martha: i'd like to go head-to-head with peter doocy. good a great day everybody. jon: the justice department has two hours to submit a letter on the administration's position when it comes to the high court's right to overturn federal laws. jenna: now that mitt romney is emerging as a clear frontrunner for the republican nomination, some are wondering who the vice presidental canned tat candidate might end up become. larry sabato will join us on that. jon: tebs as might be i texas might be in the clear but millions of folks in the south should keep an eye on the sky. jenna: fox news alert on the big showdown between two branches of our federal government. we are awaiting a justice department's letter explaining the administration's position on whether judges have the power to overturn a federal law. it's a little bit of a legal class for us today. jon: civic's lesson for the whole country. jenna: it will be fun to watch. we are looking forward to the

breaking news, everybody. i'm jenna lee. jon: i'm jon scott. days the deadline for attorney general eric holder to respond in writing to a federal judge in texas. that judge wants clarification over a bedrock principle of american government. does this administration believe in the separation and balance of powers? attorney general eric holder insists it does, saying yesterday that courts have the final day. the controvert controversy said supreme court justices deciding the fate of the healthcare law should consider a decision made by a democratic lee elected congress. shannon pwraoepb joins us how tough a point is this. >> reporter: they are going to have a tough, tough needle to thread. it would be unprecedented for the supreme court justices to weigh in and strike down the particular law. the department of justice attorney who is arguing this case at the fifth circuit gave the homework assignment, when

she was pressed she referred to marberry versus madison that clearly recognizes the right of the supreme court to make laws of this land. attorney general eric holder says i don't see any difference between the two positions. here is a bit of what he had to say. >> i think, you know, what the president said a couple of days ago was appropriate. he indicated that we obviously respect decisions that courts make under our system of government. >> reporter: exactly how they spell that out we'll know in less than two hours, at least that is the deadline for the letter, jon. jon: anybody making any predictions about what is going to be in it. >> reporter: a lot of folks think it will be strictly legal, maybe even portions of the brief that were filed at the supreme court dealing in some way with the healthcare law, talking about questions of jurisdiction. but it's got to be at least three pages long, single spaced. we heard from the judge very specific directions. and some folks say it is going to force the department of justice to take a very strict line, that may in some way

sounds like it disagrees with what the president said. the judge said i want you to specifically address in this memo the comments of the president. here is jay seculo of the aclj. >> the federal court has an attorney to declare an act signed into law by the president unconstitutional. that is the role of the judiciary. i think they have to say the complete opposite of what president obama said. >> reporter: it has to be crafted so all sides are in agreement. we'll have to see. we don't know exactly what it will say, i can't imagine the doj would spell out in any way that it's in disagreement with president obama. jon: we have a fair & balanced debate coming up later this hour on that letter and the need for it. shannon bream thank you. jenna: a new national poll showing mitt romney pulling ahead of rick santorum in his home state of pennsylvania. earlier this week santorum was predicting a big win in

pennsylvania, even as calls increase for him to get out of the race after romney's latest primary sweep. chief political correspondent carl cameron is live in washington with more on all of this. how do you see pennsylvania right now. >> reporter: there is one poll that shows mitt romney ahead. the "real clear politics" average shows it's basically a one point lead for rick santorum. that is not what rick santorum was hoping for. this is the state that he has long said is his must win. he represented the house district just south of pittsburgh for a couple of terms and he was the u.s. senator from pennsylvania for a total of 12 years. he lost that seat in 2006 by a record 18 points to bob casey, the current democratic senator from pennsylvania. and with romney now surging after the try tpebgt at that time other night it's looking pretty tough for rick santorum. the campaign says they are not now actively talking about dropping out of the race, but the speculation is rampant in washington and in pennsylvania that santorum will have to get out of the race if he faces a

potentially humiliating defeat in what used to be his home turf. he is in virginia today taking a lot of the day off. however, he's doing some interviews and he's also talking to conservative leaders about whether or not he can still unite the conservative base of the republican party around mitt romney or not. jenna: you've been on the road a lot. i'm surprised that you're even still standing at this point. you've got a long way to go, carl, but we need you in peak physical condition for the next couple of months. >> reporter: the next couple of months for mitt romney will include pennsylvania after its primary at the end of this month. i was telling supporters at his harrisburg headquarters this morning that in fact he wants to win pennsylvania in the fall. he's in full general election mode, shifting his volunteer's emphasis and supporters all over the place from the gop nominating race to the general election and going up against president obama. romney will be in pennsylvania and scranton later this afternoon where he will make a speech about energy policy.

you can bet the singular focus of his criticism will be the president. jenna. jenna: we are taking a look at romney serving up food. i've seen so many shots of him doing that. it seems every meal he's already done that. a long way to go. carl, take care of yourself. we'll talk to you soon. jon: we told you this week about the investigation into a federal agency's luxury las vegas trip all on the taxpayers' dimes. the general services administration dished out more than $800,000 supposedly for training meetings in sin city, blowing thousands of dollars on a mind reared, a yearbook and bicycle give aways. now we are learning more about the new investigation into the same agency, and employee rewards program that cost you hundreds of thousands more. peter doocy has that live from washington. >> reporter: jon the rewards program was called hats off. it cost $250,000 to be precise.

the way it worked is if you excelled at your duties for the general services administration you could earn points and they could be cashed in later on, kind of like a tkeuf and busters, for things like ipads and gift cards and other electronics. the gsa's inspector general tried to kill this bill back in 2010 at the same time they were investigating that vegas extravaganza. but the public building services commissioner bob peck kept pumping money into hats off. he was fired by administrator martha johnson who has resigned over this scandal. jack lew says the president is on top of this and -p he called for all responsible to be held fully accountable given that the actions were irresponsible and entirely inconsistent with the expectations that he has set as president. across the aisle the republican chairman of the house transportation committee, congressman john micah says we've been trying to get the administrative costs from the

agency and now we see why they have been stonewalling. the congressman also ripped on that $3,200 mind reader hired by the gsa at one of their parties. he says he wonders if the mind reader told gsa officials that blowing 800 grand on a vegas conference would get them fired. we've just learned that there will be hearings on capitol hill regarding this waste on april 19th, that is two weeks from today. jon: we could do a lot of good with $800,000 that won't go to a convention. jenna: did you know the going rate of a mind reader was several thousand dollars? jon: i'm not a mind reader i didn't know. jenna: rick perry is going to hold a news conference discussing his tour of his state. as many as a dozen twisters touched down across the dallas-fort worth area destroying dozens of homes,

stranding flights. this tough weather goes back to tuesday, not just yesterday. a spokesman says more than one hundred planes were damaged in the storms. jon: large hail also falling just south of houston doing severe damage there, shattering the rear window of this family's van. some people in the smaller city of gallo galvetston says the hail started out small but grew to the size of baseballs. large hail and damaging winds possible along the gulf coast and northern florida. janice dean is live for us. >> reporter: the weather service still doing surveys of the area of concern across northeast texas. 20 reports of tornadoes now, eleven confirmed, the strongesque an ef3. that is in forney texas, winds of 150 miles per hour. 3 reports of ef2 damage of wind of 130 miles per hour, just

