Vol. 24 Annals of Health Law 375
ly enforceable right. 288 Although the text of the ACA can reasonably be
read as indicating a congressional intent to confer appeal rights, this argument would almost certainly be unpersuasive because courts place heavy
emphasis on the presence or absence of words like “individual” or “family”
when determining whether there is a privately enforceable right. 289 Such a
rigid doctrine ignores the reality that Congress frequently delegates the administration of public benefits (and other programs) to states and federal
agencies with broad discretion over how to implement the programs.
This article proposes revising the doctrine to take these delegations into
account. Specifically, where Congress has delegated implementation to the
states or to a federal agency, courts should examine the federal regulations
and state statutes implementing the program when determining whether a
plaintiff has an enforceable right. The test could still require clear rights-creating language, but when that rights-creating language appears in federal
regulations, promulgated by an agency operating under a broad delegation
of authority from Congress, beneficiaries should be able to enforce those
rights. Therefore, this article proposes going further than simply allowing
regulations to “flesh out” pre-existing statutory rights. The Supreme Court
should recognize that statutory text, such as the Marketplace appeals process provision, reflects a congressional intent to delegate rights-making authority to the agency.
This approach is preferable to the approaches taken by the Courts of Appeals for several reasons. First, it comports with a straightforward reading
of the text of § 1983. Section 1983 states that a cause of action is available
to challenge the “deprivation of any rights . . . secured by the Constitution
and laws.” 290 Properly promulgated regulations have the force and effect of
law, and a straightforward reading of the statute supports allowing private
suits to enforce rights “secured by” valid regulations.
Second, the current doctrine improperly cabins agency discretion in the
face of vague statutory text. Under the current doctrine, where Congress has
either not specifically created an individual right or has explicitly delegated
broad implementation authority to an agency, agencies are incapable of creating privately enforceable rights. 291 The result is that an implementing
agency can never play a role in determining whether private enforcement is
288. Gonzaga Univ. v. Doe, 536 U.S. 273, 289-90 (2002).
289. Bobroff, supra note 13, at 62.
290. 42 U.S. C. A. § 1983 (West, Westlaw Next through P.L. 113-163 (excluding P.L.
291. See Am. Ass’n of People with Disabilities v. Harris, 605 F.3d 1124, 1134 (11th
Cir. 2010) (“we find no congressional intent to create a private right of action for the regulation’s enforcement”), vacated, 647 F. 3d 1093 (11th Cir. 2011); Johnson v. City of Detroit,
446 F.3d 614, 628-29 (6th Cir. 2006); Sanchez v. Johnson, 416 F. 3d 1051, 1060 (9th Cir.