An executive order issued late Thursday by President Donald Trump says it is federal policy “to sustain and enhance the United States’ global AI dominance through a minimally burdensome national policy framework for AI.” That is the correct stance for the federal government to take. It ought to do so with legislation.
The order purports to restrict states’ ability to regulate AI. It sets up a litigation task force under the attorney general to challenge state laws on AI. It threatens to restrict federal funding to states that pass restrictive AI laws. It directs the FCC and FTC to take actions to assert federal primacy on the issue.
These actions might not be legal. AI, like the internet, is under the federal government’s jurisdiction because it concerns interstate commerce. But the Constitution gives the power to regulate interstate commerce to Congress, not the president, and past efforts to pass legislation to preempt state regulation of AI have failed.
In this summer’s tax bill, a provision to preempt state AI regulation was removed at the last minute to ensure passage. In the National Defense Authorization Act, which passed the House with a large majority on Thursday, Republicans again tried and failed to include such language.
For the president to now try doing by executive fiat what Congress failed to do with legislation is an affront to the separation of powers, no matter how correct he is as a matter of policy.
When new technologies appear, the government should wait and see what problems arise rather than proactively regulate based on fear. Some concerns with AI, such as copyright issues, are the subject of well-developed bodies of law that courts can interpret as cases are brought to them. Other concerns, such as effects on the job market, are too speculative for government to respond with any confidence that it is doing the right thing.
A patchwork of state laws creates chaos for a fast-moving industry, making it harder for startups to take on established players. It also allows a single state to create a de facto regulatory regime for the entire country. AI companies aren’t going to make separate products for California or Texas.
State-level Republicans such as Gov. Ron DeSantis (Florida), Gov. Sarah Huckabee Sanders (Arkansas) and Gov. Spencer Cox (Utah) are among the leaders most strongly in favor of allowing states to regulate AI. The White House appears to have acknowledged some of their concerns. Trump’s executive order says the federal government will not interfere with state-level child safety protections, a major concern for social conservatives.
The order also says the administration will prepare legislative recommendations to implement the AI policy. That’s the right thing to do. It has the added benefits of being constitutional and creating more certainty for businesses as they bring products to market.
Bullying state governments on AI policy isn’t a good way to create the stable business environment the administration says it wants. Trump’s instinct is correct, but the process matters, both for the rule of law and the economy.
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