unbelievable, and it's just amazing that we didn't have anybody die from this. i mean it's incredible, and of course hearts and prayers out to all those across northeast texas. as jon and jen a mentioned we still have the threat for severe weather across the gulf coast today and the southeast. these are tornado watches, good until 11:00am local time for parts of mississippi and louisiana, as well as parts of the new orleans region, so tornado watch there for you. this is a severe thunderstorm watch and within those watches we have several severe thunderstorm warnings. no tornado warnings, but really tornado watches, meaning that we could see conditions favorable for tornadoes as well as large hail and damaging winds. so the threat is not over yet, as we head throughout today across the southeast, parts of florida could see the potential for strong to severe storms as this low pressure continues to move. the good news is, we are almost done with the storm system,

okay? we've been dealing with it all week long, we walked the future radar push off to sea, that is the good news. still watching a system across montana where we have blizzard watches, if you can believe it. but look at the radar heading into saturday and sunday, easter sunday, things much improved shall not a lot to talk about, which is great news. as i mentioned in montana where we have blizzard watches we could see over a foot, maybe two feet of snow for those across the northern rockies. jon, some areas still experiencing winter. jon: still not too late to go out and ski. janice dean, thank you. jenna: mitt romney is more than halfway home in rounding up enough delegates to clinch the nomination. if mitt romney goes up against the president who will be his right-hand man or woman? larry sabato looks into his crystal ball for us. jon: also a mass he will gun battle right across our southern border. one of those killed said to be behind a horrific arson attack that resulted in the deaths of dozens.

new information coming in on that. jenna: school officials changing the lyrics of a well-known song to takeout the words "god bless." the reaction ahead. >> it's been there for years and years and years, look, i don't have a problem with the song. if somebody else does, i guess that's their business, but i mean it's on our currency. ♪ but there ain't no doubt i love this land, god bless the usa. and i'm proud to be an american where at least i know i'm free -- ♪ ♪

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jon: new amateur video into fox news said to be of new violence in syria. government forces launching a fierce assault there in a suburb of today mass cast, days ahead of the deadline for a u.n.

brokered cease-fire. activists describe snipers on rooftops firing on everything that moves in one of the most violent attacks since the year-long uprising began. they say syria hanew developments next hour. we are learning one of the master minds behind a deadly arson attack on a casino is now dead. we are told mexican soldiers killed suspect francisco medina mejia in a gun battle yesterday. he's the top aide to the leader of the se zeta's drug cartel. he was killed near lore raid doe, across from the city of lore raid doe in texas. the arson attack on the casino last august believed to be the work of the zeta cartel. gunmen went into the casino, spread gasoline and set the building on fire killing the 52 people who were strapped

inside. jenna: well, you probably remember that lee greenwood song, a massachusetts elementary school is under fire for cutting out the word "god." rick has the story from the newsroom for us today. >> reporter: this isabelling ham, mass, jenna and a fourth grade assembly generating more heat than you think would be associated with fourth grade assemblies. someone decided to change the words of the song, to "we love the usa" a nice sentiment of course but not the original title or lyrics of the song. here is lee greenwood singing this recently on mike huckabee. ♪ there is no doubt i love this land, god bless the usa. ♪ ♪ >> reporter: a great song, a big hit for lee greenwood. the feeling, apparently, though

was that this is a public school and that god bless the usa might somehow offend some people, who knows. any way it did offend a lot of people. people were offensed that the words were changed. take a listen. >> god is god and he's a big part of society and we're taking hip out and society is reflecting that. you see more drugs, you see more kids getting in trouble and i think it all reflects on that. >> i personally think that church and state should be separated, however, with god being in that song it has to do with the foundation of our government, so i don't think it should be removed from the song whatsoever. >> reporter: well, it was removed, and in fact because of the controversy the whole song was removed from the assembly. all singing has been taken out of the program. the principle of the elementary school, dr. diana beck says the program will focus on the kids' knowledge of the united states and because of logistics there will be no songs, no singing. i called the school this morning, jenna, the principal couldn't talk to mow on the

phone. the woman i did talk to confirmed to me that all the kids in the school recite the pledge of allegiance each morning with the word "god" intact. there you have it. jenna: we'll leave it there, rick. no singing, though, not for us either. rick, thank you. jon: it seems like they would have better things to do up there in massachusetts. speculation is heating up on who mitt romney might pick for vice president if he wins the republican nomination. so what does a presidential nominee look for in a vice president? larry sabato says it's not what you might think, he joins us next. plus, a first look at remarkable artifacts recovered from an ancient shipwreck, including this. do you recognize that? it's the world's first computer. that is coming up next. ♪

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jon: you're inside america's election headquarters as mitt romney racks up more del tkpw-ts and victories along the campaign trail the speculation increases on who he would pick for vice president if he wins the republican nomination, and it sure looks like he's going to do that. conventional wisdom has it that presidential nominees look for running mates from big swing states. our next guest says, the historical record doesn't bear that out. larry sabato is director of politics at the university of virginia. let's take a look back at the last election for historical perspective. joe biden and sarah palin, delaware and alaska don't deliver a lot of electoral

votes, is that the kind of thing you're talking about, larry? >> absolutely, jon. that is really typical of what we've seen in modern american history. of the last 27 vice presidental nominees, only seven have come from large states with electoral college totals of 20 or more, and that is contrary i think to what most people believe about the process. they think it's all about reaching 270 in the electoral college and therefore the presidential nominees will inevitably pick candidates from big states. but that is not our practice, it has not been the traditional practice, so that may change this year once we get to the vp selection by one presumes, mitt romney. jon: we'll get to that in a second, take a look at this year. let's look back at the shreks of sarah palin and joe biden. what did they bring to the respective tickets? >> they balanced the nominee in

some way. he was look for someone who had much more experience in foreign policy than he did, that's why he selected biden. for john mccain he was looking nor someone to inject energy into the campaign, to excite the base, and obviously to pick the first woman vice-presidental nominee. i think those were the rationals. jon: as mitt romney, and presume he's going to be the republican nominee, it would seem to be sort of a -- almost a forgone conclusion at this point. if he's shopping for a vice-presidental nominee one would think that maybe a state like florida might deliver, you know, a bun of of electorial votes, make marco rubio is a shoo-in? >> of course by the historical analysis he won't be since he comes from a big state. jon, you know what surprised us here, and a lot of this comes from our friend and analyst joe goldstein, amazingly florida has never provided a vice presidental candidate for either

party. that great mega state of florida. could this finally be florida's turn with marco rubio, or who knows, even jeb bush? those are too florida ins. it's been since 1844 since pennsylvania has had a vice presidental candidate on either major party ticket. in the great state of ohio it's been since 1944. it's a maiding how often the candidates bypass these tremendous mega swing states that determine presidential elections. jon: what about a state like ohio? i mean generally whoever wins ohio wins the election, why not choose somebody like a rob portman from ohio and hope that that will deliver the state into your column? >> oh, i my portman is very much on the list. he matches romney in a lot of ways, and he would do certain things for romney, not just ohio, but in terms of balancing experience.

he has some federal experience that mitt romney lacks. so i think portman will end up being on the short list as well. jon: i know you'll be looking into your crystal ball and looking for more of these names. we'll talk more about it. it will be interesting stuff as the election campaign goes on. dr. larry sabato thank you. jenna: we are waiting for a written response from attorney general eric holder. it will clarify the obama administration's stance on the role of federal courts. some say no clarify indication is really needed. a live look at white house now into the briefing room and the president's press secretary expected to address the controversial topic soon. so what might the justice department letter say? we have a fair & balanced debate coming up [ male announcer ] what if you have potatoes?

