As a presidential Executive Order aimed at preempting state artificial intelligence laws now appears imminent, one of the world’s most influential AI companies may have already undermined the legal foundation for that effort—with a simple footnote.
This morning, President Donald Trump posted on Truth Social that he “will be doing a ONE RULE Executive Order this week” to preempt state AI laws. While this will be welcomed news for AI companies, like OpenAI, it could spell legal trouble in light of OpenAI’s prior stances on federal preemption.
In a submission to the White House Office of Science and Technology Policy dated March 13, 2025, OpenAI expressly acknowledged a fundamental constitutional limitation on federal preemption. In Footnote 5 on page 6 of its National AI Action Plan proposal, the company stated: “Federal preemption over existing or prospective state laws will require an act of Congress.”
That single footnote now carries significant weight.
OpenAI, like other frontier model developers, has publicly advocated for uniform national AI regulation. Fragmented state-by-state compliance regimes impose material operational, technical, and legal burdens on companies deploying large-scale AI systems.
For example, California has passed a number of state AI laws set to take effect on January 1, 2026, and Colorado has implemented a comprehensive AI regulatory framework in the Colorado AI Act. Other states, like New York, Texas, and Tennessee, have also passed state AI laws.
An Executive Order that purports to preempt such state laws would provide immediate regulatory relief for frontier developers. It is therefore unsurprising that OpenAI and similarly situated companies are expected to welcome the forthcoming order and argue that it sufficiently preempts conflicting state regimes.
The difficulty is that OpenAI has already taken the opposite position in an official submission to the federal government. By acknowledging that federal preemption of state AI laws “will require an act of Congress,” OpenAI effectively conceded that a unilateral presidential order is constitutionally inadequate to displace duly enacted state statutes.
This admission will likely aid any litigation seeking to challenge the forthcoming Executive Order. Litigants challenging the Executive Order will likely cite OpenAI’s own admission as persuasive evidence that even the primary beneficiary of the policy previously understood that congressional action, not executive fiat, is required to displace state regulatory authority.
The footnote was not incidental commentary. It was embedded directly within OpenAI’s formal policy recommendations to the federal government and accompanied a direct request for nationwide preemption of state AI laws. In other words, OpenAI both asked for federal preemption and simultaneously acknowledged the only lawful mechanism by which such preemption could occur.
Litigation is virtually assured if the Executive Order purports to invalidate or suspend existing state AI statutes. States such as California, New York, Texas, and Tennessee have already invested significant legislative resources into AI governance. Those laws regulate not only private industry but also state agencies, procurement, education systems, and public deployment of algorithmic tools. The likelihood that states will acquiesce to executive preemption without judicial review is remote.
