Activists argue that the President could cancel student debt with the stroke of a pen, fulfilling a campaign promise. Newly uncovered documents suggest that Biden has been “reviewing” the issue for months.

Occupy Wall Street, the encampment in lower Manhattan that began and ended a decade ago, did not overturn the two-party system, eradicate government corruption, or install a socialist President. In retrospect, it was less a political movement than a laboratory for radical ideas—many of which, owing in large part to post-Occupy organizing, have since come to seem far less radical. Take student debt. In the fall of 2011, the total amount of outstanding student debt in the country had just surpassed nine hundred billion dollars. A group called the Occupy Student Debt Campaign took the stark moral position that all of this debt should be abolished. “The current scenario, in which government agencies, banks, and other private lenders set extortionate rates and extract lavish profits, is corrupt and abhorrent,” the collective wrote on its Web site. “Immediate forgiveness in the spirit of a jubilee, where the injustice of an unpayable debt is redeemed through a single, corrective act, is the only just response to this crisis.” At the time, a few Democrats supported relatively minor tweaks, such as debt refinancing, but no member of Congress, not even Bernie Sanders, supported the broad-based cancellation of student loans. “We were constantly laughed at,” Thomas Gokey, a member of the group, told me. “Even sympathetic people would tell us, ‘That’s a nice idea. It’ll never happen.’ ”

Occupy ended, but the debt-cancellation idea kept evolving. The amount of student debt in the country surpassed a trillion dollars, then a trillion and a half. The Occupy Student Debt Campaign tried to persuade a million student debtors to default, openly and collectively, on their loans. This failed, but this campaign eventually grew into one called Strike Debt, which later reëmerged as the Debt Collective. The activists kept organizing debtors, but they also started trying to convince politicians of the need for debt cancellation, and trying to identify legal mechanisms that could make it happen. “Our position was always that the government can and should cancel federal student debt,” Astra Taylor, one of the Debt Collective’s co-founders, who has also contributed to The New Yorker, told me. “But it wasn’t until 2015 that we started doing the government’s homework for them to lay out how it could be accomplished.”

Most people assumed that any vast shift in student-loan policy, such as broad-based cancellation, would require new laws. President Barack Obama, citing a lack of “bold action” in Congress, ordered his Department of Education to make incremental reforms, consolidating some loans and reducing some interest rates—far less than what activists wanted, but in line with what most experts thought was possible via executive action. Then, in 2016, Robyn Smith and Deanne Loonin, lawyers at the National Consumer Law Center, wrote a memo pointing out an obscure provision of the Higher Education Act. The provision, which has been on the books since 1965, gives the Secretary of Education the authority to “enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand.” They proposed that the Department of Education, by far the largest student-loan collector in the country, already had the unilateral power to modify those loans as it saw fit. Smith and Loonin suggested that the department should use this power to cancel the debt incurred by a few thousand alumni of predatory for-profit colleges. But Luke Herrine, then a law student at N.Y.U. and another co-founder of the Debt Collective, saw no reason that the department couldn’t use its discretion in more sweeping ways. “As far as I can tell, nothing in current law prevents the Department from using its compromise authority to cancel broad swaths—or even all—of its student loan portfolio,” Herrine wrote in 2017. In other words, he argued, the President could order the Education Secretary to cancel any amount of student debt at any time, without waiting for any further action from Congress. This was more of a remote hypothetical than an imminent possibility, especially given that the President at the time was Donald Trump. “When I first put the idea out there, I didn’t expect it to go anywhere,” Herrine, who is now a Ph.D. student at Yale, told me recently. “At least not in the short term.”

The idea started to gain some acceptance within legal academic circles. “There was a lot of scoffing at first,” Herrine said. “Now there are still experts who disagree with my interpretation, but it’s more along the lines of ‘This isn’t the way it traditionally works,’ not ‘Here’s a clear, knock-down reason why this can’t work.’ ” (Two Harvard law professors, for instance, recently called Herrine’s interpretation “a plausible textual reading” but cautioned that an executive debt-relief initiative “might be tied up in court for many years.”) In 2019, Julie Margetta Morgan, who was then a researcher at the Roosevelt Institute, a progressive think tank, asked Herrine to write a white paper called “An Administrative Path to Student Debt Cancellation.” Later that year, after Morgan joined Elizabeth Warren’s Presidential campaign as a policy adviser, Warren announced a new plan: as President, using executive authority, she would cancel more than a trillion dollars of student debt. (Morgan now works at the Department of Education.) Warren argued that her plan, although it looked expensive, would ultimately be a boon to the economy, promoting consumer spending and narrowing the racial wealth gap. Representative Ilhan Omar, an ally of the Debt Collective, persuaded Bernie Sanders to get on board with broad-based debt relief, and he soon outflanked Warren: whereas she proposed cancelling up to fifty thousand dollars of debt per person, he pledged to cancel all of it.

