President Trump can preempt state regulation of artificial intelligence and autonomous vehicles.
President Donald J. Trump has ordered federal agencies to eliminate 10 rules for every new rule issued. He has issued many executive orders that are intended to make it much easier for agencies to rescind rules to further his deregulatory agenda. In anticipation of state attempts to fill regulatory voids, he has issued several executive orders that direct agency officials to “take all appropriate action to stop the enforcement of” disfavored state regulatory actions that “may be preempted” by federal law.
I have explained in another essay why I am skeptical that President Trump can achieve his stated goals by rescinding rules, and agencies cannot preempt state rules by doing nothing. He can further his deregulatory agenda, however, by instructing agencies to issue federal rules that preempt state rules in contexts in which some regulation is both essential and inevitable. That approach has the potential to eliminate fifty rules for every new rule that a federal agency issues.
Two emerging technologies illustrate this method of dramatically reducing regulation. Autonomous vehicles and artificial intelligence (AI) have the potential to improve the performance of the economy and the quality of life of Americans. The potential benefits of each are enormous, but each also creates serious risks of unintended adverse effects. Given its aversion to regulation, the Trump Administration will be tempted to refrain from regulating either autonomous vehicles or AI. It should resist that temptation and propose reasonable rules to govern both.
Both autonomous vehicles and AI will be regulated. If the federal government declines to regulate them, states will fill the resulting void. The outcome would be a chaotic combination of inconsistent rules that would severely impair efforts to facilitate the use of AI and autonomous vehicles.
The Trump Administration’s efforts to stop that development by preempting all state regulation of AI and autonomous vehicles have no chance of success, as indicated by the federal government’s recent unsuccessful attempt to pass a 10-year moratorium preventing states from regulating AI. The U.S. Senate recently voted 99-1 to remove the provision from the greater tax bill that got passed by the Senate. In response, Brad Carson, president of the nonprofit organization Americans for Responsible Innovation, stated that the provision would have “threatened to strike so many laws important to voters that it mobilized policymakers, advocates, and people from across the country” and showed the U.S. Congress that “freezing state AI laws without a serious replacement is a political nonstarter.” The federal government cannot preempt state action by doing nothing.
Federal agencies can issue rules, however, that simultaneously regulate and preempt state rules that are inconsistent with the federal rules. The result would further the Trump Administration’s deregulatory agenda. It could replace as many as 50 state rules with a single federal rule.
One potential obstacle to this course of action is the tremendous amount of agency staff work required to devise and propose reasonable rules to govern AI and autonomous vehicles, to consider the deluge of public comments that would be submitted in response to such proposals, and to respond adequately to those comments in the statements of basis and purpose that must be incorporated in final rules. The recent removal of many agency staff members makes that demanding task particularly daunting.
A second potential obstacle is to identify the agencies that have the statutory authority to issue comprehensive preemptive rules to govern autonomous vehicles and AI. The National Highway Safety Administration is the obvious candidate to issue rules governing autonomous vehicles, although it has been severely limited by exceptionally large staff cuts. It is more difficult to identify an agency that can issue comprehensive preemptive rules to govern AI.
The extreme difficulty of devising and issuing comprehensive and preemptive rules to govern autonomous vehicles and AI could be avoided by taking an alternative route to the same destination. The Trump Administration could propose legislation that would impose preemptive federal regulation of AI and autonomous vehicles.
It is extraordinarily difficult to engage successfully in the compromise process required to obtain bipartisan support for any proposed legislation in today’s conditions of extreme political polarity. The last successful effort to enact regulatory legislation that preempted state regulation, however, suggests that the process could be successful in these contexts.
In 2016, a bipartisan majority of Congress voted to amend the Toxic Substances Control Act. The legislative process was successful because the proponents of stronger federal regulation were willing to make the federal regulation preemptive as a quid pro quo for stronger federal regulation. The regulated firms were willing to accept stricter federal regulation in return for freedom from chaotic and inconsistent state regulation. That same tradeoff is potentially available in the contexts of autonomous vehicles and AI today.
The Trump Administration has a realistic prospect of eliminating as many as 50 rules for every one rule it issues by issuing rules or enacting statutes that impose reasonable preemptive federal regulations on autonomous vehicles and AI. It must begin that process promptly to have any chance of success.
