AI Executive Orders Don’t Create Law: What They Can (and Can’t) Do

Summary

An executive order directing federal agencies to study AI risks or implement certain procurement standards does not automatically translate into binding rules for state court proceedings, private law firms, or individual litigants. The scope of an executive order is inherently limited, and its impact on the practice of family law in Illinois is uncertain until further regulations are established by Congress or through agency rulemaking processes.

What an Executive Order Is (and Isn't)

Executive orders are directives issued by the President to manage operations of the federal government. They carry the force of law within the executive branch, but their scope is inherently limited. An executive order cannot create new law, appropriate funds, or override existing statutes passed by Congress.

For Illinois family law practitioners and litigants, this distinction matters when evaluating how AI regulation might affect your practice. An executive order directing federal agencies to study AI risks or implement certain procurement standards does not automatically translate into binding rules for state court proceedings, private law firms, or individual litigants.

Executive orders primarily affect federal agencies, federal contractors, and matters within the President's constitutional authority. State courts, including Illinois circuit courts handling dissolution of marriage and parentage matters, operate under state law, local rules, and the Illinois Supreme Court's regulatory authority over attorneys.

Practical Limits: Statutory Authority, Agency Rulemaking, Funding, and Timelines

Statutory Authority Constraints

An executive order cannot exceed the authority Congress has granted. If no statute authorizes federal regulation of AI tools used in state family court proceedings, an executive order cannot create that authority unilaterally. Any attempt to do so would likely face legal challenges.

Agency Rulemaking Requirements

Even when an executive order directs agencies to act, those agencies must typically follow the Administrative Procedure Act's notice-and-comment rulemaking process. This means proposed rules must be published, public comments must be solicited and considered, and final rules must be issued—a process that often takes months or years.

Funding Limitations

Executive orders cannot appropriate money. If implementing AI regulations requires new funding for enforcement, training, or technology, Congress must authorize and appropriate those funds. Without funding, even well-intentioned directives may lack practical enforcement mechanisms.

Timeline Realities

Executive orders can be modified or rescinded by subsequent administrations. This creates uncertainty for long-term compliance planning. What one administration prioritizes, another may deprioritize or reverse entirely.

Why 'AI Hallucination' Is a Compliance Risk for Lawyers and Clients

Regardless of federal regulatory developments, Illinois attorneys face immediate and concrete professional responsibility obligations when using AI tools. Large language models and other generative AI systems can produce outputs that appear authoritative but are factually incorrect—a phenomenon commonly called "hallucination."

For attorneys, this creates several compliance risks:

Illinois Rules of Professional Conduct: Rule 1.1 requires competent representation, which includes understanding the benefits and risks of technology used in practice. Rule 3.3 prohibits knowingly making false statements to a tribunal. Submitting AI-generated content without verification could violate both rules.

Court Sanctions: Illinois Supreme Court Rule 137 requires attorneys to certify that pleadings and motions are well-grounded in fact after reasonable inquiry. Relying on unverified AI outputs may not satisfy this standard.

Malpractice Exposure: Errors caused by unverified AI-generated analysis—whether in legal research, financial calculations, or factual summaries—could form the basis of malpractice claims.

For family law litigants representing themselves, AI hallucination risks are equally serious. Submitting fabricated case citations or inaccurate financial summaries to the court can damage credibility, result in sanctions, or adversely affect case outcomes.

Family Law-Specific Examples

E-Discovery and Document Review

Dissolution cases increasingly involve substantial electronic discovery—emails, text messages, social media posts, and financial records. AI tools can help organize and summarize large document sets, but they may mischaracterize content, miss relevant documents, or incorrectly flag privileged materials. Human review remains essential, particularly for documents that may be introduced as evidence or used in depositions.

Text Message and Communication Analysis

In custody disputes, text message exchanges between parents often become critical evidence. AI summarization tools may strip important context, misinterpret tone or intent, or omit messages that don't fit a perceived pattern. Before relying on AI-generated summaries of communications, verify the summary against the original messages.

Financial Disclosure and Asset Analysis

Illinois law requires full financial disclosure in dissolution proceedings. AI tools used to analyze bank statements, tax returns, or business records may miscalculate figures, misclassify assets, or overlook dissipation patterns. Given that property division and maintenance calculations depend on accurate financial information, errors can have significant consequences.

Parenting App Data

Many co-parents use communication and scheduling apps that generate substantial data. AI analysis of this data—to identify communication patterns or scheduling compliance—requires careful verification. These tools may not account for context that explains apparent anomalies.

Expert Report Review

AI can assist in reviewing custody evaluations, business valuations, or vocational assessments. However, AI tools may misunderstand specialized terminology, miss methodological concerns, or generate questions based on incorrect assumptions about the expert's conclusions. Use AI as a starting point for review, not a substitute for careful professional analysis.

Checklist: How to Use AI Safely in a Divorce or Custody Matter

• Verify all legal citations: Before submitting any document to the court, confirm that every case, statute, and rule cited actually exists and says what the AI claims it says.
• Check calculations independently: Do not rely solely on AI-generated financial calculations. Verify figures against source documents using traditional methods.
• Review AI summaries against originals: When using AI to summarize documents, communications, or evidence, compare the summary to the underlying materials for accuracy and completeness.
• Understand confidentiality implications: Before inputting client information or case documents into any AI tool, understand where that data goes and whether it may be used to train future models or accessed by third parties.
• Document your verification process: Maintain records of how you verified AI-assisted work product. This documentation may be important if questions arise about the accuracy of submissions.
• Stay current on guidance: Monitor updates from the Illinois Supreme Court, the ARDC, and relevant bar associations regarding AI use in legal practice.
• Use AI as a tool, not a replacement: AI can increase efficiency in drafting, research, and document review, but professional judgment and human oversight remain essential.
• Disclose AI use when required: Be aware of any local rules or standing orders that may require disclosure of AI assistance in preparing court filings.

If you have questions about how evolving technology standards may affect your family law matter, or if you need guidance on using AI tools appropriately in your case, consider consulting with an attorney who understands both the technology and the applicable professional responsibility requirements.

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, ISC2 CC, Google Cybersecurity Professional Certificate). Illinois Super Lawyers Rising Star 2016-2025.

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