Cite as: 523 U. S. 420 (1998)
Scalia, J., concurring in judgment
221 (1991). Section 1401(g) does not confer citizenship upon children born out of wedlock unless the requirements in § 1409 are satisfied.
It can be argued that in exempting an applicant from an unconstitutional requirement (either part or all of § 1409(a)) a court is not rewriting the law, but simply ignoring that portion of the law which is a nullity. See post, at 488-489 (Breyer, J., dissenting). That assumes, however, a judicial power to sever the unconstitutional portion from the remainder, and to apply the remainder unencumbered. Such a power exists in other cases—and is exercised on the basis of the Court's assessment as to whether Congress would have enacted the remainder of the law without the invalidated provision. See New York v. United States, 505 U. S. 144, 186 (1992). I know of no instance, however, in which this Court has severed an unconstitutional restriction upon the grant of immigration or citizenship. It is in my view incompatible with the plenary power of Congress over those fields for judges to speculate as to what Congress would have enacted if it had not enacted what it did—whether it would, for example, have preferred to extend the requirements of §§ 1409(a)(3) and (4) to mothers instead of eliminating them for fathers, or even to deny citizenship to illegitimate children entirely. ("[T]he Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent." Rogers, 401 U. S., at 830.) Moreover, if the mere character of the naturalization power were not enough to render the severing of a limitation upon citizenship improper, the INA itself contains a clear statement of congressional intent: "A person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise." 8 U. S. C. § 1421(d) (emphasis added). Justice Breyer's reliance upon the INA's general severability clause, 66 Stat. 281, § 406, is misplaced because the specific governs the general, see Morales v. Trans World Airlines,
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