FIGHT FOR YOUR RIGHT TO LITIGATE - QUI-TAM, ARTICLE-II, AND THE PRESIDENT

In this note, Ara Lovitt argues that the qui tam provisions of the Fal se Claims Act, which allow private citizens to litigate on behalf of t he United States, violate the separation of powers by interfering with the Executive Branch's authority to ''take Care that the Laws be fait hfully Executed.'' The Supreme Court has not yet ruled on the constitu tionality of qui ram, but to date every lower federal court to do so h as rejected the separation of powers challenge by applying the lenient Morrison v. Olson balancing test. In Morrison v. Olson, the Supreme C ourt upheld the independent prosecutor provisions of the Ethics in Gov ernment Act against a separation of powers challenge that they unconst itutionally deprived the Executive Branch of the sole authority to enf orce the law. The Supreme Court in Morrison applied a functionalist ba lancing test to uphold the constitutionality of the independent prosec utor. Mr. Lovitt argues that balancing tests are too unprotective of t he important structural function of the separation of powers, and that courts should frame clear rules whenever possible in separation of po wers challenges. Mr. Lovitt therefore critiques the lower courts' exte nsion of the Morrison balancing test to uphold qui tam, and argues tha t the Morrison approach should not be followed in future separation of power challenges to encroachments on executive prerogatives. As a pro posal to bring more clarity to an otherwise murky separation of powers jurisprudence, Mr. Lovitt suggests that courts distinguish qui tam fr om the independent prosecutor provisions of the Ethics in Government A ct in three rulelike ways: (1) qui tam violates the cope executive pow er to initiate litigation; (2) qui ram delegates executive power to pr ivate entities; (3) the qui tam provisions of the False Claims Act per mit Article III courts to second-guess prosecutorial decisionmaking. I n conclusion Mr. Lovitt criticizes the Executive Branch's recent acqui escence to qui tam before the Supreme Court, and calls upon the Execut ive to defend its constitutional prerogatives in the future.