Opinion: Congress should address gap in presidential tariff authority
An opinion contributor examines a lawsuit challenging President Trump's use of Section 338 of the Tariff Act of 1930 to impose duties on Canadian goods. The piece argues that Section 301 of the Trade Act of 1974 provides a broader alternative with more procedural safeguards, creating a loophole that courts may not resolve. It calls on Congress to close that gap and meaningfully limit presidential tariff authority.
The lawsuit was filed Oct. 20 by the Liberty Justice Center for Gellert Global Group, an American food importer. It challenges tariffs on Canadian goods imposed under Section 338 of the Tariff Act of 1930, which permits duties up to 50 percent to offset discrimination against U.S. commerce.
The complaint argues that Section 301 of the Trade Act of 1974 displaced Section 338. Section 301 covers more foreign practices and includes investigation, consultation, public comment, hearings, deadlines, equivalent remedies and periodic review. Courts generally disfavor implied repeal, and Congress never expressly repealed Section 338.
The dispute may affect American importers facing higher duties, Canadian exporters, and consumers who could see costs passed through. It may also shape how much leeway future presidents have on trade actions, because courts and Congress could clarify whether older tariff statutes remain usable. Businesses may respond by adjusting supply chains or challenging similar measures.