AI Preemption and “Generally Applicable” Laws

Proposals for federal preemption of state AI laws, such as the moratorium that was removed from the most recent reconciliation bill in June 2025, often include an exception for “generally applicable” laws. Despite the frequency with which this phrase appears in legislative proposals and the important role it plays in the arguments of preemption advocates, however, there is very little agreement among experts as to what exactly “generally applicable” means in the context of AI preemption. Unfortunately, this means that, for any given preemption proposal, it’s often the case that very little can be said for certain about which laws will or will not be exempted.

The most we can say for sure is that the term “generally applicable” is supposed to describe a law that does not single out or target artificial intelligence specifically. Thus, a state law like California’s recently enacted “Transparency in Frontier Artificial Intelligence Act” (SB 53) would likely not be considered “generally applicable” by a court, because it imposes new requirements specifically on AI companies, rather than requirements that apply “generally” and affect AI companies only incidentally if at all. 

This basic definition, however, leaves a host of important questions unanswered. What about laws that don’t specifically mention AI, but nevertheless are clearly intended to address issues created by AI systems? Tennessee’s ELVIS Act, which was designed to protect musicians from unauthorized commercial use of their voices, is one example of such a law. It prohibits the reproduction of an artist’s voice by any technological means, but the law was obviously passed in 2024 because recent advances in AI capabilities have made it possible to reproduce celebrity voices more accurately than previously. Alternatively, what about laws which were not originally intended to apply to AI systems, but which happen to place a disproportionate burden on AI systems relative to other technologies? No one knows precisely how a court would resolve the question of whether such laws are “generally applicable,” and if you asked four different people who think about AI preemption for a living you might well get four different answers. If federal preemption legislation is eventually enacted, and if an exception for “generally applicable” laws is included, this question will likely be extensively litigated—and it’s likely that different courts will come to different conclusions.

Usually, the best way to get an idea of how a court will interpret a given phrase is to look at how courts have interpreted the same phrase in similar contexts in the past. However, while there is some existing case law discussing the meaning of “generally applicable” in the context of preemption, LawAI’s research hasn’t turned up any cases that shed a great deal of light on the question of what the term would mean in the specific context of AI preemption. It’s therefore likely that we won’t have a clear idea of what “generally applicable” really means until some years from now, when courts may (or may not) have had occasion to answer the question with respect to a variety of different arguably “generally applicable” state laws.

Last updated: December 11, 2025, at 4:19 p.m. Eastern Time