2025 news
Guest column written by Mitnick evaluating the constitutionality of the Executive Order on AI
Professor Eric Mitnick explains why recent executive orders on artificial intelligence exceed constitutional limits.
Massachusetts law professor Eric Mitnick published a guest column in the Providence Journal on December 20, 2025, analyzing the constitutionality of an executive order aimed at limiting state regulation of artificial intelligence. The order directed the attorney general to form a task force to challenge the state’s AI law.
The executive order’s legal argument is that state regulation of AI would place an undue burden on interstate commerce and would be unconstitutional under the “dormant” Commerce Clause. Alternatively, the government argued that state attempts to regulate AI would be preempted by federal law. In my column, I explained why neither argument stands up to legal scrutiny.
Mitnick explained that challenges to the Dormant Commerce Clause are most often brought by the regulated entity doing the actual harm, rather than the federal government. Businesses covered by state law may sue, but they cannot manufacture constitutional status through executive orders. Federal preemption claims, on the other hand, presuppose the existence of federal law. But Congress has largely chosen not to regulate AI. Mitnick explained how states have historically exercised regulatory authority over emerging technologies to address consumer protection, bias, and public safety concerns in the absence of federal regulation.
In this article, we argued that executive action is no substitute for law and that effective national AI policy ultimately requires Congressional involvement. Professor Mitnick’s guest column reflects Massachusetts Law School’s continued commitment to pressing issues at the intersection of technology, governance, and constitutional law.
