QUI TAM LITIGATION AGAINST GOVERNMENT OFFICIALS: CONSTITUTIONAL IMPLICATIONS OF A NEGLECTED HISTORY.

• Author: Beck, Randy

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.

INTRODUCTION 1237 I. THE CONSTITUTION AND JUDICIAL MONITORING OF EXECUTIVE CONDUCT 1242 A. Recent Executive Conduct and the Rule of Law 1243 B. Morrison v. Olson and the Unity of Executive Power 1248 C. Lujan v. Defenders of Wildlife and Generalized Grievances 1249 D. Vermont Agency and Qui Tarn Litigation of Generalized Grievances 1253 II. QUI TAM MONITORING OF GOVERNMENT OFFICIALS IN ENGLAND AND AMERICA 1259 A. British Qui Tam Statutes Regulating Government Officials. 1260 1. Enhanced Monitoring of Decentralized Government Activity 1262 2. Countering Official Resistance to Legislative Policies 1265 3. Bolstering Public Confidence in Governmental Processes 1266 B. Early State Qui Tam Statutes Regulating Public Officials 1269 1. Monitoring Decentralized Government Activity 1269 a. Centralized Regulation of Local Administration 1269 b. Road Maintenance and Construction Obligations 1274 c. Qui Tam Regulation of Judicial Administration 1276 d. Qui Tam Monitoring of Inspection and Regulatory Regimes 1280 e. Qui Tam Monitoring of Quasi-Public Functions 1284 2. Conflict of Interest Rules: Countering Incentives for Resistance 1285 3. Bolstering Public Confidence in Government 1286 a Elections 1286 b. Taxing and Spending 1289 C. Early Federal Qui Tam Statutes Directed at Executive Branch Officials 1291 1. Revenue Officers 1291 2. Census Officers 1298 3. Treasury Officers 1300 4. Postal Workers 1302 5. Federal Indian Agents 1304 III. CONSTITUTIONAL IMPLICATIONS OF QUI TAM REGULATION OF GOVERNMENT OFFICIALS 1305 A. Qui Tam Litigation and Article III Standing 1305 B. Qui Tam Litigation and the Take Care Clause 1310 C. Qui Tam Litigation and the Unitary "Executive Power" 1314 CONCLUSION 1316 INTRODUCTION

The generation that framed our Constitution sought to establish "a government of laws, and not of men." (1) Government submission to law was central to the Framers' vision for a constitutionally limited republican government. (2) Over two centuries later, however, many commentators believe executive officials of both major political parties have subordinated the rule of law to the pursuit of other agendas. (3) The past half century in particular has generated numerous reports of federal officials violating seemingly clear legal requirements or offering implausible rationales for ignoring applicable rules. (4)

The importance of government respect for law warrants careful consideration of the mechanisms available for enforcing legal constraints on government officials, especially executive branch officials who apply the law to others. (5) This Article will focus particular attention on the Supreme Court's twenty-five-year-old decision in Lujan v. Defenders of Wildlife, (6) which articulated strict limits on judicial monitoring of executive action, even when authorized by Congress. The Lujan Court assigned the President a virtually exclusive authority to police the legality of a broad range of executive branch conduct. In litigation initiated by private parties, Lujan concluded, the judiciary may only evaluate the legality of executive action as a step toward redressing particularized harm to an identified plaintiff. (7) The decision rested on two constitutional theories: challenges to the lawfulness of executive conduct by those without a particularized injury (1) would exceed Article III judicial power, which is limited to resolution of "Cases" and "Controversies," and (2) would reassign the President's Article II responsibility to "take Care that the Laws be faithfully executed," making courts "virtually continuing monitors" of executive action. (8) Under Lujan, Congress lacks power to authorize private litigation of generalized grievances concerning the legality of executive branch conduct. (9)

This Article challenges Lujan's conclusion that only the President or his subordinates may litigate generalized grievances about executive lawlessness. The challenge rests on an often overlooked aspect of Anglo-American legal history, the extensive practice of regulating public officials through "qui tam" legislation. (10) The qui tam label derives from a longer Latin phrase describing a litigant "who pursues [an] action on our Lord the King's behalf as well as his own." (11) From the fourteenth century through the eighteenth century, Parliament often enacted qui tam statutes that allowed any person to sue for a statutory offense and instructed the court to divide any recovery between the crown and the private litigant, called a "common informer." (12) The informer did not need to allege individualized injury "because every Offence, for which such Action is brought, is supposed to be a general Grievance to every Body." (13) The Supreme Court has acknowledged (post-Lujan) that qui tam actions satisfy Article III case or controversy requirements, given their long historical pedigree, (14) but continues to recite standing principles that cannot be reconciled with qui tam history. (15) The Court has left open the question of whether qui tam statutes might violate the Article II Take Care Clause as interpreted in Lujan. (16)

The Lujan Court was aware of the historical use of qui tam legislation, but apparently believed informer statutes regulated only "private part[ies]." (17) The Court overlooked Parliament's extensive use of qui tam legislation from the fourteenth century onward to enforce specified duties of government officials. (18) This English practice of regulating public officials through qui tam legislation crossed the Atlantic and was widely followed in the American states at the time the Constitution was ratified. (19) Federal legislators, beginning with the First Congress under the new Constitution, authorized qui tam litigation against numerous executive branch officials, including revenue officers, census workers, treasury employees, postal workers, and officials overseeing trade with Native American tribes. (20) This centuries-old practice of authorizing qui tam informers to litigate generalized grievances concerning the lawfulness of government conduct undermines Lujan's conclusion that the Take Care Clause was intended to grant the President virtually exclusive authority to police the legality of executive action in the absence of particularized harm. (21) It was well established at the time of the framing that a legislature could authorize judicial monitoring of executive conduct at the behest of private informers who lacked any individual injury.

Part I of this Article considers constitutional principles potentially relevant to judicial monitoring of executive branch legal compliance. In addition to the Article III case or controversy requirement and the Article II Take Care Clause argument from Lujan, we review the Supreme Court's decision in Morrison v. Olson, (22) upholding appointment of "independent" prosecutors to investigate executive branch officials. The Morrison majority concluded that the President exercised "sufficient control" over the independent counsel to satisfy Article II, Section 1 of the Constitution, which vests all "executive power" in the President, (23) while Justice Scalia's Morrison dissent argued that any limitation on the President's control made the statute unconstitutional. (24) The "unitary executive" principle that underlay both the majority and dissenting opinions in Morrison provides another possible basis for objecting to litigation against executive officials by uninjured private citizens who are not subject to presidential control.

Part II of the Article focuses on the history of qui tam legislation directed at government officials in England, the early American states, and the initial Congresses following ratification of the Constitution. Qui tam legislation in England and the early American states helped accomplish several goals related to regulation of government conduct. Authorizing qui tam litigation (1) enhanced monitoring of decentralized government activity, (25) (2) countered incentives for official resistance to legislative mandates, (26) and (3)...