Author: Christine Rocco

By John H. Kester

On Friday, following the Supreme Court’s (“SCOTUS”) ruling that the International Emergency Economic Powers Act (“IEEPA”) did not authorize the President to impose tariffs, President Trump at a press conference announced a new 10 percent “global tariff,” ostensibly based in a different statute: the Trade Act of 1974 (the “Act”). On Saturday, President Trump announced via Truth Social that that tariff would be 15 percent, not 10 percent. In an interview Sunday, Treasury Secretary Scott Bessent characterized the new tariff as a temporary measure likely to be followed by new, even higher tariffs, rooted in other statutes.

In an announcement referencing the 10 percent figure, the White House stated the “temporary import duty” will last for 150 days and will take effect Tuesday, February 24, at 12:01AM EST. It said some goods, including certain critical minerals, certain electronics, and certain agricultural products, among others, will not be subject to the new tariff.

In contrast to “national emergenc[ies]” that the Administration claimed as justification for the IEEPA tariffs on China, Canada, Mexico, and tens of countries around the world, the new global tariff’s professed root is purely economic; it purports to respond to “certain fundamental international payment problems,” the White House said.

That language as well as the 15-percent figure and 150-day timeline mirror the boundaries of Section 122 of the Trade Act of 1974, which allows the President to impose “a temporary import surcharge, not to exceed 15 percent ad valorem, in the form of duties” in certain circumstances where “fundamental international payments problems require special import measures to restrict imports.” Echoing language in Section 122, the White House stated the new duty will allow the U.S. to “stem the outflow of its dollars to foreign producers” and “correct its balance-of-payments deficit.”

Unlike IEEPA, which the Supreme Court ruled did not give the President authority to tariff merely because it afforded him authority to “regulate…importation,” Section 122 explicitly provides that the President may impose a “temporary import surcharge” under certain circumstances.

Treasury Secretary Scott Bessent stated in a CNN interview on Sunday that he viewed the Section 122 action as “more of a bridge than a permanent [measure],” and that it is likely to lead to the imposition of higher tariffs the Administration will root in Section 232 of the Trade Expansion Act of 1962, and Section 301 of the Trade Act of 1974.

“The 122 is likely a five-month bridge during which studies on Section 232 tariffs and Section 301s are done, and… the 122s could disappear after five months,” he said. Importers hopeful that the era of high tariffs is over should note that, according to Sec. Bessent, “[i]t is very likely that those studies will result in higher 232s, higher 301s, and it will get us back to the same tariff level” (emphasis added). Sec. Bessent stated also that the projections are unchanged for “[t] he revenue for the U.S. Treasury, for 2026.”

IEEPA Tariff Refunds:

Importers hopeful for an easy refund process also should note Sec. Bessent’s statements in that regard. Asked whether the Administration would provide refunds, he replied, “[i]t is not up to the Administration; it is up to the lower court.”

Confronted with a prior filing with the Federal Circuit in which the government stated that “[i]f tariffs imposed on plaintiffs during these appeals are ultimately held unlawful, then the government will issue refunds to plaintiffs,” Bessent replied, “I’m not going to get out ahead of the court. We will follow the court’s direction but as I said that could be weeks or months away. That decision was not rendered on Friday.”

Sec. Bessent additionally appeared to suggest that importers may not be entitled to refund if, for example, they received discounted rates from their overseas suppliers.

Referring to the SCOTUS ruling and refunds, President Trump on Friday asked, “Wouldn’t you think they would have put one sentence in there saying… ‘keep the money’ or ‘don’t keep the money,’ right?” He stated litigation over refunds will take years.

Next Steps for Importers:

The Supreme Court did not order refunds and the Administration has not expressed eagerness to provide them, nor has it detailed any mechanism for doing so.

With that in mind, GKG Law reiterates its December 2025 analysis that importers seeking the most conservative approach and greatest insurance of obtaining IEEPA tariff refunds would be prudent to file a claim for refund with the Court of International Trade before their entries’ liquidation, Customs and Border Protection’s (“CBP’s”) final computation or ascertainment of duties on entries for consumption, which typically occurs at or around 314 days after entry.

GKG Law’s IEEPA tariff litigation team, which includes me, Brendan Collins, and Oliver M. Krischik, has already filed numerous such complaints prior to the SCOTUS ruling, and is prepared to continue to do so swiftly in the days ahead.

Please contact us if you have any questions or are interested in filing such a Complaint.

John H. Kester is a Customs attorney with GKG Law. He additionally passed Customs and Border Protection’s rigorous Customs Broker License Exam and his application for a Customs Broker License is pending. He is reachable at jkester@gkglaw.com.

Brendan Collins and Oliver M. Krischik, Principals with GKG Law, additionally participated in the firm’s numerous filings in opposition to the Section 301 tariffs implemented by President Trump’s first administration. They are reachable at bcollins@gkglaw.com and okrischik@gkglaw.com respectively.

By John H. Kester

The Supreme Court (“SCOTUS”) today held that the International Emergency Economic Powers Act (“IEEPA”) did not authorize the President to impose tariffs. Therefore, the Trump Administration’s IEEPA-based duties imposed on China, Canada, and Mexico as well as the so-called “reciprocal” tariffs on tens of countries around the world, are impermissible under the law. The Opinion of the Court was silent as to what mechanism if any there will be for refund of IEEPA duties importers already have paid.

