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Prospective Legal Challenges to Trump's Section 338 Tariffs Against Canada

A guest post by Georgetown legal scholars Peter E. Harrell and Jennifer Hillman.

Ilya Somin | 8.3.2026 6:12 PM

I have previously written about Donald Trump's threatened  tariffs against Canada, using Section 338 of the notorious Smoot-Hawley Tariff Act of 1930.  Today, I am pleased to present a guest post on this subject by Georgetown legal scholars Peter Harrell and Jennifer Hillman. Peter is Visiting Scholar at Georgetown's Institute for International Economic Law, an attorney in private practice, and one of the nation's leading experts on trade law. Jennifer Hillman is a professor of practice at the Georgetown University Law Center, a leading expert on international business and international trade, and co-director of the Center for Inclusive Trade and Development. They both played an important role in helping to develop the arguments that ultimately led to the invalidation of the IEEPA tariffs by the Supreme Court, in a case I helped litigate.

What follows was written by Peter Harrell and Jennifer Hillman, not me (Ilya Somin):

Prospective Legal Challenges to Trump's Section 338 Tariffs

On July 20, President Trump became the first President in history to impose tariffs under Section 338 of the Tariff Act of 1930, better known—and memorialized by actor Ben Stein in the movie Ferris Bueller's Day Off—as the Smoot-Hawley Tariff Act. Until Trump's second term, few trade lawyers were aware that Section 338 remained on the books or understood what it did. Trump's three separate Section 338 findings together impose a new 50% tariff on approximately $20 billion in annual U.S. imports from Canada. Trump and Canadian Prime Minister Mark Carney may yet negotiate a détente before the tariffs take effect on August 19, folding them into the ongoing negotiations over the USMCA. If the tariffs do come into force, however, they will face legal challenges that will likely narrow their scope, even if they do not succeed in throwing them out altogether.

Background on Section 338 and Trump's Action

Congress passed Section 338 (19 U.S.C. § 1338) to give the President authority to impose tariffs if a foreign country discriminates against U.S. products relative to how it treats products made by third countries.

Specifically, Section 338 provides that if the President "find[s] as a fact" that a country either (a) imposes on U.S. products "any unreasonable charge, exaction, regulation, or limitation which is not equally enforced upon the like articles of every foreign country," or (b) "discriminates in fact against the commerce of the United States, directly or indirectly, by law or administrative regulation or practice, by or in respect to any customs, tonnage, or port duty, fee, charge, exaction, classification, regulation, condition, restriction, or prohibition, in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country"—and if he further finds that the "public interest will be served" by imposing duties—the President shall "declare such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage, not to exceed 50 per centum ad valorem or its........

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