Victor Juhasz
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
One of the stranger features of contemporary political writing is what I’d call the “one true path” fallacy: the notion that, rather than making progress on all fronts where possible, one and only one course must guide all actions. Attendant with this is the concept that straying from that one true path will irreparably harm the cause more than it will help.
This is ahistorical. The New Deal was a time of bold experimentation where Franklin Roosevelt pursued unilateral actions, collaborations with Congress, and veiled threats at a judiciary that had curtailed his agenda. He tried (unsuccessfully) picking off members of Congress who voted against his preferences, and he responded to grassroots activists demanding old-age insurance. He pursued immediate and emergency actions like the bank holiday and long-lasting legislative ones like the Securities Exchange Act of 1934. There was no self-censorship, no fear that executive authority would harm the legislative agenda or the fight in the streets. A Depression was on, and progress was progress.
That’s what puzzles me about Ryan Doerfler’s essay in Jacobin, attacking the Day One Agenda as a pointless exercise that will freeze our broken democracy in amber. Not only does this misread the purpose of the Day One Agenda, it contradicts the belief in a strong central government consistently advanced by the likes of … Jacobin, and the man it wants to see become president. I don’t know where the idea came from that progress is a hindrance to progress, but it’s incorrect by definition.
Doerfler’s article, “Executive Orders and Smart Lawyers Won’t Save Us,” (just as an aside, nothing in our series is an executive order, they are all implementations of existing statutes) puts forward two obstacles to the Day One Agenda. The first is so obvious we put it in the series: What if the courts invalidate a president executing existing laws they don’t like? Using as an example the proposition that the president can direct the Secretary of Education to waive or release all publicly-held student debt, Doerfler argues that conservative justices will simply use the “anti-novelty” doctrine to invalidate attempted interpretations of legislative statutes that have not been utilized before.
Not every proposal in the Day One Agenda is novel in this form. Limiting power-plant emissions and other toxins were in place before Trump came into office (a few still are); bank regulators have endlessly tweaked regulations more or less stringently and can do so again; even George W. Bush’s Health and Human Services Secretary threatened to take away drug patents from pharmaceutical manufacturers. Doerfler managed to pick one item in the agenda that hasn’t been previously tried, to make the argument that the whole agenda will fail because it hasn’t been previously tried.
Nevertheless, we are aware of the concern of judicial meddling of this type. We are so aware that Scott Lemieux addressed it directly in the series, calling it the “elephant in the mousehole” doctrine (Congress wouldn’t hide elephants in mouseholes, the story goes). It’s also worth pointing out that Doerfler admits that this is “a bad interpretive doctrine” used primarily by conservative jurists to reject actions they disfavor. I don’t know what world exists where the same Supreme Court judges would reject executions of existing statutes but wave through implementation of newly passed statutes like the Green New Deal or Medicare for All. The logical extension of Doerfler’s argument is a recipe for nihilism.
This brings us to Doerfler’s second contention about the Day One Agenda: that it’s a distraction from the hard work of fixing Congress. In doing so, the Day One Agenda argues for a Warren presidency, Doerfler believes, with its focus on clever executive maneuvering rather than the block and tackle of revolutionary politics.
Jacobin has been quite aggressively in the tank for Bernie Sanders, and there’s nothing wrong with such advocacy. But by deciding to see everything through the lens of the 2020 primary, they’ve now decided to attack something Bernie explicitly supports. Because see, we asked every presidential candidate if they would agree to adopt the Day One Agenda, and Sanders agreed to do nearly all of it, as you can read if you scroll down the page of every article in the series.
Sanders is enough of a legislative insider to understand that making progress through existing statutes in no way prevents the work of building a mass movement and forcing the political system to respond. Sanders spent most of his career in the House passing small-bore roll call amendments that helped people in his state and throughout the country. He managed to do that and argue for a new politics simultaneously.
Of course, Jacobin knows this. They published what could be seen as a miniature version of the Day One Agenda in February, which noted how “executive orders are powerful tools for the president,” and specifically pointed out that, while ultimately only a mass movement can bring the necessary change, “building that movement is not mutually exclusive with aggressive executive action.” (As a side note, the Jacobin story on executive action includes a handful of components of the Day One Agenda, including postal banking, climate regulations, and … cancelling student debt, the very idea that Doerfler deems impossible due to judicial intransigence.)
I put together the Day One Agenda project because of the despair that future Democratic presidents would serve as mere placeholders thanks to legislative obstruction. That diminishes the significant, obvious power presidents hold: You need only watch the presidency of Donald Trump, with its scant legislative accomplishments but major transformations in areas like immigration and federal benefits, to understand that. Just because President Obama resisted using executive authority, and even when he did aimed lower than he could have, doesn’t mean Democrats should be conditioned into thinking it isn’t possible.
Of course executive action represents only one step in a broad program. Ending our legislative dysfunction, including abolishing the filibuster (and if it were up to me, abolishing the Senate or turning it into a domestic version of the House of Lords), is obviously paramount. But there’s no reason not to bring tangible benefits to the public while that work takes place.
In fact, one can assist the other. A Congress being circumvented will be more inclined to intervene and put their stamp on any changes. And once those are in place, the Supreme Court will likely be cautious of taking those benefits away; witness John Roberts’s numerous punts on the Affordable Care Act. Most important, a chief executive showing the commitment to do big things in service of the people will raise hopes among the public that their voice finally matters. It will help build power in that mass movement, especially if the ideas come from the movement, as the idea of cancelling student debt did.
Why this promise should be thrown away based on the incorrect assumption that executive power is a mere Warren campaign talking point is a bad-faith reading that makes no sense, especially as Sanders believes in the power of executive action, too. Too many writers at Jacobin have gone so far around the bend that they’ll deny progress to make an electoral point. That the progress they’re denying is part of their preferred candidate’s platform makes it all the more bizarre.
“The Day One Agenda is a valuable resource, outlining a strategy worth pursuing,” Doerfler writes in one of his more charitable moments. We agree.
