President Donald Trump issued an executive order last week announcing a federal policy in favor of minimal artificial intelligence regulation. The executive order, called “Ensuring a National Policy Framework for Artificial Intelligence,” targets “onerous” state laws that the administration views as forcing “ideological bias” into AI models or undermining “truth outputs.”
The primary goal is to allow AI to develop without significant limits.
By its own terms, the primary goal of the executive order is to squash or seriously decrease any state regulation of AI and to allow AI to develop, largely without significant limits. Some states have passed AI restrictions to address concerns related to privacy, misinformation and bias, but the Trump administration, which says AI development must proceed with minimal regulatory friction to ensure American dominance of the sector, has described what those states are doing as problematic. States are not going quietly; instead, they’re already pushing back against the Trump administration. Florida Republican Gov. Ron DeSantis said on Monday that regardless of Trump’s executive order, Florida will move forward with its plan to regulate AI, in part to create safeguards for children.
Policy issues aside, the executive order faces serious legal headwinds and is unlikely to withstand court challenges because, once again, Trump grossly overestimates his power.
The Trump administration is once again trying to achieve its goals by waving the magic wand of an executive order as if it will turn existing AI regulations into fairy dust. But an EO is the wrong tool for that. The Trump administration needs to do instead what it has thus far refused to do: persuade a majority of our lawmakers to pass legislation. Even then, the administration’s choice to use a blunt-force object to make states refuse to regulate AI would likely face legal questions.
The executive order requires that the attorney general establish an AI Litigation Task Force to challenge state restrictions and directs the secretary of the Commerce Department to publish an evaluation of “onerous” state AI laws. The order also ties broadband funding to a state not having such laws.
The EO also tells the chair of the Federal Communications Commission to consider a federal AI reporting-and-disclosure regime that purports to preempt conflicting state laws; it orders the chair of the Federal Trade Commission to issue a policy statement explaining that state laws that alter “truthful outputs of AI models” are preempted by the Federal Trade Commission Act’s ban on unfair or deceptive practices; and it directs members of the executive branch to draft a recommendation for preemptive AI legislation.
The Trump administration’s choice to use a blunt-force object to make states refuse to regulate AI would likely face legal questions.
The first legal problem for Trump is a foundational one. A president can only issue an executive order with preemptive effect if he acts pursuant to power delegated by Congress. Since at least 1819, we have understood that the federal government is a government of enumerated powers; each branch can only act if the Constitution gives it the power to do so. Presidents do not get to issue EOs simply to avoid the difficulties of the legislative process — they’re not supposed to be an end-run around Congress. But this EO is, so there are serious doubts about the president’s power to implement his policy.
Second, the president, via the EO, is threatening to add new policy-based conditions onto federal grants for broadband funding — that is, to make states with “onerous” AI laws ineligible for some grants. But Congress controls the federal government’s purse strings, and thus it is Congress’ role to place conditions on federal grants. Presidents cannot, or at least under the Constitution should not be able to, unilaterally rewrite statutory funding rules.
But even Congress might not have the power to authorize a president to impose limits on federal grants for broadband funding. Under the Constitution’s spending clause, Congress can only place certain types of conditions on a state’s receipt of federal funds. For instance, conditions must be related to the federal interest, in the particular national program or project, and the conditions cannot be coercive. Congress probably cannot tell a state that it faces the choice of either abandoning its AI policy or losing infrastructure funding. This is the sort of decision that strong-arms states and fails to provide them with a true choice. Fourth, the law is currently in flux, and it is unclear that the Trump administration can force federal agencies, whether the FCC or the FTC, to create a new national AI policy. Using communications statutes to create a new AI reporting regime looks like the type of “major question” that the Supreme Court has said Congress must specifically authorize. Finally, on its most basic level, the executive order likely violates principles of federalism. The order unconstitutionally reaches into state sovereignty and limits state policy choices. The federal government cannot and should not directly dictate state policy choices. States are separate sovereigns, and while the federal government can enact incentives for states to act, it can’t make them act at gunpoint. In the end, Trump appears to be doing what he’s done since retaking office — govern by executive order. This cleaves the legislative branch out of the government and puts enormous pressure on the judicial branch to police Trump’s attempts to grab power.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
