Data deep dive

Goal: Control AI Infrastructure and Regulation

by

Two Executive Orders, One Strategy

What Is An Executive Order? The Legal Reality

Before diving into Trump’s two AI executive orders, it’s critical to understand what executive orders can and cannot do legally.

The Basic Framework

An executive order is a directive from the President to federal agencies on how to implement existing laws passed by Congress.

Executive orders:

  • ✅ CAN direct how federal agencies interpret and enforce laws Congress already passed
  • ✅ CAN reorganize federal agencies and establish task forces
  • ✅ CAN set policy priorities for the executive branch
  • ✅ CAN direct federal agencies to condition discretionary grants on policy compliance
  • ❌ CANNOT create new laws (only Congress can do that)
  • ❌ CANNOT override existing statutes passed by Congress
  • ❌ CANNOT force states to enforce federal policy or prevent states from enforcing their own laws
  • ❌ CANNOT spend money Congress hasn’t appropriated

The Constitutional Limit

The U.S. Constitution establishes three separate branches of government with distinct powers:

  • Congress makes laws (Article I)
  • President enforces laws (Article II)
  • Courts interpret laws (Article III)

Executive orders must operate within laws Congress has already passed. They cannot replace Congressional legislation.

Why This Matters for the AI Executive Orders

Trump’s December 11 executive order claims it can:

  1. Preempt state AI laws
  2. Sue states that don’t comply
  3. Withhold federal funding from states with “unfavorable” AI laws

But the order itself acknowledges the limitation:

Section 8(a) directs staff to “prepare a legislative recommendation” for Congress—because the executive branch cannot preempt state laws without Congressional authorization.

What the order actually does:

  • Creates an AI Litigation Task Force to challenge state laws in court (claiming they violate interstate commerce, etc.)
  • Directs agencies to study whether they can condition grants on AI policy compliance
  • Asks Congress to pass legislation doing what the executive order cannot do alone

What happens in court:

States will argue:

  • Executive order exceeds presidential authority (separation of powers)
  • Only Congress can preempt state laws
  • Withholding funding is unconstitutional coercion
  • States have sovereign authority under 10th Amendment

Federal government will argue:

  • State laws impermissibly burden interstate commerce
  • Federal agencies have discretion over grant conditions
  • Executive order merely clarifies existing federal authority

Courts will decide whether the executive order operates within constitutional bounds or exceeds presidential authority.

The Practical Impact

Even if courts eventually strike down the executive order, it creates immediate effects:

  1. Legal uncertainty pressures companies and communities to act before courts rule
  2. Litigation costs burden states defending their laws
  3. Funding threats create political pressure even if ultimately unconstitutional
  4. Time delays mean projects may advance before legal challenges resolve (18-36 months for definitive rulings)

This is why understanding executive order limits matters: The order’s legal validity is uncertain, but its pressure tactics work regardless of whether courts ultimately uphold it.

Key Precedents

Executive orders struck down by courts:

  • Trump’s first travel ban (2017) – exceeded statutory authority
  • Biden’s eviction moratorium (2021) – CDC lacked Congressional authorization
  • Obama’s immigration actions (2016) – exceeded prosecutorial discretion

Executive orders upheld by courts:

  • Reagan’s drug testing for federal employees – valid exercise of executive management
  • Clinton’s classification of national security documents – within presidential Article II powers
  • Trump’s withdrawal from Paris Climate Agreement – foreign policy within executive authority

The pattern: Courts uphold executive orders that manage federal operations or exercise clear Constitutional authority. Courts strike down orders that effectively create new law or commandeer state authority.

Two Executive Orders, Five Months Apart

While media focused on yesterday’s executive order attacking state AI laws, most missed the bigger picture: President Trump signed two separate executive orders five months apart, each targeting a different chokepoint in AI development.

Executive Order 14318 (July 23, 2025): “Accelerating Federal Permitting of Data Center Infrastructure”
Fast-track data centers on federal land, bypass environmental review, make federal sites available within months.

Executive Order (December 11, 2025): “Ensuring a National Policy Framework for Artificial Intelligence”
Sue states that regulate AI, threaten federal funding, create legal uncertainty about local control.

Together, they form a coordinated strategy: accelerate AI infrastructure deployment while eliminating regulatory barriers at every level of government.

