Exiting the ‘Constitutional Twilight Zone’

As appeared in National Review on 7/11/2023

The basic structure of America’s government is straightforward: Congress makes the laws, the president executes the laws, and the judiciary interprets the laws. But over the years, we have seen these lines blurred to create what Justice Thomas recently called a “constitutional twilight zone” — a zone where the enforcement of our laws is unconstrained and unaccountable because it is outsourced to private individuals.

Thankfully, there is now hope for exiting this twilight zone and returning law enforcement to the executive branch, where it belongs.

The most prominent law in this zone is the False Claims Act. That Act allows private citizens to function as private attorneys general by bringing lawsuits on behalf of the government against those who have allegedly defrauded the government. Indeed, the law incentivizes these suits by awarding successful plaintiffs a bounty of between fifteen and thirty percent of any monies recovered.

At first blush, this arrangement may seem quite good — a productive public/private partnership. But it is rife with danger because it allows private individuals to take over a government function and potentially act against the public’s best interest.

The Supreme Court’s decision earlier this month in United States ex rel. Polansky v. Executive Health Resources, Inc., which concerned a lawsuit alleging Medicare fraud, highlights this danger.

In Polansky, a private citizen brought a lawsuit against a company that was alleged to have helped hospitals overbill Medicare. The government wanted the suit dismissed, but the private plaintiff wanted the suit to continue. This is not particularly unusual. The government may not want a claim pursued for many reasons, including a low probability of success or the government’s own view of the facts. By contrast, private plaintiffs want to see their suit through to the end so that they receive a financial benefit.

The Supreme Court resolved this conflict by holding that the government can dismiss a suit over a private plaintiff’s objection so long as it has intervened in the case.

But perhaps more importantly, Justice Thomas, in dissent, argued that the False Claims Act’s enforcement mechanism may violate Article II of the Constitution by delegating to private citizens executive authority to enforce the law. And Justices Kavanaugh and Barrett — both of whom were in the majority in Polansky — agreed that there are at least “substantial arguments” for this view.

This is encouraging, especially since the False Claims Act’s structure is not a unicorn. There are numerous federal laws that allow private citizens to function as private attorneys general. And according to an upcoming University of Pennsylvania Law Review Article by Professor Diego A. Zambrano and his students, there are at least 3,500 state statutes that do the same.

One of these laws is the Americans with Disabilities Act. And next term, the Supreme Court will have a chance to consider the relationship between Article II and the private enforcement mechanism in the Americans with Disabilities Act, albeit indirectly.

Acheson Hotels LLC v. Laufer poses the question of whether “tester” plaintiffs under the Americans with Disabilities Act have standing to sue. “Tester” plaintiffs, in effect, stand in the shoes of the executive by searching out supposed violations of the Act and then filing suit to remedy those supposed violations — and collect fees — even if they never plan to visit the allegedly offending business.

The Center for Constitutional Responsibility, which I run, filed a brief in Acheson. We believe that the Americans with Disabilities Act has been a great success. But we argue that allowing “tester” plaintiffs to sue businesses they never intend to visit directly implicates Article II of the Constitution.

This is because Article II clearly provides that it is the president (and his subordinates) that have the power to enforce the laws on the public’s behalf. Faithful execution of the laws is one of the president’s core responsibilities — he cannot abdicate this presidential power, and Congress cannot delegate it away to anyone, much less to uninjured (or barely injured) private parties.

This is not an academic problem. When private parties are in charge, there is no incentive for enforcement discretion — everyone guilty of violating a statute gets the book thrown at them. And there is little to no accounting for the severity of the violation or consideration of the context surrounding it.

Moreover, legislators seeking to avoid political accountability may use private plaintiffs to escape constitutional limits on executive enforcement. As a result, these laws could discourage individuals from exercising their constitutional rights.

It is heartening to see at least three Justices recognizing the constitutional problems with these laws. When the Court has an opportunity to consider the issues squarely, we hope it will agree such laws are unconstitutional, and we might finally exit the “constitutional twilight zone.”

Karen R. Harned serves as Executive Director of the Center for Constitutional Responsibility.