Courts Revisit Constitutionality of the FCA

For a law that first gained fame during the Civil War, the False Claims Act has aged suspiciously well. It still generates billion-dollar recoveries, still keeps health care executives and defense contractors up at night, and still gives whistleblowers a starring role in lawsuits involving fraud against the federal government. But now the FCA has a fresh problem: a constitutional identity crisis.

At the center of the drama is the statute’s qui tam mechanism, the feature that allows private citizens, called relators, to sue in the name of the United States and collect a share of the recovery. For decades, that arrangement was treated as unusual but workable. Today, courts are asking a sharper question: can private whistleblowers constitutionally wield executive power in federal litigation? That is no longer a fringe seminar topic for law nerds and people who alphabetize Supreme Court dissents for fun. It is a live issue in federal courts, and the answer could reshape one of the government’s most powerful anti-fraud tools.

As of spring 2026, the debate is not theoretical. One district court has declared the FCA’s qui tam structure unconstitutional. Several appellate and district judges have signaled serious concern. Other courts, however, have pushed back and defended the law’s historical pedigree and practical safeguards. In other words, the FCA is still standing, but the legal floor beneath it is getting inspected with a flashlight.

Why the False Claims Act Matters So Much

The False Claims Act matters because fraud involving federal money is not exactly a boutique problem. The statute is used to pursue alleged misconduct tied to Medicare, Medicaid, TRICARE, defense procurement, pandemic relief, customs duties, research grants, cybersecurity certifications, and other areas where public money meets private paperwork. That paperwork, as it turns out, can become very expensive when it is false.

The Department of Justice’s recent statistics show why the constitutional fight has everyone’s attention. FCA settlements and judgments exceeded $2.9 billion in fiscal year 2024, and then topped a record-setting $6.8 billion in fiscal year 2025. Whistleblower filings also climbed sharply, with 979 new qui tam suits in 2024 and 1,297 in 2025. Since Congress significantly strengthened the law in 1986, recoveries have surpassed $85 billion. Those are not side-hustle numbers. Those are “the statute still pays the electric bill for a lot of enforcement policy” numbers.

That enforcement structure depends heavily on private relators. In many cases, the government investigates the allegations and intervenes, taking over the litigation. In many others, the government declines intervention, and the relator keeps going. That latter category is where constitutional critics see the biggest problem. If the executive branch declines to take over, can a private person continue prosecuting a case on behalf of the United States without violating Article II of the Constitution? That is the question now ricocheting through the courts.

The Constitutional Fight in Plain English

The Appointments Clause problem

The most prominent challenge focuses on the Appointments Clause. Critics argue that relators exercise significant executive authority because they decide whom to sue, what fraud theories to pursue, whether to settle, and how to litigate claims that belong, at least in part, to the United States. If relators are effectively acting as officers of the United States, the argument goes, they cannot simply appoint themselves by filing a complaint.

That critique gained real momentum after recent Supreme Court writing on executive power. The basic theory is straightforward: conducting civil litigation to vindicate public rights is an executive function, and executive power must remain accountable to the President. From that perspective, allowing a private party to press the government’s claims without presidential appointment or direct executive supervision looks constitutionally awkward, to put it politely.

The Take Care and Vesting Clause angle

Other arguments look to the Vesting Clause and the Take Care Clause. Those provisions are often marshaled by jurists who favor a stronger “unitary executive” approach. Under that view, the Constitution vests executive power in the President, who must retain sufficient control over federal enforcement. If relators can pursue claims that the executive branch chose not to prosecute itself, critics say the statute may dilute presidential control over law enforcement.

Supporters of the FCA respond that the government is far from powerless. The United States receives the complaint under seal, investigates the allegations, can intervene, can seek dismissal, can settle over the relator’s objections in some circumstances, and remains the real party in interest. In their telling, relators are not rogue prosecutors wearing fake DOJ badges. They are private litigants operating within a statutory framework that leaves the executive branch with meaningful control.

The Spark: Zafirov Turned a Theory into a Real Threat

The constitutional debate moved from law review footnotes to center stage in United States ex rel. Zafirov v. Florida Medical Associates. In September 2024, Judge Kathryn Mizelle of the Middle District of Florida ruled that the FCA’s qui tam provision violated the Appointments Clause. She reasoned that a relator in a declined case exercises significant authority under federal law and occupies a continuing role substantial enough to qualify as an officer of the United States. Because the relator was not appointed in the constitutionally required manner, the court dismissed the suit.

That decision landed like a fire alarm in a library. It was the first federal court decision to invalidate the FCA’s qui tam structure on Article II grounds, and it immediately became the case every FCA brief suddenly wanted to talk about. Defendants cited it as proof that the old constitutional consensus had cracked. Relators, the DOJ, and whistleblower advocates called it an outlier.

