by GovTrack Insider staff writer Jesse Rifkin
A former longtime U.S. senator from Delaware, Democratic presidential nominee Joe Biden was the primary sponsor of 42 enacted bills or resolutions. These covered topics ranging from the military to steroids, from genocide to flag burning, from 9/11 victims to… Nicolas Copernicus?
Here are seven of the most interesting enacted bills or resolutions for which Biden was the lead Senate sponsor. They include one that was ruled unconstitutional by the Supreme Court, and another that was just recently superseded by President Trump.
Banning the burning of the American flag
Even if many find it abhorrent, burning the American flag is nonetheless protected under the First Amendment, the Supreme Court ruled 5–4 in the 1989 case Texas v. Johnson. The Court struck down as unconstitutional a Texas state law banning flag burning, but said nothing about whether a potential federal law would be allowed to stand. So maybe it would?
“The First Amendment’s protection for freedom of speech is not, however, absolute, as the Supreme Court has recognized on numerous occasions. Several exceptions have been recognized — for example, the First Amendment does not provide protection for defamatory statements; for obscene materials, as the Supreme Court reaffirmed just a few weeks ago; and for artistic and other creative works protected by our copyright laws,” Biden said on the Senate floor in 1989. “So why shouldn’t we recognize an exception for national unity and pride — in which there certainly is a compelling governmental interest?”
No such luck. Not even a year after the law’s October 1989 enactment, it was struck down as unconstitutional by the Supreme Court in another 5–4 decision United States v. Eichman.
In 1989, the same year Biden’s bill was enacted, the Senate tried to make the policy even more foolproof than a mere law, with a constitutional amendment proposal to ban flag burning. The Senate majority supported it 51–48, but that fell short of the two-thirds majority required. In seeming opposition to his affirmative vote on the law, Biden voted against the constitutional amendment.
Why the discrepancy? Because he felt a constitutional amendment was a step too far in directly messing with the text created by the Founding Fathers, even for a policy that he supported. “If we adopt this amendment, we would fray the comment that the flag embodies. We would become the first Congress in the history of this nation to limit the Bill of Rights,” Biden said on the Senate floor. “Ten days ago we adopted a statute to protect the flag. Today let us do what we must to protect the First Amendment.”
The constitutional amendment last came up for a Senate vote in 2006, when it similarly received majority approval 66–34 but fell short of the two-thirds required. Biden again voted no.
President Trump has previously expressed support for a constitutional amendment banning flag burning. It was introduced again last year by Sen. Steve Daines (R-MT) in the Senate and by Rep. Steve Womack (R-AR3) in the House, attracting 19 and nine Republican cosponsors respectively, but neither version has yet received a vote.
His first piece of legislation
As GovTrack previously covered, the first thing Biden ever introduced in the Senate was a 1973 symbolic resolution honoring the 500th anniversary of the birth of Nicholas Copernicus. The Polish astronomer is best remembered for popularizing the concept that the earth revolves around the sun, rather than vice versa.
After Biden’s resolution passed both the House by voice vote and the Senate by unanimous consent that March, President Richard Nixon signed it into law that April.
Biden’s first substantive bill introduced, with actual proposed policy changes, would have updated the Disaster Relief Act of 1970 to permit federal disaster assistance for economic loss stemming from causes besides natural disasters. It attracted five bipartisan cosponsors, four Democrats and one Republican, but never received a vote in the Senate Environment and Public Works Committee.
Family members of deceased military members
One of Biden’s bills hardly tackled a nationally prominent political issue, in fact it affected only a handful of people at all, but touched an emotional chord once brought to Biden’s attention by one of his Delaware constituents. We’ll let Biden himself tell the story, as he did on the Senate floor in June 2005:
“Last year, a servicemember from my home state of Delaware was killed in action in Iraq,” Biden recalled. “The servicemember was stationed in Germany and his wife was German. She wished for him to be buried in Germany. So all of his relatives in the United States needed to travel quickly, and many of them did not have passports.”
“The law does not… allow the waiver of passport fees if the family is attending a funeral or memorial service for a servicemember killed in action, but who is buried or memorialized overseas,” Biden explained. “The need for such a waiver probably does not occur often, but it happens.”
Biden’s bill added that waiver. After the Senate passed it by unanimous consent in December 2005 and the House on a voice vote in March 2006, President George W. Bush signed it into law.
