Cite as: 523 U. S. 420 (1998)
Scalia, J., concurring in judgment
from which illegitimate children of citizen-mothers are exempt, illegitimate children of citizen-mothers must meet the quite different requirements of § 1409(c), from which illegitimate children of citizen-fathers are exempt.2 In this situation, eliminating the restrictions on fathers does not produce a law that complies with the Equal Protection Clause (assuming it is initially in violation), but rather produces a law that treats fathers more favorably than mothers. There is no way a court can "fix" the law by merely disregarding one provision or the other as unconstitutional. It would have to disregard them both, either leaving no restrictions whatever upon citizenship of illegitimate children or (what I think the more proper course) denying naturalization of illegitimate children entirely (since § 1401(g) was not meant to apply by its unqualified terms to illegitimate children). Even outside the particularly sensitive area of immigration and naturalization, I am aware of no case that has engaged in such radical statutory surgery, and it certainly cannot be engaged in here.
In sum, this is not a case in which we have the power to remedy the alleged equal protection violation by either expanding or limiting the benefits conferred so as to deny or grant them equally to all. "We are dealing here with an exercise of the Nation's sovereign power to admit or exclude foreigners in accordance with perceived national interests." Fiallo, 430 U. S., at 795, n. 6. Federal judges may not decide what those national interests are, and what requirements for citizenship best serve them.
Because petitioner is not a citizen under any Act of Congress, we cannot give her the declaratory judgment or affirmative relief she requests. I therefore concur in the judgment.
2 Title 8 U. S. C. § 1409(c) provides that an illegitimate child born to a citizen-mother shall be a citizen "if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year."
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