Article II After Zafirov: Building the Constitutional Defense to Qui Tam Liability

For four decades, the constitutional soundness of the False Claims Act's qui tam mechanism was treated as settled. That assumption no longer holds. A single district court decision, now under review in the Eleventh Circuit, has converted a long-simmering academic argument into a live appellate question with national consequences. Defendants facing qui tam exposure should understand the challenge, and more importantly, should preserve it now.

This paper sets out the constitutional theory, traces its movement through the federal courts, and offers a practical framework for raising and preserving the Article II defense at the pleading stage. The objective is straightforward. Whatever the Eleventh Circuit decides, a defendant who has properly raised and preserved the issue is positioned to benefit from a favorable ruling, including a possible decision from the Supreme Court. A defendant who has not raised it may forfeit the argument entirely.

The Constitutional Theory

The qui tam provisions of the False Claims Act authorize a private person, called a relator, to file suit in the name of the United States and to litigate that suit even when the government declines to intervene. The relator selects the defendants, chooses the legal theories, controls the litigation, and shares in any recovery. The constitutional argument is that a private person exercising this degree of sovereign litigating authority is exercising the executive power of the United States, and that Article II does not permit it.

The argument proceeds along three clauses of Article II. Each is independent. A defendant should plead all three.

The Appointments Clause. The core contention is that a qui tam relator is an "Officer of the United States" who must be appointed in the manner the Constitution prescribes, by the President, a court of law, or a department head. A relator is none of these. A relator self-appoints by filing a complaint. If a relator exercises "significant authority pursuant to the laws of the United States" and occupies a continuing position, the relator is an officer, and a self-appointed officer is a constitutional impossibility.

The Vesting Clause. Article II vests the executive power in the President. Enforcing federal law through civil litigation in the name of the United States is a core executive function. When a private relator wields that power without meaningful Presidential control, the arrangement intrudes on the authority the Vesting Clause commits to the President alone.

The Take Care Clause. The President must "take Care that the Laws be faithfully executed." A relator who controls a declined case operates largely outside the President's supervisory reach. The government's residual statutory controls, the defense contends, are insufficient to satisfy the constitutional requirement of executive accountability.

From Dissent to District Court

The modern revival of this question traces to a single Supreme Court dissent. In United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), Justice Thomas, dissenting, questioned whether the qui tam device can be reconciled with Article II. He observed that relators appear to exercise core executive power without appointment or meaningful supervision. Two other Justices, concurring, noted that the constitutional question warranted consideration in an appropriate case.

That signal did not go unheeded. On September 30, 2024, Judge Kathryn Kimball Mizelle of the Middle District of Florida became the first federal judge to hold the qui tam provisions unconstitutional. In United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024), the relator alleged that her former employer misrepresented patient diagnosis codes to inflate Medicare reimbursements. The government declined to intervene. Rather than reaching the fraud allegations, the court dismissed on constitutional grounds, holding that the relator was an unappointed officer exercising executive power in violation of the Appointments Clause.

Yet no one, not the President, not a department head, and not a court of law, appointed Zafirov to the office of relator. Instead, relying on an idiosyncratic provision of the Act, Zafirov appointed herself. This she may not do.

— United States ex rel. Zafirov v. Florida Medical Associates, LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024)

The decision was, and remains, an outlier. Every other federal court to consider the merits of the Article II challenge after Polansky has rejected it, including another court within the same district. But an outlier on appeal is precisely the situation that rewards defendants who have preserved the issue.

The Appeal and the Emerging Split

Both the Department of Justice and the relator appealed. On December 12, 2025, a panel of the Eleventh Circuit heard oral argument in Zafirov, No. 24-13581. The panel comprised Judges Robert J. Luck and Elizabeth L. Branch, joined by Senior District Judge Federico A. Moreno sitting by designation. Observers across the defense and qui tam bar described the argument as closely contested. The panel pressed both sides on the historical pedigree of qui tam actions, the degree of government control retained over declined cases, and whether a relator's temporary, case-specific role resembles a continuing federal office. As of this writing, the decision is pending.

