Kathryn
Mizelle
was
barely
removed
from
her
clerkship
when
Donald
Trump
tapped
her
for
the
federal
bench
in
the
waning
days
of
his
administration.
The
Trump
White
House
had
already
plucked
the
low-hanging
fruit
from
the
ranks
of
the
Federalist
Society.
By
the
end
of
the
administration,
the
remaining
smart
conservative
lawyers
were
happily
building
multimillion-dollar
books
of
business
trying
to
build
a
case
that
it’s
unconstitutional
for
women
to
vote
in
Pennsylvania
(which
they
will
probably
bring
in
the
Northern
District
of
Texas).
Besides,
Mizelle
was
33
years
old
and
could
extend
the
deadhand
influence
of
a
one-term
popular
vote
loser
for
50
years!
So
Mizelle
landed
a
district
court
nomination
while
still
serving
as
a
Biglaw
associate.
The
ABA
pointed
out
that
she
was
wholly
unqualified
for
the
job,
but
as
this
was
a
feature
rather
than
a
bug
for
Trump
nominees
down
the
stretch,
the
Republican
Senate
approved
her
anyway.
But
when
we
say
Mizelle
is
one
of
the
least
capable
judges
in
America,
it’s
imperative
that
we
come
with
receipts.
It’s
not
enough
to
cite
the
circumstances
of
her
nomination
or
the
expert
opinion
of
the
ABA,
we
need
to
carefully
consider
the
quality
of
her
work.
Yesterday,
she
declared
the
False
Claims
Act
qui
tam
provision
unconstitutional.
The
law
has
been
on
the
books
since
ABRAHAM
LINCOLN
signed
it
into
law
and
existed
as
a
concept
dating
back
to
the
Middle
Ages
as
described
in
the
English
common
law
treatises
that
conservative
judges
usually
love
to
cite.
It
enjoys
a
long
history
in
the
Anglo-American
legal
canon
as
a
necessary
tool
allowing
private
citizens
to
recover
damages
owed
to
the
United
States
government
that
might
otherwise
go
unclaimed.
For
this,
she
ginned
up
an
Article
II
theory
not
unlike
the
one
Judge
Mizelle’s
counterpart
Aileen
Cannon
recently
used
to
conclude
that
Special
Counsel
Jack
Smith
violated
the
Constitution
by
existing
based
on
a
Clarence
Thomas
opinion
(writing
for
himself
alone!)
where
he
complained
that
no
one
else
on
the
Supreme
Court
agreed
with
him.
Essentially,
claiming
that
the
Constitution
forbids
anyone
from
acting
for
the
benefit
of
the
United
States
unless
they’re
appointed
by
the
president.
Given
the
mandate
of
the
conservative
Supreme
Court
majority
in
Dobbs
that
laws
only
count
if
they’re
“deeply
rooted
in
this
Nation’s
history
and
tradition,”
one
might
not
expect
a
right-wing
judge
to
throw
out
a
law
with
nearly
200
years
of
unquestioned
validity.
But
that
presumes
that
“history
and
tradition”
amount
to
anything
more
than
an
empty
marketing
slogan
that
these
folks
drag
out
whenever
they
want
to
say
that
the
Framers
may
have
had
robust
gun
control
laws
but
they
never
SPECIFICALLY
said
you
couldn’t
bring
an
assault
rifle
on
an
electric
train.
Today’s
frequent
use
of
the
FCA’s
qui
tam
provision
emerged
relatively
recently.
Although
the
FCA
as
enacted
in
1863
permitted
relator
suits,
it
took
a
package
of
prorelator
amendments
in
1986
to
elevate
the
device
from
obscurity.
At
least
one
study
found
that
the
DOJ’s
records
reveal
only
three
qui
tam
actions
in
the
four
decades
between
1943
and
1986,
see
WILLIAM
L.
STRINGER,
THE
FALSE
CLAIMS
ACT
AMENDMENTS:
AN
ASSESSMENT
OF
ECONOMIC
IMPACT
23
(1996)
(admitting
that
the
records
are
incomplete
but
concluding
that
qui
tam
actions
were
“undoubtedly
very
few”),
while
others
estimate
that
the
“DOJ
used
to
receive
about
six
qui
tam
cases
a
year”
before
the
1986
amendments,
Steve
France,
The
Private
War
on
Pentagon
Fraud,
76
A.B.A.
J.
46,
48
(1990).
Whatever
the
precise
figure,
the
relator
amendments
triggered
an
explosion
of
qui
tam
lawsuits.
See
2023
FCA
Stats
at
1–2
(showing
31
new
FCA
qui
tam
matters
in
fiscal
year
1987
rising
to
712
new
qui
tam
matters
in
2023).
Credit
where
it’s
due,
Mizelle
didn’t
have
to
include
the
parenthetical
admitting
that
her
primary
source
admitted
he
was
basically
making
it
up
based
on
incomplete
records.
