glad you are here. thank you. president trump is speaking with reporters outside the white house as we were rolling cameras before he heads to texas. warning -- once again, he is ready to act on his own if they don't agree to fund a border with mexico. watch. >> president trump: i have absolute right to declare a national emergency. the lawyers have so advised me. i'm not prepared to do that yet. if i have to, i will. i have no doubt about it. i will. we are either going to have a win, make a compromise -- because i think a compromise is a win for everybody -- or i will declare a national emergency. >> harris: negotiations not appearing to make any progress, though, in the past 24 hours. yesterday democrats came out of the white house meeting with the president enter publican leaders and accuse the president of storming out. >> we saw a temper tantrum. he couldn't get his way and he walked out of the meeting. he sort of slammed the table, and will leader pelosi said she didn't agree with the wall, he walked out and said we have nothing to discuss. this is a really, really unfortunate and, in my judgment, somewhat unbecoming of a presidency. >> harris: around and around me go. the president denied senator schumer's account, saying they are the ones unwilling to negotiate. >> president trump: i didn't pound on tables. i didn't raise my voice. that was a lie. i very calmly said "if you are not going to give us strong borders, bye-bye." and i left. >> harris: [laughs] and that he treated the same thing. right now, vice president mike pence wrapped up a meeting with members of congress as talks continue among lawmakers trying to make that deal. peter doocy come alive amongst all the melee on capitol hill. peter? >> i'm toward that jared kushner come of senior white house advisor, has reached out to at least one democratic senator. joe manchin, from west virginia. the two talked immigration but never got into any specifics about what kind of a deal he might be able to handle. if any. kushner was also at a meeting with a group of moderate republicans last night, hosted by republican senator lindsey graham. i'm told the discussion included a possible plan to trade border wall money for a daca fix. to let illegals brought the country as kids stay. right now the number is $5.7 billion. if democrats want to offer less than that, maybe it can be a small-scale daca fix. if democrats can stomach more, maybe it will be a large-scale 16 fix. >> there is a process, may be, that will pay dividends in making sure the president gets his border security funding. and can add some things to the mix that would draw some bipartisan support. it's in its infant stages. no commitment by anybody. >> just now on the senate floor, two democratic senators from maryland, homes to tens of thousand government workers, they have plans to reopen house. but they were shut down by the majority leader mitch mcconnell. >> the last thing we did to right now is to trade absolutely pointless show both back and fo. >> i'm extremely disappointed. i can assure the majority leader that this is not a show about issue with 800,000 federal workers being denied their paycheck. >> the morning after calling president trump "petulant," house speaker nancy pelosi stepped up to a podium to talk republican colleagues. >> we are saying to them, "take yes for an answer. this is what you have proposed. what are you rejecting at the expense of the health, safety, and well-being of the american people? do you take an oath to a constitution, or an oath to donald trump?" >> mitch mcconnell was clear on the floor beside today, he will not bring forward any kind of a spending bill unless he knows for sure that president trump will sign it. that means there is no instant, quick fix to the shut down on the table today. harris? >> harris: we already know kind of what the president was saying, it's got to have wall funding it. okay. peter doocy, thank you. do you ever feel like you're just going around the yard chasing stuff without the lawn mower? [laughter] "how my going to cut this grass?" "i don't know, bob. you need a lawn mower." i feel like they aren't getting any closer. >> andy: these kind of negotiations have momentum. if you had asked me two or three weeks ago, i thought this would be a total loser for president trump. because when he had that meeting with pelosi and schumer, he said "i'm going to on the shut down. i'm never going to blame you for it. it's going to be on me because i'm happy to do it." and i said "there he goes." and what he has done instead by staying with the issue and making sure that he planted himself on an issue that is a real issue -- to anybody objectively looking at it, there were crisis conditions at the border. you want to say it's a national emergency, however you want to describe them. there's a big problem down ther there. he is highlighting it, and he's got his opposition on defense. so he is in the game and he's got a chance to win. which i, frankly, i didn't think a couple of weeks ago that he did. >> harris: so, this idea of executive fiat to do something -- he has used it two or three other times already in his presidency. i don't know if people realize that, but he has. not on issues having to do with the border. former president obama use it several times as well. we know one of the method of immigration -- it was daca. where to resend the legality of that? how will that you get challenge in the courts if you were to do something by executive order? >> i think it's a terrible way to run the government, and unconstitutional way to run the government. congress is supposed to pass the laws, the president as opposed execute them. >> harris: the congress seems to be constipated on this issue now. what does the president do? >> andy: i hope he doesn't declare the emergency, because politically, right now, the momentum is on his side. the second he declares an emergency come of the is going to flip from what's going on with the border to whether he has done something illegal and unconstitutional. >> kennedy: you are right, that won't be the worst thing in the long run if congress finally takes back some of that power. but, to your point -- if congress acted, and let's say we take a pause and they pass legislation and address whatever is creating these crisis conditions. whatever the uncertainty is. if the actual interest that, in six months, what would happen? i think you would see the crisis abate. >> harris: i don't know if they want that. >> melissa: i don't know that everybody wants the crisis to abate. those are those who say there is no crisis, that it's manufactured. certainly those people don't mind it to abate. and there are people who has a less a political issue. on a technicality, we talked about two different things, here. is there an opportunity for an executive order that is different from declaring a national emergency? are these the same things? what are all the options that are available? >> andy: he could issue an executive order without declaring an emergency, but he can't -- he can't repurpose funds without declaring an emergency. >> melissa: so all he needs to do is declare a national emergency. the six i should point out, the problem here is that congress -- we do this government by emergency so much that congress actually enacted a statute in 1976, the national emergency act. the presumption in the statute was, if the president declared an emergency, the congress could overrule it by a joint resolution. what happened was in 1983 the supreme court throughout the legislative veto. what is left is the president declaring the emergency with no check on the president's ability to do that, because of what they wrote into the statute being voided by the court. >> katie: it goes back to what's actually on the table. what is being negotiated, what can the president do, what can congress do? nancy pelosi held a press conference this morning and she said that daca hasn't even been discussed. at the same time, saying it hasn't been put on the table by democrats, she admitted that it's a very popular thing both by democrats and republicans. they have offered numbers of daca recipients and their parents amnesty for some kind of -- >> harris: but republicans stepped on that. >> katie: correct. everything that i think is important, it's been portrayed that the president is only asking for a wild. that it's only solution he thinks he can come up with. this is a letter from last week, from the office of budget and management. it includes $500 million for new immigration judges to process asylum claims that you you would think democrats would want. 52,000 new detention beds in these ice centers, so they can properly and humanely process these people. humanitarian aid. the most important thing -- because you have seen democrats say "we are all about new technology, we are about border security" -- well, and this letter they offer $675 million for additional technology. >> harris: from whom? >> katie: the office of budget and management, from the administration, to the senate. saying "look, the bill that's on the table in terms of appropriations, the senate bill, doesn't include these things. these are what we want." three of these things, democrats have asked for. putting it on the table. >> kennedy: you've got technology and unit employees. democrats have been clamoring for that the entire time. if hard-core immigration activists and conservative hardliners are worried that the president folds, he capitulated on a lot of the stuff. >> harris: i had democrats under republicans on "outnumbered overtime" it yesterday, it's about a wall. let me finish. he will say "the wall" and then he will say other things. we are actually at a point of immaturity, it would seem, in this conversation where you can't even see say that four-lr word no matter what you put in front or behind it. do you completely take it out? does that hurt him with his base, if you completely take that word out and supplant it with everything's? i'm just trying to get us to go forward. katie, what do you think? >> melissa: he has taken the word out quite a bit. you heard talking -- when you talk about showing a little while