The answer to two questions will shape the future of AI in the United States:
Who gets to write the national rules for AI development?
Who gets to write the rules for how AI is adopted at the state level?
This is not a pop quiz. These are the same questions that we had to answer in the late 1700s with respect to shipping, in the late 1800s with respect to the railroads, and in the late 1900s with respect to the Internet. The right answers then, remain the correct answers today.
The Executive Order on AI announced by President Trump provides a clear answer to the first question: Congress. It’s the right answer given the unequivocal allocation of constitutional authority to Congress to resolve matters that implicate America’s economic and national security.
AI development refers to the training, evaluation, and deployment of AI models. In short, it’s the tasks that determine how quickly U.S. companies can continue to push the technological frontier as our adversaries race to do the same. Any pause, delay, or diversion to these efforts may have irreversible effects on our ability to economically and militarily keep pace. It’s not hyperbole to stress that America requires a cohesive strategy on this frontier so that our leading AI labs and emerging startups can focus more on AI research, rather than attempting to navigate a patchwork of state AI laws.
The Order also answers the second question. States may dictate who uses AI, for what purposes, and subject to what limitations.
Again, this is the right answer as mandated by the Constitution and its reservation of extensive police powers to the states. It has long been recognized that it is the duty “of a state to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare[.]” That’s precisely why the Order does not contest the authority of states to enact and enforce laws related to child safety, data centers, state government use of AI, and other issues that reflect that important duty.
To use an imperfect analogy, the Order acknowledges and welcomes state laws related to speed limits, road designs, and driver’s license requirements, so long as they do not interfere with how the engine is designed and distributed.
The problem is that many states have misinterpreted their expansive authority. Some have enacted laws that will impede the ability of other states to look out for the distinct wants and needs of their respective community. As mentioned in the Order, states like Colorado want to dictate how AI models respond to certain queries — this akin to messing with the engine of AI. If labs comply, then the rest of America will have to live with what Denver thinks is best.
Other states — namely, California — have enacted laws with the explicit purpose of shielding the rest of the nation from speculative risks. That’s akin to Californians prohibiting Montanans from driving trucks with V8 engines because Californians think they are too powerful. Worse yet, such laws may inhibit the ability of American innovators to move forward on devising new strategies to deploy more capable and reliable AI systems. Congress alone has the authority to dictate such consequential decisions. Americans are rightfully eager for Congress to use that authority. But impatience must not become acquiesce to efforts by state legislators to step into the shoes of U.S. representatives and senators.
The Order’s core provision — the creation of an AI Litigation Task Force — will protect the American people from a Tower of Babel approach to AI development. States may think they’re enacting similar laws with similar provisions related to AI training, but they’re oftentimes speaking different languages —their bills are riddled with contradictory definitions and vague standards.
This Task Force is overdue, but far from an overreach of presidential authority. The Order does not grant the U.S. Attorney General any new authority nor permit the Task Force to “neuter” any constitutionally-valid state laws, as alleged by The New York Times. Instead, the Order is again to the President putting certain questions at the top of the AG’s agenda: specifically, challenging unconstitutional, unlawful, or preempted state laws. None of that is new. It has been and always will be the case that state laws that run afoul of the Constitution or otherwise violate the law can and should be challenged. The Order merely directs a focus on state AI laws that fall within any of those categories.
State legislators may be forgiven for rushing to regulate AI amid the public’s uncertainty over how the technology will impact our economy, our schools, and our communities. AI’s disruptive effects warrant a national framework and soon. Congress must act. However, as signaled by this Executive Order, that forgiveness has limits: states that intentionally seek to impose their legislative will on others must be held accountable.
Kevin Frazier is the AI and Innovation Fellow at the University of Texas School of Law.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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