Federal preemption of state AI laws

Federal preemption of state AI laws refers to the effort by the United States federal government, mainly under President Donald Trump in 2025 and 2026, to override or displace the growing body of state-level artificial intelligence statutes with a single, lighter-touch national approach. The campaign moved through several distinct phases: a proposed ten-year moratorium on state AI laws that Congress twice declined to enact ^[1][4], an executive order (Executive Order 14365) signed on December 11, 2025 directing federal agencies to challenge "onerous" state laws ^[6], the creation of a Department of Justice AI Litigation Task Force in January 2026 ^[11], the first federal court intervention against a state AI law (Colorado) in April 2026 ^[13], and a non-binding "National Policy Framework for Artificial Intelligence" released in March 2026 asking Congress to legislate broad preemption ^[16]. Because the United States Constitution gives Congress, not the president, the authority to preempt state law, the executive-branch route has drawn sustained constitutional objections and a bipartisan backlash from state attorneys general and governors ^[5][7]. As of mid-2026 no statute preempting state AI laws had been enacted, and the executive order carried no preemptive force of its own; the sole federal test case ended when Colorado's own legislature narrowed the law it targeted ^[14][26].

What are state AI laws, and why is there a "patchwork"?

In the absence of comprehensive federal AI regulation, individual states became the primary engines of AI governance in the United States. Industry groups and the Trump administration describe the result as a "patchwork" of inconsistent rules that raises compliance costs and threatens American competitiveness. Executive Order 14365 frames the problem as "a patchwork of 50 different regulatory regimes that makes compliance more challenging, particularly for start-ups." ^[6] Reporting in 2025 and 2026 noted that all 50 states introduced at least one AI-related bill, and trackers counted well over 1,000 AI bills nationwide ^[19]. By mid-2026 dozens of states had enacted AI-related statutes; one tally counted 109 AI laws across 29 states, with activity concentrated in child safety, data centers, and consumer protection ^[25].

A handful of states enacted substantive, binding obligations. The Colorado AI Act (SB 24-205), signed in May 2024, was widely described as the first comprehensive, risk-based AI accountability law in the country; it required developers and deployers of "high-risk" AI systems to use reasonable care to protect consumers from algorithmic discrimination ^[20]. Its effective date was repeatedly pushed back, eventually to June 30, 2026. California enacted the Transparency in Frontier Artificial Intelligence Act (California SB 53) in September 2025, imposing risk-management disclosure, safety-incident reporting, and whistleblower protections on the largest frontier developers (those with annual revenue above $500 million); it took effect January 1, 2026 ^[20]. This followed California's high-profile SB 1047, a more sweeping frontier-safety bill that Governor Gavin Newsom had vetoed in 2024. Texas adopted the Responsible Artificial Intelligence Governance Act (Texas TRAIGA, HB 149), effective January 1, 2026, which barred certain intentional misuses and created a regulatory sandbox ^[20]. New York advanced the Responsible AI Safety and Education Act (New York RAISE Act), focused on frontier-model safety disclosures and incident reporting. Utah and other states added narrower disclosure and consumer-protection rules. It was this body of differing, mostly recent state law that the federal preemption effort set out to displace.

Why did the federal AI moratorium fail in Congress?

The first federal vehicle was legislative. The version of the 2025 budget reconciliation package passed by the U.S. House of Representatives on May 22, 2025, commonly called the One Big Beautiful Bill Act, contained a provision that would have imposed a ten-year moratorium barring states from enforcing any law or regulation affecting AI models, AI systems, or automated decision systems ^[3].

The moratorium collapsed in the Senate. Senators Marsha Blackburn (R-Tennessee) and Maria Cantwell (D-Washington), joined by Senator Ed Markey (D-Massachusetts), backed an amendment to strike the provision, and in an overnight "vote-a-rama" the Senate voted 99 to 1 to remove it on July 1, 2025 ^[1][2]. The lone vote against removal came from Senator Thom Tillis (R-North Carolina) ^[2]. President Trump signed the reconciliation bill into law on July 4, 2025 with no restriction on state AI legislation ^[3]. The proposal had drawn opposition from across the spectrum, including a bipartisan coalition of 36 state attorneys general, led by New York Attorney General Letitia James, who wrote to congressional leaders on November 25, 2025 (after an earlier letter from a 40-attorney-general group) ^[5], and a group of 17 Republican governors led by Arkansas Governor Sarah Huckabee Sanders ^[23].

