338 Holding Health Insurance Marketplaces Accountable 2015
ual acting under color of state law.5 But enforcement against the Marketplaces will not be able to take this form. The current doctrine governing the
obligations of quasi-private and quasi-state entities relies on bright-line distinctions between state and federal actors and public and private actors.6
Such blunt instruments result in significant inconsistencies in the state-action doctrine.7 These inconsistencies will be more acute when evaluating
the state-run Marketplaces, because each one has a slightly different governance structure, with many delegating authority to non-profit or quasi-governmental entities.8 This article tackles the broad question of who is,
and who should be, responsible for ensuring that the new Marketplaces—in
all of their various forms—comply with federal laws and regulations.
This inquiry necessarily implicates the role of federal agencies in administering cooperative-federalism programs.9 The implementing federal agency, in this case primarily the Department of Health and Human Services
(“HHS”),10 might seem like the obvious choice to enforce the statute and
regulations. However, this article argues that given the history of weak federal agency enforcement in Medicaid,11 HHS is extremely unlikely to enforce federal law against the Marketplaces. Instead, private enforcement
will be necessary to ensure that the rights of applicants and beneficiaries of
the Marketplaces are protected.
Therefore, this article wades into the large debate over the use of private
5. 28 U.S. C. § 1983. See infra Section II. B.
6. See infra Section IV. C.
8. Id.; see also infra Appendix.
9. “Cooperative federalism” refers the broad category of federal programs where state
governments participate in administering and implementing the federal policy. See Michael
S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557, 558 (2000). The Supreme
Court recognized the trend towards cooperative-federalism programs in Maine v. Thiboutot,)
when it noted the “literally hundreds of cooperative regulatory and special welfare enactments,” in which “[s]tates now participate in the enforcement of federal laws.” 448 U.S. 1,
22-23 (1980). For a more nuanced discussion of the myriad variants on cooperative-federalism see Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State
Implementation of Federal Law in Health Reform and Beyond, 121 YALE L. J. 534 (2011).
10. See Timothy Jost, Implementing Health Reform: Little Rulemaking, But A Steady
Stream Of Guidance & A Streamlined Application, HEALTH AFF. BLOG (Apr. 30, 2013),
a-steady-stream-of-guidance/ (describing implementing agencies “the Centers for Medicare
and Medicaid Services (CMS) of the Department of Health and Human Services (HHS), the
Department of Labor, and the Department of Treasury.”); see also Katherine Hayes et al.,
ACA Policy Implementation: A Snapshot of Key Developments and What Lies Ahead,
HEALTHREFORMGPS (Dec. 5, 2012), http://www.healthreformgps.org/resources/aca-policy-implementation-a-snapshot-of-key-developments-and-what-lies-ahead/ (describing the Department of Health and Human Services—or the Centers for Medicare & Medicaid Services
and Center for Consumer Information and Oversight which are housed within HHS—as the
implementing agency for 15 of 16 major areas of the Affordable Care Act).
11. See infra Section II. A.