dissenting:
The qui tam relator provisions of the False Claims Act provide a pecuniary and, ultimately, useful, tool to ensure that the civil laws are obeyed. The provisions allow concerned citizens to protect the government’s interest in ensuring that its laws are followed by rewarding individuals who bring complaints forward and then assist the government in the prosecution of those claims.1 More importantly to the case at bar, the qui tam law enables the Attorney General to maximize her resources by not requiring her and her staff to seek out every violation of the federal law. Indeed, the qui tam relator provisions represent an invaluable aid in detecting low-visibility offenses to the public purse.
In my opinion, the qui tam relator provisions of the False Claims Act are consistent with the Take Care Clause of Article II, even when the government elects not to intervene in an action filed by a relator. An examination of the historical pedigree of this statute and others like it, coupled with an inquiry into the separation of powers concerns raised by the majority, reveals that the qui tam provisions comply with the Constitution. Because my colleagues reach a different conclusion, I respectfully dissent.2
I
A
The majority observes, ante at 519 and I heartily agree, that history does not “by itself’ validate the constitutionality of the qui tam relator provisions of the False Claims Act (“FCA”).3 Indeed, no set of historical credentials should ever be worthy of our “blind deference.” Ante at 519. Where the majority falters in its discussion, see ante at 518-20, of the historical antecedents to this law, however, is in believing Riley and the government to have advanced such a sweeping argument. On the contrary, neither Plaintiff-Appellant nor the Intervenor ever suggests that the qui tam relator provisions in the FCA should be validated solely on the basis of history. Instead, Riley and the government argue, in my opinion persuasively, the more refined proposition that qui tarn’s historical tradition “sheds light not only on what the draftsmen intended [the Take Care Clause] to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress' — their actions reveal their intent.”4 In other words, when assessing the qui *544tam provisions in light of the Take Care Clause, we should view history as a touchstone illuminating our way, not as a dis-positive treatment.
By contrast, the majority’s rigid approach to the history of the qui tam relator provisions fails to accord any weight to the role of history in constitutional analysis. The majority relies, ante at 519, on Marsh v. Chambers seemingly to conclude that we may turn to history only when it amounts to an “unambiguous and unbroken history.” Although the Marsh Court referred to the “unique history” of the legislative practice of opening each session with a prayer by a state-funded chaplain to legitimize this practice,5 the Court has never suggested, in Marsh or elsewhere, that such a difficult threshold showing is necessary each and every time history is utilized in constitutional adjudication. By scanning the history of the qui tam laws, finding inconsistencies therein, and then declaring that history so ambiguous and broken that it should be entirely excluded from our analysis, the majority eliminates the usefulness of that history as an implement with which to understand and to interpret the relevant constitutional language.6 As the Supreme Court long ago explained,
The necessities which gave birth to the Constitution, the controversies which preceded its formation, and the conflicts of opinion which were settled by its adoption, may properly be taken into view for the purpose of tracing to its source any particular provision of the Constitution in order thereby to be enabled to correctly interpret its meaning.7
This more fluid approach is especially prudent when reviewing separation of powers challenges, such as that presented by the case at bar, because the notions underlying our tripartite government are not explicit in the text of the Constitution.8 The whole range of history can enlighten our understanding in such a situation because,
[a]lthough the Court has not considered separation of powers cases to be nonjusticiable, it has had relatively few occasions in which to set out the governing constitutional principles. It is for this reason that there is perhaps less guidance here than in other areas of constitutional law. What principles there are derive from a relatively few “great cases” involving conflicts between two branches of the federal government. Much of the “law” in the area therefore amounts to historical practices, informal and formal, of the various branches, and to understandings that take the Constitution as their starting point but that derive in large part from perceived practical necessities.9
With this approach to enactments of the past as a guidepost, I seek below to recast *545the history of qui tam laws in a more judicious light than the majority’s effort.
B
Quitam10 actions sprang from thirteenth-century English common law as a method by which to supplement the power of the crown.11 The artifice of citizens’ bringing legal actions on behalf of the sovereign was created at a time in which the legal machinery of the English government was still fairly primordial; consequently, many offenses to the public's interest — such as fraud on the government and general violations of the criminal law — remained undetected and unprose-cuted.12 Qui tam actions, in which a private citizen could bring suit on behalf of the sovereign as well as for himself, directly responded to this need, and the government encouraged their filing by rewarding the private citizen with a share of the fine, penalty, or forfeiture.13 Qui tam actions “became increasingly entrenched in English precedent,” and, as Parliament began enacting a variety of specific statutory authorizations, “a consistent part of British legislative policy.”14
Since qui tam statutes dotted the legal landscape in Hanoverian England, it is hardly surprising that the concept of qui tam migrated to this side of the Atlantic along with other elements of English law and custom.15 Indeed, the functionality of qui tam laws was sufficiently well-established that our founders did not hesitate in making liberal use of such provisions in statutes passed during the early years of the Republic.16 Wisely recognizing that the fledgling government did not have the legal machinery in place to prevent fraud against it, members of the first several Congresses drew on the tradition that the English Parliament had established to enact a variety of qui tam statutes “to create a self-regulating atmosphere among the *546predominant trades of the era.”17 As had our English cousins’, early American legislatures utilized qui tam statutes as a crucial buttress to the government’s ability to enforce the laws; indeed, at least seven statutes utilizing qui tam provisions were passed by the First Congress.18
As the federal government began to expand in the first decades of the nineteenth century, its regulatory and law-enforcement mechanisms became firmly-established and the need for private prosecution of the law naturally waned.19 Concurrently, public opinion about qui tam relators became increasingly negative as various abuses by such relators were revealed; in particular, critics pointed to the small group of “bounty-hunting” qui tam plaintiffs who would settle their claims for amounts prejudicial to the government’s best interest.20 The resulting statutory restrictions on qui tam suits significantly limited the attractiveness of such suits.21
The Civil War witnessed a renaissance of qui tam actions. Widespread reports of corruption and fraud by companies supplying the Union Army gave birth to the qui tam provisions found in the False Claims Act of 1863.22 Indeed, President Lincoln himself suggested that the qui tam provisions be inserted into the statute.23 Some*547times referred to as “Lincoln’s law,”24 the FCA allowed private citizens to file civil actions against any party who had presented a false claim for payment to the United States government and rewarded qui tam relators fifty percent of the recovered money.25
With the end of the Civil War, military suppliers faded somewhat from public scrutiny and qui tam actions once again fell under attack. In particular, critics focused on the fact that government employees who simply combed public records, instead of offering original information, could bring qui tam actions.26 When the Supreme Court eventually legitimated this practice in United States ex. rel. Marcus v. Hess,27 Congress immediately responded by debating whether the FCA should require the relator to be an original source of at least some of the information underlying the qui tam suit;28 additionally, the resulting amendments reduced the size of the reward that may be given to the relator29 and, for the first time, permitted the government to intervene in such suits.30
The practical effect of the 1943 debates and amendments upon qui tam suits was, in the words of one commentator, to create an “ice age.”31 The changes discouraged qui tam actions to such a degree that, in 1986, Congress decided once again to widen the path for the qui tam relator. Particularly galvanizing Congress was a burgeoning federal deficit and a fear that defense contractors and others were — to hum an old tune — swindling the government.32 The 1986 liberalization increased the reward available to qui tam relators33 and permitted more of the public record to be a source of the information.34
Since the 1986 amendments, qui tam suits have seen a second rebirth. Statis*548tics illustrate the difference the amendments made. Whereas 33 qui tam suits were filed in 1987, 274 such suits were filed in 1995.35 Moreover, the total recovery generated by qui tam statutes has jumped, from a paltry $2 million in 1988, to a remarkable $243 million in 1995.36 Indeed, since 1987, the FCA’s qui tam provisions resulted in a recovery of more than a billion dollars.37 Consequently, in evaluating qui tarn’s place in history, I cannot overlook the boon to the federal Treasury occasioned by such statutes. Indeed, “[q]ui tam, or standing in the shoes of the king, is an old occupation but never before has it been so profitable.”38
C
The majority’s conclusion that qui tam has not become “part of the fabric of our society”39 is, quite plainly, troublesome. Even assuming that finding the provision to be part of that “fabric” were necessary, which it is not, see supra Part I.A., the history of qui tam actions is indisputably an ancient one;40 not only were they an important part of the legal tradition brought to America during the colonial period, but qui tam provisions were also in place when the legal machinery of our modern government was in its nascent phases. Indeed, even the Supreme Court has recognized the historical importance of qui tam.41
The majority counters this evidence by concluding summarily, ante at 519-20, that, since Congress has reduced the number of qui tam statutes over the lifetime of this nation, such provisions do not have support in history. As I have illustrated above, however, both Parliament and Congress after it typically enacted qui tam statutes when the government’s legal processes required bolstering; such statutes inevitably become less necessary as the government’s internal law enforcement mechanisms strengthen. Consequently, the fact that the FCA contains the primary *549qui tam provisions in use today does not undermine the “unambiguous and unbroken history” of such suits. Congress has frequently resorted to qui tam statutes as needed; the majority’s suggestion that qui tam statutes are old-fashioned, see ante at 519-20, only enhances this observation.42 While the number of such statutes has waxed and waned, a qui tam statute has been on the books almost every day for the past 200 years.
