Assessing the Constitutionality of a Presidential Executive Order on AI
UMass Law Professor Eric Mitnick critiqued a recent presidential executive order on artificial intelligence that sought to limit state regulation. His guest column, published in The Providence Journal on December 20, 2025, argues the order stretches constitutional limits and would likely falter in court.
What the order tried to do
The order directed the Attorney General to assemble a task force to challenge state AI laws. The legal backbone was twofold: claims under the "dormant" Commerce Clause and federal preemption. Mitnick lays out why both pillars are weak.
The dormant Commerce Clause argument
The administration framed state AI laws as undue burdens on interstate commerce. That's a high bar. Dormant Commerce Clause challenges are typically brought by regulated entities showing concrete injury-not by the federal government. An executive order can't manufacture Article III standing where none exists.
For context on the doctrine, see Cornell Law's overview of the dormant Commerce Clause.
The preemption claim
Preemption requires an actual federal statute or regulation to conflict with state law. Here's the problem: Congress has largely chosen not to regulate AI in a comprehensive way. Without a governing federal framework, there's little for state law to be preempted by.
Background reading: Cornell Law on preemption.
Why this matters for states
In the absence of federal action, states have long stepped in to address consumer protection, bias, and public safety in emerging technologies. That's not new; it's federalism at work. Mitnick's core point: you can't short-circuit that tradition with executive action alone.
Bottom line: executive action isn't legislation
Executive orders can set priorities and direct agencies, but they can't create standing or substitute for statutes. Durable national AI policy will require Congress to legislate. Until then, state experimentation will continue, and many of those laws are likely to stand.
Practical takeaways for legal teams and writers
- Standing is the threshold issue. If the challenger can't show concrete injury, the case goes nowhere-no matter the doctrine.
- Preemption needs text. Check for express or implied preemption, but if Congress stayed silent, the claim is thin.
- Expect a state-by-state patchwork. Advise clients to plan for compliance across multiple jurisdictions in the near term.
- When writing about these fights, separate policy goals from constitutional authority. Precision matters more than rhetoric.
What to watch next
- Whether any private companies file targeted dormant Commerce Clause cases with clear facts and measurable burdens.
- Movement in Congress on baseline AI legislation that could reshape preemption analysis.
- State court decisions testing disclosure, bias auditing, and safety provisions in AI-focused statutes.
If your team is building AI policy literacy across roles, see curated training by job function: Complete AI Training - Courses by Job.
Key insight: National AI rules won't be settled by memo. They'll be settled by statutes, cases with proper plaintiffs, and the slow work of federalism doing its job.
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