Historical patterns cannot justify contemporary violations of constitutional guarantees - Renewed constitutional attacks on FCA qui tam provisions

Recent federal court decisions and Supreme Court opinions have cast doubt on the constitutionality of the False Claims Act’s (FCA) qui tam provisions, which allow private individuals to prosecute claims on behalf of the U.S. government. Judges have argued that these provisions violate Article II of the Constitution by granting executive powers to private relators without proper appointment or oversight. The Eleventh Circuit’s upcoming decision in the Zafirov case could either reinforce or challenge the longstanding consensus upholding qui tam actions, potentially leading to Supreme Court review. If found unconstitutional, this could dramatically change FCA litigation, limiting enforcement to government-initiated cases.

The article emphasizes that historical practices cannot justify contemporary violations of constitutional guarantees.