Constitution Day at Purdue: Pulitzer-winning Supreme Court beat reporter warns about decay of separation of powers

Congress: You may not. President: Well, I will anyway. Supreme Court: Oh, OK.

Editor’s note: This Constitution Day lecture by former New York Times reporter Linda Greenhouse drew a full house Wednesday afternoon at Pfendler Hall at Purdue. Marilyn Odendahl, reporter with The Indiana Citizen, shared this account with Based in Lafayette.

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Constitution Day at Purdue: Pulitzer-winning Supreme Court beat reporter warns about decay of separation of powers

By Marilyn Odendahl / The Indiana Citizen

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To mark the 238^th anniversary of the signing of the U.S. Constitution, Linda Greenhouse, awarding-winning journalist, visited Purdue University on Wednesday and delivered a warning about the American system of government.

“You don’t need me to tell you that this is a system under stress,” Greenhouse said. “That’s not a partisan statement, that’s a fact and it’s obvious to all that one core aspect of American government that is buckling under the stress is the separation of powers.”

Greenhouse, a former New York Times correspondent who covered the U.S. Supreme Court from 1978 to 2008, winning a Pulitzer Prize in 1998, was the keynote speaker at the third annual Purdue Constitution Day Lecture Endowed by Ann & Bill Moreau in Honor of Birch Bayh at Purdue University. Bill and Ann Moreau are the founders of the Indiana Citizen Education Foundation, parent of The Indiana Citizen.

Linda Greenhouse speaks with Purdue students Wednesday after her Constitution Day lecture at Purdue’s Pfendler Hall. (Photo: Marilyn Odendahl)

Greenhouse delivered her speech, “Preserving or Disrupting: The Supreme Court and the Balance of Power Today,” in Deans Auditorium in Pfendler Hall on the West Lafayette campus. Students, faculty, alumni and state lawmakers filled the space with several people standing along the walls.

“What a turnout,” Jesse Crosson, associate professor of political science at Purdue, said at the beginning event. “This is far and away the best crowd we’ve had. I’m so excited that everyone wants to celebrate the U.S. Constitution with us today.”

Crosson estimated about 170 people attended the lecture. Greeters at the entrance of the auditorium ran out of the pocket-sized soft-cover books that they had been giving to the attendees. The books contained the U.S. Constitution, Declaration of Independence and Articles of Confederation along with information about the Founding Fathers and the U.S. Supreme Court.

Although separation of powers is a foundation principle of American democracy, Greenhouse noted the phrase does not appear anywhere in the Constitution, which was signed Sept. 17, 1787. Still, separation of powers was a common description for the three branches of government – executive, legislative and judicial – that the framers of established.

Greenhouse pointed to James Madison, one of the authors of not only the Constitution but also the Federalist Papers which are a collection of essays published throughout the colonies between 1778 and 1788 to build support for the ratification of the Constitution. In Federalist Paper No. 47, Madison addressed the separation of powers, asserting that the “very definition of tyranny” is the concentration of power from the executive, legislative and judicial branches in the same hands.

The framers did not intend a complete separation, Greenhouse said, but rather a “dynamic equilibrium.” That equilibrium responds to the politics of the time as well as to the strengths and weaknesses of the president, the nature of the congressional leadership and the U.S. Supreme Court’s view of its role.

Today, Greenhouse said, the description that Congress is no longer a co-equal branch of government is “common and well justified.” Capitol Hill has little ability to react or exercise its power, in part, because of a series of rulings from the Supreme Court which are said to be based on the Constitution.

“One lesson to draw from history is that a healthy separation of powers requires each branch to take an active role in defending its own prerogatives while respecting the boundaries that two centuries of experience have established as norms,” Greenhouse said.

As an example of how the separation principle is decaying, Greenhouse pointed to a Supreme Court’s 2019 ruling in Trump v. Sierra Club from the first Trump administration. President Donald Trump had requested $5.7 billion for the border wall, but when Congress only appropriated $1.37 billion, the White House declared an emergency and tried to scoop $2.5 billion more from coffers in the U.S. Department of Defense. Trump claimed he had the authority to take the money under the Defense Department Appropriations Act.

Greenhouse said while the law does authorize some transfers, it sets conditions. In particular, the money can be transferred only in response to an unforeseen military requirement. Also, the transfer is prohibited when Congress has already denied the funding.

The Sierra Club then sued to stop of the constructions of the border wall, because it would have endangered the fragile landscape along the Southern border that Congress had sought to protect. The U.S. District Court in Northern California could found for the plaintiffs, stopping the project and the 9^th U.S. Circuit Court of Appeals refused the administration’s request to a stay of the lower court’s order so construction could continue while the case moved through the justice system.

Then the Trump administration asked the Supreme Court for a stay. The U.S. House of Representatives filed a brief opposing the administration by arguing the “power of the purse is an essential element of the checks and balances build into the Constitution.”

Using the so-called shadow docket, the Supreme Court issued a 5-to-4 decision, giving the administration the stay it had requested so construction could proceed.

“I think it’s such a clear example of what happens when the separation of powers breaks down and when the Supreme Court becomes the breakdowns enabler,” Greenhouse said. She then summed up the case in “three little dramatic lines:”

Congress: You may not

President: Well, I will anyway

Supreme Court: Oh, OK.

Greenhouse compared the border wall dispute to the attempt by the Truman administration to seize the country’s steel mills during the Korean War. In the early 1950s, the steel workers were threatening to strike which would have likely halted production of weapons and other war materials.

When Youngstown Sheet & Tube Co. v. Sawyer arrived at the U.S. Supreme Court, all nine of the justices had been appointed by either President Harry Truman or his predecessor President Franklin Delano Roosevelt. However, in a 6-to-3 decision, the majority ruled the seizure was unconstitutional.

Greenhouse highlighted the concurring opinion written by Justice Robert Jackson, considered the best writer to sit on the Supreme Court. He defined the separation of powers that still guides lawyers and courts today.

“With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations,” Jackson wrote. “Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

Greenhouse also contrasted Jackson’s “eloquent words” with the “nearly complete silence in the face of challenges in profound and historic dimension” from today’s Supreme Court. She said the president had requested a stay of adverse decisions about two dozen times this past summer and majority had granted the request without explanation.

“In most of these cases, it’s been the dissenters who chose to speak, while the majority remained silent,” Greenhouse said.

Currently another case involving the separation of powers is pending before the Supreme Court, Greenhouse said. This one arises from Trump’s firing of Shira Perlmutter, the register of copyrights and director of the U.S. Copyright Office in May 2025. Apparently, the president disagreed with the reform she had prepared for Congress on the copyright aspects of artificial intelligence. Congress has pushed back, but Greenhouse the case is playing out much like the Sierra Club dispute:

Congress: Mr. President, this official is not yours to fire.

President: Well, I did it anyway.

Greenhouse said what is unknown is whether the Supreme Court will acquiesce to the president as it has been doing or seek to impose some limits on the Trump administration.

Reviewing the separation of powers cases that are filling the Supreme Court’s docket, Greenhouse posed the question if the principle means the same today at it meant to the framers in September 1778 and to Justice Jackson in 1952.

“Does it mean something quite different today, unbounded presidential authority with very little balance?” Greenhouse asked. “If so, on Constitution Day 2025, what are the implications for American democracy?”

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Marilyn Odendahl is a reporter for The Indiana Citizen, a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens.

Editor’s note: This story has been updated to reflect that Youngstown Sheet & Tube Co. v. Sawyer held the seizure of the country’s steel mills was unconstitutional.

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