Congress declined a second time later in 2025. A proposed AI moratorium was floated for the Fiscal Year 2026 National Defense Authorization Act, but on December 7, 2025 House and Senate negotiators released a compromise NDAA without any language blocking state AI laws ^[4]. Having failed in Congress twice, the administration turned to executive action.

What does the December 2025 executive order (EO 14365) do?

On December 11, 2025, President Trump signed Executive Order 14365, titled "Ensuring a National Policy Framework for Artificial Intelligence." ^[6] The order declares that "it is the policy of the United States to sustain and enhance the United States' global AI dominance through a minimally burdensome national policy framework for AI." ^[6] Rather than preempting state law directly, which the president cannot do unilaterally, the order directed a coordinated, multi-agency campaign to undermine state AI laws through litigation, agency reinterpretation, conditional federal funding, and a request for future legislation ^[8][10]. White House AI and crypto adviser David Sacks framed the goal narrowly, saying the administration would "push back on the most onerous examples of state regulations" while leaving child-safety rules in place ^[7].

The order assigned specific tasks and deadlines:

• Section 3 directed the Attorney General, within 30 days, to establish an AI Litigation Task Force to challenge state AI laws in federal court ^[6].
• Section 4 directed the Secretary of Commerce, within 90 days, to publish an evaluation identifying "onerous" state AI laws that conflict with federal policy, flagging in particular laws that require AI models to alter "truthful" outputs or that compel disclosures that might violate the First Amendment ^[8].
• Section 5 directed Commerce, within 90 days, to issue a policy notice making states with such laws ineligible for certain broadband funds "to the maximum extent allowed by Federal law." ^[6]
• Sections 6 and 7 directed the Federal Communications Commission to consider a federal AI reporting standard that could preempt state requirements, and the Federal Trade Commission to consider using the FTC Act's deception authority against state laws compelling allegedly false AI outputs ^[8].
• Section 8 directed the Special Advisor for AI and Crypto and the Assistant to the President for Science and Technology to jointly prepare a legislative recommendation establishing a uniform federal framework that would preempt conflicting state laws ^[10].

The order identified three legal theories for challenging state laws: that they unconstitutionally regulate interstate commerce, that they are preempted by existing federal regulation, or that they are "otherwise unlawful" in the Attorney General's judgment ^[8][10].

What is the National Policy Framework, and what is the DOJ AI Litigation Task Force?

The executive order's litigation arm took shape quickly. On January 9, 2026, Attorney General Pam Bondi issued a memorandum to the Department of Justice formally establishing the AI Litigation Task Force, to be led by Bondi or her appointee and staffed from the Civil Division, the Solicitor General's office, and the offices of the Deputy and Associate Attorney General, in consultation with Sacks ^[11]. The task force was charged with challenging state AI laws on the three grounds named in the order, including the dormant Commerce Clause and federal preemption ^[11][12].

The first concrete action followed in April 2026 and centered on Colorado. On April 9, 2026, Elon Musk's xAI, developer of the Grok chatbot, filed suit (xAI v. Weiser) in the U.S. District Court for the District of Colorado against Colorado Attorney General Philip Weiser to enjoin the Colorado AI Act, arguing it compelled speech and discriminated by content and viewpoint in violation of the First Amendment, impermissibly burdened interstate commerce, was unconstitutionally vague, and violated equal protection ^[14]. On April 24, 2026, the DOJ moved to intervene in support of xAI, filing its own complaint alleging the law violated the Fourteenth Amendment's Equal Protection Clause by compelling and authorizing discrimination based on protected characteristics; it was the first time the federal government sought to invalidate a state AI law ^[13][15]. The same day, xAI and the Colorado Attorney General jointly moved to suspend enforcement pending the legislature's 2026 session and a ruling on a preliminary injunction; the court granted that motion on April 27, 2026, temporarily halting enforcement ^[14]. Colorado's legislature then passed SB 26-189, repealing and replacing the AI Act with a narrower regime governing automated decision-making technology (ADMT). The new law drops the original duty of care to protect consumers from algorithmic discrimination in favor of notice, disclosure, consumer-rights, and record-retention requirements, and takes effect January 1, 2027 ^[21]. Governor Jared Polis signed it on May 14, 2026 ^[21].

