Justice Thomas, Originalism, and Truly Unconscionable Hypocrisy

 By Eric Segall

On Monday, Mike wrote a post about last Friday's opinion allowing the United States government to dismiss a qui tam suit even after it allowed a plaintiff to bring the case. Justice Kagan laid out the issues in the case and the answer:

The False Claims Act imposes civil liability on any person who presents false or fraudulent claims for payment to the Federal Government. The statute is unusual in authorizing private parties— known as relators—to sue on the Government’s behalf. When a relator files a complaint, the Government gets an initial opportunity to intervene in the case. If the Government does so, it takes the lead role. If not, that responsibility falls to the relator, the only person then pressing the suit. But even when that is so, the Government retains certain rights, including the right to intervene later upon a showing of good cause.

The questions presented here concern the Government’s ability to dismiss an FCA suit over a relator’s objection. Everyone agrees that if the Government intervenes at the suit’s start, it can later move to dismiss. But the parties dispute whether, or in what circumstances, the same is true if the Government declines its initial chance to intervene... Today, we hold that the Government may seek dismissal of an FCA action over a relator’s objection so long as it intervened sometime in the litigation, whether at the outset or afterward.

Thomas disagreed with the majority on the statutory question and also hinted strongly that he thought such suits were unconstitutional. Mike's post criticized Thomas's use of the unitary executive theory to argue that qui tam suits may violate Article II and also suggested that Thomas's dissent was inconsistent with Thomas's general method of constitutional interpretation. This post supports that analysis with a little more detail.

I want to focus on a paragraph in Justice Thomas's dissent that is breathtakingly hypocritical and reveals once again that Justice Thomas only cares about policy, not history, tradition, or originalism.

The very first Congress authorized qui tam suits--where private citizens are authorized by law to bring suits on behalf of the United States. Normally, the Department of Justice sues on behalf of the United States but there are many policy reasons why Congress (and state governments) at times allow non-government parties to bring such suits. In fact, the State of Maryland allowed someone to sue on its behalf pursuant to state law in the landmark case of McCullough v. Maryland. Of course, states are not subject to Article II limits, but the point is that qui tam suits have been allowed by state and federal governments for a very long time, a point Thomas does not challenge. Instead he wrote this heinous, absurd, hypocritical paragraph:

The potential inconsistency of qui tam suits with Article II has been noticed for decades [citing only a student note, a lower court judge dissenting, and an OLC Memo]. The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes... “Standing alone,” however, “historical patterns cannot justify contemporary violations of constitutional guarantees,” Marsh v. Chambers, even when the practice in question “covers our entire national existence and indeed predates it,” Walz v. Tax Comm’n.... Nor is enactment by the First Congress a guarantee of a statute’s constitutionality. See Marbury v. Madison.... Finally, we should be especially careful not to overread the early history of federal qui tam statutes given that the Constitution’s creation of a separate Executive Branch coequal to the Legislature was a structural departure from the English system of parliamentary supremacy.... In short, there is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits.

Marsh upheld legislative prayers because of their historical pedigree, and Walz upheld the tax exemptions of churches. Neither case remotely supports Thomas's points and, in fact, Marsh directly contradicts Thomas's arguments. Marbury is completely irrelevant as most scholars agree Chief Justice Marshall badly misinterpreted a federal law for the purpose of establishing judicial review, and in any event the law had not existed for centuries--unlike qui tam suits.

Thomas argues in this paragraph that a practice that existed at and before the founding, has continued to exist for centuries, and has never been struck down by the Court, might now be unconstitutional. Why? Because Thomas accepts a strong version of the unitary executive theory which suggests that only the President can bring suits on behalf of the United States. But nothing in Article II says that and, as noted above, such suits have been around since the first Congress. So the idea that qui tam suits are unconstitutional is not supported by text, history, or precedent. It is supported only by Thomas's policy arguments surrounding the unitary executive theory.

This is the same man who has lectured us for decades that constitutional law is ONLY about text, tradition, and history. This is the man who last term said gun laws must be invalidated by judges unless such laws have historical pedigrees. This is the VERY SAME MAN who has repeatedly said policy considerations have no place in constitutional interpretation.

Justice Thomas did not reach a conclusion about the constitutionality of qui tam suits last Friday but he strongly suggested they violate Article II. Moreover, he essentially rebuked history and originalism in his opinion. As I have written many times before, Thomas is no originalist when he votes. He simply mandates or tries to mandate his policy preferences. 

The next time Justice Thomas writes an opinion castigating his colleagues for not giving sufficient weight to text, history, and tradition, they should just cite the paragraph I quoted above. He might have an answer, but it won't be persuasive or honest--just a reflection of his values and politics.