Why Trump's AI executive order could crumble in court

• It calls on Trump's AI advisers to put together a legislative framework that Congress can get over the finish line.
• But any enforcement of the order could further antagonize lawmakers on the Hill, who are skeptical of the administration's aggressive stance and long gridlocked on tech policy.

Friction point: The order could immediately face legal hurdles around separation of powers as the president tries to override states without explicit congressional authorization.

• The executive order aims to gut state AI laws by launching legal challenges through a new "AI Litigation Task Force" and conditioning federal grants on compliance. It's not yet clear how any of those processes will work in practice.

The order relies on the Dormant Commerce Clause, a doctrine that prohibits states from enacting laws that unduly burden interstate commerce.

• "The core of the dormant commerce clause argument they seem to have in mind requires discrimination by one state against other states — laws designed to benefit in-state companies at the expense of out-of-state companies," Jed Stiglitz, director of the Center for Law and AI at Cornell University, said in an email.
• Stiglitz wrote that it's "difficult" to see discrimination as the purpose behind state regulations that are "driven by concerns such as public safety, consumer protection, and bias."

It also threatens to withhold internet access grants as leverage for a potentially unrelated AI policy goal — a strategy that could clash with the Constitution's Spending Clause, which gives Congress, not the executive branch, the power to allocate funds, per legal experts.

• The First Amendment could also become an issue, as the order takes aim at laws that infringe on "truthful outputs," a content-based regulation.

The order also directs agencies to take actions that could go beyond their statutory authority, legal experts note.

• For example, it directs the Federal Trade Commission to preempt state laws through the FTC Act's prohibition on deceptive commercial practices, when Congress has not granted that authority.

• It also directs the Federal Communications Commission to take a role over AI when it historically is a telecom agency.
• "People have been trying to shoehorn pretty expansive legal theories into [the FTC Act] the last few generations and they typically fail," Americans for Responsible Innovation's Doug Calidas said during a webinar hosted by the tech advocacy group.

Between the lines: The executive order singles out Colorado's algorithmic discrimination law.

• "I'm not concerned about the recent executive order because it doesn't apply against the states directly, and I don't think we're going to be doing anything that would even give rise to a Dormant Commerce Clause lawsuit from [the Justice Department]," Florida Gov. Ron DeSantis said during a roundtable on Monday.
• If there was a lawsuit, DeSantis said, "I'm confident that we'd be able to win that, because clearly we're legislating within the confines of our 10th Amendment rights as states."

The bottom line: Both Republican and Democratic local lawmakers say they have no plans to stop passing AI laws, so how effective the executive order will be is up to the interpretation of the courts for now.