Passed in 1863, the False Claims Act imposes liability on entities that defraud the government and permits private citizens to sue and split the amount recovered with the government. Relying on this statute, Cheryl Taylor sued Healthcare Associates of Texas (HCAT), and a jury found that HCAT had submitted tens of thousands of fraudulent claims to Medicare, costing taxpayers over two million dollars.

In response to the litigation, HCAT reprised an argument that numerous lower courts rejected decades ago, namely that the qui tam provisions of the False Claims Act authorizing private suits are unconstitutional under Article II of the U.S. Constitution, because they permit private litigants to exercise enforcement power solely vested in the executive branch. Applying binding circuit court precedent, the United States District Court for the Northern District of Texas rejected HCAT’s arguments. HCAT then appealed to the Court of Appeals for the Fifth Circuit.

In January 2026, the Constitutional Accountability Center filed an amicus brief in support of neither party on behalf of legal scholars. Our brief explains that qui tam litigation has a long history and has never been considered an infringement on the executive power.

Qui tam litigation was ubiquitous in England and in the colonies during the period prior to the ratification of the Constitution. Such lawsuits arose under the common law in the thirteenth century, and Parliament subsequently enacted hundreds of statutes authorizing private enforcement in England. British colonists brought qui tam litigation to America, where they enacted reams of statutes with qui tam provisions in the colonial assemblies. Indeed, the Framers, too, participated in this culture of qui tam enforcement: Alexander Hamilton drafted a tax law with qui tam provisions during his time as a Representative in the New York State Assembly, and John Adams regularly represented litigants in civil qui tam actions.

After the ratification of the Constitution, qui tam enforcement remained prevalent. The first Congresses and early state legislatures enacted dozens of statutes with qui tam provisions, and courts regularly adjudicated qui tam actions without so much as a doubt about the constitutionality of such lawsuits. As in England, the executive retained little discretion or oversight over qui tam actions. Indeed, early presidential administrations led by Washington and Jefferson themselves concluded that they could not remit penalties recovered by private qui tam litigants. And when legislatures expressed concerns about qui tam, they were primarily worried about abusive litigation—not that qui tam plaintiffs somehow encroached on the executive power.

Qui tam enforcement continued in the nineteenth century. Congress passed dozens of statutes authorizing private enforcement, and federal courts continued to adjudicate qui tam actions, just as they had during the Founding era. Throughout this period, defendants never challenged qui tam lawsuits as encroaching on the purportedly exclusive enforcement authority of the executive branch, even though they raised other constitutional challenges, like ones rooted in the Due Process Clause. State legislatures, too, continued to enact statutes authorizing private enforcement throughout the nineteenth century.