{"id":185213,"date":"2026-08-27T12:02:12","date_gmt":"2026-08-27T12:02:12","guid":{"rendered":"https:\/\/www.europesays.com\/canada\/185213\/"},"modified":"2026-08-27T12:02:12","modified_gmt":"2026-08-27T12:02:12","slug":"canada-news-is-the-supreme-court-going-to-let-trumps-trade-war-fly","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/canada\/185213\/","title":{"rendered":"Canada news: Is the Supreme Court going to let Trump\u2019s trade war fly?"},"content":{"rendered":"

This is Executive Dysfunction<\/a>, a newsletter that highlights one under-the-radar story about how Trump is changing the law\u2014or how the law is pushing back\u2014and keeps you posted on the latest from Slate\u2019s Jurisprudence team. Click here<\/a> to receive it in your inbox each week.<\/p>\n

President Donald Trump is back at it with tariffs, announcing over the weekend that the U.S. is imposing a 50\u00a0percent tariff on $20\u00a0billion worth of Canadian goods ranging from hockey sticks to feathers to building materials. And he\u2019s threatening<\/a> even more tariffs on Canada\u2019s auto industry come Jan. 1, 2027, claiming that the U.S. has been \u201ccarrying\u201d Canada for decades and that our northern neighbors have been ripping Americans off. Just six months ago, the Supreme Court rejected<\/a> Trump\u2019s 2025 firestorm of tariffs, but now the administration thinks it has identified a new way to try to execute the president\u2019s agenda. In this latest Canada fight, the Trump administration is dusting off a section of trade law that has never actually been used to tariff before. If it sticks, it could immediately allow the president to tariff just about anyone in the world with few guardrails.<\/p>\n

The administration has discovered the Tariff Act of 1930, and within it, Section\u00a0338<\/a>, a little-known statute that allows the president to impose duties of up to 50\u00a0percent on any foreign country he finds has discriminated against the U.S., either directly or indirectly. No U.S. president has ever used it to tariff another country until now, so Trump\u2019s application of it new and uncharted legal territory. Marc Busch is worried, as a former adviser to the U.S. Department of Commerce and the U.S. Trade representative. He believes that this new approach faces better legal odds than the tariffs Trump attempted to enact through the International Emergency Economic Powers Act that the Supreme Court shot down last term.<\/p>\n

\u201cWhat Trump may discover, and Canada might just turn out to be the beta test, is that he has the most latitude with Section 338, because it just says \u2018discrimination.\u2019 It clearly says \u2018tariff.\u2019 It clearly says he doesn\u2019t need to really consult widely. There may or may not be a role for the International Trade Commission,\u201d Busch, the Karl F. Landegger Professor of International Business Diplomacy at Georgetown University, told me. \u201cThat\u2019s why the world is going to pay really close attention to the 338s, because this may be the only way he gets closer to the degree of freedom he had under IEEPA.\u201d<\/p>\n

You may remember that initially Trump tried to implement his \u201cLiberation Day\u201d tariff agenda through IEEPA, targeting Canada and over 65 other countries and the European Union. Those tariffs faced an onslaught of lawsuits<\/a>, and by February 2026, the Supreme Court intervened and ruled that the president could not use the act to unilaterally tariff, as that particular law makes no mention of tariffs, duties, taxes, or anything else that would suggest Congress wanted to give the executive tariff power. To date, the Trump administration has refunded about $100\u00a0billion<\/a> to American businesses because of that decision (though consumers have yet to see any of that money).<\/p>\n

The president did not simply abandon his tariff agenda, though, instead identifying new ways to tariff under existing federal trade law. In February, Trump claimed<\/a> that the U.S. was facing \u201cfundamental international payment problems\u201d that were, among other things, endangering the country\u2019s ability to finance its spending. He used Section\u00a0122 of the Trade Act of 1974 to impose a temporary 10\u00a0percent tariff on \u201call countries<\/a>.\u201d A lawsuit was quickly filed, and within a few months the U.S. Court of International Trade shot down<\/a> the administration\u2019s use of Section\u00a0122.<\/p>\n

By July, Trump officials identified a new avenue, this time through Section\u00a0301 of the Trade Act of 1974. That allowed the president to tariff 60 countries<\/a> \u201cfor their failure to impose and effectively enforce a prohibition on the importation of goods produced with forced labor.\u201d Section\u00a0301 allows a president to tariff as a targeted economic diplomacy measure<\/a> to induce a foreign government to abandon a particular practice. Again a lawsuit was filed challenging this use of Section 301, alleging that the Trump administration never conducted an investigation to determine if U.S. trading partners were in fact engaging in forced labor. The Supreme Court declined to hear the case<\/a>, leaving the tariffs in place.<\/p>\n

That brings us to the present day, where the administration is targeting Canada through Section 338 of the Tariff Act of 1930. The two countries have been waging a trade war since last year, when Trump first tried to use IEEPA to impose a 25\u00a0percent tariff<\/a> on certain Canadian products, claiming that Canada had failed to stop the flow of fentanyl across the two countries\u2019 shared border. Canada was one of the few countries to push back on tariffs, imposing retaliatory tariffs<\/a> on U.S. goods that included everything from whiskey to aluminum and steel, and the two countries have been going at it ever since. Upping the ante was the fact that the U.S.\u2013Mexico\u2013Canada trade agreement\u2014which Trump negotiated in his first term\u2014was coming due this year, but last month the U.S. declined to renew it<\/a>.<\/p>\n

