As detailed in a recent guest post on this site, authorities in a variety of jurisdictions around the country and around the world are grappling with the right approach to regulate AI. Several U.S. state legislatures, including those in California, Colorado, Utah and Texas, among others, have already enacted AI-specific laws. Now, on December 11, 2025, the White House issued a new Executive Order entitled “Ensuring a National Policy Framework for Artificial Intelligence” (here). The new EO seeks to override or preempt state laws on AI in favor of unified federal regulation. As discussed below, the order raises a number of concerns and may face both resistance and court challenge.
In order to explain the reason for the EO’s issuance, the EO emphasizes the administration’s commitment to AI development in the U.S., adding that for U.S. AI companies to “win,” the companies “must be free to innovate without cumbersome regulations,” observing further that “excessive State regulation thwarts this imperative.” State regulation, the order asserts, risks the creation of a “patchwork” that makes “compliance more challenging.” The preamble also states the administration’s determination to have “a carefully crafted national framework” that “can ensure that the United States wins the AI race.” Until the national standard exists, however, the administration must “check the most onerous and excessive laws emerging from the States that threaten to stymie innovation.”
In order to achieve this objective, the EO does four things. It first proposes an AI policy for the U.S., and then it specifies three steps to be taken to advance the policy.
The EO states that it is “the policy of the United States to sustain and enhance the United States’ AI global dominance through a minimally burdensome national policy framework for AI.”
In order to advance this policy, the EO proposes as a first step the formation within 30 days of an AI Litigation Task Force for the purpose of challenging State laws inconsistent with the state policy. The Task Force is to State laws that “unconstitutionally regulate interstate commerce, are preempted by existing Federal regulations, or are otherwise unlawful in the Attorney General’s judgment.
The EO proposes as a next step the publication within 90 days an evaluation of the existing state laws to identify laws that are onerous and conflict with the stated policy, and to refer that evaluation to the Task Force. As an added measure, the EO provides that states that fail to toe the line on AI regulation may face loss of federal funding (for example on broadband development).
In addition to a variety of other steps, the EO also proposes that a number of identified executive branch offices and agencies shall “jointly prepare a legislative recommendation establishing a uniform Federal policy framework for AI that preempts State AI laws that conflict with the policy.”
Discussion
AI is clearly a key topic for the White House. Indeed, the latest EO is not the administration’s first proclamation regarding AI. In the very first days of the current administration, the White House issued an Executive Order entitled “Removing Barriers to American Leadership in Artificial Intelligence” (here).
The latest EO addressing state AI regulation and legislation apparently comes after significant lobbying from the tech industry and Silicon Valley. There is no doubt that a patchwork of state AI regulations could hamper the AI industry in the U.S. and at minimum could make compliance expensive.
However, these concerns do not necessarily mean that the EO represents the right approach or even that it is likely to succeed in its objective. Indeed, a December 13, 2025, Wall Street Journal article entitled “President’s Executive Order on AI Unlikely to Deter State Laws” (here) quotes a number of sources as saying that the EO is “unlikely to deter state lawmakers from pursuing their own AI policies.” One source is quoted as saying that “States have a strong interest in regulating this emerging area, so I don’t expect them to quickly relinquish their own authority to set their own rules and standards.”
The EO does seem likely to bring the White House into conflict with state legislatures, including even red state legislatures and politicians. The EO has drawn surprisingly vocal opposition from political voices that ordinarily are reliably in favor of all things MAGA. And though the EO may have the support of Silicon Valley, there are a variety of other groups that will question the legality of the EO. A court challenge seems likely. The Journal article quotes one commentator as saying that “the EO is going to hit a brick wall in the courts,” saying further that the EO relies on an “overly broad interpretation” of the U.S. Constitution’s Interstate Commerce Clause. (Refer here for an interesting analysis of the likely legal challenges.)
The EO is certainly characteristic of this administration’s approach to policy issues. That is, rather than consult a variety of viewpoints and trying to develop a consensus as to what is in the best interests of the country, this White House simply declares the national interest and policy without attempting to address or even acknowledge alternative points of view. The Wall Street Journal’s December 11, 2025, article about the White House’s issuance of the EO (here) captures the essence of this characteristic of the current administration. The article quotes President Trump as saying (somewhat enviously?) that “China doesn’t have to contend with state legislatures,” adding that “China has one vote because they have one vote, and that’s President Xi, he says do it, and that’s the end of that.”
It is also characteristic of this administration that in declaring the policy of the country with respect to AI development, it is not enough to say that it is in the country’s interests to advance or promote AI development or even to say that the successful development of AI in this country is in the national interest. No, for this administration, none of that is enough. What this country’s interests dictate is nothing less than “global AI dominance.”
The fact is that there is a growing recognition at both the state and federal level that AI presents dangers and that it needs to be regulated. In my humble opinion, it would be preferable if rather than arguing over turf issues we were to focus the discussion on what regulatory policies should be adopted in order to ensure that Americans’ interests are protected.