This piece argues that Congress may invalidate new AI regulation through a moratorium or preemption without running afoul of the anticommandeering doctrine.

As AI systems grow in capability, importance, and risk, states are increasingly seeking to regulate them. Illinois bans AI use in therapy. California requires large AI developers to disclose their safety policies. Several states make it illegal to create deceptive deepfakes. While some of these laws appear sensible, some AI proponents have called for the federal government to stem the tide of new state AI regulation. They argue that these laws are often poorly drafted, redundant, and counterproductive. The patchwork of state laws threatens to stifle innovation and favor large incumbents over startups. So the federal government should clear the field, either by imposing a temporary moratorium or by straightforwardly preempting state law. Under a moratorium, states would be unable to pass any new laws regulating AI. Under preemption, any state laws concerning AI would be invalid and unenforceable.

When Congress considered a 10-year moratorium on state AI regulation this summer, many people argued that it would have been unconstitutional. Under the Supreme Court’s anticommandeering doctrine, the Tenth Amendment bars the federal government from directly commanding the states. But the proposed AI moratorium would have commanded the states not to pass any new laws regulating AI. So, seemingly, it would violate the Tenth Amendment.

Congress now appears to be considering preemption once again. Clarity on the constitutional issue is therefore desirable. I will argue that neither full preemption nor a temporary moratorium would violate the anticommandeering doctrine. My own view is that broad preemption without any accompanying federal standard would be a bad idea. But like many other bad ideas, it would be within Congress’s power.

Anticommandeering doctrine

All agree that Congress can at least sometimes preempt state law. All also agree that at least some congressional action goes too far and commandeers the states. Whether an AI moratorium or preemption would be unconstitutional depends on which side of this line it falls on. The Supreme Court’s most recent explanation of the dividing line between permissible preemption and unconstitutional commandeering came in Murphy v. NCAA.

Under Murphy, Congress violates the Tenth Amendment whenever it purports to directly command the states. Congress cannot require the states to enforce a federal law or to enact a law of their own. So in Printz v. United States, when Congress tried to recruit state officers into enforcing a federal scheme, it went too far. It similarly overstepped its bounds in New York v. United States, when it tried to force state legislatures to regulate radioactive waste according to federal standards. Congress cannot forbid the states from passing a law, either. In Murphy itself, a provision of the Professional and Amateur Sports Protection Act (PASPA) purported to bar the states from authorizing sports gambling, without forbidding sports gambling itself. The Court held that this provision violated the Tenth Amendment.

Murphy effected a change in the Court’s understanding of preemption. Prior to that case, preemption could be viewed as Congress forbidding the states from passing certain laws. But Murphy held that Congress lacks that power. Instead, the Murphy Court explained, Congress preempts by regulating private actors in a way that trumps any contrary state law. Preemption works not by commanding state legislatures, but by creating a federal right or obligation for individuals, which states are powerless to interfere with.

To see the distinction between preemption and commandeering, compare the law at issue in Murphy to standard preemption. The provision in Murphy prohibited the states from authorizing sports gambling. But it did not impose federal liability, civil or criminal, on private actors. Under PASPA, states would have been required to continue imposing liability on private actors through state law. Contrast the federal law criminalizing possession of marijuana. In a sense, that law prohibits the states from authorizing the possession of marijuana. But it does so by directly imposing federal criminal liability on private actors. The federal law does not require states to impose liability through state law for marijuana possession.

Arguments that a moratorium or preemption would be commandeering

There are a few different ways one might try to leverage Murphy’s anticommandeering standard into an argument that a preemption or moratorium on state AI regulation would violate the Tenth Amendment. However, none of these arguments succeed.

• The drafting argument

Some commentators argued that the moratorium considered this summer was unconstitutional because it commanded the states. The text originally passed by the House read: “no State or political subdivision thereof may enforce any law or regulation regulating artificial intelligence models, artificial intelligence systems, or automated decision systems during the 10-year period beginning on the date of the enactment of this Act.” If Congress cannot forbid the states from passing a law, this text looks flagrantly unconstitutional.

However, this line of thought was considered and rejected in Murphy. The Court acknowledged that preemption clauses are often phrased as prohibitions on the states, in a way that would seem to conflict with Congress’s inability to command the states directly. For instance, the Airline Deregulation Act states that “a State . . . may not enact or enforce a law . . . related to a price, route, or service of an air carrier.” But the Court held that “it is a mistake to be confused by the way in which a preemption provision is phrased.” The test is not the form of words Congress uses, but rather whether the law “imposes restrictions or confers rights on private actors.” Some laws phrased as a prohibition on states may be fairly read as granting a right to individuals. So the Airline Deregulation Act, the Court claimed, “confers on private entities (i.e., covered carriers) a federal right to engage in certain conduct subject only to certain (federal) constraints.”

