Volume 105

A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding

In a line of cases culminating in United States v. Booker, the Supreme Court identified a Sixth Amendment problem with mandatory sentencing guidelines that used judge-found facts in ways that increased a defendant’s sentence. The Court’s solution for the federal system was to sever and remove the statutory provisions that made the federal Guidelines mandatory and binding on sentencing judges, thus creating a “discretionary” sentencing system.

Despite the key role judicial discretion plays in the constitutionality of our federal sentencing scheme, the Court has never defined what features are necessary for a sentencing guidelines system to be discretionary, and few academics have considered the question. This Note takes up this issue by considering what features could distinguish mandatory and discretionary sentencing systems. It proposes two models for what makes sentencing guidelines discretionary—a “bundle” model and a “default sentence” model—that most closely adhere to what the Court said about the discretion remedy around the time of Booker.

The Note then considers a number of the Court’s recent Guidelines decisions in light of the discretion issue. On their own and in aggregate, these cases enact legal rules, such as procedural requirements and appellate presumptions, that act as nudges towards within-Guidelines sentences. The Note argues that these rules risk violating Booker’s mandate that judges have discretion at sentencing and identifies grounds on which a new Booker-style challenge could be brought if these lines of cases were extended further.

Genetic Privacy After Carpenter

The recent arrest of the alleged Golden State Killer has ignited law enforcement interest in using consumer genetic databases to crack cold cases. The break in that case came when investigators compared crime scene DNA to other DNA profiles searchable in an online genetic genealogy database called GEDmatch. Yet consumer genetic services have responded to law enforcement interest in markedly different ways. Some have explicitly denounced law enforcement use and vowed to oppose it; others have welcomed law enforcement expressly; and some have cooperated quietly with law enforcement, while keeping their users in the dark. At almost the same time, the Supreme Court gave these platforms a new role in policing police access to their genetic resources. In Carpenter v. United States, the Court upended the seemingly categorical rule that one cannot have an expectation of privacy in data shared with another.

This Article examines the impact of Carpenter for law enforcement use of third-party DNA databases, as in the Golden State Killer case. In so doing, this Article makes three contributions. First, it joins a burgeoning scholarship in identifying Carpenter’s “test,” and demonstrates that genetic information is precisely the sort of data in which individuals may ordinarily maintain an expectation of privacy, even when that data is in third-party hands. Second, it considers the role of consumer genetic platforms in mediating police access to their resources, recasting third-party privacy practices in a more robust and nuanced role as measures of consent. Third, it assesses the privacy practices of genetic genealogy companies specifically, concluding that some plainly reinforce existing expectations of privacy in genetic data, while others have meandered their way closer to legally valid consent to government use—though none has done so with precision.

Appointments Without Law

Debates about the Appointments Clause tend to turn on drawing the right distinctions. This Article argues that the Appointments Clause draws a little-recognized distinction between the officers specifically enumerated by the Clause (“Ambassadors,” “other public Ministers and Consuls,” and “Judges of the supreme Court”) and the officers referred to only as a residual category (“all other officers of the United States”). The basic claim is that enumerated offices need not be “established by Law”—that is, by congressional legislation—but are established instead by the Constitution or the law of nations.

Although the “enumerated-residual distinction” has been essentially ignored by judges and scholars, it raises a basic interpretive puzzle. The Appointments Clause appears to give the President the same authority to appoint each category of enumerated officers. But in practice, we have construed the President’s authority to appoint diplomats and Supreme Court Justices quite differently. Since the Founding, the President has appointed diplomats without congressional authorization, but at the same time everyone has assumed that Congress must pass a statute before the President may appoint any Justices.  

This Article argues that the President has the authority to appoint both diplomats and Justices without congressional authorization. This view accords with the Constitution’s text, suits the unique constitutional status of the Supreme Court, and was advanced by political actors soon after the Constitution’s ratification. But even if one rejects the strongest version of this argument, the Article’s core insight—that the Appointments Clause requires parallel treatment of diplomats and Justices—has a series of potential implications for constitutional doctrine.

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