Last fall, President Biden declared himself the possessor of vast powers to regulate artificial intelligence. His executive order proposed subjecting much of the AI industry to extensive federal regulation and reporting standards to fend off an AI-scourged dystopia — a possibility only in Hollywood blockbusters and the president’s imagination.
The executive order largely ignored that heavy-handed regulation would likely strangle American innovation.
Recently, the attorneys general of 20 states, led by Utah’s Sean Reyes, stated the obvious: The Biden administration has proposed unilaterally to arrogate sweeping economic powers to itself without congressional consent, the constitutional prerequisite to this sort of executive action. The president sought dubious legal refuge in the Defense Production Act (DPA), a decades-old national-security law whose broad provisions, while elastic, likely cannot stretch so far as to legitimate Biden’s sweeping, technocratic AI regulatory framework.
The administration copied and pasted DPA’s national security powers to enact essentially economic regulation. As the states note, the law historically has been used to “promote the production or distribution” of goods deemed necessary for national security. However, they continue, “the Biden administration invokes the DPA not to encourage production or distribution of anything, but instead to give the Department of Commerce a new supervisory role as the gatekeeper of emerging technology.”
There’s the rub. As often occurs, a more extensive debate over culture or governance has become starkly evident in the context of a tech-policy debate.
The administration’s position — foundational to traditional, capital-p American Progressivism — suggests that the executive branch should function as an alternate legislature, operating parallel to Congress. Should Congress decline to regulate on some critical issue, the bureaucrat-legislators of Biden’s “Congress II” must march in. In fact, even while Congress deliberates the issue, the executive branch might advance similar legislation through administrative channels.
To Progressives, who enact legislation matters little so long as somebody does it. Indeed, given their druthers, Progressives might prefer legislation by bureaucrat, which (in theory, at least) excises the nasty inefficiencies of the democratic process.
Absent statutory authority to pursue a desired policy, bureaucrats happily contort vagaries and ambiguities in some old law. The U.S. federal government has too many laws, some would say, that provide ample opportunity for creativity. Presidents have found their emergency and national-security powers, which leave much discretion to the executive, particularly convenient for exploitation.
The state attorneys general also object to the partisan biases the president seeks to hardwire into AI regulation and, consequently, into the AI industry. The executive order charges regulators to combat AI-facilitated “disinformation.” As demonstrated by extensive reporting and legal discovery, this often means whatever speech progressives disapprove of. “This situation would enable the administration to once again engage in behind-the-scenes coercion campaigns to force tech companies to refrain from publishing,” the states warn.
With few exceptions, the federal government has no legitimate interest in refereeing factual disagreements between private citizens. The First Amendment applies irrespective of any given theory’s plausibility. Exponents of Newtonian physics receive the same rights as flat earthers.
Nonetheless, all experience has shown that the administration has routinely encouraged — and, in some instances, likely coerced — online platforms to remove disfavored speech. Nobody should doubt its voluntary admission that it intends to regulate AI in a similarly censorial manner.
In addition to backdoor censorship, Biden said he will mold the AI industry to accommodate many left-wing priorities, including progressive racial equity and union favoritism. First, the White House directed the Justice Department to “address algorithmic discrimination.” This will likely implement the so-called “disparate-impact standard,” which identifies discrimination based on disparate statistical outcomes between races, not intentional discrimination.
Members of various groups will — for non-biological reasons, of course — differ statistically in myriad ways. Therefore, entirely eliminating “disparate impacts” between racial groups requires acts of overt racial discrimination. Nonetheless, Biden seems intent on imposing social orthodoxy on the AI industry. Besides being rankly immoral, this would be illegal.
Biden’s executive order questions whether America is a democratic republic in which the people, their representatives and the Constitution rule. It questions whether the federal government ought to silence the opposition or require companies to weave racial discrimination into the fabric of digital society.
Sadly, the president’s answers are wrong on every count.
“All legislative powers herein granted shall be vested in a Congress of the United States,” says Article I, Section 1 of the Constitution. Biden disagrees, and the statutory excuses he hides behind are paper-thin to the point of translucence. Other institutions — Congress, the judiciary, the states — must curb Biden’s folly to restore constitutional balance.
The 20 attorneys general have meaningfully advanced this cause.