Zafirov is not the only vehicle. The constitutional question is now poised to reach at least two other circuits, which raises the prospect of the split that tends to attract Supreme Court review.

• Third Circuit. The issue has been briefed in United States ex rel. Penelow v. Janssen Products, LP, No. 25-1818, an appeal arising from a substantial FCA judgment. The Third Circuit has not previously addressed the question.
• Sixth Circuit. A district court certified the Article II question for interlocutory appeal in In re TriHealth, Inc., after denying a motion to dismiss that raised the constitutional challenge.
• Fifth Circuit. Although no controlling opinion has yet resolved the question, individual judges have signaled in concurrences that the constitutional concerns merit attention.

The trajectory matters for defense strategy. As Judge Branch noted at argument, several Justices have already raised substantial questions about the provisions' compliance with Article II. Whatever the Eleventh Circuit decides, the losing side is widely expected to seek further review, and the question appears destined for the Supreme Court in the near term.

A Preservation Playbook for Defendants

The defense value of the Article II challenge does not depend on winning it at the trial level today. It depends on raising it correctly and preserving it for appeal. A defendant who waits for the law to settle before asserting the argument may find the argument waived. The following framework reflects a disciplined approach to preservation.

Raise the challenge at the pleading stage. The cleanest vehicle is a motion to dismiss or a motion for judgment on the pleadings asserting that the qui tam provisions violate Article II. Raising the issue early, in a declined case in particular, frames the constitutional question before the merits and creates a clean record. The strongest posture mirrors Zafirov itself, a declined case in which the relator alone drives the litigation.

Plead all three clauses with specificity. Do not rely on the Appointments Clause alone. Develop the Vesting Clause and Take Care Clause theories as independent grounds, each supported by the relator's actual control over the litigation. Tie the argument to the specific facts of the relator's authority in the case, the defendants chosen, the theories raised, the absence of government intervention.

Preserve through every stage. Renew the constitutional objection in the answer, in any Rule 12 motion, at summary judgment, and in the pretrial order. Preservation is not a single act. An argument raised once and then dropped can be treated as abandoned. Consistency across the docket protects the issue for appeal.

Coordinate with appellate counsel early. Because the ultimate value of the challenge may be realized only on appeal, or after a favorable decision elsewhere, appellate strategy should inform the trial record from the outset. Our appellate practice works alongside trial teams to ensure the constitutional question is framed and preserved in a manner that survives to the court of appeals and, if necessary, a petition for certiorari.

Beyond the Constitutional Question

The Article II defense does not exist in isolation. It is most effective as one element of a broader defense posture that begins before suit and continues through resolution. Two adjacent considerations deserve attention.

First, the constitutional challenge complements, rather than replaces, the traditional merits defenses. Materiality, scienter, and the public disclosure bar remain central to FCA defense, and a defendant should develop those defenses in parallel. The constitutional argument is an additional layer, not a substitute for a rigorous merits strategy.

Second, disciplined pre-suit work shapes the entire trajectory of a qui tam matter. Early factual development through internal investigations and careful pre-litigation counseling can influence whether the government intervenes, which in turn affects both the merits posture and the strength of the Article II argument. A declined case presents the cleanest constitutional vehicle, and the decisions a defendant makes before and during the government's investigation can affect that posture.

Conclusion

The constitutionality of the qui tam mechanism is genuinely unsettled for the first time in a generation. The Eleventh Circuit's decision in Zafirov will be significant, and the parallel cases in the Third and Sixth Circuits, together with the evident interest of several Justices, make Supreme Court review a real prospect. The defendants best positioned to benefit are those who treat the Article II challenge not as a long shot to be raised once a court has blessed it, but as a defense to be pleaded, developed, and preserved from the first responsive filing. The law may move quickly. A preserved record is what allows a defendant to move with it.