Constitutional Law and AI Governance: Constraints on Model Licensing and Research Classification

Abstract

Transformative AI systems may pose unprecedented catastrophic risks, but the U.S. Constitution places significant constraints on the government's ability to govern this technology. This paper examines how the First Amendment, administrative law, and the Fourteenth Amendment shape the legal vulnerability of two regulatory proposals: model licensing and AI research classification. While the First Amendment may provide some degree of protection for model algorithms or outputs, this protection does not foreclose regulation. Policymakers must also consider administrative legal requirements, due to both agency review and authority. Finally, while substantive due process and equal protection pose minimal obstacles, procedural due process requires the government to clearly define when developers vest a legal interest in their models. Given this analysis, effective AI governance requires careful implementation to avoid these legal challenges.