There is finally a lawsuit against Trump's "Section 338" tariffs against Canada, brought by Gellert Global Group, a food importer headquartered in New Jersey. Let's unpack: 1. The complaint makes several arguments against Trump's Section 338 tariffs. First, it argues--echoing scholar Philip Zelikow--that Congress has implicitly repealed Section 338, including with Congress's enactment of Section 301, or at the very least that 301 should control. While it is pretty clear that as a practical matter the Congresses that enacted most modern trade statutes in the 1960s and 1970s intended Presidents to use those statutes, and not Section 338, Congress never explicitly repealed Section 338 and Supreme Court precedent sets a pretty high bar for implicit repeal cases, and this will be an interesting one for the courts to grapple with. 2. Second, the complaint argues that Trump has mis-applied the statute. I have written about Section 338 elsewhere and I find these arguments persuasive: Canada's acts that are the purported basis for the Section 338 tariffs are not "discrimination" within the meaning of the statute, and the tariffs do not "offset" the burden of the discrimination. At the very least, these arguments would mean a significant narrowing of the tariffs. 3. Plaintiffs also argue that when Trump modified the Section 338 tariffs in mid-September, shifting some products from a tariff list to a ban list, dropping some products, and adding new products, he did not adhere to Section 338s mandatory 30-day notice period before tariffs become effective. 4. Finally, plaintiffs raise a non-delegation doctrine argument that if the Trump Administration's expansive interpretation of the statute is correct, Section 338 violates the non-delegation doctrine. 5. Personally, I think there are also arguments that Section 338 requires action by the International Trade Commission (ITC) prior to the President making determinations under Section 338, but the plaintiffs do not appear to have made this argument. (Amicus brief?) 6. The case is in the Court of International Trade (CIT), the same court that initially ruled against Trump's IEEPA tariffs, which ruled against Trump's Section 122 tariffs (which are currently before the Federal Circuit on appeal), and which is currently considering Trump's July 24 Section 301 tariffs. 7. It is hard to give odds on this litigation given that while Section 338 has been around for 96 years, it has never before been used to impose tariffs. That said, as I have previously written I do think there are multiple arguments against at least this scope and use of Section 338, and look forward to following the litigation as it moves forward. 8. The case is being brought by Liberty Justice Center, the impact litigation non-profit that has also brought key cases against the IEEPA tariffs, Section 122 tariffs, and the Section 301 tariffs. They are seeking class certification status to represent other importers as well.