Urgent Need for Clear AI Legislation Post-Chevron's Decline

Published Date: 09/07/2024

The Supreme Court's decision to overturn Chevron deference creates hurdles for federal efforts to regulate AI, requiring lawmakers to be more specific and clairvoyant about the emerging technology.

The demise of Chevron deference, a legal doctrine that required courts to defer to a federal agency's interpretation of ambiguous statutes, complicates federal efforts to regulate artificial intelligence. The Supreme Court's 6-3 decision gives companies another avenue to challenge AI-related regulation and the judiciary more influence over an emerging technology they may not have the expertise to evaluate. Lawmakers and the Biden administration must be more specific and clairvoyant about AI, making it less likely that agencies can successfully navigate legal challenges.

The stakes are high, as the Biden administration has directed federal agencies to take action on AI, particularly in the absence of a major legislative package from Congress. While most of the major portions of the October executive order appear unlikely to be affected, the decision threatens to complicate an already slow-moving legislative and rule-making process.

Justice Elena Kagan used AI as an example of something that could be 'the next big piece of legislation on the horizon' when discussing whether Congress wants the court to be the arbiter of 'policy-laden questions' around the technology. 'What Congress wants, we presume, is for people who actually know about AI to decide those questions,' Kagan said.

For Congress, the ruling means that lawmakers writing new legislative proposals on AI may include language that gives agencies Chevron-like deference to reasonably interpret the law. Lawmakers will likely want to stipulate that decisions about interpreting the definitional aspects of AI systems as the technology evolves still be left up to the agencies.

The revocation of Chevron underscores arguments for a new AI-focused agency, which could be tasked with updating and interpreting regulations. Even without this ruling, regulatory work required in statutes needs to be carried out by an agency. Now, with the need to incorporate language that tasks an agency with an updating and interpretive function, Congress needs to specify an agency.

The alternative, expecting judges and law clerks with no relevant expertise to make sweeping decisions and fill in gaps in existing regulation of an enormously important policy area, is a recipe for disaster. Anticipating changes in the rapidly evolving technology and writing statutes that address that with hyper-specificity is a tall order for lawmakers.

In the meantime, state laws and regulations will likely continue to outpace federal efforts. While the 'big risk' of regulating technology at the state level is fragmentation, not having Chevron could create the same effect for federal rules intended to be a national standard.

Much of the Biden administration's executive order may remain unaffected, but the decision raises key challenges for federal agencies to deal with AI-focused issues. Officials may find themselves proposing less ambitious rules out of concern that their proposals could ultimately get struck down by a court.

Courts with limited AI-related experience could end up trying to come up with determinations on topics they aren’t trained to handle — or which could evolve — like the definition of a frontier model, which might be discussed in a statute. To help inform their judgements, judges still have what’s known as Skidmore deference, which permits courts to seek agency expertise.

But Goodman said a lot of how those regulations move forward depends on which judges get the challenges and who is in charge at the executive agencies. Right now, there’s a general reaction 'that assumes conservative judges and a kind of more pro-regulatory executive, but one could easily imagine, certainly, the executive flipping.

FAQS:

Q: What is Chevron deference?

A: Chevron deference is a legal doctrine that requires courts to defer to a federal agency's interpretation of ambiguous statutes.

Q: How does the overturning of Chevron deference affect AI regulation?

A: The decision complicates federal efforts to regulate artificial intelligence, requiring lawmakers to be more specific and clairvoyant about the emerging technology.

Q: What is the impact on the Biden administration's executive order?

A: Much of the executive order may remain unaffected, but the decision raises key challenges for federal agencies to deal with AI-focused issues.

Q: How will courts be involved in making decisions about AI?

A: Courts with limited AI-related experience could end up trying to come up with determinations on topics they aren’t trained to handle — or which could evolve — like the definition of a frontier model.

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