b'Constitutionality of the Qui Tam Provisions\nof the False Claims Act\nQui tam suits brought by private parties to enforce the claims of the United States violate\nthe Appointments Clause of the Constitution because qui tam relators are \xe2\x80\x9cOfficers of the\nUnited States\xe2\x80\x9d but are not appointed in accordance with the requirements of the\nAppointments Clause.\nPrivate qui tam actions violate the doctrine of Article III standing because the relator has\nsuffered no personal \xe2\x80\x9cinjury in fact.\xe2\x80\x9d\nThe qui tam provisions of the False Claims Act violate the separation of powers doctrine\nbecause they impermissibly infringe on two aspects of the President\xe2\x80\x99s authority to exe\xc2\xad\ncute the laws: the discretion whether to prosecute a claim and the authority to control\nthe conduct of litigation brought to enforce the Government\xe2\x80\x99s interests.\nGiven qui tam\xe2\x80\x99s clear conflict with constitutional principles, any argument to sustain the qui\ntam provisions based upon historical practice must fail.\n\nJuly 18, 1989\nM e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l *\n\nI. OVERVIEW AND SUMMARY\nA. The Issue\n\nThe issue presented here is whether the so-called \xe2\x80\x9cqui tam\xe2\x80\x9d provisions\no f the False Claims Act, 31 U.S.C. \xc2\xa7\xc2\xa7 3729-3733 ( \xe2\x80\x9cAct\xe2\x80\x9d), are constitution\xc2\xad\nal. This may well be the most important separation o f powers question\nyou will have to address as Attorney General.\nIn these qui tam provisions, Congress purports to authorize any person\nto prosecute \xe2\x80\x94 on behalf o f the United States and in the name o f the\nUnited States \xe2\x80\x94 a civil fraud for treble damages and penalties against any\nperson who allegedly makes a false claim to the U.S. government. Unlike\nnormal citizen suits, the qui tam plaintiff \xe2\x80\x94 or so-called \xe2\x80\x9crelator\xe2\x80\x9d \xe2\x80\x94 is\n^ E d ito r\xe2\x80\x99s N o te : This memorandum was not intended to present the official position o f the Department\no f Justice at the time o f its writing, but rather was intended to contribute to a discussion within the\nDepartment over what position should be adopted The views on the Appointments Clause expressed in\nthe memorandum have been superseded by a subsequent O ffice o f Legal Counsel memorandum. See\nMemorandum fo r the General Counsels o f the Federal Government from Walter Dellinger, Assistant\nAttorney General, Office o f Legal Counsel, Re. The Constitutional Separation o f Poivers between the\nPresident and Congress 20-21 n 53 (May 7, 1996) (to be published)\n1\n\n207\n\n\x0cempowered to sue, on the government\xe2\x80\x99s behalf, even if he has not sus\xc2\xad\ntained any personal injury as a result o f the wrongdoer\xe2\x80\x99s alleged miscon\xc2\xad\nduct. As a bounty for prosecuting the fraud, the relator receives up to\nthirty percent o f any damages and penalties recovered, with the balance\npaid into the U.S. Treasury. The relator is empowered to prosecute the\ngovernment\xe2\x80\x99s claim even when the Attorney General has determined that\nthere is no valid claim or that pursuing the suit is not in the interests o f\nthe United States.\nThrough qui tam, Congress has attempted to create universal standing\nto prosecute purely public offenses. These qui tam suits pose a devastat\xc2\xad\ning threat to the Executive\xe2\x80\x99s constitutional authority and to the doctrine\no f separation o f powers. If qui tam suits are upheld, it would mean\nCongress will have carte blanche to divest the executive branch o f its\nconstitutional authority to enforce the laws and vest that authority in its\nown corps o f private bounty hunters. Simply by attaching a penalty to the\nviolation o f any law and by offering a bounty to any person who sues,\nCongress effectively could \xe2\x80\x9cprivatize\xe2\x80\x9d all civil law enforcement. Indeed,\nthrough this device, Congress has authorized each o f its own members\n(as any \xe2\x80\x9cperson\xe2\x80\x9d) to enforce the laws directly.\nIn several qui tam suits currently pending in federal district court,\ndefendant contractors have moved to dismiss, contending that the qui\ntam mechanism is unconstitutional. Several courts have asked the\nDepartment o f Justice to express a position. The Office o f Legal Counsel,\nthe Civil Division, and the former Office o f Legal Policy all agree that the\nqui tam provisions in the False Claims Act are unconstitutional. We\nbelieve they violate the Appointments Clause, infringe on the President\xe2\x80\x99s\ncore Article II authority to execute the law, and violate Article III stand\xc2\xad\ning doctrine. The Civil Division would like to enter an appropriate case\nand, either as amicus or by intervention, present the executive branch\xe2\x80\x99s\narguments against the constitutionality o f qui tam. The Solicitor General\nargues that we should intervene in district court to support the constitu\xc2\xad\ntionality o f qui tam.\nB. Background\n\nThe use o f qui tam suits arose in fourteenth century England as an aid\nto government\xe2\x80\x99s primitive law enforcement capabilities. These statutes\nauthorized private \xe2\x80\x9cinformers\xe2\x80\x9d to bring criminal prosecutions for viola\xc2\xad\ntion o f certain penal laws. Upon conviction of the wrongdoer, the private\nprosecutor was given a share o f the penalty as a reward. While some\nstatutes permitted prosecution only by a person who had suffered injury,\nother statutes authorized \xe2\x80\x9cany person,\xe2\x80\x9d regardless o f ir\\jury, to prosecute\na wrongdoer in the name o f the sovereign for violation o f a penal law.\nInitially, these informer actions were brought by criminal indictment or\ninformation, but eventually informers could opt to bring their suits as\n208\n\n\x0ceither a criminal or civil action. This experiment with private law\nenforcement had an unhappy history o f abuse. Qui tam suits fell into dis\xc2\xad\nfavor and, from the sixteenth century forward, their use was progres\xc2\xad\nsively curtailed.\nIn the United States, during the emergency o f the Civil War, Congress\nresorted to this archaic device in response to widespread contractor\nfraud. The False Claims Act o f 1863, 12 Stat. 696, authorized any person\nto prosecute, in the name o f the United States, a civil action against a con\xc2\xad\ntractor for alleged fraud against the United States. As a reward, the rela\xc2\xad\ntor received a share o f any recovery. After the Civil War, this qui tam\nstatute fell into relative desuetude. By 1986, except for a flurry o f activi\xc2\xad\nty during World War II, it had become an anachronism.\nIn 1986, Congress, dissatisfied with the way the executive branch was\nenforcing government procurement laws, sought to breathe new life into\nthis dormant device. To stimulate private enforcement suits, Congress\namended the False Claims Act to provide for treble damages and penal\xc2\xad\nties o f up to $10,000 for each false claim, and to provide for a bounty to\nthe relator o f up to thirty percent o f any recovery (the \xe2\x80\x9c 1986 Amend\xc2\xad\nments\xe2\x80\x9d). The congressional proponents o f these amendments made no\npretense about the fact that they distrusted the executive\xe2\x80\x99s willingness or\nability to enforce the law properly, and they stated that their purpose was\nto \xe2\x80\x9cdeputize\xe2\x80\x9d private citizens to ensure effective law enforcement.\nIn the two years since enactment o f the 1986 Amendments, there has\nbeen a massive upsurge in qui tam actions \xe2\x80\x94 over 150 suits have been\nfiled. These actions have disrupted the civil and criminal enforcement\nactivities o f the Department. See Memorandum for the Solicitor General,\nfrom Stuart E. Schiffer, Acting Assistant Attorney General, Civil Division\n(June 15, 1989). They have also undermined the executive\xe2\x80\x99s ability to\nadminister complex procurement contracts and, in some cases, have\ncaused serious national security concerns. The 1986 Amendments have\nalso spawned the formation o f full-time \xe2\x80\x9cbounty hunting\xe2\x80\x9d groups \xe2\x80\x94\nersatz departments o f justice \xe2\x80\x94 that go about prosecuting civil fraud\nactions in the name o f the United States.\nC. Qui Tam\xe2\x80\x99s Unconstitutionality\n\nThe Office o f Legal Counsel believes that the qui tam provisions o f the\nFalse Claims Act are patently unconstitutional. In our view, this is not\neven a close question. Our conclusion rests on three grounds.\nFirst, we believe that private qui tam actions violate the Appointments\nClause o f the Constitution. Art. II, \xc2\xa7 2, cl. 2. The Supreme Court has\nrepeatedly held that conducting litigation on behalf o f the United States\nto enforce the rights o f the United States must be carried out by an exec\xc2\xad\nutive branch official or other properly appointed government officer. The\nConstitution thus does not permit Congress to vest governmental law\n209\n\n\x0cenforcement authority in self-selected private parties, who have not been\nit\\jured and who act from mercenary motives, without commitment to the\nUnited States\xe2\x80\x99 interests and without accountability.\nSecond, we believe qui tam suits violate Article III standing doctrine.\nThe Supreme Court has repeatedly held that under Article III, a plaintiff\nis ineligible to invoke federal judicial power unless he can demonstrate\nthat he has suffered \xe2\x80\x9cir\\jury in fact\xe2\x80\x9d as a result o f the defendant\xe2\x80\x99s alleged\xc2\xad\nly illegal conduct. Qui tam relators suffer no ii\\jury in fact and thus fail to\nmeet this bedrock constitutional requirement. Because Congress may not\nabrogate this requirement, the False Claims Act\xe2\x80\x99s grant o f universal\nstanding to any person violates Article III.\nThird, we believe that qui tam actions violate the doctrine o f separation\no f powers. The Supreme Court has consistently ruled that the authority\nto enforce the laws is a core power vested in the Executive. The False\nClaims Act effectively strips this power away from the Executive and\nvests it in private individuals, depriving the Executive o f sufficient super\xc2\xad\nvision and control over the exercise o f these sovereign powers. The Act\nthus impermissibly infringes on the President\xe2\x80\x99s authority to ensure faith\xc2\xad\nful execution o f the laws.\nUntil now, no federal court has ever considered or addressed the con\xc2\xad\nstitutionality o f qui tam actions. Nor, to our knowledge, has any Attorney\nGeneral ever conceded the constitutionality o f the device. Indeed, in\n1943, Attorney General Biddle called for its repeal. He contended that it\nwas the duty o f the Department o f Justice to enforce the laws and that qui\ntam suits interfered with that responsibility. During these debates in 1943,\na leading Senate proponent o f qui tam complained:\n[T]he Congress enacted that statute in 1863. I ask any\nSenator to name one case, from 1863 until 1942, in which\nthe Attorney General o f the United States tried to enforce\nthe statute. From the day the statute went on the statute\nbooks to the present, the Attorneys General, whether\nDemocrats or Republicans, fought it.\n\n89 Cong. Rec. 10,697 (1943) (emphasis added).\nD. Reasons fo r Opposing Q u i Tam\n\nIn my view, the Department o f Justice has an obligation to the President\nand to the Constitution to .resist this encroachment on executive power.\nConsequently, I recommend that the Civil Division be permitted to present\nthe executive branch\xe2\x80\x99s arguments against the constitutionality o f the qui\ntam device. I submit that three considerations dictate this course.\nFirst, qui tam poses a potentially devastating threat to the President\xe2\x80\x99s\nconstitutional authority. If qui tam is upheld, there would be nothing to\n210\n\n\x0cprevent Congress from using the device to eviscerate all o f the executive\nbranch\xe2\x80\x99s civil law enforcement authority. We can expect to see the inex\xc2\xad\norable extension o f qui tam into such areas as securities fraud, savings\nand loan fraud, and civil rights. Once the facial constitutionality o f the\ndevice is conceded, there is no principled basis for limiting its future use.\nAs Justice Scalia noted with regard to the independent counsel statute:\nFrequently an issue o f this sort will come before the\nCourt clad, so to speak, in sheep\xe2\x80\x99s clothing: the potential o f\nthe asserted principle to effect important change in the\nequilibrium o f power is not immediately evident, and must\nbe discerned by a careful and perceptive analysis. But this\nwolf comes as a wolf.\nMorrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). The\n\nrationale for the special prosecutor statute at least can be restricted to\nnarrow circumstances. Qui tam is far more dangerous: there is simply no\nway to cage this beast.\nNot only would qui tam work a sea change in the balance o f power\nbetween the Congress and the Executive, but it would, in my view, under\xc2\xad\nmine the liberties o f the American people \xe2\x80\x94 which is what the doctrine\no f separation o f powers ultimately is designed to safeguard. One o f the\ncentral tenets o f the Framers was that the power to execute the law must\nbe kept in hands that are both independent o f the legislature and politi\xc2\xad\ncally accountable to the people. This enforcement structure was\ndesigned to protect the people from the improvident or tyrannical\nenforcement o f the laws. Qui tam allows Congress to circumvent the\nExecutive\xe2\x80\x99s check and to have its laws enforced directly by its own pri\xc2\xad\nvate bounty hunters. This destroys the longstanding principle that all\nthree branches must concur before the sovereign may exact public penal\xc2\xad\nties from an individual.\nThe second consideration that dictates opposing the constitutionality\no f qui tam is the very force o f the arguments against it. Taken together \xe2\x80\x94\nor taken alone \xe2\x80\x94 the three constitutional objections against qui tam are\nformidable. Indeed, as a matter o f principle, they are irresistible. They are\nby no means extreme arguments. On the contrary, they are \xe2\x80\x94 as the\nSolicitor General would acknowledge \xe2\x80\x94 well within the mainstream and\nfirmly rooted in the consistent rulings o f the Supreme Court. To date, the\nSupreme Court has been unyielding in its insistence both upon \xe2\x80\x9cinjury in\nfact\xe2\x80\x9d as the essential requirement o f standing and upon strict compliance\nwith the Appointments Clause whenever significant governmental\nauthority is vested in an individual.