368 Holding Health Insurance Marketplaces Accountable 2015
unlikely that the Obama administration would draw attention to the failings
of the Marketplaces by initiating enforcement actions. Therefore, practically speaking, private litigation will be essentially the only mechanism for individuals to enforce their rights, at least for several years.
IV. THE PROBLEM: DUE PROCESS RIGHTS WILL BE HARDER TO ENFORCE
AGAINST THE MARKETPLACES
Although HHS intended for Marketplace applicants to have similar due
process protections as Medicaid applicants, individuals receiving coverage
through the Marketplaces will not have the same ability to enforce their due
process rights.240 The current doctrine governing private enforcement is unnecessarily rigid and will create an arbitrary gap between the ability to sue
the state Medicaid agencies and the ability to sue the Marketplaces.241 The
newly created Marketplaces will push the boundaries of several important
doctrines that Medicaid litigants have often relied on, and courts will have
to grapple with new questions of accountability in the face of privatization
and divided authority.242
There are two key differences between the Marketplaces and Medicaid
agencies that prevent the same strategies that work in the Medicaid context—§ 1983 and Supremacy Clause actions—from transferring easily to
the Marketplaces. First, the procedural due process protections are contained exclusively in regulations rather than statutes, challenging the reach
Part of a Broader Message, CBS News (Oct. 30, 2014) http://www.cbsnews.com/news/in-
2014-ads-obamacare-is-part-of-a-broader-message/. Criticism of the law has come from
both sides of the political spectrum. See Burgess Everett & Anna Palmer, Conservatives Not
Satisfied with Mitch McConnell on Obamacare, POLITICO.COM, http://www.politico.
112379.html (Oct. 31, 2014), http://www.politico.com/story/2014/10/conservatives-not-
satisfied-with-mitch-mcconnell-on-obamacare-112379.html (“Conservatives are attacking
Mitch McConnell, potentially the next Senate majority leader and in a tight race himself, as
insufficiently committed to repealing Obamacare.”); Dan Mangan, Bad to Worse: Obamacare Website Slammed by Critics, CNBC.ORG (Oct. 18, 2013),
http://www.cnbc.com/id/101124856# (“Even avid Obamacare supporters have been deeply
critical of the rollout of HealthCare.gov.”). Although criticism was particularly strong during the initial implentation, it may finally be receding. See Jonathan Weisman, Repeal of
Health Law, Once Central to G.O.P., Is Side Issue in Campaigns, N.Y. TIMES (Oct. 31,
gop-is-side-issue-in-campaigns.html?_r=0 (“Republican attacks on the health care law dominated the early months of the campaign, but now have largely receded from view.”).
240. Goldstein, supra note 219.
241. See generally, JENNIFER A. STAMAN, ENFORCEMENT OF PRIVATE HEALTH
INSURANCE MARKET REFORMS UNDER THE AFFORDABLE CARE ACT (ACA), CRS REP.,
(2014), available at https://www.hsdl.org/?view&did=749209.
242. See generally, T.R. Goldman, Health Policy Brief: The Supreme Court and Health
Reform, HEALTH AFFAIRS (2012), available at http://healthaffairs.org/health