In sum, the history of qui tam provisions should guide our understanding of their relationship to the constitutional proscriptions of the Take Care Clause. Although history should never be perceived as a dispositive source of constitutional guidance, it is certainly persuasive authority that the drafters of the Take Care Clause considered the Clause to be in harmony with the many qui tam statutes that they and their successors enacted. With this understanding of qui tarn's, history firmly in mind, I now turn to the merits of the constitutional question. In Part II of the opinion, I address the majority’s contention that the qui tam provisions violate the separation of powers principles embodied in the Take Care Clause. In Part III, I suggest a different, more compelling, approach to the separation of powers question presented by these provisions. Part IV of the opinion examines the various historical justifications for the separation of powers and explains how the qui tam relator provisions pass muster under any of them. Finally, Part V concerns persuasive authority from a sister circuit.
II
The majority holds that the qui tam provisions violate separation of powers doctrine by running afoul of the Take Care Clause of Article II. Amazingly, however, my colleagues cannot point to a single analogous case in which the Supreme Court has found that an enactment of Congress violates separation of powers. Instead, the majority makes recourse to three decisions, Commodity Futures Trading Comm’n v. Schor,43 Nixon v. Administrator of Gen. Servs.,44 and Morrison v. Olson,45 each of which rejected separation of powers challenges to legislative enactments, and attempts to distinguish each from the case at bar. I believe their effort fails, and in this Part of my opinion, I will address why each case actually supports the conclusion that the qui tam provisions do not violate separation of powers.
While the majority correctly states the principle that “[t]he doctrine of separation of powers prohibits one branch of government from intruding on the constitutionally granted powers of another,” ante at 523, it never persuasively explains how the provisions at issue in the case sub judice so intrude. Instead, it makes passing reference to Congress’s having “stripped the Executive Branch of some of its power,” ante at 528, and then moves on to consider, ante at 524, “the separation of powers problem that is raised when an act of Congress impinges on the Executive Branch’s ‘take care’ duties.”
The qui tam relator provisions do not violate separation of powers because they *550neither “impermissibly undermine[ ]”46 the executive’s power nor “prevent the Executive from accomplishing its constitutionally assigned functions.”47 In Schor, the Supreme Court rejected a constitutional challenge to Congress’s empowerment of the CFTC to entertain state law counterclaims in reparation proceedings, finding that the grant of such authority did not violate Article III.48 The majority’s best effort at reconciling this case, which opened the door to a variety of non-Article III adjudications, is implicitly to criticize the Court for not enunciating the dividing line between “permissible” and “impermissible” legislative action. Ante at 524. This back-door distinction is unavailing because the Court found the statute to be a permissible intrusion not subject to a separation of powers attack.
Schor built upon Nixon, in which the Court similarly rejected a separation of powers challenge to Congress’s direction to an Executive Branch official' — the Administrator of General Services — to take custody of President Nixon’s presidential papers and tape recordings for the purpose of archiving. The Court held that the limited screening undertaken by the archivists did not violate the President’s expectation of confidentiality and privacy and thus did not constitute anything other than “a very limited intrusion” into the domain of the Executive Branch.49 Again, the majority’s discussion of this case amounts to a criticism that the Court “did not explain what degree of congressional interference is necessary before the ‘proper balance’ [between the coordinate branches] has been disrupted.” Ante at 524. It is not, of course, unusual for the Court to eschew paragraphs of dicta describing what might have constituted a violation when its decision holds an act constitutional. Schor and Nixon provide, in my view, a cache of support for the proposition that legislative enactments enjoy a certain presumption of constitutionality in this area.
This point is hammered home, none too subtly, by the crown jewel of the majority’s opinion. In Morrison, the Court upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act.50 My colleagues gamely attempt to distinguish this case by discussing, ante at 526-28, the safeguards mentioned in Morrison and then positing that the qui tam relator provisions fail to satisfy the Morrison Court’s concerns. While the majority attempts to find its target simply by attacking the qui tam provisions point-by-point under Morrison’s test, the fact remains that Morrison represents the zenith of the Court’s permissive approach to separation of powers concerns, neither the “outer limits” of that jurisprudence nor the ingress for the separation of powers attack envisioned by the majority.
Indeed, the majority’s only two significant efforts to rationalize Morrison’s imprimatur of Congress’s action bear out the difficulty in the majority’s position. First, my colleagues announce — with no support other than caprice — that “[t]he independent counsel provisions of the [Ethics in Government Act] likely represent the outer limits of congressional encroachment on another branch’s powers and functions.” Ante at 547 n. 32. The majority then opines that the Supreme Court only upheld the independent counsel statute because it viewed the “device’s encroachment on executive powers as an evil that had to be incurred to provide some accountability within the Executive Branch.” Id. Nowhere in the Court’s lengthy, 7-1 opinion, *551authored by the Chief Justice, does it suggest that the statute represented “an evil,” that the justification for the law “was unique,” or that the holding in Morrison represented “the outer boundary” in the Court’s separation of powers jurisprudence.
The majority also arrives at the spurious conclusion that, since the independent counsel statute was designed to address “a narrow structural problem” within the Executive Branch, it could not be an impermissible intrusion on Executive authority. Ante at 529. The majority’s conclusory support for this statement is that the statute was “narrowly tailored” because it authorized an independent counsel only in limited circumstances. Id.; see also ante at 547 n. 32. With all due respect, I believe that if an action of one branch violates separation of powers, it violates separation of powers. The fact that a structural problem may have existed within the Executive Branch did not give Congress authority under this doctrine ipso facto to intrude on the Executive Branch’s province, just as even the narrowest statute would not avoid violating the principle in the face of the strict construction that the majority gives the term “separation of powers.”
Read in the light of these three cases, each of which upheld a statute against a separation of powers challenge, it is apparent that, far from undermining the executive’s power in any constitutional sense, the qui tam provisions serve exactly the opposite role. Before any qui tam action may proceed, the relator must serve on the government the complaint and a written disclosure, and the Attorney General must then choose whether to “intervene and proceed with the action,”51 or to allow the relator “to conduct the action.”52 If the Attorney General decides to intervene, the government has “primary responsibility for prosecuting the action.”53
A fourth case cited by the majority, Printz v. United States,54 is the only opinion relied upon by my colleagues that actually held an act unconstitutional. The Printz Court, however, rested its decision not on separation of powers doctrine but upon notions of federalism incorporated in the Constitution.55 The Printz Court not*552ed that the Brady Act transferred the responsibility of administering a federal law to state law enforcement officers who were “to implement the program without meaningful Presidential control.”56 Here, of course, Congress has not shifted to qui tam relators the requirement to administer the laws; indeed, contra Printz, after the filing of the action the Executive at all times retains discretion with respect to the FCA claim. Congress has not removed from the Attorney General her power to enforce the law, as the Supreme Court found that the Brady Act did. Instead, Congress has arguably made the Attorney General’s job easier by deputizing private citizens who may bring to the attention of the Executive Branch potential violations of law.
