In United States ex rel Polansky v. Executive Health Resources, decided by the Supreme Court last week, Justice Thomas concurred, questioning the constitutionality of qui tam suits (in which a private party sues on behalf of the United States) on originalist grounds. He argued:
The potential inconsistency of qui tam suits with Article II has been noticed for decades. The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes… “Standing alone,” however, “historical patterns cannot justify contemporary violations of constitutional guarantees” [quoting Marsh v. Chambers], even when the practice in question “covers our entire national existence and indeed predates it,” [quoting Walz v. Tax Comm’n.] Nor is enactment by the First Congress a guarantee of a statute’s constitutionality. [Citing Marbury]. Finally, we should be especially careful not to overread the early history of federal qui tam statutes given that the Constitution’s creation of a separate Executive Branch coequal to the Legislature was a structural departure from the English system of parliamentary supremacy…. In short, there is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits.
At Dorf on Law, Eric Segall comments (harshly):
Thomas argues in this paragraph that a practice that existed at and before the founding, has continued to exist for centuries, and has never been struck down by the Court, might now be unconstitutional. Why? Because Thomas accepts a strong version of the unitary executive theory which suggests that only the President can bring suits on behalf of the United States. But nothing in Article II says that and, as noted above, such suits have been around since the first Congress. So the idea that qui tam suits are unconstitutional is not supported by text, history, or precedent. It is supported only by Thomas's policy arguments surrounding the unitary executive theory.
I think it's wrong to say that Thomas' (tentative) position isn't supported by text. Article II says the executive power (as relevant here, the power to enforce the law) is vested in the President, and the False Claims Act, in authorizing qui tam suits, arguably vests part of the executive power in the private parties authorized to sue on behalf of the United States. But Professor Segall is right about the history. And originalists, including Justice Thomas, often give substantial weight to immediate post-ratification practice in finding original meaning. Here's Justice Scalia, joined by Justice Thomas, dissenting in McCreary County v. ACLU of Kentucky:
It is no answer . . . to say that the understanding that these official and quasi-official actions reflect was not “enshrined in the Constitution’s text.” The Establishment Clause . . . was enshrined in the Constitution’s text, and these official actions show what it meant. There were doubtless some who thought it should have a broader meaning, but those views were plainly rejected. . . . What is more probative of the meaning of the Establishment Clause than the actions of the very Congress that proposed it, and of the first President charged with observing it?
Another example is Financial Oversight and Management Board For Puerto Rico v. Aurelius Investment, LLC, in which Thomas, concurring in the judgment, relied practice dating to the immediate post-ratification period to defend appointment of territorial officers contrary to the appointments clause.
Nonetheless, it's the original meaning and not the practice that controls, practice can't change the meaning, and especially when the congressional practice enhances Congress or diminishes another branch, it may not be reliable as an indicator of meaning. (See my further thoughts here.) So I don't think Justice Thomas is as far out of line methodologically as Professor Segall does. There may be situations where the text should override early practice. The challenge for originalists is how to decide when the text is clear enough to do so. Without a well-developed methodology on this point, there's a temptation to choose text or early practice depending on which is more convenient for a preferred solution (or at least to give that impression to people like Professor Segall). Perhaps a future qui tam case will point the way.
Posted at 6:09 AM