\nBut even if it were a close question \xe2\x80\x94 and I do not think that it is \xe2\x80\x94 it\nis not our job, when the President\xe2\x80\x99s core constitutional powers are at\nstake, to \xe2\x80\x9cdecide\xe2\x80\x9d these cases as if we were an Article III judge. We are\n211\n\n\x0cthe Executive\xe2\x80\x99s only advocates, and when the President\xe2\x80\x99s core powers are\nat stake, the Executive\xe2\x80\x99s case is so compelling, and the practical conse\xc2\xad\nquences o f defeat so grave, w e have a duty to advance the President\xe2\x80\x99s\ncause. Indeed, the Framers expected that a \xe2\x80\x9cgreat security\xe2\x80\x9d against the\ngradual erosion o f the separation o f powers was precisely the willingness\nand disposition o f each branch\xe2\x80\x99s officers to resist the encroachments o f\nthe others: \xe2\x80\x9cAmbition must be made to counteract ambition.\xe2\x80\x9d The\nFederalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed. 1961).\nThe third consideration that dictates opposing qui tam relates to the\nposture o f these cases. Because o f the unusual way these cases arise, we\nhave nothing to lose by challenging the constitutionality o f qui tam. The\nDepartment o f Justice is not a formal party to these cases. Private defen\xc2\xad\ndants, ably represented, have directly challenged the constitutionality o f\nthe qui tam provisions. The U.S. Senate has filed amicus briefs in support\no f qui tam. The fundamental powers o f the President are thus being\ndecided in our absence. This is not a case in which we have the freedom\nto pick where or when to fight. This litigation will proceed with or with\xc2\xad\nout us and will undoubtedly end up in the Supreme Court.\nAs Madison noted, because o f the breadth o f the constitutional powers\no f the legislative branch, that branch easily can \xe2\x80\x9cmask under complicat\xc2\xad\ned and indirect measures, the encroachments which it makes on the co\xc2\xad\nordinate departments.\xe2\x80\x9d The Federalist No. 48, at 334 (James Madison)\n(Jacob E. Cooke ed. 1961). Madison therefore found it often to be a \xe2\x80\x9cques\xc2\xad\ntion o f real-nicety\xe2\x80\x9d whether a particular measure would extend beyond\nthe legislature\xe2\x80\x99s sphere. Id. Despite the difficulties perceived by the\nSolicitor General, no such \xe2\x80\x9cquestion o f real-nicety\xe2\x80\x9d is involved here. If we\nfail to object to qui tam, it almost certainly will be upheld. If we enter the\ncase and vigorously contest qui tarn\xe2\x80\x99s constitutionality, we stand a good\nchance o f winning or, at least, obtaining a decision that restricts qui tam.\nThus, this is a case in which w e will be in no worse position if we go in\nand lose than we are in right now. In short, there is no \xe2\x80\x9cdownside\xe2\x80\x9d here,\nand this is precisely the kind o f case where we should be aggressively\nresisting encroachment.\nE. The Solicitor General\xe2\x80\x99s Position\n\nThe Solicitor General admits that qui tam poses \xe2\x80\x9cgrave dangers\xe2\x80\x9d to the\nPresidency. See Memorandum for the Solicitor General, from Richard G.\nTaranto, Assistant to the Solicitor General at 3, 10-11 (June 26, 1989)\n( \xe2\x80\x9cTaranto Memo\xe2\x80\x9d). He appears to perceive the issue o f qui tarn\xe2\x80\x99s constitu\xc2\xad\ntionality as a \xe2\x80\x9cclose\xe2\x80\x9d one. See id. at 3. Nevertheless, he is recommending\nthat the Department intervene in district court to support the facial con\xc2\xad\nstitutionality o f the qui tam statute. The Solicitor General\xe2\x80\x99s position would\nrequire the surrender at the outset o f the two strongest arguments against\nqui tam \xe2\x80\x94 the Appointments Clause and Article III standing arguments.\n212\n\n\x0cThe Solicitor General assures us, however, that he will reserve the right to\nuse a separation o f powers balancing test to defend against encroachment\nif qui tam is unconstitutionally applied in the future. Id. at 12-14.\nTo uphold qui tam, the Solicitor General is prepared to disregard\ndecades o f clear Supreme Court jurisprudence and the application o f wellsettled constitutional principles. His sole reason for embracing qui tam is\nits historical usage. Id. at 4-5. This argument \xe2\x80\x94 that past usage alone is\nenough to establish a practice\xe2\x80\x99s constitutionality \xe2\x80\x94 is untenable both as a\nmatter o f history and o f law. Moreover, the Solicitor General\xe2\x80\x99s proposed\nstrategy o f preemptive concession makes no sense as a litigation tactic.\nThe Solicitor General vastly overstates the historical acceptance o f qui\ntam. Prior to passage o f the False Claims Act, the only significant use o f\nqui tam occurred in the Federalist period, during which time it appears\nthat perhaps six statutes were enacted that may have authorized penalty\nactions by private persons. These statutes involved relatively arcane\nareas; one set fines for illegally trading with the Indians, another set fines\nfor misconduct by census-takers. The record, however, is most unclear as\nto whether these statutes reflected any appreciable acceptance o f qui\ntam actions by persons who had sustained no injury. It appears from actu\xc2\xad\nal practice that with very few exceptions, suits under these statutes were\nbrought either by government officials (for whom the moiety was com\xc2\xad\npensation) or by persons who had suffered injury in fact. There is little\nevidence that the long-accepted historical practice on which the Solicitor\nGeneral relies ever existed.\nIt is easy to understand why qui tam has been so marginal a practice in\nthe history o f federal law. Adopted when the Executive was embryonic,\nthe early qui tam statutes were essentially stop-gap measures, confined to\nnarrow circumstances in which the government lacked the institutions to\nenforce the law. The intent o f those statutes was to assist a fledgling\nexecutive, not supplant it. As the Executive\xe2\x80\x99s law enforcement capabili\xc2\xad\nties gathered strength, qui tam rapidly fell into disuse. A fair reading o f\nthe history o f qui tam in the United States reveals it as a transitory and\naberrational device that never gained a secure foothold within our con\xc2\xad\nstitutional structure because o f its fundamental incompatibility with that\nstmcture.\nMoreover, even strong historical support for qui tam could not cure the\npractice\xe2\x80\x99s constitutional -infirmities. No Supreme Court case has ever\ngiven history the kind o f dispositive weight that the Solicitor General\nwould here. On the contrary, the Supreme Court has repeatedly stated\nthat history alone can never validate a practice that is contrary to consti\xc2\xad\ntutional principle, even when the practice \xe2\x80\x9ccovers our entire national\nexistence and indeed predates it.\xe2\x80\x9d Walz v. Taac Commission, 397 U.S. 664,\n678 (1970). Accord Marsh v. Chambers, 463 U.S. 783, 790 (1983). There\nare numerous examples o f statutes passed by the early congresses that\nhave been held unconstitutional or clearly would be held unconstitution\xc2\xad\n213\n\n\x0cal today. See infra p. 233. Thus, if a past practice cannot be reconciled\nwith constitutional principle, an appeal to history alone cannot sustain it.\nIn the case o f qui tam, absent the invocation o f history there is no ques\xc2\xad\ntion about the practice\xe2\x80\x99s unconstitutionality.\nAlthough history alone cannot validate a plainly unconstitutional prac\xc2\xad\ntice, the Supreme Court has indicated that close cases will be resolved in\nfavor o f the constitutionality o f certain strong historical traditions. The\nCourt weighs several factors in determining the authority o f a tradition,\nincluding (1) whether there is evidence that the Framers actually consid\xc2\xad\nered the constitutional implications o f their actions; (2) whether the prac\xc2\xad\ntice is so longstanding and pervasive that it has become \xe2\x80\x9cpart o f the fab\xc2\xad\nric o f our society;\xe2\x80\x9d and (3) whether the practice can be accommodated\nwithin the constitutional framework in a way that does not undermine\nsettled principles. See, e.g., Young v. United States ex rel. Vuitton et Fils,\n487 U.S. 787 (1987); Marsh v. Chambers-, Walz v. Tax Commission.\nQui tam would deserve no deference under these criteria. There is no\nevidence that the Framers considered the constitutional status o f qui\ntam. On the contrary, the early statutes are the kind to which the Court\ngives no weight \xe2\x80\x94 \xe2\x80\x9caction ... taken thoughtlessly, by force o f long tradi\xc2\xad\ntion and without regard to the problems posed.\xe2\x80\x9d Marsh v. Chambers, 463\nU.S. at 791. Nor can it seriously be maintained that qui tam is \xe2\x80\x9cpart o f the\nfabric o f our society.\xe2\x80\x9d Never more than a marginal device, it is today an\nanachronism that easily can be excised without disruption. Qui tarn\xe2\x80\x99s\nprinciple o f private law enforcement, however, is so fundamentally\nincompatible with established doctrines o f standing and separation of\npowers that, if accepted, it would substantially undermine these doc\xc2\xad\ntrines. Thus, qui tam is not merely an innocuous historical oddity that can\nbe narrowly accommodated, but is, by nature, an exception that will con\xc2\xad\nsume the rule.\nFurther, the Solicitor General\xe2\x80\x99s use o f history is internally inconsistent.\nNone o f the old qui tam statutes upon which the Solicitor General relies\nallowed the Attorney General to intervene once the relator brought the\ncase. However, the Solicitor General concludes that the current statute\nwill be unconstitutional if it is applied to limit the Attorney General\xe2\x80\x99s par\xc2\xad\nticipation in the suit. It is difficult to understand how the Solicitor\nGeneral can give dispositive historical weight to statutes that would be\nunconstitutional under his theory for arguing qui tarn\xe2\x80\x99s validity.\nFinally, as a tactical matter, the Solicitor General\xe2\x80\x99s strategy of preemp\xc2\xad\ntive concession is extremely unwise. It voluntarily surrenders at the out\xc2\xad\nset the two strongest objective arguments against qui tam. Once those are\nabandoned, all that will remain to protect the President\xe2\x80\x99s interests will be\na subjective balancing approach and the argument that at some unde\xc2\xad\nfined point the degree of encroachment will become unbearable. This\napproach leaves executive powers entirely vulnerable to an adverse judi\xc2\xad\ncial decision.\n214\n\n\x0cII. THE STATUTE AND ITS IMPACT\nA. The Statute\n\nThe False Claims Act provides that anyone who presents a false money\nclaim to the Federal Government shall be liable for double or treble dam\xc2\xad\nages and civil penalties o f up to $10,000 per false claim. 31 U.S.C. \xc2\xa7 3729.\nUnder the qui tam provisions of the Act, any person may bring a civil\naction \xe2\x80\x9cfor the person and for the United States Government\xe2\x80\x9d to recover\ndamages and penalties. Id. \xc2\xa7 3730(b)(1). The qui tam action, although ini\xc2\xad\ntiated by a private person called a relator, is \xe2\x80\x9cbrought in the name o f the\nGovernment.\xe2\x80\x9d Id.\nThe details o f the qui tam mechanism demonstrate that the real party\nin interest is the United States, with the relator functioning as attorney\nfor the United States. When a private person brings a qui tam action, he\nmust serve on the Government the complaint and a written disclosure o f\nthe information he possesses. Id. \xc2\xa7 3730(b)(2). The Attorney General is\nthen forced to decide, within 60 days, whether to \xe2\x80\x9cintervene and proceed\nwith the action.\xe2\x80\x9d Id. By the end o f that period, the Attorney General must\ninform the court whether the government shall proceed; if not, \xe2\x80\x9cthe per\xc2\xad\nson bringing the action shall have the right to conduct the action.\xe2\x80\x9d Id. \xc2\xa7\n3730(b)(4)(B).\nWhere the Attorney General decides not to proceed with the case, the\nrelator alone represents the government. He has full control over the lit\xc2\xad\nigation, including discovery, admissions, and presentation o f evidence,\nsubject only to a few specific limitations.1If the relator prevails, most o f\nthe recovery is paid into the Treasury, with the relator keeping between\ntwenty-five and thrity percent as his reward. Id. \xc2\xa7 3730(d)(2). The relator\nis also entitled to attorneys\xe2\x80\x99 fees. Id.\nIf the Attorney General initially declines to proceed with the case, he\nmay intervene later only upon a showing of \xe2\x80\x9cgood cause,\xe2\x80\x9d but such inter\xc2\xad\nvention does not limit \xe2\x80\x9cthe status and rights o f the person initiating the\naction.\xe2\x80\x9d Id. \xc2\xa7 3730(c)(3). Thus, the relator retains primary control over\nthe case despite the government\xe2\x80\x99s intervention. Moreover, the legislative\nhistory to the 1986 Amendments expressly states that any judgment or\nsettlement in a case conducted exclusively by the relator binds the\nGovernment under principles o f preclusion. S. Rep. No. 345, 99th Cong.,\n\n1 A qui tam action may be dismissed only if the court and the Attorney General give written consent.\n31 U.S.C. \xc2\xa7 3730(b)(1) If ihe Government shows that discovery by the relator would interfere with ongo\xc2\xad\ning civil or criminal investigations or prosecutions, the court may stay discovery for a penod not to\nexceed 60 days The court may impose further stays if the Attorney General shows \xe2\x80\x9cthat the Government\nhas pursued the cnminal or civil investigation or proceedings with reasonable diligence and any pro\xc2\xad\nposed discovery in the Iqui tamj action will interfere with the ongoing cnminal or civil investigation or\nproceedings \xe2\x80\x9d Id \xc2\xa7 3730(c)(4). The relator is under no general constraint to pursue Department o f Justice\nlitigation policies or procedures.