380 Holding Health Insurance Marketplaces Accountable 2015
would gut the Act through regulatory measures. 318 Democrats simultaneously expected an increase in Democratic states’ investment in the ACA
over time, and accordingly delegated more authority to the states. 319 This
article’s proposal to place more power with a politically accountable federal
agency might raise concerns about antagonistic administrations suddenly
reducing the availability of private enforcement litigation.
This article’s proposal, however, only addresses scenarios where individuals have no enforceable rights in the status quo and where the statute is
either vague or has already explicitly delegated significant authority to an
agency. Where a statute contains a clear right, an agency would not have
discretion to remove the individually enforceable rights established by the
statutory text. Advocates could, therefore, still utilize the legislative process
to put enforcement on auto-pilot by enacting statutes with explicit “
rights-creating” language. But, in the wake of the Supreme Court’s decision in
Gonzaga, this proposal would also open the door to private enforcement
when statutory enactments are not as clear. This would ultimately increase
the availability of private enforcement, even if those new regulatory rights
are more tenuous because of shifting politics in the future.
Fifth, this proposal addresses a different kind of statutory text than the
Supreme Court addressed in Gonzaga and therefore that case need not foreclose the possibility of delegating rights-creating authority. The Supreme
Court in Gonzaga contrasted statutes that are “individually focused” with
statutes that “speak only to” a federal agency.” 320 The specific statutory
language the Court considered was a direction to the Secretary of Education
stating “that ‘no funds shall be made available’ to any ‘educational agency
or institution’ which has a prohibited ‘policy or practice.’” 321 The Court
reasoned that this was two steps removed from the individual because first,
it was directed to the Secretary and second, the instruction it gave to the
Secretary was to withhold money from educational institutions that had a
prohibited policy or practice rather than to provide benefits to individuals. 322
It does not appear that the Court explicitly considered the possibility of
delegating rights-making authority when deciding Gonzaga and therefore, it
might be possible to distinguish the ACA without disrupting the current
precedent. The ACA, unlike the statute at issue in Gonzaga, contains an explicit and broad delegation of authority rather than a precise mandate. 323
318. Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. PA. L. REV. 841,
320. Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002).
321. Id. (quoting 20 U.S. C. § 1232g(b)(1)).
323. See 42 U.S. C. A. § 18081(f).