Bridget Fahey

Comments welcome!

This builds on an article Raul Fernandez and I have forthcoming in @uchilrev.bsky.social. Writing before the change of administration, we warned of the vulnerability of gov't data power to concentration and concealment. DOGE makes those warnings an unsettling reality

papers.ssrn.com/sol3/papers....

“Data control is impoundment by another name.”

The consequences of letting the President claim this emergent power are significant--for the balance of powers, for Congress’ power of the purse, and for our capacity to discipline the government’s use of our sensitive information.

"Americans must also 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”

And as the private sector well knows, valuable data is often preferable to money.

Musk’s Madisonian Insight—And Its Troubling Consequences The Department of Government Efficiency’s seizure of government databases is not just an act of bureaucratic reorganization. It is an act of constitutional restructuring.

In my new piece for @theatlantic.com, I explain the structural constitutional claim implicit in Musk’s dramatic seizure of government data systems: Congress may have the power of the purse, but the President has the power of data.

www.theatlantic.com/ideas/archiv...

The funding freeze violates the Appropriations Clause, federalism principles like the Pennhurst clear statement rule, federal regulations governing grant administration, the substantive terms of many grant statutes and agreements, and (likely) grant recipients' due process rights.

Read the Memo Pausing Federal Grants and Loans The White House’s Office of Management and Budget issued a memo ordering a temporary halt to “all federal financial assistance,” potentially paralyzing a vast swath of federal programs.

This bizarre and indiscriminate federal funding freeze could by its sweeping terms reach nearly a trillion dollars in federal grants to states and localities, many of which are formula grants that Congress has wisely given the President little discretion to halt.

www.nytimes.com/interactive/...