\n\n215\n\n\x0c2d Sess. 27 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5292. This stands\nto reason: since the relator\xe2\x80\x99s action is in the name of the United States,\nthe relator seeks a share o f damages inflicted on the United States, and\nany recovery (minus the relator\xe2\x80\x99s moiety) is paid into the Treasury.\nIn cases in which the Attorney General does enter within the initial\nsixty-day period, the government has \xe2\x80\x9cprimary responsibility for prose\xc2\xad\ncuting the action.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 3730(c)(1). The relator nevertheless has\n\xe2\x80\x9cthe right to continue as a party to the action.\xe2\x80\x9d Id. This participation right\ngives the relator a substantial role in the litigation. The relator has the\nright to a hearing if the Attorney General decides to dismiss the action.\nId. \xc2\xa7 3730(c)(2)(A). If the Attorney General proposes to settle the case\nbut the relator objects, the settlement may go forward only if \xe2\x80\x9cthe court\ndetermines, after a hearing, that the proposed settlement is fair, adequate,\nand reasonable under all the circumstances.\xe2\x80\x9d Id. \xc2\xa7 3730(c)(2)(B). In addi\xc2\xad\ntion, the relator participates fully at trial, calling witnesses, cross-examining witnesses, and testifying, except that on the government\xe2\x80\x99s motion\n\xe2\x80\x9cthe court may, in its discretion, impose limitations on the [relator\xe2\x80\x99s] par\xc2\xad\nticipation.\xe2\x80\x9d Id. \xc2\xa7 3730(c)(2)(C).\nIn cases primarily conducted by the Attorney General, the relator\nreceives between 15 and 25 percent o f the proceeds, plus reasonable\nexpenses (including attorneys\xe2\x80\x99 fees), as determined by the court. Id. \xc2\xa7\n3730(d)(1). Moreover, if the Government decides to pursue its claim in\nsome forum other than a False Claims Act suit \xe2\x80\x94 such as an administra\xc2\xad\ntive penalty action \xe2\x80\x94 the relator has the same rights in that proceeding\nthat he would have in court. Id. \xc2\xa7 3730(c)(5).\nIn short, where the Government decides not to join, the relator con\xc2\xad\nducts the suit as if he were the Attorney General, except that unlike the\nAttorney General he takes no oath o f office, he bears no loyalty to the\nGovernment or continuing responsibility for implementing its policies,\nand he receives up to thirty percent o f the suit\xe2\x80\x99s proceeds. If the\nGovernment enters the suit, the relator continues to represent the United\nStates, subject to the court\xe2\x80\x99s (not the Attorney General\xe2\x80\x99s) control. This\narrangement carries out the purpose that underlay the 1986\nAmendments. Congress\xe2\x80\x99s \xe2\x80\x9coverall intent in amending the qui tam section\no f the False Claims Act is to encourage more private enforcement suits.\xe2\x80\x9d\nS. Rep. No. 345 at 23-24. In order to do that, Congress decided to \xe2\x80\x9cdepu\xc2\xad\ntize ready and able people ... to play an active and constructive role\nthrough their counsel to bring to justice those contractors who over\xc2\xad\ncharge the government.\xe2\x80\x9d 132 Cong. Rec. 29,322 (1986).\nB. The Statute\xe2\x80\x99s Impact\n\nThe heart o f the statute\xe2\x80\x99s impact derives from the fact that the qui tam\nprovisions interfere with the Attorney General\xe2\x80\x99s discretion whether to ini\xc2\xad\ntiate a suit under the False Claims Act. That interference adversely\n216\n\n\x0caffects both the Government\xe2\x80\x99s law enforcement powers and its contract\xc2\xad\ning powers.\n1. The Government\xe2\x80\x99s Enforcement Role\na.\nThe decision to initiate litigation. First and most obviously, the qui\ntam mechanism removes from the Department\xe2\x80\x99s hands the decision\nwhether and when to commence an action. Once a relator files his com\xc2\xad\nplaint, we have 60 days within which to decide whether to join. This is\ntrue even if we are pursuing an investigation that is far from ready for\ndecision whether to prosecute.2 In several cases, district courts already\nhave refused to grant us extensions in order to avoid interference with\nongoing criminal investigations. See, e.g., United States ex rel. McCoy v.\nCalifornia Medical Review Inc., 723 F. Supp. 1363 (N.D. Cal. 1989).3 If a\nstay is unavailable, the civil case proceeds with or without us, sometimes\nalerting targets o f criminal investigations; sometimes resulting in disclo\xc2\xad\nsure of key information in our possession, including our litigating posi\xc2\xad\ntions; and sometimes complicating attempts to prepare a comprehensive\nplea arrangement and civil settlement.\nIn addition, informal avenues o f redress and adjustment can be cut off.\nInstead, the Government may be forced to choose quickly between leaving\nthe suit wholly to the relator or taking the very serious step o f charging\nfraud against a private person.4 Such a charge is a serious matter, whether\nbrought by the Department or a relator. In many cases prosecutorial discre\xc2\xad\ntion would counsel against our bringing a False Claims Act suit; for exam\xc2\xad\nple, we might find that although a contractor was technically liable, it has\nfired the employees responsible for the fraud. A relator, however, is inter\xc2\xad\nested only in money, not in the faithful execution o f the laws. He has taken\nno oath o f office, has no obligation of loyalty to the Government or its inter\xc2\xad\nests, and has no continuing responsibility for the governmental programs at\nissue. Rather, he holds a personal financial stake that in all other contexts\nwould disqualify him from representing the Government\xe2\x80\x99s interests.\nUnited States ex rel. Hyatt v. Northrop Corp., No. CV 87-6892 KN\n(Jrx), 1989 U.S. Dist. LEXIS 18940 (C.D. Cal. Dec. 27, 1989), provides an\n\n2 Contrary to our experience, the Senate Committee believed that \xe2\x80\x9cwith the vast majority o f cases, 60\ndays is an adequate amount o f time to allow Government coordination, review and decision" o f fraud\nactions running into millions or billions o f dollars. S Rep No. 345 at 24-25.\n3 This accords with the legislative history, which states that \xe2\x80\x9cthe Committee does not intend that crim\xc2\xad\ninal investigations be considered an automatic bar to proceeding with a civil fraud suit." S. Rep N o 345\nat 25. Instead, the Senate Committee stated that if the Government obtains an initial stay, \xe2\x80\x9cthe court\nshould carefully scrutinize any additional Government requests for extensions by evaluating the\nGovernment\xe2\x80\x99s progress with its cnminal inquiry\xe2\x80\x9d Id\n4 In some circumstances, w e may be considering enforcement action less draconian than a trebledamages-plus-penalties action under the False Claims Act. Once a relator has ensured that there will be\na treble-damages action, however, we may be forced either to scrap a single-damage suit or attempt to\nhandle it in coryunction with the other.\n\n217\n\n\x0cexample o f a case in which the qui tam provisions have allowed a relator\nto force a suit that this Department would not have pursued. In that case,\neight employees are suing Northrop for alleged fraud in the manufacture\no f inertial measurement units ( \xe2\x80\x9cIMUs\xe2\x80\x9d) for the MX (Peacekeeper) Missile.\nThey seek restitution o f $1 billion, $250 million in compensatory dam\xc2\xad\nages, and $5 million in punitive damages. Two o f the eight relators had\nfiled an earlier qui tam action against Northrop that was dismissed\nbecause the information on which it was based was already in the\nGovernment\xe2\x80\x99s possession. The pending suit makes numerous allegations\no f fraud, including that Northrop knowingly delivered defective IMUs to\nthe Air Force, that it failed to test or inspect all components properly, and\nthat it misrepresented the performance o f operation audits and respon\xc2\xad\nsive corrective action. In fact, the Civil Division\xe2\x80\x99s memorandum review\xc2\xad\ning the relators\xe2\x80\x99 suit notes that the complaint is so broad that it encom\xc2\xad\npasses nearly every action undertaken by Northrop in the course o f the\nmanufacture and delivery o f the IMUs.5 The Civil Division declined to\nenter the relators\xe2\x80\x99 action because extensive investigations o f Northrop\xe2\x80\x99s\noperations by the U.S. Attorney and the Air Force failed to produce evi\xc2\xad\ndence o f fraud. See Civil Division Memo at 8-15. Moreover, the Air Force\xe2\x80\x99s\nrecords show that the actual performance o f the allegedly defective IMUs\nhas far exceeded expectations, thus rebutting the relators\xe2\x80\x99 claims o f\nfraud. See id. at 12. Nevertheless, the relators are permitted by the qui\ntam provisions to continue to pursue their suit on behalf o f the\nGovernment to satisfy their personal purposes, whether for harassment\nor in hopes o f forcing Northrop to pay them a settlement award.\nb.\nThe conduct of litigation. When we do enter a case, the relator\nretains his rights to participate, which often are exercised in ways\nadverse to the government\xe2\x80\x99s interests. The Civil Division has already\nencountered claims by relators that they, as representatives o f the United\nStates, are entitled access to our investigative files and personnel.\nMoreover, all disputes between us and the relator over the conduct of the\ncase \xe2\x80\x94 from discovery to witness selection to cross-examination \xe2\x80\x94 are\ndecided by the court. This leaves open the question whether the Act has\ntransferred the executive power to the relator or the district judge, but it\nis clear that that power has been transferred away from the Attorney\nGeneral.6\nWhen we do not intervene, the Department nevertheless must spend\nresources monitoring cases that it had for good reason decided not to\nbring. Because it is never possible to tell what prejudice we might suffer\n6\n\nSee Memorandum fo r John R. Bolton, Assistant Attorney General, Civil Division, from Michael F\n\nHertz, Director, Com m ercial Litigation Branch, at 7 (the \xe2\x80\x9cCivil Division Mem o\xe2\x80\x9d), recommending that the\nDepartment decline to enter the relators\xe2\x80\x99 suit.\nGThis arrangement, by which the relator looks over our shoulder at trial, is precisely what Congress\nintended. A t trial, the relator is to act as \xe2\x80\x9ca check that the Government does not neglect evidence, cause\nundue delay, o r drop the false claims case without legitimate reason " S Rep No 345 at 26\n\n218\n\n\x0cfrom a relator\xe2\x80\x99s conduct, we must keep close track of these cases. Other\ndifficulties will also arise; for example, the Civil Division has informed us\nthat in one case a qui tam relator sought to depose a government investi\xc2\xad\ngator who had worked on a grand jury probe o f a contractor other than\nthe qui tam defendant.\nc. Judgment and settlement. Perhaps the most important interference\ncomes if we seek to settle a case. If we negotiate a settlement but the rela\xc2\xad\ntor objects, the court must determine whether the arrangement is \xe2\x80\x9cfair,\nadequate and just\xe2\x80\x9d under the circumstances \xe2\x80\x94 a judicial role that to our\nknowledge is unique.7 The perverse results this provision can have are\nreflected in the court\xe2\x80\x99s action in Gravitt v. General Electric Co., 680 F.\nSupp. 1162 (S.D. Ohio), cert, denied, 488 U.S. 901 (1988). In that case, a\nrelator claimed that General Electric had presented false statements to\nthe Defense Department. Many o f General Electric\xe2\x80\x99s records were indeed\nincorrect, but the inaccurate accounting system involved had resulted in\nnet undercharges to the Government. We negotiated a settlement under\nwhich Genera] Electric would pay a substantial penalty and waive its\ncounterclaims growing out o f the undercharges. The relator objected,\nand the district court refused to accept the settlement, lecturing us on the\ninadequacy o f our investigation into the matter, even though the Defense\nDepartment was already quite familiar with the situation.8 A few years\nlater, we succeeded in settling for the original figure.\nWhere we do not enter a qui tam action, the relator either litigates the\ncase to judgment, which binds the United States, S. Rep. No. 345 at 27, or\nsettles it, likewise binding the Government. This may be quite significant.\nFor one thing, a qui tam relator, who has no enforcement interest, may\nallege far more corruption than he can prove. Even if that corruption\nwere real, if the relator could not prove it, a judgment against him on\nthose issues would bar us from acting later. In addition, relators such as\ndischarged employees may bring a qui tam count in conjunction with pri\xc2\xad\nvate causes o f action. To settle the private claims, the relator may have\nan incentive to trade the qui tam elements, since he receives only a frac\xc2\xad\n\n7 Even the Tunney Act, 15 U.S.C. \xc2\xa7 16(e), which subjects antitrust consent decrees to judicial review as\nto the public interest, does not apply to settlements, which heretofore w ere entirely outside the court\xe2\x80\x99s\njurisdiction There are very senous doubts as to the constitutionality even o f the Tunney Act it intrudes\ninto the executive power and requires the courts to decide upon the public interest \xe2\x80\x94 that is, to exercise\na policy discretion normally reserved to the political branches Three Justices o f the Supreme Court\nquestioned the constitutionality o f the TXmney A ct in M ainland o. United States, 460 U.S 1001 (1983)\n(Rehnquist, J , join ed by Burger, C.J., and White, J , dissenting).\n8 In United States ex rel StillweU v Hughes Helicopters, In c , 714 F. Supp. 1084 (C D Cal 1989), the\ndefendant argued that the qui tam mechanism was unconstitutional on its face and pointed to the distnct\ncourt\xe2\x80\x99s conduct in Gravitt as an example o f an illicit transfer o f authority to the courts. The ju dge in\nStillweU, in upholding the qui tam provisions (which he presumed to be constitutional, since they had\n\nnot been challenged by the executive branch), replied that the G ravitt court\xe2\x80\x99s views o f our conduct w ere\nentirely reasonable Id. at 1092-93 n.8. This may indicate that in some qui tam cases the courts w ill not\nneed to second-guess our decision to settle, because they will be able to dispose o f the issue by secondguessing our investigative zeal\n\n219\n\n\x0ction o f any payment attributed to them. We must therefore carefully\nreview every qui tam settlement and, if it is defective, try to persuade the\njudge to reject it.