Vol. 24 Annals of Health Law 369
of § 1983.243 This difference affects § 1983 cases, but not the Supremacy
Clause cause of action, because federal regulations can still preempt state
laws.244 The second key difference is the structure of the Marketplaces. The
structure of the Marketplaces themselves vary from part of a federal agency, to federal-state hybrids, to organizations on the boundary between the
state and the private sector, making the analysis of whether a Marketplace
official is acting “under color of state law” for the purposes of § 1983 significantly more complicated.245 These two differences create new hurdles
for individuals seeking to enforce due process rights against the Marketplaces.
A. The Writing on the Wall: “Rights” Enforceable Through § 1983 Must be
Created by Congress, Not Agencies
Although HHS intended for the regulations governing the Marketplaces
to mirror the Medicaid regulations providing due process protections, the
corresponding text of the ACA does not neatly parallel the “fair hearing”
provision of the Medicaid statute.246 Under current Supreme Court precedent, this difference in statutory text seems decisive.247 The Medicaid statute states that “a state plan for medical assistance must . . . provide for
granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is
not acted upon with reasonable promptness.”248 Courts have found this provision privately enforceable through § 1983, even after the limitations imposed in Gonzaga, because of the clear use of “any individual” in the text
of the statute.249 Because this right is clearly protected in the statute, the
more specific requirements in regulations are likewise enforceable.250
Using the Court’s current approach in Gonzaga,251 it would be difficult
to read the ACA as conferring an individually enforceable right. The courts
have generally only recognized rights where the statute is phrased in terms
of the “individual,” “person,” or “family,” but have not recognized rights
243. See supra Section III. See generally 45 C.F.R. § 155 (2013).
244. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 884-86 (2000); La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 368 (1986)) (The Supremacy Clause cause of action is still
available to enforce regulations). Courts of appeals have unanimously held that Gonzaga
limitations are inapplicable to a preemption claim. Bobroff, supra note 152, at 73.
245. See infra Section IV. C.
246. Compare 42 U.S. C. A. § 1396a(a)(3) with 42 U.S. C. A. § 18081(f).
247. See Gonzaga Univ. v. Doe, 536 U.S. 273, 289–90 (2002).
248. 42 U.S. C. A. § 1396a(a)(3).
249. Shakhnes v. Berlin, 689 F.3d 244, 251 (2d Cir. 2012); Gean v. Hattaway, 330 F.3d
758, 772 (6th Cir. 2003).
250. Shakhnes, 689 F.3d at 251.