On December 11, 2025, President Trump issued another Executive Order. This one is intended to promote “national dominance” in “a race with adversaries for supremacy.” To “win,” the Order says, AI companies should not be encumbered by state regulation. “The policy of the United States,” the Order says, is “to sustain and enhance the United States’ global AI dominance through a minimally burdensome national policy framework for AI.” It sets up an AI Litigation Task Force to challenge state AI laws that allegedly do not do that.
Excepted from the Order are state laws on child safety protections, data center infrastructure, and state government use of AI.
Which State AI Laws?
The Order speaks generally about “state AI laws,” but does not define the term. Here are some examples of state AI laws:
Stalking and Harassment
A North Dakota statute criminalizes using a robot to frighten or harass another person. It defines a robot to include a drone or other system that uses AI technology. (N.D. Cent. Code § 12.1-17-07.(1), (2)(f)). This appears to be a “state AI law.” North Dakota statutes also prohibit stalking accomplished by using either a robot or a non-AI form of technology. (N.D. Cent. Code § 12.1-17-07.1(1)(d)). Preempting this statute would produce an anomalous result. It would be a crime to stalk somebody unless you use an AI-powered device to do it.
Political Deepfakes
Several states have enacted laws prohibiting the distribution of political deepfakes to influence an election. Regulations range from a prohibition against the distribution of a deepfake to influence an election within a specified time period before the election to requiring disclosure that it is AI-generated. Minn. Stat. § 609.771 is an example of such a regulation. The need for this kind of statute was highlighted in 2024 when someone used AI to clone Joe Biden’s voice and generate an audio file that sounded like Mr. Biden himself was urging people not to vote for him.
Sexual Deepfakes
Both state and federal governments have enacted laws aimed at curbing the proliferation of “revenge porn.” The TAKE IT DOWN Act is an example. Minn. Stat. § 604.32 is another example (deepfakes depicting intimate body parts or sexual acts).
State and federal laws in this area cover much of the same ground. The principal difference is that the federal crime must involve interstate commerce; state crimes do not. The only practical effect of preemption of this kind of state AI law, therefore, would be to eliminate state prohibitions of wholly intrastate sexual deepfakes. If the Executive Order succeeds in its objectives, then state laws that prohibit the creation or distribution of sexual deepfakes wholly within the same state, as some do, would be preempted, with the result that making and distributing sexual deepfakes would be lawful so long as you only transmit it to other people in your state and not to someone in a different state.
Digital Replicas
Many states have enacted laws prohibiting or regulating the unauthorized creation and exploitation of digital replicas. The California Digital Replicas Act and Tennessee’s ELVIS Act are examples. AI is used in the creation of digital replicas. It is unclear whether these kinds of enactments are “state AI laws.” Arguably, a person could use technologies more primitive than generative-AI to create a digital image of a person. If these statutes are preempted only to the extent they apply to AI-generated digital replicas, then it would seem that unauthorized exploiters of other people’s faces and voices for commercial gain would be incentivized to use AI to engage in unauthorized commerceial exploitation of other people.
Child Pornography
Several states have either enacted laws or amended existing laws to bring AI-generated images of what look like real children within the prohibition against child pornography. See, e.g., N.D. Cent. Code § 12.1.-27.2—01. The Executive Order exempts “child safety protections,” but real children do not necessarily have to be used in AI-generated images. This kind of state statute arguably would not come within the meaning of a “child safety protection.”
Health Care Oversight
California’s Physicians Make Decisions Act requires a human person to oversee health care decisions about medical necessity. This is to ensure that medical care is not left entirely up to an AI bot. The law was enacted with the support of the California Medical Association to ensure that patients receive adequate health care. If the law is nullified, then it would seem that hospitals would be free to replace doctors with AI chatbots.
Chatbots
Some states prohibit the deceptive use of a chatbot, such as by falsely representing to people who interact with one that they are interacting with a real person. In addition, some states have enacted laws requiring disclosure to consumers when they are interacting with a non-human AI. See, e.g., the Colorado Artificial Intelligence Act.
Privacy
Some states have enacted either stand-alone laws or amended existing privacy laws to ensure they protect the privacy of personally identifiable information stored by AI systems. See, e.g., Utah Code 13-721-201, -203 (regulating the sharing of a person’s mental health information by a chatbot); and amendments to the California Consumer Privacy Act making it applicable to information stored in an AI system.
Disclosure
California’s Generative AI Training Data Transparency Act requires disclosure of training data used in developing generative-AI technology.
The Texas Responsible Artificial Intelligence Governance Act
Among other things, the Texas Responsible AI Governance Act prohibits the use of AI to restrict constitutional rights, to discriminate on the basis of race, or to encourage criminal activity. These seem like reasonable proscriptions.
Trump’s “AI czar,” venture capitalist David Sacks, has said the administration is not gong to “push back” on all state laws, only “the most onerous” ones. It is unclear which of these will be deemed “onerous.”
State AI Laws are Not Preempted
News media headlines are trumpeting that the Executive Order preempts state AI laws. This is not true. It directs this administration to try to strike down some state AI laws. It contemplates working with Congress to formulate and enact preemptive legislation. It is doubtful that a President could constitutionally preempt state laws by executive order.
Postscript
Striving for uniformity in the regulation of artificial intelligence is not a bad idea. There should be room, though, for both federal and state legislation. Rather than abolishing state laws, a uniform code or model act for states might be a better idea. Moreover, if we are going to start caring about an onerous complex of differing state laws, and feeling a need to establish a national framework, perhaps the President and Congress might wish to address the sprawling morass of privacy and data security regulations in the United States.