Amicus Curiae Brief — Eli Lilly and Company, Petitioner v. United States, et al., ex. rel., Ronald J. Streck

No. 25-1126

IN THE

Supreme Court of the United States

___________

ELI LILLY & CO.,

v.

Petitioner,

UNITED STATES et al., ex rel. RONALD J. STRECK,

Respondent.

___________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Seventh Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE SUPPORTING PETITIONER

___________

April 24, 2026

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTION PRESENTED

Whether the False Claims Act’s qui tam provisions are unconstitutional.

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. iv

INTEREST OF AMICUS CURIAE ........................ 1

INTRODUCTION ................................................... 2

SUMMARY OF ARGUMENT................................. 4

ARGUMENT ........................................................... 7

I.

REVIEW IS NEEDED BECAUSE THE FCA’S QUI

TAM PROVISIONS VIOLATE ARTICLE II ............... 7

A. The Vesting Clause: Executive

power belongs to the President

alone—no bounty hunters allowed ........ 7

B. The Appointments Clause: Relators

behave as Officers of the United

States .................................................... 10

C. The Take Care Clause: Relators hijack the Executive’s discretion ............ 12

II. THE COURT SHOULD GRANT REVIEW TO

CLARIFY THAT HISTORY CANNOT OVERRIDE

CONSTITUTIONAL TEXT .................................... 14

CONCLUSION ...................................................... 16

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Buckley v. Valeo,

424 U.S. 1 (1976) ............................................ 4, 10

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) ............................................ 14

Freytag v. Comm’r,

501 U.S. 878 (1991) ............................................ 12

In re Aiken Cnty.,

725 F.3d 255 (D.C. Cir. 2013) ............................ 12

Lucia v. SEC,

585 U.S. 237 (2018) ........................................ 5, 12

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .............................................. 9

Martinez v. UPMC Susquehanna,

986 F.3d 261 (3d Cir. 2021) ................................. 9

Marvin v. Trout,

199 U.S. 212 (1905) ........................................ 6, 15

Morrison v. Olson,

487 U.S. 654 (1988) ........................................ 5, 11

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ............................................... 6, 14

N.Y. Times v. Sullivan,

376 U.S. 254 (1964) ............................................ 14

Riley v. St. Luke’s Episcopal Hosp.,

252 F.3d 749 (5th Cir. 2001) .............................. 11

Seila Law LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197 (2020) .................................... 7–8, 10

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .............................................. 8

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) .............................................. 9

United States ex rel. Marcus v. Hess,

317 U.S. 537 (1943) ............................................ 15

United States ex rel. Polansky v. Exec. Health

Res., Inc.,

599 U.S. 419 (2023) .............................. 1, 3, 11, 15

United States ex rel. Relators v. Muskingum

Watershed Conservancy Dist.,

2017 WL 4102369 (N.D. Ohio Sept. 15, 2017) .. 13

United States ex rel. Zafirov v. Fla. Med. Assocs.,

No. 24-13581 (11th Cir., pending) ....................... 1

United States v. Nixon,

418 U.S. 683 (1974) .............................................. 9

Vermont Agency of Nat. Resources v. United

States ex rel. Stevens,

529 U.S. 765 (2000) .............................................. 7

Wisconsin Bell, Inc. v. United States ex rel. Heath,

604 U.S. 140 (2025) ............................................ 11

CONSTITUTIONAL PROVISIONS:

U.S. Const. art. I, § 8, cl. 11 .................................. 10

U.S. Const. art. II, § 1, cl. 1 ................................ 4, 7

U.S. Const. art. II, § 2, cl. 2 ......................... 4, 7, 10

U.S. Const. art. II, § 3 ................................... 5, 7, 12

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES:

The False Claims Act

31 U.S.C. § 3730(b)(1) ...................................... 4, 9

§ 3730(c)(1) .................................... 5, 13

§ 3730(c)(3) .......................................... 9

An Act in Addition to the Act, Entitled “An Act for

the Punishment of Certain Crimes Against the

United States,” 1 Stat. 596 (1798) ..................... 14

MISCELLANEOUS SOURCES:

13 Op. O.L.C. 207 (1989)................................... 6, 15

1 William Blackstone, Commentaries on the Laws

of England (Philadelphia, J.B. Lippincott Co.