The July order flew under the radar because it only affects federal land—Idaho, Tennessee, Kentucky, South Carolina. Communities fighting data centers in Michigan, Wisconsin, Pennsylvania saw no immediate threat.

Yesterday’s order changed that calculation. While it explicitly targets AI software regulation, its language on data centers creates dangerous ambiguity. Section 8(b)(ii) states the legislative recommendation “shall not propose preempting otherwise lawful State AI laws relating to… AI compute and data center infrastructure, other than generally applicable permitting reforms” (emphasis added).

What are “generally applicable permitting reforms”? Can communities still require public hearings? Environmental reviews? Grid capacity studies? Or are those now subject to federal preemption?

That question will be answered in court. Here’s what happened, what it means, and what comes next.

Executive Order 14318: The Data Center Fast-Track

Signed: July 23, 2025
Title: “Accelerating Federal Permitting of Data Center Infrastructure”

While most attention focused on Trump’s second-term AI policies, this executive order quietly established the infrastructure blueprint for federal data center deployment.

What It Does

EO 14318 directs federal agencies to fast-track permitting for “Qualifying Projects” defined as:

  • Data Center Projects: Facilities requiring “greater than 100 megawatts of new load dedicated to AI inference, training, simulation, or synthetic data generation”
  • Covered Component Projects: “Materials, products, and infrastructure that are required to build Data Center Projects or otherwise upon which Data Center Projects depend” – including energy infrastructure, transmission lines, semiconductors, and manufacturing facilities
  • Minimum threshold: $500 million capital expenditure commitment OR designation by Secretary of Defense/Interior/Commerce/Energy for national security purposes

The Environmental Shortcuts

Section 5 – Efficient Environmental Reviews directs agencies to:

“Within 10 days of the date of this order, each relevant agency shall identify to the Council on Environmental Quality any categorical exclusions already established or adopted by such agency pursuant to the National Environmental Policy Act (NEPA)… which could facilitate the construction of Qualifying Projects.”

Translation: Find every existing environmental review shortcut and apply them to data centers. Create new ones where gaps exist.

The order presumes that federal financial assistance representing “less than 50 percent of total project costs shall be presumed not to constitute a ‘major Federal action’ under NEPA” – essentially exempting many projects from comprehensive environmental review.

Section 8 – Biological and Water Permitting Efficiencies establishes:

“The action agency… shall initiate consultation under section 7 of the [Endangered Species Act] with respect to common construction activities for Qualifying Projects that will occur over the next 10 years at a programmatic level.”

Translation: One environmental review covers ten years of construction across multiple projects. Bypass site-specific endangered species assessments.

The Federal Land Strategy

Section 9 directs the Department of Interior, Department of Energy, and Department of Defense to:

“Identify suitable sites on military installations and Federal land, and make those sites available… through the most appropriate authorizations.”

One day after signing (July 24, 2025), DOE announced four federal sites:

  1. Idaho National Laboratory – 100,000 acres available, RFA due November 7, 2025
  2. Oak Ridge Reservation (Tennessee) – 245 acres, RFP due December 1, 2025
  3. Paducah Gaseous Diffusion Plant (Kentucky) – Environmental cleanup site, RFO due January 30, 2026
  4. Savannah River Site (South Carolina) – 3,100 acres available, RFP due December 6, 2025

Developer selections expected: Mid-December 2025 through Q1 2026.

The Financial Incentives

Section 2 directs the Secretary of Commerce to:

“Launch an initiative to provide financial support, such as loans, loan guarantees, grants, tax incentives, and offtake agreements, for Qualifying Projects.”

Federal government becomes active financier of private data center development on public land.

What It Revoked

Section 4 explicitly revokes Executive Order 14141 (January 14, 2025) – Biden’s “Advancing United States Leadership in Artificial Intelligence Infrastructure” which required diversity, equity, inclusion, and climate considerations for AI data centers on federal land.

Why Communities Didn’t Notice

Critical limitation: EO 14318 only applies to federal land and federal permitting.

Michigan data center fights:

  • Saline Township OpenAI/Oracle project: Private land, state/local permits
  • Howell Township moratorium: Local zoning, not federal
  • Augusta Township ballot measure: Municipal authority, not federal

Wisconsin, Pennsylvania, Indiana battles: All private land, state/local permitting.

The July EO gave developers zero help in these fights. It fast-tracks federal projects on federal land – a completely separate track from the community battles making headlines.

