A Fourteenth Century Solution to a Twenty-first Century Problem: Using Qui Tam Legislation to Limit Executive War Power

• Publication year: 2023

A Fourteenth Century Solution to a Twenty-First Century Problem: Using Qui Tam Legislation to Limit Executive War Power

Nicholas R. Lewis
University of Georgia School of Law, nicklewis@uga.edu

A Fourteenth Century Solution to a Twenty-First Century Problem: Using Qui Tam Legislation to Limit Executive War Power

Cover Page Footnote

* J.D. Candidate, 2023, University of Georgia School of Law; B.A., 2020, University of Georgia. I thank Professor Randy Beck for his guidance and assistance; my study group (Hanna Dunnavant, Emily Johnson, and Carson Masenthin); and my parents, for their neverending support.

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A FOURTHEENTH CENTURY SOLUTION TO A TWENTY-FIRST CENTURY PROBLEM: USING QUI TAM LEGISLATION TO LIMIT EXECUTIVE WAR POWER

Nicholas R. Lewis^*

The United States was founded on the principle that Congress alone has the power to take the nation to war. This founding principle has failed. In its place now stands the modern principle that the Executive holds the power to initiate, wage, and conclude warfare. This modern principle, which is irreconcilable with the intent of America's Founders, is a problem that must be remedied. And while this problem may be most pronounced in the twenty-first century, a possible solution comes from the most unlikely of places: fourteenth century England. In the 1300s, England developed qui tam legislation, a novel legal system of holding government officials accountable. This Note argues that this system, which enabled private citizens to sue officials on behalf of the public, should be used to limit expansive executive war power. Tracing the development of executive war power and the history of qui tam legislation, this Note offers a framework in which presidential war power can be limited through existing qui tam laws or through passing new legislation.

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Table of Contents

I. Introduction....................................................................833

II. The Breadth of the Domain: The Rise of Executive War Power and Existing Limitations..............................837

A. THE FOUNDING.........................................................837
B. THE EXPANSION OF EXECUTIVE WAR POWER FROM THE CIVIL WAR THROUGH WORLD WAR II.............................842
C. MODERN EXECUTIVE WAR POWER.............................849

III. The World of Qui Tam.................................................855

A. THE ORIGIN AND DEVELOPMENT OF QUI TAM LEGISLATION............................................................... 855
B. QUI TAM LEGISLATION IN THE UNITED STATES..........859

IV. Using Qui Tam to Limit the Domain of Executive War Power....................................................................................862

A. THE UNIQUE POSITION OF QUI TAM LEGISLATION TO LIMIT WAR POWER........................................................862
B. THE FALSE CLAIMS ACT.............................................866
C. AMENDING THE WAR POWERS RESOLUTION AND AUTHORIZATION FOR USE OF MILITARY FORCE.............868

V. Conclusion......................................................................872

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i. Introduction

"When Alexander saw the breadth of his domain he wept, for there were no more worlds to conquer."—Hans Gruber¹

In the winter of 1777, as the war for American independence raged, the highest ranking British officer in American custody, Sir Archibald Campbell, wrote a letter addressing his imprisonment to General George Washington, Commander in Chief of the Continental Army.² In his letter, Campbell implored Washington to use "the powers which I have lately understood [have] been reposed in [your Excellency] as dictator" to improve Campbell's situation in captivity, where he received "a treatment more notoriously dishonorable [and] inhuman than has ever existed in the annals of modern war."³ The dishonorable and inhumane treatment Campbell complained of was his confinement to a common jail cell covered in cobwebs where the walls were "black with the grease and litter of successive criminals" and where he was denied "the attendance of a single servant."⁴ In Washington's response, he made clear to Campbell that "I [Washington] am not invested with the powers you suppose; and it is incompatible with my authority, as my inclination, to contravene any determination Congress may make."⁵ Washington refused to act, or otherwise order others, to improve Campbell's treatment without congressional approval.⁶

234 years later, in the spring of 2011, a different war raged. President Barack Obama was confronted with a deteriorating situation in Libya where a civil war had erupted between a revolutionary movement known as the Arab Spring and Libyan

