The Supreme Court’s major questions doctrine and AI regulation

There is reason for optimism about the federal government stepping up to create a policy framework for artificial intelligence (AI) that will keep us safe while enabling innovations that will improve all our lives. But, beneath the surface, there is a shark in the water, ready to obstruct any congressional or administrative action. That shark is the Supreme Court’s “major questions doctrine.” Although Members of Congress have proposed to establish a new federal commission to protect consumers. However, would the commission’s important actions under the law survive a major questions challenge? The truth is we don’t know. The more important truth is nobody knows.

[Blair Levin is a nonresident senior fellow at Brookings Metro. Levin serves as a policy analyst with New Street Research, an equity research firm focused on telecommunications and technology. Tom Wheeler is a visiting fellow in Governance Studies at The Brookings Institution. Wheeler is a businessman, author, and was Chairman of the Federal Communication Commission (FCC) from 2013 to 2017.]