Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/36

10 Under Stevens’ partial-assignment theory, it is not immediately clear that the Government may dismiss the relator’s interest in a qui tam suit, even assuming that the relator’s representation of the United States’ interest is unconstitutional. Whether the Government may do so may depend on the implicit conditions of the assignment; conceivably, it may also depend on whether the assignment is severable from the FCA’s attempt to vest the authority to represent the United States in litigation in a party outside the Executive Branch.

In examining these issues, moreover, it may be necessary to consider a question that Stevens left unaddressed: What is the source of Congress’ power to effect partial assignments of the United States’ damages claims? One candidate might be the Necessary and Proper Clause, Art. I, §8, cl. 18; but, if qui tam suits violate Article II, then it appears unlikely that any assignment effectuated by the FCA’s qui tam provisions could be considered “necessary and proper for carrying into Execution” any constitutional power. See Gonzales v. Raich, 545 U. S. 1, 60 (2005) (, dissenting) (“To act under the Necessary and Proper Clause,” “Congress must select a means” not “ ‘prohibited’ by the Constitution” or “inconsistent with ‘the letter and spirit of the Constitution’ ” (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819); alteration omitted)). Alternatively, such assignments might rely at least partly on the Property Clause, which empowers Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” and which may include the power to assign claims for damages as “other Property.” Art. IV, §3, cl. 2; see also D. Engdahl, The Basis of the Spending Power, 18 Seattle U. L. Rev. 215, 256–257 (1995) (“The Article IV Property Clause is most familiar, of course, in its application to landed property, … but it has been recognized as applying to personal property as well”).