Canceling student debt via executive action would strengthen working class power

Ryan Doerfler posted an article react in part to my argument that current law allows the Secretary of Education to cancel as much student debt as she wishes using her enforcement discretion. Professor Doerfler does not so much oppose my proposal (for which he has flattering words) as he uses it as an example of a dismal tendency among progressive elites. The tendency is to use legal ingenuity to find ways in which a progressive president can “bring about much, if not all, of the change we need,” even if Congress isn’t cooperating.

Professor Doerfler rightly warns that legal trickery can only get us so far, especially as the judiciary tends to become little more than an operational arm of those who exactly oppose this 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 limitations of the current system distracts from the task of building the coalition led by the working class needed to change the system. It replaces the construction of power with respect for the power of experts.

It was somewhat surreal to see my argument used as an example of this trend, as it is a trend that I also oppose. I can understand why my argument, taken in isolation, could be considered an example of such anti-political politics. All the more so when it is not isolated, but rather writing to American perspective alongside other arguments for creative uses of executive action under the heading of a “First day agenda.”

But, I must emphasize, focusing on a president’s ability to write off student debt (or do other progressive things) without further congressional action does not require giving up on building power, whether he’s whether it is to bring together legislative majorities or to create a real workers’ party or a number of other things. More than that: in an environment where left-wing power-building institutions are still atrophied, finding creative uses of executive power is essential to this latter task. A president dedicated to building power can use the authority of the secretary of education to cancel student debt as a tool to do so.

The concrete nature of the debt cancellation request is also useful as an organizing tool. In fact, the organizing that uses the demand for student debt cancellation as part of the working class empowerment strategy is already underway. It is because of this organization that the idea of ​​a jubilee is on the agenda first. And it was from this organization that the idea of ​​using the Secretary of Education’s discretion to wipe out all (or most) public student loan debt without congressional action took root.

The legal proposals that Doerfler criticizes as little more than a “clever lawyer” stem from a years-long grassroots campaign by the Collective debt. Before debtor students at for-profit colleges began collectively refusing to pay their student loans and flooding the Department of Education with cancellation requests (this was in 2015), no one in the political world of the higher education was not seriously talking about canceling student debt. .

These debtors’ request for relief was legally based on another authority of the Secretary of Education that had not been used before (early coverage called it a “loophole”), but it has always been presented as a political and moral demand, as the first step towards complete debt cancellation and free college for all. No one had the illusion that the strength of the best argument would prevail or that the experts could handle it. It was understood that the legal argument gave striking debtors a foot in the door while offering a first step away from self-blame and seeing their debt as the imposition of an illegitimate system. It reversed the conversation of “why don’t you pay?” to “why do you continue to collect? »

Talk to anyone in the world about higher education politics: they’ll tell you that no one with any influence was seriously talking about massive debt cancellation until former students organized for profit begin to demand it. Massachusetts Senator Elizabeth Warren proposed it as part of her presidential platform after years of being an ally to these student debtors in their battles with the Ministry of Education. When Vermont Sen. Bernie Sanders included it in his platform (in a joint effort with Minnesota Rep. Ilhan Omar), he consulted with members of the Debt Collective, and they talked to the press conference.

For my part, I would certainly have had little reason to think about the possibility that the Ministry of Education could cancel student debt if I had 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 Education Secretary’s Settlement Authority when I worked with consumer advocates to justify the massive debt forgiveness of students who attended colleges where there were evidence of widespread consumer fraud. When it occurred to me that authority could be used more broadly, my co-organizers found this possibility powerful in large part because it provided a legal basis for the type of request that could broaden the base students who are resistant to indebtedness.

If the President (or his appointee) has the power to stop collecting student debt, it raises the question of why such collection should continue. It makes you wonder who owes what to whom. Student debt is very unpopular – once student debt forgiveness seems possible, once expectations are high, it becomes much easier to organize people to demand it. And this organization, if done well, will lead to bigger questions, more ambitious demands.

The fact that a demand is born of a movement does not in itself make the implementation of this demand a means of building power, of course. One can imagine a world in which massive student debt forgiveness is a highly technocratic exercise, done as narrowly as possible to avoid too much risk of litigation while nevertheless being bogged down in courts crammed with judges fundamentally opposed to progressive change. I tend to think, however, that even such a limited form of jubilee would surely help broaden political horizons, legitimize debt resistance, embolden those organizers who have achieved victory. This would change bargaining power. This would make it easier to build power.

But erasing student debt doesn’t have to be a technocratic exercise. One can imagine the president doing it doing it in the widest way possible (to unify people and make the reimposition of debts by court as unpopular as possible), working with movements to mobilize people for rallies across the country, and leading a sophisticated public relations campaign focused on the illegitimacy of student debt, the harm it does, and the benefits of cancellation. One can imagine the legal battles taking place partly outside the courtroom, with the president using any legal loss as further evidence of a justice system opposed to progressive change and the need to show up at the polls to take control of the legislature.

In short, one can imagine the reinforcement of power within the framework of the process of cancellation of the student debt. Not only would horizons be broadened, but people would be mobilized to fight to make it a reality.

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

But he too quickly dismisses the possibility that part of the process of building this movement is exercising the president’s power to improve people’s lives in the short term and raise their expectations and sense of self-efficacy in the long term. . . It does so in part because it ignores the unfinished and still evolving power-building work that has brought us to this unique political moment. Building on its recent victories, the Debt Collective is expanding its efforts to organize higher education, including laying the groundwork for a nationwide student debt strike to demand the complete cancellation of the student debt and free public college for all. (The next phase of the campaign will officially launch Feb. 7 at UCLA.)

If we want the president to be a “chief organizer,” as Sanders puts it, we need someone who will think creatively about how to use his power to support existing organizing efforts and kick-start some. again. If we want a president who will do this, we need concrete demands from the office to unite behind.

Naomi C. Amerson