his number two official at the state department. later today he is expected to meet with rex tillerson to discuss elliott abrams, a forme former. at the job is among the most important vacancies in the government and here to explain why is rich sn who is live at the state department. >> this afternoon, president trump will meet with rex tillerson, just a couple of blocks from here at the white house. he needs a deputy, elliott abrams will be in the conversation. he served under president george w. bush. he has written a few recent articles. one republican is already an firm opposition saying he pushes

a foreign policy that has gotten us in trouble. we have been at war for 25 years, aprons over the terrible appointment for countless reasons. he doesn't agree with the president and so many areas of foreign policy, and he has said so repeatedly. he has a loud voice for nationbuilding. meanwhile, the state department official is now commenting, . state department official says "at this point, indications are that this legalization is likely to be reviewed by the relevant israeli courts, and of the trump administration will withhold comment on they legislation until the relevant court ruling." they also said that it would go to a national court for opposition. at that official doesn't say

that the trump administration strongly opposes any type of case against israel in a criminal court, saying that that would only be a detriment to the process. >> jenna: rich, thank you. it >> jon: using her traumatic experience to help others, amanda berry, the young woman held captive and equivalent house for ten years before she was freed. oh what she's doing now to try to re-night others with their families. plus, party time for patriots nation. it is big super bowl victory.

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what's ahead on outnumbered appear at sandra and harris, what do you have ahead? >> the vote for betsy devos begins within the hour. our question, will mike pence be become the first vice president to cast a tie-breaking vote? >> all that plus our #1luckyguy #1luckyguy. >> jenna: right now, an ohio woman who escaped after being held captive is using her ordeal to help others. amanda berry is 1 of 3 women held prisoner inside a cleveland home for ten years. all three escaped back in 2013. their captor, ariel castro was sentenced to nearly a thousand years in prison and later committed suicide inside his jail cell. barry is now joining a local

cleveland television station and will host segments reunited and missing people with their families. her first report aired yesterday and her colleagues say she's a natural. >> jon: a list take you to boston now where it is an unofficial holiday. not a whole lot work getting done today because patriots fans are pouring onto the streets by the thousands for that parade, celebrity one of the greatest comeback victories in the history of sports. we are alive along the parade route where things are turning to wind down. it molly? >> the balls are just coming by here. confetti is flying. this is what we have been waiting for a morning, they've stood in the snow, freeze in the rain to see these boats come by. right now, you see some of the key players. we can see the lombardi trophy being lifted up as well.

there is bill belichick going by. at this is why patriots nations came out today. they want to say congratulations to their team. their historic when sunday nigh night. fans getting a good ten, 15, 20 people deep. they're taking about a mile and a half tour through boston. they are going to have a big rally to celebrate that fifth super bowl win. there been a number of big championships and the city. this is something of the city does well into something the fans have turned out to sea today. it john? it >> jon: i'm a little concerned. and the live shot when we first came to molly, they handed the lombardi trophy to the defensive coordinator. everybody knows the defense doesn't handle the ball well.

i don't want him dropping that thing. >> you have to be careful, going after the pats nation right now. you don't want to pick on any little thing. people are in a high right now they don't want to hear any negative. it's all about celebrating toda today. you're in the wrong spot if you say anything bad. it's going to congrats to fans. for the rest of the nfl, next year is our year. >> jenna: that's right. and the next hour of happening now, many are dead and a rebel held town in north syria. we will take you there live with more information. plus, we are on the verge of a historic vote in the senate. the vice president will break a tie and confirm betsy devos as the secretary of education.

>> jon: historic day in the u.s. senate. we'll be covering it and we'll see you back here and an hour. >> jenna: outnumbered starts now. >> harris: fox news alert, confirmation showdown could we make it a front row seat to history and a first. at the senate is set to hold an up or down vote on betsy devos for education secretary and it's expected to be a type. vice president mike pence way to cast a vote to break the tie. if that happens, it would be the first time avp has decided a cabinet nomination in our nations history. this is outnumbered. i'm harris faulkner. sandra smith, meghan mccain, and abby huntsman. today's #1luckyguy very funny.