ago, if you look in committee in june, there were democrats in the senate who voted yes for these very things. for border funding. border security funding. whatever it is. they voted yes, we nancy pelosi said they would not over in the house. he wants so, what i'm doing is called the democrats' bluff. andy, that's what we are doing. that if you take out that four-letter word, "wall," call their bluff and see if it's not the thing. >> andy: i must say, the semantics of this -- people know that walls make sense. the problem with the democrats' position, they have taken the position that there is a morality. >> kennedy: they don't believe that. they are not reacting to the wall, they are not reacting to the problem. which means they are not reacting logically. they are reacting to the president. i would challenge nancy pelosi and chuck schumer for a moment. take the present out of it. pretend that there is some blink person he was president, and it's not donald trump. >> obama! [laughter] >> kennedy: be concerned with the actual issues. the people at the border, those most affected, talk to legislators and border states. then come up with a solution. forget the president for just a second and see if you react differently. i think the reaction would be diametrically different. >> harris: melissa, let's take the couch to d.c. >> melissa: okay! i love that idea. [laughter] >> harris: we will try. democrat lawmakers demanding the attorney general's testify sooner rather than later. republicans are demanding the deputy attorney general testify, as well. whether we will see either official do this, and what it will me to the special counsel investigation. and, the president's choice to be the next attorney general making the rounds on capitol hill ahead of the high-stakes hearings next week to confirm william barr. whether or not democrats will make a stand to try and block his confirmation. >> i still believe, after the revelations about mr. fisa 'unsolicited memo, president trump ought to withdraw this nomination ♪ when cravings hit, hit back. choose glucerna, with slow release carbs to help manage blood sugar, and start making everyday progress. glucerna. if you're a veteran homeownecall newday usa., home values are rising, and with newday's va cash out home loan, you can borrow up to 100 percent of your home's increased value. you could get 54,000 dollars or more and lower your payments by over $600 a month. with automatic authority from the va, newday can say yes when banks say no. take advantage of your home's increased value. call newday usa now. go to newdayusa.com or call 1-800-405-6714 amazon prime video so when you say words like... show me best of prime video into this... you'll see awesome stuff like this. discover prime originals like the emmy-winning the marvelous mrs. maisel... tom clancy's jack ryan... and the man in the high castle. all in the same place as your live tv. its all included with your amazon prime membership. that's how xfinity makes tv... simple. easy. awesome. ♪ >> melissa: things are getting conventions ahead of next week's senate judiciary committee testimony by william barr. he is the pick to replace jeff sessions as attorney general. committee democrats plan to grill barr on his view that the special counsel's rush investigation, specifically, a memo he sent to deputy attorney general rod rosenstein last year. in the memo, barr's criticized the discussions as misconceived, and wrote that president trump's interactions with former fbi director james comey would not constitute obstruction of justice. here is minority leader chuck schumer on the senate floor yesterday. >> president trump is trying to replace folks like mr. rosenstein, with conflicted loyalists like matthew whitaker and william barr. i still believe after the revelations about mr. barr's unsolicited memo, president trump ought to withdraw this nomination. >> melissa: top democrat on the judiciary committee, senator dianne feinstein, meeting with barr today. democrat senator patrick leahy also expected to meet with barr. ante, you were shaking her head through that whole thing. >> andy: because the memo -- barr, by the way, as a former attorney general has said, he is the most qualified candidate to be attorney general since robert jackson. that's how qualified he is. he has already been attorney general, and he was a terrific attorney general. the memo does not say that the investigation is fatally misconceived or whatever it was. >> melissa: where does that come from, then? >> andy: what it says is that one aspect of the obstruction investigation is misconceived, and he is complete the right about that. >> melissa: which one is that? >> andy: it's the aspect that says he can be held by obstruction. like firing subordinate officials or issuing pardons or weighing in on the merits of investigations. what barr said is that a president can certainly be cited for obstruction if he commits a traditional obstruction. if he pays off witnesses or suborned perjury. but you can't be cited for obstruction when you do something illegal, because a mere