When Boatloads of Federal Money Attack
In 1817, President James Madison vetoed(1) Henry Clay and John C Calhoun’s “Bonus Bill” which would have given the Federal Government funding and authority to begin building levees, canals and roads. In his veto Madison wrote “The legislative powers vested in Congress are specified and enumerated, and it does not appear that the power for constructing canals, and improving the navigation of water courses… is among the enumerated powers vested by the Constitution in the Government of the United States.”
If only Madison had been around in 1858 to stop Congress from siccing the Corps of Engineers on the levees of the Mississippi River(2), LSU would have a million more dollars and professor Ivor van Heerden might still be employed there. You see, after Katrina, van Heerden, as deputy director of LSU’s Hurricane Center looked into the levees that failed and concluded there was “catastrophic structural failure”, this after warning(3) in 2003 that the city was doomed if the right storm surge hit her.
None of this would matter if the federal Department of Education would have been vetoed by President Carter(4), citing President Madison & the Constitution but alas, the DOE exists and showers universities like LSU with “boatloads of Federal money”(5) for “research grants”. This of course means the U.S. Army Corps of Engineers becomes a related ‘good ole boy’ to the Goose laying golden eggs for LSU so the university did what any corrupt institution does: it got rid of its troublemaker, van Heerden who is what you and I might call “honest.”
The good professor sued LSU and in a victory for virtue, limited government & the little guy, van Heerden won his case meaning LA taxpayers were clobbered thrice: once for the ill-advised “federal” levee system, once by Katrina and thirdly to pay the $1 MILLION(6) the suit cost LSU. Maybe next time LA seeks “boatloads of federal money” it will consult James Madison first.
Madison’s veto message stated in part “Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
Katherine Kemp writes in her essay “The Mississippi Levee System and the Old River Control Structure”
The unorganized levee system was finally turned over to the Army Corps of Engineers. The levees’ were designed to protect populated areas from potentially disastrous flooding and keep the Mississippi safely within its banks. However, not everyone agreed that levees were the best way to decrease flooding. In 1852, the federal government appropriated $50,000 in order to conduct studies on how to further eliminate the flooding problem. The first study was done by an engineer named Charles Ellet Jr., whose study produced some startling conclusions. His report to Congress attributed the increase of flooding in the Mississippi River Basin to four major developments, including:
“The extension of the levees along the borders of the Mississippi, and of its
tributaries and outlets, by means of which the water that was formerly allowed to
spread over many thousand square miles of low lands is becoming more and more
confined to the immediate channel of the river, and is therefore, compelled to rise
higher and flow faster, until, under the increased power of the current, it may have time
to excavate a wider and deeper trench to give vent to the increased volume which it
Ellet also mentioned the effects of increased cultivation, manmade cutoffs/shortcuts, and the lengthening of the delta all of which will increase the probability and magnitude of floods. He concluded that the flooding problem would worsen with time as the Mississippi Basin becomes more settled. According to Ellet, “It is shown that each of these causes is likely to be progressive, and that the future floods throughout the length and breadth of the delta, and along the great streams tributary to the Mississippi, are destined to rise higher and higher, as society spreads over the upper States, as population adjacent to the river increases, and the inundated low lands appreciate in value”.
Unfortunately, Ellet’s opinion was ignored in favor of two Army Corps Engineers, Captain Andrew Humphreys and Lieutenant Henry Abbot, whose views became the consensus for the next 140 years. In their study, Report Upon the Physics and Hydraulics of the Mississippi River, Humphreys and Abbot emphasized that levees were the best method of flood damage control. Since 1882, the USACE in conjunction with the Mississippi River Commission extended the levee system so that it included mainly the area from Cairo, Illinois to the mouth of the Mississippi delta in Louisiana. However, the relief brought by the levees would prove to be short-lived. Soon, an even greater challenge would take precedence in the minds of both government official and citizen alike.
(5) http://thehill.com/video/in-the-news/218835-justice-asks-if-a-boatload-of-federal-money-is-coercive- SCOTUS Justice Elana Kagan likened the showering of federal funds to “a boatload of federal money”