Ultra-conservative politicians often use the risk of health care fraud to stoke fears about investing in public health care programs like Medicaid and Medicare. The funny thing is, their own judges appear to be working hard to make fraud more common. On September 30, 2024, a Trump-appointed Florida judge issued a radical decision to weaken a critical tool to fight fraud. Let’s break down what happened.

Since 1863, the False Claims Act (FCA) has been a critical tool for the Federal government to fight fraud, including health care fraud. To be clear, the vast majority of health care fraud has nothing to do with the people using health care; the major perpetrators of fraud are the private medical providers and contractors who inflate, exaggerate, or just make up medical services that they bill to the federal government. But under a key provision of the FCA, a whistleblower can file a lawsuit (known as a qui tam lawsuit) on behalf of the federal government to recover losses due to fraud.

Imagine a hospital employee who discovers the hospital has been billing bogus medical claims to Medicare, and then has the courage to bring a lawsuit to stop the fraud. That qui tam whistleblower gets to keep a percentage of the recovery. According to the Anti-Fraud Coalition, since 1986, these whistleblower cases have led to $53 billion in fraud recoveries – more than two-thirds of all recoveries under the False Claims Act.

Seems like a win-win scenario, right?

Enter the extreme right-wing Florida judge. The judge, Kathryn Kimball Mizelle, was nominated by then-President Donald Trump in 2020 and confirmed the same year, despite a “Not Qualified” rating by the American Bar Association.

In her September 30, 2024 decision, Judge Mizelle was deciding a case filed by Clarissa Zafirov, against medical providers who Zafirov alleged were defrauding Medicare. Judge Mizelle decided in favor of the medical providers – but not because she found there was no fraud. Instead, she decided that the qui tam provisions of the False Claims Act were unconstitutional! Her decision appears to means she thinks no one can bring a wholly independent qui tam suit on behalf of the government.

Judge Mizelle’s opinion, which flies in the face of all longstanding precedent, argues that an individual empowered to bring a lawsuit and make related decisions “on behalf of the government” is a violation of the Appointments Clause of the Constitution, which generally requires federal officials with higher levels of power to be formally appointed by Congress. Of course, this is just a private individual helping – not representing – the federal government, which always has an opportunity to intervene in qui tam cases. The law also includes other provisions to help ensure that qui tam litigants represent the government’s interest. (Side note: the same Appointments Clause has also been used by conservative judges to weaken preventive services requirements in the Braidwood case).

Right now, it’s unclear where this decision will lead. One possibility, the one we would expect in a sensible world, is that the case will be appealed to the Circuit Court, overruled, and the opinion will be a meaningless outlier mentioned only in the occasional legal footnote. Another possibility is that this legal theory will gain traction and one day lead to a Supreme Court decision affirming it. That may sound far-fetched, but consider these three facts: Judge Mizelle was Justice Clarence Thomas’s law clerk, Justice Thomas raised the same arguments as Mizelle in a 2023 dissenting opinion, and a few other Supreme Court Justices have expressed at least some agreement with Justice Thomas.

So what would happen if qui tam as we know it disappeared? Well, to start, that’s $53 billion in fraud that might not have been recovered. Qui tam has been instrumental because the federal government does not have the resources to chase down every single possibility of fraud. Furthermore, even if the government could do it all, in many cases qui tam whistleblowers simply have unique knowledge that they are incentivized to act upon. Without the qui tam, the federal government often would never find out about the fraud at all. Ultimately, individuals or companies engaged in fraud (and the lawyers that defend them) will know they can knock out any claim brought alone by a whistleblower. It’s like the robbers finding out that all the cops are on vacation. The only alternative is for the government to invest a lot more resources intervening in all the qui tam lawsuits.

And this takes us full circle to all of the ironies at play. Small government right-wing judges are eliminating private enforcement that can only be replaced by… bigger government. The same right-wingers argue that all health care program functions should be privatized, but consistently disempower the federal government to regulate private contractors. Then, when the too-small and too-constrained federal government fails to catch enough fraud, they’ll argue programs like Medicare are rife with fraud.

Does any of that sound like effective, responsible, or accountable governance?