96
O'Connor, J., dissenting
ship was transmitted at birth. Cf. Miller, supra, at 488-489 (Breyer, J., dissenting).
In addition to the severance clause, this Court has often concluded that, in the absence of legislative direction not to sever the infirm provision, "extension, rather than nullification," of a benefit is more faithful to the legislative design. Califano v. Westcott, 443 U. S. 76, 89-90 (1979); see also Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero, 411 U. S., at 691, n. 25. The choice of extension over nullification also would have the virtue of avoiding injury to parties who are not represented in the instant litigation. And Congress, of course, remains free to redesign the statute in a manner that comports with the Constitution.
As to the question of deference, the pivotal case is Fiallo v. Bell, 430 U. S. 787 (1977). Fiallo, however, is readily distinguished. Fiallo involved constitutional challenges to various statutory distinctions, including a classification based on the sex of a United States citizen or lawful permanent resident, that determined the availability of a special immigration preference to certain aliens by virtue of their relationship with the citizen or lawful permanent resident. Id., at 788-792; see also Miller, supra, at 429 (opinion of Stevens, J.). The Court, emphasizing "the limited scope of judicial inquiry into immigration legislation," 430 U. S., at 792, rejected the constitutional challenges. The Court noted its repeated prior emphasis that " 'over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Ibid. (quoting Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 339 (1909)).
The instant case is not about the admission of aliens but instead concerns the logically prior question whether an individual is a citizen in the first place. A predicate for application of the deference commanded by Fiallo is that the individuals concerned be aliens. But whether that predicate obtains is the very matter at issue in this case. Cf. Miller,
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