The Trump administration is invoking rarely used, and in one case never-before-used, trade statutes from the 1930s and 1970s to impose steep tariffs on Canadian and Brazilian goods, pivoting swiftly after the Supreme Court ruled that the president's emergency powers do not extend to import duties.
President Trump signed three proclamations imposing 50% tariffs on a wide range of Canadian products under Section 338 of the Tariff Act of 1930, a provision so obscure that no president has ever invoked it. The targeted goods include wine, hockey sticks, cement, dairy, furniture, clothing, construction materials, technology, and car parts. Energy products, potash, fish, critical minerals, and goods already covered by national security tariffs are exempt. The tariffs take effect in 30 days, and the White House says there is no room for negotiations during that window.
Separately, the administration slapped 25% tariffs on many Brazilian imports under Section 301 of the Trade Act of 1974, which authorizes action against unreasonable foreign trade practices. The Office of the U.S. Trade Representative held public hearings and consulted Brazilian officials before the duties took effect, Mandatory reported.
The pivot traces back to the Supreme Court's February decision in Learning Resources, Inc. v. Trump. In a 6-3 ruling, the justices held that the International Emergency Economic Powers Act, the statute Trump had used to justify sweeping "Liberation Day" tariffs, does not authorize the president to impose import duties. The Court found that IEEPA contains no mention of tariffs and declared that the power to levy them belongs solely to Congress.
Trump did not accept the ruling quietly. He called the decision "deeply disappointing" and said he was "ashamed of certain members of the Court, absolutely ashamed for not having the courage to do what's right for our country," the Washington Examiner reported. He immediately announced a new 10% global tariff using Section 122 of the Trade Act of 1974 and listed several other statutory authorities he intended to use, including Sections 201, 232, 301, and 338.
The pattern is familiar. When the Supreme Court struck down Trump's birthright citizenship executive order, the administration pivoted to a legislative strategy rather than conceding the policy goal. On trade, the pivot was even faster, and it reached deeper into the federal statute books.
Section 338 of the Tariff Act of 1930 allows the president to impose tariffs of up to 50% when a foreign country places U.S. commerce at a disadvantage. Legal experts say no administration has ever invoked it. The White House proclamation justified the Canada tariffs by citing Canada's "discriminatory tariff scheme" against American motor vehicles and auto parts.
The proclamation stated that "imposing additional ad valorem duties on certain products of Canada to address the burden or disadvantage from this discrimination or unequal and unreasonable imposition is in the public interest," Breitbart reported.
Scott Lincicome of the Cato Institute framed the move bluntly. Fox News reported his assessment:
"The significant thing is Trump uncorked a new tariff statute that has never been used and is pretty wide open in terms of the president's supposed power to impose tariffs."
David Clement of the Consumer Choice Center offered a different read, calling it "almost like a last-ditch effort to try and keep some tariffs on the table." But whether it is a bold expansion of presidential trade authority or a fallback maneuver, the practical effect is the same: Canadian exporters face 50% duties on a sprawling list of goods, and the tariffs include products previously protected under the United States-Mexico-Canada Agreement.
The administration's willingness to reach for untested legal tools fits a broader pattern. The Supreme Court has increasingly challenged the boundaries of administrative power, and the executive branch has responded by searching for statutory authorities that courts have not yet examined.
The 25% tariffs on Brazilian imports rest on firmer procedural ground. Section 301 of the Trade Act of 1974, the same statute used to justify tariffs on Chinese goods during Trump's first term, authorizes the president to act against unreasonable trade practices. The USTR conducted public hearings and engaged Brazilian officials before the duties were finalized.
Beyond Brazil, the administration is pursuing Section 301 investigations into approximately 60 economies over alleged forced-labor concerns. The scope of those investigations is not yet public, and the specific countries involved have not been named. But the scale signals that the administration views Section 301 as its workhorse statute going forward, a legal tool with decades of judicial precedent behind it.
The administration also continues to rely on Section 232 of the Trade Expansion Act for national security-based tariffs. Those duties, which cover steel and aluminum imports among other goods, predate the IEEPA dispute and were not affected by the Supreme Court's February ruling.
The financial stakes are enormous. Fox News reported that monthly tariff collections have more than tripled since Trump returned to office, rising from roughly $9 billion to more than $30 billion per month. That revenue stream gives the administration a powerful incentive to find legal footing for continued duties, regardless of which statute provides the authority.
Trade experts noted the administration had prepared for the Supreme Court loss well in advance. Josh Lipsky of the Atlantic Council told the New York Post:
"If other countries are looking at this and thinking they're going to get tariff relief, they're in for an unpleasant surprise. There are backup options upon backup options, even if the Supreme Court ends up agreeing with the appeals court."
U.S. Trade Representative Jamieson Greer reinforced that message, saying, "People are moving forward with their deals, regardless of what this court may say in the interim." The administration's posture is clear: the tariff agenda continues, and the legal vehicle is secondary to the policy goal.
Trump has shown the same instinct on other fronts. When Spain balked at NATO spending commitments, Trump ordered a trade embargo that forced a reversal. The approach is consistent: apply economic pressure, absorb the legal friction, and dare opponents to find a court that will stop it in time.
Courts can be expected to examine whether Section 338 and Section 301 can bear the weight the administration is placing on them. Section 338 has no judicial track record at all. Its scope, limits, and procedural requirements are untested. Legal experts cited in reporting on the tariffs have noted the statute is "pretty wide open", which cuts both ways. It gives the president broad authority on paper, but it also means no court has ever affirmed that authority in practice.
No legal challenges to the new Canada or Brazil tariffs have been reported so far. But the IEEPA fight offers a roadmap: a federal appeals court ruled 7-4 that Trump's earlier tariffs were illegal, allowed them to remain in effect through October 14 to permit appeals, and Trump vowed to take the case to the Supreme Court. The administration lost that fight. Whether the same pattern repeats under different statutes is the central open question.
Democrats, meanwhile, have pursued their own strategy to reshape the Court's role in these disputes. Some have introduced resolutions to expand the Supreme Court and abolish the filibuster, moves that would alter the judicial landscape for trade cases and every other area of executive authority.
For businesses caught in the middle, Canadian dairy producers, Brazilian manufacturers, American importers, the uncertainty is the point. The tariffs are real. The revenue is flowing. And the legal questions will take months or years to resolve.
Congress wrote these trade laws decades ago. If lawmakers don't like how they're being used now, they have the same power the Supreme Court just reminded everyone belongs to them: the power to change them.