State vs. Federal AI Regulation: Where Are We Heading?

The explosive growth of artificial intelligence (AI) technologies and infrastructure over the past few years has raised many questions about how the law should adapt. For example, how do existing regulations apply to AI and are new AI laws required? And in the United States, who should regulate AI — the federal government or state governments?

Answers to these and other questions around AI continue to be debated and worked out. For legal advice on using AI, reach out to a science and technology law attorney.

What Is Artificial Intelligence?

There is no universal legal definition of artificial intelligence. Generally, the term refers to technologies that mimic the human experience of learning new things and generating new material based on that learning.

Concepts related to AI include machine learning (ML), artificial neural networks, and large language models (LLMs). While these technologies have existed for many years, the public launch of ChatGPT — a chatbot connected to an LLM — in 2022 sparked a boom in the launch of new AI-related products.

The growth of AI systems has also sparked the building of many new data centers. In some cases, these projects have been resisted by residents and environmentalists.

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Federal-Level Regulation of AI

As of the start of 2026, the U.S. federal government has not passed a comprehensive law on AI technology.

The One Big Beautiful Bill Act provides funding for certain government agencies to build out their AI capabilities. However, it does not contain any specific new rules or restrictions on AI. An early version of the bill would have essentially put a 10-year moratorium on state AI laws, but this provision was stripped out by the Senate.

Congress did pass one piece of AI legislation in 2025 — the TAKE IT DOWN Act, which criminalizes non-consensual intimate imagery (NCII), also known as revenge porn or deepfake porn, typically created using AI technology. This law was passed with overwhelming bipartisan support.

The Impact of Executive Orders on AI Regulation

To date, federal AI regulatory efforts have primarily come from executive orders issued by both former president Joe Biden and current president Donald Trump. Executive orders do not create new law. They direct executive agencies on how to interpret existing laws and how to prioritize enforcing them.

In 2023, Biden issued an executive order called Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. This order initiatiated exploration of possible AI regulations and uses of AI by the federal government. However, upon taking office in January 2025, Trump revoked this order and issued a different one titled Removing Barriers to American Leadership in Artificial Intelligence, which signaled a more hands-off approach.

Later the same year, Trump issued another order, Ensuring a National Policy Framework for Artificial Intelligence. This order directed the Attorney General and other officials to create a federal policy framework for AI and investigate suing and denying funds to states with more restrictive laws. This effort remains in its beginning stages. No new regulations have been issued or lawsuits filed to date.

State-Level Efforts To Regulate Artificial Intelligence

Meanwhile, a number of states have taken their own initiatives toward regulating AI. For example the Colorado AI Act law includes data privacy protections, protections against “algorithmic discrimination,” and a state regulatory framework.

A number of other states, including California, Illinois, New York, and Utah, have taken a more piecemeal approach, adopting multiple laws regulating different aspects of AI systems, such as:

• Restricting the use of AI in making automated employment decisions that could be discriminatory
• Requiring that users be informed that they are interacting with an AI system in certain situations
• Restricting how AI chatbots can or cannot be used to provide mental and behavioral healthcare services
• Protecting people from the unauthorized use of their images, voices, or likenesses
• Requiring frontier AI developers to adopt and report on certain safety frameworks

Many states have also been reviewing their regulations to see how existing laws can be applied to regulate or promote artificial intelligence.

Finally, zoning and land use laws have been used by opponents of new AI data centers to stop, slow, or modify these plans.

Potential Conflicts Between Federal and State AI Governance

As noted, President Trump’s AI executive order directs his administration to oppose certain state restrictions on artificial intelligence. For instance, the order specifically calls out the Colorado AI Act for its ban on “algorithmic discrimination.”

Since Congress has not passed any new laws regulating AI, the Trump administration would need to argue that state laws either:

• Are unconstitutional because they regulate interstate commerce; or
• Conflict with existing federal laws or regulations implementing those laws

There is no guarantee that the administration would be successful in fighting state laws it doesn’t approve of. In the U.S. federal system, federal laws do not preempt state laws unless certain conditions are met.

Unless lawmakers weigh in by passing new AI bills, the administration must argue that existing laws apply to AI and preempt state laws. It remains to be seen what will come of this effort.

Getting Up-to-Date Legal Help

What is more certain is that AI regulation is in its infancy and will continue to evolve. AI features have become commonplace in widely used apps and other consumer products. People reaching out for customer service are increasingly encountering chatbots rather than human beings. And AI data centers are popping up in communities across the United States.

The law will eventually need to catch up with this explosive growth. And any conflicts between federal and state AI policies will need to be resolved, likely by the courts.

For legal guidance on using AI lawfully in your jurisdiction, reach out to a science and technology lawyer.