prosecutor who is an inferior executive official decides to second-guess the chief executives' intent. he doesn't get to do that. >> harris: that's andy mccarthy right there! a >> andy: that's what the memo says. it's a brilliantly-done memo, which is not surprising, because barr was the head of the office of legal counsel during the first bush administration. george h.w. bush's administration. those guys are the lawyers 'lawyers in the justice department. if you read this 20 page memo, it reads like an olc, office of legal counsel, justice department memo. it's actually a stellar piece of legal craftsmanship. >> melissa: what other things do you think they are going to try and throw out there, to say that he's not qualified? because this was -- it seemed to us like it was one of those picks where you pick someone who did it under, at the time -- this was during the time of the funeral of former president george h.w. bush. they were talking about how he was the last good, honest, decent man to hold the office. in his group. it seemed like it was somebody already served. to the naked eye, there should be no we couldn't get through until he killed somebody or something. >> andy: if you have the right kind of world, he would get confirmed 100 to nothing. in the world we are currently in, where everything gets politicized, they will go after him. he is going to get confirmed. hopefully he will get confirmed with an overwhelming vote. i'm not holding my breath, but... >> kennedy: it's okay to have questions. we have seen what a hyper politicized committee can do, and how they can get something wrong. all we have to do is look at jeff sessions. i hope the democrats coordinate and don't only focus all of your questions on this memo, and i hope republicans don't just give him a pass. the attorney general has enough independence that this person is coming into a climate and coming into a time of criminal justice reform, in an environment that is completely different than when he served in the late '80s and early '90s. therefore, he has to be -- how will you deal with things like civil asset forfeiture? how will you move forward this reform push that is bipartisan and has the acquiescence of the president? and don't just focus on the memo, because you can waste so much time. you can do the country a great disservice. >> harris: you know what? you need to go to that hearing. [laughter] >> katie: i'm looking forward to watching. seeing democrats like cory booker act like they know better than bill barr, who was far more qualified than cory booker validity. >> harris: house democrats have rejected matthew whitaker's offer to testify next month. judiciary committee chairman jerry nadler is insisting that he appear before president trump's state of the union address later this month. in a letter to whitaker, he wrote this. "we must discuss the impact of the president's nearly daily statements attacking the different of justice, the fbi, and robert mueller's investigation." this, as jim jordan renewed his calls for deputy attorney general rod rosenstein to testify. he wants them to explain last year's report that he talked about the 25th amendment being invoked to remove present chart from office. rosenstein is expected to leave his post, if and when a new attorney general is confirmed. possibly in the next week or so. you got opposing thirst for testifying. what do you say is within the realm of reality, here? >> andy: nothing. it's theater. nadler wants whitaker to come in so he can read trumps treats to him and say "does the justice department agree with this? just the justice department agree with that?" >> harris: what does that accomplish? >> andy: he wants to do it for the state of the union address. so the president comes in with all the majesty of the government, such as it is. and he wants to be able to undermine all that. >> harris: hopefully he will be running by then. on the flip, you've got jim jordan. >> andy: when the republicans are in that committee, they couldn't get rosenstein to come in and testify. trump could have ordered him to go testify at any time, and he didn't. so the whole thing is just nonsense. >> harris: theater. kd? a >> katie: i think rosenstein has expended nothing about the 25th amended comment. he said he made in jest. he went to the white house to swim a comment to the president of united states, still kept his job. i think that if he can explain what he said behind closed doors -- >> harris: why does jim jordan want to go after him? >> katie: i appreciate how you pelicans wanting to get accountability for these things. i think as the head of the new judiciary committee, lindsey graham will try to get to the bottom of some of the spies abuse. and may be able to get rosenstein to come testify on those grounds. but to get them to come testify about a comment that he made in a private meeting is a little bit silly. >> harris: he's already talked to the present about it, which he pointed out. >> andy: the ig is looking into it, too, aren't they? >> kennedy: that's absolutely right. there are so many of a conflict of