\nMoreover, the collateral effects may go beyond barring further False\nClaims Act litigation. In United States v. Halper, 490 U.S. 435 (1989), the\nSupreme Court held that civil penalties under the False Claims Act can\nrepresent punishment for purposes o f the Double Jeopardy Clause. The\nCourt specifically left open the question whether a qui tam suit qualifies\nas a suit by the Government for these purposes. Id. at 451 n .ll. If it does,\nwe may be foreclosed by the relator from bringing subsequent criminal\nprosecutions.9\n2. The Government as Contractor\nTransfer o f control over the Government\xe2\x80\x99s litigation to private persons\naffects not only our litigation function, but every aspect o f the\nGovernment\xe2\x80\x99s work that can be implicated in a suit under the False\nClaims Act. Any Government contract can give rise to a False Claims Act\naction. For that reason, every routine decision that an agency makes as a\ncontracting party is now subject to the relator\xe2\x80\x99s influence.\nAny complex contract naturally will produce issues o f construction\nbetween the parties. In the case o f Government contracts, the agency\nconcerned must decide whether contract deviations constitute a breach,\nand sometimes whether a breach amounts to fraud. In making these deci\xc2\xad\nsions, it is frequently in the Government\xe2\x80\x99s interest, as it would be in the\ninterest o f any contracting party, to avoid excessive concern over minor\nfailings that might threaten a useful course o f dealing with the other\nparty. In the Government\xe2\x80\x99s case, especially, the agency must carefully\nconsider such matters where the contract involves important military or\nnational security matters, particularly if there are a limited number o f\nqualified contractors, or the contractor\xe2\x80\x99s performance otherwise has\nbeen adequate or even excellent.\nUnder the 1986 Amendments, however, all such policy decisions poten\xc2\xad\ntially are thrown into the public forum. Relators who have no interest in\nthe smooth execution of the Government\xe2\x80\x99s work have a strong dollar\nstake in alleging fraud whether or not it exists. The possibility o f a qui\ntam suit will therefore lead to a hardening o f positions by the Govern\xc2\xad\nment and the contractor: the contractor must be certain not to be too can\xc2\xad\ndid, while the Government must be scrupulous about even its least sig\xc2\xad\nnificant rights, in order to avoid later second-guessing by a relator and a\ncourt. The ripple effects of qui tam in the Government\xe2\x80\x99s contracting flex\xc2\xad\nibility thus could be enormous.\n\n9 Th ere will also be the nice question o f when jeopardy attaches in a False Claims A ct suit\n\n220\n\n\x0cIII. QUI TAM SUITS ARE UNCONSTITUTIONAL\nA. Appointments Clause Violation\n\nWe believe that qui tam suits brought by private parties to enforce the\nclaims o f the United States plainly violate the Appointments Clause o f the\nConstitution. Art. II, \xc2\xa7 2, cl. 2. The Supreme Court has made clear that\nexercises o f significant governmental power must be carried out by\n\xe2\x80\x9cOfficers o f the United States,\xe2\x80\x9d duly appointed under the Appointments\nClause. E.g., Morrison v. Olson, 487 U.S. 654, 670-77 (1988); Buckley v.\nValeo, 424 U.S. 1 (1976). It is well established that \xe2\x80\x9cconducting civil liti\xc2\xad\ngation in the courts o f the United States for vindicating public rights\xe2\x80\x9d is\nat the core o f executive power and \xe2\x80\x9cmay be discharged only by persons\nwho are \xe2\x80\x98Officers o f the United States.\xe2\x80\x99\xe2\x80\x9d Id. at 140 (emphasis added). See\nalso United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888) (the\nAttorney General \xe2\x80\x9cis undoubtedly the officer who has charge o f the insti\xc2\xad\ntution and conduct o f the pleas o f the United States, and o f the litigation\nwhich is necessary to establish the rights o f the government\xe2\x80\x9d);\nConfiscation Cases, 74 U.S. (7 Wall.) 454, 458-59 (1868) ( \xe2\x80\x9c [S]o far as the\ninterests o f the United States are concerned, [all suits] are subject to the\ndirection, and within the control of, the Attorney-General.\xe2\x80\x9d).\nThe Supreme Court has, to date, steadfastly adhered to the require\xc2\xad\nments of the Appointments Clause. See Public Citizen v. Department of\nJustice, 491 U.S. 440, 482-89 (1989) (Kennedy, J., concurring)\n(Appointments Clause must be strictly applied; no \xe2\x80\x9cbalancing\xe2\x80\x9d where a\npower has been committed to a particular Branch o f the Government in\nthe text o f the Constitution). Even in Morrison v. Olson, the Court insist\xc2\xad\ned on strict compliance with the Clause\xe2\x80\x99s terms, upholding the use o f spe\xc2\xad\ncial prosecutors only after concluding that (i) the prosecutors were \xe2\x80\x9cinfe\xc2\xad\nrior\xe2\x80\x9d officers, (ii) they were duly appointed by a \xe2\x80\x9cCourt o f Law\xe2\x80\x9d in\naccordance with the Appointments Clause, and (iii) they remained subject\nto sufficient executive control in the initiation and prosecution o f cases.\nIn Buckley, the Court held that Congress violated the Constitution\nwhen it attempted to vest civil litigation authority in a commission whose\nmembers had not been duly appointed under the Appointments Clause.\nThe Court said that \xe2\x80\x9c [a] lawsuit is the ultimate remedy for a breach o f the\nlaw, and it is to the President, and not to the Congress, that the\nConstitution entrusts the responsibility to \xe2\x80\x98take Care that the Laws be\nfaithfully executed.\xe2\x80\x99\xe2\x80\x9d 424 U.S. at 138. The qui tam provisions in the False\nClaims Act are equally unconstitutional. Qui tam relators are not appoint\xc2\xad\ned in any o f the ways prescribed by the Appointments Clause and hold no\ncommission under the United States. Yet these relators exercise signifi\xc2\xad\ncant governmental authority by suing to enforce the rights o f the United\nStates in the name o f the United States. Just as Congress cannot vest lit\xc2\xad\nigation authority in commission members who have not been duly\n221\n\n\x0cappointed, it cannot vest such litigation authority in self- selected private\nbounty hunters who operate without accountability and without commit\xc2\xad\nment to the United States\xe2\x80\x99 interests.\nThere can be no doubt that qui tam relators are exercising significant\ngovernmental power. Private relators are empowered to level fraud\ncharges against other private citizens and hail them into court to answer\nfor these alleged public offenses, with the possibility o f collecting not\nonly damages but substantial civil penalties. In so doing, the relators are\nempowered to overrule the judgment o f executive officials as to whether\nthe contractor has, in fact, committed fraud and whether it is appropriate\nunder the circumstances to prosecute the Government\xe2\x80\x99s claim. Where the\nAttorney General determines not to proceed with a suit, the relator is\nempowered to prosecute the suit in the Government\xe2\x80\x99s name, controlling\nall aspects o f the litigation and binding the United States by the judgment.\nI f the Attorney General later decides to intervene, the relator remains in\ncontrol. Even if the Attorney General enters the suit at the outset, the\nrelator remains a party and is empowered to challenge not only the liti\xc2\xad\ngation judgments o f the Government but also any attempt to dismiss or\nsettle the case.\nIt is also beyond dispute that the claim the relator litigates is that o f the\nUnited States. Qui tam relators historically were understood to be suing\nin a representative capacity. They were viewed as standing in the shoes\no f the Government and suing on behalf o f the Government to enforce the\nrights o f the Government. Note, The History and Development o f Qui\nTam, 1972 Wash. U.L.Q. 81,83-84 ( \xe2\x80\x9cWashington University Note\xe2\x80\x9d). The qui\ntam provisions in the False Claims Act are based precisely on that\npremise. The Act provides that one who files a false claim \xe2\x80\x9cis liable to the\nUnited States Government for a civil penalty ..., plus 3 times the amount\no f damages which the Government sustains.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 3729(a) (empha\xc2\xad\nsis added). In authorizing qui tam suits, the Act provides that the suit\nshall be brought \xe2\x80\x9cfo r the United States Government" and \xe2\x80\x9cin the name of\nthe Government." Id. \xc2\xa7 3730(b)(1) (emphasis added).\nThe history o f the False Claims Act demonstrates that the Act has\nalways been understood to be what it seems to be: an authorization for\nprivate persons to bring suits on behalf o f the Government. Speaking in\nsupport o f the Act when it was adopted, Senator Howard explained that\nit was necessary to deal \xe2\x80\x9cspeedy and exemplary justice\xe2\x80\x9d to \xe2\x80\x9cthe knave and\nthe rogue\xe2\x80\x9d who committed war fraud against \xe2\x80\x9cthe Government, who is\nthe real sufferer in all cases.\xe2\x80\x9d S. Rep. No. 291, 78th Cong., 1st Sess. (1943)\n(quoting 1863 debates).\nSimilarly, the discussions in 1943, when Congress considered eliminating\nthe qui tam action altogether, leave no doubt as to the nature o f a qui tam\naction. Speaking in defense o f the mechanism, Senator Murray, after com\xc2\xad\nplaining about the Department o f Justice\xe2\x80\x99s failure to prosecute antitrust\ncases, said that \xe2\x80\x9cif a fraud has been perpetrated ... and the Attorney\n222\n\n\x0cGeneral is failing to take advantage o f [evidence of it], any private citizen\nin the United States should be entitled to bring up the case in court." 89\nCong. Rec. 7575 (1943) (emphasis added). In a like vein, Senator\nRevercomb asked, \xe2\x80\x9c[w]hat harm can be done by saying to the Department\no f Justice, \xe2\x80\x98If you do not perform your duty some citizen o f this country is\ngoing to rise and perform it for you?\xe2\x80\x99 \xe2\x80\x9d 89 Cong. Rec. 7598 (1943).\nThe 1986 debates reflect the same understanding. Speaking in the\nHouse, Representative Brooks gave a straightforward explanation o f qui\ntam: \xe2\x80\x9cThe False Claims Act contains provisions which allow citizens to\nbring suits for false claims on behalf o f the Government.\xe2\x80\x9d 132 Cong. Rec.\n22,336 (1986). Representative Bedell described the statute as giving\ninformers \xe2\x80\x9cstanding to bring suit ... on behalf o f the Government.\xe2\x80\x9d 132\nCong. Rec. 22,340 (1986). Senator Grassley, the main force in the Senate\nbehind the 1986 Amendments, explained that the \xe2\x80\x9cFalse Claims Act\nallows an individual knowing o f fraud[] ... to bring suit on behalf o f the\ngovernment....\xe2\x80\x9d 131 Cong. Rec. 22,322 (1985). In perhaps the most telling\ndescription, Representative Berman, one o f the bill\xe2\x80\x99s principal drafters,\noffered the following statement: \xe2\x80\x9c [T]his is precisely what this law is\nintended to do: deputize ready and [willing] people ... to bring to justice\nthose contractors who overcharge the government.\xe2\x80\x9d 132 Cong. Rec.\n29,322 (1986).\nIndeed, the Solicitor General appears to concede that the qui tam\ndevice violates the Appointments Clause to the extent a qui tam relator is\nsuing in a representative capacity. Taranto Memo at 8. To surmount this\nconstitutional barrier, the Solicitor General argues that a qui tam action\nis not a suit based on the government\xe2\x80\x99s claim but is really a private suit\nbased on the relator\xe2\x80\x99s private cause o f action for the contingent monetary\naward Congress offered for successfully litigating the suit. The Solicitor\nGeneral thus would argue that, when the relator prosecutes a case, he is\nnot exercising governmental authority, but merely litigating his own pri\xc2\xad\nvate claim. The Solicitor General suggests an analogy to private antitrust\nactions or private title VII actions where both the private party and the\ngovernment can bring substantially identical suits. Id.\nThis argument is untenable because it flatly contradicts the history o f\nqui tam actions, the language and structure o f the False Claims Act, and\nthe Act\xe2\x80\x99s legislative history. All o f these sources make abundantly clear\nthat the relator is suing in a representative capacity to enforce the claim\no f the United States and that his statutory award is not relief for ir\\jury\nsuffered, but a reward for his services. See supra pp. 215, 222-23.\nIn antitrust and title VII actions, the private plaintiff alleges that the\ndefendant\xe2\x80\x99s conduct has invaded his personal legal rights, causing him\ndirect injury. The title VII plaintiff claims that he has been personally\nharmed by discriminatory practices. The antitrust plaintiff claims that he\nhas been economically harmed by a price-fixer\xe2\x80\x99s illegal conduct. Such pri\xc2\xad\nvate plaintiffs have their own independent causes o f action to redress\n223\n\n\x0cthese invasions o f their rights, which incidentally vindicate the public\ninterest. Under the False Claims Act, however, the government is the only\nparty who has suffered iryury as a result o f the contractor\xe2\x80\x99s alleged fraud.\nThus, the relator\xe2\x80\x99s suit under the False Claims Act vindicates the ir\\jury to\nthe government and that iiyury alone.\nIt is clear that the real party in interest represented by the relator is the\ngovernment, because the relator\xe2\x80\x99s suit binds the United States by res judi\xc2\xad\ncata.10 Even when the Attorney General does not participate in the suit,\nany judgment or settlement obtained by the relator has preclusive effect\non the United States. In this respect, qui tam actions differ fundamental\xc2\xad\nly from the private lawsuits cited by the Solicitor General, and indeed\nfrom all \xe2\x80\x9cprivate attorneys general\xe2\x80\x9d suits. These private actions do not\nbind the United States because the real plaintiff is the individual suing on\nhis own independent claim. See, e.g., Sam Fox Publishing Co. v. United\nStates, 366 U.S. 683, 690 (1961) ( \xe2\x80\x9cthe Government is not bound by private\nantitrust litigation to which it is a stranger\xe2\x80\x9d). In a qui tam action, howev\xc2\xad\ner, the relator is not really acting in a private capacity, but rather is stand\xc2\xad\ning in the government\xe2\x80\x99s shoes and is prosecuting the United States\xe2\x80\x99 claim.