Lawfare: Reviving Qui Tam Monitoring of Executive Branch Officials
- January 22, 2020
This opinion originally ran on Lawfare and can be found here.
On Jan. 3, President Trump launched an unexpected drone strike that killed Qassem Soleimani, the commander of the Iranian Quds Force. The Soleimani episode makes clear just how weak a constraint the 1973 War Powers Resolution imposes on the president’s power to use military force. As Jack Goldsmith explains, “[O]ur country has—through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence—given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war.”
Unilateral military action is far from the only area where executive power has grown in ways difficult to check. President Trump declared a national emergency to circumvent Congress’s appropriations power; he’s filled his administration with “acting” officials, delaying the Senate’s “advice and consent” power; and his administration has frustrated congressional oversight efforts. Such efforts to stretch the bounds of executive authority carry forward a constitutional experiment with a long and bipartisan history that, as various commentators and scholars have noted, dates back to the Civil War.
There’s a growing consensus that Congress should take action to restore the checks and balances in our constitutional scheme and curb unfettered exercise of executive power. While it is common, and sometimes proper, for executive officials to claim broad powers, mechanisms are needed for Congress and the courts to test such claims of executive authority and counter those that overstep constitutional and statutory boundaries.
As Congress considers various measures to rein in unchecked executive power, it should look back in history to a critical, well-established and underutilized tool for holding executive officials to account: qui tam statutes. Qui tam statutes authorize “qui tam” actions, a form of litigation dating back to at least the 14th century. A qui tam statute imposes a fine on someone who violates a specified legal duty and allows any person (traditionally known as an “informer”) to sue to enforce the fine. The successful informer can keep a percentage of the money collected, and the government gets the rest. Hence the name—“qui tam” is short for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which the Supreme Court has translated as “who pursues this action on our Lord the King’s behalf as well as his own.” In effect, qui tam statutes embody an alternative model of law enforcement. Instead of limiting the job of enforcing the law to government prosecutors, qui tam statutes deputize and incentivize members of the public to act as private prosecutors.
Qui tam statutes have widely fallen out of use today. The most familiar qui tam statute still in effect is the False Claims Act, which imposes a forfeiture on those who defraud the federal government and allows private individuals to sue on the government’s behalf.
However, as one of us (Beck) has detailed, there is a long history of using qui tam statutes to monitor unlawful conduct by government officials in England and the early United States. Beginning in the 14th century, Parliament imposed legal duties on a wide array of executive and judicial officers enforceable by informers who lacked any particularized injury. This legislative practice migrated to the English colonies in America and was followed in every state when the Constitution was ratified.
The earliest federal Congresses deployed qui tam legislation as a standard tool to regulate government behavior. The first Congress used qui tam forfeitures to enforce responsibilities of revenue officers, such as taking the oath of office, posting a table of rates for duties and fees, providing receipts, and avoiding fraudulent and corrupt practices. Congress also deputized qui tam informers to monitor the accuracy and completeness of the first census records and to prevent excessive borrowing by Treasury officials without congressional authorization. The second Congress under the new Constitution authorized qui tam litigation against postal workers who committed a variety of misdeeds, as well as against officials licensing trade with Native American tribes if they engaged in transactions creating a conflict of interest.
That history provides a blueprint for modern legislation that could selectively reinforce the legal accountability of executive branch officials. Imagine, for instance, legislation designed to buttress congressional control over spending. A qui tam statute could specify that the head of any federal agency that expends funds in the absence of a lawful congressional appropriation is subject to a fine of, say, $10,000—or perhaps even $10,000 for every $1,000,000 unlawfully expended. The statute would provide that any member of the public may sue the official to enforce the penalty, and that a successful private litigant is entitled to keep 50 percent of the fine, with the rest going to the U.S. Treasury. To limit the burden on agency officials and prevent forum shopping, the statute might further provide that any qui tam action must be filed in federal district court in the District of Columbia.
To take another example, Congress could employ qui tam legislation to enforce the requirements of the War Powers Resolution. A qui tam statute could impose a fine on executive branch officials for acts such as introducing troops into hostilities (perhaps accompanied by further definition of the term) without consulting with Congress in a situation where such consultation was possible. The statute could permit members of the public to sue to enforce the fine.
While modern Supreme Court doctrine is relatively restrictive about litigants’ standing, it also makes clear that Congress has the power to authorize qui tam suits, making qui tam statutes a particularly promising avenue for reform.
The court’s standing doctrine denies federal courts authority to resolve “generalized grievances” about the legality of challenged conduct. Instead, the court has insisted that the “irreducible constitutional minimum” of Article III standing requires a “particularized” injury to the plaintiff, one that affects the plaintiff “in a personal and individual way.” That doctrine regularly undermines the ability of litigants to enforce important restrictions on executive power. Taxpayers lack standing to challenge unlawful public expenditures. Litigants have been barred from pursuing widely shared public interests, such as obtaining information about government activities. Interest groups have been prevented from litigating when executive agencies improperly fail to regulate.