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jon: we are awaiting right now a justice department letter explaining where the obama administration comes down on the issue of judges having the power to overturn federal legislation. the deadline for that letter to arrive now 90 minutes away. we're also awaiting the daily briefing from the white house

press secretary jay carney. he is expected to address that controversial topic shortly. as you probably know, recent comments from president obama suggested that he believes supreme court justices deciding the fate of the health care law should take into account the decision already made by congress. the president basically said it would be wrong of the justices of the supreme court to overturn it. let's talk about it with ian mill heiser, a policy analyst and blogger who focuses on the constitution and the judiciary for the center for american progress, kurt levy is executive director for the committee of justice, and both of them served as law clerks for the sixth circuit court of appeals. ian, you don't think much of what this judge in the fifth circuit asked the justice department to do. why? >> i don't think very much of it at all. you know, this judge did not go after george bush when he said over and over again that activist judges are thwarting the will of the people, he

didn't go after mitt romney when mitt romney said a few months ago that unelected judges are thwarting the will of the people. but when a democratic president say it is exact same thing, suddenly this judge has a problem with it. that isn't how judges are supposed to act. this is partisanship on the part of the judiciary, and it's not appropriate at all for judges to weigh into political disputes this way. jon: but wait a minute, didn't he essentially challenge the president when the president said that the supreme court should not overturn the health care law because, you know, the court doesn't have the power, isn't that essentially what he was challenging? >> the court doesn't have the power to overturn the affordable care act. the constitution says that congress can regulate commerce. the affordable care act is a regulation of one-sixth of the nation's economy. the court can overturn many things if they are actually unconstitutional, but the only thing that the court has the power to do is to follow the text of the constitution of the united states. striking down the affordable care act is not within the

judiciary's power. jon: kurt, you seem to disagree. >> well, you know, it's wonderful the hear liberals suddenly saying that the court should follow the text of the constitution because, of course, during my entire life they've always said they believe in a living constitution which is that judges should change the constitution to help it evolve, that they should invent new rights. so, first of all, i'm happy to hear this new tune. but, of course, mr. millheiser, i hope i'm pronouncing that correctly, just repeated the same mistake that the president made which is to say that, no, a court cannot overturn this. it's fine for him as a president to say that they believe it's constitutional, but to say they can't overturn it is to say if they make the decision i don't like, they're wrong, they're acting outside of their authority. and that's exactly the violation of separation of powers that obama got in trouble for and somewhat backtracked from the next day, and i expect the justice department will backtrack further in the

documents they're releasing this afternoon. jon: ian, you suggested this is, essentially, a conservative judge making sort of a republican/democrat argument. but isn't it more a judiciary verse is us executive branch -- versus executive branch argument? >> no, it's not. you know, i don't normally use the words i'm about to use, but i agree with rush limbaugh. he said yesterday on his show the reason why the judge did this is he's trying to defeat the president. and limbaugh's right here. that is the only reason why the judge would weigh into a political dispute like this, and i want to push back on something curt just said. it's a really radical statement to say that judges have the power to strike down laws regardless of what the constitution says. my position's very clear. my position is that judges are bound by the constitution, and they are powerless to strike down the affordable care act because the constitution clearly says that it is acceptable. >> that's a very new position coming from liberals.

they've often thought judges can bend the constitution. but you don't have to bend it here because obamacare is illegal under any reading of the commerce clause. jon: that's what they argued about in the supreme court, and the solicitor general, you know, a lot of people thought did not make very good arguments, curt. >> and there's a reason. because you cannot get around the fact that if obamacare is constitutional, if you expand the commerce clause enough to do that, then there are no limits on congressional power, and that's not -- >> that is simply untrue, curt. what the constitution said is that congress should regulate commerce. that means non-economic laws, murder laws, truancy laws, rape laws, assault laws, all kinds of laws. they can regulate the economy, that's what the words "regulate commerce" means. and in this country either judges follow the constitution, or there will be no limits on what judges can do. jon: so what about the question, ian, about creating commerce so that congress can regulate it, forcing everybody into the

individual mandate? >> yeah. we have an entire existing health care market. all that this does is say how that market should function. this is regulating existing commerce. jon: well -- >> except that people who don't want to buy insurance are forced to buy insurance. that's the difference. jon: i guess we're wandering a little bit into arguing over, again, what the supreme court has already heard. we're trying to focus in this segment on what the president said about the supreme court. curt, want the, you know, hasn't the supreme court already in fairly recent history overturned rulings of congress that it found to be unconstitutional? >> where yes, it did. and under the commerce clause it did so in '95, the gun-free school zones act, and then about the year 2000 part of the violence against women act. so when the president also said the other day that it would be unprecedented for the court to strike down obamacare, he was wrong about that too. they've done it twice recently, and this would be very consistent with those decisions. so it was just demagoguing, the president was doing.

he was not, he knows constitutional law better than he let on on monday, that's for sure. jon: curt and ian, good discussion. it's going to be interesting to see what the justice department says in that letter today. gentlemen, thank you. >> thank you. jenna: well, the world's first computer headlining some rare finds from an ancient ship wreck and, rick, i'm just guessing, it doesn't have a little apple insignia, does it? >> reporter: no apple, no advanced retina display because this thing dates back to 75 be. c., jenna. an archaeologist called in the first computer because the ancient greeks built it to do some pretty sophisticated stuff. it was made of copper and bronze. this is part of it here. it has a gear wheel and a calendar that the greeks used to calculate solar and lunar eclipses. the greeks used it to observe the stars. they even used it to help them set the date for the olympics.

not this summer's games in london, we're talking about the hell fistic period when i think all the olympic games were always in greece. anyway, the computer and other artifacts are on display at greece's national archaeological museum in athens. divers discovered this off the greek coast in 1901, and stuff has been on display in the past, but this is the first time the public, jenna, can come and see all of it at the same time. jenna: any idea on how big it is, rick? can you carry it in your pocket? [laughter] >> reporter: not in your pocket, but it fit onboard the ship. jenna: interesting stuff. rick, thank you. jon: i guess back in those days greece had money to spend. jenna: well, times change. [laughter] jon: north korea announces it will launch a satellite as early as a week from now. some think it's really a test of a long-range missile, but it's not just the skies in the korea that has this nation worried. we're also watching reports that that nuclear-armed nation is