1893) (1765) .......................................................... 8

Alexander Hamilton, Pacificus No. 1 (1793) .......... 8

Steven G. Calabresi & Christopher S. Yoo, The

Unitary Executive (2008).................................... 13

Christine Kexel Chabot, The Founders’ Purse,

110 Va. L. Rev. 1027 (2024) ............................... 10

The Federalist No. 47 (James Madison) ............... 12

Gary Lawson, The Constitution’s Congress,

89 B.U. L. Rev. 399 (2009) ................................. 14

John Locke, Two Treatises of Government

(Thomas Hollis ed., London, 1764) (1689).............. 8

Letter from A Farmer, II, Balt. Md. Gazette

(Feb. 29, 1788) ...................................................... 8

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Letter from George Washington to William

Rawle (Mar. 13, 1793) .......................................... 8

Letter from Richard Harrison to Alexander

Hamilton (May 24, 1791) ................................... 15

Liam Mayo, Local representatives and Trump

administration reopen fracking conversation

for Delaware River Basin, Delaware Currents

(March 4, 2025) .................................................. 13

Nicholas R. Parrillo, Against the Profit Motive

(2013) .................................................................. 11

Proclamation of Neutrality (Apr. 22, 1793) ......... 12

U.S. Dep’t of Justice, False Claims Act

Settlements Exceed $6.8B in Fiscal Year 2025

(Jan. 16, 2026) ................................................ 1, 13

Zac Morgan & Ian Merritt, Reviving Letters of

Marque, Ctr. for Maritime Strategy

(Oct. 29, 2024) .................................................... 10

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with supporters nationwide. WLF promotes free markets, individual rights, limited government, and the rule of

law. It often appears as an amicus curiae to champion

Article II’s limits on the False Claims Act. See United

States ex rel. Polansky v. Exec. Health Res., Inc., 599

U.S. 419 (2023); United States ex rel. Zafirov v. Fla.

Med. Assocs., LLC, No. 24-13581 (11th Cir., pending).

Enacted during the Civil War, the FCA was designed to deter and punish government procurement

fraudsters and wartime opportunists. Today, the opportunists are less often the statute’s targets than its

putative enforcers. Enterprising relators have transformed the FCA into a vehicle for debilitating lawfare

over just about anything that touches—even remotely—the federal fisc. In 2025, over twelve hundred

qui tam suits underscored this trend, many targeting

defendants for reasons unrelated to public welfare.

See U.S. Dep’t of Justice, False Claims Act Settlements Exceed $6.8B in Fiscal Year 2025 (Jan. 16,

2026), https://perma.cc/P5AU-8KBV.

These qui tam suits contravene our constitutional structure. Only the Executive may represent

the interests of the United States in litigation. Congress cannot delegate that power to private actors.

Because Article II protects against the abuse of

No party’s counsel authored any part of this brief. No one,

other than WLF and its counsel, helped pay for the brief’s

preparation or submission. All counsel of record received timely

notice of WLF’s intent to file this brief.

*

2

prosecutorial discretion, Executive officers are appointed to an office of public trust under obligation of

oath, at peril of impeachment. The FCA upends that

design by allowing private relators to wield the tremendous power of public prosecution with no meaningful constitutional checks on their discretion. This

Court should take these constitutional infirmities seriously and grant review.

INTRODUCTION

A serial litigant named Ronald J. Streck decided

that Eli Lilly & Company had misread a byzantine

corner of the Medicaid statute governing drug rebates. Never mind that the Third Circuit—in a case

Streck himself had brought—had unanimously called

Lilly’s reading (and the industry’s) reasonable. Never

mind that Lilly had disclosed its approach to the government time and again, and the government never

hinted that it violated the law. Never mind that four

federal judges had already found the interpretation

sound. Streck sued anyway in the name of the United

States, won nearly $200 million in treble damages

and penalties, and the Seventh Circuit affirmed. In

its view, Lilly’s position was not merely incorrect but

so “objectively unreasonable” that it furnished “highly

probative circumstantial evidence of a culpable state

of mind.” Pet. App. 38.

