‘Paradox’ on AI governance after Trump move
William Fry partner Dr Barry Scannell has argued that recent moves by the Trump administration have “demolished” any architectural differences on AI regulation between the US and the EU.
In an analysis on the firm’s website, Dr Scannell notes that the meaningful difference between US and EU AI governance was never the amount of regulation, as US states were rapidly implementing comprehensive AI requirements that “rivalled or exceeded” Brussels’ mandates in scope.
“The true distinction was architectural,” he argues, noting that the EU AI Act operates as a single legislative instrument uniform across 27 member states, enforced through harmonised national competent authorities co-ordinated by a central AI office.
“American AI governance, by contrast, was radically decentralised,” Dr Scannell states.
Pre-emption of state laws
The William Fry partner argues that the Trump administration’s December 2025 Executive Order, ‘Ensuring a National Policy Framework for Artificial Intelligence’, ends this architectural difference through federal pre-emption of state laws.
Pre-emption is the mechanism by which higher-level law overrides lower-level law in a federal system.
“The Executive Order attempts to achieve this outcome by declaring state AI regulations invalid and replacing them with uniform federal standards – or, more precisely, by preventing states from regulating AI at all,” Dr Scannell says.
‘Same structural solution’
What has emerged, he argues, is a paradox that has escaped notice in the transatlantic regulatory debate.
“US officials spent years deriding EU centralisation whilst American states were constructing their own fragmented regime, only to pursue the same structural solution once faced with the compliance complexity that industry warned Brussels would create,” the lawyer states.
He points out that the EU centralises through a comprehensive legislative framework establishing baseline protections, while the US order centralises through pre-emption “designed to prevent any meaningful regulatory ceiling from forming at all”.
Dr Scannell adds that the structural similarity between the EU’s AI Act and the US Executive Order makes their constitutional divergence more striking.
Democratic pedigree
While the EU act’s pre-emptive force derives from primary legislation adopted through the ordinary legislative procedure, requiring approval by both the EU Council representing member states and the European Parliament representing citizens, the US order “lacks comparable democratic pedigree”.
The William Fry partner points out that the US order is not legislation passed by Congress, “but rather an executive decree issued by the president alone following Congress’s explicit rejection of AI pre-emption".
“The Executive Order and the EU AI Act converge on the same structural conclusion that sub-national fragmentation is incompatible with credible AI governance,” Dr Scannell states.
“The regulatory race that matters is not between over-regulation and under-regulation, but between legitimate and illegitimate centralisation,” he adds, pointing out that EU legislation flows from constitutional mechanisms designed for such centralisation, while the US order circumvents them.
“Whether governments centralise to regulate or to prevent regulation, they centralise nonetheless,” the William Fry partner concludes, adding that what remains contested is whether centralisation will be “legitimate, accountable, and purposive, or instead unilateral and procedurally defective”.