inheritance" show airs. thank you for having us in your homes. "making money" with charles payne is next. charles: good evening. i'm charles payne. it's 6:00 eastern time. the deadline has passed for the justice department to make its case to a federal appeals court to lift a nationwidelock of the president's order. >> we need strong programs so that people that love us and want to love our country and will ends up loving our country are allowed in. not people that want to destroy

us and destroy our country. freedom, security and justice will prevail. charles: joining me now -- i think this is the aftermath an exciting football game. let me ask you. there is a lot of commentary on the role of the judges and the judicial system in this particular case. eventually where do you think this is going to go? >> i think it will go to the supreme court and the supreme court will uphold the president's constitutional as well as statutory authority to insure the american people are protected against those who seek to subvert us by force or through stealth. and many of them are coming from

places like the countries barack obama identified and others are coming from other countries which may yet have to be added to this list. but i think the president is right. we are protecting american values and protecting the american people. and i think that's where the courts will come down, recognizing he has the sworn duty to do both. >> you think they overstepped their bounds? >> i think they got it completely wrong. those courts that ruled against the president's initiative. a judge in massachusetts affirmed his right to do what he has done. we'll see it tested in the courts. but the previous presidents, including barack obama, used this authority, and i think properly so, and we would hold them, i believe responsible if they were to fail to exercise this kinds of authority to protect our people and our

country. charles: a lot of people are saying the ability for the president to use this authority isn't what's in question here. but the way it was rolled out, i'm not sure if the justice department should or does have a role in mitigating that. how do you see it playing out from here? >> i think the rollout was sloppy and i am he to yo -- and impetuous. it was the green cardholder's the administration had to backtrack on. but he was following his constitutional authority under article 2 of the constitution to address individuals and nations abroad. all the power of the executive authority is vested in the president and there is no question of the statutes under the immigration code that lay out the 7 areas and nations of

concern were not laid out by this administration it was the obama administration. any hour the 9th circuit coast apeople will be ruling on this. they are reviewing affidavits from a lot of liberals from the obama administration. if you have the 9th circuit ruling one way and the 1st circuit ruling another way and the supreme court divide, you are looking at something unpress depthed in the united states. charles: just one court in boston didn't see a need t extend the initial ruling. it's going to be a major slit cal/constitutional battle. >> it might be. as i understand it -- fair

warning, i'm not an attorney -- my understanding is the massachusetts case was decide on constitutional grounds. the oather cases -- the other cases were decide on economic hardship and don't test the constitutionality of this executive order. if it's being decide on its constitutionality, trump should win. but you have the same thing that drove a lot of people to the polls, they look at things like sanctuary cities, they think this is the left practicing nullification. they look at court decisions out of warn and the recent refusal to stay, and that was their view of judicious imperialism. people forget what this temporary travel ban is about improving our vetting. and they are trying to turn it into a discrimination issue which it is not. charles: could it play a role in

the final outcome? i read stories where christians were turned away and sent back to wherever they came from. bust media narrative is this is a muslim ban. could this be the deciding factor? >> we'll see. it depends on what the supreme court decides to evaluate this. i hope it will be on constitutional grounds and it should be. what is really going on here is people seizing on whatever pretext presents itself to attack donald trump. these are people determined to destroy this presidency by hook or by crook. they seized upon this and they are spinning it, i believe mischaracterizing it, they are getting federal judges to validate their efforts. but at the end of the day it's abou security of the country.

that's the responsibility of the president first and foremost. i think it will be upheld by the supreme court when and if it does get there. charles: you talked about a constitutional crisis. it sounds ominous. >> i agree with a plot of what the panel is saying. in this case the constitution doesn't apply the overseas. the powers of the constitution stop at our borders. some one in tehran has no process right to get a visa to come to the united states. but legally speaking the president is absolutely within his rights to make these determinations. the problem is you have judges micromanaging related to matters of constitutional authority that the constitution says is vested in the president of the united states. we don't reduce this flog jam it will affect the national sciewmpt all of us from coast to

coast. charles: if cheese more tore yums are extended for some of these countries because in all likely height would be for a country like syria and perhaps others. does it make the legal battle that much merckyer? >> i don't think that's the issue. i don't think it's the duration. barack obama put one in place for six months with respect to iraqi citizens. i don't think that's the point. the point is the principle. the principle upholds the president's latitude to do what he has to do. it's in statute as well as the constitution. that's what the courts ought to rule on. not economic hardship and other mechanical considerations. >> if i can jump in, i think one of the concerns here is what does muddy it is the u.s.

