By Robert J. Kerwin

As is now widely known, shortly after taking office, President Trump declared a national emergency as to both drug trafficking and the U.S. trade deficits. President Trump then imposed tariffs to deal with each threat.

Last week the U.S. Supreme Court in a 6-3 decision in the case Learning Resources Inc., et al v. Trump, President of the United States, determined that the U.S. law known as the International Emergency Economic Powers Act (“IEEPA”), did not authorize the president to impose tariffs of the magnitude and scope imposed. In a decision authored by Chief Justice Roberts, the Court stated that “the Court has long expressed ‘reluctance to read into ambiguous statutory text’ extraordinary delegations of Congress’s powers.”
The Court further stated “had the Congress intended to convey the distinct and extraordinary power to impose tariffs [in the IEEPA], it would have done so expressly, as it consistently has in other tariff statutes.” The U.S. Supreme Court thereafter ordered the case remanded with instructions to dismiss.

No guidance provided by the U.S. Supreme Court on tariff refunds procedure
As Justice Kavanaugh noted in his dissent to the U.S. Supreme Court decision, the interim effects of the Court’s decision could be substantial. “The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers and others.” Justice Kavanaugh noting comments made at oral argument on the case, acknowledged that the refund process is likely to be a “mess”. Not surprisingly, the question now raised is: how do I get my tariffs back?

The Wall Street Journal has reported that through mid-December, U.S. Customs and Border Protection (“Customs”) has brought in about $133.5 billion worth of tariffs under IEEPA. A number of commercial plaintiffs including Costco, presumably in anticipation of the U.S. Supreme Court decision, commenced suit in the Fall of 2025 in the U.S. Court of International Trade against Customs to seek the establishment by Customs of procedures for repayment of refunds. A status conference in that case was requested last week and as of this writing there has been no decision as to the adjudication of refunds for the plaintiffs in that case.

A 1998 case pertaining to the refund of Harbor Maintenance tax payments, declared invalid as to exports, may be instructive as to when refund payments may issue. In that case, the Court of International Trade required Customs to refund the tax payments but noted that the claimants were generally not entitled to interest. It is interesting to note that the case took till 2002 to be fully adjudicated with various appeals pertaining to such things as the process and disputes regarding whether a statute of limitations should be imposed.

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