The case then moved to the Eleventh Circuit, where oral argument took place in December 2025. As of April 21, 2026, the appeal remains a closely watched flashpoint. If the Eleventh Circuit affirms, the FCA will face its first appellate-level ruling striking down the qui tam mechanism. If the court reverses, the issue still is not likely to disappear, because too many judges have already signaled interest in taking another run at it.

Why Supreme Court Watchers Keep Leaning Forward

Polansky did not decide the issue, but it invited it in

The Supreme Court’s 2023 decision in United States ex rel. Polansky v. Executive Health Resources was mostly about when the government can dismiss an FCA suit after initially declining intervention. But the side opinions did something more important for the current debate: they put constitutional doubt in boldface.

Justice Clarence Thomas wrote that the FCA’s qui tam provisions occupy a “constitutional twilight zone” and suggested there are substantial arguments that private relators may not represent the interests of the United States in litigation. Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, agreed that the Court should take up the Article II issue in an appropriate case. That was not a holding, but it was definitely not a shrug.

Wisconsin Bell kept the signal alive

Then came Wisconsin Bell v. United States ex rel. Heath in February 2025. The Court resolved a narrow statutory issue about what counts as a “claim” under the FCA. Yet again, however, the constitutional question refused to leave quietly. Justice Kavanaugh wrote separately, joined by Justice Thomas, to repeat that the FCA’s qui tam provisions raise substantial constitutional questions under Article II.

That matters because it shows the concern was not a one-off curiosity in Polansky. It survived into another FCA case and now looks like a standing invitation for litigants to tee up the issue cleanly. When two justices keep leaving the porch light on, appellate lawyers notice.

Why Many Courts Still Think the FCA Survives

Despite the drama, plenty of judges are not rushing to bulldoze the statute. The pro-FCA view rests on three main ideas.

First, history matters. Qui tam actions predate the modern administrative state and appeared in early Anglo-American law. Supporters argue that the practice was known near the Founding and that early Congresses enacted analogous statutes. In their view, that history strongly suggests the FCA’s structure is not some modern constitutional mutant.

Second, relators may not be officers at all. Several courts and commentators emphasize that relators are temporary private parties, not salaried federal officials with ongoing offices, tenure, or a continuing governmental post. They do not sit inside the executive branch, and their authority is case-specific rather than institutional.

Third, the executive branch still holds meaningful levers. The government investigates complaints during the seal period, may intervene, may settle or seek dismissal, and can shape the litigation in significant ways. Supporters say that is enough control to avoid a true Article II breakdown.

Recent rulings show that resistance to Zafirov is real. In February 2026, Judge Chad Kenney of the Eastern District of Pennsylvania rejected Appointments Clause, Take Care Clause, and Vesting Clause challenges in Jonathan Meyer v. ADS Clinics. Other courts have similarly treated Zafirov as an outlier rather than the beginning of a judicial stampede. Bloomberg Law reported in April 2026 that most federal district judges addressing the issue since that ruling have continued to back the FCA, often reasoning that relators are not officers of the United States and do not hold the kind of continuing position Article II targets.

The Appellate Chessboard Is Getting Crowded

The Eleventh Circuit is not the only court with skin in this game. In March 2026, a Third Circuit panel heard argument in an appeal arising from a New Jersey FCA case, adding another lane for appellate treatment of the constitutional question. Meanwhile, judges in the Fifth Circuit have openly urged reconsideration of older precedent that upheld the statute. A concurring opinion by Judge James Ho in late 2025 argued that the court should revisit its 2001 en banc decision defending the qui tam mechanism.

That is why this issue feels bigger than one Florida ruling. The old appellate consensus dates largely from the 1990s and early 2000s. Today’s federal judiciary is far more engaged with separation-of-powers limits and much more willing to test older statutory arrangements against a muscular view of Article II. Even courts that ultimately uphold the FCA are taking the question more seriously than they used to.

Translation: the constitutional challenge has graduated from “creative defense argument” to “you absolutely need a section on this in your brief.”

What Is Really at Stake if the FCA Changes?

If the Supreme Court or a circuit court eventually narrows or invalidates the current qui tam structure, the practical consequences could be enormous. Non-intervened cases would face the greatest risk, because that is where the relator most clearly functions as the lead litigant. A court might try to preserve intervened cases while limiting purely private prosecution. Or it might conclude that the defect runs more deeply and requires Congress to redesign the system.

For the government, a narrower FCA could mean fewer fraud cases pursued, especially where the DOJ lacks bandwidth to intervene. For whistleblowers, it could mean reduced leverage and fewer incentives to take on long, expensive litigation. For defendants, it could create new dismissal arguments in pending cases and a fresh wave of appellate motion practice.

But even if the statute survives intact, the constitutional scrutiny is already changing behavior. Defense lawyers are raising Article II challenges more aggressively. Plaintiffs’ lawyers are thinking harder about intervention strategy, forum selection, and preserving the record. Corporate compliance teams are recalibrating risk analysis, because betting on constitutional collapse is not a compliance strategy. It is more of a casino strategy, and casinos tend to be better lit.