In a situation such as that presented by the case at bar, where the Attorney General decides not to intervene in the action, it is true that the relator has the authority to prosecute a claim on behalf of the United States. See ante at 517-18. Unlike the majority, however, I do not assign apocalyptic weight to this event. Instead, I submit that, when the government declines to intervene in a qui tam action, it has delegated its own law enforcement authority;57 Congress has not usurped it at all, much less for its own uses.58 Simply stated, the qui tam relator provisions do not violate separation of powers principles.
III
In my view, the qui tam provisions are constitutional for an additional reason. Congress, with the approval of the President,59 may delegate power — legislative, executive, and judicial — to administrative agencies.60 Similarly, the President may delegate executive power to entities independent of any formal branch of government.61 In Humphrey’s Executor v. Unit*553ed States, a case cited by the majority, ante at 523 n. 27, for the boilerplate proposition that each branch must remain “free from the control or coercive influence” of the other,62 a unanimous Supreme Court actually restrained the President from exercising his constitutionally-bestowed executive authority to remove an officer of the United States because he had previously delegated his authority to that official, who then became independent of Executive Branch control.63 The Court observed, in sweeping language, that the NLRB was “independent of executive authority” and “free to exercise its judgment without the leave or hindrance of any other official or any department of the government.”64
This seminal decision, of course, abetted the rise of independent agencies by overcoming the nondelegation doctrine, a theory of some currency in the 1930’s which provided that Congress could not cede its power to another branch of government or to an independent party;65 During the New Deal, the Supreme Court held two statutes unconstitutional under the non-delegation doctrine, opining that, in the absence of an “intelligible principle” for the exercise of delegated power,66 such an act was surely unconstitutional.67
Since 1935, the Supreme Court has stamped every delegation of authority, both legislative and executive, with the *554imprimatur of constitutionality, always finding that seemingly-ineluctable “intelligible principle.”68 Indeed, “[i]n recent years, [the Supreme Court’s] application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.”69 In any event, all agree that Presidential control and supervision over the decisions of independent officers is limited;70 similarly, a finding that executive control over qui tarn rela-tors is, to some degree, limited would not offend separation of powers doctrine or whatever principles of nondelegation remain viable because relators, while not independent “agencies,” receive their authority through the conjunctive action of Congress and the President through the operation of an intelligible principle, namely, the ability of the Executive to intervene in any qui tarn suit.
In one of the latest challenges to an act of Congress charging a violation of the nondelegation doctrine, the unanimous Supreme Court, in Touby v. United States,71 upheld the constitutionality of § 201(h) of the Controlled Substances Act of 1970.72 The Act authorizes the Attorney General to schedule as a “controlled substance” any drug that he or she has found to meet certain statutory criteria relating, inter alia, to a “history and current pattern of abuse” and constituting a risk to the public health. If the drug is scheduled, its manufacture, possession, or distribution becomes a criminal offense.
The Court rejected the petitioner’s contention that the statute concentrates too much power in the hands of the Attorney General by allowing her to define the very crimes that she then has the responsibility to prosecute.
This argument has no basis in our separation-of-powers jurisprudence. The principle of separation of powers focuses on the distribution of powers among the three coequal Branches; it does not speak to the manner in which authority is parceled out within a single Branch ... Petitioners’ argument that temporary scheduling authority should have been vested in one executive officer rather than another does not implicate separation-of-powers concerns; it merely challenges the wisdom of a legitimate policy judgment made by Congress.73
Although Touby addressed delegation by Congress to the Executive Branch rather than by the Executive to citizen relators, the principle enunciated — that Congress’s legitimate policy decisions do not implicate separation of powers concerns, should inform our decision here. In the case at bar, the FCA provides the Executive Branch the option of delegating its authority; once done, the ability of the Executive *555to control the litigation whose course it has left to the relator does not implicate separation of powers principles,74 just as the wisdom of a particular delegation does not present a justiciable issue.75
The majority does not address the delegation issue presented by this case; instead, my colleagues skirt a discussion of this fundamental, accepted practice by dwelling on what they take to be the great teaching of Morrison v. Olson: that one branch — in this case, Congress — cannot take power away from another without leaving sufficient “control” of the exercise of that power in the hands of the branch which constitutionally manages it.76 See ante at 525. I take no issue with the majority’s point here: Congress surely may not take so much power away from the Executive Branch that its authority in a law-enforcement area is undermined. I respectfully note, however, that, even under the qui tam relator statute, the President still ultimately retains substantial control over the Executive Branch’s litiga-tive functions. As such, the case before us is more appropriately viewed as one concerning the delegation of powers and the evisceration of the nondelegation doctrine.
Accordingly, the majority’s concern with the qui tam relator provision’s violation of the Take Care Clause should not carry the day. Just as the Executive may delegate some of its power to an independent party, traditional principles of prosecutorial discretion allow executive officials some leniency in deciding when and how to enforce the law.77 The majority contends, ante at 525, that the qui tam provisions constrain prosecutorial discretion by allowing a private citizen to sue on behalf of the government even when the Attorney Gen*556eral decides not to pursue the claim.78 The path to this conclusion is a tortuous one at best; in my view, when the Attorney General decides not to pursue the claim, she has delegated to the relator the prosecutorial authority and discretion that are normally incumbent upon the Executive Branch. The-discretion itself has not been eliminated.79
The fallacy of the majority’s argument is best illustrated by.its effort, ante at 525-26, to describe how. qui tam actions in which the government does not intervene, such as , the instant case, nonetheless “encroach on the Executive’s authority to initiate litigation aimed solely at redressing the government’s injuries.” The majority contends that, since prosecutorial discretion includes “the power to decide whether to bring suit,” allowing the relator initially to file the suit somehow undermines the discretion. See also ante at 525-26 (chronicling as particularly important the Attorney General’s decision' whether to bring suit). While I would agree that bringing suit is a part of prosecutorial discretion, both in the civil and criminal contexts, I fail to see how the fact of the government’s choosing not to prosecute itself when the relator wishes to do so is in any way akin to allowing a third party to bring suit in the government’s name over the government’s objection, which is the situation that the majority implies’ exists here. To the contrary, there may be many reasons why the government does not intervene: lack of manpower or other resources, disinclination to perform the necessary investigation about a particular offender, small amount of money at stake, doubts about the ability of the suit to succeed. Regardless of the situation, however, the government has not objected to the suit. Indeed, the government only stands to benefit from the suit’s progress; if the relator loses a suit in which the government chose not to intervene, then the so-called loss of prosecutorial discretion is moot since the Attorney General could have prosecuted the case herself; if the relator wins, the Treasury recovers funds.
In addition, and perhaps most tellingly, the relator may not dismiss the suit voluntarily unless the Attorney General consents to such action.80 The majority attempts to bury this significant information in a footnote, ante at 517 n. 5, but it is a decisive point. The government has discretion over the suit from the moment that the relator brings the facts to the Attorney General’s attention; the government may intervene or not, but the suit cannot simply be dismissed on the whim of the relator if the government believes it to be meritorious. This is a crucial distinction from the hypothetical statute that strips *557the Attorney General of all discretion and allows a relator to proceed willy-nilly through the court system; the qui tarn relator provisions of the FCA on the contrary require a more measured approach. At all times after the filing of the action onward, the government takes the lead, to the degree it desires, in the prosecution of the case.
