So no law that prevents industry from polluting rivers can ever be implemented in the future? That's ridiculous.
We have the principle that no Parliament can bind future Parliaments.
And in like manner no Congress can bind a future Congress. However the measure that was overruled this week was not a law, but an executive rule. The law still stands, but at present relies on the enforceable detail that is provided in rules prior to Obama's term. This is common in American lawmaking. Laws are written in general language. The Congress relies upon the agencies and offices of the executive to implement the law in terms of rules that can be practically enforced and argued before a court in terms of evidence. These rules are themselves the product of extensive scientific study, deliberation, hearing, and debate. To explain this in terms familiar to English style parliamentary practice, it is roughly analogous to delegated legislation as opposed to primary legislation. Nearly every bill in Congress delegates power to an office of the executive, which has previously been given authority by statute, to make and enforce rules consistent with the language of the bill. Thus every bill in Congress is, to a certain extent, a case of delegated legislation. The body of rules made by means of this delegated power is the Code of Federal Regulations (CFR) and it is
de facto law in the United States.
The normal oversight that Congress retains in this situation is generally deemed sufficient. Each office of the Executive (cf. the Crown) that has been granted statutory authority to make and enforce rules is answerable to a committee of the Congress, and ultimately to Congress itself. The relevant committee can, and frequently does, call before it the officers of the executive to hold them accountable for their rulemaking and enforcement (or lack thereof) and has the power, through legislation, to compel obedience on specific points. But the entire system of delegated authority is, in the American system as in the English system, meant to relieve Congress or Parliament from legislating in fine, from wading through myriad technical details, and from consideration of informal or minor changes. Hence it works best when the executive is staffed with competent conscientious people and left to its own devices.
The law 30 USC 1211 authorizes the creation of an office of the executive whose job is to make and enforce rules pursuant to the Surface Mining Control and Reclamation Act of 1977. The Act itself contains such vague language as, "(c) assure that surface mining operations are not conducted where reclamation as required by this chapter is not feasible; (d) assure that surface coal mining operations are so conducted as to protect the environment; (e) assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations[.]" Questions such as feasibility under (c), the specific details alluded to in (d), and what precisely constitutes "adequate procedures" and "contemporaneous[]" under (e) are what is delegated to the executive to determine, what forms the basis of the pertinent rules in CFR (in this case large portions of CFR Parts 700, 701, 773, 774, 777, and 827), and what delegated answers were wiped away this week. Specifically, those parts of the CFR existed before Obama took office, but were substantially revised during his term to interpret 30 USC Subchapter 25 (the relevant law) for enforcement purposes. Those revisions were eliminated by Congress, thus the relevant parts of CFR revert back to their unrevised form.
This Congress may not bind a future Congress. But it may bind this and future Presidents, and because the Congressional Review Act specifically (CRA) affects powers ordinarily belonging to the Congress but delegated to the Executive for practical purposes, it may indeed place longstanding restrictions on how that delegated power may be wielded by any officer of the executive as long as the law remains in force. In this case the Act prevents the executive from attempting to establish the rule overturned under the provisions of the CRA in "substantially the same form." It also enjoins any court from reviewing the Act of Congress that overturned the rule. (The judiciary in the United States receives its subject-matter jurisdiction from Congress.) But because no Congress can bind a present or future Congress, a "substantially" similar rule could be allowed by act of Congress, as you suggest. That is, in 2018 when a new Congress is seated, they can adopt a measure specifically to allow the clean-water rule enacted under President Obama and overturned by Congress and President Trump to be reinstated in the CFR in its pristine form. But it must be a specific law, specifically aimed at the individual rules that were overturned. And Trump will simply veto that act of Congress. Or conversely, Congress could substantially revise the law itself -- 30 USC 1201
et seq. This would compel the executive to revise its rules to be consistent with the changes in the law, and that would negate the specific restrictions prohibited by the Congressional Review Act. But this is simply not likely to happen in any conceivable future. Hence my hyperbolic "for all time." As long as 30 USC subchapter 25 exists substantially in its present form and as long as the CRA was used to overturn Obama's rules, it may not be enforced in the form provided by the Obama administration.
And you're right; the CRA is ridiculous. Which is to say, a routine application of it in this way is ridiculous precisely because it is so uncommonly draconian. It was meant to corral, in the most invasive and strong terms, an egregiously misbehaving executive. It is meant as a measure of last resort, when all other methods that control the rulemaking power delegated to the executive have failed. This is why it has only succeeded once before in its entire history, and only been attempted a handful of times. And yes, there are other measure to revise and eliminate federal rules. It happens all the time, but it is a rather tedious and onerous process because the public accountability fo repealing or revising a rule is and ought to be as careful as the process that established the rule in the first place. The Republican party was unlikely to succeed in any short order at overturning the relevant rules by the accepted procedure. Hence it employed its nuclear option.
