The Administrative Procedure Act is the federal statute that supplies the process by which agencies issue and repeal rules. Across three episodes of The Bob Zadek Show it appears less as a body of doctrine than as a choke point: the procedure that makes a rule binding, that must be run again to unmake one, and that agencies are accused of evading when they prefer to govern by letter.
Undoing a rule
In a January 2017 episode on midnight regulations, Sam Batkins told Bob Zadek that repealing a regulation is “definitely not a piece of cake” and is, in Zadek’s word, daunting. An incoming administration cannot simply reject a predecessor’s rule, because undoing a regulation requires the same process used to implement it under the Administrative Procedure Act: formulating a proposed rule, assembling evidence and reasons for repeal, running a comment period in which the public may send “angry or nice comments,” completing interagency review, sending the rule to the White House, and publishing it. Litigation follows. Batkins cited the Clean Power Plan — the rules on greenhouse gas emissions — as an example, saying that repealing it would take at least four years if the administration were serious about it A Lame Duck’s Last Stand (2017).
Zadek pressed on the asymmetry. If undoing the Clean Power Plan took four years, how long had it taken to enact? Batkins measured from the endangerment finding in 2009 to finalization in 2015, with a proposed rule in 2014, a 120-day comment period, and a final rule in August of 2015 — five or six years in the first place. Zadek drew the conclusion that the regulatory system produces “round trips to nowhere” that the public pays for both ways A Lame Duck’s Last Stand (2017).
The episode’s framing of the problem was Zadek’s: regulation, he said, is enacted in a silo, and the regulator is neither able nor required to see effects on the economy or the country beyond a tiny jurisdictional area. He asked whether cost-benefit analysis is the control that prevents a regulator overzealously guarding that area from harming the economy as a whole. Batkins agreed that cost-benefit analysis helps, and added robust public comment as a further check. He invoked an economist at GW, Brian Mannix, and the “planner’s dilemma”: when we or a regulator are involved in something for a year or two, everything makes sense within the four corners of the document or project created, but there are many “unknown unknowns” that eventually become known to the public as higher prices, reduced wages, reduced payroll, or lower profits. Batkins conceded that such effects are genuinely difficult to predict, and that some regulations project thirty years out, though regulators are not soothsayers A Lame Duck’s Last Stand (2017).
Bypassing the APA: “Dear Colleague” letters
The December 2018 episode with R. Shep Melnick, on the transformation of Title IX, turned on the contrast between rulemaking authorized by statute and the informal instruments the Office for Civil Rights used instead. Melnick described one form of rulemaking authorized by the statute itself — issuing a rule under the Administrative Procedure Act, which requires a proposal, publication, receipt of comments, an explanation of what was done, and judicial review. In recent decades, he said, the Office for Civil Rights has mostly not used that at all, instead issuing a unilateral letter to colleges, universities, and primary and secondary schools receiving federal funds, stating how the agency interprets the statute and what recipients are required to do. Melnick noted the inversion of the comment process: the letters say that comments should be given after the rule has been issued. The Office for Civil Rights treats the letters as legally binding, so noncompliance exposes a school to enforcement action, and courts have frequently deferred to them. The letters can run ten, twenty, thirty or forty pages, especially when combined with documents called “Questions and Answers.” Melnick called this an evasion of the Administrative Procedure Act and a unilateral effort to say what the law is, and remarked that the letters all assert that nothing new is being done — while the 2011 letter was simultaneously described by the White House as a pathbreaking policy Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
Zadek’s characterization was that a “Dear Colleague” letter functions as an interoffice communication carrying an implied threat, because the agency is the paying agent that approves the checks schools receive; he likened it to a gun in an alley and to “your money or your life.” He added that the author of such a letter has no statutory authority to share an interpretation at variance with the statute itself Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
Earlier in the same episode, Melnick had described the enforcement machinery that grew up around Title IX. Withholding federal funds was recognized as too politically dangerous and administratively cumbersome to use except in extreme circumstances, so the “private right of action” became the fundamental enforcement mechanism: any private citizen can sue a university or school system to require compliance, a right the courts recognized even though it was not in the statute. Melnick called the resulting interaction between administrators and judges “institutional leapfrogging” — the administrators take one step, the courts another, the agency goes beyond that, and each says it is merely following the other, producing large changes with little attention to long-term consequences Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
Zadek generalized from the Department of Education to almost every federal and state regulatory agency: an unelected agency supervises compliance with statutes, promulgates regulations that in many cases go beyond the statute, receives broad deference from courts, and litigates disputes before administrative law judges who are part of the agency itself — so that the agency performs lawmaking, executive, and judicial functions at once. He quoted James Madison’s warning that the accumulation of legislative, executive, and judiciary powers in the same hands “may justly be pronounced the very definition of tyranny,” and argued that the regulatory state combines all three powers and thereby undoes the separation of powers Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018).