\nThe Solicitor General\xe2\x80\x99s argument that the relator is merely prosecuting\nhis own private claim ultimately fails because it runs headlong into an\nArticle III standing problem. As discussed below, the relator, especially\nwhen suing only in his personal capacity, has no \xe2\x80\x9ccase or controversy\xe2\x80\x9d to\npresent to the court because he can show no \xe2\x80\x9ciryury in fact\xe2\x80\x9d as a result of\nthe contractor\xe2\x80\x99s alleged fraud.\nB. Article I I I Standing\n\nPrivate qui tam actions violate the well-settled doctrine o f Article III\nstanding. The keystone of this modem standing doctrine, which has been\ncarefully refined by the Supreme Court over the past 20 years, is the con\xc2\xad\nstitutional requirement of \xe2\x80\x9ciryury in fact.\xe2\x80\x9d The Supreme Court has repeat\xc2\xad\nedly held that, at an \xe2\x80\x9cirreducible minimum,\xe2\x80\x9d Article III requires a plaintiff\nin federal court to demonstrate that:\n(1 )\n(2)\ndant;\n(3)\n\nhe personally has suffered some actual or threatened iryury;\nthe iryury was caused by the putatively illegal conduct o f the defen\xc2\xad\nand\nthe relief sought likely w ill redress the iryury.\n\nE.g., Valley Forge Christian Colleqe v. Americans United fo r Separation\no f Church & State, Inc., 454 U.S. 464, 482-83 (1982); Gladstone Realtors\nv. Village of Bellwood, 441 U.S. 91, 99 (1979); Simon v. Eastern Ky.\nWelfare Rights Org., 426 U.S. 26, 38, 41 (1976).\n10 See su p ra p. 215-16.\n\n224\n\n\x0cA plaintiff cannot rely solely on abstract iryury or generalized griev\xc2\xad\nances shared by all citizens and taxpayers to establish standing. Allen v.\nWright, 468 U.S. 737, 754 (1984); Valley Forge, 454 U.S. at 482-83. If the\nplaintiff himself has not suffered particularized harm that is \xe2\x80\x9cdistinct and\npalpable,\xe2\x80\x9d Schlesinger v. Reservists Comm, to Stop the War, 418 U.S. 208,\n221 (1974), there is no case or controversy under Article III. See, e.g.,\nWorth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727\n(1972). Under these well-established principles, qui tam suits are plainly\nunconstitutional to the extent they purport to be private actions because\nthe relator has suffered no personal \xe2\x80\x9cinjury in fact\xe2\x80\x9d as a result o f the con\xc2\xad\ntractor\xe2\x80\x99s alleged fraud.\nThe Solicitor General argues that the relator\xe2\x80\x99s prospect o f receiving a\nbounty is enough to satisfy Article III standing requirements. It is clear,\nhowever, that the mere expectation o f a reward cannot be characterized\nunder established Supreme Court precedent as an \xe2\x80\x9cir\\jury\xe2\x80\x9d o f any kind.11\nThe only party who suffers iryury as a result o f the contractor\xe2\x80\x99s false\nclaims is the government. The relator simply seeks to stand in the gov\xc2\xad\nernment\xe2\x80\x99s shoes to sue for an invasion o f the government\xe2\x80\x99s rights. The\nmonetary payment he seeks is not judicial relief to redress his iryury, but\na reward for bringing the case. Mere financial incentive to bring the suit\ndoes not satisfy the constitutional standard.\nThe Supreme Court has expressly rejected this argument in Diamond\nv. Charles, 476 U.S. 54 (1986). There, a physician argued that he had\nstanding to continue defending an abortion statute because the trial court\nhad already awarded attorneys\xe2\x80\x99 fees against him. Only he was left to\ndefend the statute, and only by vindicating the statute could he avoid pay\xc2\xad\ning the fees. Although the Court recognized that the physician had a\nfinancial stake in the outcome o f the litigation, it held that financial inter\xc2\xad\nest alone is not sufficient to confer standing. Id. at 69-70. Citing Valley\nForge to stress that the plaintiff\xe2\x80\x99s iryury must be a \xe2\x80\x9cresult o f the putatively illegal conduct,\xe2\x80\x9d the Court stated that \xe2\x80\x9cArt. Ill standing requires an\niryury with a nexus to the substantive character\xe2\x80\x9d o f the underlying claim;\nan interest that is merely \xe2\x80\x9ca byproduct o f the suit\xe2\x80\x9d is not sufficient. Id. at\n70-71. Just as an attorney with a contingency fee arrangement does not\n\n11\n\nThis view is supported by tw o Supreme Court cases holding that an informer\xe2\x80\x99s prospective interest\n\nin his reward does not give him a judicially cognizable interest sufficient to allow him to intervene m a\ncase being prosecuted by the government In both cases, the statute at issue gave the informer a share\no f the proceeds o f the governm ent\xe2\x80\x99s recovery, but did not authorize direct suit by the informer In Un ited\nStates v. M o m s , 23 U S (10 W h eat) 246 (1825), the Court ruled that customs officers who had a nght to\n\na share o f forfeited property as a reward had no right to intervene in the forfeiture proceeding to prevent\nthe United States from remitting the property to the ow ner The Court ruled that\nlt]he forfeiture is to the United States, and must be sued for in the name o f the United States.\nIn all this, [the collector] acts as [an] agent o f the government, and subject to the authori\xc2\xad\nty o f the secretary o f the treasury, who may direct the prosecution to cease\n. [T]he nght [o f\nthe customs officer] does not become fixed, until the receipt o f the money by the collector\nId. at 290 Accord C onfiscation Cases, 74 U S. (7 Wall ) 454 (1868) (follow in g M o rris ).\n\n225\n\n\x0chave standing on his own to pursue his client\xe2\x80\x99s claim, the relator does not\nhave standing to pursue his claim for a share o f the False Claims Act dam\xc2\xad\nages. The monetary recovery must be directed at redressing an injury suf\xc2\xad\nfered by the plaintiff as the result o f the invasion o f a substantive legal\nright. As the Assistant to the Solicitor General observes, Diamond v.\nCharles is consistent with:\ncase or controversy law generally [which] requires that\nthere be a legal dispute \xe2\x80\x94 and that the plaintiff have a claim\no f legal right and the defendant an alleged legal duty to the\nplaintiff \xe2\x80\x94 that precedes and is independent o f the lawsuit\nitself.\nTaranto Memo at 4.\nNor does the fact that Congress has specifically authorized uniryured\npersons to bring qui tam actions in any way cure the Article III deficien\xc2\xad\ncy. Congress is bound by Article Ill\xe2\x80\x99s \xe2\x80\x9ccase or controversy\xe2\x80\x9d restriction on\njudicial power and cannot abolish the constitutional requirement o f\n\xe2\x80\x9cinjury in fact.\xe2\x80\x9d Congress cannot confer standing on persons who fail to\nmeet that test.\nCongress can, o f course, enact statutes creating new substantive legal\nrights, the invasion o f which can give rise to the kind o f particularized\ninjury necessary to create standing. See Linda R.S. v. Richard D., 410\nU.S. 614, 617 n.3 (1973). In no event, however, \xe2\x80\x9cmay Congress abrogate\nthe Art. Ill minima: plaintiff must always have suffered \xe2\x80\x98a distinct and pal\xc2\xad\npable iryury to himself... that is likely to be redressed if the requested\nrelief is granted.\xe2\x80\x9d Gladstone, Realtors v. Village o f Bellwood, 441 U.S. at\n100. In enacting the qui tam provisions o f the False Claims Act, however,\nCongress has not created any substantive legal right for qui tam plaintiffs\nthe invasion o f which creates Article III iryury. Those qui tam provisions\nsimply permit the relator to sue on behalf o f the United States, whose\nsubstantive rights have been genuinely invaded. As the words o f the\nstatute make clear, a qui tam suit is an action brought to recover \xe2\x80\x9cdam\xc2\xad\nages which the Government sustains because o f the [contractor\xe2\x80\x99s fraud\xc2\xad\nulent] act.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 3729(a) (emphasis added).\nQui tam suits thus differ fundamentally from \xe2\x80\x9cprivate attorneys gener\xc2\xad\nal\xe2\x80\x9d suits or citizens\xe2\x80\x99 suit provisions in other statutes. The Supreme Court\nhas strictly adhered to the \xe2\x80\x9cinjury in fact\xe2\x80\x9d requirement in interpreting\nthose statutes, holding that only those who can demonstrate their own\npersonal iryury from the claimed illegal conduct are allowed standing to\nsue to protect the public interest in coryunction with their own. See. e.g.,\nMiddlesex County Sewerage Auth. v. National Sea Clammers A ss\xe2\x80\x99n, 453\nU.S. 1, 16 (1981); Sierra Club v. Morton, 405 U.S. at 737 ( \xe2\x80\x9c [I]r\\jury is what\ngives a person standing to seek judicial review ..., but once review is\nproperly invoked, that person may argue the public interest in support o f\n226\n\n\x0chis claim.... It is in [this] sense that we have used the phrase \xe2\x80\x98private\nattorney general.\xe2\x80\x99\xe2\x80\x9d). Qui tam suits also differ from those cases in which\nthe Supreme Court has permitted litigants to raise the rights o f others\nunder so-called jus tertii or \xe2\x80\x9cthird party\xe2\x80\x9d standing. In those cases, the\nCourt has strictly adhered to the \xe2\x80\x9ciryury in fact\xe2\x80\x9d requirement, allowing a\nplaintiff to assert the rights o f third parties only if the plaintiff showed\nthat the challenged action also iryured him. See Craig v. Boren, 429 U.S.\n190, 192-97 (1976); Charles A. Wright, TheLaiv of Federal Courts 72 (4th\ned. 1983).\nSignificantly, the Solicitor General\xe2\x80\x99s own office cannot agree on\nwhether the mere prospect o f a bounty is sufficient to create standing.\nThe Deputy Solicitor \xe2\x80\x9ccounsel [s] against\xe2\x80\x9d making such an argument\nbecause: (1) \xe2\x80\x9cit cannot be reconciled with recent Supreme Court deci\xc2\xad\nsions\xe2\x80\x9d; (2) it cannot \xe2\x80\x9caccount for the requirement o f redressability which\nthe Court has stressed in recent decisions\xe2\x80\x9d; and (3) it \xe2\x80\x9cwould be in some\ntension with our usual posture [in standing cases], which has generally\nbeen to insist on a formalistic, corrective-justice type model o f standing.\xe2\x80\x9d\nMemorandum for the Acting Solicitor General, from Thomas Merrill,\nDeputy Solicitor General at 3 (Apr. 5, 1989). The Assistant to the Solicitor\nGeneral admits that the standing issue is \xe2\x80\x9cclose\xe2\x80\x9d and \xe2\x80\x9cthe hardest ques\xc2\xad\ntion\xe2\x80\x9d and that the bounty theory \xe2\x80\x9cstands in uneasy relation to prevailing\nprinciples o f standing.\xe2\x80\x9d Taranto Memo at 3 n.l.\nTo surmount qui tarn\xe2\x80\x99s obvious conflict with established standing doc\xc2\xad\ntrine, the Solicitor General proposes to argue that qui tam actions must\nbe recognized as \xe2\x80\x9ccases or controversies\xe2\x80\x9d within the meaning of Article\nIII because they were known in England prior to the Revolution and seem\nto have been used to a limited degree in the early years o f the Republic.\nThis historical argument is fundamentally flawed in several respects.12\nFirst, the status o f historical qui tam actions as cases or controver\xc2\xad\nsies is irrelevant to the validity o f the Solicitor General\xe2\x80\x99s proposed\nreformulation o f qui tam as a truly private suit by the Telator. Qui tam\nas it existed at the time o f the framing involved actions in which the\nrelator sued in a representative capacity to enforce a public penalty on\nbehalf o f the government. See, e.g., Act o f Mar. 1, 1790, ch. 2, \xc2\xa7 3, 1 Stat.\nat 102 (authorizing informers to collect penalties for official miscon\xc2\xad\nduct under Census Act). Although it may have violated separation o f\npowers, such an action at least presented a case or controversy\nbecause the real party in interest \xe2\x80\x94 the government \xe2\x80\x94 had suffered an\ninjury and thus had a cognizable claim. But it is mere sleight-of-hand to\nsuggest that if qui tam in this sense was necessarily a case or contro\xc2\xad\nversy, so is qui tam in the very different sense proposed by the Solicitor\n\n12 This histoneal argument concerns the status o f qui tam actions as cases or controversies We discuss\nbelow, see infra, at pp. 232-38, the broader claim that history validates qui tam whether or not it can be\naccommodated to any particular constitutional principle, such as the requirements o f Article III\n\n227\n\n\x0cGeneral, in which a relator w ho has not been injured sues for himself,\nnot the government.\nNext, it is far from clear that the Framers, had they examined the mat\xc2\xad\nter, would have concluded that qui tam as they knew it satisfied the case\nor controversy requirement. There is certainly no direct evidence that\nthey thought so. Indeed, qui tam statutes that permitted an uninjured\ninformer to sue, and actions brought by such informers, apparently were\nboth fairly rare. Many statutes seem to have contemplated \xe2\x80\x94 and almost\nall suits actually brought seem to have been \xe2\x80\x94 actions either by public\nofficials or injured parties.13 Qui tam actions brought by pure informers\nthus probably would not have seemed a commonplace thing for the\nFramers, and we cannot assume that they would have thought that\nArticle III had to bend to such actions.\nFinally, the argument that anything that could go into court in 1787\nmust be a case or controversy has unacceptable consequences. At com\xc2\xad\nmon law, the writs o f prohibition, certiorari, quo warranto, and man\xc2\xad\ndamus all were available to \xe2\x80\x9cstrangers\xe2\x80\x9d who had no personal interest or\niryury in fact. See, e.g., Raoul Berger, Standing to Sue in Public Actions:\nIs it a Constitutional Requirement? 78 Yale L.J. 816, 819-25 (1969); Louis\nL. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L.