That jarring outcome should be an aberration. Yet

it is an increasingly inevitable byproduct of the FCA’s

qui tam provisions. Under those provisions, any private person may step into the shoes of the United

States, investigate alleged fraud, file suit, conduct

discovery, and extract massive civil penalties—all

without the slightest supervision by the President or

3

any executive officer. The relator answers to no one.

He cannot be removed. He owes no duty of faithful execution. His only loyalty is to the bounty—up to 30%

of whatever he can recover. As this case vividly shows,

the FCA’s qui tam regime turns complex, ambiguous

regulatory questions into jackpot litigation, rewarding the most aggressive reading of the law and punishing companies that followed the only guidance the

government ever gave them—make “reasonable assumptions.”

These privatized prosecutions cannot be reconciled with Article II. The Constitution vests the entire

“executive Power” in the President and charges him

alone with seeing that the laws are “faithfully executed.” It does not contemplate an army of unaccountable bounty hunters wielding that power for personal

gain. Three members of this Court have already

flagged the “substantial arguments that the qui tam

device is inconsistent with Article II,” United States

ex rel. Polansky, 599 U.S. at 442 (Kavanaugh, J., concurring, joined by Barrett, J.); id. at 449 (Thomas, J.,

dissenting). The decision below—creating a clear circuit split on the proper treatment of “objectively reasonable” legal interpretations under the FCA while

presenting an exceptionally strong vehicle on the constitutional question—makes this the ideal case for the

Court to resolve both issues.

WLF’s brief emphasizes why the Court should

grant review to decide whether the False Claims Act’s

qui tam provisions can be squared with the separation

of powers. Because they cannot, the petition should be

granted.

4

SUMMARY OF ARGUMENT

No one disputes that the False Claims Act’s

aim of ferreting out fraud against the public fisc is a

worthy goal. But good intentions cannot override constitutional limits. These structural protections are

not picayune formalities; they are a crucial bulwark

of our liberties.

Start with the Vesting Clause. Article II, Section 1, Clause 1 vests “the executive Power” solely in

the President, a deliberate choice to ensure unified,

accountable enforcement of the nation’s laws. U.S.

Const. art. II, § 1, cl. 1. Yet the FCA permits private

relators to sue “in the name of the Government” for

public wrongs, wielding the Executive’s sword with

only limited executive oversight. 31 U.S.C.

§ 3730(b)(1). This arrangement, however practical,

upends the constitutional balance. The Constitution

entrusts the President with plenary executive authority, save for explicit exceptions. By allowing relators

to pursue public rights for private gain, the FCA encroaches on the President’s singular role. Congress

has stretched its authority too far.

The Appointments Clause exposes another defect. Article II, Section 2, Clause 2 requires that those

exercising “significant authority” as officers of the

United States be appointed by the President, often

with Senate confirmation. U.S. Const. art. II, § 2, cl.

2; Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). Qui tam relators, suing to recover penalties for

the United States, wield such authority, yet they do

so without appointment or confirmation.

5

Relators may argue that their temporary status or lack of formal employment exempts them, but

this view clashes with precedent recognizing even

limited prosecutorial roles as requiring proper appointment. See Morrison v. Olson, 487 U.S. 654, 671

(1988). The FCA’s structure, offering bounties akin to

early officers’ fees, confirms that relators occupy a

continuous and formal enough role to demand Article

II’s safeguards. See Lucia v. SEC, 585 U.S. 237, 245

(2018). This conflict—between statutory innovation

and constitutional rigor—can be resolved only by this

Court.

