2025 News UMass Law News 2025: Mitnick Authors Guest Column Assessing Constitutionality of Executive Order on AI

Professor Eric Mitnick explains why a recent presidential executive order on artificial intelligence exceeds constitutional limits.

UMass Law Professor Eric Mitnick published a guest column in The Providence Journal on December 20, 2025, analyzing the constitutionality of a presidential executive order aimed at limiting state regulation of artificial intelligence. The order directed the Attorney General to form a task force to challenge state AI laws. 

The executive order’s legal argument is that state regulation of AI would unduly burden interstate commerce, rendering it unconstitutional under the “dormant” Commerce Clause. Alternatively, the administration claimed state attempts to regulate AI are preempted by federal law. The column described why neither claim would survive legal scrutiny.

Mitnick explained that dormant Commerce Clause challenges are almost always brought by regulated entities demonstrating actual injury, not by the federal government. A company subject to state law might press a claim, but an executive order cannot invent constitutional standing. Meanwhile, a federal preemption claim assumes the existence of federal law. However, Congress has largely chosen not to regulate AI. Mitnick described how, in the absence of federal regulation, states have historically exercised regulatory authority over emerging technologies to address concerns related to consumer protection, bias, and public safety.  

The piece argued that executive action cannot substitute for legislation and that effective national AI policy will ultimately require congressional engagement. Professor Mitnick’s guest column reflected UMass Law’s ongoing engagement with pressing questions at the intersection of technology, governance, and constitutional law.