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this is my grandson. and if it wasn't for a screening i got, i might have missed being here to meet him. the health care law lets those of us on medicare now get most preventive care for free like annual wellness visits, immunizations, and some cancer screenings. and that's when they caught something serious on mine. but we could treat it before it was too late. i'll be around to meet number two! get the screenings you need. learn more at healthcare.gov. you don't want to miss any of this! jon: brand new stories coming up next hour. new reports iran is behind some of the violence in afghanistan. iranian leaders reportedly ordered agents in afghanistan to encourage violent protests over those denial burnings of qurans by u.s. soldiers. a closer look at that story coming up. and homes are hitting rock bottom prices these days. is it a good time to buy, or is

it better to represent? a live -- rent? a live report that may clarify that. and do you wake up in the middle of the night and can't get back to sleep? what about it, jenna? jenna: sometimes. jon: me too. a new prescription sleeping pill hits store shelves today, but is it for you? our doctor gives us the facts. it's all new next hour. jenna: stories like this can certainly keep you awake, new images out of nuclear-armed north korea today showing leader kim jong un meeting his troops. the timing of this release is noteworthy, and here's why: north korea says it will launch what it claims is a satellite as early as seven days from now. the u.s. and many countries suspect the pending rocket launch is really a test of the north's long-range ballistic missile technology. now, in preparation japan is putting the finishing touches on its missile defense shield. the japanese want them in place to prevent the rocket and its debris from falling on their territory if, indeed, that could

happen. this comes as new reports say south korea is searching for four north korean submarines that disappeared after leaving their base. all these tense developments as more than 30,000 american troops are stationed on the korean peninsula, and we don't want to forget about that. gordon chang the author of "the coming collapse of china," and "nuclear showdown," an aptly titled book, gordon. nice of you to be here today. >> thank you. jenna: what are they up to? >> i think they're trying to heighten the temperature. they sunk a south korean frigate in 2010, and the sailing of the submarines raises that specter. i don't think they're going to do the same thing twice because they never do what's cooperated. but -- expected. but because the temperatures in the region are going to go up because of the missile launch which is scheduled toed for next week, you know, this could spiral downwards, and that's really the problem here. jenna: when you say spiral downwards, what do you mean? >> there are all sorts of

provocations that the north koreans commit, and most of them just go unnoticed. but nonetheless, you know, the south koreans might retaliate. the south koreans did not retaliate in 2010 for the sinking of the south korean frigate, they didn't retaliate for the shelling of a south korean island in 2010, but presidentially moon back said the next time there is a provocation, south korea will retaliate. the north koreans don't believe them, so i think they're going to try and test seoul to see how far they can push them. jenna: so that's why in the time would be different, you think, it's more of a test for south korea and whether or not they're respond if provoked? >> right. and you have the 100th anniversary of the founder of north korea. kim jung-il, the dead leader, promised a strong and prosperous nation by the 100th anniversary. that means north korea can't back down east. so you got two countries that are mortal enemies, neither of

which can give ground. jenna: we have reports about some of the technology in north korea. but it brings me back to the point of why now, gordon? some why would north korea besides just the change in leadership, when we look at our country and threats to our national security, why should we be watching north korea, or maybe should we not? >> yeah, we should definitely watch it because within four years north korea will be able to hit an american city with an intercontinental ballistic missile which carries a nuclear warhead. so that's why it's important for us. and we've done very little to stop the north korean missile program, whether the last administration or this one. so what the north koreans are looking to is seeing what we will do to respond, and also the iranians are going to look because every time north korea commits a provocation, they see how we react. jenna: interesting. >> if we don't react strongly, they see it as a green light for further provocations of their own. jenna: we're going to be talking about iran in the next hour, often we talk about iran and they don't have a nuclear

weapon. we know north korea does. so then the question is, what is our policy with north korea now, and how do we change, i don't know, over -- over the next several years whether they do have that capability of hitting a site within our own country? >> right now the policy of the obama administration is to stand behind south korea, and that's really the correct policy. but we really are not going to do anything effective of after this missile launch, at least that's what the consensus is, that we don't have the ability to do anything. but that's wrong because we could put really punishing sanctions on north korea, and also we should be putting it on chinese banks that finance north korea's sale of missiles and nuclear weapons technology to the iranians. that's the only way to get the chinese to sit up and take notice and be to actually do something about their troublesome north korean friends. jenna: interesting. we talk about those chinese banks as well when we talk about iran. we're going to have to lee that though, gordon. look forward to having you back, as always. >> thank you. jon: a five-hour standoff with a s.w.a.t. team in florida just coming to an end.

rick has new information. >> reporter: t finally over in florida. as you said, this was a standoff that went on for five hours in the early hours of this morning between a man inside a hotel and s.w.a.t. teams that are brought in the town of new port ritchie, florida, the man barricaded himself inside the royal palm inn early this morning, and about 3:30 in the morning the s.w.a.t. team was finally called in. nearby rooms were evacuated, and folks on the ground that were able to see armed police members walking in and around the grounds of the hotel area. the suspect, a guy named alexander curry, wanted in connection with a robbery at a local restaurant back on the first of this month. he is now in police custody and thankfully, jon, nobody was hurt. jon: that is the good news. rick, thanks. jenna: a lot of news over the past two weeks on autism, and now some promising medical research suggesting a genetic link. that's next. [ male announcer ] capri sun has 25% less sugar

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jenna: well, "happening now," a medical first in the fight against autism. scientists identifying several gene mutations possibly, possibly responsible for increasing the risk of getting this disorder. joining us live is the medical director for comprehensive medicine in new york city, and on the phone with us, doreen, the founder and executive director of the center for autism and related disorders. and, doreen, to you first. you've been studying autism for 30 years now. what do you make of this latest study? >> well, i mean, it's wonderful because we are actually making some headway in terms of a process that lets us identify some genetic components to this disorder. jenna: so what does that heene? >> well, what they've done in

this particular study which is new and important, it's not so much that, yes, they have found groups, very, very small groups of children that have what's called a denoval mutation that are happening around conception. what's very important, though, about this is that this is a process, a new way of studying that'll actually allow us, now, to start finding some remitted genes. -- related genes. that's very good. jenna: so we know that this is at least a positive, the takeaway for all of us that maybe don't know medicine quite as well. dr. forshine, your expertise is in family medicine. for families dealing with this disorder, what does this mean for the average person out there? >> well, it's important information. you know, 1 in 88 children now are being diagnosed with autism spectrum disorders, so this is a very common problem. what this study really detected

particularly in men over the age of 35 is that they are at increased risk for these de novo or these sudden mutations that occur around the time of conception. is so once we understand why this is happening, there may be some treatments and there may be some approaches that we can use preventively to help these families. jenna: dr. fir shine, why is the age significant? why is it men over the age of 35? >> well, you know, as we age, men particularly, sperm tends to not be as strong, you know? we want to make sure that when we're at the point of conception that we're being careful in terms of problems like alcohol consumption, tobacco intake. and those types of problems may actually damage sperm, they may actually cause the sperm to go through these de novo dna damage, and that's what ultimately may lead to this autism spectrum problem. at least in about 20% of the

cases. jenna: it's interesting to also note that some of those mutations that are inherited, people may have them, and they may not be harmful. and that's something else to point out. we're going to have to leave it there, unfortunately, doctors. it's nice to have both of you here. it's a story we're going to continue to watch. thank you so much. >> thank you. >> thank you. jon: some new troubles for the nation's housing market. some experts are predicting even more foreclosures this year than there were two years ago. why? and what it means for the struggling housing market as well as the economy as a whole. that's coming up. [ female announcer ] water was meant to be perfect. crisp, clear, untouched. that's why there's brita, to make the water we drink, taste a little more, perfect. reduce lead and other impurities with the advanced filtration system of brita.

jon: a fox news alert, we are now less than an hour away from a justice department deadline for handing over a three-paged, single-spaced report to a federal appeals court judge in texas who demands to know where the administration stands on the supreme court's authority to overturn federal laws, specifically the president's health care law.

