Last month the Eleventh Circuit heard argument in U.S. ex re. Zafirov v. Florida Medical Associates, LLC, which concerns whether the qui tam provision of the False Claims Act (“FCA”) comports with Article II of the Constitution.  The case (or one like it) seems bound for the Supreme Court—where several justices have already raised questions about qui tam’s constitutionality.  

Christian D. Sheehan and John P. Elwood published a helpful recap of the Eleventh Circuit argument.  This post will take a step back and place the parties’ arguments in broader constitutional context.  In doing so, I aim to offer a middle ground for resolving the Article II challenge to qui tam litigation.  My argument draws from a law review article that I have forthcoming in the North Carolina Law Review, titled “Qui Tam Relators as Article IV Officials.”  The upshot is that some (but not all) of FCA qui tam actions may be defended as exercises of Congress’s Article IV authority. 

Background

Qui tam is short for a longer Latin phrase, which translates to he “who sues on behalf of the King as well as for himself.”  As that phrase suggests, qui tam litigation was prevalent in England prior to the ratification of the U.S. Constitution.  And early Congresses enacted qui tam statutes as well.  But today, only one prominent federal qui tam statute remains on the books: the FCA.^[1]

Briefly, the FCA allows a private party (called a “relator”) to file a lawsuit in federal court, on behalf of the United States, alleging a violation of the FCA.  A relator need not be personally injured by the alleged violation.  Instead, the relator brings a claim on behalf of the government—similar to how a DOJ lawyer brings a claim on behalf of the government despite not being personally injured by the alleged violation of law.  The relator’s lawsuit is initially filed under seal.  And the relator’s filing of the lawsuit on the government’s behalf starts a sixty-day clock, during which time (and any court-approved extensions) the executive branch must investigate the allegations to determine whether the government wishes to primarily conduct the lawsuit itself, request that a court dismiss the lawsuit, or allow the private relator to pursue the lawsuit alone. 

Zafirov presents two distinct Article II challenges to the FCA’a qui tam provision.  First, challengers contend that qui tam relators are officers of the United States who unconstitutionally self-appoint themselves into office. The district court in Zafirov agreed that qui tam relators were officers of the United States, whose appointment (i.e., self-appointment) did not conform to the Appointments Clause.

Second, challengers contend that the FCA’s qui tam provision violates the Article II Vesting and Take Care clauses.  This argument essentially maintains that, because the FCA qui tam provision allows a private relator to initially bring and then litigate a lawsuit on behalf of the United States (two distinct exercises of executive power) and requires the executive branch to divert resources to investigate the appropriateness of such a case (a separate exercise of executive power), the qui tam provision allows for someone outside of the President’s control (i.e., a private relator) to exercise executive power in ways that the President might not think to be a faithful execution of the law.  The lower court in Zafirov did not reach the Vesting Clause and Take Care Clause arguments since the district court resolved the issue on Appointments Clause grounds.  But the parties seemed to agree at last month’s 11th Circuit argument that the Vesting and Take Care questions were pure legal questions that could be decided without remand for additional factual development. 

Defenders of the FCA’s qui tam provision rely heavily on history.  To wit, defenders stress that qui tam litigation had a long pedigree prior to the Constitution’s ratification (including in England and America), and that early Congress’s similarly enacted qui tam statutes.  Viewed in its most defensible light, this history is presumably offered as support for the proposition that qui tam litigation is consistent with the original (or perhaps likely, liquidated) meaning of the Article II Appointments, Vesting, and Take Care clauses.  

The Article IV Property Clause

The debate in Zafirov is, in my view, too focused on Article II.  I happen to agree with the challengers that qui tam litigation can violate Article II—for the reasons outlined in my Article. But qui tam’s challengers risk overstating their position when they suggest that all federal qui tam litigation violates Article II.  That is because enforcing a qui tam statute does not necessarily require an exercise of Article II power.  Instead, and in the limited context concerning federal property, Congress can enact qui tam statues by invoking Congress’s Article IV Property Clause power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” 

Ample historical evidence and Supreme Court precedent (also outlined in my Article) support the idea that Congress can rely on its Article IV Property Clause authority to empower officials to exercise “executive” power (really Article IV power) on Congress’s behalf. Much of that evidence and precedent, however, relates to a specific form of federal property: territory. 

