Trump AI preemption order likely to face legal challenges
Alex Wong via Getty Images
By
Chris Teale
State leaders said preempting tech regulation is a “dereliction of duty” and does not properly protect residents from the harms they may face.
President Donald Trump followed through on his threat to sign an executive order preempting any state laws on artificial intelligence the federal government feels are “cumbersome.”
And already, state and local leaders are preparing themselves for lawsuits and legal action against an order they believe will not hold up in court.
Trump’s order, which he previewed earlier in the week, instructs the Commerce Department and White House AI and Crypto Czar David Sacks to identify which state laws they believe interfere with the federal agenda to spur innovation and beat China in the race to AI. An AI Litigation Task Force headed up by the Department of Justice would then challenge those laws.
Meanwhile, Commerce would write to those states saying they are ineligible to receive non-deployment funds under the Broadband Equity, Access and Deployment program, while other agencies would take action to preempt them. Brad Carson, president of nonprofit Americans for Responsible Innovation that has railed against any preemption of state AI laws, said the order won’t survive legal scrutiny.
“This EO is going to hit a brick wall in the courts,” Carson said in a statement. “The executive order relies on a flimsy and overly broad interpretation of the Constitution’s Interstate Commerce Clause cooked up by venture capitalists over the last six months. What’s more, this EO directly attacks the state-passed safeguards that we’ve seen vocal public support for over the past year, all without any replacement at the federal level. There’s a reason preemption couldn’t make it through Congress: it threatens safeguards for kids, workers, consumers, and the American public. Politically and legally, it’s a dud.”
Tying the order to grant funding is also a non-starter for many groups.
“This executive order is another example of the current administration bullying state and local governments to get what it wants, threatening lawsuits and the revocation of federal funding while making hollow carveouts,” Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights, said in a statement. “That’s the same playbook we’re seeing play out in the federal takeover of cities across the country, and it won’t stand up in court.”
The White House pointed to a delayed Colorado law as an example of onerous regulations, especially as it bans “algorithmic discrimination,” which the Trump administration said “may even force AI models to produce false results in order to avoid a “differential treatment or impact” on protected groups. It also has lashed out repeatedly at California’s regulation of the technology even as a recent survey showed that most of that state’s residents believe AI is vital to economic growth and support guardrails on it. Local leaders aren’t impressed.
“President Trump and David Sacks aren’t making policy — they’re running a con,” California Gov. Gavin Newsom said in a statement that accused the administration of “corruption” and a “grift” in advancing preemption. “And every day, they push the limits to see how far they can take it. California is working on behalf of Americans by building the strongest innovation economy in the nation while implementing commonsense safeguards and leading the way forward.”
State lawmakers also argued that federal preemption of state AI laws would undermine efforts to protect children. California Sen. Thomas J. Umberg, a Democrat who chairs the state’s Senate Judiciary Committee, called it a “dereliction of duty” in a statement last month amid reports of the new executive order.
“Parents across the country are begging for real leadership on AI and common-sense regulation to protect our children from unregulated, unsafe AI chatbots,” Umberg said at the time. “Instead, the Trump Administration is trying to silence the states actually doing the work. There’s no strategy, no understanding, no concern for our kids — just a sweeping shutdown of any state-level protections.”
Some state laws are exempt from federal preemption, including any regulations dealing with child safety protections, permitting reform for data centers, state government procurement and use of AI, and other topics “as shall be determined.”
The threat of tampering with BEAD non-deployment funds already has rankled many state lawmakers, who are relying on that money for a number of projects related to broadband connectivity. A letter last week sent by more than 160 legislators from 28 states said those funds are crucial for success.
“Non-deployment funds are poised to support a range of critical activities, such as building AI infrastructure, streamlining permitting and pole attachment processes, developing the telecom workforce, improving middle mile and cellular networks, enhancing cybersecurity and emergency services, expanding telehealth and education opportunities, and fostering broadband adoption and affordability,” the group of lawmakers wrote. “Effective deployment depends on non-deployment. Without it, BEAD will fail to deliver the full value Congress intended and taxpayers deserve.”
Private-sector representatives, however, welcomed the executive order. Business Software Alliance Senior Vice President of U.S. Government Relations Craig Albright said in a statement that a national approach to AI policy “supports the development of trustworthy AI and promotes broader AI adoption across industries.”
And Tim Miller, field chief technology officer and public sector cyber lead at AI platform Dataminr, said in an email the “fragmented patchwork of regulations enforced in each individual state makes it incredibly challenging to innovate and problem solve for those governments.”