Federal efforts to preempt U.S. state artificial intelligence laws have been revived following a failed attempt to establish a moratorium on existing legislation earlier this year. A leaked draft of a White House executive order reviewed by the IAPP 19 Nov. outlines a new tact to limit burdensome AI laws in favor of innovation goals.
According to the draft order, federal agencies would take on various roles to support the elimination of legislative obstacles raised at the state level.
If the order is signed, the Department of Justice would launch a task force charged with challenging the constitutionality of state AI laws. Within 90 days, the Department of Commerce will provide the task force with analysis and referrals to help the DOJ identify which laws to target.
Additionally, the Federal Communications Commission and Federal Trade Commission would each have a role in reinforcing preemption. The FCC is ordered to consider AI model reporting and disclosure standards while the FTC would draft a policy statement outlining how the FTC Act preempts state deception statutes that apply to AI.
The draft order began circulating as Republican members of Congress reportedly consider adding AI moratorium language to the National Defense Authorization Act. Momentum toward some sort of preemption vehicle picked up further with a public endorsement from President Donald Trump.
"We MUST have one Federal Standard instead of a patchwork of 50 State Regulatory Regimes. We can do this in a way that protects children AND prevents censorship," Trump wrote on Truth Social 18 Nov., adding "overregulation by States is threatening to undermine" AI growth potential.
Trump did not offer a direct public statement when Republicans took the initial swing at a moratorium during reconciliation negotiations in July. Sen. Ted Cruz, R-Texas, only referenced presidential support before the eventual removal of the moratorium provision on a 99-1 Senate vote. Trump's explicit advocacy this time around could influence prior detractors to fall in line behind any proposal to halt state laws.
Staff for the Senate Committee on Commerce, Science and Transportation's Republican majority said committee was unable to comment on "speculative executive orders." The House Committee on Energy and Commerce's Republican majority did not immediately respond to the IAPP's requests for comment.
Congressional Democrats remain a firm no on any sort of preemption vehicle, especially if it is not negotiated into a bipartisan federal law.
House Energy and Commerce Ranking Member Frank Pallone, D-N.J., noted during a 19 Nov. subcommittee hearing on AI chatbot safety that "Congress must be sure to allow states to put in place safeguards that protect their residents." Senate Committee on Armed Services Ranking Member Jack Reed, D-R.I., told Semafor a potential AI moratorium inclusion in the final NDAA text is "one of those issues that probably go up to the leadership after we discuss it," but also indicated that "we have to allow states to take the lead because we’re not able to, so far in Washington, come up with appropriate legislation."
There are early signs some prominent Republicans will continue to resist preemption despite the White House's policy position. Govs. Ron DeSantis, R-Fla., and Sarah Huckabee Sanders, R-Ark., each came out against the revived preemption debate, noting the importance of state consumer protection roles in the absence of federal rules. Sen. Josh Hawley, R-Mo., a leader on the bipartisan movement to remove the first moratorium proposal from reconciliation, alluded to stronger industry lobbying as the catalyst for the fresh considerations.
This latest step in the U.S.'s pro-AI innovation agenda comes as the European Union is considering targeted changes to the AI Act and other digital laws that aim to help the bloc keep pace with the U.S. and others in the global digital market.
Joe Duball is the news editor for the IAPP.