what might the justice department say? and will attorney general holder's response be enough to satisfy the judge in the political power struggle coming to a head today, we'll have more on this in just a few minutes. >> reporter: rick folbaum in the control room, some stories we're working for you all new the next hour of "happening now." one of the most notorious serial killers in history, charles manson up for parole next week, police releasing a brand new picture of manson, what he looks like today. we will show you. also the fda approving a new sleeping pill, but is it safe? and shocking audio, reportedly, of an nfl coach telling his players to go out on the field and, quote, kill the heads of the opposing team. we will play that audio for you. that and breaking news as the second hour of "happening now" starts right now. jenna: well, back to our top story, the deadline fast approaching for the department of justice.

jon: the federal judge orders a report from the department of justice detailing whether the supreme court has the right to overturn laws passed by congress, specifically referring to president obama's health care law. jenna: that's jon scott, i'm jenna lee, and lis wiehl is here, a former federal prosecutor and fox news legal analyst. so, lis, what do you think we're going to see here? >> well, the department really is in kind of a pickle here because when president obama came out on monday and made this unprecedented remark, may i say, about it being unprecedented -- completely factually wrong. i mean, the courts have overturned congress' acts 160 times and more since 1803. that's what they do. that's one of their primary functions. but hen the administration kind of backed -- then the administration kind of backed off and said, well, we were just talking about commerce clause provisions. no, jenna, no. the supreme court has overturned those provisions as well. did they completely back up and get it right today, or did they say we're sticking with the commerce clause?

that's the issue. jenna: was it right for the judge to demand this? >> i've never heard it done. i think the judge, quite honestly, jenna, was angry about, you know, this challenge and what he called it a challenge from president obama. he did not like that. judges, you know, judges are separate from congress and from the executive branch. they don't like being felt like they're being treaded upon, and he had this department attorney in front of him on a totally different matter. it was a health care matter, but a totally different case, and he was able to say here's your homework assignment, give me those three pages, and i want it now. jenna: who's actually writing those pages? >> good question. i would think the department of justice. i don't think it's attorney general holder. but i think it's pretty high level discussions going on in the department of how to couch this three pages to save face for the president. i mean, here is somebody who was a constitutional law professor, and his own law professor has come out and said, you know, love obama, president obama, but he got this one wrong. jenna: now, again, going back to

the judge that requested this, you say you've never seen this done before. >> never. jenna: it surprised everybody when we saw the headline that this was happening. do you think in some ways that a line was crossed though? a line that shouldn't be crossed? >> you mean the judge sort of interjecting himself into it? jenna: yeah. we hear these comments about judicial activism and accusations of them thrown on all sides, and we had a conversation yesterday about someone saying, tim o'brien said, listen, whenever someone disagrees with a decision, it's always judicial activism, judges ruling on something else that doesn't have to do with the case. >> right. jenna: but i am curious as someone who is part of the legal profession, do you think maybe this wasn't the way to go? >> jenna, it certainly got very, very close to the line if not crossing the line. one, because this has never happened before that anybody can remember. two, because he was asking for things that were outside of the realm of the case that was in front of him. he is not sitting on the supreme court. he does not have a vote on the

supreme court. so he's taking his case, his small case that he has there, and he's going beyond the courtroom and asking the department for something that really isn't any of the -- jenna: can i interrupt you just for a second? be jay carney's speaking on this right now, we want to listen in. >> okay. >> the precedent here is clear that on matters of national economic significance -- and let's not forget that health care is, what, 15% of our economy? -- that the precedent is overwhelmingly on the side of upholding the constitutionality of the affordable care act. in fact, there is no debate between the plaintiff or the defendant on the issue of whether or not health care is something, is a matter of national economic significance. this is not, that's not even an issue in the case that appeared before the supreme court. so the president's unremarkable observation is that since the new deal era, the lockner era

that preceded the new deal and the change in approach by the court, there has been a longstanding precedent set where the court defers to congress and to congressional authority in passing legislation to deal with and regulate matters of national economic significance. >> on the point of critics claiming the president was attacking the court, your colleagues have correctly noted that when the president said that the justices are unelected, he was quoting conservative commentators who are said that for years. however, are you then suggesting that if you were to lose in this case, the president will not attack the court? does he consider them fair game in this process? to attack them? >> the president believes that the supreme court has the final word on matters of judicial review, on the constitutionality of legislation. he would, having been a

professor of law. the fact of the matter is that going back to the comments the president made on monday and on tuesday, he believes that because of the overwhelming precedent here in this case that the supreme court will uphold the constitutionality of the affordable care act. that was the point he was making all along, both monday and tuesday. >> what he said on monday was an obvious misspoken moment because he talked about the court not being in a position to overturn -- >> the president, look -- >> you're standing up there twisting yourself in knots because he made a mistake, and is you can't admit it. >> no, no -- >> he said -- >> i am acknowledging, you're share anything the righteous indignation here that your -- >> i'm just noting that your --

>> in answer to a question very relatively briefly and in the context of this case made the statement that there is no judicial precedent, that there is longstanding judicial precedent which would argue that the court should not overturn this law. i grant -- i totally grant to you that he did not refer to the commerce clause. he did not refer to the full context. i think he believed that that was understood. clearly, some folks -- notably people sitting in that chair and others -- missed that, and, and -- >> [inaudible] >> no, no, no, look, others -- [laughter] i'm just saying there's a lot of, i mean, it's kind of ridiculous to believe that the president wasn't talking about the context of the case. but i completely concede that he did not describe the context when he took the question and answered it on monday.

he then, asked again on tuesday, provided the full context. and so did he clarify his comments? absolutely. did he expand on them, absolutely. yes, scott. >> [inaudible] >> you guys, it's your job to come up with cliches and, you know, like, game on and things like that. but i'm not going to engage in that. scott. [laughter] >> you talked about small businesses -- [inaudible] a billion dollars in revenue which is a pretty expansive definition of small businesses, was that the figure that the white house start-up council came up -- jenna: all right, appears they've changed topics after a little bit of an exchange. you saw the press secretary, jay carney, answering questions from our very own ed henry as well as bill plant of cbs who was asking the secretary there, the press secretary, well, you know, that was a misspoken moment. and the press secretary says it wasn't and, obviously, you also

saw this little back and forth between the press corps and jay carney. lis is back with us as well and, lis, you can see jay carney trying to explain the president's comments, and we'll take them for what they are. secretary carney saying his explanation of it, and he's being challenged by the press on it. let's just take this in a completely different direction. when you see those three pages, when we get those three pages from the justice department, what is the first thing you're going to be looking for? >> i'm going to look at the conclusion, what it says at the end. [laughter] that's where i always go with an opinion. but you know what? this press secretary, this conference tells me that, jenna, we're going to see kind of a bland dissertation of law in those three pages. i don't think they're going to say that much because the president is fundamentally wrong on what he said on monday, and he backed off it on tuesday to say it was just the commerce clause, but you know, jenna? he's still fundamentally wrong. that cannot be defended when you look at supreme court history. if a case or if a law is

