The False Claims Act — the centerpiece of the Department of Justice’s (DOJ’s) efforts to combat health care fraud — is under constitutional attack. Whether or not the challenges are successful, the moment creates a much-needed opportunity for reflection on the role the FCA plays in shaping health care fraud enforcement, as I detail in a recently published article.

The False Claims Act’s (FCA) qui tam provisions allow private individual whistleblowers to sue those committing fraud against government funds on behalf of the government and potentially receive a share of any recovery.

The FCA, and particularly its whistleblower provision, drives health care enforcement, leading to large financial recoveries year after year. Of the $5.7 billion recovered by the DOJ in health care FCA matters in 2025, $4.5 billion derived from qui tam cases, with much of it coming from cases handled by whistleblowers without DOJ’s involvement

While those whistleblowers have supercharged the statute’s effectiveness, three Supreme Court Justices recently suggested the system violates the Constitution by giving private parties authority that can only be held by the Executive Branch.

Through a dissenting opinion (Justice Thomas) and a concurring opinion (Justices Kavanaugh and Barrett) in a 2023 FCA decision focused on other issues, the three Justices indicated they were willing to review the provision’s constitutionality in a future “appropriate case.” That language has inspired challenges and...

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