Even if the Vesting and Appointments Clauses

do not wholly dispatch the FCA’s qui tam provisions,

the Take Care Clause finishes the job. The Constitution obliges the President to “take Care that the Laws

be faithfully executed.” U.S. Const. art. II, § 3. This

duty requires the President to weigh competing priorities and balance enforcement with the public good, as

Washington did in directing prosecutions and granting pardons during and after the Whiskey Rebellion.

The FCA, however, grants relators broad discretion to initiate suits, often driven by private gain

rather than the broader public interest. Even when

the government intervenes, relators retain significant

control, constraining the President’s ability to align

enforcement with the Executive’s broader policy

goals. See 31 U.S.C. § 3730(c)(1). Because this delegation impermissibly fragments the Executive’s undivided authority, the FCA erodes the careful separation of powers that safeguards individual liberty.

Historical pedigree offers no reprieve. Yes,

early Congresses enacted such statutes, but their

6

actions do not override the Constitution’s text. See

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1,

36 (2022) (“the text controls”). Those early laws, unlike the FCA, imposed fewer barriers to presidential

oversight and reflected a nascent government’s practical needs, not a considered constitutional endorsement. See 13 Op. O.L.C. 207, 235 (1989). And cases

like Marvin v. Trout, 199 U.S. 212 (1905), sidestepped

Article II’s deeper questions, limiting their weight.

The FCA’s modern framework, revised in 1986,

goes much further, insulating relators from executive

control in ways its predecessors did not. But the Constitution demands a unitary Executive, answerable to

the people, to wield the sword of federal enforcement.

The FCA’s qui tam provisions, however well-intended,

do violence to that principle. This Court should grant

review to ensure that expedient innovation does not

outstrip constitutional bounds.

7

ARGUMENT

In Vermont Agency of Natural Resources v.

United States ex rel. Stevens, 529 U.S. 765 (2000), this

Court held that the FCA’s “partial assignment of the

Government’s damages claim” to the relator, alongside “the long tradition of qui tam actions in England

and the American Colonies,” showed that qui tam actions were “cases and controversies” under Article III.

Id. at 774–77. Yet the Court left unanswered whether

the FCA’s partial assignment of the government’s

right of action “violate[s] Article II, in particular the

Appointments Clause of § 2 and the ‘Take Care’

Clause of § 3.” Id. at 778 n.8. Fully preserved below,

those questions are squarely presented here.

I.

REVIEW IS NEEDED BECAUSE THE FCA’S QUI

TAM PROVISIONS VIOLATE ARTICLE II.

A.

The Vesting Clause: Executive

power belongs to the President

alone—no bounty hunters allowed.

The Constitution’s opening salvo in Article II is

unmistakable: “The executive Power shall be vested

in a President of the United States of America.” U.S.

Const. art. II, § 1, cl. 1. The singular “a” and the verb

“vested” leave no room for ambiguity—all executive

power resides in one President, not in Congress, subordinate officials, or private profit-driven relators.

Unlike Article I, which grants Congress only enumerated powers, or Article III, which shares judicial

power with inferior courts, Article II’s Vesting Clause

is absolute. It entrusts the President alone with the

nation’s executive authority, ensuring accountability

to the people. Seila Law LLC v. Consumer Fin. Prot.

8

Bureau, 591 U.S. 197, 203–04 (2020). As Alexander

Hamilton put it, this “general clause” grants the President the full sweep of executive power, subject only

to specific constitutional exceptions. Alexander Hamilton, Pacificus No. 1 (1793), https://perma.cc/V6KBGXQ3.

Law enforcement is the quintessence of that

power. The Framers, echoing John Locke and William

Blackstone, understood that in a civilized society, individuals surrender their natural right to enforce the

law to a centralized authority. See John Locke, Two

Treatises of Government 4, 136–39 (Thomas Hollis

ed., London, 1764) (1689); 1 William Blackstone,

Commentaries on the Laws of England 119–20 (Philadelphia, J.B. Lippincott Co. 1893) (1765). The President, as the “avenger of public wrongs,” holds the exclusive authority to prosecute public rights, whether

in criminal or civil cases. See Letter from A Farmer,

II, Balt. Md. Gazette (Feb. 29, 1788); Spokeo, Inc. v.

