Our Predictions for 2024: False Claims Act Constitutionality

In the latest episode of Bona Fide Needs, Pub K Managing Editor Bill Olver is joined by Arnold & Porter False Claims Act Investigations & Defense attorneys Christian Sheehan and Jayce Born for a discussion on the constitutionality of the False Claims Act. Supreme Court Justice Thomas revived the long-dormant issue in his dissenting opinion in U.S. ex rel. Polansky v. Executive Health Resources Inc. In that case, the Supreme Court majority held that the government has broad discretion to seek dismissal of a relator’s qui tam actions. But Justice Thomas, in his dissent, stated that there “are substantial arguments that the qui tam device is inconsistent with Article II [of the Constitution] and that private relators may not represent the interests of the United States in litigation.”

On the heels of Polansky, defendants have begun to mount challenges to the constitutionality of the FCA. Here, Christian and Jayce delve into the arguments defendants have made, provide an update on how these challenges have fared thus far, and make predictions about what 2024 may bring.

You can find our analysis on SCOTUS’ Polansky decision here, as well as a second analysis of the decision here.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.