On
the
other
hand,
it’s
the
sort
of
addition
that
should’ve
kept
the
cite
out
of
the
opinion
entirely.
But
this
again
gives
us
occasion
to
remember
the
risks
posed
by
the
cottage
industry
of
building
a
body
of
“History-ish”
publications
for
judges
to
cite
whenever
the
actual
record
can’t
back
it
up.
It’s
an
accelerating
problem
with
student
journals
publishing
historical
claims
that
could
not
pass
scholarly
peer
review,
but
provide
Federalist
Society
judges
historical
sounding
factoids
to
insert
into
string
cites.
Indeed,
one
of
the
authors
at
the
heart
of
the
recent
controversy
over
flimsy
academic
claims
is
right
there
in
this
opinion!
And
while
it’s
plausible
that
the
number
of
claims
about
Pentagon
fraud
expanded
during
the
80s,
this
has
more
to
do
with
the
unprecedented
military
buildup
over
those
years
that
sparked
non-stop
coverage
of
defense
contractor
overcharges
and
“$1000
toilet
seats,”
than
the
idea
that
qui
tam
had
been
quietly
unconstitutional
all
that
time.
But
Mizelle
wasn’t
born
by
1986,
so
she
might
not
remember
the
fiscal
environment
when
we
openly
talked
about
building
magic
satellites
to
shoot
down
Soviet
nukes.
As
for
the
long
English
tradition
of
these
laws,
Mizelle
declares
their
application
in
the
United
States
to
be
not
“a
course
of
deliberate
practice.”
For
those
playing
along
at
home,
a
“course
of
deliberate
practice”
means
“at
least
pre-dating
Abraham
Lincoln.”
And
so
history
and
tradition
are
kicked
to
the
curb.
And
although
the
Supreme
Court
and
the
Eleventh
Circuit
have
reserved
the
Article
II
issue,
my
conclusion
that
an
FCA
relator
is
an
officer
of
the
United
States
is
neither
novel
nor
surprising.
Before
we
get
to
her
support
(such
as
it
is)
for
this
claim,
take
a
second
to
absorb
this
sentence.
She
says
“although”
the
Supreme
Court
and
her
circuit
have
explicitly
not
declared
the
over
160-year-old
law
unconstitutional,
she
is
going
to
decide
“what
if
it
is?”
A
more
conscientious
and
good
faith
DISTRICT
JUDGE
would
apply
the
law
as
it
presently
exists,
leaving
it
to
higher
courts
to
decide
if
they
want
to
stop
reserving
this
cockamamie
Article
II
theory.
An
envelope-pushing
trial
judge
could
apply
existing
law
and
bloviate
for
53
pages
about
how
much
they
disagree
with
it,
hoping
to
catch
a
stray
nod
from
a
future
controlling
opinion.
It’s
not
particularly
professional,
but
at
least
it
preserves
the
role
of
a
district
judge.
Mizelle
will
eschew
these
options.
Anyway,
let’s
see
how
she
justifies
the
above
claim:
See
Polansky,
599
U.S.
at
442
(Kavanaugh,
J.,
concurring,
joined
by
Barrett,
J.)
(urging
the
Court
to
consider
in
an
appropriate
case
the
“substantial
arguments”
that
qui
tam
is
inconsistent
with
Article
II);
id.
at
449
(Thomas,
J.,
dissenting)
(same);
Taxpayers
Against
Fraud,
41
F.3d
at
1050
(Nelson,
J.,
concurring
in
part
and
in
the
judgment)
(declining
to
concur
in
“Part
II
of
the
court’s
opinion,
where
the
constitutionality
of
the
qui
tam
provisions
of
the
False
Claims
Act
is
upheld”);
Riley,
252
F.3d
at
758–75
(Smith,
J.,
dissenting)
(identifying
“the
FCA’s
violation
of
the
Appointments
Clause”);
Constitutionality
of
the
Qui
Tam
Provisions
of
the
False
Claims
Act,
13
Op.
O.L.C.
at
221
(William
Barr,
Ass’t
Att’y
Gen.)
(arguing
that
“qui
tam
suits
brought
by
private
parties
to
enforce
the
claims
of
the
United
States
plainly
violate
the
Appointments
Clause
of
the
Constitution”).
One
thing
you
might
notice
here
is
the
lack
of
even
A
SINGLE
CITE
TO
RELEVANT
AUTHORITY.
Zilch.
Nada.
Concurrences,
dissents,
a
fart-sniffing
internal
Bill
Barr
statement.
No
majority
Supreme
Court,
Eleventh
Circuit,
sibling
circuit
opinion.
Not
even
a
stray
district
court
opinion
from
some
far-flung
district.
She
couldn’t
even
get
ChatGPT
to
make
up
some
fake
cites
for
good
measure.