IV
The separation of powers concern raised by the majority is a phantom one for another reason as well. Although the majority does not even pause to address the underpinnings of the separation of powers doctrine, the motivations of the Founders in fashioning a tripartite government offer helpful insight into this case. Throughout our history, constitutional pundits have held that the distribution of national powers — commonly referred to as “separation of powers” or “checks and balances”— serves either of two distinct purposes. The first justification for our constitutional structure is rooted in principles of efficiency. According to this view, “a division of labor among the various branches makes government more efficient, especially because of the concentration of executive power in the President, who can act with dispatch.”81 An alternative, and at times even concomitant, rationale justifies the separation of powers as necessary to prevent tyranny. Adherents of this view argue that the system of checks and balances “diffuses governmental power, diminishing the likelihood that any one branch will be able to use its power against the citizenry.”82 Neither rubric, nor any other that the majority may have putatively advanced, explains why the qui tam relator provisions of the FCA violate the constitutional separation of powers as expressed in the Take Care Clause.
A
The logic of the efficiency argument is that, following the disastrous ascendancy of the Articles of Confederation, the Framers of the Constitution sought to create a strong, energetic Executive who would preside over a government whose duties were sensibly divided between its three branches.83 Support for this view extends to the Constitutional Convention:
Efficiency was stressed as a principal reason for establishing an executive independent from the legislature by, among others, John Adams, Thomas Jefferson, John Jay, and James Wilson.... [Wilson’s] views are particularly apposite:
... [I]n the active scenes of government, there are emergencies, in which the man ... who deliberates, is lost. But, can either secrecy or dispatch be expected, when, to every enterprise, mutual communication, mutual consultation, and mutual agreement among men, perhaps of discordant views, of discordant tempers and of discordant interests, are indispensably necessary? ... If, on the other hand, the executive power of government is placed in the hands Of one person, is there not reason to expect, in his plans and conduct, promptitude, activity, firmness, consistency, and energy?
Despite the assertions to the contrary, the efficiency version has been dominant throughout American constitutional history. Separation of powers has never been a barrier to a high level of cooperation between the political branches of government — a situation that, speaking generally, has found judicial acceptance. .. ,84
*558Indeed, Alexander Hamilton defended the Constitution’s expansion of executive power on the ground that such power
is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and highhanded combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.85
Of course, in recent years, many theorists have come to view the separation of powers as a system consumed by its own inefficiency,86 The theory here is that the powerful checks built into the constitutional structure prevent the federal government from accomplishing anything with ease; it is instead the victim of numerous stalemates.87
Regardless, the majority does not argue that the qui tam relator provisions somehow make the Executive Branch inefficient; if anything, the FCA provides enhanced efficiency by allowing the Executive to pick and choose which battles it will fight, rather than forcing the executive to enforce the law in every case, with no regard to whether the claim is worthy of enjoying the weight of the government behind it.88
B
Another force underlying the Take Care Clause and the separation of powers doctrine driving it is the prevention of tyranny rationale. James Madison opined that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”89 Of the two rationales, most constitutional theorists have placed the emphasis on some form of this justification instead of the efficiency rationale. In his impassioned dissent in Myers v. United States,90 for example, Justice Brandéis wrote that the “doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”91
Over the course of two centuries of constitutional law, the separation of powers doctrine has admittedly been glossed *559by other justifications for its necessity, based largely in extrapolations of the prevention of tyranny explanation. Although the majority does not suggest and I do not believe that any of these explanations mandates our finding the qui tarn relator provision of the FCA unconstitutional, I address each briefly for the sake of thoroughness.
The separation of powers ensures the primacy of the rule of law because it provides that the power to make law is not in the hands of those who execute it. By enacting this form of constitutional government, the Legislative Branch is constrained from passing oppressive laws because they will not be exempt from their operation.92 Such is not the concern of the qui tam provision, since there is no argument that Congress is itself usurping executive authority.
Another, more cynical, subset of the tyranny justification was the Framers’ concern that government officials act not in their own interests but in the interest of the public. Consequently, if governmental power were concentrated in one branch, there would be an increased risk that that branch would act to increase the power of government at the expense of the governed. Separation of powers, under this theory, acted as a partial remedy by guarding both liberty and private property against governmental action. Indeed, if one branch tried to use its power oppressively, “[a]mbition [would] be made to counteract ambition”93 in the form of another branch’s resistance.94 The branch thought to constitute the greatest danger in this regard was the legislative; during the operation of the Articles of Confederation, the legislature, in the view of many of the Framers, intruded impermissibly into the sphere of liberty and private property.95
A third justification for the constitutional distribution of powers stresses the goal of limited government. Utilizing a system of checks and balances ensures that “no law can be brought to bear against the *560citizenry without a broad consensus.”96 In this respect, “there is an intimate connection between the separation of powers and the protection of private ordering.”97 This rationale stresses a connection between the distribution of power at the national level and the desire to limit the power of democratic politics to alter the status quo.
Finally, a subset of the prevention of tyranny rationale is concerned with the problem of factions. Separation of powers, in this view, was designed to prevent the usurpation of governmental power by private groups seeking to obtain distribution of wealth or opportunities in their favor; such private groups might use the authority of government to oppress.98 The separation of powers, then, was designed to protect minority groups against tyranny, since it was thought unlikely that a faction could gain control over all three branches of government simultaneously.99
Whichever rationale one brings to the issue of the qui tam provisions, I believe that the interplay between the Legislative and Executive Branches is entitled to some deference from the Judicial Branch. As one commentator recently observed:
Just as the framers saw their structural choices as parts of a package separating legislative from executive power to protect liberty and avoid governmental tyranny, so should we view checks and balances doctrine as a package, its specific elements subject to revision to ensure fidelity to the constitutional premise of divided governmental powers.100
In other words, Congress’s decision to allow the Executive to shift some of its law-enforcement authority to private citizens does not violate separation of powers principles particularly where the historical justifications for the principle, discussed supra, are not violated. Indeed, in this instance, the rationales discussed above support the implementation of the qui tam provisions insofar as the provisions enable the Executive Branch to function more efficiently while not increasing the likelihood that Congress — or the Executive, for that matter — will tyrannically govern.101 Simply put, the discretion that the FCA grants the Executive Branch in no way implicates tyrannical behavior either by Congress or the President. The FCA allows the President to carry that litigation forward which the Executive Branch deems worthy; all other cases it abandons to the devices of the relator, a circumstance which diminishes the fear of tyranny by leaving one whole class of cases outside the ambit of governmental control or concern.
V
In addition to Morrison, which, despite the majority’s best efforts to distinguish it, nonetheless rejected a separation of powers challenge to a statute more intrusive on Executive power than this one, several *561of our sister circuits have examined the qui tarn relator provisions of the FCA for constitutional infirmities under the separation of powers doctrine and found them not to be wanting. In United States ex rel. Kelly v. Boeing Co.,102 for example, the Ninth Circuit ruled that, taken as a whole, the qui tam relator provisions left the Executive Branch with a degree of control “indistinguishable from the degree of control the Morrison Court found the Executive Branch exercises over independent counsels.”103 While I might quibble with the exacting analogy to Morrison, I believe that the Kelly court’s' approach — to consider the net effect of the executive controls available under the qui tam provisions — is a defensible one. The better course is to view the Executive’s action as a delegation of prosecutorial authority, but, in either case, the statute should be viewed as constitutional.104
VI
Because I believe that the Executive and Legislative Branches came to such a compromise with the qui tam relator provisions of the FCA, and because the history of qui tam statutes supports their existence in this incarnation, I disagree with the decision rendered by the majority finding the qui tam statute unconstitutional. Additionally, because I believe that the Executive Branch appropriately delegated some its prosecutorial functions to the relator in this case, I would reverse the judgment of the district court.105 I dissent.
