Previewing Appellate Arguments On Whether The False Claims Act's Qui Tam Provisions Are Constitutional And, If Not, The Remedy: What To Expect In 2026 And Beyond

• Published date: 17 December 2025
• Subject Matter: Government, Public Sector, Food, Drugs, Healthcare, Life Sciences, Criminal Law, Constitutional & Administrative Law, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Akin Gump Strauss Hauer & Feld LLP
• Author: Mr Robert S. Salcido and Emily I. Gerry

• The Eleventh Circuit will hear oral argument regarding the constitutionality of the FCA's qui tam provisions which likely will be the first link in a chain of appellate cases leading to Supreme Court review of the issue.
• From the FCA's enactment in 1863 to the FCA's 1986 amendments, Congress has progressively encroached on executive powers to reduce the executive branch's ability to enforce the law and increase qui tam plaintiffs' powers to enforce the law.
• Although several appellate courts ruled decades ago that the qui tam provisions are constitutional, recent Supreme Court rulings have undermined those decisions.
• In light of these developments, the Supreme Court should rule when the question is before it, that the FCA's qui tam provisions are unconstitutional.
• If the Court finds the qui tam provisions to be unconstitutional, its likely remedy will be to sever and impose limiting constructions on the qui tam provisions, as is described below.

Recently, three Supreme Court Justices, unsolicited, invited inquiry into the constitutionality of the False Claims Act's (FCA) qui tam provisions.¹ This inquiry has vast significance. The FCA is the government's chief weapon to combat fraud against the government.² Since Congress modernized the FCA in 1986, the FCA's qui tam provisions have been the government's main source of recoveries in FCA litigation. From the 1986 FCA amendments to September 30, 2022, the vast majority of FCA actions filed have been qui tam actions, rather than FCA actions the Department of Justice (DOJ) files on its own, and the vast majority of all FCA recoveries have stemmed from FCA qui tam actions. Of the 21,480 FCA actions filed over this nearly 36-year time period, 15,246 (71%) of them were qui tam actions, and just 6,234 (29%) were non-qui tam matters instituted by DOJ on its own.³ Qui tam actions generated more than $50 billion in recoveries, while non-qui tam FCA actions generated only over $22 million in recoveries.⁴

Since the Supreme Court's inquiry into the constitutionality of the qui tam provisions, U.S. ex rel. Zafirov v. Fla. Med. Assocs., scheduled for hearing before the Eleventh Circuit on December 12, 2025, is the first appellate test case.⁵ For background on what to expect in terms of arguments raised and the potential resolution, below, we set out the relevant history regarding the rights and powers of qui tam plaintiffs to enforce the FCA, as well as the anticipated arguments of defendants against FCA constitutionality and of the government in favor of FCA constitutionality.

This review of the FCA's language, structure and history and recent Supreme Court precedent reveals that ultimately, the Supreme Court should find the FCA's qui tam provisions unconstitutional, and, in the event that it does, the Supreme Court will likely attempt to sever and impose limiting constructions on the qui tam provisions.

Congress's Increasing Encroachment on Executive Power: The Qui Tam Provisions from 1863 to 1986

The constitutional issue, at the broadest level, is to what extent Congress can divert core executive branch functions'such as determining which defendants to sue, which theories to raise, which motions to file, what evidence to obtain and what settlements to consummate'to private individuals because it believes that executive branch officials have not discharged executive branch functions to Congress's satisfaction without breaching the Constitution's Vesting, Take Care and Appointments Clauses.

Throughout the history of the FCA's qui tam provisions'as Congress, the courts and DOJ have observed'relators' primary objective has been to advance their own self-interest, and not the public interest. Congress, in enacting the qui tam provisions in 1863, noted that the qui tam provisions were based "upon the old-fashioned idea of holding out a temptation, and 'setting a rogue to catch a rogue,' which is the safest and most expeditious way ... of bringing rogues to justice."⁶ The Supreme Court, in Hughes Aircraft Co. v. U.S. ex rel. Schumer, recognized that "[a]s a class of plaintiffs, qui tam relators are different in kind than the Government. They are motivated primarily by prospects of monetary reward rather than the public good."⁷ And DOJ has similarly provided numerous examples of relators acting contrary to the public interest when instituting actions on the government's behalf, such as undermining executive agency policies or interfering with the administration of its programs, risking the exposure of classified information or military secrets, posing significant economic harm by potentially causing a critical supplier to exit a government program or causing DOJ to expend significant resources in participating or monitoring cases that DOJ would choose not to incur because it believes the underlying actions to be meritless.⁸

Notwithstanding relators' pursuit of private interests, rather than the public interest, Congress vested relators with substantial executive powers in 1863 and then dramatically increased those powers when it modernized the FCA in 1986.

