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The University of Chicago Business Law Review

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453

Abstract

The federal government’s most powerful tool for combating fraud is the False Claims Act (FCA). The statute targets individuals and entities that submit fraudulent claims for government funds, particularly in healthcare—where it addresses Medicare and Medicaid fraud—and in government contracting, including defense industry overpayments. FCA violators must repay up to three times the government’s losses, along with additional penalties. A key feature of the FCA is its qui tam provision, which allows private citizens, known as relators, to sue violators on behalf of the United States. The statute incentivizes whistleblowing by granting relators 15% to 30% of any successful recovery. However, FCA relators have faced constitutional challenges that threaten the statute’s most significant enforcement mechanism. The FCA’s critics, many of whom are motivated by the unitary executive theory, argue that relators wield such significant authority that they qualify as “Officers of the United States” under Article II of the Constitution. If relators are deemed officers, they must be formally appointed, which would render the FCA’s qui tam provisions unconstitutional. One interpretive principle is the canon of constitutional avoidance, which guides the Court to construe statutes to comport with the Constitution unless they are incompatible. This comment argues that there are plausible interpretations across interpretive modalities to harmonize the FCA and Article II. First, the FCA’s purpose was to incentivize private whistleblowers to assist the government with combatting fraud. The FCA does not transform a relator into a government official, so relators cannot be “Officers of the United States” as established in the Supreme Court’s modern case law. A line of cases interprets “Officers of the United States” as government officials with “significant decision-making authority.” While the FCA affords relators some decision-making authority throughout a given proceeding, such as whether to initiate the suit, the Executive maintains sufficient control of the case to direct it according to its policy goals. This includes intervening as the plaintiff in the case and vetoing any settlement offer. Second, recent scholarship uncovering the original public meaning of “Officers of the United States” calls the Supreme Court’s jurisprudence on the issue into question and supports the position that FCA relators are not officers in need of appointment. Many of the FCA’s fiercest critics are originalists. Given that there are plausible, constitutional interpretations of the FCA, courts should construe the FCA to avoid striking it down. The FCA remains constitutionally sound, and its relators should continue serving as a crucial tool in protecting the federal government from fraud. Preserving the FCA’s qui tam provisions is essential to maintaining a robust anti-fraud enforcement mechanism that safeguards public funds and deters misconduct.

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