. Indeed, the Supreme Court cynically opined that qui tam relators "are motivated primarily by prospects of monetary reward rather than the public good.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 949, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997).
. The majority discusses at length the propriety of Plaintiff-Appellant's standing to bring her claim in federal court, see ante at 519-23, ultimately concluding that a recent opinion of this court confers standing upon her. See ante at 521-22. That opinion, United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279 (5th Cir.1999), indeed provided that a qui tam relator who has not suffered personalized injury may nonetheless have standing to bring a case even where the government does not intervene in the case. See 171 F.3d at 288 n. 12. Since I agree with the majority’s conclusion that Foulds controls this case, I pause only to add that I believe that Riley has standing in this case even in light of Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016-20 (1998), which limited standing in certain areas but did not completely foreclose a plaintiff's ability to bring a claim despite the absence of a personalized injury.
. 31 U.S.C. § 3730(b)-(f) (1994).
. Marsh v. Chambers, 463 U.S. 783, 790, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983).
. Id. at 791, 103 S.Ct. 3330.
. See, e.g., Mistretta v. United States, 488 U.S. 361, 401, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (noting that history, in the sense of " ‘traditional ways of conducting government[,] ... give[s] meaning' to the Constitution”) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring)); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 858, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (faulting petitioner for failing to identify "historical support for the critical link he posits between the provisions of Article III that protect the independence of the federal judiciary and those provisions that define the extent of the judiciary’s jurisdiction over state law claims”); The Pocket Veto Case, 279 U.S. 655, 689, 49 S.Ct. 463, 73 L.Ed. 894 (1929) (noting that "[l]ong settled and established practice is a consideration of great weight” in constitutional interpretation).
. Knowlton v. Moore, 178 U.S. 41, 95, 20 S.Ct. 747, 44 L.Ed. 969 (1900).
. See Printz v. United States, 521 U.S. 898, 905, 117 S.Ct. 2365, 138 L.Ed.2d.914 (1997) (“Because there is no constitutional text speaking to this precise question, the answer to the [constitutional] challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court.”).
. Geoffrey R. Stone et al„ Constitutional Law 366 (2nd ed.1991).
. One subject about which the majority and I do agree is the ancient nature of “qui tam " actions. I believe it is worth noting that the phrase itself was at least in circulation at Blackstone’s time. See 3 William Blackstone, Commentaries *160.
. See Dan D. Pitzer, The Qui Tam Doctrine: A Comparative Analysis of Its Application in the United States and the British Commonwealth, 7 Tex. Int’l L.J. 415, 417 (1972); Note, The History and Development of Qui Tam, 1972 Wash. U.L.Q. 81, 83.
. See Pitzer, supra note 11, at 417-18; Note, supra note 11, at 83-87.
. See Pitzer, supra note 11, at 417-18; Note, supra note 11, at 83-87.
. See Pitzer, supra note 11, at 418 (citing 4 William S. Holdsworth, A History of English Law 355 (1924)); see also Note, supra note 11, at 90 ("Thus in the seventeenth century the qui tam concept had wide acceptance in England. Non-statutory qui tam actions may still have been possible, but this was by no means certain. On the other hand, statutory versions of qui tam were very much in evidence.").
. See Note, supra note 11, at 97 ("[I]t seems clear that qui tam as it existed in early America was virtually identical to English qui tam. The colonies and newly established states adopted not only the letter but the spirit of this unique procedure.”).
.See, e.g., Act of July 31, 1789, ch. 5, § 29, 1 Stat. 29, 45 (customs duties); Act of March 1, 1790, ch. 2, § 3, 1 Stat. 101, 102 (census returns); Act of May 31, 1790, §§ 2, 6, 1 Stat. 124, 125-26 (copyright); Act of July 20, 1790, ch. 29, §§ 1, 4, 1 Stat. 131, 133 (seamen); Act of July 22, 1790, ch. 33, § 3, 1 Stat. 137, 137-38 (Indians); reenacted by Act of Mar. 1, 1793, ch. 19, § 12, 1 Stat. 331; Act of May 19, 1796, ch. 30, § 18, 1 Stat. 474; Act of Mar. 30, 1802, ch. 13, § 18, 2 Stat. 145; Act of June 30, 1834, ch. 161, § 27, 4 Stat. 733-34; Act of August 4, 1790, ch. 35, § 55, 1 Stat. 145, 173 (import and tonnage duties). The majority argues, ante at 519 & n. 12, that some of these statutes are not appropriately viewed as “qui tam " provisions because the qui tam plaintiff addressed injuries suffered only by himself, and not by the government. My reading of these statutes suggests, on the contrary, that the suits that they authorized redressed injuries suffered both by the government and private citizens. Regardless, even if my colleagues’ interpretation is the correct one, those statues allowed the filing of suits in the government's name. Consequently, whose injury was redressed by the suit does not implicate the Take Care Clause.
. Dorothea Beane, Are Government Employees Proper Qui Tam Plaintiffs?, 14 J. Legal Med. 279, 282 (1993).
. See supra note 16. In addition to these seven statutes, the majority, ante at 520 n. 13, cites six more qui tam laws enacted between 1792 and 1872, excluding the FCA. Those later statutes are: (1) Act of Feb. 20, 1792, ch. 7, § 25, 1 Stat. 239 (postal penalties); reenacted Mar. 3, 1845, ch. 43, § 17, 5 Stat. 738; (2) Act of Mar. 22, 1794, ch. 11, §§ 2, 4, 1 Stat. 349 (illegal slave trading); reenacted by Act of Mar. 26, 1804, ch. 38, § 10, 2 Stat. 286; Act of Mar. 2, 1807, ch. 22, § 3, 2 Stat. 426; Act of Mar. 4, 1909, ch. 321, §§ 245-57, 35 Stat. 1140; (3) Act of July 6, 1797, ch. 11, § 20, 1 Stat. 532 (paper duties); adapted by Act of Feb. 28, 1799, ch. 17, § 5, 1 Stat. 623 (same for penalties involving altering stamp duties); (4) Act of May 3, 1802, ch. 48, § 4, 2 Stat. 191 (postal employment); (5) Act of Aug. 5, 1861, ch. 45, § 11, 12 Stat. 296-97 (import duties); (6) Act of July 8, 1870, ch. 230, § 39, 16 Stat. 203 (illegal trade with Indians); reenacted by Act of May 21, 1872, ch. 177, § 3, 17 Stat. 137. One commentator adds five more qui tam statutes, all passed in the 1790’s, to this list. See Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons From History, 38 Am. U.L.Rev. 275, 296 n. 104 (1989) (citing (1) Act of March 3, 1791, ch. 15, § 44, 1 Stat. 199, 209 (illegal importation of liquor); (2) Act of June 9, 1794, ch. 65, § 12, 1 Stat. 397, 400 (failure to pay auction duty); (3) Act of June 5, 1794, ch. 48, § 5, 1 Stat. 373, 375 (failure to follow transport regulations); (4) Act of June 5, 1794, ch. 51, § 21, 1 Stat. 384, 389 (failure to pay refined sugar duty); (5) Act of June 5, 1794, ch. 48, § 5, 1 Stat. 376, 378 (failure to pay wine duty)).
. See Kent D. Strader, Comment, Counter Claims Against Whistleblowers: Should Counterclaims Against Qui Tam Plaintiffs be Allowed in False Claims Act Cases?, 62 U. Cin. L. Rev. 713, 727-28 (1993); Valerie R. Park, Note, The False Claims Act, Qui Tam Relators, and the Government: Which is the Real Party to the Action?, 43 Stan. L. Rev. 1061, 1064 (1991) ("As the American system of government developed, government agencies became more effective, as did conventional law enforcement procedures. This diminished the need for qui tam.") (internal citations omitted).
