Vol. 24 Annals of Health Law 381
The ACA, unlike the statute at issue in Gonzaga, does not provide clear instructions or prohibitions to the Secretary of HHS. Instead, the only instruction is to create an appeals program. 324 Within that instruction, the Secretary
could exercise discretion over whether to implement privately enforceable
rights or not. In this case, the Secretary made a very clear policy choice to
model the regulations on the Medicaid statute. 325 Given HHS’ longstanding
preference for private enforcement of Medicaid, 326 it is logical that, as a
matter of policy design, HHS would explicitly encourage private enforcement of the parallel regulations governing the Marketplaces. It does not appear that the Court, when deciding Gonzaga, explicitly considered the possibility that Congress might delegate rights-making authority as part of an
even broader delegation and therefore, it is possible to distinguish the ACA
without disrupting the current precedent.
In addition to these doctrinal and theoretical arguments, this article adds
a practical perspective. In cooperative-federalism programs, in particular,
regulations are often the key terms defining the relationship between the
states and the federal government. Some courts of appeals have emphasized
the need for clear statutory language in order to put the states on notice of
Medicaid beneficiaries’ rights to sue the state. 327 This approach relies on the
notion that spending clause programs are contracts between the state and
federal government. 328 Often this theory is invoked in an effort to restrict
the scope of § 1983 and justify a clear statement rule. For example, Judge
Easterbrook stated: “Section 1983 allows courts to enforce personal rights,
but a statute may influence behavior without creating ‘rights.’ Conditional
funding is an example. It does not create ‘rules,’ let alone ‘rights,’ for a
state is free to turn down the money and escape the strings.” 329 Thus, he opposes “[c]hanging the conditions on which states have agreed to participate
in a federal program—by adding private to public enforcement and adding
different remedies in the process.” 330 Although the Supreme Court has never adopted this approach, Justices Scalia and Kennedy flirted with the idea
in a concurring opinion. 331
324. 42 U.S. C. A. 18081(f)(1).
325. Patient Protection and Affordable Care Act; Program Integrity: Exchange, SHOP,
and Eligibility Appeals, 78 Fed. Reg. 54106 (Aug. 30, 2013) (to be codified at C.F.R. pt.
147, 153, 155, 156).
326. See Patient Protection and Affordable Care Act; Program Integrity: Exchange,
SHOP, and Eligibility Appeals, 78 Fed. Reg. at § II.
327. See Sanchez v. Johnson, 416 F.3d 1051, 1060 (9th Cir. 2005).
328. See Zambrano v. Reinert, 291 F.3d 964, 973 (7th Cir. 2002) (Easterbrook, concurring).
331. Bobroff, supra note 13, at 55–56 (“Scalia’s concurrence [in Blessing v. Freestone,
520 U.S. 329 (1997)] questioned ‘whether § 1983 ever authorizes the beneficiaries of a fed-