(1) Supreme Court Rules IEEPA Tariffs Unlawful; (2) Trade Community Awaits Guidance on Potential Refund Process (3) Trump responds to Supreme Court Decision by Imposing a New 10% Global Tariff Under a Different Statute

Late Friday afternoon, in response to the Supreme Court’s earlier decision, Trump announced a new 10% global tariff under a different statute. The Friday Supreme Court ruling did not overrule tariffs, just a specific use of the International Emergency Economic Powers Act, which according to the Supreme Court did not grant Trump the power he claimed to impose tariffs.

The president says that to “protect our country”, he will charge more under other statutes. Effective immediately, he says, he’s signing an executive order to impose a 10% global tariff using section 122, which was created by the 1974 Trade Act. Previously imposed tariffs will remain in place and “in full force”.

The following analysis of today’s U.S. Supreme Court finding the IEEPA Tariffs unlawful is provided by NCBFAA Customs Counsel Sandler, Travis & Rosenberg, P.A.

In a 6-3 decision today, the Supreme Court struck down President Trump’s tariffs imposed under the International Emergency Economic Powers Act (IEEPA). Because the majority of the Court affirmed the Court of Appeals Federal Circuit (CAFC), the case will now return to the CAFC and then to the Court of International Trade. Next, the Court of International Trade will have to decide the appropriate remedy for the now invalidated tariffs, including whether and how refunds should be processed. Meanwhile, importers and customs brokers may wish to avail themselves of the ten (10) days from cargo release to file entry summary and declare duties in anticipation of CIT and CBP instructions on how to handle prior as well as ongoing entries. However, the trade community should be aware of “time of entry” considerations for tariff applicability as it has been reported that the President is contemplating immediate implementation of new or additional trade remedies (e.g., section 122, 232, 301) to effectively replace the IEEPA tariffs, perhaps leaving only a short respite between the tariffs.

Justice Kavanaugh noted that “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 or others. As was acknowledged at oral argument, the refund process is likely to be a ‘mess.’” “The Court says nothing today about whether, and if so how, the Government should go about returning the billions of dollars that it has collected from importers.”

The Chief Justice’s majority opinion framed the main question as whether the statutory phrase allowing the President to “regulate importation” under IEEPA includes the authority to impose tariffs. The Court also rejected the government’s argument that emergencies justify expanding presidential authority in this context. Although IEEPA gives the President flexibility when responding to extraordinary threats, the Court held that it does not override clear structural limits on tariff authority. The Court concluded that the President’s tariff proclamations exceeded his statutory authority. As such, the Court declined to address whether the tariffs also violated the nondelegation doctrine. accordingly, the Court held that IEEPA does not authorize the tariffs imposed by President Trump, effectively invalidating all executive orders imposing tariffs under IEEPA. The Court affirmed the Federal Circuit’s decision, confirming that the Court of International Trade has exclusive jurisdiction, and vacated the District Court for the District of Columbia’s decision with instructions to dismiss for lack of jurisdiction.