circuit or the u.s. appellate court decide against the administration. the decision to take it to the supreme court when you only have 8 justices, that will affect the nomination process for the 9th justice of the supreme court. we'll see apple, microsoft and google who have claimed extreme economic hardship from having this travel ban. how many employees do you have more going back and forth? why are you paying people to go back and forth? they will be creating a p.r. problem for themselves. char are the justice department has filed so the case continues. to heather's point, elon musk who is on the president's advisory council was not on that

list of 97 companies, now he is, spacex and tesla. the plot thickens. thank you very much. achoo! feel a cold coming on? zicam cold remedy nasal swabs shorten colds with a snap, and reduce symptom severity by 45%. shorten your cold with a snap, with zicam.

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charles: the 9th circuit coast appeals have scheduled oral arguments for trump's up greying moratorium for tomorrow. the gop old guard seems to be taking up arms against president trump after he tweeted against the judge that resumed against his immigration order and said this to bill o'reilly. >> we have a lot of killers.

do you think our country is so innocent? charles: you can see more of bill o'reilly's interview tonight. mitch mcconnell seeped to be hitting the president hard over the comments over vladimir putin and the travel moratorium and a few other things. we deal a lot with the opposition party. but it seems to me president trump is still getting more flack from his own party than he is from nancy pelosi. >> you are right. and it's disappointing. the leaders in the gop should be shown solidarity with the president. he's the leader of their party and he should be defending president trump as much as he can. democrats don't do that. they are not looking to go on

interviews and take down leaders of the party. that's a critical mistake the establishment keeps making time and time again. charles: ways going on hear. mccain and graham don't see eye to eye with the president. but mcconnell more and more seems to be jumping into the fray. >> when you look at this on it you are face the looks like what adriana was talking about. but president obama had a golden opportunity to defend the united states and promote american exaptionallism. when he says we are not so innocent and dismissed it. vladimir putin murders journalists and aas naits the political opposition. we don't do that in the united states. we criticized barack obama for not doing that and saying thing alg these lines. we have to be consistent and not

criticize the president now. charles: americans voted for president trump because he doesn't do a political speech. he will say we don't have the cleanest hands out there. does the mitch mcconnell -- is it his job to point out every type president trump may or may not say something he doesn't like or doesn't jibe with the party overall? >> i don't think he should give these interviews critiquing the president. it's fine to have conversations with members of congress. but what compels him to go on national television shows and disparage the president? president trump is right. this country does have blood on its hand. the obama administration killed 100 innocent civilians with his drone program. look at the iraq war it was a

disastrous war that killed many people. donald trump is being honest. he's not a diplomat. he will say it the way he sees it. >> you are saying it's okay for -- not okay for people to criticize president trump. but president obama can criticize people on first mall terms? you are making this into -- you are sounding as hypocritical as democrats. not on two weeks ago you criticized democrats for being hypocrites. we want to show ourselves as the party to be promoting america and american exceptionalism. charles: adriana? >> you have to be honest and call it the way you see it. why doesn't mitch mm connell highlight when the democrats -- shouldn't he be highlighting the mistake in the democrat party?

it's okay to critique someone if you see something that you think is wrong. but he has gone through a laundry list of things instead of trying to help the president implement his policies. why not first 100 days, give him the chance to implement his policies. charles: it does sounds like mitch mnl connel mcconnell is sp a few roadblocks. the foreign press is drawing blood. wait until you see these images next.

