Enough about ICWA! Let's talk about qui tam!
Under the False Claims Act, private citizens can bring suit on behalf of the federal government for a "civil fraud" against the United States. These suits are known as qui tam claims, Latin for "in the name of the King." Qui tam suits raise several significant separation of powers issues. First, how can a private citizen assert an Article III injury, when the federal government suffers the injury? Second, how can a private citizen represent the "unitary" executive branch, as reflected in Article II?
In 1989, William Barr, the Assistant Attorney General for the Office of Legal Counsel, prepared a memorandum opinion for the Attorney General, concluding that private qui tam actions violate Article III standing doctrine and the separation of powers. The precise status of this document is somewhat in dispute, as an "Editor's Note" explains that "This memorandum was not intended to present the official position of the Department of Justice at the time of its writing, but rather was intended to contribute to a discussion within the Department over what position should be adopted." And in 1996, Walter Dellinger, as head of OLC, repudiated Barr's views.
