Together with the Cato Institute, I submitted a friend-of-the-court brief detailing why the tariffs violate statutory requirements and also clash with the major questions and nondelegation doctrines.
Yesterday, the Cato Institute and I filed a friend-of-the-court brief before the U.S. Court of International Trade in the matter Gellert Global Corp. v. Trump, which marks the inaugural challenge to Donald Trump’s expansive 50% tariffs under Section 338 directed at Canadian imports. The plaintiff is represented by the Liberty Justice Center, the public-interest law organization I collaborated with on a separate challenge to the broad tariffs that Trump imposed under the International Emergency Economic Powers Act (IEEPA). That prior litigation led the Supreme Court to invalidate the tariffs earlier this year.
I previously discussed the Section 338 tariffs and explained why they are unlawful and harmful in an article for The Dispatch, and in a research paper for the Montreal Economic Institute.
We are grateful to Daniel Cannistra and colleagues at Crowell & Moring for their invaluable pro bono assistance in drafting and filing the brief on very short notice. Here is a summary of our central arguments, which should soon appear on the Cato Institute website:
This brief contends that Section 338 of the Tariff Act of 1930 cannot authorize the tariffs enacted by the Defendants, and that doing so contravenes the major questions doctrine and the nondelegation principle.
The Court should strike down the Section 338 duties for three reasons. First, Section 338 requires that any tariffs be imposed in response to discriminatory trade restrictions enacted by foreign trading partners, and that those tariffs serve to offset the barriers imposed by those countries. The Section 338 tariffs pursued by the Trump administration fail to satisfy both requirements. Moreover, Section 338 has been superseded by later statutes and is no longer operative.
Second, the major questions doctrine bars interpreting Section 338 as permitting the President to impose extraordinary import taxes whenever another country imposes any trade restrictions or declines to purchase American goods. It must speak clearly when it assigns to the executive branch decisions of vast economic and political significance. The broad power claimed by the administration in this case unquestionably raises a major question, and it is at least unclear that Section 338 actually grants such expansive authority.
Third, stripping the statute of its qualitative conditions from operative force violates the nondelegation doctrine, which limits the delegation of legislative power to the executive. An exceedingly high rate ceiling of fifty percent cannot serve as a substitute for clear legislative bounds on how and when tariffs may be imposed.
Cato and I (together with Prof. Michael McConnell) also recently submitted an amicus brief in litigation challenging Trump’s expansive Section 301 tariffs.
