President Issues Executive Order to Establish National AI Policy Standard
Commentary by Vijay Dewan
President Trump issued an Executive Order ("EO") directing federal agencies to challenge state AI laws deemed inconsistent with national AI policy and to develop a legislative framework that would preempt conflicting state regulations.
According to the EO, the Attorney General must establish an AI Litigation Task Force within 30 days to challenge state AI laws "on grounds that such laws unconstitutionally regulate interstate commerce, are preempted by existing federal regulations, or are otherwise unlawful." The Task Force is to consult with the Special Advisor for AI and Crypto and other White House officials regarding state AI laws that warrant challenge.
The EO also directs the Secretary of Commerce to publish an evaluation within 90 days identifying state AI laws that undermine the federal policy of maintaining the country’s dominance in AI. The evaluation must "identify laws that require AI models to alter truthful outputs, or that compel [disclosure] in a manner that would violate the First Amendment." States with laws identified as onerous would become ineligible for certain broadband deployment funds under the Broadband Equity Access and Deployment (“BEAD”) Program.
Further, the EO directs the FCC Chair to initiate a proceeding to determine whether to adopt a federal AI "reporting and disclosure standard ... that preempts conflicting state laws, and directs the FTC Chair to issue a policy statement explaining when state laws [requiring] alterations to truthful [AI] outputs are preempted by the [FTC] Act's prohibition" on deceptive practices.
The Special Advisor for AI and Crypto and the Assistant to the President for Science and Technology must "jointly prepare legislative recommendations establishing a uniform Federal [AI] policy framework," though the recommendations may not "propose preempting... State AI laws relating to (i) child safety protections, (ii) AI compute and data center infrastructure, ... (iii) state government procurement and use of AI."
Commentary
This Executive Order attempts through executive action what Congress has yet to accomplish through legislation. The Order creates mechanisms to challenge and defund state AI laws before establishing the substantive federal framework that would justify preemption. Preemption without a meaningful federal standard is not harmonization; it is deregulation by another name. (See prior coverage.) The directive requiring the Special Advisor for AI and Crypto and the Assistant to the President for Science and Technology to prepare legislative recommendations within 90 days is a step in the right direction, but the Order's sequencing is backwards: the framework should come first; the litigation and funding response later.