Vol. 24 Annals of Health Law 379
utilizing this agency expertise requires extensive flexibility in designing the
cause of action. 312 He imagines providing agencies with significant authority to modify the private suits to fit the agencies’ needs. 313 For example,
agencies could determine the remedies and add additional standing requirements and limitation periods. 314 The full range of options that Stephenson imagines would not be available under this article’s proposal because §
1983 already delineates several of these choices. Accordingly, even if agencies could create privately enforceable rights, the agencies would only be
able to opt in or out of the pre-existing defaults set up by § 1983. Agencies
would, however, maintain authority to determine which components of the
regulatory scheme would be enforceable through the mechanism set up by §
At least in the context of HHS authorizing private enforcement against
the Marketplaces, this limitation on flexibility seems justified as a way to
maintain consistency between Medicaid and the Marketplaces. For example, imagine an individual whose income is on the cusp of eligibility between Medicaid and Marketplace coverage and who applied for coverage
through the Marketplace, but nevertheless, does not receive a determination
within the specified timeframe or a notice of his or her appeal rights. Aligning the available cause of action, remedies, and standing doctrine through
the use of § 1983 would facilitate a single suit against both the Medicaid
agency and the Marketplace. Of course, Stephenson’s and this article’s proposals are certainly not mutually exclusive. Agencies could easily have the
choice to create their own causes of action or create rights enforceable
through § 1983’s statutory cause of action. 315
Allowing agencies to create privately enforceable rights would also allow the executive branch to “alter its policy more easily as information and
circumstances change.” 316 One potential criticism of this article’s proposal
might be that it gives agencies too much discretion and departs from earlier
efforts to put regulatory enforcement on “auto-pilot,” and therefore, this
proposal would allow future, hostile political actors to undermine the goals
set out in statutes. 317 The fear of future hostile political actors was certainly
present when Congress was debating the ACA: Democrats delegated significant authority to the states out of a fear that future Republican presidents
312. Id. at 139.
313. See id. at 123–25.
314. Id. at 124.
315. Id. at 165–66 (“[T]he courts and commentators who advocate allowing administrative agencies to promulgate regulations enforceable under Section 1983 have the better of
the argument, and their position is more consistent with the proposal I advance in this Article.”).
316. Id. at 97.
317. See SEAN FARHANG, THE LITIGATION STATE: PUBLIC REGULATION AND PRIVATE
LAWSUITS IN THE UNITED STATES 42 (Ira Katznelson et al. eds. 2010).