Today, The Dispatch published my new article on the case challenging Trump's Section 338 tariffs against Canada.
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Dispatch → publish → Canada
Courts have already ruled against two avenues President Donald Trump used to impose his tariff regime.
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Trump → rule → regime
That hasn't stopped his efforts to attempt to deploy obscure or outdated trade law provisions to justify new import levies.
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That → stop → levies
His latest tool is the Smoot-Hawley Tariff Act of 1930, the notorious legislation that gravely exacerbated the Great Depression.
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that → exacerbate → Depression
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.
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Section → include → vehicles
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.
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Corp. → base → 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).
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Trump → import → Act
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."
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president → result → time
They are illegal for multiple reasons, part of an ongoing effort by this administration to usurp Congress' constitutional authority over tariffs.
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They → usurp → tariffs
In addition, they harm the U.S. economy and poison relations with a key ally.
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they → harm → 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.
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Section → use → 1962
Even if Section 338 is still operative, Trump's tariffs on Canadian goods violate its requirements.
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tariffs → violate → 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.
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Section → explain → policies
Some of the Canadian measures retaliate against previous tariffs imposed by Trump.
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Some → retaliate → Trump
Most do not actually treat U.S. goods less favorably than imports from many other countries.
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Most → treat → countries
In addition, the Section 338 tariffs go well beyond "offsetting" Canadian measures, violating another requirement of the law….
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tariffs → go → law
The administration's interpretation of Section 338 also runs afoul of the major questions doctrine, which requires Congress to "speak clearly" when authorizing the executive to make decisions of "vast economic and political significance."
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which → run → significance
Under Trump's approach, Section 338 can be used to impose 50 percent tariffs whenever a trading partner imposes any restrictions on U.S. goods, or simply chooses not to buy them.
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partner → use → them
And the resulting tariffs need not be calibrated to those they are supposed to "offset."
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they → result → those
This is a blank check to impose massive tariffs against almost any imports at any time—exactly the kind of power the Supreme Court, in its ruling on the IEEPA case, determined the executive cannot have…
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executive → impose → case
If Section 338 is still valid and does grant the kind of nearly unlimited authority Trump claims, that would violate the constitutional "nondelegation" doctrine, which restricts delegation of legislative power to the executive…
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which → grant → executive
The Section 338 tariffs are part of an ongoing series of import taxes Trump has instituted in the wake of the IEEPA decision, seeking to again usurp the unlimited tariff authority the Supreme Court denied him.
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Court → institute → him
He previously tried to use Section 122 and Section 301 of the Trade Act of 1974 to essentially replicate the IEEPA tariffs.
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He → try → tariffs
In both cases, he sought to transform a narrowly limited tariff authority into a blank check to impose massive tariffs at will…
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he → seek → will
In addition to illegally usurping Congress' authority under the Constitution, these tariff actions raise prices for consumers, greatly reduce economic growth, would impose some $700 billion in new taxes on Americans over a 10-year period, and have failed to increase manufacturing employment, despite Trump's claims that they would achieve that goal.
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they → usurp → goal
The tariffs against Canada—combined with Trump's repeated threats to make Canada the "51st state"—have also poisoned U.S. relations with a key ally.
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Canada → combine → ally
The percentage of Canadians with a favorable view of the U.S. has fallen from 54 percent in 2024 to only 33 percent this year—a worse rating than even China's authoritarian regime….
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percentage → fall → regime
Alienating a key ally and trading partner doesn't make America "great again."
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America → alienate → ally
It makes us weaker, poorer, and more isolated.
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us → make → ?
The Aporia