interest that he has to answer for, even if he is leaving his post. you can't commit some of those political atrocities if you are going to hold that post in the future. if you are going to oversee anything, you have to make sure that you are not acting as a human shield and allowing abuse of power under your watch. >> melissa: this is the thing that drives me nuts. you say, have them come in and get to the bottom of some of this fisa abuse and answer questions about that. i feel like we never get to the bottom of it. we never get any answers. >> harris: why is that? >> melissa: even if he did, what would happen as a result? >> katie: for the first time in a while we have seen people five at the fbi. >> andy: there has never been a day that president trump could not have ordered all the stuff to be disclosed. we want to know white hasn't happened? that's why. >> melissa: even if it gets disclosed, it seems like nothing comes with the idea. it's not getting corrected. as vulnerable as ever before. >> andy: how can we know that, though? if they put it out and it looks like something really atrocious happened that they took a piece of campaign literature, or a screen, which this dossier was, that was the only thing the judges asked to make a probable cause finding on. >> melissa: we know it wasn't the only thing. >> kennedy: the republicans have to stop reauthorizing the surveillance powers, which are so ripe for abuse. i still blame devin nunes for that, because he stood up and championed reauthorizing and empowering these agencies even more with morris by power. and this is what they happens. >> harris: republicans push against that. you are talking about -- >> a few of them do. >> andy: we have to have the spy powers. when they are used, they are necessary for the production. >> kennedy: they that's the operative phrase, legitimately used. >> andy: this is the one area of law and national security where the public needs to hear "we can trust us. we will use these powers properly." the problem with this whole scandal is -- i care less about what the scandal is about than the fact that they are under undermining the things we need protection on. >> melissa: that's great point. >> harris: as we rate the president's arrival at the border, mcallen texas to be specific, new reactions to his suggestion that democrats have been hijacked by the far left. democrats and red districts are getting over the partial government shutdown. we will visit that issue. plus, a christian baker who won at the supreme court is back in court. another case involving his religious beliefs. the big victory he scored against state officials, who he says are not bullying him. ♪ as someone in witness protection, i can't tell you anything about myself. but believe me... i'm not your average consumer. that's why i switched to liberty mutual. they customized my car insurance, so i only pay for what i need. and as a man... uh... or a woman... with very specific needs that i can't tell you about- say cheese. mr. landry? 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you think that because -- that would mean that the tide has turned. before we heard the president was losing messaging more, that it was republicans that were going to rake apart. do you the politico story that democrats are starting to feel the heat? it hasn't felt like that so far. >> katie: especially in virginia. northern virginia has new freshman congresswoman. look, democrats -- with their old style leadership, without the new blood in the system -- have jumped the shark on their response. they put up the resistant multi-president trump, and instead of saying "okay, let's talk about what's going on down there," they completely put a blindfold on and said there is no crisis. don't acknowledge what's going on. when people out in america can see the photos of thousands of people. they see the video coming, they see people waving honduran flags wanting to rush into the country. they see people in tijuana saying this is overwhelming for their resources, and that people are trying to come to america. it's almost insulting for people like nancy pelosi and chuck schumer to stand up and say there is nothing going on, when people can see with their own eyes, whether they are republican, independent, or democrat, that "i might be nota term supported, but i believe in scaring the border." and i think they get sick of lumping an illegal immigration with legal immigration and thinking about the sympathy for people who came in with daca or whatever kind of amnesty program applies to everyone who comes into the country illegally. and that isn't true, either. they assume too much when it comes to real equipment creation. and what people think about it. >> melissa: i was pressed, anti- -- when they were saying that he said "if i reopen the government a month from now, we can talk about border security." he didn't say "wall" according to a bunch of people that were there, but, again, we weren't there. but she said "no." i have to wonder what her end game was. he was saying "let's open, and let's talk." which is what she