Vol. 24 Annals of Health Law 391
rights may not be equivalent in practice because they may not be equally
enforceable through private litigation. Although Metzger proposes important changes to the constitutional private delegation doctrine, private actors must also be considered as acting “under color of state law” for the
purposes of § 1983 in order for constitutional, statutory, and hopefully
regulatory due process rights to be “independently enforceable.”
The “under color of state law’ inquiry is more complicated for the Marketplaces. This is because they are a variation on what administrative law
scholar, Anne Joseph O’Connell calls “boundary organizations.” 397
O’Connell catalogues boundary agencies that operate at the border of the
federal government and some other institution (states, private sector, or international). 398 But, her theory is easily applicable to the state Marketplaces.
The Marketplaces are quintessentially boundary entities operating at the
state-private border, which makes the state action question more complicated. As O’Connell explains, current doctrine assumes a non-existent administrative state that only includes executive agencies and independent regulatory commissions. 399 Because of the single state agency requirement, the
Medicaid program has mirrored this prototypical administrative state, and
therefore, Medicaid litigation has not seriously grappled with the problem
of privatization. 400 The Marketplaces, on the other hand, will raise questions
about whether boundary organizations performing similar functions as
Medicaid agencies will be held to the same constitutional and statutory obligations as the state agencies.
A brief analysis of Supreme Court precedent governing when private actors are subject to constitutional obligations shows that the doctrine is overly rigid and cannot capture the nuances of boundary organizations. The Supreme Court developed two lines of cases to determine whether an
organization on the private-public boundary has the same constitutional obligations as a government entity. 401 First, the Marketplaces might be considered governmental rather than private entities, in which case they would
be subject to the same constitutional obligations. 402 Second, if the Market-
397. Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. PA. L. REV. 841,
398. Id. at 855–69.
399. Id. at 852 (discussing the architecture of the bureaucracy and the legal implications
of boundary organizations).
400. 42 U.S. C. 1396 a(a)(5) (establishing the requirement that states designate a “single
state agency” to be responsible for administering the program. In K. C. ex rel. Africa v.
Shipman, 716 F.3d 107, 112 (4th Cir. 2013) the Fourth Circuit held that this requirement
continued to apply even when the state agency delegates authority to a private insurance
company to manage and administer beneficiaries’ health insurance).
401. Sotack v. Pa. Prop. & Cas. Ins. Guar. Ass’n, 104 F. Supp. 2d 471, 476 (E. D. Pa.
402. See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (holding that