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.