Whether the controversial individual mandate contained in the new health care law can even be challenged at this time was the subject of debate during the first of three days of oral argument before the U.S. Supreme court on the Affordable Care Act’s (ACA) constitutionality. Under the individual responsibility provisions of the new law, most people will be required to purchase health insurance by 2014 or be subject to a penalty. The issue considered on Monday was whether the parties contesting the legality of the individual mandate have standing to bring a lawsuit in the first instance. Specifically, the question is whether the Anti-Injunction Act (AIA) – which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person” – bars the individual mandate challenge because no individual penalty has yet been assessed. While it seems unlikely, if the Court were to ultimately decide – as the Fourth Circuit did in Liberty University v. Geithner – that the penalty is a tax and the AIA applies, a lawsuit challenging the individual mandate would not ripen until 2015 at the earliest when the IRS assesses the first penalties under the ACA. Continue reading this entry at Littler's Washington DC Employment Law Update.