Thus, even if a moratorium or preemption of AI regulation was expressly phrased as a command to the states, that would not suffice on its own to render it unconstitutional.

• The “regulatory scheme” argument

Another common argument is that in order for Congress to preempt state laws, it must implement some federal regulatory scheme. Congress cannot wipe away state laws and leave a legal vacuum, as it were. This argument has the bulk of historical practice going for it, and perhaps prudence as well. Congress ordinarily does introduce its own regulatory scheme when it preempts, and most agree that leaving the states unable to regulate AI without a federal scheme in place would not end well.

Some commentators purport to find the requirement for a federal regulatory scheme in Murphy. Murphy does state that “every form of preemption is based on a federal law that regulates the conduct of private actors, not the States.” Printz v. United States similarly says that the Constitution “confers upon Congress the power to regulate individuals, not States.” One could understand this to mean that Congress must regulate individuals—in the sense of imposing requirements or prohibitions—in order to preempt the states.

But the doctrine simply does not impose such a requirement. No Supreme Court case has ever held that an express preemption provision was invalid because it was not accompanied by a sufficiently robust federal regulatory scheme.

Clearly read, Murphy offers no support to the idea that Congress must create a “regulatory scheme” in order to preempt. The opinion countenances the idea of permissible preemption occurring when federal law merely creates a right which invalidates state laws to the contrary. And rights can be created without an accompanying regulatory scheme. The First Amendment’s guarantee of freedom of speech was not burdened with an associated regulatory apparatus. Nor did the Civil Rights Act of 1866, which granted citizens “of every race and color . . . the same right, in every State and Territory in the United States, to make and enforce contracts . . . as is enjoyed by white citizens,” include a regulatory scheme explaining how these contracts would be made and enforced.

Another problem for the view that Congress can preempt only when it also puts in place a “regulatory scheme” is the Court’s Dormant Commerce Clause jurisprudence. The Court has held that state laws that overly burden interstate commerce without a sufficient benefit to local commerce are invalid under the Commerce Clause, even when Congress has not affirmatively used its commerce power to enact any relevant legislation. In Bibb v. Navajo Freight Lines, for example, the Court held that an Illinois law requiring certain mudflaps on trucks was invalid because of the burden it placed on interstate commerce. The entire point of the Dormant Commerce Clause, then, is to invalidate state laws when there is no federal regulatory scheme in place. But Congress can surely do anything by affirmative legislation that the Commerce Clause does intrinsically, even when Congress has not yet acted. So Congress could invalidate some state laws without putting in place its own regulatory scheme.

One final reason to doubt that Congress must implement a regulatory scheme in order to preempt is that the requirement has little to do with the motivation behind anticommandeering doctrine. The thought behind anticommandeering is that Congress lacks the power to directly command the states. Congress could not cure the constitutional flaws in a statute that directly commanded the states simply by including along with that command a fulsome regulatory scheme governing individuals—it is not as though Congress is permitted to commandeer the states only so long as it also issues separate commands to private actors at the same time. Congress substantially regulates the sale of firearms; that did not render the commandeering at issue in Printz v. United States constitutional.

It is true that the Court has held that “legislation that applies ‘evenhandedly’ to state and private actors does not typically implicate the Tenth Amendment.” Haaland v. Brackeen, 599 U.S. 255, 283 (2023). But this is because that legislation generally does not command states in their sovereign capacity, regulating their sovereign capacity to regulate private individuals. Rather, it commands the states insofar as they engage in actions that private individuals themselves might engage in, e.g. as employers or owners of databases. If a preemption scheme did regulate states in their sovereign capacity (as the attempted preemption at issue in Murphy did), the scheme would be unconstitutional, even if it also included some commands to private actors (as PASPA, the law at issue in Murphy, also did).

Conversely, consider a valid preemption scheme which does include some regulatory scheme governing private actors (say, federal labeling requirements for drugs). Ex hypothesi, this scheme does not command the states. Suppose Congress amended the scheme to remove the regulatory obligations on private actors. Surely that amendment could not be construed as now commanding the states. So if a preemption scheme is valid, it is valid whether or not there is a robust federal regulatory scheme attached to it.

If there is so little support for the idea that Congress must regulate in order to preempt, where could the idea have come from?

Likely the doctrine of field preemption. Courts sometimes find that federal law preempts state law, even in the absence of an explicit preemption clause, when the nature or scope of the federal regulatory scheme indicates that Congress intended to occupy the field. This means that courts sometimes do reject the argument that state law is preempted, because the associated federal law is not associated with a sufficiently robust regulatory scheme. That inference looks a lot like what one would expect if legitimate preemption required an associated federal scheme.