claimed she wanted. at that point, i would think the democrats' game is to dare him to announce a national emergenc emergency. they are thinking at that point the tide will turn again, against -- hard against him being out of control and crazy into clearing things. what you think about fear? >> andy: that may be right. i think it's also possible they had a strategy that has been superseded by events. i think they had a strategy, and it can't blame them for this. as i said before, i was totally wrong about this. i think when trump said "i will own the shutdown," they were figuring they would hang this shut down on him and they just needed to tough it out. i think it, because there really is a crisis on the border for all the reasons that katie just articulated, trump is talking about something real. they look like they don't -- that they are not willing to do with something that is real, and i wouldn't underestimate the disaster that was the schumer-pelosi response to trump's speech of the other night. the momentum of the coverage and how people feel about this. >> harris: real quickly, just to get back to what was said in the room. according to the president's twitter feed, he offered in 30 days "will you border security which include a wall or superior. nancy said no. i said bye-bye. nothing else works." that is, accrued to the present, what was said. >> kennedy: there are risks in both parties pray they have to find a coalition if they want to get past this pray that the only where and how. speak to build the buzz he pushed mandatory health care for all including illegal immigrants. he is now calling for a mandatory paid vacation for all workers in new york city. this, he admitted other signs that democrats are moving further and further to the left ahead of the 2020 election. whether that is what voters want. you will debate. >> do need a break? 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ask your dermatologist about cosentyx. this round's on me. hey, can you spot me? come on in! find your place, today, with silver sneakers... included with many medicare plans. call the number on the screen now or visit getsilversneakers.com think only specialty stores have what's new? olay has this season's hottest debut. like new clay stick masks. all mask, no mess. olay hydrating facial mist. for hydration on the go. and our breakthrough brightening eye cream. boosted with vitamin c. get your new beauty fix. only by olay. ♪ >> new yorkers need a break. new yorkers need a break. do you need a break? do you work hard? if you work hard and you don't get a break, that's not fair. >> for the first time, we will be the first city or state in this nation to guarantee all workers two weeks of paid vacation. >> why stop there? new york city mayor bill de blasio announcing a push to have companies provide paid time off. this after he provided health care for all residents, including illegal immigrants. the head of a group presenting hotels and restaurants, warning that has significant cost for visits is. especially at a time when vacant storefronts are on our city streets and implement growth at city restaurants has gone flat due in large part to other government mandates. in the meantime, de blasio yesterday not ruling out a 2020 presidential run. i hope you will be able to see over everyone's heads! all this coming after california governor gavin newsom this week also providing health care for immigrants, and that liberal is at its highest level ever. 51%. that number rising steadily from 25% in 1994. these always sound like a great idea. a speech you know, they don't. >> kennedy: give new yorkers some time off! have a government force employers to pay people! that sounds great. we need vacation time. but what are some of the unattended consequent this, eddie mccarthy? >> andy: the race to run out of other peoples money. you're going to make a new york an impossible place to do business. the business capital of the world where nobody will want to do business. >> harris: wow. >> melissa: sounds like amazon. >> melissa: all you have to do is walk around the city and see the empty storefronts. it's everywhere. i walk around my neighborhood, i thought it was just there. it got -- blocks and blocks of the first level is empty. west side eastside, midtown, all of the place. are you going to talk to local business owners. "why are you going out of business question rick you can't get a table at this restaurant." and they say "my landlord has jacked the rent because he's trying to cover his taxes." and you can't. why would a landlord get a place go empty cost market so we could take it as a loss against the rest of his taxes. there's an economics behind all this empty storefront. as a result, those jobs are gone, those places are gone, the tax revenue for the city is gone. so what does de blasio do custom work he rates his taxes higher on the few people that are left. you can see the quality of life has gone down the drain. the streets are filthy. it's more dangerous than ever. the squeegee men are back. the quality of life has gone down the drain. he