Orrin Hatch: “I have listened with care to what Senator Byrd has said regarding what he sees as a constitutional question raised by…”

“I have listened with care to what Senator Byrd has said regarding what he sees as a constitutional question raised by one provision of this unfunded mandates legislation. I appreciate his thoughts on this issue. I am unpersuaded, however, that he has identified a serious constitutional problem. Indeed, I am convinced that a careful analysis will show that his concern is unwarranted. In the first place, Senator Byrd's concern is not that a provision of S. 1 is facially unconstitutional but merely that it might possibly be applied in an unconstitutional manner. This same objection could be raised against virtually every law. The mere possibility that a provision might be applied in an unconstitutional manner has never been regarded as sufficient to invalidate it. Otherwise, Congress could never enact anything. In any event, if a problem with a possible application of this provision were to arise in the future, that problem would be raised by an implementing bill. It is that future implementing bill that would require reconsideration, not the bill currently before us. In other words, since the concern raised by Senator Byrd relates to one manner in which the provision might be applied, that concern should be raised if and when a later bill adopts that manner. In short, the concerns raised by Senator Byrd are not suited to a facial challenge to the provisions of this unfunded mandates legislation.”