Column: A Trump judge just overturned the government’s most effective anti-fraud tool, which has stood for 160 years

Supreme Court Justice Clarence Thomas, who previously expressed doubts about a whistleblower law, opening the door to the law’s being declared unconstitutional by a Trump judicial appointee and Thomas protégé. The latter didn’t have to show that they had suffered any harm themselves from the slavers’ activities, which made the 18th century rules “a virtual dead ringer for the FCA’s qui tam provisions,” as the government asserted in a brief in the Zafirov case. Still, corporate lawyers representing businesses likely to face qui tam lawsuits took heart from his expression of doubt, as well as from comments by Justices Brett Kavanaugh and Amy Coney Barrett, in concurring opinions in the same case, that they’d be open to considering the issue “in an appropriate case.” That makes a possible anti-qui tam bloc of three justices, which is a start. “It is possible if not likely that the constitutionality of the FCA’s qui tam provisions is going to be before the Supreme Court before long,” they wrote. “Without the qui tam, the federal government often would never find out about the fraud at all,” Leonardo Cuello, an expert on Medicaid at Georgetown University, wrote after Mizelle’s ruling.