charles: the mainstream media's war with president trump is getting rougher. here is an irish magazine portraying him with a sniper's

target painted on him. the question says, "why not." here is one that depicts him beheading the statue of liberty with the caption "america first." this is shocking stuff. >> it's something else. the important context to bear in mind. we think how confusing the trumpify phenomenon was to east coast media he athletes. it's tripling perplexing to these foreign journalists. the trump phenomenon isn't just unsettling to many of these media outlets, it's also perplexing, especially if they haven't spent time over here feed during the campaign. they don't understand the

support for president trump in the united states and you have images divorced from the way many americans view the president. charles: i wonder if "derks r speigel" would draw a cartoon of the prophet muhammad. what is the resentment by the foirn media to president trump? i think it's bone of confusion. >> i they are reacting to an unknown quantity. but it's totally self defeating. we have seen the press overreact on things. it destroys their credibility. it's our job to report the truth and encourage transparency. unfortunately this administration has at times not

been transparent. it makes it tougher for the journalists to do their job. charles: some are saying maybe ireland could be worried about losing tax benefits. but these images are worrisome. >> you remember gabby giffords camp, there was the targeting magazine, campaign shot which has targets on districts. which clearly was not meant to shoot anybody. the uproar and horror that somebody could possibly use a bull's-eye on anything that wasn't even a human being. and i'm hearing crickets about this from the same people. i would not be as kind. i think that trump has hit a nerve with these people.

they go to the church of leftism and certain assumptions. one is that america because it is the number one country in the world ought to be apologetic for that, and trump is the antithesis of that. he will be dealing from a position of strength. he's not apologizing for america and is demanding respect. this will rattle a lot of cages. >> we are talking about it right now. this is the kind of thing that draws attention. you saw it circulating on facebook and twitter over the weekend. it's insulting to a lot of voters. it's missing the legitimate issues, particularly that they had with hillary clinton. >> you are not seeing the mainstream media pick it up.

places like news week and "the economist." indicating that he's getting rid of liberty and the economist had him throwing a molotov cocktail. charles: silicon valley striking back at president trump's travel moratorium. now elon musk is on board. liberty mutual stood with me when i was toousy withhe kids to get a repair estimate. i just snapped a photo and got an estimate 24 urs. my insurance company definitely doesn't have that... you can leave worry behind when liberty stands with you™ liberty mutual insurance

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♪ charles: silicon valley ramping up its war against president trump on all fronts that was airbnb ad. from last night's super bowl. the valley darlings that is just one of them with tesla, apple, google, facebook.

calling trump's travel ban unconstitutional, discriminatory and hurtful. 98 companies technology companies coming out against this travel moratorium from 7 countries, where it hard to believe they have any real financial ties, certainly not anything that would disrupt their income. what is the point here? >> the point is that donald trump as president in his early days is taking on the conventional wisdom and taboo about the american company, tech companies are concerned about the visa program that allows them to bring nonimmigrant workers, in who are so-called experts. i think that trump wants to do what he said in his campaign promise of creating jobs returning jobs home, making

jobs more available to americans, this one of his angles. and it valley shocking -- really shocking for the tech world he would draft an eo, it has not been finalized on this issue. this is a discussion this needs to happen, are these jobs misplacing american specialists who may do them, there is a bias that many have argued in that the visa in terms of younger people coming as opposed to more middle age, and older workers. this will be looked at now, i think it is shocking for the tech world that in fact washington will inspect them at a level they have not expected to happen. soy quickly. charles: shelby, to that point, silicon valley is throwing a lot of money at dc the last few years. the point is.

h-1b visa program is getting under a lot of people's skin. engineers here, saying they cannot get a job. these lawsuits are just a cover. silicon valley do not really care about the people in yemen, they are trying to protect their income stream of cheap labor. >> possibly. it could benefit tech companies if donald trump signs an executive order that has been circulating. maybe -- >> you believe that donald trump would increase the number of h-1b visas? >> no, not increase it. it is a lottery system. it is not necessarily the best and brightest. if we change those rules, tech

companies could have a better likelihood of getting visas and better people, this could benefit the tech industry but are, at the same time it is a very immigrant-friendly industry. 57% of unicorn companies were founded by immigrants, the mission of the companies like airbnb is to open the world up, make the connections, they are under pressure to oppose trump, they could stand to benefit. charles: unicorns are privately held companies valued at $1 billion or more, a hot sector in silicon valley. here is the thing, right now we allow 65,000 h-1b visas, and 20 thousand exception for folks who have a masters from a u.s. university. it seems you could reform the system, but there is no doubt in my mind, because silicon valley made this a points, they would love to double or

