>> obamacare could be on life support after a day of extremely tough questioning at the supreme court. hello, i'm kimberly guilfoyle along with our panel and it's 5:00 in new york city and this is the five. you are looking live outside the supreme court where the individual mandate was begin intense scrutiny today. if it is upheld americans will have no choice but to buy health insurance. it's all going to come down to the nine justices and could have serious implications on the november election. justice anthony kennedy considered the key swing vote in the case. here is the mandate. >> the reason this is a concern is because it requires the individual to do an affirmative act. here the government is saying that the federal government has

a duty to tell the individual citizen that it must act. that is different from what we have in previous legislation. that changes the relationship of the federal government to the individual in a very fundamental way. >> i don't think so. >> kimberly: a lot of pressure on one justice i think many can handle it. it could come down to a 5-4 vote. let's go to eric. >> eric: here is way the vote is so important. we know the four conservative leading justices, there they are roberts, championships thomas scalia and alito and the others were appointed by clinton except for justice kennedy. he is the swing vote because he doesn't fall on the conservative

side. there at times he'll take the liberal side. case by case he'll talk about the abortion issues and gay issues, he is not consistently siding with the conservatives. it's also important to note he votes along the libertarian line. when you look at libertarians, they will tell you, protect this at all costs. one of his questions at all cost. one of the things he had issue with would this keeping on obamacare change wait the fundamental relationship between the people and government. you got to think he is going to lean to the conservative side. >> kimberly: interesting fact, you've heard the mandate and pivotal point in terms of the funding and whether or not can conserve if the individual mandate is struck down. that is phrase that appears in the 2009 pages.

there is a new poll saying 67% the law or entire law or mandate should be overturned. >> dana: i trust the american's people judgment. if you look at today. arguably from all sides. government did not have a good day in court. kind of surprising but some of the type of questions came from the left leaning justices or appointed by liberal president's. they are trying to get to the nub of the issue and you have to be so knocked and they weren't good enough. in the meantime, they have another problem on their hands, meek the administration. 67% polled yesterday. i had that one yesterday it was a u.s.a. today poll from february so it's consistent that about two-thirds of american public think it's unconstitutional and therefore they don't like it. what is interesting on the political cide both sides are trying to spin it's a win-win for them either way.

that is hard case to make for the democrats. >> greg: how weird is it that president obama is for a mandate but not for gay marriage. 67% they are going to blame it on poor messaging when the american public doesn't like something that president obama is for. they say it's being messaged poorly like the white house is being run on hoping pigeons. i don't understand we have the most eloquent president since taylor and this the triumph the administration. it wasn't the bill. it was the poor messaging. >> dana: they are not using the ones to defend it now. >> bob: first of all, it was only 38% of the people that you should throw the entire bill out.

the mandate, though, regrettably is critical to the law surviving because the financial aspects of it. without a mandate the insurance companies are not going to go along with the provisions. they have to go along but they will figure a way as they usually to do to get around it. 62% of the people believe the health care system needs to be changed but they don't like this bill. the other thing i would say about conservative justices, these same questions were asked in oral arguments before the appellate courts which both of which passed judgment on this and decided the mandate was constitutional. some of the most critical questions during the organize arguments came from very conservative justices. so i would not overread into kennedy. he may be putting up a smoke screen. >> kimberly: but there liberals around the board. whatever you want to call they will. it did not look good. for the government you had jeff

at this toobin who has read about and howard dean here is kennedy's words. quote, changing the relationship between the individual and the federal government was concerning him. that relationship that you keep this in tact. it tells me he is going to fall to the rit right and all the other four we don't want to go through one by one but they are asking the right questions. >> bob: do you think the right winger ares are going to say anything they said but what they said. let me make about the four conservative right leaning justices am every one of them have over their careers have been very strong about the government, the courts should not overturn what the people's representatives have voted for.

