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no technique for long preserving free government except that the Executive be under the law, and
that the law be made by parliamentary deliberations. [Ibid. at 65455.]
Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)
Silberman, Sentelle, and Randolph, Circuit Judges
The government, for its part, claims that a cause of action under the APA is not available, even
were appellants to rely on it, because a challenge to the regulation should be regarded as nothing
more than a challenge to the legality of the President's Executive Order and therefore not
reviewable. It would seem that the government's position is somewhat in tension with its
previous claim that the Secretary's regulations were necessary to "flesh out" the Executive Order.
And we doubt the validity of its unsupported interpretation of the APA; that the Secretary's
regulations are based on the President's Executive Order hardly seems to insulate them from
judicial review under the APA, even if the validity of the Order were thereby drawn into
question. See Public Citizen v. United States Trade Representative, 303 U.S. App. D.C. 297, 5
F.3d 549, 552 (D.C. Cir. 1993) ("Franklin['s denial of judicial review of presidential action] is
limited to those cases in which the President has final constitutional or statutory responsibility for
the final step necessary for the agency action directly to affect the parties."), cert. denied, 126 L.
Ed. 2d 652, 114 S. Ct. 685 (1994) (emphasis added). Still, recognizing the anomalous situation in
which we find ourselves--not able to base judicial review on what appears to us to be an
available statutory cause of action--we go on to the issue of whether appellants are entitled to