. See Park, supra note 19, at 1064 (citing Robert W. Fisher, Jr., Qui Tam Actions: The Role of the Private Citizen in Law Enforcement, 20 UCLA L.Rev. 778, 779-780 (1973)).
. See Strader, supra note 19, at 728 n. 86 (noting that, prior to the Civil War, ‘‘[t]hese restrictions included; short statutes of limitations; strict venue statutes; penalties for wrong-doing informers; requiring informers to pay costs if they did not prevail; giving states exclusive control of penal actions; labeling suits as criminal instead of civil; and eliminating monetary awards to the qui tam plaintiffs”); Park, supra note 19, at 1064.
. 31 U.S.C. §§ 3729-3733 (1994). See Anna Mae Walsh Burke, Qui Tam: Blowing the Whistle for Uncle Sam, 21 Nova L.Rev. 869, 871 (1997); Strader, supra note 19, at 728-29; Park, supra note 19, at 1066.
. See James B. Helmer, Jr. & Robert C. Neff, Jr., War Stories: A History of Qui Tam Provisions of the False Claims Act, The 1986 Amendments to the False Claims Act, and Their Application in the United States ex. rel *547Gravitt v. General Electric Co. Litigation, 18 Ohio N.U. L.Rev 35, 35 (1991) (citing 132 Cong. Rec. H6482 (daily ed. Sept 9, 1986) (statement of Rep. Berman)).
. See Burke, supra note 22, at 872; Evan Caminker, Comment, The Constitutionality of Qui Tam Actions, 99 Yale LJ. 341, 387 (1989).
. See Act of March 2, 1863, ch. 67, 12 Stat. 696 (1863) (codified as amended at 31 U.S.C. §§ 3729-3731 (1994)).
. See Burke, supra note 22, at 872.
. 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943).
. See S.Rep. No. 99-345, at 12 (1985), reprinted in 1985 U.S.C.C.A.N. 5266, 5277 (“The [1943] Senate specifically provided that jurisdiction would be barred on qui tam suits based on information in the possession of the government unless the relator was the original source of that information. Without explanation, the resulting conference report dropped the clause regarding original sources of allegations.”); see also Burke, supra note 22, at 872 (discussing this legislative history).
. See Act of Dec. 23, 1943, ch. 377, 57 Stat. 608 (1943) (codified as amended at 31 U.S.C. § 3730(d) (1994)).
. See id.
. See Park, supra note 19, at 1066.
. See id. (citing, inter alia, S.Rep. No. 99-345, at 1-8 (1985), reprinted in 1985 U.S.C.C.A.N. 5266, 5266-73.). Apparently, "[s]ome things never change: Today, perhaps ten percent of the Federal budget [amounting to upwards of $100 billion] is being lost each year due to fraud against the taxpayers, and there are indications of massive procurement abuses occurring in the recent military budget.” Caminker, supra note 24, at 349 (internal quotation marks omitted); see also Strader, supra note 19, at 713 n. 1 (relying on statements made by the Department of Justice to reach the same conclusion).
. See 31 U.S.C. § 3730(d)(2); see also Park, supra note 19, at 1067 (discussing this change).
. See 31 U.S.C. § 3730(e)(4); see also Burke, supra note 22, at 873 (discussing this alteration). Congress’s actions in liberalizing the qui tam laws occurred first in the False Claims Amendments Act of 1986, Pub.L. No. 99-562, 100 Stat. 3153 (codified at 31 U.S.C. §§ 3730 (1994)). Two years later, with the Major Fraud Act of 1988, Pub.L. No. 100-700, 100 Stat. 4631, 4638 (codified at 31 U.S.C. § 3730 (1994)), Congress again amended the FCA, this time to confront the issue of qui tam relators who themselves commit fraud against the government.
. See Burke, supra note 22, at 870.
. See id. at 871.
. See id.
. 3 William Blackstone, Commentaries *160.
. Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983).
. In Marsh, the majority’s primary conduit for its "fabric of society” argument, the Supreme Court compared practices "carefully considered by the Framers,” ante at 519 n. 10, with those "taken thoughtlessly, by force of long tradition.” 463 U.S. at 791, 103 S.Ct. 3330. No serious argument, advanced by the majority or within my ken, supports the implication that the qui tam provisions were enacted "thoughtlessly.”
In addition, I admit that I am somewhat nonplussed by the majority’s choice of the bracketed alteration "constitutional” in its citation to Marsh, ante at 519 n. 10. In fact, the full quotation reads "taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society.” Id. at 791, 103 S.Ct. 3330. The Court’s use of “pluralistic society,” as it explains in the sentences immediately following, referenced the multitude of religious beliefs held by the Framers. See id. at 791-92, 103 S.Ct. 3330. The Court was not speaking to the Establishment Clause question in this portion of its opinion; it was only noting that the vigorous debates accompanying the enactment of certain statutes lent credence to them, a circumstance which the majority does not prove was lacking with the adoption of the qui tam statutes.
. See Marvin v. Trout, 199 U.S. 212, 225, 26 S.Ct. 31, 50 L.Ed. 157 (1905) ("Statutes providing for actions by a common informer, who himself had no interest in the controversy other than that given by the statute, have been in existence for hundreds of years in England, and in this countiy since the foundation of the Government.”). In United States ex rel. Marcus v. Hess, the Third Circuit’s decision began with the premise "that qui tam or informer actions have always been regarded with disfavor.” United States ex rel. Marcus v. Hess, 127 F.2d 233, 235 (3rd Cir.), rev'd, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943). In reversing the lower court, Justice Black wrote that "[w]e cannot accept either the interpretative approach or the actual decision of the court below. Qui tam suits have been frequently permitted by legislative action and have not been without defense by the courts.” Marcus, 317 U.S. at 541, 63 S.Ct. 379.
. Moreover, the fact that criticism has been leveled at qui tam statutes throughout their history should not affect our constitutional analysis. The proper place to debate the merits of a law is Congress; the judiciary’s role in this exercise is simply to decide whether the framers, in drafting the Take Care Clause, meant to exclude qui tam statutes as one of the potential mechanisms by which to enforce the law. As a sister circuit sagely observed, "Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government. States and state agencies ... may prefer the dignity of being chased by the regular troops; if so, they must seek relief from Congress.” United States ex rel. Milam v. Univ. of Texas M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.1992).
. 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986).
. 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
. 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).
. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 856, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986).
. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
. Schor, 478 U.S. at 857, 106 S.Ct. 3245.
. Nixon, 433 U.S. at 451, 97 S.Ct. 2777.
. Morrison v. Olson, 487 U.S. 654, 696, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).
. 31 U.S.C. § 3730(b)(2).
. Id. § 3730(b)(4)(B).
. Id. § 3730(c)(1). The majority implies, ante at 517-18 that the fact that the relator still participates in an action in which the government intervenes and shares in any damages awarded the government somehow undermines the Executive’s authority. Cf. infra note 78 (discussing the majority's disingenuous treatment of cases in which the Executive chooses to intervene). How the relator’s participation undermines authority is an opaque concept indeed; the relator’s knowledge of events and, presumably, of the litigants, would seem to benefit the government’s prosecution of the case. In addition, the statute's provision, see § 3730(d)(1), that the relator share in the damage award does not implicate separation of powers concerns; rather, it serves as a reward to a citizen who brings to light a violation of federal law that would otherwise likely escape detection and then devotes a portion of his or her life (likely several years) to bringing the perpetrators to justice.
Other statutes that create a private right of action function in similar, albeit not identical, ways. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994), for example, allows a private citizen to initiate a suit on her own behalf, against a private entity, in order to enforce federal law. While such an action is not on behalf of the United States, as is a qui tam action, the principle — that a private citizen may enforce federal law — is the same. Cf. Caminker, supra note 24, at 344 (noting that qui tam statutes and citizen-suit statutes “serve the same purpose: [bjoth are designed to encourage private citizens to help the executive branch deter and redress violations of Federal law.”).
