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Vulnerable Republicans break with Trump on ObamaCare lawsuit

Five vulnerable Senate Republicans on Thursday broke with President TrumpDonald TrumpWarren says Republican party 'eating itself and it is discovering that the meal is poisonous' More than 75 Asian, LGBTQ groups oppose anti-Asian crime bill McConnell says he's 'great admirer' of Liz Cheney but mum on her removal MORE’s efforts to repeal the Affordable Care Act, in an attempt to insulate themselves from Democratic attacks on health care in the final weeks of the fall campaign.

GOP Sens. Susan CollinsSusan Margaret CollinsThe Hill's Morning Report - Presented by Facebook - Cheney poised to be ousted; Biden to host big meeting Senate votes to repeal OCC 'true lender' rule Top female GOP senator compares Cheney ousting to 'cancel culture' MORE (Maine), Joni ErnstJoni Kay ErnstGraham warns about trying to 'drive' Trump from GOP: 'Half the people will leave' The Hill's 12:30 Report - Presented by Facebook - Senate braces for daylong brawl on elections bill Top female GOP senator compares Cheney ousting to 'cancel culture' MORE (Iowa), Cory GardnerCory GardnerBiden administration reverses Trump changes it says 'undermined' conservation program Gardner to lead new GOP super PAC ahead of midterms OVERNIGHT ENERGY: Court rules against fast-track of Trump EPA's 'secret science' rule | Bureau of Land Management exodus: Agency lost 87 percent of staff in Trump HQ relocation | GM commits to electric light duty fleet by 2035 MORE (Colo.) Martha McSallyMartha Elizabeth McSallyEx-McSally aide pleads guilty to stealing over 0K in campaign funds Arizona state senator announces bid for Kirkpatrick's seat Democratic Arizona Rep. Ann Kirkpatrick says she won't seek reelection MORE (Ariz.) and Dan SullivanDaniel Scott SullivanHillicon Valley: Global cybersecurity leaders say they feel unprepared for attack | Senate Commerce Committee advances Biden's FTC nominee Lina Khan | Senate panel approves bill that would invest billions in tech Kerry denies allegations from leaked Iran tapes OVERNIGHT ENERGY: Supreme Court considers whether US should pay for Guam hazardous waste cleanup | EPA eyes reversal of Trump revocation of California vehicle emissions waiver | Kerry faces calls to step down over leaked Iran tapes MORE (Alaska) voted to advance a Democratic-sponsored bill that would block the Justice Department from advocating in court for the invalidation of ObamaCare. The measure was supported by all Senate Democrats and just one other Republican.

Recent polls show Collins, Ernst, Gardner and McSally all trailing their Democratic challengers. Sen. Lisa MurkowskiLisa Ann MurkowskiCheney set to be face of anti-Trump GOP Utah county GOP censures Romney over Trump impeachment vote Bottom line MORE (R-Alaska), who is up for reelection in 2022, also voted for the measure.

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The willingness to break with Trump is the latest sign of how efforts to repeal the 2010 law, former President Obama’s signature domestic legislative achievement, remain a divisive issue within the Senate GOP conference, something Democrats were more than eager to exploit.

The vote itself came about under unusual circumstances.

Usually, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden says Beau's assessment of first 100 days would be 'Be who you are' McConnell says he's 'great admirer' of Liz Cheney but mum on her removal McConnell: 'Good chance' of deal with Biden on infrastructure MORE (R-Ky.) controls the floor schedule, but Senate Minority Leader Charles SchumerChuck SchumerBiden 'encouraged' by meeting with congressional leaders on infrastructure Republicans welcome the chance to work with Democrats on a bipartisan infrastructure bill Cheney sideshow distracts from important battle over Democrats' partisan voting bill MORE (D-N.Y.) caught Republicans by surprise Tuesday when he filed a procedural motion to bring the health care bill up for a vote when no GOP senator was on the floor to object. 

“They didn’t want to vote on this. I had to actually go to the floor when no Republican was on the floor and ask to put this bill in play, and they feared it,” Schumer later told reporters.

