President Trump signed an executive order December 11 threatening to withhold $42.5 billion in rural broadband funding from states with artificial intelligence laws his administration deems “onerous.” Then he directed the Justice Department to sue those states for exercising legislative authority the Constitution reserves to them.
Florida Governor Ron DeSantis responded: “An executive order doesn’t/can’t preempt state legislative action.”
The order creates an AI Litigation Task Force “whose sole responsibility shall be to challenge State AI laws inconsistent with the policy set forth in this order, including on grounds that such laws unconstitutionally regulate interstate commerce.” The Attorney General has 30 days to establish it. The Commerce Secretary has 90 days to identify which state laws warrant federal lawsuits.
Missouri’s legislature passed HB 1462 prohibiting AI from holding legal personhood. Colorado’s legislature passed SB 24-205 requiring companies to monitor AI systems for discrimination. Idaho, Utah, and Washington enacted similar laws through committee hearings, floor debates, and governor signatures.
The executive order directs federal agencies to condition discretionary grant funding on states “entering into a binding agreement with the relevant agency not to enforce any such laws during the performance period in which it receives the discretionary funding.”
Rural broadband becomes the leverage. The Broadband Equity Access and Deployment program targets Colorado’s mountain corridor, Missouri’s rural counties, Utah’s remote communities. States must choose: enforce laws their own voters passed or lose funding for unconnected rural areas.
The constitutional theory comes from venture capital firm Andreessen Horowitz, advanced in September 2025. The Center for American Progress legal analysis concluded the dormant commerce clause argument “is legally meritless” when applied to existing state AI laws. Legal scholars at LawAI reached identical conclusions analyzing the order’s November draft.
Utah Governor Spencer Cox posted December 11: “States must help protect children and families while America accelerates its leadership in AI.” Both Republican governors stated constitutional limits. Neither suggested their states should comply.
Section 8 lists exemptions: child safety protections, data center infrastructure, state government procurement. But the language exempts only laws “relating to” those topics. The Commerce Secretary determines what qualifies. White House AI czar David Sacks promised not to challenge child safety laws. The order’s text provides no such guarantee.
Democratic-led California, Colorado, and New York will continue enforcing their statutes. They understand executive orders aren’t law. Republican-led Missouri, Utah, and Florida face different pressure. Their governors recognize the constitutional problems. Party loyalty may force compliance anyway.
Congress rejected federal AI preemption three times in 2025. House Republicans proposed a 10-year moratorium on state regulation in the budget bill. The Senate stripped it 99-1. Republicans tried again in the National Defense Authorization Act. It failed again in December.
When Congress explicitly refuses to act three times, the executive branch cannot implement the same policy through executive order.
Section 9(c) of the order states it “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States.” This is standard language acknowledging executive orders cannot create legally binding obligations. The order then directs agencies to withhold funding and file lawsuits as if it could.
The proper process exists. Congress can pass legislation preempting state AI laws. That requires hearings, committee markups, floor debates, public votes. Members must defend why federal preemption serves the public interest better than state experimentation.
Executive orders bypass that process.
Missouri passed its law because the legislature determined AI shouldn’t hold legal personhood. Colorado passed its law because the legislature determined AI systems making consequential decisions about employment, housing, and healthcare should be monitored for bias. Both represent voter will expressed through elected representatives.
An executive order claiming those democratically enacted laws are “onerous” doesn’t make them unconstitutional. Courts determine constitutionality. Congress determines preemption. Executive orders do neither.
The precedent problem extends beyond artificial intelligence. If states abandon laws their own legislatures passed because an executive order threatens unrelated funding, executive authority expands at the expense of both congressional power and state sovereignty. The mechanism works identically for any policy area where Congress refuses to act and the executive branch prefers a different approach.
Republican governors already identified the constitutional problem. Democratic governors will ignore the order. The question is whether Republican-led states will defend their own legislatures’ authority or defer to party loyalty despite knowing the order lacks constitutional foundation.
States should continue enforcing their laws until courts rule otherwise or Congress legislates. When the Justice Department files lawsuits, state attorneys general should defend legislative authority. If the administration withholds BEAD funding, states should sue for violation of statutory requirements.
Executive orders are not law. The Constitution doesn’t grant presidents authority to override state legislatures when Congress refuses to preempt. Section 9(c) admits this. Governors across both parties recognize this.
States passed AI laws through democratic processes. Those laws remain valid. Acting otherwise establishes precedent that executive preference supersedes legislative deliberation whenever convenient.
That precedent is more dangerous than any state AI law Trump’s order claims to address.
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