Executive Orders Aren’t Replacements for Bills, Even If It’s About Killer Robots

The White House has recently issued an Executive Order (EO) on Safe, Secure, and Trustworthy Artificial Intelligence (AI). The almost 20,000-word EO empowers nearly all executive departments with different responsibilities and reports. Though certainly comprehensive, the President’s latest EO does lack originality, as many of its decrees have already been proposed. The fact that the President has usurped the Legislature after failures to pass AI safety bills does not bode well for the American democratic process.

Some may believe it’d be cynical to simply say the President’s EO is just an easier way to implement what lawmakers have already proposed and failed to pass. Though it’s said that “a cynic is what an idealist calls a realist.” And when there are few repercussions for executive overreach, the President may just see this EO as the quickest path to his end goals, democracy be damned.

The bills that one could say, “inspired” this EO called for a laundry list of changes to our current policy on AI. The Advisory for AI-Generated Content Act would have required the watermarking of AI-generated material by a commission, in keeping with the spirit, the EO mandates that “synthetic content” be likewise watermarked. The Digital Consumer Protection Commission Act would have created a whole new agency to oversee digital platforms and include an AI advisory board. Under the EO an “interagency council” is created to oversee and advise on AI, while the FTC is empowered to maintain competition in the industry.

The list goes on, from the DEEPFAKES Accountability Act to the Algorithmic Accountability Act, the legislature is replete with  AI regulatory bills that have yet to be passed. Now that may not be what some want but that’s democracy. Any bill that imposes new rules and responsibilities affects the American people, their representatives have a say in whether to implement it or not. It may be slower than unilateral executive decision-making, but that’s a feature, not a bug. The framers of our government believed changes ought to be slow and deliberate to avoid ill-conceived policies that lacked a democratic mandate.

In Law and Order: The Problem of Presidential Legislation by Joel L. Fleishman and Arthur H. Aufses, the issue of EO authority and constitutionality is examined. The authors find that despite the court’s frequent upholding of EOs as constitutional, many lack the statutory authority that comes with legitimate uses of government power. Furthermore, the EO can be a direct threat to the framers’ belief that branches ought to have separate powers over state functions, a doctrine called “separation of powers.” Such usurpation of another branch of government’s role (the Legislature by the Executive) presents a threat to American democratic theory.

As stated in the study,

There are two main threats to the doctrine of separated powers-usurpation and abdication. To the extent that any branch falls prey to either of those dangers, the federal government can not be self-limiting. Executive orders, then, are a critical test for the separation doctrine, and a challenge to the integrity of the Constitution.”

It is not the role of the President to enact legislature through means other than the Congress. For all the talk about upholding Democracy coming out of the White House, it’s curious how few scruples the President has about obfuscating democratic processes. We aren’t at war against hostile AI, so overreaching executive power for expediency’s sake isn’t appropriate. It may be a headache for the administration, but the legislation needs the consent of the legislative branch.

Isaac Schick is a policy analyst at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.