unconstitutional under the commerce clause even though it involves commerce, etc., etc., we got that. health care has an economic effect on the country. got that. if it's unconstitutional, jenna, that's their job as the supreme court to say that. jenna: interesting. well, jay carney says those were unremarkable observations on monday. however, here we are on thursday, and the story is still developing. lis, thank you so much. we'll look for the conclusion as well. [laughter] >> go to the end. jenna: thank you very much. jon: bracing for a new wave of home foreclosures and some analysts predict this year could be worse than it was two years ago, that was before banks halted foreclosures over the robo-signing scandal. adam shapiro joins us from the fox business network. what's going on, adam? >> reporter: well, you mentioned to the issue right there, the halting of the foreclosures because of the robo-signing scandal. once the justice department and the banks and the states' attorneys general came to a settlement in that case, the $25

billion setment, it opened up the spigot so that the banks could then go back into the foreclosure business. and all of these homes, all these houses which had been held up and not been foreclosed upon in 2011 are now coming into the system. to give you a quick idea of what's going on, lender processing services out of jacksonville, florida, they're indicating that just in january the foreclosure process on houses by banks beginning the process jumped 28%. deutsche bank, up 47%. wells fargo, up 68%. so they're expecting all of these homes that had just sat in kind of limbo in 2011 to now get dumped on the market through foreclosure in 2012, jon. jon: anybody who's trying to sell a home, that's not good news. >> reporter: it's not for a couple of reasons, but most important, moody's analytics actually did some statistics on what's called repossessed sales, and they've seen a rise and expect a raise throughout 2012 of 25%. in english, when you have these many homes coming on the market

at bargain-basement prices, literally pennies on the dollar, it drives down the price of the homes that might be sold which are not in foreclosure, that are just regular properties that you or i may be trying to sell. the prices will come down, and the best forecasts are that we won't hit bottom in the decline in price until 2013. jon: so a year and a half, two years to wait, huh? >> reporter: it could be a year and a half, two years to wait. and then once we hit bottom, it's not much better. prices aren't expect today really go up until 2016. this is not a happy story about foreclosures of the housing market. jon: doesn't sound like it. adam shapiro, thanks for bringing us that unhappy news. jenna: 2016. a long way away. well, new developments in the investigation into the disappearance of utah mom susan powell. why police are now looking more closely at her father-in-law's whereabouts at the time she vanished. an update there. plus, the battle for the republican nomination is not over. if you listen to president obama and mitt romney, it certainly

sounds like it is. a preview of what could be a very tough election fight ahead. and rick is over at the web wall today. hey, rick. >> reporter: jenna, the state of maryland is paying people to go out and fish. they want people to go out, buy themselves a rod and a reel and get the so-called fish from hell that apparently is wreaking havoc in the state. we'll tell you all about it, and you can read more about it on foxnews.com. it's the most-read story right now. check it out, we'll have more "happening now" after a quick break. i'm a marathon runner, in absolute perfect physical condition and i had a heart attack right out of the clear blue... i'm on an aspirin regimen... and i take bayer chewables. [ male announcer ] be sure to talk to your doctor before you begin an aspirin regimen. he's my success story. [ laughs ]

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jenna: just in to the newsroom, audiotapes that appear on the an nfl coach giving some disturbing instructions to his players, and this plays in to a much bigger story that we've also covered extensively here on "happening now." rick has more for us.

rick? >> reporter: well, jenna, this is tough to listen to. audio recordings, report id an nfl coach telling his team to go out and injury the other team, not tackle them, not being if. greg williams, the now former defensive coach of the new orleans saints, telling his guys to go out and be, quote, kill the heads of their upcoming opponent, the san francisco 49ers. this audio was recorded by a film maker who was given access to the team while he was working on an athlete. he has put this on his personal web site, he says that at one point williams made a hand gesture offering to pay any player who knocked a 49ers' player out of the game, and this is important because the saints had been rocked by this scandal involving an alleged bounty program that the team was using to motivate players. listen for yourself to greg williams, this is reportedly the former coach, defensive coach of the saints, talking to his players just before what would end up being his final game with

the team. listen. >> every single one of you before you get off the pile affect the hit. >> reporter: this is just a portion of the audio that is now pretty much available all over the web. the saints ended up losing that game, jenna. williams ended up leaving the team, going to st. louis. and because of the bounty scandal, the nfl has suspended him for the entire upcoming season. and if he had been thinking about trying to appeal that decision, he could probably throw that out the window as a result of this audiotape. we did put a call in to the new

orleans saints where he was coaching allegedly at the time of that recording, we have not heard back from the saints. back to you. jenna: rick, thank you. ♪ jon: well, the republican presidential campaign still has a long way the go, but president obama and mitt romney are acting like they're the only ones in the ring. rolling out their campaign rhetoric for the general election. take a listen. >> governor romney has said that he hoped a similar version of this plan from last year would be introduced as a bill on day one of his presidency. he said that he's very supportive of this new budget. and he even called it marvelous which is a word you don't often hear when it comes to describing a budget. >> the new normal the president would have us embrace is trillion dollar deficits and 8% unemployment. through all of this, president obama has failed to even pass a

budget. jon: aaron pike is the national political reporter for realclearpolitics.com. it has gotten nasty already, erin, and we don't even have an official republican nominee yet, do we? >> we don't. but the obama campaign has already figured out that mitt romney is going to be the nominee, and the republican party has largely come to that. now, it's possible that rick santorum could drop out of the race before pennsylvania even happens later this month because it looks like he's headed for a loss. now, i just spoke with the romney campaign, and they told me they still think rick santorum will win the popular vote in pennsylvania, but they will win more delegates. yes, they are transitioning into the general election. they're starting to hit president obama more if pennsylvania because i would -- in the pennsylvania because president obama's numbers in pennsylvania, his poll numbers, are lower there than they are in other swing states like ohio and florida. so that shows you that they're thinking in brighter terms about the general election.

jon: how unusual is it for a sitting to take on an opponent by name as he did there with mitt romney this early in the process? >> it's unusual because president obama has never really talked about governor romney by name. he's had several press conferences where he's referred to his republican opponents and said that the republican primary is still going on, so he doesn't want to talk about his opponents. but by taking on governor romney by name in that speech this week, it shows that he is thinking about mitt romney and that's already inside his head, and he's ready to have this campaign against him. jon: all right. it's going to be an interesting one to watch. it's already, as i said, getting ugly. erin mcpike from realclearpolitics.com, thanks. jenna: there's a sleeping pill hitting the market today for people who wake up in the middle of the night and can't go back to sleep. is that the right prescription for you? we're going to take a closer look coming up. are you receiving a payout from a legal settlement or annuity over 10 or even 20 years? call imperial structured settlements.

