By: Robert S. Salcido, 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...
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