Robins, 578 U.S. 330, 344–45 (2016) (Thomas, J., concurring) (only the government can sue for public

rights violations).

President Washington exercised this prerogative by directing prosecutions during the Whiskey Rebellion while ordering dismissals and granting pardons when justice demanded—as when he instructed

a nolle prosequi for two innocent rebels in 1793. See

Letter from George Washington to William Rawle

(Mar. 13, 1793), https://perma.cc/K6XQ-72AG.

Yet the FCA’s qui tam provisions turn this

principle on its head. They place the Executive’s

sword in the hands of private citizens by supplanting

prosecutorial discretion with a bounty to enforce

9

federal law. They allow self-appointed relators—unharmed by the alleged fraud—to sue “in the name of

the Government” for penalties and damages owed to

the United States. 31 U.S.C. § 3730(b)(1). These relators aren’t vindicating personal injuries, like a plaintiff suing for discrimination under Title VII; they’re

enforcing public rights, a role reserved for the Executive. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 576–

77 (1992) (suits for “undifferentiated public interest”

belong to the Executive).

Worse still, the FCA insulates relators from

presidential control. The government gets a mere 60day window to intervene, and even then, it must show

“good cause” to take over or later dismiss the suit. Id.

§ 3730(c)(3). If it declines, relators—motivated by

bounties as high as 30%—can press on, relegating the

Executive to a bystander in its own litigation. This

isn’t just a practical inconvenience, it’s constitutionally forbidden. Congress itself cannot initiate a federal law enforcement action to vindicate public

rights—that’s the President’s job. See TransUnion

LLC v. Ramirez, 594 U.S. 413, 429 (2021); United

States v. Nixon, 418 U.S. 683, 693 (1974). Nor may

Congress circumvent its own powerlessness by handing Executive power to a non-Executive.

The Constitution’s structure reinforces this

rule. Congress can authorize private rights of action,

like those under civil rights laws, where individuals

remedy concrete, personal injuries. See Martinez v.

UPMC Susquehanna, 986 F.3d 261, 264–65 (3d Cir.

2021) (age discrimination suit for private injury). But

qui tam suits are different. The bulk of the recovery

goes to the government, with relators pocketing a

bounty—essentially a salary for acting as federal

10

enforcers. See Christine Kexel Chabot, The Founders’

Purse, 110 Va. L. Rev. 1027, 1093–99 (2024). If the

case captions in qui tam suits weren’t proof enough,

this shared recovery confirms they are acting for the

United States, making presidential oversight nonnegotiable. The Constitution carves out (at best) one exception: Congress’s power to grant Letters of Marque

and Reprisal, allowing privateers to act as government agents in wartime. U.S. Const. art. I, § 8, cl. 11.

Even there, however, history’s custom and practice is

that the Executive designates who may privateer. Zac

Morgan & Ian Merritt, Reviving Letters of Marque,

Ctr. for Maritime Strategy (Oct. 29, 2024),

https://bit.ly/4cJ2azA. No such “Qui Tam Clause” exception exists for domestic law enforcement, proving

that the Framers knew how to authorize private enforcers when they wanted to—and didn’t here.

B.

The Appointments Clause: Relators

behave as Officers of the United

States.

The decision below elides yet another flaw: Qui

tam relators violate the Appointments Clause by exercising “significant authority” without being appointed as officers of the United States. U.S. Const.

art. II, § 2, cl. 2. An “Officer” is one who wields “significant authority pursuant to the laws of the United

States,” including conducting litigation to vindicate

public rights. Buckley, 424 U.S. at 126, 140.

