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category, the doctrine is ill-equipped to answer these questions. The remainder of this section attempts to analyze how the state-action doctrine
would apply to the various types of Marketplace structures and makes cautious predictions about how courts would resolve the thorny questions that
1. Are the State-Based Marketplaces Governmental Entities?
The first question a court must address when deciding whether Marketplaces will be liable for violations of individuals’ constitutional rights is
whether the Marketplaces are government or private entities. If considered
government entities, their actions would be presumptively considered governmental—no action-by-action analysis would be required. The non-profit
and quasi-governmental Marketplaces, despite not being state agencies,
might still be considered governmental entities for purposes of a § 1983 determination. Ten states and the District of Columbia use some form of quasi-governmental entity to run their Marketplace. 410 These Marketplaces
were all established by legislation, but vary significantly in their structure,
responsibilities, and powers.411 Therefore, whether a Marketplace is a governmental entity will vary between states depending on the constellation of
authorities given to the Marketplaces.
Among the eleven Marketplaces that are loosely categorized as quasi-governmental entities, most are structured as an independent public entity
with a controlling governing board.412 Typically, the governor appoints the
governing board, with some states requiring legislative approval.413 However, the status of these independent public entities varies significantly from
state to state. For example, Minnesota established their Marketplace as a
“board,”414 which is defined as an “agency in the executive branch, other
than a department, whose primary purpose is to perform prescribed official
or representative functions.”415 Connecticut’s law, on the other hand, states
that “[t]here is hereby created as a body politic and corporate, constituting a
public instrumentality and political subdivision of the state created for the
performance of an essential public and governmental function, to be known
410. DASH ET AL., supra note 189, at 10 (California, Colorado, Connecticut, Idaho,
Maryland, Massachusetts, Minnesota, New Mexico, Oregon, Washington and the District of
Columbia established “quasi-governmental entities”).
411. See id. at 10, 23.
413. See, e.g., CAL. GOV’T CODE § 100500(a)-(b) (West 2011); MD CODE ANN.,
INSURANCE § 31-104(b)(4), (g) (West 2014).; WASH. REV. CODE ANN. § 43.71.020(1)-(3)
414. MINN. STAT. § 62V.03(1) (2014).
415. MINN. STAT. § 15.012(a) (2014).