376 Holding Health Insurance Marketplaces Accountable 2015
a component of an overall enforcement scheme. Clearly, when Congress
explicitly creates a right, the statutory text limits the agency’s discretion. 292
This means that, even under this proposal, an agency could not take away
private enforcement where the statute includes clear rights-creating language. But the majority approach to the enforcement of regulations through
§ 1983 removes agency discretion in every instance, even when the statute
is vague or ambiguous, and remarkably, even when the statute explicitly
delegates authority to an agency. This is in direct tension with the Chevron
doctrine, which recognizes that statutory ambiguity communicates congressional intent to delegate authority to the implementing agency. 293 Permitting
delegations in the specific context of rights-making authority is consistent
with the general principles governing delegations to federal agencies.
Third, recognizing delegations of rights-making authority would also
comport with the Supreme Court’s emphasis on congressional intent. Although the Courts of Appeals largely read Gonzaga and Sandoval as foreclosing any possibility of rights created through regulation, this is not the
only way to resolve the question. The minority approach that allows regulations to “flesh out” 294 a right provided in a statute is an example of how the
Supreme Court’s focus on congressional intent and statutory text could still
accommodate the realities of the large role administrative agencies play in
implementing statutes. As the Chevron doctrine recognizes, Congress often
intends to leave a policy question open for the implementing agency to answer. 295 Questions of private enforcement are no different. The decision
about whether to allow private enforcement can easily be understood as a
complex policy question best left to agency discretion. In fact, the dissent-
292. Chevron U.S. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
843–44 (1984); Kristine Cordier Karnezis, Annotation, Construction and Application of
“Chevron Deference” to Administrative Action by United States Supreme Court, 3 A.L.R.
Fed. 2d 25 (2005) (Under Chevron doctrine, “[i]f the intent of Congress is clear, the Court
said, that is the end of the matter, for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”).
293. Brian D. Galle, Can Federal Agencies Authorize Private Suits Under Section
1983? A Theoretical Approach, 69 BROOK. L. REV. 163, 165 (2003) (further explaining how
the majority rule of the Appellate Courts is “inconsistent with the theoretical structure of
modern administrative law,” and with theories of statutory interpretation, which would otherwise support looking to regulations to define “rights” for the purposes of § 1983. Id at
180.); Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 VA. L. REV. 93, 96 (2005) (noting that allowing agencies to create causes of action where statutes are ambiguous “[t]hough grounded
in well-established administrative law principles, rejects the Supreme Court’s apparent preference for a clear statement rule under which ambiguous statutory language is presumed to
reflect a congressional rejection of private enforcement.”).
294. See Shakhnes v. Berlin, 689 F.3d 244, 251 (2d Cir. 2012); Chaffin v. Kan. State
Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003), overruled by Cinnamon Hills Youth Crisis
Ctr., Inc. v. Saint George City, 685 F.3d 917 (10th Cir. 2012).
295. Chevron, 467 U.S. at 844.