Donald Trump signed an executive order yesterday purporting to block states from artificial intelligence regulation. Can a president unilaterally invent new laws and then assert that this counts as occupying the field to then preempt state laws? No, of course not. But he issued the order anyway because this administration is itself a hallucination engine stochastically vomiting out orders. And the public is troublingly dumb enough to think executive orders can create policy out of thin air.
Let us endeavor to redline this unlawful gibberish, since there does not appear to be a competent attorney within the White House orbit capable of doing so:
Section 1. Purpose. United States leadership in Artificial Intelligence (AI) will promote United States national and economic security and dominance across many domains.
This is marketing fluff that would make Sam Altman blush, but let’s give Trump credit where it’s due: introducing AI to national security already successfully flagged Pete Hegseth as a war criminal so maybe the technology does bring something to the table.
My Administration has already done tremendous work to advance that objective, including by updating existing Federal regulatory frameworks to remove barriers to and encourage adoption of AI applications across sectors. These efforts have already delivered tremendous benefits to the American people and led to trillions of dollars of investments across the country.
As a reminder, the “trillions of dollars of investments” he’s talking about are mostly on paper IOUs passed around a perfect circle. At the center of the Ouroboros of Suck sits NVIDIA, the company that holds the entire U.S. economy afloat right now. The media covers it every time NVIDIA throws a life preserver to drowning AI companies, but rarely point out that the money is mostly as hallucinatory as the AI results. As Ed Zitron summed it up:
You’ve likely seen a few ridiculous headlines recently. One of the most recent, and most absurd, is that that OpenAI will pay Oracle $300 billion over four years, closely followed with the claim that NVIDIA will “invest” “$100 billion” in OpenAI to build 10GW of AI data centers, though the deal is structured in a way that means that OpenAI is paid “progressively as each gigawatt is deployed,” and OpenAI will be leasing the chips (rather than buying them outright). I must be clear that these deals are intentionally made to continue the myth of generative AI, to pump NVIDIA, and to make sure OpenAI insiders can sell $10.3 billion of shares.
OpenAI cannot afford the $300 billion, NVIDIA hasn’t sent OpenAI a cent and won’t do so if it can’t build the data centers, which OpenAI most assuredly can’t afford to do.
That said, if there’s anyone who understands claiming with conviction that something is worth more than it actually is on financial reports it’s Donald Trump. Indeed, Trump has multiple convictions to that effect.
To win, United States AI companies must be free to innovate without cumbersome regulation. But excessive State regulation thwarts this imperative.
China is a totalitarian state and they’ve already built a better product in DeepSeek — as long as you don’t ask it any questions about Tibet — so some state guardrails against Sora generating child porn aren’t going to grind AI development to a halt.
First, State-by-State regulation by definition creates a patchwork of 50 different regulatory regimes that makes compliance more challenging, particularly for start-ups.
Remember when these guys couldn’t shut up about states’ rights? It’s almost as though that was more about pushing neo-segregation than an honest commitment to federalism. Weird.
Second, State laws are increasingly responsible for requiring entities to embed ideological bias within models. For example, a new Colorado law banning “algorithmic discrimination” may even force AI models to produce false results in order to avoid a “differential treatment or impact” on protected groups.
My guy, AI does not need any help producing false results.
In fact, the Colorado law at issue is about preventing false results given that algorithms are uniquely prone to garbage in/garbage out bias.
Third, State laws sometimes impermissibly regulate beyond State borders, impinging on interstate commerce.
That’s… not impermissible. Congress can exercise its authority to regulate interstate commerce, but that doesn’t mean — absent congressional action — that states are barred from passing laws that can have knock on effects beyond their borders. “Sometimes” is carrying a lot of water here and the order isn’t making any effort to show its work.
My Administration must act with the Congress to ensure that there is a minimally burdensome national standard — not 50 discordant State ones.
The “must act with the Congress” part is critical. Because, you know, they make laws and executive orders DO NOT MAKE LAWS. This is Schoolhouse Rock shit. That said, there’s a certain symbolic beauty to the way this order tracks the very problems with AI that everyone’s trying to regulate. Christine Lemmer-Webber is credited with calling generative AI “mansplaining as a service” and here we have an executive order that’s all confidence and buzzwords while managing to be completely wrong about everything.
That framework should also ensure that children are protected…
Sure.
censorship is prevented…
Sort of the exact opposite of the last one.
copyrights are respected…
Too late.
and communities are safeguarded.
What does that even mean?
Until such a national standard exists, however…
There’s no “however” here. Until Congress sees fit to draft a law setting this “national standard,” the president cannot do one goddamned thing about it.
it is imperative that my Administration takes action to check the most onerous and excessive laws emerging from the States that threaten to stymie innovation.
And even if the president could impose a placeholder law while Congress dithers, it absolutely cannot cancel state laws in favor of that new made-up law. Trump really should stick to the white supremacy because this is not how supremacy works in a Supremacy Clause sense. It does not read “this Constitution, the laws of the United States, and whatever the President is mad about on Truth Social shall be the supreme law of the land.” He’s acknowledging that there is no existing law of the United States and just inventing one and claiming preemption. The Tenth Amendment says the total opposite of this.
Within 30 days of the date of this order, the Attorney General shall establish an AI Litigation Task Force (Task Force) whose sole responsibility shall be to challenge State AI laws inconsistent with the policy set forth in section 2 of this order, including on grounds that such laws unconstitutionally regulate interstate commerce, are preempted by existing Federal regulations, or are otherwise unlawful in the Attorney General’s judgment, including, if appropriate, those laws identified pursuant to section 4 of this order.
No, the Attorney General cannot challenge state laws for being inconsistent with non-existent federal laws. Nor can the administration withhold congressionally allocated funds from states in retaliation over state AI regulations, which the order also purports to do. Not that the Supreme Court has shown anything to suggest they’d stop him. Train v. City of New York? This Court ignores way bigger precedents than that on the regular! To be clear, if this were challenged, the Court wouldn’t rule in Trump’s favor — because that might empower a future Democratic president — and would just fire off a shadow docket opinion allowing Trump to do it indefinitely.
Nor can any of the other federal flunkies he identifies in the order — Commerce, the FTC, or the Special Advisor for AI and Crypto and Unicorn Farts — preempt state laws. The order gives some lip service to a creative executive agency concocting an argument for AI falling under otherwise existing regulations, which would be a fair executive order power, but there’s not much of an argument for how a law banning AI from being used to deepfake naked celebrities constitutes the state making the AI provider engage in a deceptive commercial practice.
There just aren’t any existing hooks to credibly hang this preemption effort.
Tech policy researchers have already noted the Trump administration cannot restrict state regulation this way without Congress passing a law. OpenAI has acknowledged that “federal preemption over existing or prospective state laws will require an act of Congress.” Hell, STEVE BANNON says, “”David Sacks having face-planted twice on jamming AI Amnesty into must-pass legislation now completely misleads the President on preemption.” So we’re all in agreement here except the Dunning-Kruger-in-Chief occupying the White House.
When AI hallucinates, it at least has the decency to admit it’s wrong when called out. When the executive branch does it, apparently we just call it policy.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.