That’s why Attorney General Dana Nessel’s fight with the Michigan Public Service Commission over Saline’s DTE fast-track approval proceeds unaffected by EO 14318. State utility regulation remains state authority.

Until December 11, 2025.

Executive Order: “Ensuring a National Policy Framework for Artificial Intelligence”

Signed: December 11, 2025, 6:33 PM ET
Federal Register Number: [Pending publication]

This executive order doesn’t fast-track infrastructure. It attacks state authority to regulate AI at all.

The Core Strategy

Section 1 – Purpose establishes the rationale:

“To win, United States AI companies must be free to innovate without cumbersome regulation. But excessive State regulation thwarts this imperative. First, State-by-State regulation by definition creates a patchwork of 50 different regulatory regimes that makes compliance more challenging, particularly for start-ups.”

The order explicitly targets three categories of state laws:

  1. Laws requiring “entities to embed ideological bias within models”
  2. Laws that “impermissibly regulate beyond State borders, impinging on interstate commerce”
  3. Laws that are “onerous and excessive”

Example cited: Colorado’s “algorithmic discrimination” law which the order claims “may even force AI models to produce false results in order to avoid a ‘differential treatment or impact’ on protected groups.”

The Litigation Weapon

Section 3 – AI Litigation Task Force:

“Within 30 days of the date of this order, the Attorney General shall establish an AI Litigation Task Force (Task Force) whose sole responsibility shall be to challenge State AI laws inconsistent with the policy set forth in section 2 of this order, including on grounds that such laws unconstitutionally regulate interstate commerce, are preempted by existing Federal regulations, or are otherwise unlawful in the Attorney General’s judgment.”

Translation: Attorney General Pam Bondi has 30 days to create a dedicated team with one job – sue states over AI laws. Deadline: January 10, 2026.

The Task Force must consult with:

  • David Sacks (Special Advisor for AI and Crypto)
  • Michael Kratsios (Assistant to the President for Science and Technology)
  • Assistant to the President for Economic Policy
  • White House Counsel

The Federal Funding Threat

Section 5(a) – Restrictions on State Funding:

“Within 90 days of the date of this order, the Secretary of Commerce… shall issue a Policy Notice specifying the conditions under which States may be eligible for remaining funding under the Broadband Equity Access and Deployment (BEAD) Program… That Policy Notice must provide that States with onerous AI laws identified pursuant to section 4 of this order are ineligible for non-deployment funds, to the maximum extent allowed by Federal law.”

BEAD Program total: $42.5 billion for rural broadband expansion.

Deadline for Commerce Department: March 11, 2026 (90 days from December 11, 2025).

Section 5(b) extends the threat beyond BEAD:

“Executive departments and agencies (agencies) shall assess their discretionary grant programs in consultation with the Special Advisor for AI and Crypto and determine whether agencies may condition such grants on States either not enacting an AI law that conflicts with the policy of this order… or… on those States entering into a binding agreement with the relevant agency not to enforce any such laws during the performance period in which it receives the discretionary funding.”

Translation: Every federal discretionary grant program becomes leverage. States must either not pass AI laws or agree not to enforce existing ones to receive federal funding.

The Hit List

Section 4 – Evaluation of State AI Laws directs the Secretary of Commerce to:

“Within 90 days of the date of this order… publish an evaluation of existing State AI laws that identifies onerous laws that conflict with the policy set forth in section 2 of this order, as well as laws that should be referred to the Task Force established pursuant to section 3 of this order.”

Deadline: March 11, 2026.

The evaluation must “at a minimum, identify laws that require AI models to alter their truthful outputs, or that may compel AI developers or deployers to disclose or report information in a manner that would violate the First Amendment.”

Primary targets:

  • California: SB 1047 (AI safety), deepfake laws, algorithmic discrimination protections
  • New York: AI hiring algorithm disclosure requirements
  • Colorado: Algorithmic discrimination law (explicitly cited in EO)
  • Illinois, Massachusetts, Connecticut: Various AI transparency and consumer protection laws

What’s Explicitly Protected

Section 8(b) – Legislative Recommendation Exemptions:

The order directs preparation of federal legislation that “shall not propose preempting otherwise lawful State AI laws relating to:

(i) child safety protections;

(ii) AI compute and data center infrastructure, other than generally applicable permitting reforms;

(iii) State government procurement and use of AI; and

(iv) other topics as shall be determined.”

