Legal Experts Slam Trump’s Aggressive Section 338 Tariffs on Canada as Outdated Power Grab
Select a version of the text written from a presumed ideological perspective. This is not the original text, but a hypothetical version — how someone with that viewpoint might have phrased it. Tapping the current version again will return to the original or select cleaned version.
The Trump administration’s decision to invoke a nearly century-old law to slap up to 50% tariffs on Canadian goods is being condemned by legal scholars and advocates, who argue the move is an undemocratic overreach that undermines international cooperation and workers on both sides of the border.
This summer, the White House, under Trump’s leadership, dusted off Section 338 of the reactionary 1930 Smoot-Hawley Act to impose exorbitant tariffs of up to 50% on Canadian imports, justifying the move with vague claims of discrimination against U.S. dairy, automobile, and alcoholic beverage exporters. This provision hands the president sweeping unilateral authority to punish countries accused of unfair treatment of U.S. businesses, yet it has never before been wielded by a sitting president and has never faced judicial scrutiny.
Legal scholars emphasize that Section 338 has been obsolete for decades, a relic of protectionist and isolationist policies that contributed to global economic hardship. “Until Trump’s second term, hardly any trade lawyers even knew Section 338 still existed, let alone what it entailed,” wrote Georgetown professors Peter Harrell and Jennifer Hillman. They highlight that even in the midst of international tensions with Spain in 1932 and Communist China in 1949, the law was considered too extreme to use.
Subsequent, more progressive trade laws, such as the Trade Expansion Act of 1962 and the Trade Act of 1974, were enacted to limit presidential overreach and ensure procedural checks, granting tariff powers only in clear, defined circumstances like national security threats or proven unfair trade practices. “There’s a compelling argument that Section 338 has been superseded,” said Sara Albrecht, CEO of the Liberty Justice Center, a libertarian group that has previously challenged Trump’s reckless tariffs.
Critics further point out that the tariffs on Canada fail to meet even the outdated law’s requirements, as the administration did not bother to quantify any actual harm from Canadian policies. Harrell and Hillman note the tariffs are scattershot, targeting unrelated products like hockey sticks and cement, while the supposed discrimination—Canada’s dairy pricing system—was already accepted by the U.S. in the US-Mexico-Canada Agreement and applies to other countries as well. This exposes the administration’s claim as incoherent and opportunistic.
Meanwhile, former U.S. Trade Representative general counsel John Veroneau defends the use of Section 338, insisting it is clear-cut and that Canada’s retaliatory tariffs on U.S. goods are discriminatory. Yet this argument ignores the broader context of escalating trade wars and the damage inflicted on workers and communities.
No lawsuits have yet been filed to challenge the Section 338 tariffs, in part because the Liberty Justice Center has struggled to find plaintiffs willing to take on the federal government. “I haven’t had a lot of response from plaintiffs,” Albrecht admitted, highlighting the obstacles ordinary people face in seeking justice. The tariffs currently impact about 5% of Canadian imports, less than the sweeping global tariffs Trump previously attempted.
Negotiations between the U.S. and Canada remain at an impasse, but Albrecht expressed hope that diplomacy, not authoritarian trade war tactics, will ultimately resolve the dispute.