The Government's Private Prosecutors
Introduction When a company defrauds the federal government, the obvious question is who should stop it. The obvious answer is the government itself. Federal prosecutors, inspectors general, and regulators exercise public authority on behalf of the United States. But for more than a century, federal law has allowed private citizens to bring certain lawsuits on the government's behalf.
These whistleblowers are not federal employees. They are private individuals, but through the False Claims Act, they can initiate civil enforcement actions seeking money for the United States and can receive part of what is eventually recovered.
The arrangement has produced billions of dollars in recoveries. But it has also raised an increasingly important constitutional question: Can private citizens exercise federal enforcement power when the Constitution puts that power in the hands of the President?
A recent federal appeals court ruling has kept the question alive.
A Private Citizen in the Government's Name
The modern whistleblower system is largely built around the False Claims Act, a Civil War era law that was used to go after contractors defrauding the Union government.
The statute has a provision known as qui tam, which allows a private person, a relator, to bring a lawsuit in the name of the United States against someone accused of submitting false claims for government money.¹
The government gets notice and can decide whether to intervene. And if it declines, the whistleblower can often continue the litigation independently. Successful relators usually get between 15% and 30% of whatever the government gets back, so there's an incentive to find fraud.²
The system is unusual because the private citizen isn't just reporting misconduct. The citizen is helping prosecute it. That distinction is the source of the constitutional controversy.
The Argument Against Qui Tam
The constitution grants executive power to the President and instructs the President to "take Care that the Laws be faithfully executed."³
Critics of qui tam enforcement argue that suing to recover money for the federal government is basically an executive function. If you let a private person kick off and litigate such an action, you're letting that person exercise government authority without being a President-appointed Senate-confirmed officer.
That argument got significant attention in Zafirov v. Florida Medical Associates. The defendants in Zafirov argued that the False Claims Act violated the Appointments Clause, the Take Care Clause and the Vesting Clause, because whistleblowers exercise federal enforcement power despite being private citizens.⁴
A federal district court agreed with the Appointments Clause challenge, concluding that relators effectively functioned as federal officers even though they had never been constitutionally appointed.⁵
The ruling threatened the constitutional foundation of the modern whistleblower system, but it didn't survive appeal.
The Eleventh Circuit's Answer
On September 1, 2026, the U.S. Court of Appeals for the Eleventh Circuit reversed the decision of the district court.⁶ The appeals court concluded that qui tam relators are not officers of the United States because they don't occupy a continuing governmental position established by law.
Their role is temporary and tied to the lawsuit they bring. The court emphasized an important distinction: being authorized by federal law to perform a particular function doesn't necessarily make someone a federal officer
The ruling also fell in line with earlier decisions from the Ninth and Tenth Circuits that had rejected similar Appointments Clause challenges.⁷ That leaves the False Claims Act operational.
The Eleventh Circuit expressly mentioned that in the case, the defendants had raised Take Care Clause and Vesting Clause challenges, issues the district court hadn't taken up.
The constitutional debate therefore extends beyond whether whistleblowers are officially "officers." The deeper issue is whether a private citizen can exercise executive enforcement power at all
Why Congress Created the System
There's a practical reason Congress has relied on whistleblowers. The federal government can't watch over every Medicare transaction, defense contract, government grant and procurement. Fraud happens inside private organizations, where a person may have information that investigators don't have.
Whistleblowers can function as an early warning system. The numbers demonstrate the scale of that role. In fiscal year 2025, whistleblowers filed 1,297 False Claims Act lawsuits, while settlements and judgments under the statute exceeded $6.8 billion, according to the Justice Department.⁹
The Justice Department has relied on whistleblower information. In May 2026, the department announced reforms designed to speed up its review of qui tam complaints that involved fraud in federally funded benefit programs.¹⁰
That makes the constitutional dispute more than just an academic question. If qui tam authority was dramatically restricted, the federal government would lose one of its most established means of finding fraud.
