Litigation Review

Not unexpectedly, lawsuits over Trump’s tariffs are multiplying like rabbits, so it is time to look at their status. One thing for certain: Since neither side will surrender, all these cases will end up in the Supreme Court’s lap, which means final resolution is some distance away, probably next year.

First, the lawsuits involving the International Economic Emergency Powers Act (IEEPA) concern refunds, since the Supreme Court has already invalidated the tariffs. The court sent the case back to the Court of International Trade (CIT) for disposition, and the judge assigned to handle the case issued a universal order to refund all the tariffs. Customs and Border Protection (CBP) began that process in the spring, and it is well underway. The remaining controversy concerns refunds for tariffs where final liquidation of import entries has occurred. The administration has appealed the judge’s ruling, arguing that those refunds can only be made pursuant to a court order specific to each case. In other words, individual importers would have to sue in each case to get their money back. The appeal is pending in the Court of Appeals for the Federal Circuit (CAFC). The administration’s position is based in part on the Supreme Court ruling last year in Trump v. CASA, Inc., which significantly constrained judges’ ability to issue universal injunctions. The court did, however, leave open the path of pursuing class action suits, in which all the affected parties can be certified as a class and pursue litigation collectively.

The plaintiffs are pursuing two strategies. One is to oppose the administration’s appeal. The other is to seek certification as a class, and a hearing on that was held in the CIT last week. If they succeed, they would get a second means of obtaining refunds. CAFC affirmation of the CIT judge’s order would also put the Supreme Court in an awkward position if the administration appeals to it. Having largely ruled out universal injunctions, the court would be presented with a case where such an order makes eminent good sense. Forcing importers to sue in individual cases would be an inefficient way of dealing with a situation the court thought it had already resolved. Lawsuits would clog the courts, cost importers money, and slow down the refund process, even though the outcome would be predictable in every case. It would, of course, once again, be a field day for lawyers. I said at the beginning of this process that the government could make it hard or easy for importers, and it is apparent that the government is trying to make it hard for some of them, probably in the hope that some will not bother to request refunds. CBP estimates that there is about $11.4 billion in this category of entries, so it is not a huge part of the overall refund pie, but it is important to those who are owed their money, particularly small importers.

Second, there are several lawsuits pending that argue the Section 122 tariffs were also not legal. The CIT decided in favor of the plaintiffs several months ago, and that decision is now on appeal to the CAFC. Since those tariffs expired on July 24, this legal battle is also over refunds. The outcome is hard to predict. In contrast to IEEPA, Section 122 clearly provides tariff authority. The issue for the court is whether the tariffs imposed fit within the limitations in the statute, and that depends, in turn, on which definition of “balance of payments” the court decides to use. The provision was enacted more than 50 years ago when economic conditions were different, so the court will have to decide if it wants to adhere strictly to what its authors appeared to have in mind in 1974 or whether it wants to interpret the provision in light of current economic realities.

Finally, the legal battle over the Section 301 tariffs on forced labor has begun. Three lawsuits have been filed: one by two small businesses in New York and California; one by several Illinois companies, including Learning Resources, Inc., which filed the initial IEEPA complaint; and one by 25 attorneys general and governors from Democratic states. The CIT has selected judges to hear those cases, will consider them together, and is setting up a briefing schedule that will likely conclude by October 2. The case filed by the states may fail on the same lack of standing grounds as a previous case filed by many of the same officials against the Section 122 tariffs, but the other two will be decided on their merits. Here again, unlike the IEEPA case, Section 301 explicitly authorizes tariffs, and, unlike Section 338—stand by for lawsuits on that one as well if the tariffs are actually imposed—it has a long history.

Some experts argue that all tariff-setting authority constitutionally resides in Congress, and the president is misusing these laws, but the decision will more likely turn in both the Section 122 and Section 301 cases on whether the action taken—tariffs—can be justified within the terms of each statute. In the Section 301 case, the issue will be whether the government’s investigations into 86 countries’ forced labor practices were a sham and simply a pretext for reimposing the invalidated IEEPA tariffs. Since the administration’s report contained many assertions and little evidence, yet found everyone guilty and applied the same penalties, it may be a difficult position to defend.

While the administration overall has fared well in the courts, its record on trade litigation is less impressive. It is zero for two so far, although the Section 122 case is unfinished, and there is a decent chance the Section 301 outcome will make that zero for three. That would be bad news for Trump, but good news for consumers and for the rule of law.

Author’s note: I retired from CSIS on March 29, 2026. I plan to continue writing this column and participating in The Trade Guys podcast, so please continue to read and listen. However, my CSIS email address will no longer be working, so if readers or podcast listeners want to contact me directly, they should do so at [email protected].

William A. Reinsch is a senior adviser (non-resident) and Scholl Chair emeritus with the Economics Program and Scholl Chair at the Center for Strategic and International Studies in Washington, D.C.