Qui Tam Litigation Against Government Officials: Constitutional Implications of a Neglected History

Randy Beck*

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The decision effectively granted the President a semi-exclusive power to monitor and ensure the legality of a broad range of executive branch activity.

The Lujan Court overlooked a now relatively unfamiliar aspect of Anglo-American legal history. From the fourteenth through the eighteenth centuries, the English Parliament, American colonial and state legislatures, and early Federal Congresses routinely enacted “qui tam” legislation that authorized uninjured private “informers” to collect penalties for unlawful conduct by government officials. These qui tam statutes authorized private litigation against executive officials in circumstances that would be classified as generalized grievances under modern standing jurisprudence. The Lujan Court acknowledged historical use of qui tam legislation, but apparently believed such statutes were limited to regulation of private parties. The widespread practice of regulating government officials through qui tam legislation in the five centuries leading up to the framing of our Constitution suggests the need to reconsider the reasoning of Lujan, though perhaps not the result, and to revise the Court’s understanding of legislative tools available to monitor the legality of executive branch conduct.

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© 2018 Randy Beck. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Justice Thomas O. Marshall Chair of Constitutional Law, University of Georgia School of Law. The research for this Article was completed while I was a Garwood Visiting Fellow in Princeton University’s James Madison Program in American Ideals and Institutions. I am grateful for the research opportunity provided by the James Madison Program and the University of Georgia School of Law. I also appreciate the helpful comments, questions, and support offered by Beth Beck, Evan Caminker, Elzbieta Cizewska-Martynska, Nathan Chapman, Eric Claeys, Jos´ e Colen, Daniel DiSalvo, Gast´ on Espinosa, David Forte, Matthew Franck, Ben Johnson, Jon Kitch, Sarah Beth Kitch, Sarah Morgan Smith, Robert Nagel, Zachary Price, Jonathan Rose, Benjamin Storey, Jenna Storey, Sasha Volokh, Brad Wilson, participants in a faculty forum at the Southern Methodist University School of Law, and participants in a joint Emory-UGA Faculty Colloquium. The paper also benefited enormously from excellent research assistance and concept development discussions provided by Katie Croghan, Ashley Klein, Andrew McClintock, Stephen Morrison, Amanda Patterson, and Elizabeth Penland.