Since the earliest days of the country, Congress has empowered executive officials in the territories (e.g., territorial governors) to exercise “executive” power on Congress’s behalf (i.e., exercise Article IV “executive” power that Congress could have directly exercised itself).  I use scare quotes when referring to “executive” power in this context because executive officials in territorial governments do not exercise Article II executive power; they instead exercise a form Congress’s Article IV power that is executive in nature.  Similarly, territorial legislatures do not exercise Congress’s Article I powers when they make territorial laws; they instead exercise a form of Congress’s Article IV power that appears legislative (hence why the literal creation of an entire territorial legislature does not violate the Article I Vesting Clause).  And territorial courts do not exercise Article III judicial power; they instead exercise a form of Congress’s  Article IV power that seems judicial.

Like in the territorial context, then, Article IV can serve as a source of power for Congress to grant “executive” power (i.e., Article IV power) relating to federal property involved in qui tam litigation.  To be sure, one might seek to draw a distinction between Article IV power respecting federal territory and Article IV power respecting other property.  But the same Property Clause empowers Congress to address “the Territory or other Property belonging to the United States” alike.  And there is no principled reason to suggest that Congress can empower Article IV officials (e.g., territorial executives) to exercise “executive” Article IV power in one context, but not similarly empower Article IV officials (e.g., qui tam relators) to exercise “executive” Article IV power in a related context.  It will not do, for example, to contend that territorial executives exercise territorial and not federal power.  The Supreme Court has elsewhere made clear that territorial governments are not separate sovereigns.  Article IV officials in the territories are thus properly understood as exercising Congress’s Article IV power on Congress’s behalf.  Qui tam relators bringing claims relating to “other Property belonging to the United States” should be able to exercise the same. 

Congress’s ability to exercise (either directly, or indirectly through Article IV officials) forms of legislative, executive, and judicial power in the Property Clause context might seem jarring since Articles I, II, and II of the Constitution so carefully separate power across three distinct branches.  But Article IV is unique.  To wit, the Article IV Property Clause gives Congress a sovereign-like power to directly and indirectly exercise Article IV power that appears executive, legislative, and/or judicial in nature. 

I say “sovereign-like” because Congress is not actually sovereign; We the People are.  Congress’s Article IV power is limited and subject to judicial review—unlike, say, acts of the sovereign U.K. Parliament.  But Congress can in some ways mimic a sovereign in the Article IV context by, for example, establishing territorial governments structured however Congress wishes (similar to how We the People structured our federal government as we wished in our Constitution).  More specifically, in the special Article IV context—which, again, is limited to federal property—We the People empowered Congress to act similar to a sovereign Parliament (something Congress cannot do when exercising its standard Article I powers).  Article IV is thus the natural place to find Congress’s authority to empower qui tam relators to bring claims on behalf of the “sovereign,” as the sovereign Parliament had long done.  

Crucially, Article IV does not grant Congress unlimited power.  As Justice Gorsuch has recently explained, it is a mistake to treat Congress’s Article IV power as truly “plenary.”  Although the term “plenary” might sometimes be used to signal that Congress’s Article IV power is quite broad, the term “plenary” should not be used to suggest that Congress’s Article IV power is unlimited. And a proper understanding of Article IV’s broad-but-nonetheless-limited power means that Congress cannot rely on Article IV to violate Article II—or, for that matter, to violate any part of the Constitution.  The Constitution’s structural commands still apply to exercises of Article IV power, but the tricky part is figuring out how those structural commands interact with one another in the Article IV context.

Among other things, Article IV’s limitations mean that, for Congress to properly rely on its Article IV Property Clause authority to empower qui tam relators, Congress must stay within the parameters of Article IV itself.  Qui tam actions that fall outside of Article IV’s parameters are properly understood as encroaching on the President’s Article II power (since the statute creating those actions requires an exercise congressional power found outside of Article IV (e.g., Article I), and enforcing those statutes in court on behalf of the United States requires an exercise of Article II power).  As I explain in my Article, that means that some FCA qui tam actions can be defended on Article IV grounds (since they relate to Article IV property), while other FCA actions cannot be so defended.  Hence the middle ground approach. 

What this Means for Zafirov

Because the relator in Zafirov did not bring a claim within the contours of the Article IV Property Clause (see footnote 317 of my Article), the qui tam action in Zafirov cannot be defended as an exercise of Article IV power.  Instead, the action is best understood as a purported enforcement of an Article I statute (i.e., an exercise of Article II power), and so the action should be dismissed as unconstitutional.  But in so ruling, the Eleventh Circuit should be careful to avoid making unnecessarily broad assertions.  

Rather than assert, for example, that all qui tam actions require an exercise of Article II power, the court should structure its ruling to reserve judgment on qui tam actions that may be defended on Article IV grounds.  The court might do so by explicitly noting that its ruling does not address the Article IV issue, or by clearly limiting its ruling to the specific type of claim at issue in Zafirov. 

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^[1] The Indian Protection Act also creates qui tam actions for various statutes relating to Native Americans.