A prominent conservative voice on the federal bench has reignited a long-simmering debate over the legality of America’s most powerful fraud-fighting tool — the False Claims Act — suggesting that it may violate the very Constitution it aims to defend.
U.S. Circuit Judge James Ho of the Fifth Circuit, in a sharply worded concurring opinion, questioned whether private citizens should be permitted to sue on behalf of the federal government — a power granted under the law’s Civil War-era “qui tam” provisions. These rules allow whistleblowers to pursue fraud cases against companies that misuse taxpayer funds, even if the Justice Department declines to intervene.
The case in question involved an inpatient rehabilitation facility in Texas, owned by Encompass Health Corp, accused of submitting false Medicare claims. The panel upheld the case’s dismissal, agreeing the complaint lacked sufficient evidence — but Judge Ho’s focus went far beyond the facts at hand.
Ho, a Trump appointee known for his textualist and often provocative opinions, urged the full Fifth Circuit to revisit its own precedent from 2001, which upheld the whistleblower framework. He argued that private relators acting as stand-ins for the federal government “presume to represent the United States Treasury against fraud,” despite being “neither appointed by, nor accountable to, the President.”
His opinion echoed concerns long voiced by members of the Supreme Court. Justice Clarence Thomas described the law’s qui tam mechanism as existing in a “constitutional twilight zone,” while Justices Brett Kavanaugh and Amy Coney Barrett have signaled openness to reviewing its legitimacy in a future case.
Ho’s remarks come as the Eleventh Circuit prepares to hear arguments in a separate case testing similar constitutional grounds — a challenge to a district judge’s ruling that the False Claims Act violates the Appointments Clause.
With the Fifth Circuit now dominated by conservative jurists, including several Trump-era appointees, the stage may be set for a deeper judicial reckoning. Only three judges from the 2001 decision remain on the bench, one of whom — Judge Jerry Smith — wrote the lone dissent defending the same constitutional skepticism that Ho now revives.
“I would have joined him,” Ho wrote, signaling that the ideological momentum may be shifting.
The case, U.S. ex rel. Gentry v. Encompass Health Rehabilitation Hospital of Pearland, may prove to be the spark that brings the whistleblower law back before the Supreme Court — and into the center of America’s next great separation-of-powers fight.
