The legal battle over President Trump's tariffs on Canadian goods is just beginning, but the judiciary isn't the only institution that should be asking hard questions. Congress long ago assigned the task of establishing trade facts to an independent body — the U.S. International Trade Commission (ITC) — precisely so that political conclusions don't override evidence. The question now is whether the ITC will live up to that mandate.
The commission is currently soliciting public comments on how to implement Section 338 of the Tariff Act of 1930, a long-dormant statute that Trump invoked to impose duties of up to 50 percent on roughly $20 billion worth of Canadian imports. The ITC must define what constitutes discrimination, what evidence is required, and whether its findings should be made public. These aren't procedural details; they will determine whether the commission's independence means anything in practice.
Congress made a deliberate choice in 1922 when it created the predecessor to the ITC. Lawmakers could have left investigations to an executive agency that would follow the president's lead, but instead they established an independent Tariff Commission. The intent was to separate fact-finding from politics. As trade scholar Simon Lester has noted, unequal trade outcomes alone should not establish discrimination under Section 338. The commission must examine the design, structure, and application of foreign measures to determine whether they actually disadvantage American commerce relative to comparable foreign commerce.
Consider the case of Canada. The administration points to European cheese exporters enjoying preferential treatment under the Canada-EU trade agreement, while American exporters face different terms under the USMCA. But trade deals are the product of bargaining — the EU made concessions to secure those preferences, and the U.S. negotiated a different deal. Different treatment doesn't automatically equal discrimination. In 1922, the Senate struck a clause that would have made any failure to give American commerce equal treatment grounds for action, keeping instead a stricter test of actual discrimination.
The ITC must also grapple with retaliation. If Canada or another country targets American products in response to Trump's tariffs, does that constitute discrimination under Section 338? That's a question that requires investigation, not just a re-labeling of retaliation as discrimination. The commission should require more than allegations; it should identify the specific foreign measure, demonstrate how American commerce is treated differently, and show the resulting commercial disadvantage.
Alternative explanations must be considered too. Market share can decline for reasons unrelated to discrimination. Regulations can burden American exporters without being discriminatory per se. The commission should assess the magnitude of any demonstrated disadvantage and weigh whether the tariffs imposed are proportional. Congress authorized duties of up to 50 percent to 'offset' the burden of discrimination, but Trump's action hit a broad assortment of Canadian products far beyond the alleged auto, dairy, and alcohol issues. How does a 50 percent tariff on those goods offset the specific disadvantage suffered by American exporters? Why not 15 or 25 percent?
These are precisely the questions an independent commission should ask. There's a difference between compensating for lost export opportunities, protecting domestic industries from import competition, and exerting economic pressure to extract concessions. The president may prefer the last objective, but Section 338's requirement to offset a disadvantage cannot be ignored. The commission's findings and recommendations should be public, using established procedures for trade investigations, including published standards, public comment periods, and hearings. The justification for imposing tariffs on Americans doesn't deserve secrecy.
The courts will ultimately decide whether the ITC's findings must precede presidential action. But the deeper issue is whether the ITC will act as a genuine check on executive power or as a rubber stamp. With the midterm elections approaching and Trump's trade policies facing increasing scrutiny, the commission's next moves will signal whether it still serves the public interest — or just the president's political agenda. As the courts weigh related disputes, the ITC's independence remains a critical safeguard in the trade arena.
