On December 11, 2025, President Donald Trump issued an Executive Order on “Ensuring a National Policy Framework for Artificial Intelligence.” The order is a positive step because it recognizes the potential disruptive nature that a state patchwork of regulations could create at this critical period of AI development. It also reflects a recognition that, given the interstate nature of these issues, many AI-related debates are more appropriately addressed at the federal level. Notably, it also signals a potential reinvigoration of the Commerce Clause in assessing the extraterritorial effects of state regulation in the technology sector.
I explored these issues in greater depth in earlier work in 2025, examining both concerns about a potentially disruptive patchwork of state AI laws and the debate over appropriate frameworks for a possible policy moratorium. Additionally, I examined the potential constitutional issues in a state patchwork of data privacy laws, including the dormant commerce clause concerns with Ian Adams in a Federalist Society piece in 2019. Many of these same arguments are relevant to what the Department of Justice may consider when evaluating state AI laws.
An executive order approach and the current executive order are not perfect. An executive order does not have the lasting power of legislation and could be revoked by the next executive (or even the current executive if their policy opinions change). Additionally, as I highlighted in a thread on X, there are some specific uncertainties and concerns when it comes to the directions to the FTC, for example.
The fact that an executive order is directing preemption of potentially disruptive AI policy rather than of technological development, however, is a positive sign in how the discourse around AI policy has evolved.