. 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).
. See id. at 935, 117 S.Ct. 2365 (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”). In the course of its opinion striking down the law on federalism grounds, the Court does address federal separation of powers, see id. at 922-23, 117 S.Ct. 2365, as the *552majority notes, ante at 523, but it most assuredly does not base its conclusion there. See id. at 905, 117 S.Ct. 2365 (mapping the opinion’s course down the three channels necessary to reach its result: "historical understanding and practice, [the] structure of the Constitution, and [the] jurisprudence of this Court"); cf. supra note 6 (noting the importance of history to constitutional questions where the document itself is silent). Instead, Printz is more appropriately viewed as a companion to New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), wherein the Court held that Congress cannot compel a state to enact or to enforce a regulatory program. See 505 U.S. at 166, 112 S.Ct. 2408.
. Id. at 922, 117 S.Ct. 2365.
. See infra Part IV.
. The majority criticizes this conclusion, ante at 524 n. 29, apparently assigning to this dissent the untenable position that only "aggrandizement” of power by one branch at the expense of another may constitute a separation of powers violation. One branch may indeed "impermissibly undermine" the constitutionally-assigned powers of another without aggrandizing its own power, see Clinton v. Jones, 520 U.S. 681, 701, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997), but finding that sort of constitutional violation requires more guesswork than the concededly more obvious at-lempt to aggrandize. The type of action that constitutes "impermissbl[e] undermining]" is open to a great deal more interpretation, as this case demonstrates.
Therefore, that Congress did not authorize an aggrandizement of its own power at best is persuasive authority for the notion that the statute is constitutional; it is neither intended as a dispositive, nor a myopic, observation.
. The majority misinterprets the delegation question that I address infra. It is beyond peradventure that "Congress may not delegate purely executive power without the acquiescence of the Executive.” Ante at 530. I agree whole-heartedly with that proposition and discuss here instance of delegation in which the Executive has concurred. For the reasons that follow, I believe that the qui tam relator provisions at issue in this case exemplify a delegation of Executive power to which the Executive has acquiesced.
. See generally R. Kevin Bailey, Note, “Did I Miss Anything?”: Excising the National Security Council from FOIA Coverage, 46 Duke L.J. 1475, 1493 n. 101 (1997) (discussing at length the history of the delegation of legislative power to independent agencies).
. See Humphrey’s Executor v. United States, 295 U.S. 602, 627, 628, 55 S.Ct. 869, 79 L.Ed. 1611 (1935) (holding that the President, hav*553ing ceded his authority in a particular area to an independent agency, may not attempt to exercise control over the actions of such an agency, even though it would not have existed but for the delegation of power). Cf. Myers v. United States, 272 U.S. 52, 134, 47 S.Ct. 21, 71 L.Ed. 160 (1926) (providing that the President exercises "unrestricted power” in directing the actions to be taken by his executive subordinates).
. Id. at 629-30, 55 S.Ct. 869.
. See id. at 631-32, 55 S.Ct. 869.
. Id. at 625-26, 55 S.Ct. 869; see also Morrison v. Olson, 487 U.S. 654, 659-60, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (holding that a statutory scheme designed to protect independent agency officials from executive control is constitutional).
. See Stone et al., supra note 9, at 416.
. Strictly speaking, as I have indicated, the nondelegation doctrine referred only to delegations of legislative power to the executive. Nevertheless, the rationale behind the doctrine applies with equal force to judicial and executive delegations as well. See, e.g., Mistretta v. United States, 488 U.S. 361, 371, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (holding that the power to promulgate sentences was not improperly delegated to an independent Sentencing Commission); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 857, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (holding that the CFTC's adjudicative functions did not violate separation of powers); Crowell v. Benson, 285 U.S. 22, 46, 50, 52 S.Ct. 285, 76 L.Ed. 598 (1932) (allowing delegation of judicial power to Employees’ Compensation Commission under the theory that it adjudicated "private rights” only); Murray v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 275, 15 L.Ed. 372 (1855) (reasoning that, because the government can only be sued with its permission, Congress can establish the terms and conditions of such litigation, including that the matter be resolved by a non-Article III adjudicator).
. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-42, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (declaring the National Industrial Recovery Act's ("NIRA”) "fair competition” provisions invalid because they supplied the President with "virtually unfettered” control over trade and industry); Panama Refining Co. v. Ryan, 293 U.S. 388, 432-33, 55 S.Ct. 241, 79 L.Ed. 446 (1935) (holding unconstitutional an NIRA provision that delegated power to the President without providing an intelligible principle for its exercise).
The "intelligible principle” test itself was developed a few years earlier in J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928). In that case, the Supreme Court considered a delegation by Congress, authorizing the President to revise certain tariffs whenever he determined revision to be necessary, to "equalize the said differences in costs of production in the United States and the principal competing country.” 276 U.S. at 401, 48 S.Ct. 348. The Court approved the delegation because Congress had established an "intelligible principle” by which the justices could determine whether the President had acted within his delegated authority. See id. at 409, 48 S.Ct. 348. Significantly, then the "intelligible prin*554ciple” formulation permits the delegation of discretion.
. The Court has also found some delegations to be constitutional where they collaterally implicate aspects of legislative, executive, and/or judicial power. See, e.g., Wiener v. United States, 357 U.S. 349, 356, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (holding that the adjudicatory nature of the War Claims Commission implicitly limited the President's power to remove its officials, despite the fact that the President had appointed them).
. Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct. 647. For an example of such an application, see Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 646, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (announcing the rule that "[a] construction of [a] statute that avoids [an] open-ended grant [of delegated power] should certainly be favored.”).
. See, e.g., Cass R. Sunstein, Constitutionalism after the New Deal, 101 Harv. L.Rev. 421, 444 (1987) ("[T]he power of the President to control regulatory agencies was frequently limited by law or in practice[,]” even as the President's power otherwise increased during the New Deal period).
. 500 U.S. 160, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991).
. 21 U.S.C. § 811(h) (1988).
. 500 U.S. at 167-68, 111 S.Ct. 1752 (citation omitted) (emphasis added).
. See Humphrey's Executor, 295 U.S. at 631-32, 55 S.Ct. 869.
. See Touby, 500 U.S. at 168, 111 S.Ct. 1752.
. My colleagues note that other circuits passing on the constitutionality of the FCA's qui tam provisions have deferred to Morrison 's "control” test. See ante at 525 & n. 31. As I explained supra, I do not dispute that Morrison is a partial answer to the question presented by the qui tam provisions; I simply believe that it is an incomplete response in light of the Executive Branch's ability to delegate its powers to an independent party, in this case the qui tam relator. The independent counsel cannot be considered an "independent” party in the same way, primarily because the Executive Branch itself — through the Attorney General — must in every case involving potential wrongdoing within the Executive Branch determine whether an independent counsel is needed. To borrow a metaphor from classical mythology, Athena, in the person of the independent counsel, springs from Zeus’s head and becomes a stubborn maverick. The qui tam statute works in exactly the opposite way: the relator brings the case to the attention of the Executive, who then chooses whether or not to let the relator proceed with the action on her own or to take over the litigation itself. At no point must the Executive determine whether to appoint a relator to undertake the Executive’s investigatory functions. The majority concludes that this factor makes the qui tam relator provision more restrictive than the independent counsel law. See ante at 529 (”[T]he controls the Executive Branch may exercise ... are simply not sufficient to counterbalance this major encroachment on Executive power.”). I disagree because the independent counsel statute requires the appointment of an independent counsel unless there are "no reasonable grounds to believe that further investigation is warranted;” in that sense, the Executive has less control than in the instant scenario. By contrast, the qui tam statute never requires even the government’s acquiescence in a case, much less an actual appointment.