David Sacks at signing ceremony: “Kid safety, we’re going to protect.”

But notice subsection (ii): Data center infrastructure is protected “other than generally applicable permitting reforms.”

What does that mean?

The Legal Ambiguity: What Can Communities Still Control?

Section 8(b)(ii) creates a carve-out with a caveat that will be decided in court:

“AI compute and data center infrastructure, other than generally applicable permitting reforms“

Two Possible Interpretations

Narrow Interpretation (Favors Communities):

“Generally applicable permitting reforms” means only process reforms that apply to ALL industries equally – things like:

  • Standardized application forms
  • Digital submission requirements
  • Timeline standardization across permit types
  • Fee structure reforms

Under this reading, data center-specific requirements survive:

  • Public hearings on data center proposals
  • Environmental impact assessments for high-power facilities
  • Grid capacity studies before approval
  • Water usage reviews for cooling systems
  • Cost-benefit analysis for taxpayer incentives

Broad Interpretation (Favors Developers):

“Generally applicable permitting reforms” means ANY permitting requirement that applies generally to construction projects – things like:

  • Environmental review processes (NEPA-style state laws)
  • Public hearing requirements
  • Multi-agency coordination timelines
  • Appeal processes

Under this reading, only data center-specific regulations survive – narrow technical standards like:

  • Minimum setback distances
  • Noise level limits
  • Specific architectural requirements

The Test Cases Coming

Michigan – Saline Township (MPSC Fast-Track):

  • DTE wants 1.4 GW approval without full contested case process
  • AG Dana Nessel intervening on procedural grounds
  • December 18 MPSC meeting scheduled
  • Question: Is MPSC review process a “generally applicable permitting reform” subject to federal preemption?

Wisconsin – Caledonia (Microsoft Withdrawal):

  • Microsoft withdrew after community opposition (October 8, 2025)
  • Plan Commission voted 5-2 for rezoning before withdrawal
  • Could Microsoft return claiming federal preemption of local zoning process?

Pennsylvania – Hazle Township (Procedural Violation):

  • Developer caught in procedural violations
  • Community won unanimous rejection
  • Question: Are procedural requirements “generally applicable” and thus preemptable?

Indiana – Knox County (4 AM Vote):

  • County rejected $13B data center proposal
  • 10-hour meeting, 4 AM vote, developers furious
  • Question: Can federal government override local democratic process?

What The Order Doesn’t Say

Notice what’s missing: The order doesn’t define “generally applicable permitting reforms.” It doesn’t provide examples. It doesn’t establish criteria.

This ambiguity is likely intentional – letting courts decide case-by-case gives the administration flexibility while creating legal uncertainty that pressures communities to approve projects rather than risk expensive litigation.

Next hearing to watch: Michigan MPSC Saline case, December 18, 2025. Dana Nessel’s arguments about procedural integrity may be the first test of whether state utility commission review processes survive federal challenge.

Community Impact Analysis: What’s At Stake State by State

The December 11 executive order targets AI software regulation explicitly, but the “generally applicable permitting reforms” language threatens every community currently fighting data center proposals.

States With Active Data Center Battles

Michigan

Saline Township – OpenAI/Oracle project, 1.4 GW demand

  • Status (as of Dec 12, 2025): MPSC declined Dec 5 deadline, December 18 meeting scheduled
  • Community action: AG Dana Nessel intervention, 5,000+ public comments, 800+ attended virtual hearing
  • Threat level: VERY HIGH – MPSC review process could be challenged as “generally applicable permitting reform”
  • At stake: Public Service Commission authority, ratepayer protection, environmental review
  • Key date: December 18, 2025 MPSC meeting

Howell Township – Meta-backed $1B proposal

  • Status: Developer withdrew rezoning request December 8, 2025 (during 6-month moratorium)
  • Community action: Township passed 6-month moratorium November 2025, overwhelming public opposition
  • Threat level: HIGH – Developer explicitly said withdrawal is temporary; expected to refile when moratorium ends (May 2026)
  • Quote from developer: “We believe the right thing to do now is to honor the current moratorium, which will give the township and its residents the time needed to develop thoughtful, well-considered regulations”
  • Watch: Likely reapplication in Q2 2026 claiming federal preemption

Augusta Township – Citizens’ ballot measure

  • Status: Ballot measure passed requiring voter approval for data centers
  • Community action: Direct democracy
  • Threat level: HIGH – Federal government could claim voter approval requirements are impermissible barriers to interstate commerce