However, field preemption is simply not about the constitutional question of when Congress may preempt. It is about the statutory question of whether Congress has even attempted to preempt state law in the first place. The idea is that even if Congress did not include a preemption clause, the best reading of the statute might imply preemption, because it is clearly intended to be the only source of law in a certain area. And in the absence of an explicit preemption provision, the nature of the regulatory scheme Congress chose to implement may be a good guide to whether state law in the area is supposed to be preempted. But when preemption is explicitly provided for, there is no need to enter into that inquiry.

As long as Congress makes its moratorium or preemption of state AI laws explicit, the doctrine of field preemption does not come into play, and the question of the robustness of the associated regulatory scheme is irrelevant.

Thus, current doctrine would not bar a moratorium or preemption merely because it was not associated with some federal regulatory scheme imposing obligations on AI developers or users.

• Distinguishing moratoria from preemption

One final argument for the unconstitutionality of an AI moratorium would distinguish moratoria from preemption. Because moratoria leave in place disuniform state laws, they may not always create a right to engage in any particular conduct, as Murphy seemed to require.

Under a moratorium on state AI regulation, people living in different states would be subject to different AI laws. Consider the following scenario. California passes a law barring students from using AI to write essays. Then a federal moratorium on state AI laws is passed. Finally, Montana passes the same law. In this world, students in Montana would be permitted to use AI in ways students in California would not. But that seems incompatible with Murphy’s requirement that Congress create a federal right. If a federal right had been created, one would think, anyone regulated by federal law would be entitled to engage in certain actions. But a moratorium does not achieve that. There may not be any particular uses of AI that all Americans have a federal right to engage in. And if the moratorium does not create a right, it is unconstitutional commandeering. (Contrast preemption, which would invalidate both laws, regardless of when they were passed.)

This argument, however, proves too much. Preemption does not always create a right to engage in any particular conduct, either. Again take the Airline Deregulation Act, which prohibits states from enacting or enforcing laws “relat[ing] to” airline routes, fares, or services. One might think the Act entitles airlines to do whatever they please with respect to their routes, fares, or services, subject only to federal requirements. But that is not quite true. State laws against prostitution apply to airlines, even if those laws limit the “services” airlines can offer. Nor is there any particular conduct the Act permits. For instance, it does not mean that airlines can never be liable for setting a certain fare. Airlines could likely violate state law if they, say, charged different fares to customers of different races. And of course airlines could be held liable for breach of contract for their failure to provide certain services after contracting to do so.

Preemption clauses can operate on laws, not conduct. When considering the scope of preemption clauses, the Court regularly must interpret whether the state law under consideration falls within the scope of the preemption provision. And preemption provisions regularly talk about laws rather than conduct. The Court in Morales v. Trans World Airlines, for example, had to consider whether certain laws related to airline fares. The very same conduct by an individual might or might not lead to liability under state law, depending on the nature of the law purporting to impose liability. If the law related to fares, it would be invalid. But if it did not, it would be valid.

How should we square Murphy’s claim that federal preemption must create an individual right or obligation with the fact that preemption clauses may target laws as such? The answer is to view preemption clauses as creating a federal right for individuals not to be subject to state laws of a specified kind. On this understanding, the preemption clause in the Airline Deregulation Act grants individuals a right not to be subject to state laws relating to airline routes, fares, or services.

The idea of a right not to be subject to certain laws is familiar from the Constitution. Consider the Free Exercise Clause, as understood in Employment Division v. Smith. The clause does not grant people a right to do anything their religion calls for. For instance, Catholics are not permitted to speed just to make it to Mass on time. Rather, the clause grants a right not to be subject to laws that single out religion.

A federal moratorium on state AI regulation, then, can be understood as conferring upon individuals a right not to be subject to state laws, passed after a certain point in time, concerning AI. That satisfies Murphy’s requirement of granting a right to individuals.

Some drafting advice

While the Court in Murphy explicitly stated that Congress’s choice of how to phrase an otherwise valid preemption provision would not render it unconstitutional, proponents of a moratorium might consider drafting the provision so as to make this legal theory explicit. Congress could enact a law providing that all persons are immune from civil liability under any state law regulating AI passed after a certain date, perhaps with certain exceptions.

Moratoria were permissible before Murphy, and they remain permissible after. While it may be a bad idea for Congress to enact a moratorium or preempt state AI laws without introducing AI regulation of its own, the Tenth Amendment does not bar it from doing so.

Jared Riggs is a 3L at Yale Law School.