Qui tam relators fit the bill—they sue “for the

United States” to recover penalties and damages, a

“quintessentially executive power.” Seila Law, 591

U.S. at 219. Yet they’re self-appointed, bypassing the

President’s appointment power and Senate

11

confirmation. Even if relators have a partial interest

in the bounty, the non-bounty portion of the claim belongs solely to the government. That alone violates

Article II. For although the government assigns to the

relator a “sufficient partial interest in the litigation to

qualify for Article III standing, the majority interest

that is not signed over—and therefore still owned by

the government—must be prosecuted by an officer of

the United States under the Appointments Clause,

and must be faithfully managed by the Executive under the Take Care Clause.” Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 772 (5th Cir. 2001) (Smith,

J., dissenting).

Justices Thomas, Kavanaugh, and Barrett

have signaled that qui tam suits raise serious Article

II concerns, inviting review in an “appropriate case.”

United States ex rel. Polansky, 599 U.S. at 442 (Kavanaugh, J., concurring, joined by Barrett, J.); id. at

449 (Thomas, J., dissenting); Wisconsin Bell, Inc. v.

United States ex rel. Heath, 604 U.S. 140, 166–67

(2025) (Kavanaugh, J., concurring, joined by Thomas,

J.) (“The Act’s qui tam provisions raise substantial

constitutional questions under Article II.”). Those

concerns are well founded.

Qui tam defenders argue that relators aren’t officers because their role is temporary or lacks formal

employment. That’s unpersuasive. The Supreme

Court has recognized even temporary prosecutors,

like independent counsel, as officers. Morrison, 487

U.S. at 671. Relators’ bounties, often vastly exceeding

the salaries of appointed government officials, mirror

the fee-based compensation of early federal officers.

See Nicholas R. Parrillo, Against the Profit Motive 1–

48 (2013). Their “office” is continuous under the FCA,

12

even if filled case-by-case. See Lucia, 585 U.S. at 245

(continuous office requires an appointment).

By prescribing the exclusive means for appointing any “Officer of the United States,” the Appointments Clause safeguards the Constitution’s “structural integrity” by ensuring that those who wield significant federal authority are “accountable to political

force and the will of the people.” Freytag v. Comm’r,

501 U.S. 878, 884 (1991). But political accountability

collapses if, as here, private enforcers of federal law

have no need to answer to one of the elected branches.

C.

The Take Care Clause: Relators hijack the Executive’s discretion.

The qui tam provisions also gut the President’s

duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. The Framers separated

legislative and executive powers to prevent tyranny,

ensuring the President alone decides how (and when)

to enforce the law. See The Federalist No. 47 (James

Madison). This discretion—whether to prioritize certain cases, under-enforce statutes for public welfare,

or halt prosecutions—protects liberty and balances

national priorities. See In re Aiken Cnty., 725 F.3d

255, 264 (D.C. Cir. 2013) (Kavanaugh, J.) (prosecutorial discretion protects against oppressive enforcement). President Washington exercised this discretion in the Whiskey Rebellion, for example, directing

prosecutions and dismissals to align with justice and

policy—as when he ordered prosecutions for neutrality violations in 1793. See Proclamation of Neutrality

(Apr. 22, 1793).

13

The FCA, however, hands all this discretion to

private relators, who decide when, where, and how to

sue, driven by profit rather than public interest.

These “bounty hunters” impose unpredictable litigation costs, with 1,297 qui tam suits filed in 2025 alone.

See U.S. Dep’t of Justice, False Claims Act Settlements, supra. Some qui tam suits, brought in the

name of the United States, are motivated by ideological aims like opposition to fracking. See United States

ex rel. Relators v. Muskingum Watershed Conservancy

Dist., 2017 WL 4102369, at *5 (N.D. Ohio Sept. 15,

2017). These suits are often contrary to the Executive’s own policy preferences. See Liam Mayo, Local

representatives and Trump administration reopen

fracking conversation for Delaware River Basin, Delaware Currents (March 4, 2025), https://perma.cc/

48K7-X5P9.