Wisconsin

Caledonia – Microsoft 244-acre proposal

  • Status: Microsoft withdrew October 8, 2025 after community opposition
  • Community action: Coalition formed, Plan Commission voted 5-2 for rezoning, then Microsoft withdrew
  • Threat level: MEDIUM-HIGH – Microsoft statement: “We remain committed to investing in Southeast Wisconsin and look forward to working with the Village of Caledonia and Racine County leaders to identify a site”
  • Translation: Looking for different site, could return claiming federal preemption

Port Washington – Facing “strong community opposition” December 2025

  • Status: Hundreds attended City Council meeting December 10, 2025 opposing project
  • Threat level: HIGH – Active fight ongoing

Madison – Mayor proposing 1-year moratorium (December 2025)

  • Status: Proposed this week to develop zoning code changes
  • Threat level: MEDIUM – Proactive moratorium, no specific project yet

Pennsylvania

Hazle Township – Caught developer in procedural violation

  • Status: Project rejected unanimously
  • Community action: Used existing procedural requirements to expose violations
  • Threat level: VERY HIGH – Procedural requirements are textbook “generally applicable permitting reforms”

Indiana

Knox County – Rejected $13B data center at 4 AM after 10-hour meeting

  • Status: Rejected
  • Community action: Extended public hearing, democratic process
  • Threat level: VERY HIGH – Extended hearing process, public comment period could all be challenged as barriers to interstate commerce

California & New York

Dual threat: Federal preemption of both AI regulation AND infrastructure permitting authority. While these states’ battles focus primarily on AI software regulation, local data center opposition exists and faces same “generally applicable permitting reforms” ambiguity.

The Pattern: Every Tactic Now Vulnerable

Communities used different approaches:

  • Procedural requirements (Pennsylvania – Hazle Township)
  • Moratoriums (Michigan – Howell; Wisconsin – Madison)
  • Direct democracy (Michigan – Augusta ballot measure)
  • Extended public hearings (Indiana – Knox County 10-hour meeting)
  • Utility commission intervention (Michigan – AG Nessel at MPSC)
  • Community organizing (Wisconsin – Caledonia coalition, Microsoft withdrew)

Every single one could be challenged as “generally applicable permitting reforms.”

The Tactical Withdrawals

Notice the pattern:

  • Howell Township (Dec 8): Developer withdrew “to honor moratorium” – explicitly temporary
  • Caledonia (Oct 8): Microsoft withdrew but “remains committed to Southeast Wisconsin”

These aren’t defeats – they’re repositioning. Developers waiting to:

  1. Let federal litigation establish precedent elsewhere
  2. Refile with federal preemption claims ready
  3. Avoid expensive local fights when federal government will do the work

What Communities Face Now

Decision point: Approve projects quickly to avoid litigation risk, or fight and face:

  • Federal DOJ AI Litigation Task Force lawsuits (operational January 10, 2026)
  • Loss of federal discretionary grant funding (BEAD program first, others to follow)
  • Years of expensive litigation with uncertain outcome
  • Setting precedent that weakens protections for other communities

The leverage: Legal uncertainty alone pressures approval before courts rule.

Next 90 days critical:

  • January 10, 2026: AI Litigation Task Force operational
  • March 11, 2026: Commerce Department publishes state law “hit list”
  • March 11, 2026: BEAD funding restrictions take effect

Communities need legal strategies NOW, not after lawsuits filed.

Worker Implications: AI Compliance Opportunity Window

The December 11 executive order paradoxically increases short-term demand for AI compliance expertise while creating long-term uncertainty about the career path.

Short-Term Boom (2025-2027)

Legal uncertainty creates immediate demand:

Companies operating in multiple states face impossible compliance scenarios:

  • California law requires algorithmic discrimination protections
  • Federal government threatens to sue California for requiring those protections
  • Colorado law requires AI impact assessments
  • Federal litigation task force targeting Colorado’s “onerous” requirements

Who companies need RIGHT NOW:

  • Compliance specialists who can navigate conflicting federal/state requirements
  • Attorneys specializing in AI regulation and interstate commerce law
  • Risk assessors evaluating litigation exposure
  • Policy analysts tracking federal task force targets

Salary range: $130K-$200K+ (specialized, high-demand expertise)

Job growth estimate: 40-60% increase in compliance roles 2025-2026 as companies scramble to assess exposure

The Legal Battle Period (2026-2028)

Multiple state Attorneys General will sue over the executive order:

  • California AG Rob Bonta (almost certain)
  • New York AG Letitia James (very likely)
  • Michigan AG Dana Nessel (likely – established track record fighting federal overreach)

During litigation: Maximum complexity = maximum compliance job demand

Companies can’t wait for court decisions. They need strategies for operating under legal uncertainty.