they have said that over and over again. now all of a sudden they want to go against was the people's representatives have voted for. it's very inconsistent. >> dana: do you think that is true with democrats only when president obama had both houses of congress? i don't think that would wash. >> bob: i don't think they take law and say, you have to answer but you know, this law may not quite as good as the other ones because it was only passed by percentage. but it is the law of the land. >> dana: but the reverse can't be true as well. >> greg: focus on the media, nothing is going to happen the next couple of months. so what you are going to see a frothy commonization and it sounds like a skin condition. and opponents to obamacare they don't want clean water or air or education. they want intern, put red heads

in internment camps which is true. >> dana: but they love their medicaid. they still want that their meds. >> greg: that is going to build up as way to stop this. >> eric: i spenltd with the brain room going back and forth. there is a clause in obamacare, section 1501, letter two special rule it deals really important. if you don't buy insurance for yourself under the law or if you don't provide insurance for an employee you get a penalty, right? what happens if you don't pay your penalty somewhat would you think would happen. just take a wild guess what would happen. >> bob: maybe you go to jail. >> eric: no, no jail, no fine, no lean on your house. there is no penalty for not paying the penalty.

>> dana: how are they going to do it, more debt. >> bob: this mandate idea, it was late 1980s that the enterprise institute came up with this idea. it was bob dole that put the mandate which passed. it was newt gingrich who supported the idea of the man date. all of a sudden because obama's law they don't like the mandate but it was republicans idea to begin with. it should have passed before but it did not because bob dole put it in and democrats decided not to put it in but it was a republican concept as it is even though you and i disagree dana and paul ryans forcing to buy medicare insurance. >> kimberly: let's take a listen to howard dean because he is skeptical and he could have read

it. >> i believe the individual mandate will be declared unconstitutional. everybody is a libertarian whether they are republican or democrat or independent. so it's relatively small to have the mandate. >> is that a screaming rule. >> is had a howard dean, right? >> bob: keep in mind that howard dean was against the but he was for smi, for making the government control all health care. dean was there, too. that is why it's sour grapes. >> eric: if this is uphold and the law goes through. $1.7 trillion, double it. double it. >> bob: by the time the provisions, you get healthcare

at a better position and not let doctors give all the tests they want, it will go down. >> kimberly: if you don't have the money to pay for it, then buy it. more debt. coming up, is hollywood yet about to make another movie to try to smear ronald reagan. maybe. this one involves hanoi jane fond d.a. we have all the details. don't forget to e-mail us at foxnews.com. stay with us. [ female announcer ] want to spend less and retire with more?

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♪ ♪ ♪ ♪ the liberal media and liberal hollywood slam conservative women. they try to marginize her about slurs with her ability to lead.

s pelosi faces constant mudslinging from liberals. get this anti-war liberal activists january fonda is going to play nancy reagan in upcoming movie called "the bult ler." ronnie is probably saying, here they go again. [ laughter ] >> dana: it actually looks good as a scary thing. true color. >> bob: actually i have a lot of these things. i want to say also. jane fond dark but i was proudly arrested at first demonstration at pentagon protesting against the war in vietnam. soldiers treated relatively nicely. i put flowers.

>> you were anti-war. >> bob: no. i wear this around here because i'm wearing this nor ratings. same reason you wear the silly hat you wear. >> tomorrow you will do the jane fonda work out for us. >> bob: i no people that did. a lot of people. let me say this in defense of jane fonda, she made very bad mistake where she was against the war in vietnam. so i was i. so were a lot of people. it was a bad war. it cost us 55,000 americans not to mention hundreds of thousands of civilians but she apologized for this, it was the wrong thing to do. met with vietnam veterans, i think you could give her a break. it was very short period of her life. >> eric: i tnk she may hve even called president war criminals. >> bob: they were.

>> what is it with hollywood and liberal media trashingt. kimbey: she shod be o-limits. she dignifi woman that has served h countryell. it's unfairiven herge everything s has been through. i dn't think why ty think it'snecessary. bu apparently popularity points to bas conservatives and t attacker. >> greg: i think thiss incedibl chaenging role for jane, he is going to play a human being. i want to say n bioovie coming out of janeonda. actually have been workin ith them aaking suggestions to play jane fonda. the first one is stve bushemme and danny treho.

