378 Holding Health Insurance Marketplaces Accountable 2015
icy-makers in Congress from evaluating the particular enforcement needs of
the new Marketplace regime and could have encouraged the broad delegation reflected in the statute.
Fourth, agencies are often better suited to determine when private enforcement is necessary to detect and enforce statutory violations. 303 This article essentially proposes vesting agencies with what Engstrom calls
“wholesale” gatekeeping authority. 304 That is, rather than evaluate each case
either as—or before—it is filed, the agency should have the ability to turn
private enforcement on or off. 305 Allowing agencies to create rights enforceable through § 1983 is one specific mechanism an agency could use to
“flip its gatekeeper switch.” 306 Engstrom concludes that it is “mostly settled
in the wholesale context” that agencies have superior expertise, competence, and capacity than legislatures or generalist courts to determine which
categories of cases should be privately enforceable. 307
Stephenson has made similar arguments in support of a proposal to recognize congressional delegations to agencies to create causes of actions for
violations of statutes and regulations. 308 Although he does not explicitly address the question of whether agencies should be able to create the “rights”
that are enforced through the already existing § 1983 cause of action, 309
several of Stephenson’s normative arguments for greater agency discretion
in private enforcement support this proposal as well. The decision to create
a privately enforceable right has the same practical consequence as creating
a cause of action—both enable private plaintiffs to bring an enforcement
action in federal court.
Stephenson argues that generally, the choice to encourage or discourage
private enforcement requires agency expertise. 310 Specifically, agencies are
better suited to make these determinations because they have “familiarity
with the nature of the particular policy problem, the substantive goals of the
regulatory scheme, and the likely interaction of private lawsuits with other
elements of the government’s enforcement strategy.” 311 For Stephenson,
port from the Study Panel on Health Insurance Exchanges Created Under the Patient Protection and Affordable Care Act: Federally-Facilitated Exchanges and the Continuum of
State Options 8 (Dec. 2011), available at http://www.rwjf.org/content/dam/farm/
303. See e.g., Brief of former HHS officials as Amici Curiae Supporting Respondents,
Douglas v. Indep. Living Cent. of S. Cal., Inc., 132 S. Ct. 1204 (2012) (No. 09-958).
304. Engstrom, supra note 299, at 647-48.
305. Id. at 658.
306. Id. at 657.
307. Id. at 664.
308. Stephenson, supra note 293 at 164.
310. Id. at 106.