Even an act of Congress usually cannot create standing to litigate generalized grievances. In Lujan v. Defenders of Wildlife, Justice Antonin Scalia, writing for the Supreme Court, explained that Congress cannot authorize individuals to enforce statutes in the absence of a discrete and personalized injury. The court held that Congress lacks the power to confer on “all persons … an abstract, self-contained, noninstrumental ‘right’” to file suit.
But originalists who have constrained views of standing should have no trouble concluding that qui tam informers satisfy Article III’s standing requirements. There is a long history of statutes authorizing qui tam informers to enforce forfeitures without demonstrating any particularized injury. William Hawkins’s influential 18th-century treatise on “Pleas of the Crown” denied the need to plead injury to the informer in a qui tam or “popular” action “because every Offence, for which such Action is brought, is supposed to be a general Grievance to every Body.” It could not be said in such cases that damage had been done “to the Demandant in particular.” In 1905, the Supreme Court recognized in Marvin v. Trout that the informer in a qui tam action has “no interest whatever in the controversy other than that given by statute.”
Based on the historical pedigree of qui tam statutes in England and the United States, the Supreme Court upheld qui tam informers’ standing in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, a decision penned by Justice Scalia eight years after Lujan. The court explained that, unlike the “procedural right” at issue in Lujan, qui tam statutes effectively assign part of the government’s claim to qui tam informers. Just as other assignees have standing to litigate the claims assigned, informers have standing to enforce the law in the course of seeking to collect their share of the statutory fine.
Qui tam statutes would be a particularly elegant solution to the standing conundrums litigants have recently faced in trying to enforce constitutional and statutory limitations on executive officials. Consider, for example, the Emoluments Clause of Article I, Section 9: “[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The clause is designed principally to protect the general public, rather than prevent harm to individuals. As a result, litigation to enforce the restriction on foreign gifts has become mired in disputes over whether the plaintiffs can satisfy the bar on generalized grievances. In the U.S. Court of Appeals for the Fourth Circuit, for instance, Maryland and the District of Columbia are challenging violations tied to the Trump International Hotel in Washington, D.C. To establish standing, the Maryland and D.C. attorneys general have been forced to litigate contestable claims that foreign government visits to the Trump hotel have taken business away from competing hotels operated by those governments or their citizens—claims the Fourth Circuit initially rejected (the case was recently reargued en banc).
Rather than rely on litigants to conjure up attenuated theories of particularized injury, Congress could facilitate enforcement of the Emoluments Clause through qui tam legislation. A statute specifying the honors, gifts or other benefits an officeholder may accept from a foreign government could impose a fine on any official deviating from statutory limits. The statute could either include or exclude the president as Congress saw fit, based on political calculations or considerations of policy. If the legislation included a qui tam provision, an informer could collect the statutory fine (and keep part of the proceeds) without any need to establish a particularized injury flowing from the violation. A qui tam statute in this context would streamline the process of securing judicial enforcement of Emoluments Clause principles.
Undoubtedly, lawyers for the executive branch would object to qui tam statutes designed to check executive power. They may argue that such statutes violate separation of powers principles or that some issues (e.g., compliance with the War Powers Resolution) are nonjusticiable under the political question doctrine. But those concerns could be minimized by careful drafting. So long as qui tam statutes do not prevent the executive branch from accomplishing its constitutionally assigned functions, they should survive separation of powers challenges. And so long as Congress ties qui tam fines to violations of specific and objectively defined legal duties, qui tam statutes should generally survive political question challenges.
In the War Powers Resolution context, for example, Congress could impose fines on specific officials for failing to terminate the use of U.S. armed forces 60 days after their introduction into hostilities, absent congressional authorization (or 90 days after introduction, if the president certifies an unavoidable military necessity for an extension). Such a statute would allow litigation where the question of authorization is legal in nature, as in the 1999 Kosovo conflict, where the only arguable authorization was an appropriations bill that did not contain the authorizing language the War Powers Resolution requires. The qui tam statute would not raise any additional separation of powers concerns beyond those already implicated by the War Powers Resolution, because it would not impose any additional limitations on the president’s power to use force. It would simply provide a mechanism for courts to enforce the limitations already in effect.
Although Congress could widely deploy qui tam statutes, Congress should avoid the temptation to indiscriminately turn qui tam informers loose on the executive branch. Informers in English and American legal history often earned a reputation as unsavory bounty hunters. Such statutes produced recurring problems, including secret settlements between would-be informers and defendants, fraudulent or malicious claims, intentional selection of inconvenient fora, and elimination of the beneficial exercise of prosecutorial discretion. Historical problems with qui tam enforcement could be mitigated through careful drafting and selective use, but Congress should tread carefully and with much forethought. In a politically polarized environment, however, it may be worth considering selective qui tam monitoring in important settings where one cannot rely on executive officials to police unlawful conduct by executive branch colleagues.
Randy Beck is associate dean for academic affairs and the Justice Thomas O. Marshall Chair of Constitutional Law at the University of Georgia School of Law.
John Langford is counsel at Protect Democracy.