Trump is leveraging Section 338 by arguing two main things. First, he\u2019s claiming that Canada discriminated against the U.S. when it imposed its initial retaliatory tariffs. Busch believes that this is simply Trump being petty. \u201cSection 338 got dusted off and used to take a swipe at Canada because the president has a particular grudge against Canada and China for having retaliated for his earlier tariffs and needs to make a demonstration effect come across as a result of this action,\u201d he said. Given the U.S. manufacturing industry\u2019s heavy reliance on China, Canada became the target to mollify Trump.<\/p>\n

The second argument behind Section 338 has to do with cheese. The Trump administration says Canada awarded the EU a better trade quota for its cheese than it offered the U.S., and that is also proof of discrimination. This battle over cheese does not pass the smell test for Busch, who argues the U.S. also gives preferential treatment to countries it establishes trade deals with\u2014including Canada.<\/p>\n

\u201cThe U.S. also has preferential market access to the Canadian market through the U.S.\u2013Mexico\u2013Canada trade pact. So it\u2019s a little odd to enjoy preferential market access under USMC, but call what Europe has discrimination,\u201d Busch explained.<\/p>\n

<\/p>\n

\"\"<\/p>\n

\n Ian Prasad Philbrick
\n One Number Is Keeping Trump\u2019s Team Up at Night. You Should Be Worried About It Too.
\n Read More\n <\/p>\n

<\/a><\/p>\n

Lawsuits challenging the Trump administration\u2019s use of Section 338 are likely to drop soon. \u201cWe\u2019re just waiting for someone who imported a hockey stick,\u201d Busch said. But it\u2019s anyone\u2019s guess how America\u2019s courts will decide on them. Remember, this statute has never been used to tariff, and it doesn\u2019t spend much time defining discrimination, the keyword that\u2019s enabling Trump to try to tariff a longtime American ally into economic oblivion. One law firm partner told the New York Times<\/a>, \u201cIt\u2019s hard to assess how vulnerable a Section 338 challenge would be, simply because there\u2019s no record of any judicial interpretation of this law.\u201d Making matters even less certain is the fact that just last month, SCOTUS refused to hear a lawsuit challenging Trump\u2019s use of Section 301.<\/p>\n

Busch, however, is skeptical that the administration is operating within legal limits here. According to his reading of Section 338, a \u201ccalibration\u201d is required first to assess whether any wrongdoing was committed by Canada that would warrant a U.S. tariff, and the International Trade Commission would also have to deliver an evaluation of it. So far, there hasn\u2019t been any evidence that has happened.<\/p>\n

Yet, in classic Trump style, regardless of the legality of his use of Section 338, he\u2019s already threatened a 50 percent tariff on Canadian autos come 2027. We may or may not get a court ruling before then.<\/p>\n

We hope you learned a thing or two from this edition of Executive Dysfunction. If you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member<\/a>!<\/p>\n

Elsewhere in Jurisprudence<\/p>\n

This week\u2019s episode of Amicus<\/a> features Slate\u2019s latest installment of Slow Burn: Becoming Justice Gorsuch. It dives into Gorsuch\u2019s politically fraught path to power, right as the U.S. Supreme Court seemed to be on the way to having a 5\u20134 liberal majority back in 2016.<\/p>\n

The Amicus bonus episode<\/a> puts out a humble request: Tell us how you\u2019re reclaiming the Constitution for yourself, your loved ones, your neighbors, and your community. You can share your story with Slate\u2019s Jurisprudence team at amicus@slate.com<\/a>.<\/p>\n

This week, SCOTUS inserted itself in the U.S. midterm elections<\/a>, putting a lower court\u2019s injunction on hold and allowing the U.S. Postal Service to adhere to a dubious executive order that seeks to limit mail voting. Dahlia Lithwick unpacks the high court\u2019s ruling and how it will undoubtedly lead to mass confusion.<\/p>\n

\u00a0Justice Ketanji Brown Jackson\u2019s dissent in the SCOTUS mail-voting decision highlights a critical point about the court\u2019s \u201chorrid election-law jurisprudence of the past few years<\/a>,\u201d Alexis Romero, an attorney specializing in economic and environmental justice, explains in Slate.\u00a0<\/p>\n

Tennessee has added an execution date for the youngest woman in modern U.S. history to be sentenced to death. Friend of Slate Austin Sarat, professor of jurisprudence and political science at Amherst College, explains how this development is a cruel injustice that the justice system can and should reverse<\/a>.<\/p>\n


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It\u2019s Becoming Clearer Than Ever That \u201cAmerica First\u201d Has Taken a Toll on American Power
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Thank you for reading Executive Dysfunction! We\u2019re thrilled to be in your feeds and will be back with more dysfunction analysis next week.<\/p>\n","protected":false},"excerpt":{"rendered":"This is Executive Dysfunction, a newsletter that highlights one under-the-radar story about how Trump is changing the law\u2014or…\n","protected":false},"author":2,"featured_media":185214,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[17,162,58368,58369,58367,14494],"class_list":["post-185213","post","type-post","status-publish","format-standard","has-post-thumbnail","category-canada","tag-canada","tag-donald-trump","tag-executive-dysfunction","tag-judiciary","tag-jurisprudence","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/posts\/185213","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/comments?post=185213"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/posts\/185213\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/media\/185214"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/media?parent=185213"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/categories?post=185213"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/canada\/wp-json\/wp\/v2\/tags?post=185213"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}