Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/35

Rh “Standing alone,” however, “historical patterns cannot justify contemporary violations of constitutional guarantees,” Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when the practice in question “covers our entire national existence and indeed predates it,” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970). Nor is enactment by the First Congress a guarantee of a statute’s constitutionality. See Marbury v. Madison, 1 Cranch 137 (1803). Finally, we should be especially careful not to overread the early history of federal qui tam statutes given that the Constitution’s creation of a separate Executive Branch coequal to the Legislature was a structural departure from the English system of parliamentary supremacy, from which many legal practices like qui tam were inherited. See S. Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 589 (2005) (noting that, for this reason, “we ought to be cautious about importing English constraints or exceptions to the executive power, when those limitations might be based on the principle of parliamentary supremacy”).

In short, there is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits. However, even if that is true, the follow-on implications may not be as straightforward as they appear at first glance. Under the FCA, the relator brings suit “for [himself]” as well as “for the United States Government.” §3730(b)(1) (emphasis added). In Stevens, we read this language “as effecting a partial assignment of the Government’s damages claim,” which provided “the theoretical justification” for our holding “that a qui tam relator under the FCA has Article III standing.” 529 U. S., at 773, 778. For that holding to make sense, it appears that this assignment must be effective no later than the point in time at which the Government declines to intervene in the seal period and the relator may proceed with the action as the only plaintiff in court.