The Supreme Court May Strike Down IEEPA Tariffs - But the Refund Fight Is Just Beginning
- Jeff Chang
- Nov 11
- 5 min read
During Supreme Court oral arguments on November 5th, Justice Amy Coney Barrett asked the question that's been keeping customs attorneys up at night: "If you win, tell me how the reimbursement process would work. Would it be a complete mess?"
The attorney challenging the tariffs, Neal Katyal, gave an answer that should concern every importer who's paid IEEPA tariffs over the past year: the refund process would be "difficult" and would "take a long time."
Most coverage of this case focuses on whether President Trump exceeded his authority under the International Emergency Economic Powers Act. That's certainly the headline question. But Justice Barrett's concern reveals something more troubling: even if the Court strikes down these tariffs, actually getting your money back could become a years-long battle.
Why "Winning" at the Supreme Court Doesn't Mean Getting IEEPA Tariff Refunds Automatically
Here's what many importers don't understand: there's no automatic refund button.
If the Supreme Court rules that IEEPA doesn't authorize these tariffs, U.S. Customs and Border Protection isn't going to automatically cut checks to everyone who paid them. Instead, CBP will almost certainly rely on 19 USC §1514 - the statute that requires importers to file formal protests within 180 days of liquidation to preserve their refund rights.
This matters because we're not talking about small amounts. The government has collected over $88 billion in IEEPA tariffs so far. Estimates suggest these tariffs could generate nearly $1.8 trillion over the next decade if they remain in place.
When billions of dollars are at stake, the government doesn't just hand them back without a fight.
Three Scenarios - None of Them Simple
Scenario 1: The Court orders automatic refunds
This would be the cleanest outcome, but it seems unlikely. Justice Barrett's "complete mess" question suggests the Court is worried about the administrative burden. Processing millions of entries, determining which tariffs were paid under IEEPA versus other authorities, calculating interest - it would be a massive undertaking.
The government will also argue they can't just refund money without Congressional appropriation. They'll want importers to go through the normal protest process.
Scenario 2: Relief limited to the plaintiffs in the case
The Court might rule narrowly and say only the specific businesses who sued get refunds. Everyone else would need to file their own lawsuits or protests.
This creates a race. Every importer would be rushing to establish their claim before procedural doors close. The Court of International Trade would be flooded with cases.
Scenario 3: The Court punts on the refund mechanism
Most likely, the Court issues a decision on the legal question - does IEEPA authorize tariffs? - but leaves the refund process for CBP to figure out.
This is where things get messy. CBP could:
Establish a special refund program (like they did for Section 301 exclusions)
Require individual protests for each entry
Create procedural hurdles to slow down claims
Deny protests and force importers into court
Legal observers are already predicting a "hard-fought battle over refunds" even if the challengers win on the merits.
Why the 180-Day Deadline Matters More Than Ever
Here's the critical issue many importers aren't aware of: there are strict deadlines for preserving refund rights under customs law, and these deadlines don't wait for the Supreme Court to rule.
For entries that have already been liquidated (when CBP finalizes the entry, typically about 314 days after importation), there's generally a 180-day window to file a protest. Miss that deadline, and you may be permanently barred from recovering those tariff payments - even if the Supreme Court later rules the tariffs were unlawful.
Think about it: if you're CBP, facing billions in potential refund claims, you're looking for reasons to deny claims. The easiest reason? "You didn't file a timely protest."
This creates a real dilemma. Many importers are waiting to see how the Supreme Court rules before taking action. But by the time the decision comes out (expected late December 2025 or early January 2026), critical deadlines for many 2025 entries may have already passed.
The Harbor Maintenance Tax Precedent
There's actually a relevant precedent here. In 1998, the Supreme Court struck down the harbor maintenance tax on exports as unconstitutional. Even with a clear Supreme Court ruling declaring the tax unlawful, the refund process was complicated and took years.
Importers had to file claims. The government challenged the scope of who qualified for refunds. There was litigation over the proper mechanism. It wasn't automatic, and it wasn't fast.
That's the roadmap we're likely looking at here - except the dollar amounts are exponentially larger.
The Complexity Ahead
If Justice Barrett's concern is valid - and the challengers' own attorney essentially confirmed it is - then the refund process will involve navigating:
Procedural requirements under customs law that are unforgiving of missed deadlines
Documentation requirements to prove which tariffs were paid under IEEPA versus other authorities
Potential CBP resistance to issuing refunds even after an adverse Supreme Court ruling
Unclear mechanisms for actually obtaining refunds, which may require protests, lawsuits, or participation in some yet-to-be-created administrative program
Multi-year timelines during which your capital remains tied up in tariff payments
The businesses that successfully recover their IEEPA tariff payments will likely be those who preserved their rights properly from the beginning, documented everything meticulously, and had experienced guidance navigating the complex intersection of customs law and constitutional litigation.
Time Is Not On Your Side
The Supreme Court decision is expected by late December 2025 or early January 2026. But here's the problem: the 180-day protest deadline runs from the date of liquidation for each individual entry, regardless of when the Court rules.
If you imported goods subject to IEEPA tariffs in early 2025, and those entries liquidated in late 2024 or early 2025, your protest deadlines may be approaching or may have already passed.
This isn't a matter of waiting to see what happens. The clock is already ticking.
Get Professional Guidance Now
If your company has paid IEEPA tariffs, you need to understand:
Which of your entries are potentially affected
What your liquidation dates and protest deadlines are
What steps you should take now to preserve your rights
How to position yourself for whatever refund process ultimately emerges
This is not a situation where you want to figure it out as you go. The intersection of customs procedures, statutory deadlines, and unprecedented constitutional litigation requires experienced legal counsel who understands both the substantive issues and the procedural requirements.
Chang Law Group helps importers navigate complex customs and international trade matters. If you've paid IEEPA tariffs and want to understand your options for preserving potential refund rights, contact us for a consultation. We work with businesses to analyze their specific situations and develop strategies for protecting their interests in this rapidly evolving legal landscape.
The refund fight is beginning now, whether the Supreme Court has issued its decision or not. Don't let critical deadlines pass while waiting for clarity that may never come.
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. It is not intended to create an attorney-client relationship. The law in this area is complex and rapidly evolving. Every importing situation involves unique facts and circumstances. You should not take any action or refrain from taking action based solely on information in this article. Please consult with qualified legal counsel regarding your specific situation. Chang Law Group does not guarantee any particular outcome in any legal matter.
