The Supreme Court will have an unusual opportunity this term to change the rules of the perennial wrestling match between the bureaucrats who make decisions and the members of Congress and judges who second-guess them. And, if the high court follows the course laid out in several recent opinions, Congress and the courts would have less authority to review executive branch decisions.
The most significant shift could emerge from cases challenging the legislative veto, a provision contained in scores of recent laws. The veto is an issue in an immigration case before the court; in addition, the court may decide to hear a case involving Congress' veto of a Federal Trade Commission rule on used car sales.
On another front, the court could make life easier for Reagan administration regulators and their successors if it agrees that the administration acted properly when it scrapped requirements that passive restraints be provided in new automobiles.
But if the court decides that regulators need as much evidence to overturn an existing rule as they do to write a new one, the so-called airbags case could put the brakes on the administration's drive to eliminate federal regulations.
"The issues are coming to a head in a more dramatic way than they have in the past," said a government attorney familiar with the cases.
Already, the court has overturned a decision by the U.S. Court of Appeals for the District of Columbia in an Interstate Commerce Commission case involving railroad freight charges. The appeals court action "undermines the ICC's ability to exercise its primary jurisdiction to insure equitable and uniform rates," Chief Justice Warren E. Burger wrote in the opinion this week.
The Nuclear Regulatory Commission and the nuclear power industry it polices probably would be the most immediate beneficiaries if the court continues to restrict judicial review of agency decisions. Three cases involving NRC rulings on power plant operations and a fourth covering Federal Communications Commission licensing procedures could reinforce the current restrictions.
The best known of these is a case called "Vermont Yankee IV," the offspring of a 1978 Supreme Court ruling that admonished lower court judges to review only whether an agency followed the proper procedures.
The case was brought by opponents of a proposed nuclear power plant, who argued that a licensing board of the old Atomic Energy Commission should have given more consideration to the fate of the radioactive waste generated by the plant. The regulators disagreed.
The U.S. Court of Appeals for the District of Columbia overturned the agency, saying, among other things, that its procedures prohibited full discussion of the relevant issues. The Supreme Court sent the case back to to appeals court, cautioning the judges not to tell the NRC how to do its job.
Earlier this year, a split three-judge appeals panel again overturned the NRC's basic regulation for nuclear fuel disposal, saying its assumptions about the success of untried storage methods were too optimistic.
In a dissent that could foreshadow the Supreme Court's ruling, Judge Malcolm R. Wilkey said the majority opinion "ignored the Supreme Court's unequivocal mandate that we limit our examination in this matter to the administrative record. . . ." Earlier, Wilkey said: ". . . It is now clear that this court is committed to an assumed role as high public protector of all that is good from perceived evils of the nuclear age."
Another case involves the 1979 accident at the Three Mile Island nuclear reactor. The same court of appeals said the NRC must consider the potential psychological stress on local residents when it evaluated the environmental impact of restarting the undamaged twin of the damaged reactor.
Attorneys for the nuclear power industry contend that environmental impact statements for everything from federal prisons to dams could be affected if the ruling is upheld.
A third nuclear case, also the product of the TMI accident, is being held by the court, apparently in anticipation of congressional action that would make it moot.
The FCC case involves federal judges' authority to require that agency to consider a television station's service to the deaf when the station's license is up for renewal.
A ruling in the legislative veto case could check the tendency of Congress to pass laws that reserve its right to overturn executive branch decisions on everything, from regulations to foreign arms sales.
Both Democratic and Republican presidents have argued that the legislative veto violates constitutional limitations on congressional power. By exercising its veto, the argument goes, Congress -- or even one house of Congress -- can pass laws without having to obtain the president's signature or the two-thirds majority needed to override him.