Separately, the administration delivered the legislative proposal contemplated by the order. On March 20, 2026, the White House released its National Policy Framework for Artificial Intelligence, a set of recommendations urging Congress to enact broad federal preemption of state AI laws deemed unduly burdensome or inconsistent with federal policy, and to bar states from regulating AI model development or imposing liability on developers for third parties' unlawful use of their systems ^[16][17]. The framework was explicitly not binding; commentators described it as a legislative blueprint rather than enacted law ^[16]. It preserved several categories of state authority, including generally applicable laws (fraud, consumer protection, and child safety), state procurement and zoning powers, and a state's governance of its own use of AI ^[16]. Notably, it did not call for a new federal AI regulator, favoring oversight through existing agencies, sector-specific rules, and industry-led standards ^[17].

How does the order use broadband funding as leverage?

The most contested tool in the December order was financial: conditioning federal broadband money on a state's AI laws. The Broadband Equity, Access, and Deployment (BEAD) program, created in the 2021 infrastructure law, totals roughly $42.45 billion ^[24]. The order targeted "non-deployment" funds (money for activities such as digital-literacy and workforce programs rather than physical network buildout), which a 2025 administration restructuring had left as roughly $21 billion outside the core state allocations ^[24]. Section 5 instructed the National Telecommunications and Information Administration (NTIA), led by Administrator Arielle Roth, to issue a notice making states with "onerous" AI laws ineligible for those funds ^[24]. The Commerce Department evaluation of "onerous" laws that would trigger the funding cutoff, due within roughly 90 days of the order (about March 11, 2026), had not been publicly released as of late March 2026, leaving the enforcement posture uncertain ^[26].

The legal vulnerability of this approach drew immediate attention. As analysts at Lawfare noted, the BEAD statute is about deploying broadband and connecting locations and never mentions AI, which exposes the strategy to the major-questions doctrine and to federalism clear-statement rules requiring that grant conditions and any displacement of traditional state authority be unambiguous ^[18]. Under the Spending Clause framework of South Dakota v. Dole, conditions must relate to the federal interest in the funded program, a "relatedness" hurdle the AI condition may not clear ^[18]. Coercion was viewed as a weaker objection, since the sums at stake represent only about 2 to 3 percent of most state budgets, below the threshold the Supreme Court flagged in NFIB v. Sebelius ^[18]. The leverage also met bipartisan political resistance: Commerce Secretary Howard Lutnick told Congress in February 2026 that states would keep their full BEAD allocations "in accordance with federal law," saying "We will hew to the law for sure," while conceding he was "not sufficiently familiar" with how the order squared with BEAD law ^[19]. Democratic governors, including Illinois Governor JB Pritzker, publicly pressed for the release of frozen broadband funds ^[19].

Can a president preempt state law? Reception and legal questions

The preemption campaign split along industry-versus-states lines rather than cleanly by party. Major AI firms and some venture investors backed a single national standard, arguing the patchwork is unworkable for companies operating nationwide ^[19]. Opposition was unusually bipartisan. The 99-to-1 Senate vote, the 36-attorney-general letter, and the GOP-governor letter signaled that a sweeping federal override was politically difficult, and several Republican governors, including Sanders, Ron DeSantis of Florida, and Spencer Cox of Utah, objected on states-rights grounds ^[23]. DeSantis publicly observed that Congress could preempt states through legislation but suggested an executive order alone could not. State attorneys general also pushed back at the agency level, with a bipartisan group of 23 filing comments on December 17, 2025 opposing FCC preemption of state AI laws ^[9].

In Congress, opponents moved to reverse the order directly. In March 2026, a group of House Democrats led by Representative Don Beyer of Virginia, with a Senate companion from Senator Brian Schatz of Hawaii, introduced the GUARDRAILS Act (Guaranteeing and Upholding Americans' Right to Decide Responsible AI Laws and Standards), which would repeal Executive Order 14365 and block its funding conditions from taking effect ^[22].

