KEY POINTS:

• Constitutional challenges to the FCA’s qui tam provisions are gaining momentum. Courts are increasingly scrutinizing whether allowing private relators to prosecute FCA cases violates Article II’s Appointments Clause and Take Care Clause. Recent decisions and concurring opinions suggest this issue may reach the Supreme Court soon.
• The government’s defense of the qui tam provisions is changing. DOJ has shifted its arguments, now relying heavily on historical practice to defend the constitutionality of qui tam provisions, reflecting the current administration’s expansive view of executive power.
• Excessive Fines Clause limits are being tested. Courts are reducing FCA penalties in cases where statutory minimums would result in disproportionate awards, signaling that ratios above 4:1 may be constitutionally problematic except in cases involving egregious misconduct.
• High-stakes appeals could reshape FCA enforcement. Pending cases may clarify constitutional limits on both qui tam provisions and civil penalties, creating uncertainty for FCA enforcement in 2026.

In 2025, courts continued to grapple with two important constitutional questions that arise in FCA matters. First, defendants have increasingly raised constitutional challenges to the FCA’s qui tam provisions under Article II, which vests executive authority in the president. Second, a number of successful constitutional challenges were brought by defendants who were subject to excessive statutory...

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