From letter to binding regulation
The 2022 episode with Joe Cohn carried the Title IX story into the Trump and Biden administrations and made the APA the hinge of the change. Cohn described the consequences of the “Dear Colleague” era: schools tripped over themselves to demonstrate to the federal government that they were going to be tough on sexual harassment, and brought their policies into line with what the department was saying. One provision barred schools from allowing the student parties to cross-examine each other; Cohn said that is not particularly problematic if a meaningful cross-examination is required in another way, but that where schools were not required to allow representation and students on their own could not conduct cross-examination, the consequences were profound. During the “Dear Colleague” era, he said, schools were undermining due process in campus sexual assault proceedings, and he noted that this was the only context in which the federal government told schools to provide fewer due process protections or risk federal dollars Joe Cohn on Title IX and Due Process on Campus (2022).
Zadek framed the contrast in procedural terms: the agency could have drafted a regulation giving its position the force of law and gone through the entire process under the Administrative Procedure Act and other federal statutes, with rules and protections, hearings, and public comment; instead it wrote a letter that bypassed all of those protections while having no less impact. Cohn agreed, saying the Department of Education tried to have it both ways — telling members of Congress that it recognized the difference between regulations, which are binding as a matter of law and are cited when the government takes action, and guidance, which merely states the agency’s perspective on what it will choose to pursue. That did not impress then-Chairman of the Senate Health, Education, Labor, and Pensions Committee Lamar Alexander, himself a former Secretary of Education and university president, who asked the head of the Office for Civil Rights under oath whether the agency planned to go after schools that did not follow its interpretation, and was told matter-of-factly that it did Joe Cohn on Title IX and Due Process on Campus (2022).
Cohn then described the sequence that followed. FIRE filed a lawsuit in the final days of the Obama administration over the “Dear Colleague” letter; it was mooted out when President Trump’s Department of Education agreed with FIRE, withdrew the letter voluntarily, and initiated the binding process of creating regulations with notice and comment procedures. The letter was rescinded in 2017, and the department spent a couple of years working out what a binding regulation should look like and writing it, completing the task in 2020 Joe Cohn on Title IX and Due Process on Campus (2022).
Across episodes: the same asymmetry, two settings
The topic is argued in three episodes, and the treatment develops rather than repeats. In 2017 Batkins supplied the mechanics of repeal — the same notice-and-comment process to unmake a rule, the Clean Power Plan’s four years to undo against five or six to enact — with Zadek framing the silo problem and the cost-benefit question. In 2018 Melnick supplied the mirror image: an agency that avoided the Administrative Procedure Act altogether through “Dear Colleague” letters and “interpretations,” backed by the threat of withheld funds and buttressed by judicial deference, with Zadek adding the separation-of-powers indictment drawn from Madison. In 2022 Cohn supplied the resolution of that particular evasion — litigation by FIRE, voluntary withdrawal of the letter in 2017, and replacement by binding regulations completed in 2020 — while noting that the Biden administration proposed rollbacks. What changed between the earlier and later treatment is the direction of travel: the 2018 episode describes bypass of the APA as an accomplished and durable practice, and the 2022 episode describes one successful effort to force a return to formal rulemaking.
What the sources do not cover
The excerpts do not state the APA’s enactment date, its text, its codification, or the standards of judicial review it supplies. They do not describe the outcome of the Clean Power Plan repeal, the content of the 2020 Title IX regulation, or the substance of the Biden administration’s proposed rollbacks. The 2017 excerpt breaks off at a section heading, and the 2022 episode’s summary material supplies topics and speakers without quoted argument.