President Trump's recent attempt to use Section 338 of the Smoot-Hawley Tariff Act to ban Canadian imports has raised fears of unlimited executive power over trade. But a new Lawfare article by Ilya Somin argues that import bans are subject to the same constitutional limits as tariffs. The piece, excerpted on Reason, contends that the Constitution assigns import-restriction authority to Congress, not the president, and that any executive ban without clear congressional authorization is unlawful.
Somin points to the Supreme Court's decision in Learning Resources v. Trump, which struck down tariffs imposed under IEEPA, and notes that lower courts have also rejected tariffs under Section 122 and are reviewing Section 301 actions. He argues that a sweeping executive import ban would run afoul of the major questions doctrine and the nondelegation doctrine, just as the tariff actions did. The two sources are the same article—Reason publishes an excerpt from Lawfare—so they fully agree.
Somin acknowledges that no legal challenges have yet been filed against the Section 338 measures, but he argues they are vulnerable because the statute has been superseded by later laws and the administration's interpretation is overbroad. He concludes that courts should strike down any future effort to claim a blank-check import ban power, just as they have constrained presidential tariff overreach.