from ma thet at this but my favorite michael berrington would be a great jane fonda. >> dana: last time i seeing jane fonda was like in mother-in-law. imagine going from that to playing nancy reagan. i got an e-mail from press secretary to mrs. reagan in the white house years. she says i love this one, i thought was cheese si and not very good script. because of jane fonda over the years she would not be able to lose herself in the role and actually try to emulate her. it's similar to meryl streep when she played margaret thatcher. she doesn't mention margaret thatcher in her thank you

speech. >> bob: in vietnam, they lied about it. they made up the gulf of tonkin. it was illegal wars in laos and cambodia. it was the most despicable war going. >> movie about nancy reagan. there is hundred more wonderful qualified ago tretsz to play her. this is stunt casting in order to get people to talk about it and it worked. >> kimberly: we're doing it. >> kimberly: it's kind of like pochoen tas attire. >> bob: you take this off and use it as a tourniquet. >> does it bother you one of the writers of "the butler," one of writers is game changers, sarah

palin hit job. >> can you imagine that to connect the dots on this one. >> bob: i will say they provide a lot of material. >> you're not a medium anymore. >> this medium. notices at medium. [ laughter ] go ahead. >> eric: if president obama what about the unions and hugo chavez i wonder what tricks he has up his sleeve. [ laughter ] ♪ ♪ ♪

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♪ ♪ ♪ ♪ ♪ seriously i thought about this all night long. president obama making a little, raising eyebrows. let's call it that. with dmitry medvedev in china, take a listen. >> dana:, but today he tried to figure it out and clean it up. what he said he was trying to explain in the next two months when the election is getting hot and heavy he won't be as able as flexible. i didn't buy it and neither did

charles krauthammer. >> it's a huge gaffe. this is president himself i'll be unleashed. i can governor hard left. i can do all this stuff unmolested. that his way of telling people you have no idea of what myend agenda is going to be the second term but let me tell you, it's pretty hard left. >> dana: and what about shake of the head. what do you think. >> greg: when he said, without my wife we can party. i know he is saying, don't be less stressed but i won't be as tough as i normally am. what is the message it sends to the polls and ukrainians but they will be bringing their silverware and learning russian. >> kimberly: i do think it's a big deal. it reminds me during the

kerry-bush campaign, bear fight in 2004 when john kerry said i voted for it before i voted against it. that became a defining moment that defined him as a flip-flopper. i think it defined everybody about president obama but i know you don't agree. >> bob: i admire krauthammer a lot. he is off the wall. you are taking a conversation and every conservative and every republican pretty much is saying oh, that means he is going to be weak with the russians on defense and missile defense shield after the elections. unless you negotiate these things and how complex they are and what a pain in the neck to try to get the russians to help them with iranians and nukes and north koreans. this is perfect time, give me some room. he does not want to be negotiating this missile treaty right now. by the way, europe alleys are firm behind -- allies are behind

this position, absolutely. >> but an open mic, it's for kareoke a at hooters. >> kimberly: what bothered me about it today his explanation he was acting like it's inconsequential and i think you'll see it in campaign ads because it's telegraphing his position and with respect to what going hard left. >> bob: let's assume that he has no intention of discussing missile defense. let's say he does have an intention to change everything or unveil his whole i don't know agenda if he wins four more years. what about cap and trade. what about paying back all the people who helped him get re-elected through green energy slush funds.

>> dana: let's talk about the media treatment, as well. that is one of my great interests. today this was on the front page of the "wall street journal" but in the "new york times" it was page 14. in the "washington post" it was page 11 and go back in 2006 when another hot mic gaffe became all the news. take a listen. >> dana: that was press secretary at the time. the president said the "f" word but he wanted to get hezbollah to attack innocent people. this was a different hot mic situation we can go back and say what they said at the time. when president bush did that it was much bigger deal. if you were the editor. >> i change my mind completely. open mics should only be for hooters.

we would not know anything. >> kimberly: luke here during the commercial break. >> bob: you are making assumptions, first of all. negotiations shall ongoing right now. they are highly technical and the ideas to convince the soviets we're going to use defense on them but missiles coming out of the mideast. we made a decision to pull back the czech republic and poland we would nut put missile batteries there. >> dana: why would you do it on an open mic and somebody that is not your peer. if he wants to deliver a message to vladimir putin. why doesn't he deliver a message. he doesn't need to do it on hot mic. >> bob: he is still president of the 7 toyota union. prediction that putin doesn't last two years. >> eric: most concerned about

the hot mic. >> come on. >> dana: look at the difference. >> israelis are our allies and now look at the reaction, come on. >> bob: they use the election for an excuse and it's a good idea. it doesn't deserve to object page 16. >> president bush was talking about an enemy and i think was deserving. >> maybe the press overreacted. maybe they did. i use it. >> dana: hot mic, open mic, hot mic date is better branding. we're going to work on that on the break. did you happen to send an e-mail or facebook. the government may be watching you. "new york times" is all over it. ♪ ♪ ♪

