Trump’s AI Order: More Bark than Bite
The Constitution does not grant the president the authority to override state regulations on artificial intelligence (AI) through an executive order, nor has Congress delegated such power. However, President Trump has issued an executive order attempting to coerce states into abandoning their AI laws.
Intimidation Tactics Against State Regulations
The executive order appears designed to intimidate states into retracting laws that protect Americans from AI-related dangers, such as deceptive advertisements and deepfakes aimed at misleading voters, amidst a lack of federal regulation.
This move coincides with significant financial contributions from the AI industry to Trump’s campaigns and super PACs over the past year. Despite this, the order lacks the power to effectively halt state legislation aimed at ensuring AI safety, a fact that should be recognized by both courts and state governments.
Key Provisions of the Executive Order
The executive order instructs the Justice Department to form a task force to challenge laws that are labeled as “cumbersome” or that protect against discrimination. It also directs the Commerce Department to withhold certain broadband support funds from states that implement stringent AI regulations. Additionally, it mandates various evaluations and assessments by other agencies to discourage the adoption of robust AI laws.
State Sovereignty and Legal Standing
Given the inaction from Congress, it is unreasonable for the administration to threaten lawsuits and funding cuts simply for states safeguarding their residents. According to the Brennan Center, by July, at least 40 states had enacted more than 149 significant laws regulating AI since 2019, addressing concerns across both Republican and Democratic administrations.
Under the Constitution’s Supremacy Clause, state laws must align with both the Constitution and federal statutes, irrespective of presidential directives. Although states can contest the AI order in court, it does not grant the Justice Department or other federal agencies any new legal authority. The federal government cannot enforce the executive order against state AI laws through litigation, as presidential orders do not empower the government to initiate lawsuits.
Legal Viability of State AI Laws
Most state AI laws currently in effect are likely on solid legal ground, as state legislators typically ensure compliance with federal statutes. Over the past three years, the tech industry has challenged several state regulations, but many laws have successfully withstood scrutiny.
Implications of Recent Judicial Changes
Further restricting the Trump administration’s reach, the Supreme Court recently overturned the Chevron deference doctrine, meaning the judiciary no longer defers to federal agencies’ interpretations of statutes. The instructions to agencies such as the Federal Communications Commission and the Federal Trade Commission do not alter this reality. Regarding funding threats, the administration cannot unilaterally change funding agreements set by Congress, as such actions would violate federal law. Past attempts to illegally withhold funding have faced significant judicial pushback.
Conclusion: A Political Theater
The executive order on AI is largely political theater. In the absence of proactive federal leadership, states must continue to protect their citizens from the risks associated with unregulated AI, irrespective of the exemptions sought by the industry.
