In today’s column, I examine how federal AI laws are at times being devised to overrule various state AI laws. I will walk you through a recently drafted legislative proposal that aims to have Congress regulate AI foundational models or so-called frontier AI, including specifically including elements that overtly seek to override state AI laws in that same realm (referred to as preemption).
One strident viewpoint is that it makes perfectly good sense that if Congress passes an AI law, this should override pertinent state-level AI laws that are covering the same landscape. It would be confusing if there were an overarching federal AI law and conflicting state-level AI laws that persisted at the same time. The U.S. Constitution contains the Supremacy Clause (Article VI, Clause 2), setting forth that federal laws are essentially the supreme “Law of the Land” and have priority over state laws. But worries are that the state-level AI laws that are overridden provide protections or advantages that an overriding federal AI law lacks. The quickly evolving policy battles over AI laws are heating up, and a huge legal mess is brewing.
Let’s talk about it. This analysis of AI breakthroughs is part of my ongoing Forbes column coverage on the latest in AI, including identifying and explaining various impactful AI complexities (see the link here).
AI And The Law
As a quick background, I’ve been extensively covering and analyzing a myriad of facets regarding the intersection of AI and the law for many years. You can find my writings not only in my Forbes column but also as posted in Bloomberg Law, ABA Law Journal, The National Jurist, The Global Legal Post, Lawyer Monthly, The Legal Technologist, MIT Computational Law Journal, and so on.
There are two major perspectives on the mixture of AI and law:
- (1) Law & AI. The application of laws to the governance and regulation of AI.
- (2) AI & Law. The application of AI to perform legal reasoning.
Thus, you can apply the law to AI, and conversely, you can apply AI to the law. For my big picture overview of both of these exciting and rapidly evolving realms, see my discussion at the link here and the link here.
When it comes to applying the law to AI, the aim is to establish suitable regulations and provide appropriate governance on how AI should be devised and implemented. There are longstanding concerns that AI makers aren’t giving due attention to the ethical ramifications of their wares. Ethical issues are construed as “soft laws” and aren’t as formidable as legally enacted laws, known as “hard laws”. To level the playing field and keep AI makers on the up-and-up, some believe that we need more AI laws.
On the other side of the coin is the application of AI to the law. This consists of using AI to aid legal activities. Lawyers tap into the latest AI to devise legal strategies, brainstorm to find creative legal arguments, draft court filings, and prepare for cases by having the AI pretend to be an able adversary. For my extensive coverage on AI for legal reasoning (AILR), see the link here.
The Current Situation Legally
In terms of the AI laws in the United States, they have not yet stood the test of time, meaning that we won’t really know how well they stand up until there are court cases that test these new laws. It is too early to know whether the laws will survive legal battles waged by AI makers and other contenders. Just because AI laws are enacted does not mean they are proper. All sorts of improper provisions and constitutionally contentious stipulations are undoubtedly buried within these shiny new AI laws.
Congress has repeatedly waded into establishing an overarching federal law that would encompass AI. So far, no dice. The efforts have ultimately faded from view. Thus, at this time, there isn’t an overarching federal law devoted to these controversial AI matters. The big question will be to what degree a sweeping federal law would impact the numerous state-level AI laws. The odds are that many state-level laws would run afoul of a federal mandate, and a tsunami of legal cases would arise as a tussle between federal and state law is undertaken. It surely will be a legal mess.
The crux is that there is intense and pervasive interest in using the law to govern AI. It is an abundantly burgeoning realm. AI companies would be wise to keep a close eye on what is happening in the hallways and byways of regulators and legislative bodies. I have repeatedly noted that a profitable specialty for budding lawyers is to consider concentrating on the exciting and dynamic field of AI and the law; see my predictions and suggestions at the link here.
Difficulties Aplenty
You can likely envision the challenges of the legal landscape governing AI.
Each state does its own thing. The AI laws in some states are poorly specified and legally ambiguous. States are also amending their AI laws that they previously thought were perfect. Other states that haven’t been enacting AI laws are opting to jump into the waters with both feet. They might borrow wording from other states, change it up, and put it into their legal books. Estimates suggest that there are well over 1,000 AI-related bills and laws that are in some form of consideration at the state level, ranging from pending status to actual enactment.
I’ve been extensively analyzing and explaining the disparate and at times conflicting state-level AI laws; see the link here. There are plenty of downsides to this situation. Plus, the matter is worsening. Public interest in AI laws is heightening. State-level lawmakers are becoming more familiar with AI and are joining the bandwagon on laws about AI. All told, a grand convergence is taking place toward a veritable tsunami of new AI laws across all 50 states.