\nRev. 1265, 1269-71 (1961). But both mandamus and quo warranto are\nactions brought to challenge the conduct o f government officials. Under\nthe Solicitor General\xe2\x80\x99s regime, any person could use these writs to chal\xc2\xad\nlenge or compel government action wholly unrelated to the person using\nthe writ. The implications o f this position are staggering.\nIn any event, the Solicitor General\xe2\x80\x99s historical argument proves too\nmuch. If this view were accepted, it would mean that Congress could cre\xc2\xad\nate universal standing simply by attaching a penalty to the violation o f\nany law and offering any person who sues a right to share in the pro\xc2\xad\nceeds. This would privatize the Executive power, allowing any private\nperson to enforce the law against any other, while opening up the deci\xc2\xad\nsions by the Executive to unprecedented interference. For example,\nCongress could enforce its restrictions on the President\xe2\x80\x99s conduct o f for\xc2\xad\neign policy (such as the Boland Amendment) through qui tam actions. All\nexecutive actions would be subject to judicial review at the instance o f\nany intermeddler, and the limits on the federal judicial power would be\nset by Congress, not the Constitution.\nC. Encroachment on Executive Powers\n\nThe President\xe2\x80\x99s power to execute the laws includes two aspects o f\n13\n\nWe are aware o f only one statistical survey o f qui tam actions in America. That survey reflects that\n\non the eve o f the Revolution, o f 70 inform er suits brought under the navigation laws, 67 w ere brought by\ngovernm ent officials, and only 1 was brought by an informer who appeared to have no u\\jury o f his own\nto redress. Lawrence A. Harper, The E n g lish N a vig a tio n L a w s 170 (1939).\n\n228\n\n\x0cauthority that are important here: the discretion to decide whether to\nprosecute a claim, and the control o f litigation brought to enforce the\ngovernment\xe2\x80\x99s interests. The qui tam provisions infringe on both. First, the\nprovisions permit a private citizen to sue on behalf o f the government,\neven though the Attorney General may have decided for legitimate rea\xc2\xad\nsons not to prosecute the claim. This power removes from the executive\nbranch the prosecutorial discretion that is at the heart o f the President\xe2\x80\x99s\npower to execute the laws. Second, the qui tam provisions vest in the\nrelator a voice in crucial litigation decisions, even if the Attorney General\ndecides to enter the suit. The Attorney General may not move to dismiss\nthe suit, settle the action, or restrict the relator\xe2\x80\x99s participation except by\npermission o f the court. See 31 U.S.C. \xc2\xa7 3730(c). The court also decides\nwhether discovery may be stayed to prevent interference with ongoing\ncivil or criminal investigations. Id. These provisions vest core executive\npower in the judicial branch. Moreover, in suits in which the Attorney\nGeneral declines to participate, the relator exercises full sway over the\ncourse of the government\xe2\x80\x99s litigation interests. The Attorney General can\nneither remove the relator from his \xe2\x80\x9coffice\xe2\x80\x9d nor instruct him how to rep\xc2\xad\nresent the government\xe2\x80\x99s interests.\nThis transfer by Congress o f executive power away from the President\nto the relator and the court is impermissible even under the Supreme\nCourt\xe2\x80\x99s most lenient standard forjudging threats to separation o f powers.\nIn Morrison v. Olson, the Court held that restrictions on the Executive\xe2\x80\x99s\npower to supervise and remove an independent counsel did not violate\nseparation o f powers principles, but only because the Attorney General\nretained \xe2\x80\x9csufficient control over the independent counsel to ensure that\nthe President is able to perform his constitutionally assigned duties.\xe2\x80\x9d 487\nU.S. at 696. In upholding the independent counsel statute, the Court\nstressed four aspects o f executive control. First, the Attorney General\nhas control over initiation o f prosecutions because he retains the \xe2\x80\x9cunreviewable discretion\xe2\x80\x9d to decline to request the appointment o f an inde\xc2\xad\npendent counsel. See id. at 695-96. Second, the Attorney General controls\nthe breadth o f the independent counsel\xe2\x80\x99s investigation because it is he\nwho provides the statement o f facts upon which the special court sets the\ncounsel\xe2\x80\x99s jurisdiction. Third, the Attorney General retains the power to\nremove the independent counsel for \xe2\x80\x9cgood cause\xe2\x80\x9d and thus has \xe2\x80\x9cample\nauthority\xe2\x80\x9d to ensure that the counsel is properly fulfilling his duties. Id.\nat 696. Fourth, the Act expressly requires that, once appointed, the inde\xc2\xad\npendent counsel must comply with Justice Department policy unless it\nwould be impossible to do so. See id.\nThe Court\xe2\x80\x99s analysis in Morrison highlights the unconstitutionality o f\nthe qui tam provisions. In contrast to the independent counsel statute,\nunder the qui tam provisions the Attorney General loses all control over\nthe decision whether to initiate a suit. Even where the Attorney General\ndetermines that initiating a suit is not warranted, the qui tam relator is\n229\n\n\x0cempowered to override his judgment and initiate the fraud action. When\nthe Attorney General concludes that proceeding with a suit is not merited\nor otherwise not in the United States\xe2\x80\x99 interests, the fraud action neverthe\xc2\xad\nless goes forward in the government\xe2\x80\x99s name, under the complete control\no f the self-interested relator. The Attorney General has no control over the\nbreadth o f the suit. He has no pow er to remove the relator no matter how\nirresponsible his suit becomes. He has no power to require the relator to\nadhere to the rules and policies o f the Department o f Justice, despite the\nfact that the relator is suing in the name o f the United States.14\nFurther, if the Attorney General does not enter the suit within the first\nsixty days, his ability later to assert the interests o f the United States are\nsharply curtailed. He cannot intervene unless he persuades the court that\n\xe2\x80\x9cgood cause\xe2\x80\x9d exists. Even then, the private relator still has \xe2\x80\x9cthe right to\nconduct the action,\xe2\x80\x9d and the court may not \xe2\x80\x9climit[] [his] status and\nrights.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 3730(c)(3). Moreover, even where the Attorney\nGeneral does enter the case during the first sixty days, he does not have\nthe right to take over the litigation. The relator remains a full party enti\xc2\xad\ntled to participate in the case. Through his own conduct o f the case, the\nrelator effectively can overrule litigation decisions made by the Attorney\nGeneral, and he is specifically empowered to challenge any effort by the\ngovernment to settle or dismiss the suit. When a dispute arises between\nthe Attorney General and the relator, the ultimate decision is left to the\ndiscretion o f the court.\nThere is another fundamental difference between the qui tam provisions\nand the independent counsel statute. The independent counsel device was\nintended to address a narrow\xe2\x80\x9cstructural problem \xe2\x80\x94 the perceived conflict\no f interest when the Attorney General is called upon to investigate crimi\xc2\xad\nnal wrongdoing by his close colleagues within the executive branch. The\nCourt accepted the independent counsel device as an appropriate means o f\ndealing with this intrabranch conflict. The device arguably does not undu\xc2\xad\nly encroach on executive power because its very purpose is to investigate\nimpermissible executive activity. Moreover, the device is narrowly tailored\nto achieve its purpose; it encroaches on the Executive only to the limited\nextent necessary to protect against a conflict o f interest, while retaining\nexecutive control consistent with that objective.\nBoth the premise o f the qui tam provisions and the means Congress has\nused to advance its goals are far more threatening to the executive\nbranch. The legislative history o f the 1986 Amendments shows that\nCongress was acting out o f generalized distrust of, and dissatisfaction\nwith, the way the executive branch was carrying out its law enforcement\nresponsibilities. Senator Grassley felt that \xe2\x80\x9cthe Government bureaucracy\n[was] ... unwilling to guard against or aggressively punish fraud.\xe2\x80\x9d 131\nCong. Rec. 22,322 (1985). Representative Berman was equally candid:\n14 See the general discussion o f the statute\xe2\x80\x99s provisions, supra pp. 215-17.\n\n230\n\n\x0che supported qui tam because he thought that \xe2\x80\x9cthe Department o f Justice\nhas not done an acceptable job o f prosecuting defense contractor fraud.\xe2\x80\x9d\n132 Cong. Rec. 22,339 (1986). Later in the debate, he explained that the\nrelator was being given full party status at trial \xe2\x80\x9cto keep pressure on the\nGovernment to pursue the case in a diligent fashion.\xe2\x80\x9d 132 Cong. Rec.\n29,322 (1986).15\nThe history o f qui tam thus confirms that it is not a narrowly focused\nmeasure designed to cure a structural defect within the executive branch.\nRather, Congress is simply attempting to substitute its judgment on how\nto execute the laws for that o f the President. More narrowly tailored\nmeans are available to fulfill the legitimate purpose o f enhancing enforce\xc2\xad\nment o f procurement fraud cases. Congress could provide greater\nresources and, to the extent it wanted to encourage informers, could pro\xc2\xad\nvide for simple bounties for their information without giving them the\nauthority to conduct the litigation.\nIn contrast, permitting Congress to choose its own private law\nenforcers violates separation o f powers and establishes a basis for gov\xc2\xad\nernance by tyranny. As Madison recognized, the legislative branch is the\nmost powerful, and hence, potentially the most dangerous to the separa\xc2\xad\ntion o f powers, because\nit can with the greater facility, mask under complicated and\nindirect measures, the encroachments which it makes on\nthe co-ordinate departments. It is not unfrequently a ques\xc2\xad\ntion o f real-nicety in legislative bodies, whether the opera\xc2\xad\ntion o f a particular measure, will, or will not extend beyond\nthe legislative sphere.\nThe Federalist No. 48, at 334 (James Madison) (Jacob E. Cooke ed. 1961).\nNo question o f \xe2\x80\x9creal-nicety\xe2\x80\x9d is involved here \xe2\x80\x94 in the qui tam provisions,\nCongress has extended its power far beyond the legislative sphere.\nWhere, as here, Congress has provided for its law to be enforced by its\nown deputies, the essence o f separation o f powers has been violated, for\n\xe2\x80\x9c\xe2\x80\x98[w]hen the legislative and executive powers are united in the same per\xc2\xad\nson or body,\xe2\x80\x99 ... \xe2\x80\x98there can be no liberty, because apprehensions may arise\nlest the same monarch or senate should enact tyrannical laws, to execute\nthem in a tyrannical manner.\xe2\x80\x99\xe2\x80\x9d The Federalist No. 47, at 326 (James\nMadison) (Jacob E. Cooke ed. 1961) (quoting Montesquieu).\nContrary to the Solicitor General\xe2\x80\x99s view, the Attorney General\xe2\x80\x99s right to\n15 The legislators who supported the 1986 Amendments w ere echoing those who, in 1943, defeated\nrepeal o f the False Claims Act\'s qui tam provisions An opponent o f qui tam, Senator Van Nuys, asked one\no f its friends, Senator Murray, whether he had \xe2\x80\x9csufficient confidence in the man who is a member o f the\nPresident\xe2\x80\x99s Cabinet, the Attorney General, to believe that he w ill conserve the best interests o f the pub\xc2\xad\nlic9\xe2\x80\x9d Senator Murray replied that \xe2\x80\x9c [w ]e have found that that cannot always be relied upon.\xe2\x80\x9d 89 Cong. Rec\n7575 (1943)\n\n231\n\n\x0cintervene and take over the case does not save the statute from violating\nseparation o f powers principles. The statute enables a private party with\nonly a mercenary interest in a case to force a suit to be brought, even\nthough the Attorney General already may have decided for legitimate pol\xc2\xad\nicy reasons not to prosecute. The Supreme Court has recognized that the\nExecutive has the exclusive authority to decide whether to prosecute a\ncase, United States v. Nixon, 418 U.S. 683, 693 (1974), because only a uni\xc2\xad\ntary executive properly can balance the competing interests at stake,\nincluding law enforcement, foreign affairs, national security, and the\noverriding interest in just administration o f the laws.\n\nIV. HISTORY DOES NOT VALIDATE QUI TAM\nIn the face o f qui tarn\xe2\x80\x99s admittedly \xe2\x80\x9cgrave dangers\xe2\x80\x9d to the President, the\nSolicitor General is prepared to disregard settled constitutional doctrine and\ndecades o f clear Supreme Court decisions in order to uphold the facial valid\xc2\xad\nity o f qui tam. He claims this fateful step is compelled by qui tarn\xe2\x80\x99s historical\nusage.16In fact, the historical argument is subject to decisive objections.\nTo begin with, the entire historical inquiry is essentially pointless, since\nthe version o f qui tam that the Solicitor General proposes to defend dif\xc2\xad\nfers essentially from qui tam as it existed in history. Whatever else may\nhave been true o f it, historical qui tam was a proceeding in which the rela\xc2\xad\ntor sued on behalf o f the government, and once the suit was brought,\nthere was no provision for government intervention. The Solicitor\nGeneral recognizes that this violates the Appointments Clause and would\nsubstitute for it a new regime under which the relator sues on his own\nbehalf and the government is entitled to enter the case. History does not\ncontain that regime, and therefore cannot be invoked to support it.\nMoreover, the historical argument fails on its own terms. We agree with\nthe Solicitor General that certain kinds o f constitutional questions will be\ninfluenced by certain kinds o f historical practices. But an examination o f\nthe Supreme Court\xe2\x80\x99s use of history demonstrates, not that history invari\xc2\xad\nably prevails, but that close questions where the application o f principle\nis unclear can be resolved by thoroughly considered, lonq-standing his\xc2\xad\ntorical practices that can be reconciled with doctrine. The constitution\xc2\xad\n\nality o f qui tam, however, is not a close question, and the use o f qui tam,\nfar from being ingrained in our legal institutions, has been marginal at\nmost. History cannot save qui tam.