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jon: right now, new info on some crime stories we're following for you. new details emerging into the investigation of the disappearance of utah mom susan powell. she went miss anything 2009. her husband, josh, a person of interest in the case, was never arrested. now we're learning josh's father called in sick to work for two days right after susan disappeared. this case, of course, took a tragic turn this year when josh powell killed himself and the couple's two young sons. the family of a missing maine toddler marking the little girl's second birthday. about 100 people attending a vigil for ayla reynolds reported missing by her father in december. police believe foul play was involved but have not made any arrests. an emotional day for singer and actress jennifer hudson. jury selection beginning in the trial of the man accused of

killing three members of her family. the suspect is the estranged husband of hudson's sister. he's charged with the murder of hudson's mother, brother and young nephew in 2008. jenna: well, a new prescription sleep aid is hitting store shelves today, and it promises relief for a very common form of insomnia. almost half of all americans wake up in the middle of the night, many of them can't get back to sleep, and this is a pill that's supposed to be for that. senior attending physician at st. barn bus hospital. nice to have you back with us. >> thank you, jenna, for having me. jenna: let's talk about this sleep aid, it's specifically for four hours of sleep. so you wake up at midnight, you can't get back to sleep, you can take this pill and get a couple more hours. >> right. it's for middle of the night insomniacs. you know, every new pill that comes out on the market, you know, has to be tried and true

before we can actually say that that's the, you know, the great relief for these people. but, you know, there are other remedies that people have been trying for years that may help in addition to that. jenna: like what? >> well, some of the home remedies that grandma used to tell you about really do help people with sleep, and only of them, i've actually brought for for -- some of them for you. milk, warm milk before you go to bed. jenna: okay. >> sometimes camomile tea. jenna: right. grandma was big on that. >> malt drinks, and you also need to be comfortable, so teddy bear represents comfort. [laughter] also, though, you need the room to be dark and can cool. jenna: i like how you have the little teddy bear. i haven't had a doctor prescribe that one yet, but it might be cheaper than the pill. let's talk about the pill. we talk about overprescribing medicine. we talk a lot about our culture becoming a pill-popping culture. you want to take a pill for everything. how do you know when you need something like and and when you

should just stick to the come o meal -- camomile tea? >> you need to have a serious discussion with your doctor. we're a society of sleep deprivation, 24 hours everything. instant gratification, e-mails, texting, the tv's 24-hour shows. people forget the bed is for sleeping generally, and crow not supposed to bring your work into the bed with you. some of these people may do well on medication, but the problem is i think sleep medications have been overprescribed, and there are other reasons for sleep disorders such as sleep apnea, prostate issues in men, hormonal and men pausal issues with mihm. you need to rule out these things first before you give somebody a pill and say this is your solution. jenna: important points there. we should mention the side effects as well. they say behavioral disturbances, sleep walking, worsening of depression or suicidal thoughts. the article i'm reading says generally sleep aids can be problematic for something like that. let me ask you about just the application of this because some people might be listening and

say, hey, this sounds like a good idea. i wake up every day at 2:00 in the morning and i'm tired for the entire day. what about the people who commute, getting in a car and deeing to work, how concerned should they be about their motor skills? >> they should be very concerned, especially what was commented in the article. they found that people were impaired slightly using the medication in their driving ability once they woke up. so they recommended that people wait, i believe, 3-4 hours before they start driving to work, and then the incidence of that side effect decreases. so it is a concern, definitely is a concern for driving, operating heavy machinery, anything requiring fine control of your motor scores. jenna: we always appreciate you and your props. [laughter] >> thank you so much for having me. happy holidays. jenna: happy holidays to you too. jon: it's the same active ingredient as ambien, the same thing, just a four-hour dose. jenna: but it's different than taking half an ambien.

jon: okay. jenna: it is a different prescription. jon: and didn't you spend years waking up at 2 in the morning? jenna: oh, yes. you never know, it could happen again. sleep deprivation is very serious, and the side effects, for any of you who have worked crazy hours, you just want some sleep, so you can understand why people would like the sleeping pill, but, you know, there's some things to consider. jon: i'll try the camomile tea. is iran flaming the violence in afghanistan? iran's pattern of meddling and what that country is trying to do next. [ male announcer ] drinking a smoothie with no vegetable nutrition? ♪ [ gong ] strawberry banana! [ male announcer ] for a smoothie with real fruit plus veggie nutrition

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jon: fox news weather alert. now the same storm system that spawned those destructive tornados in texas this week is behind another threat of bad weather in the southeast. chief meteorologist rick reichmuth live in the extreme fox weather center. rick? >> it is the season and slow-mover. we had the severe weather in texas. it mass moved a couple states to the east. storm watch boxes in effect. this one until 5:00 p.m. they are not tornado watches. we're talking about a bigger threat for very strong winds, 60 to 70 miles an hour and certainly some hail as well. strong thunderstorm warnings across parts of alabama. this entire area of the southeast is where we're going to see the severe weather today including all the way down to florida. for the most part it is wind and hail. we could see maybe a tornado

across parts of florida later on this afternoon. that those will be small tornados, maybe ef-0 or ef-1 we're still talking about some winter weather in areas of montana and idaho and wyoming. maybe a foot, foot and a half of snow falling over the next couple days and with that it will be very windy. blizzard watches across portions of montana. i point out that temps will drop across the northern plains. we've been having all the very warm temperatures. temperatures in the 50s across the north. but get ready next few days we'll see a big cool-down. tomorrow, temps in the 70s across the high plains. by the weekend we'll see temps in the 40s. with the temps in the 70 and 80s, a will feel like a big cool-down. jon: a lot of trees blooming in new york. >> you said it. jon: rick reichmuth, thank you. jenna: new information on iran about stirring violence in afghanistan.

there is a report that leaders in tehran ordered agents in afghanistan to encourage violent protests over accidental burning of korans by u.s. soldiers. "new york times" reveal iran gave the orders hours after learning of the incident. seth jones, former advisor to the commanding general of special operations forces in afghanistan. what do you think about this? >> well, it's not that surprising. iran has been involved in providing limited amounts of assistance to afghan insurgent groups including the taliban for several years. small arms, intelligence, some training. so this doesn't come as a big surprise it is just probably notable with the u.s. departure there are questions about the iranian presence will be after the u.s. leaves. jenna: what do you think the presence will be like?. >> well i think it is up to iran. it will increase its presence in the west, the center and increasingly in parts of kabul itself with the government. i think what iran would like

to see is a government in kabul that is supportive of iran, supportive of its interests in the region and in that sense it pits iran against pakistan, russia, and other neighbors including india. jenna: you mentioned the meddling we've seen before in afghanistan. we also saw it in iraq. we saw technology come in, technology used against our troops, that have killed our troops and maimed our troops. iranians have been up to no good since we've been at war in the middle east. how do you stop them? how do you make sure they stop doing this? >> a couple of things. iran is not only power including in afghanistan. pakistan is the biggest supporter of insurgent groups but on iran per se part of the issue is finding ways, and there are some ways to work on issues that would threaten both the united states and iran. one of them is counter narcotics cooperation. iran has been helpful in some areas trying to counter

the cultivation and spread of opium in the region. part of the is find ways to cooperate with iran and other governments in the region on energy and drugs and there are some areas along these lines. jenna: why do you think it's possible? >> i think it is possible there are mutual interests. iran has already reached out and established arrangements with the afghan government on energy trade. it is pursuing talks on pipelines, oil pipelines. so we've already seen iranian interests in a range of these issues in afghanistan. it provided development aid to a range of hazara and shia communities in central and western afghanistan. jenna: you're saying capitalize on some of those interests to see if there is way a way to work there. there are critics of that, and you know it well when it has anything to do with iran and including the nuclear program. we are getting a report that

iran is balking on nuclear talks in turkey. they don't like the location. they would rather see it in china. they would rather see it in iraq. what do you think is the next step with iran? >> i think iran is trying to do what it has been trying to do for a long time which is drag its feet on these issues. it appears it wants to build a nuclear program. so any efforts to speed up its building of a program and drag its feet on the diplomatic end gives it more time. that he is my judgment what iran is trying to do right now. drag its feet. give more time to build the program and build deployment capability so it can not just have the nuclear weapons but also deployment capability on missiles that can shoot them if necessary. jenna: yeah, scary thought. seth, thanks so much. nice to have you back with us. >> thanks, jenna, a new photo of one of america's most terrifying cereal killers. why the prison system is making them public and what it has to do with

charles manson's parole hearing. plus new details in a heart-breaking story. the mother of a disabled child face as possible life sentence accused of a terrible crime. [ donovan ] i hit a wall.

