Cass R. Sunstein, Kent v. Dulles and the Origins of Contemporary Administrative Law (Harvard Public Law Working Paper Series, forthcoming 2026).
Abstract: For decades, Kent v. Dulles, decided in 1958, was taken to be an iconic case. It helped to define the subject of administrative law. One reason was its singularly dramatic holding: The Supreme Court prohibited the Secretary of State from denying a passport to a Communist. Another reason was its reasoning: It relied on a strong version of the Avoidance Canon and also on what might be seen as an early version of the major questions doctrine (MQD), requiring clear congressional authorization for an "unheralded" and "transformative" exercise of executive authority. Seen against the background of Kent v. Dulles, the MQD might lose its political valence. It can easily operate as a check on right-of-center adventures from the executive branch, just as it has operated as a check on left-of-center adventures from the executive branch. An act of judicial courage, Kent v. Dulles is a beacon. It should be a principal case in all the relevant casebooks; it deserves to be restored to its iconic status.