Chad Squitieri (Catholic University of America – Columbus School of Law) has posted Qui Tam Relators as Article IV Officials (104 N.C. L. Rev. __ (forthcoming)) (64 pages) on SSRN. Here is the abstract:
Since the earliest days of the republic, Congress has empowered private plaintiffs—called qui tam relators—to bring claims in court on behalf of the United States. Today qui tam litigation accounts for billions of dollars in judgments and settlements each year. But despite qui tam’s modern significance and historical pedigree, qui tam’s constitutionality has recently been questioned. To wit, several sitting Supreme Court justices have suggested that qui tam violates the President’s Article II authority because qui tam empowers private relators—who are neither appointed nor supervised by the President—to enforce federal law. Following similar logic, a lower federal court recently ruled a prominent qui tam statute unconstitutional. And that decision (or one like it) seems destined for Supreme Court review.
The Supreme Court’s anticipated reconsideration of qui tam has spurred a rich scholarly debate. Some scholars contend that qui tam is consistent with a historical understanding of Article II, while others contend that qui tam violates that constitutional provision. But by focusing so centrally on Article II, both sides of the debate overlook a key provision that offers a natural constitutional basis for a large subset of modern qui tam practice: the Article IV Property Clause.
As this Article explains, the Article IV Property Clause gives Congress the authority to empower qui tam relators to bring claims on behalf of the United States—so long as those claims relate to federal property, as the only two qui tam statutes in modern use do. Just as Congress can rely on the Article IV Property Clause to empower territorial officials to exercise federal authority without running afoul of other parts of the Constitution, Congress can rely on the same Property Clause to empower other Article IV officials (i.e., qui tam relators) to assist with other forms of federal property. But outside of the context of federal property, qui tam actions are properly understood as enforcing statutory authority enacted pursuant to one of Congress’s Article I powers. And because enforcing Article I statutes in court, on behalf of the United States, constitutes an exercise of Article II authority, qui tam actions unrelated to federal property (such as those relating to money alone) are unconstitutional to the extent they do not abide by Article II’s structural requirements. In sum, qui tam’s constitutionality can largely be saved—if only we look in the right place.
Posted at 6:18 AM