The central legal question is structural: only Congress can preempt state law, so an executive order cannot itself nullify a state statute ^[8]. The order's force therefore depends on winning lawsuits, persuading agencies to act, and surviving challenges to the funding conditions. Each theory faces obstacles. The dormant Commerce Clause argument is complicated by National Pork Producers Council v. Ross (2023), in which the Supreme Court declined to strike a nondiscriminatory state law merely because it forced out-of-state businesses to change practices ^[10]. The First Amendment theory, aimed at laws touching AI "outputs," is novel and untested ^[10]. And the BEAD funding strategy confronts the statutory and Spending Clause problems described above ^[18]. Law-firm analyses broadly predicted the order would be litigated and that its practical effect on most state laws would be limited unless Congress acts ^[8][10]. The net result through mid-2026 was an unresolved standoff: state laws remained on the books (Colorado's a partial exception, narrowed by its own legislature), the federal government had opened a single test case, and the durable question of nationwide preemption sat with Congress, which had so far declined to answer it ^[26].

Timeline of key actions

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Related: AI regulation, AI executive order, AI Action Plan, export controls.

References

1. "Senate Strikes AI Moratorium from Budget Reconciliation Bill in Overwhelming 99-1 Vote." U.S. Senate Committee on Commerce, Science, and Transportation, July 1, 2025. https://www.commerce.senate.gov/2025/7/senate-strikes-ai-moratorium-from-budget-reconciliation-bill-in-overwhelming-99-1-vote/8415a728-fd1d-4269-98ac-101d1d0c71e0 ↩
2. "Senate pulls AI regulatory ban from GOP bill after complaints from states." PBS News, July 1, 2025. https://www.pbs.org/newshour/politics/senate-pulls-ai-regulatory-ban-from-gop-bill-after-complaints-from-states ↩
3. "Federal AI Moratorium Dies on the Vine as Senate Passes the One Big Beautiful Bill Act." Goodwin, July 2025. https://www.goodwinlaw.com/en/insights/publications/2025/07/alerts-practices-aiml-federal-ai-moratorium-dies-on-the-vine ↩
4. "State AI law moratorium omitted from 2026 defense bill, but Trump is preparing 'ONE RULE' executive order." StateScoop, 2025. https://statescoop.com/state-ai-law-moratorium-omitted-2026-defense-bill-trump-eo/ ↩
5. "Bipartisan Coalition of 36 State Attorneys General Opposes Federal Ban on State AI Laws." National Association of Attorneys General, November 25, 2025. https://www.naag.org/press-releases/bipartisan-coalition-of-36-state-attorneys-general-opposes-federal-ban-on-state-ai-laws/ ↩
6. "Ensuring a National Policy Framework for Artificial Intelligence" (Executive Order 14365). The White House, December 11, 2025. https://www.whitehouse.gov/presidential-actions/2025/12/eliminating-state-law-obstruction-of-national-artificial-intelligence-policy/ ↩
7. "Trump is trying to preempt state AI laws via an executive order. It may not be legal." NPR, December 11, 2025. https://www.npr.org/2025/12/11/nx-s1-5638562/trump-ai-david-sacks-executive-order ↩
8. "Unpacking the December 11, 2025 Executive Order: Ensuring a National Policy Framework for Artificial Intelligence." Sidley Austin LLP, December 2025. https://www.sidley.com/en/insights/newsupdates/2025/12/unpacking-the-december-11-2025-executive-order ↩
9. "Trump Attempts to Preempt State AI Regulation Through Executive Order." Ropes & Gray LLP, December 2025. https://www.ropesgray.com/en/insights/alerts/2025/12/trump-attempts-to-preempt-state-ai-regulation-through-executive-order ↩
10. "President Trump's Latest Executive Order on AI Seeks to Preempt State Laws." Gibson Dunn, December 2025. https://www.gibsondunn.com/president-trump-latest-executive-order-on-ai-seeks-to-preempt-state-laws/ ↩
