Yesterday, less than an hour into the first day of confirmation hearings for attorney general nominee Pam Bondi, Senator Chuck Grassley (R-IA) questioned Bondi on her commitment to defending the constitutionality of the False Claims Act (FCA) if she is confirmed. Bondi responded that she would “of course” defend the constitutionality of the FCA and that she understands the importance of whistleblowers, the FCA’s protections, and “the money it brings back to our country.” Senator Grassley’s questioning indicated he was focused on the FCA’s qui tam provisions, as it comes on the heels of U.S. ex rel. Zafirov v. Florida Medical Associates, Inc., — F.Supp.3d –, 2024 WL 4349242 (M.D. Fla. Sept. 30, 2024), a first-of-its-kind decision from Judge Kathryn Kimball Mizelle, who held that the FCA’s qui tam provisions improperly appoint a relator “an officer of the United States” in violation of the Appointments Clause in Article II of the Constitution, and are therefore unconstitutional. Senator Grassley appeared to be seeking assurances about Bondi’s willingness to ensure the Department of Justice continues to defend the FCA’s qui tam provisions and commit the resources necessary to do so.
Senator Grassley is the well-known architect of the 1986 Amendments to the FCA that overhauled the qui tam provisions and gave them renewed focus. According to Senator Grassley, through the 2024 Fiscal Year, the United States has recovered more than $78 billion from FCA actions, the majority of which came from qui tam actions brought by relators. The constitutionality of the qui tam provisions has been a simmering debate among FCA practitioners for many years but has enjoyed a renewed focus since Justice Thomas’s dissent in the Supreme Court’s decision in U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), which identified what Justice Thomas called “substantial arguments” that the qui tam provisions are unconstitutional. The recent Zafirov decision, now on appeal before the Eleventh Circuit, may ultimately give the Supreme Court the opportunity to take up that issue.
While it remains unclear how the change in administration may affect the debate about the constitutionality of the qui tam provisions, the fact that Senator Grassley asked attorney general nominee Bondi about her willingness to defend their constitutionality so early in the hearing suggests that the importance of the question has not been lost on Congress. Assuming Bondi is confirmed by the Senate, which seems likely at this point, time will tell whether her statement yesterday holds during the coming administration.