There’s
just
nothing
here!
Rendering
it
all
the
more
tragio-comic
when
Mizelle
addresses
the
on
point
authority
cited
by
the
plaintiff
by
noting
—
literally
—
“[plaintiff]
resists
this
conclusion
primarily
by
citing
non-binding
decisions
that
held
otherwise.”
At
least
the
plaintiff
found
SOME
circuits
to
opine
on
the
question
presented
instead
of
playing
Mad
Libs
with
a
bunch
of
dissents.
Earlier
in
the
opinion,
Mizelle
attempts
to
“square
peg
round
hole”
other
federal
officers
cases
into
her
analysis,
suggesting
that
because
some
entities
who
can
sue
on behalf
of
the
United
States
are
officers,
then
anyone
who
files
a
suit
where
the
recovery
would
benefit
the
United
States
must
be
an
officer
too.
That
the
DOJ
can
walk
in
and
shut
down
a
qui
tam
action
on
behalf
of
the
United
States
would
seem
significant
on
this
count,
but
it’s
just
handwaved
away
without
caselaw
citation
except
for
a
“see
also”
that
suggested
it
was
“close”
before
concluding
the
other
way
anyway.
As
legal
analysis
goes,
this
is
all
reminiscent
of
when
she
struck
down
CDC
mask
mandates
on
the
grounds
that
“sanitation”
can’t
include
“sanitary
masks”
because
she
found
a
1940s
dictionary
that
used
the
word
sanitation
when
talking
about
trash
collection.
I’m
sure
her
all-expense
luxury
trip
to
hang
out
with
conservative
dictionary
dorks
before
that
opinion
didn’t
impact
that
one
at
all!
But,
hey,
“all-expense”
suggests
maybe
she
did
learn
a
thing
or
two
from
her
time
working
for
Clarence
Thomas!
This
is
all
significant
for
reasons
that
transcend
the
substantive
policy
involved.
It
is
obviously
stupid
to
practically
hamstring
the
federal
government
from
recovering
when
it
suffers
actual
fraud.
The
government
is
incapable
of
prosecuting
every
valid
claim,
making
this
decision
an
open
invitation
to
defraud
the
government
to
any
bad
actor
capable
of
keeping
it
below
the
DOJ’s
threshold
to
stop
going
after
drug
lords
to
chase
down
the
63
percent
of
the
Pentagon
budget
that
they
can’t
find.
To
this,
Mizelle
notes
that
several
years
ago,
the
DOJ
complained
that
merely
monitoring
qui
tam
actions
can
stress
their
resources
too,
except
then
admits
that
the
government
has
since
agreed
to
intervene
and
dismiss
unnecessary
qui
tam
actions,
which
obviates
the
concern
she
tried
to
bring
up.
Of
note,
the
government
specifically
did
not
intervene
to
toss
the
FCA
claim
in
this
case.
But
it’s
actually
a
much
bigger
—
and
apolitical
—
deal
to
have
bottom
rung
trial
judges
running
around
inventing
new
constitutional
law
“although”
higher
courts
have
refused.
The
judiciary
is
tiered
for
a
reason.
Forcing
trial
judges
to
apply
existing
law,
even
if
they
don’t
like
it,
discourages
litigants
from
pursuing
costly
and
frivolous
challenges
to
the
status
quo.
It
also
prevents
the
appellate
courts
from
having
to
run
constant
clean
up
on
rogue
district
court
opinions
when
there
is
a
presumption
in
favor
of
maintaining
existing
law.
A
predictable
business
litigation
environment
relies
on
stacking
the
deck
against
judges
making
radical
changes
to
the
law
willy-nilly
just
to
impress
their
friends.
One
might
even
call
this
approach
“little-c
conservative.”
Given
the
makeup
of
the
Eleventh
Circuit
and
the
Supreme
Court,
Mizelle
might
be
correctly
reading
the
tea
leaves
and
those
bodies
—
despite
not
having
the
votes
to
strike
down
Lincoln’s
Law
previously
—
may
be
on
the
verge
of
taking
a
sledgehammer
to
precedent.
But
that
shouldn’t
matter…
it’s
not
HER
job
to
do
that.
It’s
her
job
to
preside
over
this
case
and
let
the
appellate
process
play
out.
Which
might
go
a
long
way
to
explaining
why
the
ABA
didn’t
think
she
was
capable
of
doing
this
job.
(Opinion
on
the
next
page…)
Earlier:
Mask
Mandate
Struck
Down
Because
‘Sanitation’
Doesn’t
Mean
‘Keeping
Things
Clean’
For…
Reasons
Shocking
No
One,
ABA
Thinks
Biglaw
ASSOCIATE
Not
Ready
For
Federal
Bench
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
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Thinking
Like
A
Lawyer.
Feel
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Follow
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