Michael Tanner

Next week, the Supreme Court will devote six hours over three days to hearing challenges to the Patient Protection and Affordable Care Act, a k a ObamaCare.

The last time the court spent this much time hearing arguments in a case was in 1966, when it devoted six hours to the case establishing a defendant's Miranda rights and seven hours to the case that upheld the Voting Rights Act. This decision is likely to be just as momentous.

That's because this case isn't really about health-care reform. Rather, it's about government power and the fundamental relationship between government and the people.

The court will hear four separate but related arguments, but all the issues boil down to a simple but important question: Do we have a government of limited, enumerated powers or a government of unbridled power, with the authority to control and direct every aspect of our lives?

In defending the health-care law, the Obama administration relies on two constitutional provisions to justify its claim of federal power. The first is the Commerce Clause, which grants Congress the power to “to regulate commerce... among the several states.” This is supposed to justify ObamaCare’s mandating that each of us buy insurance (the “individual mandate”).

How does a decision not to buy something constitute commerce?

Well, since the New Deal era, the courts have expanded the definition of commerce to include any “activity” that has a “substantial economic effect on interstate commerce.” Thus the high court has held that such things as growing wheat to feed to your cattle (Wickard v. Philburn) or distributing medical marijuana (Gonzalez v. Raich) can be regulated as interstate commerce.

But both growing wheat and giving away pot involve doing something. The Obama administration is seeking to extend Congress’s power to inactivity. Congress would not only have the power to regulate how you do something or to prohibit you from doing it, Congress now could require you to do something.

Michael Tanner

Michael D. Tanner is a senior fellow at the Cato Institute, heading research into a variety of domestic policies with particular emphasis on health care reform, welfare policy, and Social Security. His most recent white paper, "Bad Medicine: A Guide to the Real Costs and Consequences of the New Health Care Law," provides a detailed examination of the Patient Protection and Affordable Care Act (Obamacare) and what it means to taxpayers, workers, physicians, and patients.