Key Takeaways:
- The Trump administration’s executive order on artificial intelligence has raised questions about the authority of states to regulate AI.
- States have the power to regulate AI under their "police powers," but this authority is not unlimited.
- The AI Litigation Task Force will challenge state laws that interfere with the federal government’s vision for a national AI policy framework.
- State laws that regulate AI’s use in employment and hiring are likely within the scope of state police powers.
- Laws regulating speech and transparency may be more susceptible to challenges on constitutional grounds.
Introduction to State Regulation
The Trump administration’s executive order on artificial intelligence has sparked a complex debate about the authority of states to regulate AI. The question of what states can and cannot regulate is a nuanced one, with the answer often being reduced to the "residuary powers reserved under the Tenth Amendment." However, as the AI Litigation Task Force begins its work, a more specific answer is warranted. According to the article, "The task force is charged with challenging ‘unconstitutional, preempted, or otherwise unlawful State AI laws that harm innovation.’" This mission is not unlimited, and federal courts will only strike down state laws that fail to align with the Constitution’s allocation of authority or prove unlawful.
Understanding Police Powers
States have the power to look out for the health, safety, and welfare of their residents, which is often referred to as their "police powers." These powers include the authority to address local concerns through zoning laws, professional certifications, and law enforcement. As the article notes, "States’ police powers are reasonably broad, but not unlimited." States must respect both an upper bound – the purview of enumerated powers reserved for federal authority – and a lower bound – the rights retained by the states’ citizens. These constraints have been tested in litigation throughout the Constitution’s history, notably when state law conflicts with the federal government’s exclusive authority over interstate commerce and when states unduly limit the freedoms of their residents.
The Bounds of Police Power
The extent of preemption is highly contextual and has evolved over time. The Lochner era, for example, was a paradigm shift for state police power, as courts expansively interpreted the individual liberty to contract, shrinking states’ police power over health, labor protections, and market regulation. However, individual liberties and valid justifications for their abridgment have also evolved to fit developments in civil rights law. As the article states, "The constitutionality of states’ exercise of their police powers follows a bounded framework." This framework can be observed in the jurisprudence on public health measures, such as quarantine orders, which have a direct link to protecting local communities and respect the upper and lower bounds of police powers.
State Laws on AI
When states pass AI-related laws out of purported concern for local residents’ welfare, they must meet certain conditions. The law must concern only the state’s geographical purview and rationally address an issue facing local communities. State laws concerning AI’s use in employment and hiring, such as Illinois’ IHRA Amendment and Artificial Intelligence Video Interview Act, are likely well within the scope of state police powers. However, laws regulating speech, such as those that prohibit commercial dissemination of AI-generated likeness without prior authorization, may be found to exceed the scope of police powers. As the article notes, "Laws like Illinois’ HB4875… may restrict the speech for Americans well outside of Illinois state lines."
Challenges to State Laws
The AI Litigation Task Force will need to be selective in its litigation, with several hundred state laws on AI. State laws on transparency and safety, such as California’s SB53 and New York’s RAISE Act, are likely most open to challenge. These laws tend to regulate AI labs before deployment within state jurisdiction, and their specific protection of residents’ welfare is diffuse at best. Provisions included in Colorado’s AI Act requiring that AI providers take care to protect their users from discrimination may be overbroad relative to the protection they offer to Colorado residents. As the article states, "The brief overview above should set the scene for the intense jurisdictional battle ahead." While states may not be thrilled about a politically-driven assault on their legislation, policymakers who have done their homework on the bounds of police power need not worry. If anything, this sort of trial-by-litigation will clarify the purview of state action on AI and ensure that effective and appropriate AI bills go into effect.
Conclusion
In conclusion, the Trump administration’s executive order on artificial intelligence has raised important questions about the authority of states to regulate AI. While states have the power to regulate AI under their police powers, this authority is not unlimited. The AI Litigation Task Force will challenge state laws that interfere with the federal government’s vision for a national AI policy framework, and state laws that regulate AI’s use in employment and hiring are likely within the scope of state police powers. However, laws regulating speech and transparency may be more susceptible to challenges on constitutional grounds. As the article notes, "If anything, this sort of trial-by-litigation will clarify the purview of state action on AI and ensure that effective and appropriate AI bills go into effect." Ultimately, the outcome of this jurisdictional battle will have significant implications for the future of AI regulation in the United States.