Virginia’s outgoing attorney general says any move by Congress to mandate the purchase of private health insurance may be unconstitutional.

Bill Mims

In a response to an inquiry by Lt. Gov. Bill Bolling, Bill Mims said that Congress has a broad power to regulate commerce but the proposed mandate is “open to constitutional challenge,” according to the Richmond Times Dispatch.

As part of a comprehensive health care bill, Congress is considering both mandates for individuals to secure coverage, or face a fine, as well as an employer mandate to provide health insurance to employees or face a payroll tax.

Mims added that while health care is an economic activity, the failure to purchase coverage is not.

A spokesman for the state’s attorney general told the Times Dispatch that the letter should not be interpreted as a formal legal opinion, but rather advice.

Mims also weighed in what is now being dubbed “The Nebraska Compromise,” a deal to secure the vote of Democratic Sen. Ben Nelson for that Congressional chamber’s health bill. The deal would grant Nebraska a permanent exemption from Medicaid expenses all other states incur.

Mims has already joined other states attorneys general in opposing the exemption to Nebraska and, in the letter to Bolling, said where the benefit is “solely to secure the vote of a particular senator ….is unconstitutional,” according to the report.

Mims’ last day in office is Jan. 16. He will be succeeded by fellow Republican Ken Cuccinelli, who recently won election to the seat.