DOJ Will Defend the Constitutionality of the FCA Under Pam Bondi

President Trump’s nominee for Attorney General, Pam Bondi, testified in her confirmation hearing that under her leadership, U.S. Department of Justice (DOJ) would devote sufficient resources to False Claims Act (FCA) enforcement and defend the constitutionality of the FCA’s qui tam provisions allowing whistleblowers to file FCA cases and litigate declined FCA cases.

The FCA has historically been non-partisan, and there have been substantial annual FCA recoveries under both Republican and Democratic administrations. As expected, therefore, Ms. Bondi testified in response to a question from Senator Chuck Grassley (R-IA) — the Senate’s stalwart FCA supporter and author of the 1986 FCA amendments — that if confirmed she would utilize staffing and funding levels to properly support and prosecute FCA cases. While the Trump administration continues its transition, this testimony suggests a continued DOJ emphasis on FCA cases.

Ms. Bondi also affirmed that the FCA’s qui tam whistleblower provisions are constitutional. As previously discussed, this issue has received substantial attention since last year’s ruling by Judge Mizelle in the Middle District of Florida that the qui tam device is unconstitutional. The ruling is significant because FCA statistics demonstrate that qui tam cases substantially drive FCA enforcement. As highlighted in the Fiscal Year (FY) 2024 FCA statistics, analyzed in a prior post, qui tam FCA cases filed by whistleblowers drive the large majority of FCA cases, and these cases yield a substantial portion of FCA recoveries. Whistleblowers filed a record 979 cases. In addition, in FY24, only about a quarter of FCA recoveries came from cases that DOJ initiated, while most qui tam cases generated the balance.

That decision is currently on appeal before the Eleventh Circuit Court of Appeals and may reach the Supreme Court. Senator Grassley filed an amicus brief in the ongoing appeal supporting the FCA’s qui tam provisions. He argued that qui tam provisions are rooted in history and have been consistently upheld by courts.

In light of this recent challenge, Senator Grassley asked if Ms. Bondi would commit to continuing DOJ’s defense of the constitutionality of the FCA as the Attorney General. Ms. Bondi confirmed that DOJ would do so. Given the volume of FCA cases and recoveries that arise through qui tam cases, it seems reasonable that under any administration, DOJ would seek to protect the FCA’s qui tam provisions.

We will continue to monitor any developments in this area.

© Arnold & Porter Kaye Scholer LLP 2025 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.