The Volokh Conspiracy

--George Burton Adams, "The Continuity of English Equity"

Enough about ICWA! Let's talk about qui tam!

Under the False Claims Act, private citizens can bring suit on behalf of the federal government for a "civil fraud" against the United States. These suits are known as qui tam claims, Latin for "in the name of the King." Qui tam suits raise several significant separation of powers issues. First, how can a private citizen assert an Article III injury, when the federal government suffers the injury? Second, how can a private citizen represent the "unitary" executive branch, as reflected in Article II?

In 1989, William Barr, the Assistant Attorney General for the Office of Legal Counsel, prepared a memorandum opinion for the Attorney General, concluding that private qui tam actions violate Article III standing doctrine and the separation of powers. The precise status of this document is somewhat in dispute, as an "Editor's Note" explains that "This memorandum was not intended to present the official position of the Department of Justice at the time of its writing, but rather was intended to contribute to a discussion within the Department over what position should be adopted." And in 1996, Walter Dellinger, as head of OLC, repudiated Barr's views.

But in the late 1980s and early 1990s, the constitutionality of qui tam suits was really, really important. And, as it turns out, this issue became something of a litmus test in the George H.W. Bush administration. When Justice Brennan retired, there were several candidates on the short list: Edith Jones, Kenneth Starr, Laurence Silberman, and (of course) David Souter. In hindsight, anyone would have been better than Souter, but one of the more qualified nominees--Kenneth Starr was disqualified. Why? Apparently, as Solicitor General, he thought a challenge to the qui tam provision would not work. As a result, he was blacklisted by Barr, as well as Mike Luttig. Yes, that Mike Luttig. Before Luttig was a former conservative judge (really a former-conservative who was a judge), he was a high-flying wunderkind in the Bush administration. Jan Crawford recounts in her book, Supreme Conflict, Barr and Luttig determined that Starr's views on qui tam made him unacceptable. (Jon Adler discussed it here). And, Attorney General Dick Thornburgh threatened to resign if Bush selected Starr. Alas, instead of Starr, we got David Souter.

So how was Souter on the qui tam issue? In 2000, Justice Souter joined a Justice Stevens dissent, finding that litigants had Article III standing to sue a state agency under the federal False Claims Act. Some stellar vetting there by the Bushies. (Runs in the family, apparently.) But that decision, Vermont Agency of Natural Resources v. U.S. ex rel Stevens, left open the Article II question. And, perhaps to Barr and Luttig's credit, the other Bush 41 nominee was solid on this issue.

Fast-forward to June 16, 2023. The Supreme Court decided United States ex rel. Polansky v. Executive Health Resources, Inc. No, not that roaming Polanski. This case involved a Doctor Polansky who alleged that a health firm defrauded the government. The question presented is fairly technical: can the government move to dismiss a qui tam case if it fails to intervene during an early stage known as the "sealing" period. Justice Kagan wrote a delightful majority opinion for eight justices, finding that the government could move to dismiss the complaint, even if it fails to intervene during the "sealing" period. Justice Thomas dissented. He would have found that the government lacks this ability.

I don't have strong thoughts on who has the better of the statutory argument. Rather, I will focus on the constitutional issue. Justice Thomas's dissent urged the Court to consider, in the appropriate case, whether the qui tam provision is consistent with Article II. Indeed, the case for its unconstitutionality is much stronger today than in 1989. After all, Barr could only rely on Morrison, and Justice Scalia's dissent. But now we have Seila Law and a string of other cases endorsing the unitary executive theory in various regards.

Justice Thomas explains:

The FCA's qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation. Because "[t]he entire 'executive Power' belongs to the President alone," Seila Law LLC v. Consumer Financial Protection Bureau, (2020), it can only be exercised by the President and those acting under him, see id. (THOMAS, J., concurring in part and dissenting in part). And, as "[a] lawsuit is the ultimate remedy for a breach of the law," the Court has held that "conducting civil litigation . . . for vindicating public rights" of the United States is an "executive functio[n]" that "may be discharged only by persons who are 'Officers of the United States'" under the Appointments Clause, Art. II, §2, cl. 2. Buckley v. Valeo, (1976) (per curiam). A private relator under the FCA, however, is not "appointed as an officer of the United States" under Article II. Cochise Consultancy, Inc. v. United States ex rel. Hunt (2019). It thus appears to follow that Congress cannot authorize a private relator to wield executive authority to represent the United States' interests in civil litigation.

