Virginia Attorney General Opines that 'Nebraska exception' is Constitutionally Vulnerable

Lieutenant Governor Bill Bolling recently sent a letter to Attorney General Bill Mims requesting an opinion on the constitutionality of the federal healthcare legislation passed by the United States Senate in December.
Bolling specifically questioned the special treatment given to certain states in the Senate compromise that disadvantaged Virginia and other states, as well as the extent to which the legislation violates limitations imposed on federal actions by the U.S. Constitution.
In response to Bolling’s letter, Mims wrote “you inquire about the constitutional validity of two provisions. One provision would, after a period of several years, exempt Nebraska in perpetuity from increased costs associated with the expansion of Medicaid. No other state, including Virginia , is afforded similar treatment. The other provision would require every citizen of the United States to obtain health insurance or face significant penalties. I share your concerns about the constitutionality of both provisions.”
Mims called the provision giving special treatment to Nebraska as “vulnerable” under the General Welfare clause of the U.S. Constitution, which provides Congress the authority to spend money for the “general Welfare of the United States ”.
“In my view, carving out an exception for a specific state, unrelated to any policy objective other than to secure the vote of a particular senator, would exceed the bounds of what Congress may do under the Spending Clause,” wrote Mims. “Where the taxing and spending is intended to effectuate a benefit for a single state, solely to garner the vote of a particular senator from that state rather than for the general welfare, the spending at issue is unconstitutional. To conclude otherwise, would mean that the General Welfare Clause is meaningless.”
Mims’ also shared concerns about the constitutionality of federally mandated health insurance. Under the Commerce Clause Congress has broad power to regulate commerce among the states and activities that affect interstate commerce. However, this power is not without limits.

“Although health care is an economic activity, the failure to purchase health insurance is not an economic activity,” wrote Mims. “The insurance mandate is open to constitutional challenge.”
In response to Mims’ opinion, Bolling said, “I appreciate the Attorney General’s prompt response to my inquiry. His opinion validates my concerns about the constitutionality of this misguided legislation. I look forward to working with other state leaders and our federal partners to defeat this legislation, and I once again call on Senators Warner and Webb to join us in opposing the legislation. This legislation is clearly not in the best interest of Virginia or Virginians.”

In a blog post earlier this month the Virginia Gentleman urged both Jim Webb and Mark Warner to vote against the proposed legislation.