tripetriple that number if possible, that would shut out a lot of americans, wouldn't it? >> not necessarily, we have to think about positive case that valley is making having the nonimmigrant warningers in u.s. help lead to a intellectual, and innovation synergy, among the american workers and their non-american counterparts, that is har part of what made valley a success in world history. i think when they say they want more of this i think they have to refine their argument, and make it clear it is not against american specialist worker. charles: they do have to make that clear. i am going to bring in another guest, raul, he has experiences, we're talking about the h-1b visa, many

people believe is behind this matter protest by silicon valley, with 98 companies signing am freeze, what is your take on this? >> charles, the rialt the the reality is according to census bureau only one stem graduate out of two is actually holding down a position in science, technology, engineering and mathematics. that is just the facts, the country throws off approximately on order of 200,000 stem graduates each year. plant from silicon valley is really not to be taken seriously. charles: all right, we have to leave it there, i wish we could go on. i am sure the topic will

continue. >> major averages ending day slightly in the red. a couple of key earnings misses. but something else is bothering investors, i'm going to tell you what it is, my commentary is next.

charles: tom brady, and patriots returned home to cheering fans in foxborough, after they had the historic super bowl victory over the atlanta falcons.

charles: it was a anticlimactic session. monday at the job report are typically lackluster as investors try to regroup. individual investors are retreating to a more cautious stance, resulted in 34% of

them saying they are bearish. this is first time since the election that bearishness has been over 30%. not a death nel for the rally, i think that sentiment could be a coiled spring, but it needs to be sprung, which is getting harder with dc rhetoric. missing in this is continued good news. it is hard news and soft data. underscoring the american public that businesses that actually begun to react positively to the trump presidency. today more soft data from gallup, consumer poll show average person spent $88 a day last month. that is down 17 bucks from december, highest january since 2008. meanwhile goldman sachs and others have been jawboning, trying to jawbone this market down, by the way i think that is a buy signal.

i get the distructions from dc, but economic success is very infectious, it has just been two weeks, we need more time. it has basketball a stock picker's market, mattel laid egg last week with eags, and declining sales in barbie. and today hasbro, shoots on the moon, because of their sales in girls dolls. after the bell, 20 first century fox missed revenue, but cable revenue strong, television income up 35%, stock was up, pulled down, now fraction alley higher, i have a programming alert, we have new e episode of see "strange inheritance." jamie colby talks about brothers of world class blade

maker and a one time soon. -- here is a sneak preview. >> oh, my gosh this is not for real. i am creeped out right now. >> we have knives, mallets. >> guns? >> a few guns. >> i know our show is "strange inheritance" but this is is really weird. charles: you can watch more tonight at 5:0 5 fox business. western nations last night on full display. payne's passion is next. did you know 90% of couples disagree on

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charles: last night's super bowl was one for the ages. while much of the credit has go to patriots, something must be said for the way that falcons lost. what we saw was best example of difference between playing to win and playing not to lose. you saw the first half of the game, initially shaking off jitters, falcons played that carefree brand of football, in second half they played waiting and hoping to run out the clock. now in many ways this is what happened to western nations in general, america in particular. consider back in 1950, aftermath of world war ii. united states generated 27% of world's gross do domestic

product. china and india less than 5%, and japan 3%, then west put it in neutral, they still dominate for a long time. but in the 1970s we made fun of the cheap cars and cheap transistor radios from japan, today, america combined with france and germany are 27% of global gdp, we're slipping fast, the alarm belling going off, people feel something. this is a result in a brea brexit and a result in president trump. is it enough? a since of urgency goes beyond the ballot box, are i citizens of the west ready to play to win again. bringing in brian and caroline. start with you brian. you know i remember we didn't think that the world could beat us as anyone, we laughed

at dat -- datsuns and transitter radios, soon the world of the full of walk mans, it has not been the same. >> that if you look at big issues, regulation, lard to start a business, hard to grow a the business attacking a, you -- taxation, you are penalized the more successful you are, education, our reading and ma math scores are stagnant. children -- americans want the chance to come pea compete again. charles: we rank componen 51 with starts a business, immigrants start so many more businesses now than they did about 20 years ago, it feels there is an element missing with respect to average american and the american dream of playing to win, not

