Last year, Justice Clarence Thomas’s dissent in United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023) (“Polansky”), resurrected an old debate about whether the False Claims Act (FCA) qui tam provisions violate Article II of the Constitution. Under this theory, the FCA qui tam provisions improperly give a private party the authority to control litigation on behalf of the United States, a responsibility that the Constitution exclusively vests in the Executive Branch.
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