Overriding The States AI Laws
As earlier noted, the question of conflicts between federal laws and state-level laws is a longstanding issue that our nation’s founders realized was undoubtedly going to be a recurring challenge. That’s why the U.S. Constitution contains the Supremacy Clause. To this day, the struggle between federal laws and state-level laws continues. It is a sore topic that will never be entirely settled.
By and large, if a federal law and a state-level law conflict, the federal law is supposed to prevail, including that state courts must enforce it. The beauty of this is that a federal law provides uniformity across the entire U.S., and the states are not supposed to undermine federal authority in that regard. The downside is that a state might believe its law is better than the federal law and be upset that they must begrudgingly settle for what they perceive as a lesser or worse law.
Many court cases have been waged on the federal versus state semblance of preemption. There are a myriad of legal subtleties and nuances that enter the matter. You might be thinking it should be straightforward. Sorry, that’s abundantly not the way things seem to work. One perspective is that AI laws should be shaped based on a “federal floor, state ceiling” approach; see my analysis at the link here.
Major Types Of Preemption
Preemption can be divided into five major types:
- (1) Express preemption. This preemption is when Congress has explicitly stated or expressed in a law that the law supersedes state law. It is a direct callout. A state can try to fight this by claiming that an alleged conflict does not exist.
- (2) Implied preemption. This preemption is when the scope of a federal law leaves no space for a possibly conflicting state regulation and, by implication, therefore supersedes state law. A state can try to argue that its state law is not within the scope of the federal law and therefore stands outside of that law.
- (3) Conditional Preemption. This preemption occurs when a federal law provides that an otherwise preempted state-level law can coexist under specified circumstances, such as when a certain time period expires, allowing states to proceed with their own similar law (variously known as a sunset clause).
- (4) Field preemption. This preemption is when federal law overwhelmingly inundates or dominates a particular regulatory field, making state regulation nearly impossible. This is rarer than the first three types of preemption.
- (5) Conflict preemption. This preemption is when federal law and a state law impose contradictory or conflicting requirements on the same party. Again, this is relatively rare in comparison to the first three types of preemption.
The usual rule of thumb is to be especially on the lookout for either explicit or implied preemption. If a federal law comes along after any potentially conflicting state-level laws already exist, the odds are that the federal law will probably go the route of explicit preemption. The federal lawmakers are trying to make clear that they know there are state-level laws out there and that the federal law is intending to preempt them.
If a federal law comes before any potentially conflicting state-level laws exist, there might not be an explicit preemption, simply due to not having already observed a potential state-level conflict. In that case, the implied preemption might get involved. That isn’t always the case, and a federal law might be written in anticipation that such conflicts by the states are coming down the pike.
Federal Proposed AI Law
Let’s go ahead and explore an example of preemption when it comes to AI laws. I will start by sharing with you a recently proposed federal AI law and indicate how the explicit preemption contained therein will almost surely and immediately raise conflict with at least one state-level AI law.
First, in Congress, Representative Lori Trahan (D-MA) and Representative Jay Obernolte (R-CA) have recently made available their latest draft of a proposed AI legislative bill known as the FRONTIER Act. The name of the Act is described this way: “This Act may be cited as the ‘Frontier Risk Oversight, National Transparency, Independent Evaluation, and Reporting Act’ or the ‘FRONTIER Act’.” The overall stated purpose of the Act is this: “To provide for Federal oversight of the development and deployment of frontier artificial intelligence in interstate and foreign commerce, and for other purposes.”
There is legal language in the FRONTIER Act associated with preempting state-level AI laws. Specifically, Section 9 is labeled as “Relationship to State Laws” and makes this overarching stipulation regarding preemption:
- “Preemption. Except as provided in subsection (c), no State or political subdivision of a State may adopt or enforce any law, regulation, order, or other requirement that imposes new substantive obligations on artificial intelligence developers with respect to any Covered Subject Area.”
The reference to subsection “c” consists of various carve-outs that are being explicitly indicated as not covered by the preemption. For example, states that adopt AI laws about the protection of minors from harm are not considered a conflicting facet.
You might say that this is helpful to have a preemption specify carve-outs. It can be, but it can also muddy the waters. A state-level AI law might be written to try and squeeze into a carve-out while also veering into conflicting territory, doing so to try and ride a wave delicately of not having their AI law otherwise get preempted. The point being that additional legal wrangling can take place. It is a darned if you do, darned if you don’t type of circumstance.