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dictator Muammar Gaddafi.⁷ Without a declaration of war or authorization from Congress, President Obama ordered air strikes and deployed troops to Libya.⁸ After President Obama failed to receive congressional authorization for the troop deployment within the ninety-day period prescribed by the War Powers Resolution (WPR), members of Congress challenged the legality of the President's actions.⁹ In response, the Obama Administration stated that the President could direct military operations in Libya "without prior congressional approval,"¹⁰ continuing the military operations in Libya.¹¹

These two divergent wartime scenarios, one involving then-General Washington's actions during the Revolutionary War and the other President Obama's actions during the 2011 Libya conflict, depict the irreconcilable views on the scope of war power held by two American presidents. How did the breadth of executive war power evolve from a situation where the Commander in Chief, without congressional approval, refused to relocate a prisoner of war from a jail cell to a situation where the Commander in Chief, also without congressional authorization, deployed American forces to wage war in a foreign country and disregarded the restrictions of the WPR?¹²

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Since the Korean War, the breadth of presidential war power has included both the power to initiate and to wage war.¹³ To date, the last time Congress declared war was in 1941 when the United States entered World War II.¹⁴ Following World War II, however, the "period of congressional decisions to take the nation to war ended" and the modern "era of presidential wars" began.¹⁵ The power to take the nation to war now rests with the President.¹⁶ The period between the end of World War II and the present day, particularly the twenty years since the terrorist attacks on September 11, 2001, has also seen a dramatic expansion in the discretion given to presidents to determine who America's enemies are and the scope of wars.¹⁷ This expansion provided recent administrations with "considerable discretion in engaging in new military conflicts across the globe without returning to Congress."¹⁸

Two central problems exist regarding the trend of "presidential wars" that has defined the twenty-first century. First, modern executive war power far oversteps the intentions of America's Founders that the president's powers as Commander in Chief "would amount to nothing more than the supreme command and direction of the military and naval forces," while the power to declare war, and to raise and regulate fleets and armies would remain with Congress.¹⁹ Despite the Founders' intentions, recent exercises of executive war power seem to assert that "the power of

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Congress to 'declare war' really means the opposite of what it says—that the Framers intended to share these powers between Congress and the President."²⁰

Second, despite statutory restrictions that limit abuses of executive war power, namely the WPR, these restrictions have failed to constrain expansive presidential action in practice.²¹ Each of President Joe Biden's recent predecessors—Presidents Trump, Obama, Bush, and Clinton—has been accused of violating the WPR.²² Further, litigants seeking to use the judicial system to enforce the WPR against presidents have found that the federal courts are hesitant in adjudicating or even hearing their claims arising under the WPR.²³

Aside from the question of the origins and development over time of the executive's expansive war powers, a more pressing question lies in how presidential behavior that disregards constitutional and statutory restrictions can be limited.

This Note argues that qui tam legislation—a method of enforcing laws against government officials—provides a potential solution to America's increasingly unconstrained executive war power problem. Originating in fourteenth-century England, qui tam legislation allows a citizen to file a lawsuit as a "public prosecutor" against government officials for violating a legal duty.²⁴ If successful, a qui tam litigant is entitled to collect a portion of the proceeds forfeited by the wrongdoing official.²⁵

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Applying qui tam legislation to the problem of executive war power would function as a strong counterweight against excessive use of this power. Simultaneously, this application would avoid the risk of hindering national security interests by unduly burdening the President in times of military crisis.²⁶ Part II of this Note examines the growth and expansion of executive war powers, as well as existing legal limitations. Part III examines the history of qui tam legislation and the development of qui tam statutes in the United States, including the False Claims Act. Part IV explains why qui tam legislation is particularly well suited to address the problem of expansive executive war power and how qui tam legislation might be used to limit this power under the existing False Claims Act or through passing new legislation.

II. The Breadth of the Domain: The Rise of Executive War Power and Existing Limitations

A. THE FOUNDING

The United States's founding period not only adds context to the words and phrases used by the Founders in the Constitution, but also illuminates what the Founders envisioned in establishing the...