There is a longstanding debate over the wisdom of allowing governmental powers to be exercised by private parties. But is there also a constitutional problem?

For decades, liberals and progressives agitated for the expansion of “private attorney general” provisions in both federal and state law under which a private plaintiff — sometimes, a person who was not injured at all by the defendant’s conduct — could nonetheless bring suit to enforce the public interest protected by the law in question. There was always serious legal tension between such provisions and the rules of standing to sue. Article III standing requires that the plaintiff assert some personal injury. (Some state courts enforce similar limitations on their jurisdiction). Thus, a person who had a legal right to sue might not be able to do so in federal court, or possibly, any court.

The long progressive love affair with this tactic turned abruptly into horror and cries that it was a new and utterly unprecedented thing when Texas passed a private attorney general provision, S.B. 8, to enforce its abortion law. At the time — this was shortly before Roe v. Wade was overturned — the trick used by Texas was to create a cause of action that could not be removed to federal court precisely because nobody had standing, and could not be enjoined by a federal court, either. The latter part was just a short-term innovation, and became largely irrelevant once Roe was gone.

The broader debate about private attorney general statutes, and similar innovations, is that the enforcement of the law by the executive branch is limited by discretion and finite resources; if you create financial incentives to file more lawsuits, you’ll get more lawsuits, and you’ll also get flimsy ones that might actually make bad law and set back the powers of the executive. I spent a lot of years defending private civil suits under the federal securities laws. For the most part, these were not suits where nobody was injured, but they nonetheless involved a similar dynamic. The Securities and Exchange Commission was usually careful to pick its battles in federal court (it was especially fond of waiting to take cases to the Supreme Court only when it was facing an underfunded defendant without good lawyers). But the vast quantity of private litigation brought by the class action plaintiffs’ bar meant that a lot of the body of law binding the SEC was made by less strategic litigants.

One of the most longstanding forms of the private attorney general statute is the qui tam lawsuit, in which a litigant files suit in the name of the sovereign. “Qui tam” literally comes from the phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur”: “Who brings the action for the King as well as for himself.” It originated as far back as 13th-century England, so it is hardly a modern innovation, and it appeared in American statutory law as far back as the First Congress. The main use of the qui tam action these days is under the False Claims Act, which was originally enacted in 1863 to combat fraud in wartime contracting at a time when the Justice Department did not even exist, so federal enforcement powers in court were exercised by the local United States Attorneys. As the Supreme Court put it in United States ex rel. Marcus v. Hess, (1943), “one of the least expensive and most effective means of preventing frauds on the Treasury is to make the perpetrators of them liable to actions by private persons acting, if you please, under the strong stimulus of personal ill will or the hope of gain.”

The qui tam suit allows a “relator” to bring a lawsuit in his own name “ex rel United States,” i.e., on behalf of the United States, asserting that the United States has been defrauded by the defendant. Under current practice, the United States can intervene and take over the lawsuit shortly after it is filed. Typically, once it declines to do so, the relator pursues the case as if it’s his or her own suit. In today’s 8–1 decision in U.S., ex rel. Polansky v. Executive Health Resources, written by Justice Elena Kagan, however, the Court read the FCA to give the United States a second bite at the apple to intervene later in the case. Justice Clarence Thomas dissented alone, arguing against this reading.

Thomas, however, also raised a second concern. In his view, the unitary concentration of executive power in the hands of the president under Article II may be violated by the qui tam mechanism. The Court in Marcus brushed off concerns that the qui tam action might undermine executive control:

The government presses upon us strong arguments of policy against the statutory plan, but the entire force of these considerations is directed solely at what the government thinks Congress should have done, rather than at what it did. It is said that effective law enforcement requires that control of litigation be left to the Attorney General; that divided control is against the public interest; that the Attorney General might believe that war interests would be injured by filing suits such as this; that permission to outsiders to sue might bring unseemly races for the opportunity of profiting from the government’s investigations, and finally that conditions have changed since the Act was passed in 1863. But the trouble with these arguments is that they are addressed to the wrong forum. Conditions may have changed, but the statute has not.

Furthermore, one of the chief purposes of the Act, which was itself first passed in war time, was to stimulate action to protect the government against war frauds. To that end, prosecuting attorneys were enjoined to be diligent in enforcement of the Act’s provisions, and large rewards were offered to stimulate actions by private parties should the prosecuting officers be tardy in bringing the suits. The very fact that Congress passed this statute shows that it concluded that other considerations of policy outweighed those now emphasized by the government; for most of the arguments made here militate against any informer action at all.

That was a very different Court in 1943 (with eight FDR appointees at the height of the Second World War), and it was focused more on the particular policies triggered by the posture of Marcus. The suit in Marcus was based upon facts uncovered in a federal criminal investigation; due to amendments passed in the immediate aftermath of Marcus, the FCA today requires a relator to be the original source of the discovery of the fraud. Moreover, Thomas noted that the Court in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 (2000), treated the qui tam lawsuit as an assignment of the government’s property (i.e., its right to recover fraudulently claimed funds), and made this the basis for its conclusion that the qui tam relator had a personal right at stake and thus had Article III standing. If that assignment could be defeated later in the case by the United States intervening, perhaps that standing decision was wrong.

Thomas was, however, more circumspect about where he would come out. He acknowledged the long historical pedigree of qui tam suits, although he noted that English practice represented a different system of separation of powers than our own, and cited Marbury v. Madison as a reminder that even the First Congress did not always get the Constitution right. But he left off by noting that these were “complex questions, which I would leave for the parties and the court below to consider after resolving the statutory issues that have been the focus of this case up to now.” Justices Brett Kavanaugh and Amy Coney Barrett, who otherwise joined Kagan’s majority opinion, agreed with Thomas that the Article II issue should be decided “in an appropriate case.” The invitation is now open.