The SCOTUSblog discusses How the tariffs could be refunded if the court sides against Trump

It has been slightly over six weeks since the Supreme Court heard oral arguments in the challenge to President Donald Trump’s power to impose sweeping tariffs in a series of executive orders earlier this year. During the lengthy debate over those tariffs on Nov. 5, the justices appeared doubtful that the president has such authority under the International Emergency Economic Powers Act, the 1977 law on which he relied.

That skepticism prompted Justice Amy Coney Barrett to look ahead at the possible repercussions of a ruling for the challengers. Specifically, she asked Neal Katyal, who represented a group of small businesses at the November hearing, to “tell me how the reimbursement process would work. Would it be a complete mess? … It seems to me like it could be a mess.”

Katyal first emphasized that the government had agreed that his clients “would get their refunds [if the court sided against the Trump administration]. So, for us, that’s how it would work.” For others who had paid the tariffs, he appeared to agree with Barrett that “[i]t’s a very complicated thing.” But although it may be difficult, he continued, that shouldn’t preclude the Supreme Court from ruling in his clients’ favor.

There are no clear answers, but history and several of the Supreme Court’s past decisions may provide some guidance.

Katyal suggested that the Supreme Court could mitigate the impact of its ruling by “limit[ing] its decision to prospective relief” – that is, by holding that the tariffs would only apply going forward, so that refunds would not generally be available. He pointed to the court’s 2022 ruling in Office of the U.S. Trustee v. John Q. Hammons Fall 2006, LLC, in which the justices determined the remedy for an earlier decision holding a bankruptcy law unconstitutional when it allowed Chapter 11 debtors to be charged different fees depending on where they filed their cases. They considered three options: refund the fees for the debtors who had paid more; retroactively charge additional fees to the debtors who had paid less; or simply require everyone to pay the same fees going forward.

By a vote of 6-3, in an opinion by Justice Ketanji Brown Jackson, the court chose the third option. Jackson explained that the constitutional violation prompting the need for a remedy “was nonuniformity, not high fees.” Although the debtors bringing the new case, who were seeking a refund, “understandably complain about their higher payments,” Jackson wrote, “our task is not necessarily to reduce them; it is to remedy the disparity.” Moreover, Jackson added, the “monetary disparity” was “short lived and small,” making up only about 2% of the group of debtors who had paid the higher fees.

Notably, Justice Neil Gorsuch dissented, in an opinion joined by Justices Clarence Thomas and Amy Coney Barrett. Gorsuch maintained that the debtors should get a refund. He described the majority opinion as “perform[ing] a remedial root canal, permitting the government to keep the cash it extracted from its unconstitutional fee regime.” “Never mind,” Gorsuch wrote, “that a refund is the traditional remedy for unlawfully imposed fees.”

Katyal also referred to United States v. U.S. Shoe Corporation, a challenge to a federal harbor maintenance tax, which required exporters, importers, and domestic shippers to pay the government 0.125% of the value of commercial cargo shipped through U.S. ports, as an example of a case in which “the refund process took a long time.” The challenger in that case sought a refund, arguing that the tax violated the Constitution’s export clause, which bars taxes “on Articles exported from any State.” The Court of International Trade agreed with the challenger and held that it was entitled to a refund.

In a unanimous decision authored by Justice Ruth Bader Ginsburg, the Supreme Court upheld the CIT’s ruling that the tax violates the Constitution as applied to exporters. That said, the court did not address the refunds process. Following the court’s ruling, exporters who had filed lawsuits challenging the fees received these, and Judge Jane Restani,a judge on the CIT, established a claims-resolution procedure for the exporters who could show that they had paid the tax to apply for refunds; through that process they eventually received $730 million from the government over two years. 

Liquidation of Tariffs Collected

On December 15, the U.S. Court of International Trade (USCIT) ruled against liquidation of tariffs collected.

Liquidation meaning settlement of amounts owed. But the USCIT made it clear that liquidation did not prevent the Supreme Court from ordering reliquidation.