The Ruling as to IEEPA Tariffs:

In its ruling the Supreme Court held that IEEPA was not a lawful basis for President Trump to have imposed the IEEPA tariffs at issue.  “Our task today is to decide only whether the power to ‘regulate…importation,’ as granted to the President in IEEPA, embraces the power to impose tariffs. It does not,” stated the Opinion of the Court. “[T]he government cannot identify any statute which the power to regulate includes the power to tax.”

Justice Roberts, in an opinion adopted by only some justices stated, “[t]he President must ‘point to clear congressional authorization’ to justify his extraordinary assertion of the power to impose tariffs…. He cannot.” He further emphasized that viewing IEEPA as allowing the President to impose tariffs “would ‘represent[] a “‘transformative expansion’” of the President’s authority over tariff policy,” and noted that no President had previously invoked IEEPA in order to impose tariffs in the “‘half century of existence’ … let alone tariffs of this magnitude and scope.”

The Ruling’s Silence as to IEEPA Tariff Refunds:

Noticeably absent from the Court’s Opinion was a clear path to refund for importers that have already paid billions of dollars in IEEPA tariffs, as noted by Justice Kavanaugh in his dissent: “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.”

Justice Kavanaugh noted, “[t]he United States may be required to refund billions of dollars to importers who paid the IEEPA” (emphasis added) but the word “may” will be unsatisfying to importers who have already expended billions on tariffs now deemed unlawful by the country’s highest court. Arguably conceding that there will be a refund process, by contrast, Justice Kavanaugh stated, “[a]s was acknowledged at oral argument, the refund process is likely to be a ‘mess.’”

Prior to the SCOTUS ruling, the Court of International Trade (“CIT”) in AGS Co. Auto. Sols. v. U.S. Customs & Border Prot., appeared persuaded that refunds would follow in the event of a Supreme Court ruling against the tariffs, asserting that the government would be prevented from departing from its assertion in Princess Awesome, LLC v. U.S. Customs and Border Prot. that it “will not oppose the [c]ourt’s authority to order reliquidation of entries of merchandise subject to the challenged IEEPA duties and that [it] will refund any IEEPA duties found to have been unlawfully collected, after a final and unappealable decision has been issued finding the duties to have been unlawfully collected and ordering defendants to refund the duties.” (Emphasis added.) While the Supreme Court ruling today declared the IEEPA tariffs unlawful it did not order their refund.

In a press conference after the ruling President Trump said that litigation over tariff refunds will take years. He also announced his intent to impose a new 10% “global tariff” based in a different statute.

Next Steps for Importers:

Faced with a decisive ruling as to the unlawfulness of IEEPA tariffs, and ambiguity as to any refund process, GKG Law reiterates its December 2025 analysis that importers seeking the most conservative approach and greatest insurance of obtaining tariff refunds would be prudent to file a claim for refund with the Court of International Trade before their entries’ liquidation, Customs and Border Protection’s (“CBP’s”) final computation or ascertainment of duties on entries for consumption, which typically occurs at or around 314 days after entry.

GKG Law’s IEEPA tariff litigation team, which includes me, Brendan Collins, and Oliver M. Krischik, has already filed numerous such complaints prior to the SCOTUS ruling, and is prepared to continue to do so swiftly in the days ahead.

Please contact us if you have any questions or are interested in filing such a Complaint.

John H. Kester is a Customs attorney with GKG Law. He additionally passed Customs and Border Protection’s rigorous Customs Broker License Exam and his application for a Customs Broker License is pending. He is reachable at jkester@gkglaw.com.

Brendan Collins and Oliver M. Krischik, Principals with GKG Law, additionally participated in the firm’s numerous filings in opposition to the Section 301 tariffs implemented by President Trump’s first administration. They are reachable at bcollins@gkglaw.com and okrischik@gkglaw.com respectively.

Importers would be prudent to act quickly to ensure they have a greater chance to obtain a refund should the Trump Administration’s International Emergency Economic Powers Act (“IEEPA”) Tariffs be ruled impermissible by the Supreme Court (“SCOTUS”), which heard oral arguments in Learning Resources, Inc. v. Trump on November 5.

Importers seeking the most conservative approach and greatest insurance would be prudent to file a claim for refund with the Court of International Trade (“CIT”) before liquidation of their entries, Customs and Border Protection’s (“CBP’s”) final computation or ascertainment of duties on entries for consumption, which typically occurs at or around 314 days after entry.

• Although CBP provides a Protest mechanism whereby importers may seek recovery of improperly assessed duties within 180 days of the liquidation date, that mechanism may be unavailable for tariffs that have been applied by CBP without its own discretion, e., tariffs imposed at the behest of the Trump Administration.
• Importers that file with CIT prior to liquidation may request an injunction against CBP’s liquidation of their related entries until the Supreme Court rules on IEEPA tariffs.
• Importers that file with CIT also may get answers as to whether they will be refunded more quickly, and at a minimum, will have prepared forward-thinking arguments to their entitlement to such refunds once the Supreme Court rules.

GKG Law is prepared to file such claims and is structuring its fees for doing so as $5,000 for each such filing with entitlement on a contingency basis to 10% of refunded duties. Importers interested in filing such claims may contact the GKG Law attorneys below.

John H. Kester is a Customs attorney with GKG Law. He additionally passed Customs and Border Protection’s rigorous Customs Broker License Exam and his application for a Customs Broker License is pending. He is reachable at jkester@gkglaw.com.

Brendan Collins and Oliver M. Krischik, Principals with GKG Law, participated in the firm’s numerous filings in opposition to the Section 301 tariffs implemented by President Trump’s first administration. They are reachable at bcollins@gkglaw.com and okrischik@gkglaw.com respectively.