Justices Again Go Out of Their Way To Question Qui Tam Constitutionality

On February 21, 2025, the U.S. Supreme Court released its opinion in Wisconsin Bell, Inc. v. United States ex rel. Heath, No. 23-1127. The primary question at issue was a relatively niche one in the False Claims Act (FCA) world but the broader takeaway for the FCA bar is that several justices remain very much interested in the constitutionality of the FCA’s qui tam provisions, increasing the possibility that the high Court will take up the issue sooner rather than later.

The question presented in Wisconsin Bell was whether claims made to the E-Rate program — which uses an unusual funding mechanism to provide subsidies for schools’ internet costs — fall under the FCA. Justice Kagan’s unanimous opinion for the Court answered that question in the affirmative, holding that the U.S. Department of Justice’s involvement in helping E-Rate collect underpaid funds, and obtain restitution from those who defraud E-Rate, means the government “provides” at least a portion of E-Rate’s funding, sufficient to allow for liability under the FCA. To reach this conclusion, the Court did not need to resolve questions about whether all of the funds used by E-Rate are provided by the government, or whether the entity that administers E-Rate is an “agent of the United States” — questions that may be central to an upcoming case (not involving the FCA) in which the Court will consider whether E-Rate’s structure is constitutional.

But, as in the Polansky case a year and a half ago, the headline FCA news came from a concurring opinion. In a one-paragraph concurrence joined by Justice Thomas, Justice Kavanaugh reiterated his prior view that the FCA’s “qui tam provisions raise substantial constitutional questions under Article II,” and “in an appropriate case, the Court should consider the competing arguments on the Article II issue.” While the substance of this concurrence is nothing new — indeed, it is nearly identical to Justice Kavanaugh’s concurrence in Polansky — it is notable that Justices Thomas and Kavanaugh again went out of their way to raise this issue in a case that, as the concurrence described it, addressed “a narrow statutory question” and where “constitutional questions [were] not before the Court.” (Interestingly, although Justice Barrett joined Justice Kavanaugh’s concurrence in Polansky, she did not in Wisconsin Bell.)

As we’ve discussed before, there is a potentially “appropriate case” now percolating in the Eleventh Circuit. As Zafirov moves through that court, Justice Kavanaugh’s Wisconsin Bell concurrence serves as a timely reminder that there appear to be at least two strong votes for certiorari if and when it reaches the Supreme Court.

We here at Qui Notes will continue to monitor all the developments as the constitutionality of the qui tam device continues to be litigated.

© 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.