What is the strongest argument in favor the constitutionality of qui tam? Past practice:

The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes.

But Justice Thomas, as usual, favors original meaning over congressional practice:

"Standing alone," however, "historical patterns cannot justify contemporary violations of constitutional guarantees," Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when the practice in question "covers our entire national existence and indeed predates it," Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 678 (1970). Nor is enactment by the First Congress a guarantee of a statute's constitutionality. See Marbury v. Madison, 1 Cranch 137 (1803).

I don't think Marsh does enough here. In Marsh, the existence of prayer by the first Congress supported Nebraska's prayer policy. By contrast, Thomas argues that the qui tam laws by the first Congress undermine a similar law enacted two centuries later. Also, I would be very careful not to endorse Chief Justice Marshall's reasoning in Marbury. There are very good arguments to be made that Marshall did not offer the best reading of the Judiciary Act of 1789.

Ultimately, though Justice Thomas puts little weigh in liquidation. One day earlier, Justice Thomas doubted the relevance of early practice concerning "Indian affairs." Meanwhile, Justice Gorsuch insisted that early practice "liquidated" his understanding of the original meaning. (I can speculate why Justice Gorsuch could not join the Polansky dissent, or even signal his agreement with it).

The question is now squarely teed up for some future cert petition:

In examining these issues, moreover, it may be necessary to consider a question that Stevens left unaddressed: What is the source of Congress' power to effect partial assignments of the United States' damages claims? One candidate might be the Necessary and Proper Clause, Art. I, §8, cl. 18; but, if qui tam suits violate Article II, then it appears unlikely that any assignment effectuated by the FCA's qui tam provisions could be considered "necessary and proper for carrying into Execution" any constitutional power. See Gonzales v. Raich, 545 U. S. 1, 60 (2005)(THOMAS, J., dissenting) ("To act under the Necessary and Proper Clause," "Congress must select a means" not "'prohibited' by the Constitution" or "inconsistent with 'the letter and spirit of the Constitution'" (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819); alteration omitted)).

Are there more votes for cert? Justice Kavanaugh wrote a brief concurrence, joined by Justice Barrett, suggesting this issue can be litigated in the future.

I join the Court's opinion in full. I add only that I agree with JUSTICE THOMAS that "[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation." Post, at 7–8 (dissenting opinion). In my view, the Court should consider the competing arguments on the Article II issue in an appropriate case.

Again, when Kavanaugh swings left, his conservative concurrence says "we'll see." But given Justice Gorsuch's preference for liquidation, I don't see him casting a fourth vote for cert. What about the Chief? Maybe he can finally hunt the white whale from the Reagan years, and strike down the qui tam provision? Nope. He upheld Roe. He upheld the 1982 VRA Amendments. And I suspect he will soon uphold racial preferences. Roberts will now go out of his way to do the opposite of what the Reagan Revolution would predict. Sort of like Luttig.

Speaking of predictions, maybe in three decades, the Trump SCOTUS strategy will come to fruition, and there will be four votes to overrule Chevron!

The thirty-fourth episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange features an exclusive interview with Stuart Chaseman, the middle-aged Chicagoan musician and entrepreneur who quickly emerged as the fan favorite of the Netflix show "Jewish Matchmaking." While TikToks declared him a male role model to emulate, conservative pundit Ben Shapiro singled him out for only wanting to date women with liberal values.

What Stuart has to say to Ben Shapiro, how Stuart experienced his own Beatlemania moment at a Jewish-Greek food festival in NYC, why a girlfriend lied to him for two years about her political views, and much more can be found on this podcast episode--along with a sneak peek at Stuart's latest music album!

