Here’s something that my colleague Zach Barlow blogged over on The AI Counsel Blog:

Back in July, members of Congress proposed a prohibition on state AI regulation. Ultimately, these efforts failed, and the proposed ban died in the Senate. Now, just in time for the holidays, the “ghost of moratoriums past” is back. This time, the ban takes the form of an executive order (EO). The President signed EO 14179 last week. This EO seeks to combat state-level AI regulations in several ways.

1. It establishes an AI litigation task force targeting state AI regulations deemed unconstitutional by the administration.
2. It withholds Broadband Equity Access and Deployment (BEAD) non-deployment funds from states with “onerous AI laws.”
3. It directs the FCC and Special Advisor for AI and Crypto to determine if the government should create a federal AI reporting and disclosure standard to preempt state disclosure laws.
4. It tasks the Special Advisor for AI and Crypto and the Assistant to the President for Science and Technology with developing congressional legislation for a uniform Federal AI policy that would preempt other state AI laws.

 

While points three and four may suggest that the federal government will regulate AI, that may not be the case. These policies are being put forward for the express purpose of preemption. This would allow the federal government to lodge legal challenges against state laws on the grounds that it has the sole authority to regulate. However, the EO itself is likely to face challenges. Last month, when the EO was in draft form, Crowell gave this analysis, arguing that it faced an uphill battle in part because:

“Federal preemption by executive decree is not a generally accepted practice under the U.S. Constitution and prevalent theories of separation of powers. Courts are usually “even more reluctant” to find state laws preempted based on mere regulations as opposed to statutes, and the U.S. Supreme Court has held recently that the anti-commandeering principles of the Tenth Amendment bar the federal government from prohibiting a state from legislating in a particular sector.”

So the future of EO 14179 is uncertain. We’ll be looking to the courts to see how the administration’s litigation against states plays out. Additionally, we’ll likely see legal challenges flowing the other way as states sue to block the EO’s enforcement.

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– John Jenkins