Opinion of Thomas, J.
cussing its authority to issue passports under the war power).
After the ratification of the Constitution, President Washington immediately took responsibility for issuing passports. Hunt, supra, at 3. Although “ `[p]ast practice does not, by itself, create power,' ” “a governmental practice [that] has been open, widespread, and unchallenged since the early days of the Republic . . . should guide our interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning, 573 U. S. 513, 572–573 (2014) (Scalia, J., concurring in judgment) (alteration in original; some internal quotation marks omitted). The history of the President's passport regulation in this country is one such practice. From the ratification until the end of the Civil War, the President issued passports without any authorization from Congress. As the Department of State later remarked, “In the absence of any law upon the subject, the issuing of passports to Americans going abroad naturally fell to the Department of State, as one of its manifestly proper functions.” Hunt, supra, at 37. To that end, the Secretary's authority was “entirely discretionary.” Urtetiqui v. D'Arcy, 9 Pet. 692, 699 (1835). Congress acted in support of that authority by criminalizing the “violat[ion] [of] any safe-conduct or passport duly obtained and issued under the authority of the United States.” An Act for the Punishment of certain Crimes against the United States, § 28, 1 Stat. 118.[1] Congress only purported to authorize the President to issue such passports in 1856, and even under that statute, it provided that passports should be issued “under such rules as the President shall designate and prescribe for and on behalf of the United States.” An Act to regulate the Diplomatic and Consular Systems of the United States, § 23, 11 Stat. 60. The President has continued to designate and prescribe the rules for passports ever since.
- ↑ Until 1978, passports were not generally required to enter or exit the country except during wartime. § 707, 92 Stat. 993.