Despite Major League Baseball officially banning steroids in 1991, the league largely turned a blind eye as home run counts surged and the league’s popularity increased. The 1998 season featured Mark McGwire and Sammy Sosa simultaneously contending to break the decades-long season home record, a contest that riveted sports fans for months — although both were later found to have used steroids. Other top-level players found to have used steroids included Barry Bonds, Roger Clemens, and Alex Rodriguez.
With 2003–04 being the years many of these allegations broke, Biden introduced the Anabolic Steroid Control Act of 2004. While anabolic steroids in general were first placed into the federal list of controlled substances in 1990, Biden’s bill explicitly listed 50 different examples or variants — just so there would be no doubt about the status of, say, “4-hydroxy-19-nortestosterone.” The bill also established federal grants for schools to teach about the harmful effects of steroids.
After the Senate passed it by unanimous consent and the House by voice vote in October 2004, President George W. Bush signed it into law. (Himself no stranger to Major League Baseball, having previously co-owned the Texas Rangers.)
Making it easier for 9/11 victims to subpoena
Established less than two weeks after the attacks, the September 11 Victims Compensation Fund provides money to victims of the attacks or their families, in exchange for recipients agreeing not to sue the airlines whose flights were hijacked. The average recipient got about $3.1 million. But an unforeseen technicality hampered the fund’s operations.
The original law establishing the fund set the U.S. District Court for the Southern District of New York as the judicial district for all lawsuits or court cases arising from the attacks and their aftermath. However, preexisting federal rules set the radius for subpoenas at 100 miles. In other words, if you live more than 100 miles from the judicial district where a trial takes place, you (usually) can’t be compelled to testify.
Biden’s Procedural Fairness for September 11 Victims Act of 2007 eliminated that requirement specifically for cases involving the Fund. A carveout was allowed for a court to quash or alter a subpoena “if it is unduly burdensome to the witness subpoenaed.” After the Senate passed it by unanimous consent and the House by voice vote in October 2007, President George W. Bush signed it into law.
The compensation fund was in the news again last year, when a law was enacted that permanently funds it, after it had previously received several temporary extensions through the years. After it passed the House by 402–12 and the Senate by 97–2, President Trump signed it into law in July 2019.
Changing eligibility for American Legion membership
Chartered by Congress in 1919 shortly after World War I, the American Legion is the nation’s largest veterans service organization with almost two million members. Its membership is technically supposed to include only members who served during wartime.
So, not long after the Gulf War began, Biden introduced a bill to formally include in the American Legion anybody who served in the military from August 2, 1990 “to the date of cessation of hostilities, as determined by the United States Government.” (That date would later be officially set as February 28, 1991.) After the Senate passed it by unanimous consent in July 1991 and the House by voice vote in November, President George H.W. Bush signed it into law.
Just last year, Biden’s law was superseded by another law. The LEGION Act (Let Everyone Get Involved in Opportunities for National Service) Act declared that — for purposes of American Legion membership — the U.S. has been in an uninterrupted state of war since December 7, 1941 when Pearl Harbor was attacked. After the Senate passed it by unanimous consent in June 2019 and the House by voice vote in July, President Trump signed it into law.
Inspired by the then-recent Holocaust, in which the Nazis attempted to kill all Jews in Europe, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. Any country which ratified the document bound themselves to recognize that genocide is “a crime under international law which they undertake to prevent and to punish.”
For decades, the U.S. Senate never formally ratified the document. Opponents’ concerns included the lack of a probable-cause hearing or due-process protections for defendants, and a lack of unanimity required for conviction by the U.N.’s International Genocide Penal Tribunal.
Official U.S. approval became the signature issue of former Sen. Bill Proxmire (D-WI), who delivered a speech about the subject on the Senate floor every single day that the Senate was in session for 19 years: 3,211 speeches in all. The Senate eventually approved the U.N. document by 83–11 in 1986, 37 years after it was created.
Then came the next part: legislation actually implementing the provisions into U.S. law. That task fell not to Proxmire but Biden, whose Genocide Convention Implementation Act of 1987 was popularly nicknamed the Proxmire Act. After the Senate passed it by unanimous consent and the House by voice vote in October 1988, President Ronald Reagan signed it into law that November.
The U.N. convention has since come under criticism even from anti-genocide advocates, such as the Enough Project. During subsequent decades, “The U.S. government seemed to be more preoccupied with avoiding labeling the violence genocide — and thus triggering its obligation to respond — than actually preventing deaths,” the group wrote. “On one notorious occasion in April 1994, spokeswoman for the State Department Christine Shelly, floundered when asked if the violence in Rwanda constituted genocide.”