I have a question prompted by Ken’s interesting post commenting on Jonathan’s post on the blindness of the academy to the validity individual mandate challenge.
My question based on the debate around the mandate, but also the question of the Cordray and NLRB Recess Appointments (which I’ve also followed). On both issues, on the “conservative” side of the fence there was some substantial disagreement–indeed, on these very pages. Orin argued for the constitutionality of the mandate and John Elwood argued for the validity of the Cordray and NLRB appointments.
On the other hand, are there any prominent liberal law professors who parted company from the liberal orthodoxy on either of these issues? The closest I’ve been able to come up with are Jason Mazzone on the mandate and Jonathan Turley on Cordray, but they both seem somewhat heterodox to me generally (perhaps my perception of both is simply incorrect). Considering that we are only about a dozen bloggers here and were able to generate some internal dissent, doesn’t it seem probable that among the hundreds of liberal law professors in the country there might be a few who departed from the group?
And assuming I’m right as a factual matter (I’ve both Googled, searched my memory, and asked around a bit and I can’t recall anyone else on either point), does this help us to distinguish between the Adler and Anderson hypotheses? As I take it, the Adler hypothesis would be that the group-think of the professoriate caused them to not be able to even think that the challenge to the individual mandate might be unconstitutional. The Anderson hypothesis, as I take it, would be that the professor could think and recognize that the argument might be valid, but they might refuse to say or otherwise acknowledge the validity of the argument in order to create a fence around what can be considered within the bounds of mainstream argumentation.
So it strikes me that one way to test the hypothesis would be to ask whether there are liberal law professors who might admit privately that the mandate might be unconstitutional but would not do so publicly. If that is the case, then it tends support the Anderson hypothesis, I think, because it suggests that the real agenda may have been to demonstrate public solidarity behind the incontrovertible nature of the mandate rather than an inability to consider the argument. Not that anyone would be able to research this systematically–but I have heard anecdotal evidence that this was not uncommon, at least for the mandate (there’s been less talk generally, public or private, I suspect, about Cordray although it is mighty big in my world). Which, if true, I think tends to confirm the Anderson hypothesis.