Since 1986, whistleblowers have been prominent in the government’s war on fraud, accounting for $53 billion of the $75 billion recovered from swindlers on defense contracts, from Medicare and from other federal programs. A 1986 federal law that awards whistleblowers up to 30% of the recovery. That makes the law “one of the government’s top fraud-fighting tools,” says James King of the Anti-Fraud Coalition, a watchdog group. A federal judge in Florida declared a key part of the law unconstitutional, reports the Los Angeles Times. The provision concerns "qui tam" actions, in which private litigants bring lawsuits on behalf of the government as well as themselves. The ruling was by Judge Kathryn Kimball Mizelle, a former law clerk for Supreme Court Justice Clarence Thomas whom President Trump appointed in 2020.
In the case, physician Clarissa Zafirov accused her employers and related companies of faking and inflating diagnostic codes to increase their Medicare reimbursements. The qui tam rules are part of the False Claims Act, a Civil War-era law that was enacted in response to reports of wholesale plundering by suppliers of military goods and ammo to the War Department. The law was enforced through a “public-private scheme,” as Supreme Court Justice Elena Kagan wrote in upholding it. Mizelle asserted that Zafirov was acting as a government officer in pursuing the case. Because Zafirov had not been appointed by the president, her role violated the “appointments clause” of Article II of the Constitution, the judge said. Her ruling tracks closely with a dissent by Thomas In an 8-1 Supreme Court ruling last year. Thomas contended that 'there is good reason to suspect that [the Constitution] does not permit private relators to represent the United States’ interests in False Claims Act suits.”