340 Holding Health Insurance Marketplaces Accountable 2015
eral agency enforcement.
In Section III, this article analyzes the need for the same type of structural reform litigation in the Marketplaces. Indeed, HHS seems eager to take a
parallel approach.17 Although the text of the ACA itself is quite vague,
HHS’s stated policy is a “no wrong door” approach, so that applicants receive the same eligibility determination and procedural protections no matter whether they apply with a Medicaid agency or a Marketplace.18 This
suggests that HHS would prefer that Marketplace applicants be able to enforce their rights against non-compliant Marketplaces, just as Medicaid
beneficiaries have done against non-compliant Medicaid agencies. But the
current law of § 1983 cuts the agency’s policy preferences out of the equation. Instead, the doctrine focuses on statutory text, imagining a relationship
only between Congress and state officials.19 The result of courts’ excessive
emphasis on congressional intent is that regulations, where the due process
protections for the Marketplaces are located, may not be able to create
rights enforceable through § 1983. In Section IV, this article discusses these
additional barriers that actors bringing suit against the Marketplaces will
face, which are not present in the Medicaid context.20 Finally, this article
suggests that the law of § 1983 should acknowledge the more nuanced relationships that exist between federal agencies, state officials, and beneficiaries by recognizing delegations of rights-making authority to agencies for
the purposes of § 1983.
II. STRUCTURAL REFORM LITIGATION IN MEDICAID
A. The Role of Structural Reform Litigation in Shaping Medicaid
Private enforcement litigation has played an important role in shaping
the Medicaid program. Since its enactment in 1965, Medicaid has evolved
into the principal source of health insurance for low-income individuals and
individuals with extensive health care needs.21 Today, Medicaid provides
health and long-term care services for sixty-six million low-income peo-
ple.22 The states and federal government jointly fund Medicaid.23 The fed-
17. See infra Section III.
19. See infra Sections IV. A–B.
20. See id.
21. KAISERFAMILYFOUND.,FEDERALCOREREQUIREMENTS ANDSTATEOPTIONS IN
MEDICAID: CURRENT POLICIES AND KEY ISSUES 1 (2011) [hereinafter FEDERAL CORE
REQUIREMENTS], available at http://kaiserfamilyfoundation.files.wordpress.com/2013/01
22. VERNONK.SMITH ET AL.,MEDICAID IN AHISTORICTIME OFTRANSFORMATION,
KAISER FAMILY FOUND. 7 (2013), available at http://kaiserfamilyfoundation.files.wordpress.
com/2013/10/8498-medicaid-in-a-historic-time-of-transformation.pdf. Specifically, Medicaid covers thirty-two million children, eighteen million adults, and sixteen million elderly