What Businesses Should Do Right Now

Do not confuse constitutional uncertainty with lower enforcement risk

This is the big one. The FCA remains a potent enforcement tool. DOJ recoveries hit a record in fiscal year 2025, and whistleblower filings continue to surge. Even in a legal climate where some judges question qui tam, the government is still bringing and resolving major cases, especially in health care.

Tighten documentation and billing controls

Many FCA cases begin with mundane problems: coding errors that become patterns, certifications signed too casually, reimbursement assumptions nobody revisited, or compliance warnings that sat in email like forgotten leftovers. Companies receiving federal funds should treat documentation discipline like oxygen, not décor.

Prepare for parallel risks

Even if constitutional attacks gain traction in some qui tam suits, that does not eliminate criminal exposure, administrative remedies, contractual penalties, state false claims statutes, or direct government enforcement. A successful Article II argument may shrink one lane of litigation without clearing the entire highway.

Bottom Line: The FCA Is Not Falling, but It Is Being Rewired in Public

The best way to understand this moment is not to declare the False Claims Act doomed or untouchable. It is neither. Instead, the law is being forced to defend its structure in a judiciary newly attentive to executive power and constitutional accountability. Zafirov cracked open the debate. Polansky and Wisconsin Bell gave the debate Supreme Court oxygen. Recent district and appellate proceedings show the issue is now fully mainstream.

My read is that courts are unlikely to treat the FCA casually from here on out. The statute’s future may depend on whether judges view relators as temporary private assistants helping the sovereign, or as self-appointed enforcers doing work that Article II reserves for properly supervised executive actors. That framing battle will determine whether the FCA’s qui tam engine remains intact, gets narrowed, or heads to Congress for a redesign.

Until then, the smartest takeaway is simple: the FCA is still very real, the constitutional challenge is also very real, and anyone dealing with federal money should assume both truths can exist at the same time. Welcome to modern FCA litigation, where the paperwork is dense, the stakes are high, and the footnotes may eventually decide the future of fraud enforcement.

Experiences Related to the Topic: What This Fight Feels Like in Real Life

Note: The experiences below are illustrative composite scenarios based on recurring real-world patterns in FCA litigation, compliance work, and whistleblower practice.

One compliance officer at a regional health system had spent years training staff on coding accuracy, reimbursement rules, and documentation standards. Then the constitutional challenge to the FCA started making headlines. Suddenly, internal meetings changed tone. Instead of asking only, “Did we bill correctly?” executives began asking, “What happens if a relator files in a circuit that is hostile to qui tam suits?” The answer was sobering: even if one theory of liability became harder to pursue, the operational facts would still matter. That officer’s experience captures the new reality. The constitutional fight may affect litigation strategy, but it does not erase the need for solid compliance.

A relator-side lawyer described a different kind of whiplash. For years, defendants focused on materiality, scienter, damages, and pleading standards. Now, constitutional briefing arrives early and often. In one matter, a case that looked like a classic dispute over medical necessity turned into a mini-seminar on Article II, Buckley, historical qui tam statutes, and the meaning of executive power. The lawyer’s reaction was equal parts admiration and exhaustion. The merits did not disappear, but they had to be litigated alongside a structural constitutional fight that could end the case before discovery ever reached the good emails.

A corporate general counsel at a government contractor experienced the issue from yet another angle. Her company was not facing a filed FCA suit, but she was tracking the constitutional cases because the board kept asking whether the law might weaken. She told them the same thing twice, then put it in writing the third time: uncertainty is not immunity. Her point was practical. A relator might still file. The DOJ might still intervene. State statutes might still apply. And a messy internal investigation would still be messy even if the constitutional law moved in the company’s favor. In her words, “You do not build compliance around a maybe.”

There is also the experience of government lawyers, who now find themselves defending both individual fraud cases and the architecture of the statute itself. That means arguing, at once, that the FCA remains a crucial anti-fraud mechanism and that the executive branch still retains enough control over qui tam litigation to satisfy Article II. It is a delicate position, especially in an era when broader debates over presidential power shape judicial instincts. For DOJ attorneys, the constitutional fight is not abstract doctrine. It is a direct challenge to a statute they use every day.

Then there are whistleblowers themselves. Many come forward after watching concerns go nowhere internally. They are not thinking first about the Appointments Clause. They are thinking about false certifications, manipulated records, kickbacks, or claims sent to federal programs that should never have been paid. But once a case is filed, they quickly learn that the legal system can transform a factual fraud story into a sweeping constitutional dispute. That shift can feel surreal. One minute the argument is about what happened in the billing department; the next, it is about the original meaning of Article II. In today’s FCA world, that journey is becoming less unusual.

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