Joe Biden, then the leading moderate candidate, began getting questions about debt cancellation, and, as he often did during the campaign, he forged a compromise between the left and the center. In April, 2020, Biden pledged to “immediately cancel a minimum of $10,000 of student debt per person.” He didn’t specify whether he would do this through executive action or by urging Congress to pass a bill, though the word “immediately” seemed to imply the former. During his first month as President, at a CNN town hall in Milwaukee, Biden was asked how much debt he planned to cancel. He spoke for several minutes, mentioning that one of his sons had graduated from Georgetown and Yale Law School “a hundred and forty-two thousand dollars in debt” but that he had paid it off, in part, by working for “a parking service down in Washington.” (The same son, of course, also earned astronomical sums of money while working for a hedge fund, lobbying for various companies, and serving on the board of a Ukrainian natural-gas company, but Biden happened to omit those details.) Finally, he concluded, “I’m prepared to write off the ten thousand dollars’ debt, but not fifty. Because I don’t think I have the authority to do it by a sign of the pen.” He appeared to be suggesting that the President has the power to cancel debt up to but not beyond some unspecified amount of money—an interpretation that is, at best, legally ambiguous.

The members of the Debt Collective were both encouraged and dispirited. They had moved their proposal from the fringes to the mainstream more quickly than they had thought possible. And yet, for all their momentum, they wondered whether they were running into a brick wall: they could make the legal arguments; they could get their allies hired by the Administration; they could even draft an executive order, but they couldn’t make the President sign it. Some activists thought that the problem was ideological—that Biden, a son of corporate Delaware, believed deep down in the free market, not a free ride. Or perhaps he was waiting for his lawyers to tell him what he could do. On April 1st, in an interview with Politico, Ron Klain, Biden’s chief of staff, was asked whether Biden planned to cancel student debt via executive action. Klain said that the Department of Education was preparing “a memo on the president’s legal authority. Hopefully we’ll see that in the next few weeks. And then he’ll look at that legal authority, he’ll look at the policy issues around that, and he’ll make a decision.” A few weeks passed. Then a few months. Biden’s press secretary, Jen Psaki, was asked several times—in June, in August, in October—whether the legal review was finished, and what it had concluded. “I don’t have an update on that,” she said.

The Debt Collective activists developed a theory: that the lawyers at the Department of Education had already written their memo, that they had advised Biden that he did have the authority to cancel debt, and that the Administration was keeping the memo quiet because they didn’t like its conclusions. But this was mere speculation. So Gokey, one of the organizers, submitted a request through the Freedom of Information Act. If a memo had already been drafted, then he asked the Department of Education to send it to him. On August 20th, he got the results: dozens of pages of e-mails among Department of Education officials, including a seven-page memo called “The Secretary’s Legal Authority for Broad-Based Debt Cancellation.” The memo’s contents were redacted—in hot pink, for some reason—but it was proof that a memo existed. “I really felt this version was excellent,” the general counsel at the Department of Education wrote, on April 5th. Three days later, the word “draft” was removed from the memo’s header. This all seemed to vindicate the activists’ theory.

After reviewing Gokey’s documents, I asked both the White House and the Department of Education whether the department’s internal legal review was complete, but I didn’t get a specific answer. Nor is it clear whether, if Biden’s lawyers do conclude that he has the authority to cancel a large (or unlimited) amount of student debt, he is willing to use that authority. “The Department of Education is continuing to work in partnership with colleagues at the Department of Justice and the White House to review options with respect to debt cancellation,” a spokesperson from the Department of Education told me. A White House official told me that the President “continues to look into what debt-relief actions can be taken administratively” but that “these steps take time.” The Debt Collective is not mollified. “We’re a signature away from wiping out everyone’s federal student loans, and Biden apparently just doesn’t want to,” Gokey said. “We’ve given him a magic wand, a way to help millions of people and get them excited to come out to vote for him. Who wouldn’t want to do that?” The President’s party almost always loses seats during a midterm election—which would mean, in this case, that the Democrats would lose control of one or both houses of Congress next year. A way to prevent that, Astra Taylor said, “would be to materially improve people’s lives in ways that are intelligible to them. And, believe me, if you cancel forty-five million people’s debt, they will notice.” On Friday, Representative Alexandria Ocasio-Cortez wrote on Instagram that it was time to “bring the heat on Biden to cancel student loans. He doesn’t need Manchin’s permission for that.”

As of now, the two bills that make up most of Biden’s agenda are still stalled in Congress. They might soon pass, in some form, but they are likely to be Biden’s last major legislative accomplishment before the midterms, if not the last one of his Presidency. After that, if Biden wants to get big things done, he will have to do most of them via executive order. But if the protracted and bitter struggle over debt cancellation is any indication, Biden’s base may want to temper its expectations. In early 2020, Taylor, who is also a filmmaker, made a short documentary called “You Are Not a Loan.” “We filmed it in February, when the Bernie dream was still alive,” she said. What happened over the next year and a half—Biden campaigning on a promise of broad-based debt cancellation but, as President, hesitating to deliver—struck her as disappointing but not shocking. “The only thing that does continue to surprise me,” she said, “is the Democratic Party seems so unwilling, or unable, to act in its own self-interest.”