But Incentives Create Their Own Problems
Whistleblower enforcement also poses a difficult policy concern: money changes behavior. A relator who can get millions of dollars has an obvious incentive to pursue a claim. That can expose real fraud, but it can also lead to aggressive litigation over ambiguous regulatory violations.
The False Claims Act gives the government important control. The government can intervene in a case, take over the litigation, settle the claim or dismiss an action under certain circumstances.¹¹ The relator is supposed to have the authority to pursue but not completely independent governmental authority.
That supervision is central to the government's constitutional defense of qui tam.
The system's defenders can argue that private citizens aren't replacing federal prosecutors. They're initiating litigation via a statutory mechanism that's ultimately subject to government control. In that view, qui tam isn't the private execution of federal power. It's congressional designed assistance to public enforcement
The Constitutional Question Beneath the Whistleblower
The controversy exposes a larger tension in the American constitutional system.The Constitution separates out governmental power not simply by subject matter, but by institution.
Congress writes laws. The President executes them. The courts adjudicate disputes. Qui tam complicates the structure by giving a private citizen a government-created pathway into federal enforcement
But that doesn't automatically make the system unconstitutional. The Constitution doesn't prohibit private parties from participating in the enforcement of public laws. Private civil actions have existed in American law for a long time.
But the more authority Congress gives a private party, the harder it is to find where public enforcement ends and private enforcement begins. The line may be increasingly important as the federal government increasingly relies on data, private contractors, whistleblower reports and outside actors to detect misconduct
The constitutional problem isn't just about who "officers" are. It's about whether the government can exercise power by people the government doesn't appoint or directly control.
Why It Matters
Whistleblowers occupy an unusual place in American law. They are private citizens, but can seek public money. They may have personal financial incentives, but can expose wrongdoing the government would otherwise miss. Their lawsuits produce enormous recoveries and raise fundamental questions about executive authority
The controversy also reveals a bigger constitutional tradeoff. More private enforcement can make government more effective at detecting fraud.
But greater reliance on private enforcement can blur the boundary between citizens assisting government and citizens exercising government power. The boundary matters because the Constitution's separation of powers is not just an organizational chart. It determines who is authorized to act in the name of the United States
Conclusion
The American legal system has long depended on people willing to expose wrongdoing from within institutions. The difficult constitutional question is what happens when the law gives those people more than the power to speak.
The False Claims Act makes whistleblowers participants in federal litigation and gives them financial incentives and the ability to pursue claims in the government's name.
The system has recovered billions of dollars, but it has forced the courts to confront an uncomfortable question about the structure of federal power. A private citizen may discover the government's fraud. But when that citizen goes to court, who is actually exercising the government's power?
The answer will define not only the future of the False Claims Act, but also how far Congress can push the enforcement of federal law beyond the traditional machinery of the executive branch
31 U.S.C. § 3730(b).
31 U.S.C. § 3730(d).
U.S. Const. art. II, § 1, cl. 1; id. art. II, § 3.
Zafirov v. Florida Medical Associates, LLC, No. 24-13581 (11th Cir. Sept. 1, 2026).
United States ex rel. Zafirov v. Florida Medical Associates, LLC, No. 8:19-cv-01236, Middle District of Florida (2024).
Zafirov v. Florida Medical Associates, LLC, No. 24-13581 (11th Cir. Sept. 1, 2026).
Kelly v. Boeing Co., 9 F.3d 743, 757–59 (9th Cir. 1993); United States ex rel. Stone v. Rockwell International Corp., 282 F.3d 787, 804–05 (10th Cir. 2002). The Eleventh Circuit joined these decisions.
Zafirov, No. 24-13581. The appellate court addressed the Appointments Clause issue while remanding for consideration of the remaining constitutional challenges.
U.S. Department of Justice, “False Claims Act Settlements and Judgments Exceed $6.8B in Fiscal Year 2025,” Jan. 16, 2026.
U.S. Department of Justice, “Civil Division Moves to Fast-Track Benefits Fraud Enforcement,” May 27, 2026.
31 U.S.C. § 3730(c).
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