UCLA School of Law

Under the Biden and Trump Administrations, the Office of Management and Budget issued two memoranda on the use of artificial intelligence (AI) by the federal government. The memos set out minimum required risk management practices and associated governance structures that must be in place within federal government agencies before AI can be used. This Article traces the history of the OMB AI memos, explaining their shared origin in a decade of advocacy within civil society, industry, and academia that led to the creation of the Blueprint for an AI Bill of Rights by the Biden Administration’s Office of Science and Technology Policy, which then fed directly into the Biden AI Memo, before it was replaced by the Trump Administration’s version. The Article then makes two arguments about the significance these memos. First, the lineage of the memos reveals the concern with practical implementation of minimum practices and safeguards in order to protect civil rights. Perhaps surprisingly, while the Trump Administration’s replacement reflects the updated priorities of the new Administration, it keeps much of the structure and substance of the original memo, including some of the civil rights orientation and the requirement that an agency must meet the minimum practices or cease using the AI. Second, these memos serve an important but rarely recognized regulatory role within the government as what we call “intermediate instruments.” By describing requirements at a level of specificity that makes them actionable while at a level of generality to make them applicable across many agencies and use cases, these memos become necessary governance tools that bridge the principles expressed in executive orders and the day-to-day practice of agencies. Such intermediate instruments are not often recognized as important in themselves, but the Article argues that they are worthy of independent recognition because they are likely widely used in oversight schemes of distributed bureaucratic structures.