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peanuts. the night before she was supposed to be in her cousin's wedding as a flower girl her mother apparently gave her some m&ms as a treat she said, a little thank you for being in the wedding. the m&ms had traces of peanuts in them. little julie died. now the mower is being prosecuted for murder. doug is that appropriate? >> art narrowly, absolutely not. there would be all kinds of questions whether she would know what she is feeding her. at outset you said there is a suicide note that is absolutely critical. what this is, if you look at all the facts, and remember, they presented it to the grand jury. the woman herself testified in her own defense yet she was indicted for second-degree murder. she left a note saying she was in fear of her husband killing her and therefore sending her daughter to heaven to avoid her potentially being mistreated by the husband. so in my opinion, all of the facts point to this being a

murder-suicide but the suicide part failed. jon: rachel, veronica, the mother says, or apparently, you know, gave her daughter these m&ms that ultimately killed her. the mother later said that she saw that there was an allergic reaction. she didn't know there were peanuts in the m&ms. she gave her some benadryl to counteract the effects of the peanut allergy. they both went to bed. when she woke up next morning, the little girl was dead. she tried to commit suicide. where does the suicide note figured in all this in your mind? >> the suicide note is going to be critical and absolutely ad missable because it is admission of a party in a case like this and can you thought of as a dying declaration. that suicide note is very harlful to the defense of this matter and it definitely will come in the trial of this case. however, that suicide note also shows how crazy this woman was.

this is an affirmative defense to deprayed heart murder which in this case this woman is charged under new york pennal code, 125 section 4. which if you exercise depraved indifference to human life and victim is less than 11 years old you can be charged with murder. there is an affirmative defense to that if you have suffered extreme and severe emotional distress, you can be brought down to manslaughter. the charge can be brought down to manslaughter. doesn't necessarily mean the case is going to be dismissed but i think there will be a battle of the experts here, this woman is one fruit minus a full fruitcake and there are real issues. jon: doug, my understanding the autopsy didn't find traces of peanuts in the little girl's body. doesn't that help exonerate the girl's mother said i didn't know there were peanuts there? >> again, why would she have a note i'm sending my daughter to heaven specifically. that is the more important point. i do agree with rachel, first of all she was

originally charged with manslaughter. she was free from september of 2011 on very, very recently when the grand jury returned the indictment for the second-degree murder, the charges having been ratcheted up. i agree the defense will be some type of duress, emotional duress and basically a straight perhaps insanity type concept but to answer your question which is a very good one, the problems in forsenically what happened are overridden by the suicide note. jon: rachel, i mean if someone tries to commit suicide are they in their right mind anyway? does the suicide attempt and apparently what she did is take an injection of insulin, take some medication. she also told police she tried to strangle herself with an electrical cord. you have to wonder how serious a suicide attempt it was but if you're trying to commit suicide you're not necessarily in your right mind anyway? does that become part of the defense?

>> no, absolutely it will. with the suicide note what i find interesting it looks like it was written by two different people. starts off in one type of penmanship and cursive penmanship and gets down to print. it is completely, very crazy. everything that she puts in it. how she puts her phone password to get into her voice mail and how she wants to donate all of her things. seems to show some coherent thought but on the other hand she is saying all these crazy things. i think clear insanity defense will be one of the best defenses. she has a standard affirmative defense of being under severe emotional duress. jon: at the heart of it auld, a little 8-year-old girl in a wheelchair and victim of cerebral palsy. a very sad story all the way around. >> it is sad. jon: rachel self, doug burns, thank you both. >> my pleasure. >> thank you. jenna: we'll turn to some business news now. rock-bottom prices and mortgage rates make it a great time to buy a home, if you have the cash.

but for millions of americans it is a dream still out of reach. we'll talk about the pros and cons of owning versus renting. what is the right move, next.

jenna: well, some new pictures of one of america's most notorious serial killers release just before his parole hearing. charles manson, convicted of brutal murders of actress sharon tate and six others in 1969, we're seeing some of our file footage. when the death penalty was outlawed in florida he was sentenced to life in prison. he is is up for parole. here are just released photos. manson is 77 years old. has a long beard there.

long gray hair as well. you can still see that one distinguishing mark, one of them at least. a swastika tattooed on his forehead. manson has been denied parole, 11 times. jon: if you're looking for a home, it is a buyer's market thanks to low prices and mortgage rates. buying a home can be cheaper than renting but you need cash and good credit. in this economy that rules out a whole bunch of people. chief washington correspondent james rosen is live in d.c. with a look at the renting versus owning question, james? >> reporter: good afternoon. most americans still regarding their own home as a core tenant of the american dream even currently among people renting 2/3 say they expect to buy a home in the future yet the nation's homeownership rate has fallen not just since the glory days of the housing bubble eight years

ago but since 2010. there is irony, real estate web sites like zillow.com published studies more affordable to buy than rent. zillow found in major american cities home prices increased in 7% of those areas while rental prices increased in 70% of them. the national housing survey by fannie mae in the last quarter of 2011 found most people by a big margin believe interest rates will stay the same or go down over the next year yet the same survey found roughly nine out of 10 people deeming it quote, unlikely, they will purchase a home over the next year. it's a disconnect between incentive and outcome that doesn't make much sense until we take note of how intertwined the housing market is with the economy as a whole and in particular the employment picture. >> even though buying is now much more affordable than renting in so many parts of the country, many people still don't qualify for a mortgage or haven't saved enough for a down payment because we're coming out of

this recession. lots of people are either still unemployed or not secure enough where they are in their job to be ready to buy. >> reporter: other important point, industry professionals say you will be unlikely to reap the benefits of it being cheaper to buy than to rent unless you plan to stay in your newly purchased home for at least 10 years. that is due to all the upfront costs and closing fees. this is very much, jon and jenna, a life-style decision. jon: james rosen. thanks for that. jenna: we had the big jobs report on friday we'll be awaiting and we're also minutes away from the deadline today. the justice department expected to respond to a judge's request to clarify the president's controversial remarks on the supreme court. we have a live report on that moments away. [ kate ] most women may not be properly absorbing

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jon: that appeals court judge in texas waiting for word from the white house. jenna: three pages, single-spaced. thanks for joining us, everybody. jon: "america live" starts right now. megyn: meg fox news alert, the deadline is now for the department of justice to respond to a court's demand that the obama administration explain its position on judiciary powers in the wake of president obama's controversial comments. welcome to "america live," everyone, i'm megyn kelly. on tuesday attorney general eric holder was told by a texas appeals court to submit a three-page, single-spaced and specific letter explain what the authority of the federal courts is in terms of judicial review. should say the fifth circuit court of appeals. this is all in response to president obama's comments about the supreme court being unelected and suggesting