Abstract
Following the June 2023 Supreme Court decision in United States ex rel. Polansky v. Executive Health Resources, Inc., the ability of qui tam relators to litigate False Claims Act actions faces renewed challenges on multiple constitutional grounds. Specifically, in his Polansky dissent, Justice Thomas raises a novel Article I concern that Congress does not have the authority to partially assign the government’s litigation claim to relators, thus leaving them without standing to sue. Defendants in False Claims Act cases have already begun raising Thomas’s constitutional arguments in federal courts. What is heralded as the government’s most effective tool to combat fraud, and that has successfully recovered billions of dollars from fraudsters, is potentially facing its demise.
This Comment proposes two solutions for courts to apply when analyzing this Article I challenge. First, this Comment asserts that courts should employ an expansive reading of the Property Clause of the Constitution to include intangible personal property legal claims, thereby validating the False Claims Act’s partial assignment as congressional standing to qui tam relators. Second, by building on existing precedent where the Supreme Court has upheld similar statutes as constitutional through Congress’s spending power, courts should apply the Necessary and Proper Clause as an additional source of Congress’s power to create assignments. Both the Property Clause and the Necessary and Proper Clause serve as an appropriate source of congressional power to grant whistleblowers the ability to sue on behalf of the government. By applying the solutions proposed in this Comment, qui tam and the False Claims Act should survive this new constitutional threat.
Recommended Citation
Emily Mitchell,
The New Constitutional Challenge to Qui Tam,
74
Emory L. J.
759
(2025).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol74/iss3/4