says, you want to break? we need a break from him. i'm done. [laughter] >> andy: you are so done! [laughs] >> harris: i live across -- >> melissa: i'm not going to tell my real name because they will stop by. go ahead. >> harris: i live across the hudson in new jersey, and we hear about this. i don't ride the subway very often because i don't live here, but the few times i have recently my friends have been saying to be careful because there are more muggers now on the subways. apparently they took the number of protection officers from those platforms, now they are having to fold them back off. those are all city dollars. those are all taxpayer dollars that they are folding back in. you have seated away some of that ground that he used to protect. i would save us about the businesses come really quickly -- it changes the productivity of people when you give them too much and you take away the incentive to stay on the job. >> kennedy: when you foresee small businesses. we are talking about giant corporations and chain restaurants. we are talking about small businesses, those who are suffering most with the cost of compliance. i want to talk about the political ramifications. the only way nonsenators can differentiate themselves is by executing. that means people like gavin newsom and bill de blasio. they will put forth a very progressive program for short-term political gain. the long-term ramifications for people in new york city and california can be pretty dire and devastating. complete lee devastating, with the economic consequences. the upside for bill de blasio and people like gavin newsom is that they can actually tangibly say "i gave all illegal immigrants in new york city access to free health care. so i am, therefore, the most qualified leftist candidate we have been very crowded field of leftist candidates." it's going be very difficult for people like cory booker or kamala harris to distinguish themselves when they don't actually have that tangible action on the table. unfortunately, people in new york and california are going to suffer at the hands of the 2020 primaries. >> harris: 's of it has to pay for all the stuff, the free vacations. my concern is, if your productivity slides, is your job more jeopardy customer mark if you just think about it with a heart, you don't want to give too much away. john protection -- if you become job to do. >> kennedy: built the boss he was going to hire everybody for his presidential campaign, and it will be great! [laughs] a judge says a christian baker might be a victim of antireligious bias, again, from state authorities. the impact of all of this, next. ♪ >> the state of culver should the state of colorado forced me to create a cake? ♪ alright, i brought in ensure max protein... to give you the protein you need with less of the sugar you don't. (straining) i'll take that. (cheers) 30 grams of protein and 1 gram of sugar. ensure max protein. in two great flavors. and back pain made it hard to sleep and get up on time. then i found aleve pm. the only one to combine a safe sleep aid, plus the 12 hour pain relieving strength of aleve. i'm back. aleve pm for a better am. >> melissa: more "outnumbered" and just a moment. but first, let's go check in with harris and see what's coming up on "outnumbered overtime." just a few moments from now. harris? >> harris: it's coming together, melissa, thank you. the president is due at our southern border with mexico in the next hour, after suggesting this morning he may yet declare a national emergency there to get the wall builds. the partial government shutdown is now in day 20. republican congressman doug collins will join me on whether there is any progress in the talks happening on capitol hill. plus, the white house reportedly is beefing up its legal team to keep the president 'confidential talks with advisors away from democrat investigators. can they accomplish that? they have hired 17 attorneys. judge andrew napolitano with me at the top of the hour, on "outnumbered overtime." back to you. >> justice kennedy has held that it's a two-way street, and it is not by the civil rights committee of colorado. jack has flatly won, and that's good news. we are very happy to celebrate his freedom and his victory today. >> that is michael ferris, president of the alliance for defending freedom. outside the supreme court, after jack phillips won his case against a saved current. they ruled that the civil rights commission showed antireligious bias when it punished phillips for refusing to make a cake for a same-sex wedding. then, just three weeks after that decision, the same state panel launched a new prosecution against phillips over his refusal to create a cake celebrating a gender transition. phillips sued the commission for an alleged harassment campaign against him. they asked that a federal court throughout the case, but how a judge has ruled that phillips' case can move forward. the judge ruling that the commission's "hostility is sufficient to establish they are pursuing the disk termination charges against phillips in bad faith, motivated by