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ers who opposed extending § 1983 to statutory rights grounded their objections in policy arguments predicting dramatic, untenable increases in the
amount of private enforcement litigation. 296 The fact that these dissents
were rooted in such policy arguments reflects the fact that questions surrounding how much private enforcement is appropriate are largely policy
questions. Matthew Stephenson, an administrative law scholar, has made a
similar observation: he explained that the decision about how to enforce a
statute is “in many ways more closely related to the executive’s prerogatives and duties than to those of either Congress or the judiciary.” 297 For example, agencies may use a prosecutorial-like discretion to either over- or
under-enforce certain statutes based on policy preferences. 298
David Freeman Engstrom, whose scholarship focuses on federal agencies
and institutional design, has developed an extensive taxonomy of the various institutional design options available for providing agencies with litigation gatekeeping authority. 299 He examines how each different design is essentially a policy choice that optimizes different agency capacities that aid
in rationalizing private litigation efforts. 300 As he notes, there is no single
most effective approach: instead, “optimal gatekeeper design is likely to be
highly contextual and grounded in the realities of a given regulatory regime.” 301 It is, therefore, relatively easy to imagine that Congress might
purposefully leave the choice of enforcement mechanism to the implementing agency to choose how best to enforce a particular statutory regime. This
is especially likely in a context like the ACA, where an agency is tasked
with implementing a very large, new, and complicated program whose different provisions might benefit from different enforcement mechanisms.
Many of the particular details of the regulatory regime were unknown at the
time the ACA was passed—for example, partnership Marketplaces were not
considered in the statute itself. 302 This vast uncertainty likely prevented pol-
296. See Bobroff, supra note 13, at 42.
297. Stephenson, supra note 293, at 95; see also United States v. Mendoza, 464 U.S.
154, 161 (1984) (“[T]he Executive Branch . . . controls the progress of government litigation
through the federal courts. It would be idle to pretend that the conduct of government litigation in all its myriad features, from the decision to file a complaint in the United States district court to the decision to petition for certiorari to review a judgment of the court of appeals, is a wholly mechanical procedure which involves no policy choices whatever.”).
298. William W. Templeton, Heckler v. Chaney: The New Presumption of Nonreview-ability of Agency Enforcement Decisions, 35 CATH. U. L. REV. 1099, 1105 (1986) (“[ I]n
Heckler v. Chaney, the United States Supreme Court firmly established the application of the
prosecutorial discretion doctrine to administrative law proceedings by denying review of
agency enforcement decisions.”).
299. See David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 YALE L.J.
616, 644-55 (2013).
300. See id. at 656.
302. See DEBORAH BACHARACH & PATRICIA BOOZANG, NAT’L ACAD. OF SOC. INS. Re-