In Brackeen, Justice Barrett repeatedly faulted counsel for the petitioners for failing to meet their burden. Here, I'd like to focus on one of her criticisms:

We recognize that our case law puts petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress's power, and we have insisted that Congress's power has limits without saying what they are. Yet petitioners' strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law—that would at least give us something to work with. Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but. [FN4]

[FN 4] Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1) those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconstitutional because it does not fall within any of these categories. We have never broken down our cases this way. But even if Texas's theory is descriptively accurate, Texas offers no explanation for why Congress's power is limited to these categories.

In my earlier post, I mentioned this passage reminded me of United States v. Lopez (1995). Here, I'd like to expand on that theme.

Lopez presented a constitutional challenge to the Gun-Free School Zones Act. This law made it a federal crime "for any individual knowingly to possess a firearm" within 1,000 feet of a school zone. The law did not purport to regulate any commercial activity. Under the law, the government did not need to show that the firearm had traveled in interstate commerce — the so-called jurisdictional hook. At the time, the federal government had a six-decade winning streak in Commerce Clause challenges. Law students were taught that no limits existed on federal power. But that standard would all change in 1995.

Alfonso Lopez, the Defendant in this case, was a high school senior. He was represented by John R. Carter, a federal public defender from San Antonio, with the assistance of Carter Phillips and Sidley & Austin. (I emailed John Carter more than a decade ago to express my thanks for his service, but never received a reply.) I encourage you to read Lopez's brief. Here is the relevant paragraph:

Even if this Court finds that Congress need not have made formal or informal findings or even have before it concrete evidence of an effect on commerce when passing the Gun-Free School Zones Act, the Act still cannot withstand constitutional scrutiny. Chief Justice Marshall recognized long ago that Congress's power under the Commerce Clause is not unlimited, because "[t]he enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State." Gibbons v. Ogden, 9 Wheat. (22 U.S.) at 194. Thus, "the power to regulate commerce, though broad indeed, has limits." Maryland v. Wirtz, 392 U.S. 183, 196 (1968). Because it regulates noneconomic activity without a substantial nexus to interstate commerce, the Gun-Free School Zones Act exceeds those limits.

The brief is well done, but I submit it would not meet Justice Barrett's standard. The respondent here was attempting to draw a line that had never been drawn before. In candor, Lopez did not offer a comprehensive theory to rationalize two centuries of commerce clause doctrine. There is not a straight line from Gibbons to Wickard.

Rather, that theory would only be developed by Chief Justice Rehnquist's majority opinion. He delineated the scope of federal power since the New Deal. The three buckets that Chief Justice Rehnquist identified resemble the three buckets that Texas Solicitor General Judd Stone presented at oral argument. Rehnquist, like Stone, did not expressly explain "why Congress's power is limited to these categories." Rather they were attempting to rationalize non-originalist precedent in the service of originalism. That is, even if the Court had approved erroneous expansions of federal power in the past, those expansions can be cabined under a limiting principle. In Lopez, Chief Justice Rehnquist found that the Court had never approved a federal regulation of non-economic activity. The United States, and legions of law professors, insisted this limiting principle was illusory. But the Supreme Court drew this important line in the sand to prevent the further erosion of the original meaning of the Constitution. As my colleague Randy Barnett, explains, this far, but no farther.

How would Justice Barrett have voted in Lopez? Given her opinion in Brackeen, I think she would have found that the economic/non-economic distinction did not fully account for, and rationalize, all of the Court's cases. Therefore, Justice Barrett would not disturb that line of precedent. She would have deferred to Congress, and upheld the Gun-Free School Zones Act. Or what about NFIB? Did the plaintiffs put forward a comprehensive theory that accounted for all of the Court's cases regarding the line between activity and non-activity? I can show you an army of law professors who would say no.