The FCA's initial qui tam provisions, enacted in 1863, authorized relators to file suit to enforce the FCA.⁹ Under the 1863 Act, the government had no right to intervene in relators' lawsuits, but relators pursued the government's actions on their own.¹⁰ If a relator was successful, the relator obtained 50% of the recovery.¹¹ Notwithstanding the large potential recovery, there were few reported decisions prior to World War II.¹²

Based upon relators' widespread abuse of the qui tam provisions, Congress substantially modified the qui tam filing process in 1943.¹³ Under the 1943 Act, relators continued, as under the 1863 Act, to exercise core executive branch powers to determine which defendants to sue, which theories to raise, which motions to file, what evidence to obtain and what settlements to consummate on the government's behalf. But, under the 1943 FCA amendments, the government, like the current statute and unlike the 1863 Act, possessed the ability to intervene in relators' actions.¹⁴ And yet, unlike the current statute, if the government intervened, relators had no right to participate in the government's action as a party, including in discovery, or to object to the government's dismissal or settlement of the lawsuit.¹⁵Under the 1943 FCA, relators' share of the recovery was reduced to "fair and reasonable compensation" as the court determined, but not to exceed 25% of the recovery, and if the government intervened, relators' share was capped at 10% percent of the recovery.¹⁶ As with the 1863 FCA, there were few reported FCA qui tam cases between 1943 and 1986.¹⁷

In 1986, Congress again amended the FCA and dramatically increased relators' ability to encroach upon core executive branch functions. Under the 1986 amendments, relators continued to have unfettered power to determine whom to sue and theories of fraud to pursue on the government's behalf. But, for the first time, in cases in which the Attorney General intervened, Congress additionally empowered relators to actively participate in the Attorney General's case by being a party to the litigation, having the ability to participate in discovery, call witnesses¹⁸ and oppose the government's dismissal and settlement of its own action so that relators could serve as a "check" on the executive branch and "keep pressure" on it to protect their "financial stake" in the executive branch's lawsuit.¹⁹

Congress believed that this further encroachment of core executive branch powers was necessary to supplement scarce federal resources and believed that the executive branch had exercised poor judgment in prosecuting and resolving FCA actions. Specifically, the Senate Judiciary Committee Report noted that "available Department of Justice records show most fraud referrals remain unprosecuted and lost public funds, therefore, remain uncollected," and that a "resource mismatch" exists between the federal government and large contractors who may marshal the efforts of large legal teams.²⁰ To correct the problem of DOJ being "overmatched," Congress sought to privatize law enforcement, under some circumstances, by empowering the private citizenry with the ability to prosecute actions on behalf of the federal government, based on a belief that they "can make a significant impact on bolstering the Government's fraud enforcement effort."²¹

Defendants' and Plaintiffs' Constitutionality Arguments

Because of the substantial increase in relators' power to execute executive branch functions, multiple FCA defendants instituted immediate challenges to the constitutionality of the qui tam provisions after the 1986 FCA amendments. In these cases, more than two decades ago, appellate courts uniformly ruled that the qui tam provisions are constitutional.²² However, as described below, since that time, Supreme Court precedent has largely superseded these early decisions. In light of these developments, set forth below are the anticipated arguments the defendants and the government will raise before the Eleventh Circuit in Zafirov and other appellate courts.

Defendants' Core Arguments

Defendants' core argument related to the unconstitutionality of the qui tam provisions centers on relators' power to instigate and prosecute significant litigation on the government's behalf while being self-appointed rather than being appointed in the precise manner the Constitution prescribes and without being subject to sufficient supervision or removal.

More specifically, defendants contend that the FCA's qui tam provisions are unconstitutional because they are inconsistent with clear, unambiguous constitutional text and the standards set forth in recent Supreme Court case law. Article II of the U.S. Constitution vests "[t]he executive Power . . . in a President of the United States of America," who "shall take Care that the Laws be faithfully executed."²³ Under Article II, "only persons who are 'Officers of...