\nFirst, usage alone \xe2\x80\x94 regardless how longstanding and venerable \xe2\x80\x94\ncannot validate a practice that clearly violates constitutional principles.17\nIG That usage, which w e discuss more fu lly below, consists o f the existence o f qui tam in England and\nthe enactm ent by early Congresses o f a fe w qui tam provisions\n17 See, e.g., Walz v Tax C o m m \xe2\x80\x99n , 397 U.S. 664,678 (1970) ( \xe2\x80\x9cIt is obviously correct that no one acquires\na vested o r protected right in violation o f the Constitution by long use, even when that span o f time cov\xc2\xad\ners our entire national existence and indeed predates it.").\n\n232\n\n\x0cThe Constitution, not history, is the supreme law. The Court repeatedly\nhas stated that \xe2\x80\x9c [standing alone, historical [practice] cannot justify con\xc2\xad\ntemporary [constitutional] violations,\xe2\x80\x9d Marsh v. Chambers, 463 U.S. at\n790, even when the practice \xe2\x80\x9ccovers our entire national existence and\nindeed predates it.\xe2\x80\x9d Walz v. Tax Com m \xe2\x80\x99n, 397 U.S. at 678.\nQui tam is fundamentally irreconcilable with the doctrine o f standing\nunder Article III and the President\xe2\x80\x99s appointment powers and law\nenforcement functions under Article II. This is a case where, absent the\ninvocation o f history, there would be no question about the practice\xe2\x80\x99s\nunconstitutionality. The mere fact that the earliest congresses adopted a\npractice has never been enough to establish conclusively the practice\xe2\x80\x99s\nconstitutionality. Indeed, Marbury v. Madison, 5 U.S. (1 Cranch) 137\n(1803), struck down part o f the Judiciary Act o f 1789, a statute adopted\nby the First Congress. There are other examples o f actions taken by the\nFirst Congress that later became viewed as unconstitutional. See, e.g.,\nWallace v. Jaffree, 472 U.S. 38, 100 (1985) (Rehnquist, J., dissenting) (fed\xc2\xad\neral aid to sectarian schools viewed as unconstitutional despite grants o f\nsuch aid by First Congress); IN S v. Chadha, 462 U.S. 919, 982-84 n.18\n(1983) White, J., dissenting) (use by First Congress o f precursors to leg\xc2\xad\nislative veto held unconstitutional); H a ybu m \xe2\x80\x99s Case, 2 U.S. (2 Dali.) 409\n(1792) (declining to enforce First Congress statute giving courts non-judi\xc2\xad\ncial duties). Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964)\n( \xe2\x80\x9cbroad consensus\xe2\x80\x9d that Sedition Act o f 1798 was unconstitutional); Paul\nM. Bator, et. al., Hart & Wechsler\xe2\x80\x99s The Federal Courts and the Federal\nSystem 65-67 (3d ed. 1988) (describing request by Thomas Jefferson for\nSupreme Court advisory opinions that was .rejected as unconstitutional).\nLikewise, the same Congress that proposed the Fourteenth Amendment\nadopted a statute one week later reaffirming racial segregation o f public\nschools in Washington, D.C. See Marsh v. Chambers, 463 U.S. at 814 n.30\n(Brennan, J., dissenting).\nGiven qui tarn\xe2\x80\x99s basic conflict with the Constitution, we believe any\nargument to sustain qui tam based solely on prior practice must fail. We\nare unaware o f a single Supreme Court case that has upheld a past prac\xc2\xad\ntice that could not be reconciled with principle. On the contrary, the\nSupreme Court has recognized that long-standing practice does not insu\xc2\xad\nlate even its own errors from correction.18\nHistorical practice can influence close cases where the implications of\nprinciple are not clear. In such close cases, the authority o f a practice\ndepends mainly on three factors: (1) whether there is evidence the\nFramers actually considered the constitutional implications o f their\n18\n\nSee, eg ., Shaffer v. H eitn er, 433 U.S. 186 (1977) (overruling Pen n o y er v. N e ff 95 U.S 714 (1878));\n\nBrow n v Board o f Ed u c , 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896));\nGraves v. N ew York ex r e f O\'Keefe, 306 U.S 466 (1939) (overruling D obbin s v E rie C ounty, 41 U.S. (16\n\nP e t ) 435 (1842)), E rie R R v Tompkins, 304 U S 64 (1938) (overruling Sivift v . Tyson, 41 U S (16 Pet.)\n1 (1842)).\n\n233\n\n\x0cactions; (2) whether the practice is so longstanding and pervasive that it\nhas become \xe2\x80\x9cpart o f the fabric o f society;\xe2\x80\x9d and (3) whether the practice\ncan be reconciled with constitutional principles in a way that does not\nundermine settled doctrine. See, e.g., Young v. United States ex ref.\nVuitton et Fils S.A.; Marsh v. Chambers; Walz v. Tax Com m \xe2\x80\x99n. Even if\nthe constitutionality o f qui tam were a close question, however, the\nstatute could not satisfy these three factors.\nAs to the first factor, the Court noted in Marsh v. Chambers that the\nweight to be accorded the actions o f the First Congress depends on the\nextent to which the members actually reflected upon how the provisions\no f the new Constitution applied to the actions they were taking.\n\xe2\x80\x9c[E]vidence o f opposition to a measure ... infuses [the historical argu\xc2\xad\nment] with power by demonstrating that the subject was considered care\xc2\xad\nfully and the action not taken thoughtlessly, by force o f long tradition and\nwithout regard to the problems posed\xe2\x80\x9d by principles embodied in the new\nConstitution. 463 U.S. at 791.\nEarly qui tam statutes have all the hallmarks o f action \xe2\x80\x9cthoughtlessly\xe2\x80\x9d\ntaken. As far as we are aware, the historical record shows no evidence\nthat qui tarn\xe2\x80\x99s constitutional implications were discussed or considered.\nOn the contrary, because o f the unique historical contexts in which qui\ntam statutes were adopted, the device\xe2\x80\x99s incompatibility with executive\nlaw enforcement functions would not have been immediately apparent.\nQui tam simply did not bite hard enough for the Executive to recognize\nor resist it as a usurpation o f its authority. Moreover, we know that mem\xc2\xad\nbers o f the First Congress held erroneous assumptions about the extent\nto which, under the Constitution, English common law and its institu\xc2\xad\ntions had been carried over to the federal level of the United States.19The\nFirst Congress\xe2\x80\x99s early use o f qui tam appears to have been nothing more\nthan a manifestation of this initial confusion.\nAs to the second factor, the Court has relied on history to resolve bor\xc2\xad\nderline cases when the practice has been so pervasive as to become \xe2\x80\x9cpart\no f the fabric o f our society.\xe2\x80\x9d Id. at 792. A brief survey o f the history o f qui\ntam demonstrates that it is a marginal practice that could be eliminated\nwithout leaving a trace.\n19\n\nFor the first six years after the Constitution was adopted, virtually all persons who considered the\n\nissue believed that the Constitution permitted a federal comm on law o f crimes. See Stewart Jay, O i\'igin s\no f Federal C o m m o n L a w P a ri One , 133 U Pa L Rev 1003 (1985). The Framers presumably believed\nthis because it was a practice with which they w ere familiar at common law in Britain and in the states.\nTh e federal com m on law o f cnmes w as challenged only after a political dispute arose between the\nFederalist and Republican parties, which led the Republicans to begin to appreciate that the federal com \xc2\xad\nmon law o f crimes was inconsistent w ith the new Constitution\xe2\x80\x99s vesting o f the legislative power solely in\nCongress Thom as Jefferson, who had approved a comm on law prosecution, became a vigorous advo\xc2\xad\ncate o f the view that such prosecutions w ere unconstitutional Today, this is the conventional view o f the\nmatter. Indeed, it is worth noting that com m on law cnm es and qui tam involve complementary errors:\ncnm inal comm on law is inconsistent w ith Congress\xe2\x80\x99s legislative power, while qui tam is inconsistent with\nthe President\xe2\x80\x99s executive power. Both o f those exclusive vestings o f pow er w ere innovations introduced\nby the Constitution, the full implications o f which were only slowly perceived\n\n234\n\n\x0cIn name, qui tam originated at common law, but common law qui tam\n\xe2\x80\x94 which disappeared as early as the 14th century \xe2\x80\x94 required injury in\nfact. See Washington University Note, at 83-86. An aggrieved party sought\nto gain access to royal courts by arguing that the private ii\\jury he had\nsustained also was an affront to the king. By the end o f the 14th century,\nthe royal courts were hearing suits without the fiction of qui tam, and the\ndevice faded. See id. at 85. Common law qui tam thus supports the\nSolicitor General\xe2\x80\x99s position only if turned on its head: at common law, the\nactual iryury was to the plaintiff, and it was a legal fiction that iryury was\nalso done the king; under the False Claims Act, the real iryury is to the\ngovernment, and the Solicitor General urges upon us the fiction that it is\nthe private plaintiff who has a viable cause o f action.\nAfter the 14th century, qui tam became a creature o f statute, under\nwhich injury in fact was often required. See Washington University\nNote, at 86. Some statutes, however, permitted private informers,\nregardless o f iryury, to prosecute a wrongdoer for violation o f a penal\nlaw. Although the statutes o f Parliament have only tangential bearing on\nthe validity o f a practice under our new Constitution, it nevertheless is\nnoteworthy that even in England, qui tam proved a vexatious device\nthat ultimately could not be reconciled with the institutions o f free and\nresponsible government. As in the early days o f our Republic, statutory\nqui tam served a necessary expedient for a medieval English Gov\xc2\xad\nernment that did not yet have the machinery for effective local law\nenforcement.\nPart o f the decline o f qui tam may be attributed to its history o f abuse.\nOne commentator noted that the device was used \xe2\x80\x9cas means to gratify ill\nwill. Litigation was stirred up simply in order that the informer might\ncompound for a sum o f money. Threats to sue were an easy means o f\nlevying blackmail.\xe2\x80\x9d 4 Holdsworth, A History of English Law 356 (1924).\nLord Coke classed informers as \xe2\x80\x9cviperous vermin.\xe2\x80\x9d He contended that\n\xe2\x80\x9cthe king cannot commit the sword o f his justice or the oil o f his mercy\nconcerning any penal statute to any subject.\xe2\x80\x9d See Gerald Hurst, \xe2\x80\x9c Common\nInformers ,\xe2\x80\x9d 147 Contemp. Rev. 189-90 (1935). From the 16th century for\xc2\xad\nward, the history o f qui tam is one o f retreat, as Parliament progressive\xc2\xad\nly restricted and curtailed its use. It ultimately was abolished there in\n1951. See Washington University Note, at 83-88.\nOn this side o f the Atlantic, qui tam never really gained a secure\nfoothold, particularly at the federal level. It appears that six qui tam\nstatutes, restricted to narrow enforcement areas, were enacted during\nthe first four congresses. Adopted when the Executive was embryonic,\nthese statutes were essentially stop-gap measures, confined to narrow\ncircumstances where the Executive lacked the resources to enforce the\nlaw. Their intent was to assist a fledgling Executive, not supplant it. As\nthe Executive\xe2\x80\x99s law enforcement capabilities gathered strength, qui tam\nrapidly fell into disfavor. Within a decade, \xe2\x80\x9cthe tide had ... tum[ed]\n235\n\n\x0cagainst\xe2\x80\x9d qui tam, and Congress started curtailing its use. Leonard D.\nWhite, The Federalists 417 (1956).\nThe only other appreciable use o f qui tam came during the Nation\xe2\x80\x99s\ngreatest emergency, the Civil War. The unprecedented explosion in fed\xc2\xad\neral procurement, coupled with the extreme demands o f war, prompted\nenactment o f the False Claims Act. Following the war, qui tam again\nbecame dormant. By 1986, except for a flurry o f activity during World\nWar II, qui tam had become an anachronism.20 We think a fair survey o f\nthe history o f qui tam in the United States reveals it as, at best, a mar\xc2\xad\nginal and transitory device that never achieved prominence within our\nconstitutional system because it was so fundamentally incompatible\nwith that system.\nNor does the practice of qui tam meet the third criterion, under which\nthe Court may uphold a practice that can be accommodated as a narrow\nand self-contained exception that does not threaten to undermine impor\xc2\xad\ntant constitutional principles. See e.g., Young v. ref. Vuitton et Fils S. A..\nBut qui tam is not capable o f being contained as a narrow exception,\nrestricted in a principled manner to its limited historic scope.21 Qui tarn\xe2\x80\x99s\nprinciple o f private law enforcement is so fundamentally incompatible\nwith the established doctrines o f standing and separation o f powers that\nif qui tam were accepted, these doctrines would be drained o f any mean\xc2\xad\ning. Qui tam is, by its nature, an exception that will consume the rule.\nQui tam thus does not have any o f the characteristics that have led the\nSupreme Court to give an historical practice the benefit o f the doubt in a\nclose case. Moreover, there are two considerations specific to qui tam that\nreduce the authority of its historical pedigree. First, where separation of\npowers issues are at stake, w e do not think it is appropriate to give prior\ncongressional action dispositive weight in determining the constitutional\xc2\xad\n20 For example, w e are aware o f only on e case in this century under the qui tam provisions that apply\nto the Indian trade, and that was brought by a relator who had been personally injured. See U nited States\ne x ref. Chase v. Wald, 557 F2d 157 (8th Cir.), cert denied, 434 U.S. 1002 (1977). Similarly, w e are aware\no f only one 20th century action brought under the qui tam provision o f the postal laws, which nominal\xc2\xad\nly remained in fo rce until the creation o f the Postal Service in 1970. In that case, the Eighth Circuit held\nthat the statute did not provide a private right o f action fo r the informer. Williams v. WeUs Fargo & Co\nExpress, 177 F 352 (8th Cir. 1910). However, passage o f the 1986 Amendments significantly increased\n\nawards and subsequently has resulted in a substantial increase in the number o f qui tam suits.