Long-Term Risk (2028+)

If federal preemption succeeds in court:

  • Single federal framework replaces 50 state regimes
  • Compliance roles compress (fewer regulatory variations to navigate)
  • Market consolidates around federal specialists

If states win:

  • 50 different regulatory regimes remain
  • Compliance career path strengthened
  • State-by-state expertise becomes more valuable

Current Assessment

For workers considering AI compliance:

Enter the field if:

  • You have legal, technical, or policy background
  • You can handle 3-5 years of regulatory chaos
  • You’re comfortable with career uncertainty post-2028

Avoid if:

  • You need long-term (10+ year) career stability
  • You can’t pivot if regulatory landscape consolidates
  • You’re investing in expensive specialized degree programs

The safer bet: Foundation skills (Python, domain expertise, systems thinking) that work regardless of regulatory outcome.

What’s Next: The 90-Day Timeline

The executive order sets specific deadlines that create a compressed timeline for legal and political responses.

Immediate: State AG Responses (December 2025 – January 2026)

Expected legal challenges:

California Attorney General Rob Bonta

  • Most aggressive state AI regulation (SB 1047, deepfake laws, algorithmic discrimination)
  • History of suing Trump administration over federal overreach
  • Likely filing: Within 30 days (by January 10, 2026)
  • Legal grounds: 10th Amendment (state powers), unconstitutional commandeering of state resources

New York Attorney General Letitia James

  • AI hiring algorithm disclosure requirements explicitly targeted
  • Established litigation strategy against Trump policies
  • Likely filing: Within 60 days (by February 10, 2026)

Michigan Attorney General Dana Nessel

  • Currently fighting DTE/Saline data center fast-track (Dec 18 MPSC hearing)
  • Strong record on ratepayer protection and democratic process
  • Possible filing: Depends on Saline outcome and whether MPSC authority threatened
  • Quote from Dec 5: “DTE should not be allowed to circumvent the MPSC process and public scrutiny”

Massachusetts, Illinois, Connecticut

  • Various AI transparency laws potentially targeted
  • May join multi-state coalition lawsuit

Federal Deadlines from Executive Order

January 10, 2026 (30 days):

  • AI Litigation Task Force operational
  • Attorney General Pam Bondi begins identifying state laws to challenge
  • First target states likely announced

March 11, 2026 (90 days):

  • Commerce Department publishes state law “evaluation” and “hit list”
  • BEAD broadband funding restrictions take effect ($42.5B leverage)
  • FCC Chairman initiates proceeding on federal reporting standard
  • FTC Chairman issues policy statement on “deceptive” state laws

Community Timeline Pressure Points

December 18, 2025 (Next Week):

  • Michigan MPSC Saline data center hearing
  • First test of whether state utility review survives federal pressure
  • Dana Nessel’s procedural integrity arguments may preview state legal strategy

May 2026:

  • Howell Township 6-month moratorium expires
  • Developer expected to refile with federal preemption claims ready
  • First test case of moratorium authority post-EO

Q1-Q2 2026:

  • Multiple federal court challenges filed (states suing federal government)
  • Preliminary injunctions requested (blocking EO enforcement)
  • First judicial opinions on “generally applicable permitting reforms” ambiguity

The Legal Questions Courts Must Answer

  1. Can executive order preempt state laws without Congressional legislation?
    • Constitutional separation of powers
    • Scope of executive authority over interstate commerce
  2. What are “generally applicable permitting reforms”?
    • Does phrase include environmental review? Public hearings? Zoning processes?
    • At what point does “general” become “impermissible barrier”?
  3. Can federal government withhold discretionary grants to enforce policy preferences?
    • Spending Clause limits (South Dakota v. Dole)
    • Coercion vs. incentive distinction
  4. Do state AI laws unconstitutionally regulate interstate commerce?
    • Dormant Commerce Clause doctrine
    • Market participant exception

Timeline estimate: 18-36 months for definitive court rulings. Supreme Court likely by 2027-2028.

