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Donald Trump

Major Questions, Nondelegation, and the Section 338 Tariffs Against Canada

Why the major questions and nondelegation doctrines bolster the legal case against Trump's Section 338 tariffs.

Ilya Somin | 9.13.2026 8:40 PM

Illustration: Midjourney

I have previously written about Trump's harmful and illegal imposition of Section 338 tariffs against various Canadian imports, and his recent expansion of those actions to include categorical bans on some Canadian products. In this post, I will explain how the legal case against these actions is bolstered by the major questions and nondelegation doctrines.

Section 338 was part of the infamous Smoot-Hawley tariff act of 1930, which gravely exacerbated the Great Depression. There is a strong case that Trump's Section 338 tariffs are illegal both because Section 338 (which has never been used previously) was superseded by later legislation, and because Trump's tariffs do not meet the textual requirements of Section 338. On the former point, see this 2025 Volokh Conspiracy guest post by Philip Zelikow of the conservative Hoover Institution. On the latter, see this excellent guest post by Georgetown University trade policy experts Peter Harrell and Jennifer Hillman.

But assume it is unclear whether Section 338 has been superseded and whether the Trump tariffs on Canadian imports meet the requirements emphasized by Harrell........

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