playing to lose. >> well, i think what i would like to say is that i would not count the american citizen out of the game despite regulation. and what happened since the 19 70s, like ronald reagan, i have a lot of faith in the man on the street, the cop on the beat, the schoolteacher, i think they are fighting back even with controversial executive order banning 7 muslim country. nearly half americans have looked past some of the offensive rhetoric and support the idea in princ principle. i thinking that is happening now that, to or society that is what donald trump elect was about. to victory, i think we're on a path to recap turing the west. and the united states, from the bottom up. charles: we know that it is

about leadership, we know that is what the election was about. my question, can a president trump bring that out of us? can -- i know it is in our dna . always part of the american experiment. is this still there? >> it is absolutely there. but what trump has to do, it goes beyond words and inspiring people. he has done it, that is why the stock markets rally and a strong jobs number, but it goes to changing the actual fundamental structures in the economy, can i start a business? how much in taxes do i pay? he has to move to that level if he wants to unleash people. >> it will be great not to be punished for wanting to be successful, thank you very much. >> coming up, russia and china flexing their military muscle

in international territory. we'll be right back.

charles: tensions rising across globe, russian officials on edge after nikki haley confirms that russian sanctions will continue after the crem kremlin moved on crimea. >> and asia, beijing took notice of defense secretary mattis to japan, beijing sailed 3 chinese warships past them. boyd, you know we talk sabre rattling a lot, at least we're pushing back. bad actors of the world had a free rein with a feckless administration. it feels like they are pulling president trump, probably taking more than sanctions to get their respect.

>> right, this is more than flexing their muscles or striking oppose just for fun. nikki haley has done a good job in framing the debate properly u.s. does need to be able to stand up. we do need to work with russia in terms of isis and shiadist terrorists, but we have to strike that plant, we cannot cower in the corner like last 8 years, we have to play to win. charles: frank, during a confirmation hearing process. i have been impressed before person that president trump has elected to be on his military/national

security/national defense team. these are all successful people who seem to agree, forgetting about public rhetoric for a moment, i believe they will get the job done, but how tough will it be? >> really tough. we had as you mentioned you know 8 years of what i think of as obama doctrine that is embolden our enemies, undermine our alies and diminish our country, that is on the group and continues making it -- conditions to make it tough to reverse, we have emboldened russian and chinese militaries, they have been building in particularly nuclear forces. east and south china sea, and russians in ukraine. but. they are spoiling for a fight it seems, u.s. military and kind of larger power of the

united states, has not yet been reconstituted in such a way to deter that aggression. this is going to be a -- the president will be tested. probably very quickly. charles: boyd with american public rejecting particularly the republican voters by the way so-called g.o.p. neocons. how does the president navigate these waters if it is called on him to push back? >> american people did not vote for a right or a left in november, they voted for disrip shu disruption and changing the game in terms of how american actions in the country and the world. i think that when are mr. matt sis doin mattis is doing is spot on, president has to be bold but not over bearing, strong but not reckless. with china, and syria and iran. you know we had these series

of evens from drones to our sailors held by the iranians, where we were not only showing weakness but we had self inflicted humiliation, this is a tough thing for president trump to do to strike that to be strong but not reckless, and create certainty in the world. some confidence in the world. rather than just this cowering in corner, and our allies and friends, wondering, they should never have to wonder where u.s. stands with freedom, trade and moving things through. charles: quickly, ro reagan won the cold war in part by out spending russia. today president trump promising better equipment for our troops, how imperative is it this that spend money to keep that edge over the world. >> this is ronald reagan's birthday. and i think that president trump has adopted what he called president reagan, peace

through strength. as his philosophy, we'll need to make investments, i am keen on what i hope will be trump way of doing that. smarter faster -- charles: that i think is elemen lockheed-martin said that is what we're going to get, here is lou. >> new provocation from two country that trump officials have warned iiran and china. fox news that iran fired 5 advance surface-to-air missiles yet, that is less than a week after white house put iran on notice for conducting new ballistic missile tests. >> china defying trump administration sailing three of its coast guard ships, our gift, white house counselor kellyanne conway. also tonight we await fate of trump's executive order calling for extreme vetting of