What to Watch

Immediate signals:

  • California AG filing (if within 2 weeks = aggressive strategy)
  • Michigan MPSC Dec 18 decision (does state utility regulator cave to pressure?)
  • First AI Litigation Task Force target (Jan 10 announcement reveals strategy)

Early indicators of outcome:

  • Preliminary injunction rulings (block EO enforcement while litigation proceeds?)
  • Federal district court opinions on constitutional questions
  • Number of states joining challenges (isolated or coordinated resistance?)

The National Security Question: Where This Could Go Next

The December 11 executive order focuses on AI software regulation. The July executive order focuses on data center infrastructure. But there’s a third category neither order explicitly addresses yet: federal government AI deployment at scale.

What’s Already Happening

Department of Defense:

  • December 9, 2025: Google Gemini selected for GenAI.Mil (first enterprise AI on military platform)
  • December 10, 2025: Navy deploys Palantir systems
  • Pattern: Federal AI adoption accelerating across defense agencies

Department of Transportation & IRS:

  • AI systems deployed for processing, compliance, and operations
  • Administrative functions increasingly automated
  • Infrastructure dependency growing across civil agencies

DOGE (Department of Government Efficiency):

  • 293,753 federal/contractor cuts announced YTD (largest layoff reason in U.S.)
  • Explicit goal: Operate executive branch with 50% less workforce
  • Method: AI automation replacing human federal employees

AWS $50B Federal Contract:

  • December 2, 2025: Salesforce + AWS partnership gives federal government push-button AI agent deployment
  • Federal government becomes largest AI customer in history
  • AWS infrastructure + Anthropic models = vertically integrated AI for government operations

The National Security Argument Waiting to Be Made

Here’s the logic that could extend executive authority even further:

Premise 1: Federal government has deployed AI at massive scale across defense, intelligence, and civil operations.

Premise 2: AI systems require continuous data center infrastructure, uninterrupted power, and reliable connectivity.

Premise 3: National security depends on these AI systems functioning without disruption.

Conclusion: Therefore, data center infrastructure supporting federal AI operations is “critical infrastructure” that cannot be subject to state/local obstruction.

How This Could Work

Executive Order 3 (Hypothetical – Not Yet Signed):

“Protecting Critical AI Infrastructure for National Security”

Key provisions could include:

  • Designate federal AI operations as “critical infrastructure” under existing Presidential authorities
  • Classify data centers serving federal contracts as “national security facilities”
  • Preempt state/local permitting for facilities supporting federal AI deployment
  • Fast-track approval for any infrastructure “necessary to maintain continuity of federal operations”

Legal hook: Presidents have broad authority over national security and federal procurement. Unlike the December 11 EO (which tries to preempt state laws generally), a national security order could claim specific Constitutional authority.

Example application:

  • Saline Township Oracle/OpenAI data center serves federal contracts → classified as critical infrastructure
  • Michigan MPSC review “threatens national security” by delaying critical facility
  • Federal government invokes Defense Production Act or similar authority to override state process

Why This Isn’t Farfetched

Historical precedent:

  • Defense Production Act used for COVID supplies, infant formula, semiconductor manufacturing
  • National security invoked for telecommunications (Huawei ban, TikTok restrictions)
  • Critical infrastructure designations expanded repeatedly post-9/11

Current signals:

  • DOD already selecting AI platforms (GenAI.Mil)
  • Navy already deploying AI systems operationally
  • Department of Transportation, IRS automating operations
  • Federal government already largest AI customer
  • DOGE already relying on AI to cut workforce

The missing piece: Explicit designation of AI data centers as critical national security infrastructure.

What Makes This Different From December 11 EO

December 11 EO challenges:

  • Tries to preempt state laws generally (weak legal position)
  • Based on interstate commerce clause (courts skeptical of executive overreach)
  • No emergency or security justification
  • States have strong 10th Amendment defense

Hypothetical National Security EO advantages:

  • Narrow scope: Only facilities serving federal contracts
  • Clear Constitutional hook: President’s Article II national security powers
  • Existing statutory authority: Defense Production Act, Stafford Act, etc.
  • Harder for states to challenge (“you’re threatening national security”)

Timeline for This Scenario

Not immediate, but watch for:

