Vol. 24 Annals of Health Law 397
2. Is there a Nexus Between the Actions of the Marketplaces and the State
Even if the Marketplaces are deemed not to be private entities, they
might still be “acting under color of state law” because their actions can be
attributed to the state. The Court’s application of this doctrine “continues to
be beset by inconsistency and disagreement.”439 The main thrust of the inquiry is whether “there is a sufficiently close nexus between the State and
the challenged action.”440 A sufficient nexus might exist if the private entity
is performing a “public function” or “state function,”441 where there is a
symbiotic relationship between the private action and the state,442 or where
the state requires, encourages, or is otherwise significantly involved in
nominally private conduct.443
To evaluate whether a private entity’s conduct is attributable to the state,
courts look at the nature of the action, rather than the nature of the entity.444
The actions of the Marketplaces that this article is concerned about include
(1) determinations of eligibility for, and amount of, advance premium tax
credits,445 and (2) eligibility assessments and determinations for Marketplace coverage and Medicaid.446 At different times, the Supreme Court
adopted varying approaches to the public function test.447 In some instances, the Court adopts a flexible, pragmatic approach, but in others the Court
has adopted a narrower, formalist approach.448 Metzger predicts that the
439. Metzger, supra note 403, at 1411.
440. Id. at 1412 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999)).
The Court has used various tests and formulations to determine when private action is attributable to the state. See Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United States
v. Classic, 313 U.S. 299, 326 (1941)), and has admitted that these cases “have not been a
model of consistency.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991)
(O’Connor, J., dissenting).
441. See Marsh v. Alabama, 326 U.S. 501, 506-07 (1946) (dictum) (providing examples
of owners of privately held bridges, ferries, turnpikes and railroads and a corporations use of
a four lane highway that discriminates against interstate commerce); Smith v. Allwright, 321
U.S. 649, 660-61 (1944) (discussing the exclusion of African-Americans to vote in state
442. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-22 (1961).
443. Lombard v. Louisiana, 373 U.S. 267 (1963) (Declaring decisions enforced by the
executive, absent legislative action, to constitute “state action”; Id.(Douglas, J., Concurring)
(stating executive, legislative ,and judicial enforcement of racial segregation to constitute
444. Blum v. Yaretsky, 457 U.S. 991, 1005 (1982) (“the required nexus may be present
if the private entity has exercised powers that are traditionally the exclusive prerogative of
445. 42 U.S. C. A. § 18082.
446. 42 U.S. C. A. § 18081(f)(1)( A)-( B); 45 C.F.R. § 155.405 (West, WestlawNext
through Nov. 6, 2014; 79 FR 66265).
447. Metzger, supra note 403, at 1412.
448. Metzger, supra note 403, at 1412–13 (“The flexible approach epitomized state ac-