The proper delineation of authority between the federal government and the states has often been the subject of controversy in the debate over AI policy. Proponents of both approaches reference the constitutional clauses that support their claim. The reality is that this issue, as with many things in AI, is not a neat list of discrete policy matters. Instead, there is a clear mix of AI policy issues that require national attention—those that are the exclusive domain of the states and the issues that can be taken on by both the federal government and the states (or a collection of states). So how might a court or policymaker identify what level of governance is appropriate for different AI issues?
My paper, “The Obstruction Doctrine,” connects the jurisprudential dots that jointly establish a framework for evaluating whether a state’s exercise of power aligns with the letter and spirit of the Constitution. The first prong prevents states from inhibiting access to national markets. The second prong forecloses states from advancing laws that hinder the federal government’s ability to respond to issues that require national attention. And the third prong blocks states from interfering with national initiatives, such as extensive infrastructure projects.
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