Government Control over Qui Tam Suits and Separation of Powers

Abstract

The False Claims Act’s qui tam provisions, authorizing private parties or relators to sue on behalf of the U.S. government, have faced renewed constitutional challenges despite record recoveries. Within the past two years, three Supreme Court Justices suggested qui tam may violate Article II of the Constitution, and a district court dismissed a qui tam lawsuit as unconstitutional. The Department of Justice has broad statutory authority to dismiss a qui tam case and veto any settlement or voluntary dismissal by a relator, allowing the Executive to maintain control over qui tam suits. But DOJ rarely exercises these rights, as empirical studies reveal. This Note highlights the disconnect between the importance of executive control over qui tam cases for the FCA’s constitutionality and DOJ’s infrequent oversight in practice. It proposes (1) amending the FCA to further DOJ incentives to dismiss by requiring non-intervened cases proceeding to have merits similar to government-initiated FCA cases and (2) resolving the circuit split in favor of broad government authority to object to a settlement between relator and defendant, weakening separation-of-powers challenges.