My New Dispatch Article on the Legal Case Against Trump's Section 338 Tariffs Targeting Canadian Imports

Courts have already ruled against two avenues President Donald Trump used to impose his tariff regime. That hasn’t stopped his efforts to attempt to deploy obscure or outdated trade law provisions to justify new import levies.

Section 338 of that law is the basis of Trump’s massive 50 percent tariffs on a variety of Canadian imports, including motor vehicles, furniture, dairy products, and more. On October 20, Gellert Global Group Corp., a major food importer and producer based in New Jersey, filed the first lawsuit challenging those tariffs before the U.S. Court of International Trade, the federal court with jurisdiction over tariff cases.

Gellert, which imports Canadian cheese subject to the tariffs, is represented by the Liberty Justice Center, a public interest law firm I worked with on the case challenging the massive tariffs Trump imposed under the International Emergency Economic Powers Act (IEEPA). It resulted in the tariffs’ invalidation in February by the Supreme Court, which not only ruled that IEEPA doesn’t authorize tariffs but also emphasized that tariffs are a congressional power, and that the president does not have the power to “impose tariffs on imports from any country, of any product, at any rate, for any amount of time.” The Section 338 tariffs are a similar power grab.

They are illegal for multiple reasons, part of an ongoing effort by this administration to usurp Congress’ constitutional authority over tariffs. In addition, they harm the U.S. economy and poison relations with a key ally. Section 338 of the 1930 Tariff Act has never been used by a president to enact tariffs before; Philip Zelikow, a conservative trade policy expert and former Bush administration official, has shown that Section 338 was superseded by legislation enacted in 1962 and 1974.

Even if Section 338 is still operative, Trump’s tariffs on Canadian goods violate its requirements. As the complaint explains, the Canadian trade measures cited by Trump as justification for the new tariffs do not discriminate against U.S. goods; Section 338 can only be used against discriminatory policies. Some of the Canadian measures retaliate against previous tariffs imposed by Trump. Most do not actually treat U.S. goods less favorably than imports from many other countries. In addition, the Section 338 tariffs go well beyond “offsetting” Canadian measures, violating another requirement of the law….