The Trump administration issued an executive order on Thursday aiming to challenge state laws regulating the artificial intelligence (AI) industry. The order outlines several directives intended to preempt state and local AI regulations.
Key Directives of the Executive Order
- AI Litigation Task Force: The Justice Department is directed to establish an "AI Litigation Task Force" with the purpose of initiating lawsuits against states concerning their AI-related legislation.
- Agency Collaboration: The Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) are instructed to collaborate with the Justice Department. This collaboration is intended to follow the White House's AI action plan to navigate state and local regulations deemed "onerous."
- Federal Funding Review: Commerce Secretary Howard Lutnick is directed to investigate the department's authority to withhold federal rural broadband funding from states that have enacted AI laws considered unfavorable.
Administration's Stated Rationale
President Trump stated, "We have to be unified," drawing a comparison to China's centralized decision-making regarding policy implementation. David Sacks, Trump's AI advisor, clarified that the administration would not oppose all state laws, specifically noting that "Kid safety, we're going to protect." He indicated the focus would be on "the most onerous examples of state regulations." The administration has cited competitive pressure with China as a reason for pursuing less regulation of the AI industry.
Legal Scrutiny and Expert Opinions
The executive order is anticipated to face legal challenges. Tech policy researchers suggest that the Trump administration may lack the authority to restrict state regulation without specific legislation passed by Congress. The order also directs David Sacks to work with Congress to draft new legislation.
John Bergmayer, legal director of Public Knowledge, argued that the administration is attempting to bypass Congress, stating, "Legally, I don't think they work very well." He countered the argument that the federal government can override state AI laws solely based on its power to regulate interstate commerce, citing a 2023 Supreme Court decision that upheld a state's right to regulate its industries even if it affects other states.
State-Level AI Regulation Landscape
While Congress has not yet passed comprehensive AI regulation, numerous states have enacted their own laws. These state-level regulations include measures such as prohibiting the creation of nonconsensual nude images using AI, mandating disclosure of AI usage by government agencies and businesses, requiring checks for algorithmic discrimination, and protecting whistleblowers.
Political Reactions and Divisions
The executive order has drawn criticism, including from some organizations that typically support Trump and are involved in bipartisan efforts to pass laws protecting children from AI harms. Michael Toscano, director of the Family First Technology Initiative at the Institute for Family Studies, characterized it as a "lost opportunity."
Adam Billen, vice president of Encode, expressed concern about a potential "chilling effect" on states' willingness to protect their residents, suggesting it could create legal uncertainty benefiting companies.
Within the Republican party, the issue of AI regulation has created divisions. While some factions, including President Trump, have welcomed support from tech industry figures, others express distrust. Prior attempts to introduce AI preemption into federal legislation, such as the annual defense spending bill and and the reconciliation bill, have previously failed.
- Senator Josh Hawley (R-MO), regarding an attempt to insert AI preemption into the defense spending bill, posted on X: "This is a terrible provision and should remain OUT."
- Governor Spencer Cox (R-UT) stated his preference for an alternative executive order that would not bar state laws, emphasizing, "States must help protect children and families while America accelerates its leadership in AI."
- Governor Ron DeSantis (R-FL) posted on X that an executive order "doesn't/can't preempt state legislative action," adding that "Congress could, theoretically, preempt states through legislation."