Only a unitary Executive, answerable to the people, can faithfully execute the laws. Yet even when

the government intervenes, relators retain rights to

continue as parties, constraining executive control. 31

U.S.C. § 3730(c)(1). This “shadow executive” undermines the President’s ability to set enforcement priorities, risking conflicts with public welfare, national security, or economic stability. See Steven G. Calabresi

& Christopher S. Yoo, The Unitary Executive 4–5

(2008). This constitutional infirmity in the FCA is a

deep structural defect that demands the Court’s immediate attention.

14

II.

THE COURT SHOULD GRANT REVIEW TO CLAR-

IFY THAT HISTORY CANNOT OVERRIDE CONSTITUTIONAL TEXT.

Respondents may point to early qui tam statutes enacted by the First Congress to claim constitutional legitimacy. But history cannot trump clear constitutional text. N.Y. State Rifle, 597 U.S. at 36 (“to

the extent [history] contradicts what the text says, the

text controls”).

Early Congresses weren’t infallible. Their first

statute, prescribing state officials’ oaths, was blatantly unconstitutional. See Gary Lawson, The Constitution’s Congress, 89 B.U. L. Rev. 399, 404–06

(2009). Or take the Sedition Act, which criminalized

“false, scandalous, and malicious” statements against

the government. See An Act in Addition to the Act,

Entitled “An Act for the Punishment of Certain

Crimes Against the United States,” 1 Stat. 596 (1798).

Although the Sedition Act was never tested in court,

“the attack upon its validity has carried the day in the

court of history.” N.Y. Times v. Sullivan, 376 U.S. 254,

276 (1964).

Nor is early presidential acquiescence to qui

tam suits dispositive. Although one or more Presidents might accept a novel practice that violates Article II, “the separation of powers does not depend on

the views of individual Presidents, nor on whether the

encroached-upon branch approves the encroachment.” Free Enter. Fund v. Pub. Co. Acct. Oversight

Bd., 561 U.S. 477, 497 (2010) (internal quotation

marks and citation omitted). A President cannot

“choose to bind his successors by diminishing their

powers.” Id.

15

Those early qui tam “stop-gap measures” were

reflexively adopted from English practice—rooted in

parliamentary supremacy, not the Constitution’s separation of powers—and quickly fell into disuse as the

Executive developed enforcement capacity. See 13 Op.

O.L.C. 207, 235 (1989) (Barr Memo); Polansky, 599

U.S. at 450 (Thomas, J., dissenting).

At all events, early qui tam statutes, unlike the

FCA, didn’t explicitly bar presidential control. The

modern FCA’s limits—requiring “good cause” for intervention or dismissal—create a novel insulation

from executive oversight, unlike their founding-era

counterparts. The 1791 case of customs inspector

Samuel Dodge shows why. When President Washington pardoned Dodge, the government remitted its

fine, but the relator kept his share—not because the

President lacked control, but because the fine was already paid, and the pardon’s scope was debated. See

Letter from Richard Harrison to Alexander Hamilton

(May 24, 1791). This reflects practical limits, not constitutional ones. Early cases like Trout, 199 U.S.

at 212, and United States ex rel. Marcus v. Hess, 317

U.S. 537 (1943) upheld qui tam statutes but never

squarely addressed Article II’s Vesting or Take Care

Clauses, limiting their relevance. What isn’t considered isn’t decided.

The FCA’s modern provisions, revised in 1986,

go far beyond their early counterparts. They create a

system in which relators operate as a “shadow body”

of enforcers, insulated from the President’s Article II

authority. That’s a bridge too far. Congress can always incentivize private suits for private rights. It is

free to expand non-litigation bounty systems, like the

Centers for Medicare & Medicaid Services’ incentive

16

programs, which allow whistleblowers to report fraud

and receive rewards—without filing suit. But Congress cannot privatize the Presidency. Nor can it discard the Constitution’s crucial structural limits.

In sum, the FCA’s qui tam provisions defy Article II’s text, structure, and purpose. They disperse

executive power to unappointed relators, erode presidential accountability, and threaten the separation of

powers. The Framers crafted a system where one

President, answerable to the people, wields the Executive’s sword. It’s time to honor that design. And that

starts with granting the writ.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

April 24, 2026

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org