In many regards, I see Justice Barrett's framework in Brackeen as consistent with her framework in Doe v. Mills: she is erecting barriers to make it harder for litigants to obtain relief. In the abstract, I don't object to neutral principles, like the party presentation rule, as a means to cabin judicial power. But Barrett's novel rules have never been applied before. And they are novel, since she cannot cite any precedent stating that litigants must "offer a theory for rationalizing [a] body of law." If we take Barrett's approach seriously, than landmark decisions like Lopez and NFIB likely would have never happened. And, of course, there is the asymmetry because progressive litigants will not need to clear any of these hurdles. Liberals are graded on a generous curve while conservatives are stuck on a pass/fail basis.

In many cases today, counting to five is much easier on the left than on the right, even with three Trump appointees on an alleged 6-3 conservative court. Governor DeSantis is not wrong.

I have written at some length about the Kavanaugh concurrence. Last term, in Dobbs and Bruen, we saw the Kavanaugh concurrences when he swings right. In both cases, Justice Kavanaugh decided questions that were not presented. In Dobbs, Justice Kavanaugh reached out to decide the right-to-travel issue. And in Bruen, he stated that states can require "mental health records checks" to obtain a carry permit. I won't rehash my criticism of these concurrences.

Recently, we have seen two Kavanaugh concurrences when he swings left in Allen v. Milligan and in Haaland v. Brackeen. Both cases share a common trait: he rules for the liberal side, but writes a short concurrence raising possible ways that conservatives may win in the future.

In Brackeen, Justice Kavanaugh joined Justice Barrett's majority opinion in full. He was MIA in the originalist debate between Justices Gorsuch and Thomas. The majority found that the plaintiffs did not have standing to bring a facial equal protection claim. Rather, Justice Barrett observed in Footnote 10, the "the individual petitioners can challenge ICWA's constitutionality in state court, as the Brackeens have done in their adoption proceedings." Justice Kavanaugh wrote a solo concurring opinion that stretched two paragraphs. He said that the "equal protection is serious" and "raise[s] significant questions under bedrock equal protection principles and this Court's precedents." It's serious and significant! Justice Kavanaugh predicted that "this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing." Will there even be four votes to grant certiorari in such a case? I can count to three: Thomas, Alito, and apparently, Kavanaugh. Will Justice Barrett, who just upheld this momentous social legislation turn around and say it is actually unconstitutional in most applications? I am doubtful, given her exceptionally high bar to disturb precedent. Justice Kavanaugh can write a powerful dissental, saying "this issue is still really serious!"

In Allen, Justice Kavanaugh cast the deciding fifth vote to rule against Alabama. He also wrote a four-page concurrence that clarified how he understands the precedents. But in the penultimate paragraph, he offers a glimmer of hope:

JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

Maybe, just maybe, Justice Kavanaugh will adopt a Shelby County-esque framework, such that the 1982 amendments have an expiration date--just like the 25-year clock in Grutter. But you know there will be a Northwest Austin interim decision, that gives Congress a chance to fix the VRA. And maybe, if Congress doesn't update a five-decade-old statute, the Court will lower the boom. By that time, the Court will likely have at least 15 members. Justice Kavanaugh can write a partial dissent for a 9-6 Court. I'm holding my breath the Court will ever reach this issue.

In Dobbs and Bruen, Kavanaugh stated unequivocally how liberals could win in the future. But in Allen and Brackeen, Kavanaugh could only write "we'll see." I've heard this script before. There was a time when Justice Kavanaugh urged the Court to take on the Independent State Legislature Doctrine. But he promptly backed off that theory after the 2020 election. And stay tuned for Moore v. Harper. Justice Kavanuagh's predictions are not worth much. But in the interim, lawyers will spend vast resources litigating the issue, hoping that maybe, just maybe, Justice Kavanaugh can provide a fifth vote. Reminds me of the era when Justice Kennedy was in charge, and we tried to read tea leaves in his concurrences. Don't count on it.

On the Supreme Court, the two most committed originalists are Justices Thomas and Gorsuch. Indeed, when Justice Thomas writes a separate opinion, urging the Court to return to first principles, the member most likely to join him is Justice Gorsuch. Still, these two originalists do not always agree. Perhaps one of the most striking examples of this discordance is Brackeen. Justice Gorsuch wrote a vigorous originalist decision which contended that ICWA was squarely supported by Congress's enumerated powers. And Justice Thomas wrote a vigorous originalist decision which argued that ICWA was beyond Congress's enumerated powers.