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live from supreme court tonight where the big story is the individual mandate. cornerstone of the affordable care ago or obamacare. can the government force you to buy health care? we have an in-depth look at the oral arguments and saw the court divided. new details in the trayvon martin case that could paint a different picture shot dead in florida. is the u.s. ready for a cyber attack target the entire power grid. iran may put the premise to the test. minority report advertising facial recognition, customizing ads to passerbys.

privacy advocates wish it weren't real but it is. and school banning birthdays and dancing. now, we take you back to new york and "the five." ♪ ♪ ♪ ♪ >> bob: mission impossible. all this is about spying on maybe you. national security agency which is an agency in washington, d.c. that intercepts telephone conversation, e-mail, internet traffic looking for terrorists. well they are building a brand-new $2 billion facility in utah, blufftail, utah. i was thinking about something

else. [ laughter ] >> bob: listen, here is the thing to be concerned about. this is now the largest computer facility in the worlding as more storage than any place in the world of them plan to intercept they say foreign information, foreign phone calls, e-mails, internet traffic even business from libraries to people. i suggest many critics have suggested that is quite possible they are going to be looking at your e-mail, your phone calls, your facebook. be careful. what do you think. >> dana: it doesn't bother me. i guess because. >> bob: because it's you, right. [ laughter ] >> unlike you and me bob, dana does not send jpegs of their vacation in thailand. >> dana: did you don't have anything to worry about. during the bush administration when the terrorist surveillance

program was revealed by the "new york times" after being asked not to because a secret because was trying to capture conversations overseas and here. but patriotic act was passed 98-0 in the zero and president obama worked hard to get the bill done. i trust the nsa and maybe i shouldn't. i trust the government on this. in particular trust somebody who help create the problem that was general mike hayden who worked at nsa and created the program in the first place. >> bob: what do you think. >> eric: i do. it's a data center and i'm for compiling more data for people that are trying to kill us. that a good thing. clapper is nsa. that was the guy that was stumped by culture host in the

morning not knowing about the london bombing taking place or attempted thwarted bombing. >> that was clapper. >> he was national intelligence director. >> bob: that is why military men run it. >> dana: i think they are solid grounds to do this. it's going to create a lot of jobs in terms of administrators and people they need there, i.t. people. so good for utah. in terms, my stuff is entertaining. >> i can't believe you are willing to give your own stuff to the government. you guys are always jumping on the government. >> greg: do i have an opinion on this? every one of your segments you never come to me. everybody, we live in a culture where everybody is sharing

everything until suddenly they find out somebody might be listening to it. the solution to in is to take this thing and turn into a network. then everybody will be want to be on on it. everybody likes to do this. how is this not facebook? what they are doing and what they are buying, go on to facebook. by the way, spying is cool. >> bob: do you want the government looking at your e-mails? what i do they have absolutely no right to get into neighbors phone calls or anybody's e-mails that are not terrorists. >> eric: it's probably under the patriot act. >> dana: i understand where you are coming from. when police abuse and f.b.i. abuse was a problem and people had very deep concerns. i totally understand it. i knew somebody like eric chase, your son by 13, by the time he is 21 or 18 and voting. i think there will be a totally

different viewpoint at that point. >> bob: a veiled shot. you are right. no, dana is right. when i was in college, we intercepted by the f.b.i. followed by the f.b.i. there were enemies' list and we didn't trust the government then. i still don't trust them. >> correction it's keefe alexander that runs the agency. i'm all for it. >> greg: there is no karaoke at hooters. i've been going there faithfully undercover. [ laughter ] >> there is still hooters at hooters. >> kelly: oh, boy, rob. >> speaking of which, dick cheney got a heart transplant. and i'm glad he is doing well. some people and particularly on

the liberal side aren't quite happy with this situation. he is going to tell us about it next. that wasn't what was in the prompter but i'm not going to be able to read the prompter. ♪ ♪ ♪

