A Constitutional Defense of Qui Tam

This article provides a constitutional defense of the FCA qui tam action.  Part II discusses the history of qui tam actions and describes the FCA statutory scheme in detail.  Part III examines the Article III standing issue, first sketching the general contours of the standing doctrine, then applying that doctrine to the FCA qui tam action.  Part IV analyzes the Article II issues.  It first discusses the three Article II provisions that have been used to challenge FCA qui tam actions: the separation of powers doctrine, the Take Care Clause, and the Appointments Clause.  It then applies these provisions to the three characteristics of qui tam that have come under Article II attack: the restrictions on the Executive Branch=s prosecutorial powers, the delegation of prosecutorial powers to unappointed citizens, and the delegation of other prosecutorial powers to the Judicial Branch.  Part V steps beyond the doctrinal analysis and argues that two unique features of qui tam give especially strong weight to the argument for constitutionality: its dispersal of power among the citizenry rather than among other Branches of government, and its existence at the time the Constitution was framed.  Part VI concludes.