The Covered Subject Area
Since the preemption mentions “Covered Subject Area”, we need to see what this is defined as, which will reveal the scope of the preemption. The definition in the Act of Covered Subject Areas encompasses: (1) Frontier AI risk transparency, (2) Frontier AI third-party auditing and independent verification, and (3) Frontier AI incident reporting. The legal language is lengthy — I don’t have the space here to fully cite it. You are certainly encouraged to read the bill to see the specifics.
By and large, many of the types of legal provisions that any state-level AI law might identify as associated with frontier AI are going to be in some degree of conflict with the federal Act as currently drafted. You see, nearly any state-level AI law about frontier AI would end up regulating transparency aspects, auditing aspects, and reporting aspects. It is hard to imagine a state-level AI law on frontier AI that completely kept those integral aspects out of its scope.
Example Of State AI Law
There is already an existing state-level AI law about frontier AI that would seem to be encompassed by this preemption. In California, there is SB53 referred to as the “Transparency in Frontier Artificial Intelligence Act,” which was signed into law on September 29, 2025 (see my analysis of this relatively new AI law at the link here).
Per the legislative description of SB53:
- “This bill enacts the Transparency in Frontier Artificial Intelligence Act (TFAIA) that would, among other things related to ensuring the safety of a foundation model, as defined, developed by a frontier developer, require a large frontier developer to write, implement, and clearly and conspicuously publish on its internet website a frontier AI framework that applies to the large frontier developer’s frontier models and describes how the large frontier developer approaches, among other things, incorporating national standards, international standards, and industry-consensus best practices into its frontier AI framework.”
In my layman’s opinion, the TFAIA seems substantially similar to the FRONTIER Act. Thus, the question arises of how much of the TFAIA would be considered preempted by the passage of the FRONTIER Act. There is a lot of overlap, but there are aspects in one that aren’t in the other. Would the segments in TFAIA that aren’t seemingly covered in FRONTIER be construed as still in existence if FRONTIER were passed?
Preemption Scope Question
An example of a no-man’s-land consideration would be that TFAIA has a whistleblower provision that isn’t in FRONTIER. The TFAIA provision indicates that if someone working for the AI maker suspects that the AI or the AI maker is potentially violating the TFAIA, this poses a possible concern, and a disclosure should be made. To help encourage whistleblowers to come forward, the TFAIA law codifies certain protections for them, as noted in this passage:
- “A frontier developer shall not make, adopt, enforce, or enter into a rule, regulation, policy, or contract that prevents a covered employee from disclosing, or retaliates against a covered employee for disclosing, information to the Attorney General, a federal authority, a person with authority over the covered employee, or another covered employee who has authority to investigate, discover, or correct the reported issue, if the covered employee has reasonable cause to believe that the information discloses either of the following: (1) The frontier developer’s activities pose a specific and substantial danger to the public health or safety resulting from a catastrophic risk.”
The FRONTIER Act is silent on the topic of whistleblowers. There is no mention of whistleblowers. The assumption would naturally be, therefore, that whistleblowers do not have any particular protections associated with the FRONTIER Act.
The Legal Conundrum
An interesting legal question would be whether the whistleblower provision of TFAIA could still stand, even if the preponderance of the rest of the state-level AI law was considered preempted. One viewpoint is that yes, the whistleblower portion is fine since the federal AI law doesn’t touch that topic.
A counterview is that the whistleblower portion is contained within a state-level AI law that is otherwise preempted, and that trying to cherry-pick portions is fraught with problems. The whole kit-and-caboodle is out. A counter to that counter is that since the federal AI law indicates exceptions are allowed, this suggests that the whistleblower portion is good to proceed. The counter to that counter of a counter is that since the federal AI law doesn’t name whistleblowers as an allowed exception, it cannot stand.
The AI Laws Battle
The rapid advance and increasing pervasiveness of AI is spurring efforts to craft AI laws at the federal and state levels. This is already butting up against the now-classic debate over the priority of federal versus state laws. Some states are going to be furious when federal AI law preempts their state-level AI law. Others might be accepting if the federal AI law is at least on par with their state-level AI law.
You can see how people get upset about these sobering matters. Federal AI law is best, some proclaim. State-level AI law is better, others declare. There is no magic wand or miracle that is going to settle these contrasting viewpoints. It is going to be a long, slow legal slugfest.
A final thought for now. The famous U.S. Supreme Court Justice Thurgood Marshal made this remark about the law: “The process of democracy is one of change. Our laws are not frozen into immutable form; they are constantly in the process of revision in response to the needs of a changing society.” That is an omniscient prediction for what is going to happen during the establishment and evolution of AI laws in our country.
