President Biden’s recent executive order on artificial intelligence (AI) abuses a 1950 war powers law called the Defense Production Act (DPA) meant to avoid shortages during times of war and national emergency. Worse, the administration is likely relying on and stretching the authorities of a rarely used but very coercive provision of the law to enact an overreaching regulatory scheme without any input from Congress.
Congress passed the DPA during the Korean War to give the president substantial authority over domestic industry to provide for national defense and respond to emergencies. Historically, presidents have used the DPA to require producers to prioritize certain government purchase orders or to provide financial incentives to manufacturers — such as loans, loan guarantees and purchase commitments — to increase the production capacity and supply of domestic industrial products used for national defense.
However, Biden’s order invokes the DPA to impose restrictive regulations and reporting requirements on an emerging technology with use cases spanning the entire economy. Developers of certain AI technologies will have to submit safety test results, development plans, details of model weights, and more to government agencies. Apparently, even developers without existing government contracts will be subject to the order’s onerous regulations.
The order does not indicate how the government will use the mandated reports, nor does it explain how it will protect highly sensitive information from competitors and foreign hackers. John Villasenor, co-director of the UCLA Institute for Technology, Law, and Policy, notes that the order “mandates the creation of what amounts to a target list for any geopolitical adversary that might want to engage in cyber espionage or launch a large-scale cyberattack on U.S. AI computing infrastructure.”
AI is a fast-developing and promising technology with potentially countless beneficial applications across many industries. The administration’s approach to AI is couched in fear of the technology, whether inspired by watching "Mission Impossible" or farfetched claims of extinction, that groundlessly places AI on par with nuclear war and pandemics. Biden’s heavy-handed regulatory approach threatens to stifle innovation and endangers America’s position as the world's leader in AI technologies.
It’s troubling that the president is exploiting an obscure provision of the DPA; however, it is not the first time this administration has misused the DPA for nondefense purposes. In May 2022, the Biden administration invoked the DPA to address the baby formula shortage, requiring that producers of baby formula ingredients ship to formula manufacturers first before customers from other industries, who were forced to wait.
However, the tragic reality is the formula shortage existed only in the U.S. Mountains of evidence indicate the overbearing federal regulatory regime was primarily responsible for choking the domestic baby formula supply, creating a terrifying hardship for the parents of infants nationwide.
Foreboding, isn’t it? Onerous regulations hampered American baby formula producers and placed them behind foreign competitors. Similarly, American AI developers, hamstrung by Biden’s excessive regulations, will find it difficult to keep pace with developers in other less inhibited countries.
This administration has repeatedly proven ready to invoke emergency powers to try and implement policies it does not have the legal authority to execute. The Supreme Court struck down the White House’s attempts to unconstitutionally wield emergency powers to forgive hundreds of billions of dollars in student loans and impose a vaccine-or-test mandate on businesses with more than 100 employees.
Americans for Prosperity Foundation recently launched a project to educate the public about the White House’s rampant abuse of emergency powers, including misuse of the Defense Production Act, Strategic Petroleum Reserve, and National Emergencies Act. Congress intended for such delegations of authority to the president to be temporary to respond to emergent crises that require swift action. However, presidents are increasingly using emergency powers to address long-standing policy failures, impose policy preferences, and circumvent our system of checks and balances.
The DPA is scheduled to expire in 2025 unless reauthorized. Without significant reform that tightens definitions, gives Congress a more prominent role in the process, and provides for stronger transparency and oversight, Congress should consider allowing the DPA to lapse.
AI is here to stay; it’s not going away. If such broad and significant oversight of AI development is warranted, then it is Congress’s responsibility to do so through legislation. Biden treating AI as an emergency fabricates a never-ending crisis that transfers to the president major powers over the economy that are constitutionally reserved for Congress.
Thomas Kimbrell is an investigative analyst with Americans for Prosperity Foundation. James Czerniawski is the senior policy analyst in tech and innovation at Americans for Prosperity. Follow them on X @tkimbrell133 and @JamesCz19.
