Vol. 24 Annals of Health Law 383
regulations in order to shape federal policy to their liking. 339
Furthermore, several of the state statutes creating the Marketplaces explicitly acknowledge the importance of both federal regulations and informal guidance and require states to comply with them. For instance, Connecticut authorizes its Marketplace to “[d]o all acts and things necessary
and convenient to carry out the purposes of the exchange, provided such
acts or things shall not conflict with the provisions of the Affordable Care
Act, regulations adopted thereunder or federal guidance issued pursuant to
the Affordable Care Act.” 340 California’s Marketplace statute defines the
“federal act” as “the federal Patient Protection and Affordable Care Act
(Public Law 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), and any amendments to, or regulations or guidance issued under, those acts.” 341 Minnesota
even specifically requires its Marketplace to follow federal guidance in designing the appeals process: “the board shall establish hearing processes
which provide for a reasonable opportunity to be heard and timely resolution of the appeal and which are consistent with the requirements of federal
law and guidance.” 342 When choosing whether to operate a state-based
Marketplace, these state officials clearly relied heavily on the regulations
and even informal guidance. The behavior of these state officials suggests
that in practice the regulations, rather than statutes, may actually be the
most important source of contract terms. Therefore, a theory that recognizes
the delegation of “rights-making” authority is entirely compatible with, and
perhaps more faithful to, the contract theory and the need to put the states
on notice, since states look to federal regulations and guidance to understand their obligations before opting into the statutory scheme.
Finally, the fact that the Supreme Court has been hostile to allowing regulations to create implied causes of action is not necessarily a fatal blow to
this theory. The Court was faced with a similar situation when it first extended § 1983 to cover not only constitutional rights, but also statutory
rights. 343 The Court previously limited the availability of implied causes of
action emerging from statutes, and only then did it have to grapple with the
question of whether § 1983 could be extended to support causes of action
based on statutory rights. 344 When faced with this dilemma, the Court chose
to extend the reach of § 1983 where it had declined to extend implied causes of action. 345 The stage is set the same now. In Sandoval, the Court lim-
340. CONN. GEN. STAT. ANN. § 38a-1083 (West 2014).
341. CAL. GOV’T CODE § 100501 (West 2013).
342. MINN. STAT. ANN. § 62V.05 (West, 2013).
343. Samberg-Champion, supra note 34, at 1844.