In many regards, this debate reminded me of Zivotofsky v. Kerry (2015), where Justices Scalia and Thomas vigorously disagreed about whether the recognition power belonged to Congress or to the President. In that case, there were so many respectful, but pointed back-and-forths between Scalia and Thomas. Here Scalia accused Thomas of favoring King George over George Washington:

Whereas the Court's analysis threatens congressional power over foreign affairs with gradual erosion, the [Thomas] concurrence's approach shatters it in one stroke. The combination of (a) the concurrence's assertion of broad, unenumerated "residual powers" in the President (b) its parsimonious interpretation of Congress's enumerated powers; and (c) its even more parsimonious interpretation of Congress's authority to enact laws "necessary and proper for carrying into Execu- tion" the President's executive powers; produces (d) a presidency more reminiscent of George III than George Washington.

And Thomas called Scalia a legislative supremacist:

JUSTICE SCALIA disapproves of my "assertion of broad, unenumerated 'residual powers' in the President," but offers no response to my interpretation of the words "executive Power" in the Constitution . . .

And his decision about the Constitution's resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America.

At the time, I wrote, "These intellectual giants rarely duel like this, but this was a battle worthy of the ages." But if Zivotofsky was a clash of the titans, Brackeen was like two boats passing each other on the River Styx. Justice Gorsuch never cited Justices Thomas, and Justice Thomas never cited Justice Gorsuch.

Without any sort of back-and-forth, readers will have a tough time figuring out which originalist decision is stronger. Indeed, critics of originalism can seize on these two opinions as evidence that originalism is bunk--an indeterminate modality that can reach two diametrically opposite conclusions.

I've now finished reading and thinking about the entire decision. It took me a while. For those who care about originalism, Brackeen is probably the most significant case of the term. I'll put aside the commandeering issue, since neither Justice Gorsuch nor Justice Thomas engages it. Rather, I'll focus on the question of whether ICWA is within Congress's Article I powers. All parties agree that the treaty-making power is irrelevant. And Justices Gorsuch and Thomas both seem to reject the nebulous "plenary" power doctrine, which is not tethered to any constitutional text. ICWA, to the extent it is within Congress's Article I powers, can only be supported by Article I, Section 8, Clause 3:

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

In United States v. Lopez (1995), Justice Thomas wrote that the word "commerce" in the Interstate Commerce Clause referred to "trade or exchange—not all economically gainful activity that has some attenuated connection to trade or exchange." And recently, Justice Gorsuch joined Justice Thomas's concurrence in Sackett, which reaffirmed that definition of "commerce" from Lopez. So as best as I can tell, Justice Gorsuch agrees with the methodology Justice Thomas used to reach that definition of "commerce"--namely, original public meaning originalism.

However, Justices Thomas and Gorsuch disagree about the meaning of "commerce" in the Indian Commerce Clause. Justice Gorsuch contends the meaning of "commerce" is broader with regard to Congress's powers to regulate Indian tribes. This analysis, which stretches about two pages, appears in Part II-C-2 of the concurrence. Part III-A-2 of Justice Thomas's dissent provides the counter.

I will walk through several points on which Gorsuch and Thomas disagree.

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Law review editors, lawyers, and paralegals are trained to check whether cited legal authorities have been overruled or otherwise abrogated. This is the right thing to do, but it's also the smart thing to do, since it helps avoid embarrassing and credibility-destroying errors. Fortunately, law has long had tools for doing this, from the old process of "Shepardizing" to electronic tools available in Westlaw, Lexis, and elsewhere.

But I'm not sure whether there are similar protocols for checking whether scientific articles or other academic articles have been retracted. My sense is that there are tools for doing this in various fields, but they aren't well-integrated with each other. Does your law journal or law firm have guidance for doing this? It would be good to share this information, especially if (as I suspect) many journals and firms don't actually have systems in place to do this.