\n21 I f w e find that the historical practice o f qui tam is per se constitutional because o f its pedigree, then\nw e must accept the entire practice as it actually existed, not merely those aspects o f it that seem least\nobjectionable to m odem sensibilities. Th is would raise the possibility o f cnminal prosecutions by private\npersons, especially given that in England cnminal qui tam was w ell known. See Washington University\nN ote, at 87-89 In the United States, the penalty provision o f the first Census Act, which authorized qui\ntam enforcem ent, allowed the penalty to b e collected through an action in debt or by indictment or infor\xc2\xad\nmation \xe2\x80\x94 the latter tw o implying a cnminal proceeding. A ct o f Mar. 1, 1790, ch. 2, \xc2\xa7 3, 1 Stat. 101, 102.\nMoreover, some o f the early qui tam statutes, including the first Census Act, authonzed private persons\nw h o had not been ii\\jured to sue public officials in qui tam to collect penalties for the officials\xe2\x80\x99 failure to\nperform their duty. Id We could tolerate neither pnvate criminal prosecution nor the general pnvatization o f execu tive branch employee discipline. But if w e conclude that w e cannot accept some part o f the\nhistoncal practice, there is no reason to defend the remainder under the theory that history is necessar\xc2\xad\nily correct\n\n236\n\n\x0city o f a later statute. Congress\xe2\x80\x99s aggrandizing enactments should not serve\nas conclusive precedent on the scope o f Congress\xe2\x80\x99s own authority. The\nFramers recognized that, in a mixed government, it is the legislative body\n\xe2\x80\x94 the \xe2\x80\x9cimpetuous vortex\xe2\x80\x9d \xe2\x80\x94 that is the branch most disposed to usurp the\npowers o f the others. They also warned that \xe2\x80\x9c [the legislative department]\ncan with the greater facility, mask under complicated and indirect mea\xc2\xad\nsures, the encroachments which it makes on the coordinate departments.\xe2\x80\x9d\nThe Federalist No. 48, at 334 (James Madison) (Jacob E. Cooke ed. 1961).\nIt is true that many o f the members o f the early congresses had been\ninvolved in framing the Constitution. We cannot assume for that reason,\nhowever, that as congressmen they were above attempted encroachments\non the other branches. Their actions are not sacrosanct and should be sub\xc2\xad\nject to careful examination for \xe2\x80\x9cmasked\xe2\x80\x9d encroachments on co-ordinate\nbranches. Our obligation to the Constitution requires that we adhere to\nthe principles the Framers wrote into that document, not to the Framers\xe2\x80\x99\nmisapplications o f those principles.22\nLongstanding congressional practice gains somewhat more preceden\xc2\xad\ntial value where accompanied by equally longstanding ratification by one\nor both o f the other branches. But ratification requires more than\nunthinking acquiescence \xe2\x80\x94 it requires an informed and deliberate judg\xc2\xad\nment that a particular practice is constitutional. Early Executive acquies\xc2\xad\ncence to qui tam is easily explained. As suggested above, because o f the\nunique historical context in which qui tam was adopted, its incompatibil\xc2\xad\nity with our constitutional framework was not immediately evident. An\nexpedient measure \xe2\x80\x94 even one undergirded by a noxious principle \xe2\x80\x94\nmay, in a particular historical setting, appear benign and at first be w el\xc2\xad\ncomed without question because of its apparent functionality. It is only\nthrough experience, as the measure is applied through a range o f cir\xc2\xad\ncumstances, that the pernicious principle reveals itself and becomes fully\nunderstood. There is no doubt that the First Congress resorted, sparing\xc2\xad\nly, to the expedient measure o f qui tam. But we doubt the Framers or the\nFirst President would have embraced the underlying principle had they\nconsidered and fully understood its implications.\n\n22 Genuine separation o f powers, with three truly distinct and independent branches o f government\nunder a written constitution, was very new in 1789. It is therefore not surprising that early congresses\nenacted a number o f measures that would today stnke us as plainly unconstitutional. For example, the\ncourts w ere given a number o f non-judicial powers and duties, including the removaJ o f U.S Marshals,\nwho then as now w ere appointed by the President. A ct o f Sept. 24, 1789, ch 20, \xc2\xa7 27, 1 Stat 72, 87 The\nFirst Congress also directed federal judges to substitute fo r French consuls in investigating shipwrecks\no f French vessels, A ct o f A pr 14,1792, ch. 24, \xc2\xa7 1,1 Stat. 254, and to make reports to the Secretary o f the\nTreasury on customs forfeitures, Act o f May 26, 1790, ch 12, 1 Stat. at 122-23. See generally Russell\nWheeler, E x tm ju d ic ia l A ctivities o f the Early Suprem e Court, 1973 Sup. Ct. Rev 123. Moreover, early\ncongresses follow ed the colonial practice o f treating the Secretary o f the Treasury as if he w ere as much\ntheir officer as the President\xe2\x80\x99s, requiring that he prepare reports at the request o f either House. A c t o f\nSept 2, 1789, ch. 12, \xc2\xa7 2, 1 Stat 65-66. This provision survives as 31 U S.C. \xc2\xa7 331(d), which appears to be\na clear violation o f IN S v. Chadha, 462 U.S. 919 (1983)\n\n237\n\n\x0cSecond, we think a strong case can be made that Morrison v. Olson\nsharply undercuts any historical argument for qui tam. Morrison judges\na practice\xe2\x80\x99s constitutionality by the degree to which the practice actually\ninterferes with the Executive\xe2\x80\x99s functions. See 487 U.S. at 685-97. Under\nthis balancing test, the early qui tam statutes arguably may have passed\nconstitutional muster, while Congress\xe2\x80\x99s 1986 use o f qui tam clearly does\nnot. Early qui tam statutes involved little or no actual interference with\nthe Executive. For practical purposes, they were confined to circum\xc2\xad\nstances where the Executive\xe2\x80\x99s capacity to enforce the law was virtually\nnon-existent \xe2\x80\x94 either because, as in the case o f the 18th century statutes,\nthe Executive was embryonic, or, as in the case o f the Civil War statute,\nthe Executive was overwhelmed and otherwise occupied. Those statutes\nwere designed to aid, not supplant, the Executive. They reflect no ambi\xc2\xad\ntion to control or override the Executive\xe2\x80\x99s official law enforcement activ\xc2\xad\nities. Prompted by necessity, they fell into disuse once necessity abated.\nIn contrast, the 1986 Amendments substantially interfere with the\nExecutive\xe2\x80\x99s functions. The executive branch today is fully capable o f\npolicing claims against the government.23 Indeed, procurement is now\none o f the most heavily regulated and policed sectors o f public activity.\nIn resuscitating the dormant qui tam device, Congress\xe2\x80\x99s express purpose\nwas to interfere with the Executive\xe2\x80\x99s law enforcement activities, to\ndisplace official prosecutorial discretion with the mercenary motives o f\nprivate bounty hunters. The narrow use o f qui tam in the 18th century\ncannot validate the kind of encroachment qui tam causes today.\n\nV. THE SOLICITOR GENERAL\xe2\x80\x99S UNWISE STRATEGY\nThe Solicitor General\'s approach declines to face squarely the consti\xc2\xad\ntutional questions raised by the qui tam statute. Rather, it adopts the tac\xc2\xad\ntic o f arguing that the statute is facially constitutional and constitutional\nas it has been applied so far, but reserving the right to argue a violation\no f separation o f powers based on a balancing o f interests if additional\nencroachment on the Executive\xe2\x80\x99s powers subsequently occurs. This\napproach employs both bad tactics and bad law.\nFirst, the approach is tactically unwise because it forces us to forfeit\nthe strongest objective arguments in favor o f protecting executive branch\ninterests. The Solicitor General advocates total relinquishment o f the\nstanding and Appointments Clause arguments; yet, as discussed above,\nunder existing case law these arguments point clearly toward a conclu\xc2\xad\nsion that the statute is unconstitutional. Once those are abandoned, all\nthat will remain to protect the President\xe2\x80\x99s interests will be the argument\n\n23\n\nEven assuming the Executive lacks sufficient resources to investigate and prosecute such claims,\n\nthere are other ways Congress can address the problem that would be constitutional, such as funding\nmore Department o f Justice resources targeted at those claims.\n\n238\n\n\x0cthat at some undefined point, the subjective degree o f encroachment on\nexecutive powers will have become unbearable. That sort o f unprincipled\nbalancing approach leaves the Executive entirely vulnerable to an\nadverse judicial decision.\nMoreover, conceding standing itself weakens the separation of powers\nargument. To satisfy the standing requirements, we must accept the fic\xc2\xad\ntion that the relator and the Executive are coplaintiffs pursuing two sep\xc2\xad\narate claims. With that fiction in place, the encroachment on executive\npowers is difficult to resist, since the issue becomes framed in terms of\nthe competing interests o f two litigants rather than an infringement on\nseparation o f powers.\nSecond, the approach represents a completely disingenuous way of\ndetermining a statute\xe2\x80\x99s constitutionality. Although it is generally true that\na statute should be construed when possible to avoid constitutional prob\xc2\xad\nlems, portions o f the statute cannot be twisted or ignored to reach that\nresult. The Court recently reaffirmed the longstanding principle that in\nassessing the facial validity o f a statute, it will not \xe2\x80\x98\xe2\x80\x9cpress statutory con\xc2\xad\nstruction \xe2\x80\x9cto the point o f disingenuous evasion\xe2\x80\x9d even to avoid a constitu\xc2\xad\ntional question.\xe2\x80\x99\xe2\x80\x9d Public Citizen v. United States Department of Justice,\n491 U.S. at 467 (quoting United States v. Locke, 471 U.S. 84, 96 (1985)\n(quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933))). Accord\nWebster v. Reproductive Health Servs., 492 U.S. 490 (1989) (reprimand\xc2\xad\ning the plurality for \xe2\x80\x9cdistorting the statute\xe2\x80\x9d to avoid invalidating it)\n(Blackmun, J., dissenting). Even the Solicitor General concedes that\nsome provisions of the qui tam statute are facially unconstitutional, such\nas the grant to the court o f the ultimate power to decide whether the gov\xc2\xad\nernment may settle or dismiss a qui tam suit when the relator objects. See\nTaranto Memo at 12. To argue, then, that these provisions must be\nignored for now and later applied other than as written to avoid an asapplied challenge engages in the very sort o f \xe2\x80\x9cdisingenuous evasion\xe2\x80\x9d\nagainst which the Court has cautioned. Moreover, by conceding that the\nstatute is constitutional as applied to date, the Solicitor General concedes\nthe legality o f the prime example o f encroachment on executive powers\n\xe2\x80\x94 the Executive\xe2\x80\x99s ability to initiate suit and the discretion to decide\nwhich cases not to pursue.\nThird, the Solicitor General\xe2\x80\x99s proposed balancing approach does not\nproperly apply Morrison v. Olson. The Solicitor General advocates exam\xc2\xad\nining each case brought under the qui tam statute to ascertain the degree\nof that case\xe2\x80\x99s encroachment on executive powers. This method o f analy\xc2\xad\nsis is completely inconsistent with the balancing approach used in\nMorrison, which looked instead at the potential impact o f applying the\nstatute according to its terms.\nThe Solicitor General also advocates a more global approach to ana\xc2\xad\nlyzing the potential encroachment on executive powers. Under this\napproach, the Solicitor General recommends waiting to see if Congress\n239\n\n\x0cemploys the qui tam method o f enforcement in other statutory contexts.\nIf so, the Solicitor General postulates that the cumulative burden on\nexecutive powers might be so great that the amendments to the False\nClaims Act then would be unconstitutional. This method o f analysis has\nno basis in law. The Court has never determined the constitutionality o f\na statute based on the effect o f other statutes. Moreover, there is no prin\xc2\xad\ncipled way to determine how many such statutes must be enacted before\nthe encroachment achieves constitutional proportions.\nFinally, the Solicitor General\xe2\x80\x99s piecemeal approach fundamentally con\xc2\xad\nflicts with his historical argument. The Solicitor General contends in part\nthat qui tam must be upheld because its historical acceptance by courts\nand Congress since this country\xe2\x80\x99s inception has been \xe2\x80\x9cancient, regular,\nand unbroken.\xe2\x80\x9d Taranto Memo at 4. In particular, the Solicitor General\nhas pointed to the favorable treatment given an earlier version o f the\nFalse Claims Act qui tam provisions in United States ex rel. Marcus v.\nHess, 317 U.S. 537 (1943). That version o f the Act, however, did not con\xc2\xad\ntain the provisions introduced by the 1986 Amendments granting the\ncourt the ultimate authority to dismiss or settle a qui tam action in which\nthe government has intervened. The Solicitor General acknowledges that\nhis view o f the statute\xe2\x80\x99s constitutionality ultimately depends upon a prop\xc2\xad\ner application o f those provisions. See Taranto Memo at 12. The Solicitor\nGeneral cannot consistently claim both that qui tam has historical con\xc2\xad\nstitutionality and that the current statute\xe2\x80\x99s validity rests on the proper\napplication o f provisions introduced in 1986. The two arguments cannot\nand do not coexist.\n\nVI. CONCLUSION\nFor these reasons we recommend that you authorize the Civil Division\nto enter an appropriate case and present the executive branch\xe2\x80\x99s argu\xc2\xad\nments against the constitutionality o f qui tam.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n240\n\n\x0c'