I believe that Morrison’s "control” test does not invalidate the qui tam relator provisions. While politics might on some level impact the Executive's decision to intervene in a particular case, it is in all cases the Executive Branch itself that determines how much control it will have over a qui 'tam action, not Congress. It is beyond peradventure that Congress would ever exercise “control” over a qui tam action in the same fashion that it politically may attempt to control the Executive’s implementation of the independent counsel statute.
. Cf. Heckler v. Chaney, 470 U.S. 821, 835, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (concluding that the Executive's exercise of prose-cutorial discretion does not violate the Take Care clause).
. Of course, the majority'also notes, ante at 528 n. 39, that "this concern about encroachment on the Executive’s prosecutorial discretion is present only in qui tam actions in which the government declines to intervene.” While I agree in principle with this statement, the text of the majority’s opinion does not always maintain a firm grip on this moderating observation. In the preceding paragraphs, the majority attacked the qui tam provisions for interfering with the Executive Branch’s "ability to control the litigation,” ante at 525-26, even where the Attorney General elected to intervene. In my view, this vacillation is a fatal flaw in the majority's argument: if losing control over litigation does not represent a violation of the separation of powers doctrine, then neither does the Executive’s decision to delegate its prosecution of a case to a third party.
. The majority adverts to Chaney and to United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), but those cases actually undermine the majority’s position. Nixon in particular recognized the principle of “absolute discretion” in the Executive Branch's role as prosecutor. 418 U.S. at 693, 94 S.Ct. 3090. As I have stated earlier, the qui tam provisions do not eliminate that discretion, for the Attorney General may elect to intervene to prosecute the case herself, or she may request that the district court dismiss the case. See 31 U.S.C. § 3730(c)(2)(A). When she does neither, she has not lost power, as the majority suggests;' she has simply passed the mantle of her power on to the relator.
. See 31 U.S.C. § 3730(b)(1); Searcy v. Philips Electronics N. Am. Corp., 117 F.3d 154, 159 (5th Cir.1997).
. Stone et al., supra note 9, at 362-63.
. Id. at 363.
. See id.
. Arthur Selwyn Miller, An Inquiry into the Relevance of the Intentions of the Founding Fathers, with Special Emphasis upon the Doctrine of Separation of Powers, 27 Ark. L.Rev. 583, 588-89 (1973).
. The Federalist No. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
. See, e.g., Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States 67 (2nd ed.1980) (suggesting that the "separatist tendencies and self-defeating proclivities of the independent functions” contributes to a government with power but "without planning”); Lloyd N. Cutler & David R. Johnson, Regulation and the Political Process, 84 Yale L.J. 1395, 1401 (1975) (suggesting that the Constitution’s "large measure of inertia against change” handicaps Congress's and the President's ability to manage the affairs of the government).
. See Stone et al., supra note 9, at 365.
. The majority, ante at 528, complains that even a qui tam relator who presents credible allegations "can bind the government, via res judicata, and prevent it from suing over those concerns at a later date when more information is available.” This concern is ethereal at best. While I concede that a hypothetical case might arise that the government deems worthy but not yet ripe, it is far likelier (hat, upon presentation of a valid claim, the government will assume control of the litigation than leave the case to the vagaries of the relator. Any res judicata concern, then, could be alleviated with recourse to a voluntary dismissal of the claim. See 31 U.S.C. § 3730(c)(2)(A).
. The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961).
. 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).
. Id. at 293 (Brandéis, J., dissenting).
. The primary safeguard under this view is that it
makes the laws apply to the lawmakers. This is probably the meaning of Montesquieu’s statement concerning tyrannical laws tyrannically applied; if the legislators cannot ensure a tyrannical execution, i.e., one which favors themselves, they will be less likely to make tyrannical laws for fear that they themselves will be tyrannically ruled by them. [If] a separate executive will enforce the law even against the lawmakers, the lawmakers will not have a "distinct interest from the rest of the Community-”
David F. Epstein, The Political Theory of The Federalist 129-30 (1984). But cf. Peter M. Shane, Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers, 11 Yale L. & Pol’y Rev. 361, 364 (1993) (arguing that "the advantages offered by checks and balancés in promoting the rule of law are significant” but that "categorical separation [of powers] tends to subvert, rather than encourage executive conformity to law”).
. The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961).
. See Edward H. Levi, Some Aspects of the Separation of Powers, 76 Colum. L.Rev. 371, 374 (1976) (contending that the separation of powers "was based upon the skeptical idea that only the division of power among three governmental institutions — executive, legislative, and judicial — could counteract the inevitable tendency of concentrated power to overreach and threaten liberty”).
. Compare Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 609 (1969) (concluding that the separation of powers was intended to ensure "the protection of individual rights against all governmental encroachments, particularly by the legislature, the body which the Whigs have traditionally cherished as the people's exclusive repository of their public liberty”), with The Federalist No. 48, at 309 (James Madison) (Clinton Rossiter ed., 1961) ("In a democracy, where a multitude of people exercise in person the legislative functions and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter.").
. Stone et al., supra note 9, at 364.
. Id. at 364-65.
. See The Federalist No. 10, at 77-78 (James Madison) (Clinton Rossiter ed., 1961).
. Critics of this view opine that the separation of powers actually aggravates the problem of factions because it allows certain well-organized groups to block necessary regulations. See Stone et al., supra note 9, at 365.
. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L.Rev. 123, 124 (1994).
. The theoiy of "ordered liberty,” or, more precisely, the notion that separation of powers is part of a scheme designed to protect individual liberty from the encroachments of majoritarian politics, not as a constraint upon the efficient operation of government, also serves to support the notion that the qui tam relator provision does not violate the separation of powers. See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L.Rev. 1513, 1515-16 (1991) (" ‘[O]rdered liberty' analysis would have the Court examine governmental acts in light of the degree to which they tend to detract from fairness and accountability in the process of government. If the process is impaired in this way, then the action poses a threat to individual liberty.”).
. 9 F.3d 743 (9th Cir.1993).
. Id. at 757.
. See also United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir.1994) ("The qui tam provisions adopted by Congress do not contradict the constitutional principle of separation of powers. Rather, they have been crafted with particular care to maintain the primacy of the Executive Branch in prosecuting false-claims actions, even when the relator has initiated the process.”); United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1154-55 (2nd Cir.1993) (holding that FCA suits "do not constitute an intrusion into areas committed to other governmental branches” because, "in adjudicating FCA cases, courts further the Congressional purpose of augmenting executive enforcement of fraud cases”).
. Although I believe that qui tam relators are most certainly not "officer[s] of the United States,” U.S. Const. art. II — largely for the same reasons that I contend that they do not violate the Take Care Clause — who must be appointed in accordance with the Appointments Clause, I do not address that issue at length above because neither the district court nor the majority grounded its opinion there. I note only that the Supreme Court's jurisprudence establishes that, even if qui tam relators are officers of the United States, they are appropriately appointed by the Attorney General, since the clause provides that "the Congress may by Law vest the Appointment of such inferior Officers ... in the Heads of Departments.” Id. Buckley v. Valeo makes this point quite clearly: the Attorney General may make certain appointments because her office is "in the Executive Branch.” Buckley v. Valeo, 424 U.S. 1, 127, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). See also Weiss v. United States, 510 U.S. 163, 172-73, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994) (rejecting an Appointments Clause challenge to the appointment of military judges on the ground that the President himself, having appointed the officers in the first instance, was not required to make a "second appointment” of certain officers to the post of military judge); Freytag v. Comm’r, 501 U.S. 868, 891-92, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (rejecting an Appointments Clause challenge to a statute authorizing the chief judge of the Tax Court to appoint special trial judges because the Tax Court is a "Court of Law” recognized by the Appointments Clause).