Civil society, for Locke, begins with a surrender. In the state of nature, anyone may punish a wrong done to the community. In society, that power passes to a common authority, and only the sovereign may avenge public wrongs. Blackstone put the same idea in the language of the common law: private wrongs are the injured party’s to redress, public wrongs are the Crown’s. The Framers absorbed the distinction and gave it a specific constitutional home: “The executive Power,” Article II begins, “shall be vested in a President.”

　　One pocket of private prosecution, however, survives that settlement. “Qui tam” is a Latin shorthand for “one who brings an action for the king as well as for himself.” Under the False Claims Act’s qui tam provisions, a private plaintiff or “relator”—with no injury of her own, no office, and no constitutional oath—may sue in the name of the United States, litigate the government’s claim, and keep up to 30 percent of what she recovers. Last fiscal year, relators filed a record 1,297 such suits. Nearly half of what they recovered came in cases the Justice Department had declined to join.

　　The Act was born of wartime desperation. In 1863, with contractors selling the Union Army spavined mules and sawdust for gunpowder, Congress reached for an old English legal device and offered a bounty to anyone who would sue a fraudster in the government’s name. The Justice Department did not yet exist; the prosecutor’s office was thin and far from the front. As Senator Jacob Howard of Michigan put it at the time, they were “setting a rogue to catch a rogue.” Howard’s candor is worth remembering. The Act’s authors did not claim the relator was accountable. They claimed she was useful. Whether usefulness is a constitutional pedigree is the question.

　　The Eleventh Circuit recently gave us half an answer. Two years ago, a federal judge in Florida held that Clarissa Zafirov was an “Officer of the United States.” Zafirov was a physician suing her employer as a relator for Medicare fraud after the government declined to act on her allegations. Since no one had appointed her, the trial court held that her position violated the Appointments Clause of Article II of the Constitution. The court of appeals set that ruling aside. Relators, it held, occupy no “continuing position” established by law and so are not officers at all. It declined to decide whether the qui tam provisions violate the Vesting and Take Care Clauses and sent those questions back down. The ruling came nine weeks after Trump v. Slaughter, where the Supreme Court overruled Humphrey’s Executor and held that even Senate-confirmed commissioners serve at the president’s pleasure.

　　The Wrong Door

　　The Appointments Clause, standing alone, was always a weak basis for a constitutional challenge. Officers hold offices; a relator holds a lawsuit. Under Lucia v. SEC, an officer must exercise significant authority and occupy a continuing position, and a relator’s role ends when her case does. On its own terms, the Eleventh Circuit’s panel’s holding is sound. Zafirov did not hold any continuing position, and so the court never reached the first prong.

　　But the holding also establishes perverse, if unintended, incentives. The more freelance and intermittent the prosecutor, the less the Appointments Clause has to say about her. Unaccountability becomes a safe harbor. That inverts the Clause’s purpose. Appointment is a means, not an end: it ensures that anyone wielding significant federal authority traces her commission to someone the people elected. The panel treated the absence of the means as the absence of the problem. That is why the questions it remanded matter more than the one it decided.

　　The Vesting Clause

　　Article II’s Vesting Clause is a different story. Article I gives Congress only the legislative powers “herein granted.” Article III splits the judicial power between one Supreme Court and whatever inferior courts Congress creates. Article II, by contrast, qualifies nothing. Hamilton, writing as “Pacificus” in 1793, treated it as a general grant of the whole executive power, subject only to the Constitution’s express exceptions. In Seila Law, the Supreme Court read it the same way. The executive power belongs to one elected president so that the people know whom to hold responsible.

　　Fraud on the Treasury is a public wrong. Its prosecution belongs to the one officer the people can hold to account.

　　Law enforcement is the core of that power, and the line between public and private rights marks its edge. A plaintiff who sues over her own concrete injury exercises no executive power. She vindicates a private right. But the undifferentiated public interest in seeing the laws obeyed belongs to the Executive, a rule that traces to the Founding. A relator suffers no injury. She sues “in the name of the Government,” and most of what she wins goes to the Treasury. Her bounty is not a remedy but a fee for her enforcement efforts.

　　The Framers wrote exactly one authorization for private persons to wield the sovereign’s coercive power: Congress may grant letters of marque and reprisal. That clause sits among the war powers, and it armed ships, not plaintiffs. There is no domestic qui tam clause. The Framers knew how to loose privateers on the nation’s enemies, but they said nothing about loosing them on the nation’s contractors.

　　Vested executive power, in practice, includes the discretion to decline to prosecute. In 1793, for instance, President Washington directed the federal prosecutor in Philadelphia to drop a riot indictment against two Pennsylvanians he believed were innocent. The relator’s discretion runs counter to this constitutional framework, allowing a private party to press on when the chief executive has decided to walk away from a case.

　　The Take Care Clause

　　James Madison defended the separation of powers in Federalist #47 as the guarantee of liberty. Then-Judge Brett Kavanaugh explained in In re Aiken County why prosecutorial discretion is part of that guarantee: the power to decline enforcement shields individuals from oppressive application of the law. Washington’s Whiskey Rebellion pardons were that discretion in action.

　　The False Claims Act does not abolish executive control, but it does attenuate it significantly. The government receives a relator’s complaint under seal and has sixty days to intervene. If it wishes to intervene after that window has closed, it must show “good cause.” If it intervenes, the relator stays in the case as a party with rights of her own. If it declines, she litigates the government’s claim on her own judgment. Last fiscal year 43 percent of all qui tam dollars awarded were in cases brought by the relator alone. In Polansky, the Supreme Court had to decide whether the government may dismiss its own case over the relator’s objection. That the question needed a Supreme Court opinion tells you how far the Executive’s control has slipped. Slaughter stated the accountability principle fairly plainly: The people must know whom to thank, whom to blame, and whom to fire. Yet no one hires or fires the relator, and only a court can remove her.

　　The History Objection

　　The best defense of the qui tam provisions is historical. The First Congress enacted qui tam statutes, and Slaughter itself rests partly on the Decision of 1789, a debate by the very first Congress over the proper limits of the president’s oversight. An argument that invokes Slaughter cannot wave away Founding practice, and it should not try. But neither should it treat that history as a trump card.

　　And the Founding statutes are different. They imposed no seal, no intervention window, no good-cause bar, and no guaranteed seat for the relator once the government stepped in. Those statutes fell into disuse as the Executive built its own enforcement capacity. Even the mother country thought better of the practice. Britain abolished the common informer in 1951.

　　Congress can reward informants without deputizing them. The SEC, the IRS, and Medicare all pay whistleblowers who report fraud and then step aside. What Congress cannot do is pursue even a worthy aim by privatizing the presidency. Fraud on the Treasury is a public wrong. Its prosecution belongs to the one officer the people can hold to account.