his religion." what's going on here? >> andy: this is caused by what a lot of us that when the supreme court issued that decision. the craven way that they decided the case. rather than dealing with this man's freedom of conscience, with a instead did was say "well, you know, his procedural rights were violated." they showed a lot of animus during this proceeding. they asked to mean questions. they wouldn't do with the main question, which is whether he has religious liberty to say "no, my conscience does not allow me to do that." they want to see a million miles away from it. blood in the water so to speak, they went right after the guy again. virtually 5 minutes later. and the court is going to have its case in its lap again. we might have to grapple with the main issue in the cases. >> katie: it's started with private citizens not exchanging money or services for this wedding cake. he is targeted again with a gender celebration cake. the government, now, is going after him. there is a big, big question about whether states can go after private citizens for simply rejecting business. but especially on religious grounds. >> kennedy: it's what the government can't force you to do, in terms of free speech and civil rights. and he is right, there are a lot of outstanding questions here on those two issues. and that's with the supreme court is for. the supreme court is not there to moralize and legislate. but to take president to precedent. having said that, if i were a baker in colorado, i would only bake gay cakes. [laughter] speech you ask you to parse the idea of his conscience not allowing him to make the cake? you have "i can search for a long term it's my bakery. even if it's bad for business, i can refuse business." versus refusing to serve someone based on their color, race, ethnicity, gender, whatever? where you are saying you must serve everyone i your counter. you can refuse to serve someone based on race. how do all those things were to give it from perspective? >> andy: he wasn't saying he wouldn't serve them. what he was saying is that "you can't force me to engage in expression that my conscience does not permit me --" >> melissa: the art of making it a cake? >> andy: he would serve them anything that was in the store prayed he would serve them just like he would serve anyone else. he is saying "you can't make me mate statements." "that's a violation of my first amendment rights." >> katie: he said he would make them a birthday cake, he doesn't make halloween cakes for anybody. there are other situations where he would make cakes, other things that violate his conscience. we'll keep up with that story in the future, i'm sure. more "outnumbered" in just a moment a newday va home loan letu refinance your home and take out 54,000 dollars or more to pay credit card debt, or just put money in the bank. it even lowers your payments by over 600 dollars a month. as a veteran, you've earned the powerful va home loan benefit that lets you refinance up to 100 percent of your home's value. and with home values rising, that can mean a lot more money for you and your family. and because newday usa has been granted automatic authority by the va, they can say yes when banks say no. and they'll do all the va paperwork for you. we all know some of life's most important financial decisions are made right here at the kitchen table. so, if you're a veteran and need cash, calling newday usa could be one of the best decisions you'll ever make. go to newdayusa.com, or call 1-877-423-5734. your insurance rates skyrocket you could fix it with a pen. how about using that pen to sign up for new insurance instead? for drivers with accident forgiveness, liberty mutual won't raise their rates because of their first accident. switch and you could save $782 on home and auto insurance. call for a free quote today. liberty mutual insurance. ♪ liberty. liberty. liberty. liberty. ♪ >> melissa: b want to give our thanks, as always, to auntie mccarthy. i love having here. a quick final thought? >> andy: bill barr, bess attorney general nominee decades. >> melissa: will it go smoothly? >> andy: nothing does. but he will get confirmed. >> melissa: thanks to all of you. we are back here on the couch at noon on friday. tomorrow. how about that? [laughter] >> harris: fox news alert, president trump taking the shutdown battle to the border. this is still on the table. the president says he can declare a national emergency and build a barrier or a wall. let's go "outnumbered overtime." i'm harris faulkner. we are awaiting president trump's arrival in mcallen, texas this hour. he is scheduled to meet with portage and spray things got dicey when a meeting with house speaker pelosi and senator schumer today, and they rejected the president's demands to fund a portable. early today, president trump s quitting warning saying he can declare a national emergency. >> if we don't make a deal -- i would say 100%, but i don't want to say 100% because maybe something else comes up. but if we don't make a deal, i would say it

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