Skip to content

Executive Action as Power Building: A Response to Professor Doerfler


Luke Herrine (@LDHerrine) is Assistant Professor of Law at the University of Alabama and a former Managing Editor of the LPE Blog.

Ryan Doerfler has an article over at Jacobin reacting in part to my argument that current law enables the Secretary of Education to cancel as much student debt as she wants by using her enforcement discretion. Professor Doerfler is not so much arguing against my proposal (for which he has some flattering words) as he is using it as an example of a baleful tendency among progressive elites. The tendency is to use legal ingenuity to find ways that a progressive president can “bring about much, if not all, of the change that we need” even if Congress does not cooperate. Professor Doerfler rightly warns that lawyerly craftiness can only get us so far, especially as the judiciary tilts towards becoming little more than an operational arm of those opposed to exactly that change. He also rightly points out that focusing on the ability of a progressive president (ideally a brilliant lawyer) with a team of progressive experts to work around the limits of the current system diverts attention from the task of building the working-class-led coalition necessary to change the system. It replaces power building with deference to experts’ power.

It was somewhat surreal to see my argument used as an example of this tendency, since it is one that I also oppose. I can understand why my argument, taken in isolation, could be seen as an example of such anti-political politics. All the more so when it is not in isolation, but rather written up at the American Prospect alongside other arguments for creative uses of executive action under the rubric of a “Day One Agenda”. But, I must insist, focusing on the ability of a President to cancel student debt (or to do other progressive things) without further congressional action does not require giving up on building the power, whether to put together legislative majorities or to create a true workers’ party or any number of other things. More than that: in an environment in which left power-building institutions are still atrophied, teasing out creative uses of executive power is essential to the latter task. A President dedicated to building power can use the Secretary of Education’s authority to cancel student debt as one tool to do so.

(For what it’s worth: others at Jacobin seem to agree, given their own version of a Day One Agenda, which includes exactly this proposal.)

Moreover, the concreteness of the demand for debt cancellation is useful as an organizing tool. In fact, organizing that uses the demand of student debt cancellation as part of the strategy to build working class power is already ongoing. It is because of this organizing that the idea of a jubilee is on the agenda in the first place. And it is out of this organizing that the idea for using the Secretary of Education’s enforcement discretion to wipe out all (or most) public student loan debt without congressional action took root.

The legal proposals Doerfler criticizes for being little more than “smart lawyering” emerged out of a multi-year grassroots campaign by the Debt Collective. Before student debtors from for-profit colleges began to collectively refuse to pay their student loans and to flood the Department of Education with demands that they be cancelled (this was in 2015), nobody in the higher education policy world talked seriously about student debt cancellation. These debtors’ demand for relief was legally grounded in another of the Secretary of Education’s authorities that had not been previously used (early coverage referred to it as a “loophole”), but it was always presented as a political and moral demand, as only the first step to full debt cancellation and free college for all. Nobody was under the illusion that force of the best argument would win the day or that the experts could take care of it. The understanding was that the legal argument gave striking debtors a foot in the door and provided a first step away from blaming themselves towards seeing their debt as the imposition of an illegitimate system. It flipped the conversation from “why aren’t you paying?” to “why are you still collecting?”

Talk to anybody from the higher education policy world: they will tell you that nobody with any influence was talking seriously about mass debt cancellation until organized former for-profit college students began to demand it. Senator Warren proposed it as part of her presidential platform after years of being an ally to these student debtors in their battles with the Department of Education. When Senator Sanders proposed it as part of his (as part of a joint effort with Representative Omar), he consulted with members of the Debt Collective, and they spoke at the press conference.

For myself, I certainly would have had little reason to think about the possibility that the Department of Education might be able to cancel student debt had I not been actively fighting over the meaning of the Higher Education Act as a lawyer-organizer at the Debt Collective. I originally came across the Secretary of Education’s settlement authority when working with consumer advocates to justify mass cancellation of the debts of students who attended colleges where there was evidence of widespread consumer fraud. When it occurred to me that the authority could be used more broadly, my co-organizers found that possibility powerful in large part because it provided legal grounding for the sort of demand that could expand the base of student debt resisters. If the President (or his appointee) has the power to stop collecting student debt, it opens up the question of why that collection should continue. It enables us to ask who owes what to whom. Student debt is highly unpopular—once student debt cancellation seems possible, once expectations are raised, it becomes much easier to organize people to demand it. And that organizing, if done well, will lead to asking bigger questions, more ambitious demands.

The fact that a demand grew out of a movement does not itself make implementation of that demand a way of building power, of course. One can imagine a world in which mass student debt cancellation is a highly technocratic exercise, done as narrowly as possible to avoid too much litigation risk while nevertheless being bogged down in courts packed with judges fundamentally opposed to progressive change. I tend to think, though, that even such a limited form of jubilee would surely contribute to a widening of political horizons, a legitimization of debt resistance, an emboldening of the organizers who won the victory. It would shift bargaining power. It would make building power easier.

But wiping student debt away need not be a technocratic exercise. One can imagine the President who does so doing it as expansively as possible (to unify people and to make a courts’ re-imposition of debts as unpopular as possible), by working with movements to mobilize people for rallies around the country, by running a sophisticated public relations campaign oriented around the illegitimacy of student debt, the harm it does, and the benefits of cancellation. One can imagine the legal battles being fought in part outside the courtroom, with the President using any legal losses as further evidence of a judiciary opposed to progressive change and of the need to show up to the ballot box to take over the legislature. In sum, one can imagine power building as part of the process of cancelling student debt. Not only would horizons be widened, but people would be mobilized to fight to make them reality.

I agree with Professor Doerfler that this vision is closer to that of Senator Sanders than that of Senator Warren. It is not enough to “have a plan for that”: the plan must involve (in Professor Doerfler’s words) “building and sustaining a mass movement to force government actors to enact ambitious policies”. This is something that it is well worth emphasizing to progressive lawyers and law professors, and I am grateful for Professor Doerfler for doing so.

But he is too quick to dismiss the possibility that part of the process of building that movement is exercising the power of the President to make peoples’ lives better in the short term and to raise their expectations and their sense of self efficacy for the long term. He does so in part because he ignores the power building work already ongoing (Professor Doerfler may be unaware of this work, but his editors at Jacobin definitely are not). If we want President to be an “organizer in chief”, as Sanders says he will, we need somebody who will think creatively about how to use their power to support existing organizing efforts and to seed new ones. If we want a President who will act that way, we need concrete demands of the office to unify behind.