  1. Federal AI deployment scale (2025-2026)
    • More DOD/intelligence contracts awarded
    • DOGE automation accelerates
    • Federal operations increasingly dependent on AI
  2. Infrastructure bottleneck (2026-2027)
    • State/local opposition blocks data centers
    • Federal AI operations face capacity constraints
    • “Crisis” narrative builds
  3. National security designation (2027-2028)
    • Executive order classifies AI infrastructure as critical
    • Federal preemption justified by security needs
    • States lose leverage they still have under December 11 EO

What Communities Should Watch

Red flags that this is coming:

  1. Federal contracts explicitly tied to disputed data center projects
  2. Defense Department involvement in commercial data center site selection
  3. Language shift from “economic competitiveness” to “national security imperative”
  4. Classification of AI infrastructure under existing critical infrastructure frameworks
  5. Invocation of Defense Production Act or emergency authorities

Current status: No evidence of imminent national security executive order. But the infrastructure is being built:

  • Federal AI deployment accelerating
  • AWS/Anthropic serving federal government
  • DOD/Navy already operationally dependent
  • Department of Transportation, IRS automating operations
  • DOGE making federal operations dependent on AI

The leverage is being created for a future national security argument that would be much harder for states to fight than the December 11 executive order’s interstate commerce claims.

Why This Matters More Than December 11 EO

The December 11 executive order will be challenged in court and faces strong constitutional defenses from states.

A national security designation would:

  • Bypass normal judicial review (courts defer heavily to executive on national security)
  • Override state sovereignty arguments (federal power over defense is explicit)
  • Create political pressure (opposing “national security” harder than opposing “economic policy”)
  • Establish precedent for expanding federal control over infrastructure beyond AI

This isn’t speculation about specific policy intentions. This is analysis of the leverage being created by current federal AI deployment that could justify much broader executive authority than the December 11 order attempts—regardless of which administration pursues it.

Sources & Documentation

Executive Orders:

Federal Implementation:

Michigan Data Center Battles:

Wisconsin Data Center Battles:

  • Wisconsin Public Radio: “Microsoft scraps plans for Caledonia data center site” (October 2025)
  • Racine County Eye: “Microsoft abandons original Caledonia data center plan” (October 13, 2025)
  • Tom’s Hardware: “Microsoft cancels Wisconsin data center after community pushback” (October 10, 2025)

Legal & Policy Analysis:

  • CNBC: “Trump signs executive order for single national AI regulation standard” (December 11, 2025)
  • CNN Business: “Trump signs executive order blocking states from enforcing their own regulations around AI” (December 11, 2025)
  • NPR: “Trump is trying to preempt state AI laws via an executive order. It may not be legal” (December 11, 2025)
  • Washington Post: “Trump signs executive order threatening to sue states that regulate AI” (December 11, 2025)

Federal AI Deployment:

  • Financial Juice: DOD GenAI.Mil contract (December 9, 2025)
  • Financial Juice: Navy Palantir deployment (December 10, 2025)
  • Challenger Gray & Christmas: DOGE-related cuts (293,753 federal/contractor positions YTD)
  • AWS/Salesforce partnership announcement (December 2, 2025)

All URLs archived via Wayback Machine for permanent reference as of December 12, 2025.
archive_url:
https://web.archive.org/web/20251212124744/https://www.whitehouse.gov/presidential-actions/2025/07/accelerating-federal-permitting-of-data-center-infrastructure/
http://web.archive.org/web/20251212035526/https://www.whitehouse.gov/presidential-actions/2025/12/eliminating-state-law-obstruction-of-national-artificial-intelligence-policy/
http://web.archive.org/web/20251212034915/https://www.whitehouse.gov/fact-sheets/2025/12/fact-sheet-president-donald-j-trump-ensures-a-national-policy-framework-for-artificial-intelligence/
https://web.archive.org/web/20251212124809/https://www.energy.gov/articles/doe-announces-site-selection-ai-data-center-and-energy-infrastructure-development-federal
https://web.archive.org/web/20251212124937/https://planetdetroit.org/2025/12/dte-data-center-contract-decision/
https://web.archive.org/web/20251212124958/https://planetdetroit.org/2025/12/billion-dollar-data-center-paused/

Under the Radar is published by The Open Record L3C. For questions, corrections, or additional information: angela@theopenrecord.org

This analysis is based on publicly available executive order text, legal precedent, and documented community battles. Legal interpretations represent analysis, not legal advice.

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