Elon Musk’s assertion of power over some of the government’s largest and most sensitive data systems isn’t merely a contravention of American statutory law, administrative norms, and individual privacy rights. It is an act of constitutional restructuring, and should be understood in those terms.
Musk’s team has accessed a Department of Treasury database that guides the disbursement of more than $5 trillion in federal funds. It is tussling with senior officials at the Internal Revenue Service over access to tax returns, among the most protected federal data, and at the Social Security Administration over access to data systems containing medical and bank records. A court has temporarily blocked Musk and his team from obtaining data about millions of Americans’ student loans, but only for now. And just last week, Musk sought access to “the most sensitive of all”: a database reflecting ongoing wage and income information for most working Americans.
The Constitution distributes power among the branches of government to prevent its concentration and maintain its balance. It organizes many different forms of power, but particularly significant are the powers that take the form of “instruments,” to borrow James Madison’s term for the government’s material tools. Chief among them, the Constitution commits the “power of the purse” to Congress. By contrast, only the president can wield the power of the sword as the commander in chief of the armed forces. Those two profound instruments, guided by different branches, can also counterbalance each other, as when Congress withholds funding for disfavored armed interventions.
Musk’s insight, which he is now putting to such destructive use, is that a third instrument—the power of data—may be as consequential as that of the purse or the sword. The branch of government that controls government data can effectuate legal and political projects not otherwise available to it. And it can use those data to contest other branches’ constitutional prerogatives, as Congress’s purse has frequently done for the president’s sword.
Musk seems to have come to this realization long before Trump’s second inauguration. According to recent reporting, Musk “wanted direct, insider access to government systems” if he was going to work with the Trump administration. If he and his allies could not get “access to federal data and payment systems,” he appears to have viewed the effort as “a waste of his time.”
It is unsurprising that a technology CEO would see data as a tool valuable in its own right. In the private sector, data are an asset, a currency, a form of market power. Data-rich start-ups, even those with little revenue, routinely get eye-popping valuations. Businesses are acquired not only for the goods they produce or the services they render but also for their data. Companies of all sorts—real estate, car manufacturing, home goods—have restyled themselves in recent years as data companies.
Public officials and scholars of constitutional law, by contrast, have missed this important point about the value—and power—of data. They generally approach data from the perspective of individual privacy rights. Those rights are important, and governments should steward data in a way that respects them, now more than ever. But Americans must also come to see data as a source of governmental capacity and a form of governmental power—and view Musk’s attempts to appropriate that power to the president as an extraordinary act of constitutional field-claiming.
Some of the consequences of that annexation of power are already unfolding. When Musk and his team of data engineers seized control of the Treasury Department’s payments system—the database used to distribute funds allocated by Congress and properly expended by administrative agencies—that interposed the president into the routine process through which Congress exercises its power of the purse. The White House has not concealed the president’s goal: to use technical control over government data systems to unconstitutionally prevent the expenditure of duly appropriated funds. Data control is impoundment by another name—at least when abused.
Musk is acting pursuant to an executive order directing agencies to share “all unclassified agency records” with DOGE. On first glance, directing some executive-branch agencies to share data with others may seem an unremarkable exercise of the president’s authority as head of the executive branch. But that authority is more constrained than it might appear. Administrative agencies are created and governed by laws passed by Congress. The president can direct their activities only within the scope of discretion that Congress confers. If he wishes to exceed or contravene that statutory authority, he must point to a specific constitutional entitlement to supersede Congress’s directives.
Musk’s team has cited no statutory authority to access or use the databases it has seized. And the resignations of career civil servants charged with executing Congress’s instructions about how to steward public databases suggest that Musk’s goals for those databases, many of which have not been publicly disclosed, conflict with Congress’s commands. The president’s implicit claim must therefore be that he has the constitutional right to use government data on his own terms and for his own purposes, whatever statutes say.
One needs to grasp only the basic principles of structural constitutional law to see why he is wrong. Congress, not the president, has the right to determine how government data should be used and by whom. Data, of course, are not mentioned in the Constitution’s text (except, perhaps, in the census clause, which requires an enumeration of the population every 10 years). There is no general data clause assigning the power over public data to a particular branch, much less to the president. But as I will soon teach my first-year constitutional-law students, the Framers anticipated great social, technological, and economic change. To navigate the innovation and exigency that would result, the document gives Congress alone the authority to “make all Laws which shall be necessary and proper for carrying into Execution” any of the powers that it itself grants.
The federal government is a government of enumerated powers, one that can exercise only the authorities granted to it by the Constitution. That clause—known as the necessary and proper clause—extends the government’s capacity by providing a reserve of adaptive powers that, in the words of Chief Justice John Marshall, create a “Constitution intended to endure for ages.” But that vital trust, the capacity to reassess the means necessary to bring the Constitution’s other authorities to fruition, is vested wisely in Congress. New forms of power, new tools and instruments, must be structured by laws passed by Congress, not amassed and deployed subject to the caprice and impulses of the president. The president has no inherent right to supersede Congress’s statutes authorizing and restricting the uses of the government’s data.
The first wave of litigation over DOGE’s attempts to control government data has focused on the Privacy Act of 1974, a 50-year-old law of noble purpose but outmoded design that protects individuals’ right to notice about how the government handles Americans’ data. But Musk’s efforts must also be scrutinized for their consistency with our constitutional structure, not just with individual privacy rights. Litigants should press the separation-of-powers claim that Musk’s efforts to commandeer the government’s data systems in the president’s name exceed the president’s constitutional authority.
Americans should see this assertion of an inherent presidential power to control the government’s data assets for what it is—an effort to employ data to unsettle the Constitution’s allocation and balance of powers at what is still the dawn of the government’s digital age. Congress and courts must ensure that government data, and their use, are directed not by presidential decree, but by statute. To fail to see that now is to risk ceding control over the government’s digital power to the president for generations to come.
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