On Thursday, the measure received 51 votes, falling short of the 60 votes needed to advance. But Democrats didn’t need it to go that far to create divisions among Senate Republicans.

The legislation brought up by Schumer would put restrictions on Trump’s Department of Justice, which this year joined a coalition of 18 Republican states seeking to invalidate the entire Affordable Care Act on the basis that Congress eliminated the tax penalty associated with the individual mandate when it passed tax reform in 2017. 

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It’s an unusual approach for the Justice Department, which traditionally defends the nation’s laws, but reflects Trump’s longstanding goal of repealing the Affordable Care Act.

Trump previously led an effort in Congress to repeal the law in 2017, causing months of internal Republican haggling. The push ended in three failed votes, which blunted some of the administration’s early political momentum. 

Gardner said in a statement Thursday that he voted to advance the Democratic measure because he supports “having this important dialogue with my colleagues, and this health care legislation would have provided an opportunity to vote on my bill to protect coverage for people with pre-existing conditions.”

Some Republicans argued after the vote that those vulnerable Republicans are now in a stronger position to withstand Democratic attack ads on health care policy.

National Senatorial Campaign Committee Chairman Todd YoungTodd Christopher YoungSenate panel approves bill that would invest billions in tech Senate to vote on bill aimed at countering China's influence this month House conservatives take aim at Schumer-led bipartisan China bill MORE (R-Alaska) argued Thursday that his vulnerable colleagues showed by their votes they want to preserve protections of people with pre-existing medical conditions.

“I think it once again gives somebody like Joni Ernst an opportunity to affirm their support for protecting those who have pre-existing conditions,” Young said. “This one again gives us an opportunity to remind the American people of the time Chuck SchumerChuck SchumerBiden 'encouraged' by meeting with congressional leaders on infrastructure Republicans welcome the chance to work with Democrats on a bipartisan infrastructure bill Cheney sideshow distracts from important battle over Democrats' partisan voting bill MORE and the radical left are trying to deceive them into believing that somehow Republicans do want to protect those that have pre-existing conditions.”

Democrats are making federal protections for people with pre-existing medical conditions a top attack issue against Trump and Senate GOP incumbents. And they plan to argue in the weeks ahead that Republicans who vote for Supreme Court nominee Amy Coney Barrett will be essentially voting to scrap the Affordable Care Act.

Barrett in a 2017 legal article criticized Chief Justice John Roberts’s decision in National Federation of Independent Business v. Sebelius that upheld the health care law in 2012. She accused the chief justice of pushing “the Affordable Care Act beyond its plausible meaning to save the statute.” 

Of the Republicans who voted for the Democratic bill, only Collins and Murkowski opposed the GOP’s so-called skinny repeal bill in July 2017. That measure would have resulted in 16 million fewer Americans having health insurance in 2026, according to a Congressional Budget Office analysis.

It would have repealed the mandate on individuals to have health insurance and eliminated the mandate on employers with 50 workers or more to provide affordable insurance.

McSally wasn’t appointed to the Senate until December 2018. 

Schumer on Thursday accused Ernst, Gardner and Sullivan of “hypocrisy” on Thursday after the vote.

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“We knew that some of them would squirm. When you flip your vote a few weeks before the election, the American people see right through it. These senators are worse off today no matter how they voted because they flip-flopped,” he said. 

“They can’t hide from all their votes to repeal the ACA and this new vote only shows their hypocrisy a few weeks before the election,” he added.

Schumer argued that any Republican who voted to urge the Trump administration to back off its effort to repeal the Affordable Care Act would contradict the attempt to preserve the law if they later vote to confirm Barrett.

“The American people will also see any senator who votes for Judge Amy Coney Barrett, they will see the hypocrisy of those who said this vote shows I’m for protecting Americans’ health care and then they vote for a judge who’s intent on ripping it apart," he said.

“We believe this will hurt them badly,” he added. “It never works to flip your position a few weeks before the election when you’re forced to.”

Jessie Hellmann contributed.