11. "Navigating the Emerging Federal-State AI Showdown: DOJ Establishes AI Litigation Task Force." BakerHostetler, January 2026. https://www.bakerlaw.com/insights/navigating-the-emerging-federal-state-ai-showdown-doj-establishes-ai-litigation-task-force/ ↩
12. "DOJ creates task force to challenge state AI regulations." CBS News, January 2026. https://www.cbsnews.com/news/doj-creates-task-force-to-challenge-state-ai-regulations/ ↩
13. "Justice Department Intervenes in xAI lawsuit Challenging Colorado's Algorithmic Discrimination Law." U.S. Department of Justice, April 24, 2026. https://www.justice.gov/opa/pr/justice-department-intervenes-xai-lawsuit-challenging-colorados-algorithmic-discrimination ↩
14. "X.AI sues, DOJ intervenes, enforcement of Colorado's AI Act suspended." Norton Rose Fulbright, 2026. https://www.nortonrosefulbright.com/en-us/knowledge/publications/de3ad9de/xai-sues-doj-intervenes-enforcement-of-colorado-ai-act-suspended ↩
15. "Justice Department joins xAI challenge to Colorado AI law." Axios, April 24, 2026. https://www.axios.com/2026/04/24/justice-department-joins-xai-challenge-colorado-ai-law ↩
16. "White House Releases a National Policy Framework for Artificial Intelligence." Holland & Knight, March 2026. https://www.hklaw.com/en/insights/publications/2026/03/white-house-releases-a-national-policy-framework-for-artificial ↩
17. "White House AI Framework Puts Federal Preemption at the Center of the Debate." Morgan Lewis, March 2026. https://www.morganlewis.com/pubs/2026/03/white-house-ai-framework-puts-federal-preemption-at-the-center-of-the-debate ↩
18. "The AI Preemption Executive Order's BEAD Strategy Faces Steep Legal Hurdles." Lawfare, 2026. https://www.lawfaremedia.org/article/the-ai-preemption-executive-order-s-bead-strategy-faces-steep-legal-hurdles ↩
19. "Companies face compliance limbo as Trump administration targets state AI laws." S&P Global Market Intelligence, March 2026. https://www.spglobal.com/market-intelligence/en/news-insights/articles/2026/3/companies-face-compliance-limbo-as-trump-administration-targets-state-ai-laws-99326115 ↩
20. "New State AI Laws are Effective on January 1, 2026, But a New Executive Order Signals Disruption." King & Spalding, December 2025. https://www.kslaw.com/news-and-insights/new-state-ai-laws-are-effective-on-january-1-2026-but-a-new-executive-order-signals-disruption ↩
21. "SB26-189 Automated Decision-Making Technology." Colorado General Assembly, 2026. https://leg.colorado.gov/bills/sb26-189 ↩
22. "Text - H.R.8031 - GUARDRAILS Act." 119th Congress (2025-2026), Congress.gov, March 2026. https://www.congress.gov/bill/119th-congress/house-bill/8031/text/ih ↩
23. "Sanders Leads Republican Governors to Call on Congress to Remove AI Regulatory Moratorium from One, Big, Beautiful Bill." Office of Arkansas Governor Sarah Huckabee Sanders, 2025. https://governor.arkansas.gov/news_post/sanders-leads-republican-governors-to-call-on-congress-to-remove-ai-regulatory-moratorium-from-one-big-beautiful-bill/ ↩
24. "White House Issues Order Pledging to Withhold BEAD Funds From States With 'Onerous' AI Laws." Broadband Breakfast, December 2025. https://broadbandbreakfast.com/white-house-issues-pledges-to-withhold-bead-funds-from-states-with-onerous-ai-laws/ ↩
25. "Where State AI Legislation Stands Half Way Into 2026." Tech Policy Press, 2026. https://www.techpolicy.press/where-state-ai-legislation-stands-half-way-into-2026/ ↩
26. "Examining the Landscape and Limitations of the Federal Push to Override State AI Regulation." Ropes & Gray LLP, March 2026. https://www.ropesgray.com/en/insights/alerts/2026/03/examining-the-landscape-and-limitations-of-the-federal-push-to-override-state-ai-regulation ↩