♪ ♪ >> greg: dick cheney got a heart transplant. we counted down the seconds who knew dick cheney had a heart. rusty tweeted, confused by news that dick cheney's heart transplant. implies he had one before. to some it might be a surprise that a world famous author would make such a dull joke. but flabby boob like rusty like

any salmon can trade a present wife for a new one. biggest joke is rusty was protected by people like can cheney after they put a price on his head. but he wasn't the on one to go there. wondered if dick cheney deserved that heart transplant. so like rushdie did predictability. do you think they would asking this question if it were jimmy carter? but it's dick cheney so here you go. >> people say it's unlikely the 71-year-old jumped the line but nonetheless it has raised a lot of ethical questions, moral about whether the vice president should have received this heart ahead of other people. and raising a question how old is too old to receive a precious transplant. >> greg: raises one question, maybe nancy schneiderman needs a

heart transplant, too. >> my goodness. >> greg: whenever people are trying to create a news story, people have said or this has raised a lot of ethical concerns. no, you are the one that raising it. everybody is i don't think dick cheney should have a heart transplant. >> dana: i remember wire service had in their lead, blah, blah, george bush, people say. i called them, who are the people? do you have the people. who are people they didn't have one. what i like about rushdie he can write in 140 characters or less. that is an amazing accomplishment. >> he is the most overrated actor, nobody would read his books. >> you call him salmon. >> greg: i call him salmon.

>> you did the predictable joke at the end of the monologue. >> greg: on purpose. i know you have disagreements with cheney but you had have had heart surgery which is good. >> how do you know i won't. i haven't got bolling out an alley yet. >> bob: first of all i know dick cheney when his wife and i did a tv show. i'm glad he is doing well. i used to meet him. where did you get. >> kimberly: you said he. >> bob: and but here is the question. all i want to be sure of if s and i think everybody would like

to feel comfortable with this, and cheney family. was there in the same place was he on that list a 40-year-old guy with three young kids who didn't get the heart transplant? that is the issue. wait a minute. i'm just saying, question would be. question would be raised if it were jimmy carter. >> let me have to prove all the people. he deserves the heart. it's been life changing for hill. he waited 20 months. everybody is trying to make dick cheney got a heart out of order. >> one of the things that they outfitted every single religious organization in washington, d.c. churches with heart defibrillaters so they could save a life. >> bob: i don't believe for a second he jumped ahead of anybody. i think the guy suffered a lot.

i'm happy for his family. these questions are going to be raised. it would be a good thing to know. >> greg: all right. eric's predictions, coming true. i wonder who wrote that tease? and if you leave now there will be no pillow fights. ♪ ♪ ♪ ♪ ♪ [ donovan ] i hit a wall. and i thought "i can't do this, it's just too hard." then there was a moment. when i decided to find a way to keep going. go for olympic gold and go to college too. [ male announcer ] every day we help students earn their bachelor's or master's degree for tomorrow's careers. this is your moment. let nothing stand in your way. devry university, proud to support the education of our u.s. olympic team.

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♪ ♪ ♪ >> kelly: this bob beckel being bad. he is here all week. one more thing. i just noticed today that bob and eric did not get the memo because the three of us did get the pulitzer and i'm delighted to be here with you all. it's very cute. >> one more thing. now, we're going to greg who was reluctant participant in puppy gate? >> i saw the movie called young adult. woman who returns to her high school and college to pick up her boyfriend is now married. but it's such an indictment on modern narcism and champion of family values. i would say one of more

conservative movies i've seen in my lifetime, it's called "young adult." it's brought to the people by juno. >> kelly:. >> kimberly: and jane fonda is not in it. >> and he beats barack obama in landslide victory and housing market recovers the stockton market recovers but the labor market is going to be bad for a long time, sorry. >> this week ends the first quarter on friday, stocks are raging. s&p 500 up 127, nasdaq up 20%. two stocks, apple a massive 51%. mri 14%. it's been a great -- i.b.m. also up. >> and eric you got it.

>> kelly: amazing. real quarterback i want to take you to that place. kardashian land. this is a fox news alert is quitting peta over her sister kim getting flower bombed. as you recall he posed naked for peta and she is intense had the person that got flour bomb has ties to peta. >> bob: no time. this is one of our producers here, this is a picture of eric bombing. okay? this is what -- bolling. a million dollar jersey boy. he has a multimillion dollar house, and he is on tv 24/7. >> i like that. >> we'll see you right back here