On December 15, 2025, the U.S. Court of International Trade (USCIT) issued a decision in AGS Company Automotive Solutions et al. v. United States, Slip Op. 25-154, addressing how importers can preserve their rights to recover duties imposed under the International Emergency Economic Powers Act (IEEPA) on certain goods imported into the United States. In this consolidated case, brought by a group of importers including a large national retailer, the USCIT held that liquidation of entries subject to IEEPA tariffs will not, by itself, prevent the court from ordering reliquidation (the process by which it restarts the liquidation clock and duties are recalculated) and refunds if those tariffs are ultimately found unlawful by the Supreme Court of the United States. The relevant appeals have been consolidated and are currently pending before the Supreme Court.

The USCIT confirmed that importers who have already filed timely court challenges to the IEEPA tariffs will not lose their ability to obtain refunds solely because their entries liquidate while the Supreme Court considers the legality of these tariffs. At the same time, the decision does not create a general, automatic refund mechanism for all affected importers. The opinion focuses on the court’s authority to grant judicial relief in cases properly before it and on the federal government’s litigation representations in those cases.

The key takeaway is that liquidation, by itself, will not extinguish refund rights while the IEEPA tariffs are being challenged. Although the USCIT did not explicitly state that importers must be plaintiffs in this litigation, it did indicate that refunds may not be recoverable solely through filing administrative protests under 19 U.S.C. § 1514(a).

Ultimately, the USCIT found no irreparable injury because the government, through the U.S. Department of Justice, has “made very clear — both in this case and in related cases — that [it] will not object to the [c]ourt ordering reliquidation of plaintiff’s entries subject to the challenged IEEPA duties if such duties are found to be unlawful.” In other words, the government represented that it would not oppose the USCIT restarting the liquidation process for entries at issue in this and related IEEPA litigation if the tariffs are struck down.

US Government’s Response and the Limits of Administrative Relief

While the government has acknowledged that the USCIT has authority to order reliquidation in these circumstances, it has not committed to any automatic or administrative refund process if the Supreme Court strikes down the IEEPA tariffs.

The USCIT’s opinion notes that the government is effectively bound, through principles like judicial estoppel, by the positions it has taken in this and related cases — specifically, its assurances that it will not oppose court‑ordered reliquidation of affected entries. But those assurances are directed at the litigation before the USCIT, not at the broader universe of importers who have not filed suit.

A significant number of importers have already filed cases in the USCIT seeking full refunds of IEEPA duties, and the recent decision helps ensure that those plaintiffs will not be procedurally barred from relief by the mere passage of time and liquidation of their entries. At the same time, the decision does not guarantee refunds, does not bind the government to any particular refund process, and does not expand rights for importers that have not yet filed suit.

Fear of liquidation and timely filings is why Costco filed a lawsuit for full refunds of the tariffs.

Related Posts

November 5, 2025: Supreme Court Oral Arguments Hint Trump May Lose on Reciprocal Tariffs

Driving the news: The court heard oral arguments on Wednesday in a challenge to a slew of Trump’s tariffs, including the “Liberation Day” levies and a separate set imposed on Canada, Mexico and China.

• At least two of the likely swing votes in this case — Chief Justice John Roberts and Justice Amy Coney Barrett — indicated they may be inclined to slap down, or at least curb, the lion’s share of the tariffs.
• “The vehicle is imposition of taxes on Americans, and that has always been a core power of Congress,” Roberts said during the arguments.

On November 16, 2025, I addressed the question What Are the Odds the Supreme Court Rules Against Trump on Tariffs?

The Supreme Court decision is not random. I discuss a framework.

December 3, 2025: Costco Sues Trump Administration for Full Refund of Reciprocal Tariffs

I commend Costco for standing up to Trump’s unconstitutional order.

I expect a 6-3 ruling against Trump that in practice ought to be unanimous.

Traditional Remedy

Polymarket odds are now about 70-30 against Trump on the tariff issue. I will stick with my assessment of 75-25 against Trump.

There are no applicable Polymarket odds for refunds.

Should the Supreme Court strike reciprocal tariffs, as I expect, I will go with the “Traditional Remedy” especially given previous dissents of Justices Neil Gorsuch, Clarence Thomas, and Amy Coney Barrett in similar case.

I appreciate the logic of Gorsuch who stated “that a refund is the traditional remedy for unlawfully imposed fees.”

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